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

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B. The 2010 Standards Regarding Public Entrances Are Intended To Achieve the Same Result As the 1991 Standards Regarding Public Entrances.

As the Court previously held, Defendants’ entrances on raised porches violate the provision of the 1991 Standards governing accessible public entrances.  Order 11-12, ECF No. 109; see 1991 Standards, § 4.1.3(8)(a)(iii).  That provision specified, among other things, that “[w]here feasible, accessible entrances shall be the entrances used by the majority of people visiting or working in the building.”  1991 Standards, § 4.1.3(8)(a)(iii).  Defendants argue that because the language was changed in the 2010 Standards to state “Accessible routes shall coincide with or be located in the same area as general circulation paths,” the raised porches do not violate the 2010 Standards.  2010 Standards, § 206.3 (location of accessible routes); Defs.’ Mot. 13, ECF No. 164; compare 2010 Standards, § 206.4.1 (“Public Entrances”), with 1991 Standards, § 4.1.3(8)(a)(iii). 

Defendants’ reading of the 2010 Standards is incomplete because it disregards the Department of Justice’s interpretive guidance accompanying those Standards.  The guidance to the 2010 Standards states that the Department intended for the 2010 public entrance provisions to achieve the same result as the 1991 provisions for public entrances. This guidance is entitled to deference because it represents the Department’s authoritative interpretation of its own regulations.  As the Supreme Court has held, an agency’s interpretation of its own regulation is controlling unless “plainly erroneous or inconsistent with the regulation.”  Auer v. Robbins, 519 U.S. 452, 461 (1997) (citation omitted); accord Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“We must give substantial deference to an agency’s interpretation of its own regulations.”).

The guidance to the 2010 Standards, which was published with the 2010 Standards, addresses substantive changes between the 1991 Standards and the 2010 Standards.  28 C.F.R. pt. 36, App. B (2011) at 816-17.  Discussing changes to the provisions regarding public entrances, the guidance to the 2010 Standards explains that the “revision is intended to achieve the same result as the 1991 Standards.”  Id. at 822-23.  Therefore, applying the 2010 Standards to the entrances on raised porches results in the same consequence as the 1991 Standards – the inaccessible entrances on raised porches violate the Standards.    

This outcome is supported not only by the Department’s interpretive guidance regarding the revisions to the 2010 Standards but by the core principles of the ADA.  The two types of entrances at issue here provide a very different experience to customers with and without disabilities.  The two side entrances with doors for people with disabilities provide an experience devoid of any features found at the inaccessible entrance that is on a raised porch.  People who use wheelchairs do not get to experience the Southern California surf shack aesthetic of the raised porches.  They do not get to inspect the clothing displayed on the mannequins.  They do not get to enter through an opening without a door and see the marketing images displayed on the porches or to experience the furniture and “props” located there.  Nor are they integrated with other nondisabled customers, who are entering over the porches.

The ADA requires that no one 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.”  42 U.S.C. § 12182(a); see also 28 C.F.R. § 36.201 (regulatory language mirroring the statutory prohibition against discrimination on the basis of disability).  To that end, the ADA requires that new construction, such as Defendants’ stores, be “readily accessible to and usable by individuals with disabilities,” except where an entity can demonstrate that it is “structurally impracticable” to do so.  42 U.S.C. § 12183(a)(1).  The ADA states that it is discriminatory to provide an individual with a disability with a “good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual . . . with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.” 42 U.S.C. § 12182(b)(1)(A)(iii).

The inaccessible raised porches preclude the full and equal enjoyment of Defendants’ stores by people with mobility impairments, including those people who use wheelchairs.  As the Court correctly held, “Defendants have unnecessarily created a design for their brand that excludes people using wheelchairs from full enjoyment of the aesthetic for that brand.” Order 12, ECF No. 109.   

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