Colorado Cross-Disability Coalition (CCDC) has sued Abercrombie & Fitch Co. for violating Title III of the Americans with Disabilities Act (CCDC, et al. v. Abercrombie & Fitch Co., et al., 09-cv-02757-WYD-KMT). Specifically, CCDC’s suit states that Hollister stores, owned by Abercrombie & Fitch Co., have created barriers to the entrance of their stores that prevent people in wheelchairs from full and equal enjoyment of the stores. To date, nationwide class-action status has been certified.
This case is interesting because, as I read it, it centers on the intent of the ADA, along with full and equal enjoyment, and different and separate treatment.
This is a picture of a Hollister store with an entrance that
is at issue here:
I see a large, expansive entrance, broken up with a porch in the center and two side doors on either end. The marketing intent is, in my decorator-challenged lingo, “California Shack.” The front porch is inaccessible at several stores.
First, the Department of Justice, in their Statement of Interest in this case, said that the front porch is a public retail space. Defendants disagree. The porch contains props like mannequins, pictures, plants. Is this truly a retail space? Can you pull clothing off shelves on this porch for purchase? This seems, to me, to be an ornamental space. You can view the props from areas around the porch, and in my opinion is similar to Victoria’s Secret stores' big armoires filled with merchandise added to make you feel as if you’re in an opulent dressing room. (These armoires do not have ADA-compliant levers on doors, etc.—they're used for decoration.)
Second, immediately adjacent on either side of the porch are
two accessible doors. In an article with
the Denver Post, CCDC’s legal
director stated that “You have to be a real smart detective in a wheelchair to
get into that place” ("Park Meadows, Orchard Town entrances violate ADA, judge rules", www.denverpost.com, posted on 9/01/2011).
Really? I can see accessible
doors on either side of the porch without any detective training. The doors are not hidden behind some
structure or in an out-of-the-way location, and are obvious doors with an awning
above. Here is another picture and clearly-visible door:
Does one inaccessible design element render the entire entrance inaccessible? I believe most people would say no because someone in a wheelchair can obviously enter the store, easily. The law is what counts, however, and the ADA’s Accessibility Guidelines appear to be met.
Finally, at issue here, brought forth by the DOJ, is “intent”: Hollister store design violates the intent of the ADA because the stores’ inaccessible porches prevent “full and equal enjoyment” and requires “different and separate use” by people with disabilities. I understand the very basic argument here, that a wheelchair-user can’t enjoy the porch and must use the doors. However, if you truly look at the intent of the ADA regarding “full and equal” and “separate and different,” the DOJ’s argument is off-base.
Before the ADA, people in wheelchairs were often forced to use back or side entrances requiring entry through the bowels of the kitchen and often up a freight elevator packed with boxes of food to get to the restaurant, or a back door through a storage room to get into a store, or the delivery entrance of a building and through the backstage to get to a seat in a theater. Those situations are unequal, definitely different and perhaps humiliating. Are Hollister’s side doors unused by the public except for deliveries, or do they open into the storeroom, requiring a winding through to get to the store? No, the doors are part of the same large, visible, aesthetic front entrance as is the front porch.
The design element blocks one-third of an otherwise accessible entrance. The porch is ornamental and not public retail space because people are not shopping on the porch. The doors flanking the porch comply with ADA Standards. The ADA’s intent and law were not, in my opinion, violated here. Others obviously disagree, but perhaps the bigger argument is that everything cannot accommodate everyone. A short person cannot reach top shelves, a shopper with a visual disability cannot see the props in a store, but here, a shopper in a wheelchair can access the store right through the front entrance.