The Tenth Circuit Court of Appeals issued its opinion in Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co. on Tuesday, September 2, 2014.
Abercrombie & Fitch Co., parent company of J.M. Hollister, LLC, d/b/a Hollister Co., has two designs for its stores in shopping malls. One design features a raised “porch” entrance, where the porch is raised by two steps and there is no ramp. The Orchard Park Town Center and Park Meadows Mall Hollister stores have the “porch” design. Anita Hansen, a member of The Colorado Cross-Disability Coalition (CCDC) who uses a wheelchair, tried to enter the Hollister store at Orchard Park and could not access the store via the “porch.” She was told by a store employee to use a side entrance, but it was locked. When an employee opened the door, there was no room for Hansen to maneuver her wheelchair into the store. She had a similar experience at the Park Meadows store. The experiences were humiliating for Hansen.
CCDC notified Abercrombie and Hollister that these stores violated the ADA. Attempts to settle failed, and CCDC brought suit in federal district court. CCDC added class complaints challenging the “porch” design at Hollister stores throughout the United States. Abercrombie corrected some of the barriers by lowering sales counters, rearranging merchandise so wheelchair-bound customers could access the store, and ensuring the side door remained unlocked. However, it kept the “porch” design.
After plaintiff filed a third amended complaint, Abercrombie moved to dismiss, arguing plaintiffs lacked Article III standing. However, the district court disagreed, finding a “real and immediate threat” of future harm if the ADA violations were not remedied. The plaintiffs filed a motion for partial summary judgment, asking for judgment as a matter of law on whether the porch at the Park Meadows Hollister violated Title III of the ADA. This motion was granted. Thereafter, some plaintiffs withdrew and another wheelchair-bound plaintiff, Ms. Farrar, was added. The parties filed cross-motions for summary judgment, plaintiffs seeking summary judgment that all Hollister stores with the porch-like entrance violated Title III of the ADA and defendants seeking summary judgment on standing, arguing that the plaintiffs failed to prove a concrete injury in fact. The district court granted plaintiffs’ motion in full and denied Abercrombie’s. The court held that plaintiffs proved standing, Abercrombie’s changes to the Park Meadows Hollister did not moot the claim against the porch entrance, and it entered a permanent injunction ordering Abercrombie to bring all stores into compliance with Title III of the ADA within three years. Abercrombie appealed.
The Tenth Circuit first addressed standing, finding that just because Farrar and Hansen were ADA testers, that did not deprive them of Title III standing. Further, because Ms. Farrar has standing, she has standing as the representative of a nationwide class. The Tenth Circuit declined to overturn the district court’s class certification, finding that the numerosity element of Rule 23 was met and that it would be impracticable to join all potential class members. Next, the Tenth Circuit turned to the ADA claims. The district court found that Abercrombie violated the ADA in three ways: (1) the raised porch design violated the broad statutory requirements of the ADA by providing “different or separate” accommodation that was not in the most integrated setting; (2) the porch was a “space” as defined by the Design Standards, and Abercrombie must comply with regulations regarding circulation routes and accessibility; and (3) because the porch was an “entrance,” it violated the Design Standards’ mandate that the entrance used by the majority of people be accessible. The Tenth Circuit disagreed that Abercrombie’s use of the porch design violated the ADA, holding instead that the design itself was what violated the ADA and the accessibility must be evaluated by the Design Standards. The Tenth Circuit held that each of the district court’s grounds for awarding Plaintiffs summary judgment was untenable.
The Tenth Circuit affirmed the district court’s denial of summary judgment to Abercrombie, affirmed the class certification, but reversed the grant of summary judgment to plaintiffs. The case was remanded for further determination of the issues. The dissent would not have certified the class.