United States: Disability Access Issues in the Retail Industry

Both California and federal law protect the rights of disabled members of the public to access and use privately owned places of public accommodation. In California, Section 54, et seq., of the Civil Code provides that people with disabilities "shall have the same right as the able-bodied to the full and free use of ... public buildings," and guarantees "full and equal access, as other members of the general public, to accommodations, advantages, facilities, and privileges" of places of public accommodation. Cal. Civ. Code § 54.1. Title III of the Americans with Disabilities Act (ADA) provides that "no individual shall be discriminated against on the basis of disability" in places of public accommodation. 42 U.S.C. § 12182(a). Title III contains comprehensive implementing regulations describing ways in which places of public accommodation can (1) construct and alter facilities to make them accessible to disabled patrons, (2) remove barriers to access in existing facilities to make them more accessible to disabled patrons, and (3) alter their policies, practices or procedures in order to make their goods and services accessible to disabled patrons.

Under the ADA, newly constructed facilities ­ that is, facilities first occupied on or after January 26, 1993, must meet or exceed the minimum requirements of the ADA Standards for Accessible Design. 28 C.F.R. Part 36, App. A. These requirements are identical to the ADA Accessibility Guidelines (ADAAG); standards maintained by the federal Departments of Justice and Transportation. Alterations to facilities, including renovations, made on or after January 26, 1992, must be made in compliance with these same standards.

In addition, new construction and alterations must be built in compliance with the accessibility standards contained in the California Building Code (codified as Title 24 of the California Code of Regulations).

The ADA and Building Code accessibility standards are highly technical and complex, and special requirements pertaining to retailers apply, such as requirements for accessible fitting rooms, cashier stations or cash wraps and checkout aisles. It is important that any new construction or alteration be undertaken in compliance with these standards. Therefore, when a new project is started, make sure your architect and contractor are completely familiar with these standards and their requirements. Make sure to inform your architect and contractor that you expect the new construction or alterations to be in complete compliance with applicable state and federal accessibility standards, and that your architect and contractor have prior experience in this area.

2. Barrier Removal in Existing Facilities

For existing facilities, a place of public accommodation must remove barriers to access "where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). "Readily achievable" means "easily accomplishable without much difficulty or expense." 42 U.S.C. § 12181(9). This standard is based on the size and resources of the business in question. Id.

Examples of barrier removal include:

• Ensuring accessible parking by re-striping and/or resurfacing the parking lot (this may also require installation of new curbs, sidewalks, curb cuts and detectable warnings). You should post appropriate signage, including the international symbol of accessibility, positioned high enough so as to be visible over a car or van, as well as painted onto the parking lot pavement. Such barrier removal may be a shared expense between landlord and tenant. Providing access to places of public accommodation is a joint obligation of commercial landlords and tenants under Title III and applicable state law. Therefore, you should negotiate contribution from your landlord, if possible. However, you should still remove barriers even without contribution from the landlord if it is readily achievable to do so, in order to minimize your potential liability.

• Making building or suite entrances accessible by widening doors, installing ramps, installing accessible door handle hardware and, if applicable, installing security gates next to any turnstiles. Fifty percent of entrances should be accessible and inaccessible entrances should have signage directing people to accessible entrances. Again, you should attempt to negotiate contribution from your landlord, but if your landlord refuses to contribute, you should nevertheless remove these barriers, if it is readily achievable to do so.

• Moving shelving, racks and other merchandise display fixtures to ensure adequate maneuvering space in aisles and between shelves, racks and other merchandise display fixtures. You should provide at least 36 inches of clearance on aisles leading to and from store entrances, elevators, cash registers or service counters, dressing rooms, restrooms, water fountains and pay phones. If a 180-degree turn is necessary to exit an area, then a 60-inch diameter turning space or a 36-inch wide "T" space is needed. If a store cannot provide enough maneuvering space between all displays and shelving without a significant reduction in selling space that will substantially affect the profitability of the business, then it may not be "readily achievable" to remove all such barriers. In such cases, a retailer may provide less maneuvering space between some displays and shelving. See Lieber v. Macy's West, Inc. (N.D. CA 1999) 80 F. Supp. 2d 1065.

