Colorado Cross-Disability Coalition, et al. Plaintiffs, v. Abercrombie & Fitch Co., et al., Defendants. - Statement of Interest on the Parties' Motions for Summary Judgment

A. Overview Of The Relevant Statutory And Regulatory Provisions. 

In 1990, Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).  In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities.”  42 U.S.C. § 12101(a)(2).  Congress further found that “individuals with disabilities continually encounter various forms of discrimination, including . . . the discriminatory effects of architectural . . . barriers, . . . segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.”  42 U.S.C. § 12101(a)(5).

Title III of the ADA requires that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”²  42 U.S.C. § 12182(a).  It requires that new construction, such as Defendants’ stores, be “readily accessible to and usable by individuals with disabilities.”³  42 U.S.C. § 12183(a)(1).  Additionally, the ADA prohibits places of public accommodation from providing goods, services, facilities, privileges, and accommodations to people with disabilities that are “different or separate” than those provided to other people⁴ and requires goods, services, facilities, privileges, and accommodations to be afforded to people with disabilities “in the most integrated setting appropriate to the needs of the individual.”  42 U.S.C. § 12182(b)(1).

The ADA directs the Department of Justice to issue regulations implementing title III of the ADA.  42 U.S.C. § 12186(b).  It requires that architectural standards included in the regulations be consistent with the minimum guidelines issued by the Architectural and Transportation Barriers Compliance Board (Access Board).  42 U.S.C. § 12186(c).  On July 26,  1991, the Department issued rules implementing title II and title III, which are codified at 28 C.F.R. part 35 (title II) and 28 C.F.R. part 36 (title III).  Appendix A of the 1991 title III regulation⁵ contains the ADA Standards for Accessible Design (“1991 Standards”) which were based upon the ADA Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date.  The Access Board published updated ADA Accessibility Guidelines in 2004 (2004 ADAAG) as the culmination of a ten-year long effort to harmonize Federal accessibility requirements with each other and with model codes that are the basis of many State and local building codes.  See 36 C.F.R. pt. 1191.  In 2010, the Department of Justice revised its title II and title III regulations, which included the adoption of updated accessibility standards.  For title III, the new standards (“2010 Standards”) consist of the 2004 ADAAG along with revised Subpart D of 28 C.F.R. part 36.  See 28 C.F.R. § 36.104 (defining the term “2010 Standards”).  Although the revised regulations took effect on March 15, 2011, covered entities were not required to comply with the 2010 Standards until March 15, 2012.  28 C.F.R. § 36.406.⁶

Defendants’ stores were constructed after January 26, 1993, and before September 15, 2010, and therefore should have been constructed to comply with the 1991 Standards.  28 C.F.R. § 36.406(a)(1); Defs.’ Opp. 1, ECF No. 167.  However, after March 15, 2012, newly constructed facilities subject to the 1991 Standards that contain non-compliant elements, such as Defendants’ raised porches, are required to be made accessible in accordance with the 2010 Standards.  28 C.F.R. § 36.406(a)(5)(ii).  

² Defendants do not dispute that their stores are places of public accommodation and subject to title III of the ADA.  See 42 U.S.C. § 12181(7)(E); Order 3-4, ECF No. 109.

³ The exception to this rule is in situations where it is “structurally impracticable” to do so.  42 U.S.C. § 12183(a)(1).  That is not the case here.  See Order 3, ECF No. 109.

⁴ Separate or different accommodations are acceptable only where necessary to match effectiveness of the accommodation provided to others.  42 U.S.C. § 12182(b)(1)(A)(iii).  Defendants do not argue that this exception applies.

⁵ This Appendix was republished as Appendix D when the Department revised its ADA title III regulations in 2010. 

⁶ “Newly constructed or altered facilities or elements . . . that were constructed or altered before March 15, 2012, and that do not comply with the 1991 Standards shall, on or after March 15, 2012, be made accessible in accordance with the 2010 Standards.”  28 C.F.R. § 36.406(a)(5)(ii).