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

ARGUMENT

What was true when this Court granted Plaintiffs’ Motion for Partial Summary Judgment – that Defendants’ stores with raised porches only accessed by steps violate the ADA – remains true today.  The revisions to the ADA Standards for Accessible Design do not change the outcome here because the 2010 Standards regarding public entrances are intended to achieve the same result as the 1991 Standards.

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).

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.   

C. Raised Porches Are Part Of the Store That Must Be Made Accessible and Located On An Accessible Route.

The raised porches also violate the 2010 Standards because: (1) the porches are part of the store that must be accessible, and (2) they are not located on an accessible route.

1. Defendants’ raised porches are part of the store and must be accessible.

The raised porches violate the 2010 Standards because they are part of the store itself that must be made accessible.  An analysis under the 2010 Standards starts with the requirement that all spaces must be accessible unless specifically exempted.  2010 Standards, § 201.1.  The advisory note to Section 201.1 states that “[t]hese requirements are to be applied to all areas of a facility unless exempted . . . .”  2010 Standards, § 201.1 (Advisory).  Moreover, where a space contains more than one use, “each portion shall comply with the applicable requirements for that use.”  2010 Standards, § 201.2.  The requirements for accessible spaces are set forth in the 2010 Standards at Chapter 3: Building Blocks.  Pursuant to Chapter 3, accessible spaces must have compliant floor surfaces, compliant turning space, and compliant clear floor space, among other requirements.  2010 Standards, §§ 301-309.

Defendants admit that the raised porches are used as more than just entrances.  They state that the porches are designed to “create the aesthetic appearance of a Southern California surf shack.”  Defs.’ Mot. 1 at ¶2, ECF No. 164.  They use the porches as interactive advertising to draw the attention of shoppers.⁷ The raised porches are a unique space that invites customers to pass through, inspect clothes for sale and enjoy furniture and decorations in an interactive way not available to customers viewing a window display. As stated, Defendants’ raised porches are part of the public retail space of the store.

Because the raised porches are used as both public retail space and public entrance, they must meet the requirements for both uses.  2010 Standards, §§ 106.5 (definition for “entrance” and “space”), 201.2.  Therefore, the raised porches are required to be accessible as public spaces⁸ and as public entrances.  See 2010 Standards, § 201.1.⁹ 

⁷ Defendants further admit that displays such as those on the raised porches are critical to their business because “[r]ather than advertise through traditional methods, [Defendant] markets virtually exclusively through its in-store experience.”  Defs.’ Mot. 1 at ¶1, ECF No. 164.

⁸ Although not applicable to Defendants’ raised porches, there are thirteen exemptions to the requirement that public spaces must be accessible.  2010 Standards, § 203.  The four exemptions addressing raised spaces are inapplicable here:

• “Raised Areas.  Areas raised primarily for the purposes of security, life safety, or fire safety, including but not limited to, observation or lookout galleries, prison guard towers, fire towers, or life guard stands shall not be required to comply with these requirements or to be on an accessible route.”  2010 Standards, § 203.3.
• Raised refereeing, judging, and scoring areas.  Id. at § 203.10.
• Raised boxing or wrestling rings.  Id. at § 203.13.
• Raised diving boards and diving platforms.  Id. at § 203.14.

⁹ Defendants’ raised porches are similarly covered by the analogous provisions of the 1991 Standards regarding public and common use areas.  See 1991 Standards, §§ 3.5 (defining “public use” as “spaces that are made available to the general public” and “common use” as spaces that are “made available for the use of a restricted group of people”), 4.2.3 (turning space), 4.2.4 (clear floor space), 4.2.4.3 (surfaces), etc. 

2. Defendants’ raised porches must be on an accessible route.

The raised porches must be located on an accessible route.  The 2010 Standards require that all spaces required to be accessible – such as the raised porches – be connected by an accessible route.  2010 Standards, § 206.2.4.  The requirements for accessible routes are set forth in the 2010 Standards at Chapter 4: Accessible Routes.  Pursuant to Chapter 4, Section 403, accessible routes must have compliant walking surfaces, slopes no greater than 1:20 in the direction of travel and cross slopes no greater than 1:48, vertical changes in level no higher than ¼”, and sufficient clear width and passing spaces, among other requirements.  2010 Standards, §§ 401-410.  Raised areas such as raised porches are specifically addressed in an advisory note that states, “Accessible routes must connect all spaces and elements required to be accessible including, but not limited to, raised areas and speaker platforms.”  Id. at § 206.2.4 (Advisory).  The raised porches do not meet any of the exceptions that would allow them to remain unconnected by an accessible route.  See, id. §§ 206.2.3 (listing exceptions for multi-story facilities), 206.2.4 (listing three general exceptions).  However, Defendants’ raised porches are not located on an accessible route because each is only reachable by steps having a vertical change in level greater than ¼”.¹⁰

¹⁰ Defendants’ raised porches are similarly in violation of the analogous provisions of the 1991 Standards regarding accessible routes to public and common use areas.  See 1991 Standards, §§ 4.1.3 (requiring an accessible route connect accessible entrances with all accessible spaces within a facility), 4.3.2 (requiring at least one accessible route from public streets to the accessible building entrance they serve, which “shall, to the maximum extent feasible, coincide with the route for the general public.”), 4.3.3 (width), 4.3.6 (surface textures), 4.3.7 (slope), 4.3.8 (changes in level), etc.