• Making sales and service counters (or cash wraps) and checkout aisles accessible. An accessible sales counter is at least 36 inches long and no more than 36 inches above the floor, with a 30-inch by 48-inch space under the countertop, on the customer's side, to accommodate a wheelchair or scooter. All sales counters, including all sales counters adjacent to cash registers, should be made accessible if readily achievable to do so. If not readily achievable, a nearby auxiliary counter may be provided, or, until a more permanent solution can be constructed, a clipboard or lap board may be used. Accessible checkout aisles should provide a minimum of 36 inches of clearance space and should be identified by a sign with the international symbol of accessibility mounted over the aisle. The counter adjacent to the aisle should be no higher than 38 inches and if a lip is provided between the counter and the checkout aisle, it should be no higher than 40 inches. Stores with under 5000 square feet of selling space must provide at least one accessible check out aisle. Stores with 5000 square feet or more of selling space must meet the following numeric requirements (note that these requirements apply to each design of checkout aisle, such as express lanes):

• Ensuring that security bollards designed to prevent shopping carts from leaving the store do not prevent ingress and egress by people in wheelchairs. You may provide customers in wheelchairs with an alternate entry equally convenient as that provided to customers who are not in wheelchairs. Remember to post appropriate signage directing customers in wheelchairs to such alternate entrance.

3. Alteration of Practices, Policies and Procedures

In addition to removal of barriers to access, a retailer must modify its practices, policies and procedures where necessary to provide disabled customers with access to its goods and/or services. 42 U.S.C. § 12182(b)(2)(A)(ii); Cal. Civ. Code § 54.1(a)(1), (d). As will be seen, it is critically important to train your sales staff so that they can serve disabled customers in a non-discriminatory fashion.

Particular issues:

• Retrieving Items for a Customer: A retailer is not required to make every shelf, rack, display or merchandise item accessible to customers in wheelchairs (or to other customers with disabilities). Therefore, items may be displayed at a greater height than a person in a wheelchair can reach. However, one or more salespeople or clerks must be made available to assist disabled customers to access such merchandise. Signage should be posted informing disabled customers of the availability of such assistance.

• Dressing Rooms Procedures: Many retailers have policies prohibiting more than one person from entering a dressing room or preventing persons of the opposite sex from entering a male or female dressing room. However, you may be required to modify such policies to accommodate a disabled customer who needs the assistance of a companion in order to try on clothes due to his or her disability. See, e.g., Anderson v. Ross Stores, Inc. (N.D. CA 2000) 2000 U.S. Dist. LEXIS 15487 (under the ADA, it was reasonable for Ross Stores to modify its policy prohibiting people of the opposite sex from entering a male or female dressing room where legally blind customer requested that her husband be allowed to enter the dressing room with her to assist her in trying on clothes).

• Service Animals: A service animal is any animal that has been individually trained to assist a disabled person with his or her disability. A disabled person is entitled to access to any and all places of public accommodation accompanied by his or her service animal, irrespective of any "no pets" policy of the entity or any health code prohibitions for establishments that serve food. Further, a disabled person is not required to identify his or her disability or carry proof or documentation that the animal is a service animal. A retailer may only inquire whether the person has a disability, whether the animal is a service animal and, if the disability and/or the function of the animal are not apparent, what tasks the animal has been trained to perform. Again, it is very important not to ask the customer to identify his or her disability. Service animals are not always dogs. If a service animal displays aggressive or disruptive behavior (e.g., barking, growling, biting, etc.), a retailer can require the disabled person to remove the animal from the premises, but must allow the person to continue to shop or otherwise use the goods and services of the place of public accommodation unaccompanied by the animal.

• Communication Issues: Retailers (and other places of public accommodation) must provide access to their goods and services to customers with vision, hearing, speaking, mental and cognitive disabilities. For relatively simple transactions, handwritten notes can be used to communicate with a deaf or speech-impaired customer, and pertinent information can be read to a blind customer. For more complicated transactions, such as the sale of a car, a place of public accommodation may be obligated to hire a sign language interpreter or real-time translator, or to translate applicable written materials (contracts, etc.) into Braille or large print. A place of public accommodation should ask a disabled customer what type of accommodation he or she prefers or needs (not all deaf people read sign language and not all blind people read Braille). For customers with speech, cognitive or mental disabilities, a salesperson may simply have to be patient and spend more time communicating with the customer in order to provide effective service. In addition, deaf customers may communicate with a store using telephone relay service (TDD), which is free to businesses, but does take longer than a voice conversation. Employees should be trained to serve disabled customers in a patient and non-derisive manner, and should not inquire as to the precise nature of a disability.

• Prohibited Inquiries: A customer may request a modification of a particular practice, procedure or policy because of disability. As with issues surrounding service animals, employees should be trained not to inquire into the nature of customers' disabilities. In many cases, a customer will volunteer the nature of the disability. However, a customer may choose not to identify the disability, and may simply say that the modification is needed "because of a disability." Employees should be trained not to say things like, "you don't look disabled to me" "what's your disability", etc. If the requested modification will not result in much difficulty or expense for the retailer, it should generally be provided without further inquiry or delay. When in doubt, employees should be trained to contact their manager and procedures should be put in place to respond to such requests in an expedient fashion.

As can be seen, access issues involving disabled members of the public are extremely complex and the opportunities for potential liability are many. When in doubt, get help, from competent disability access counsel or from the U.S. Department of Justice. The Department of Justice staffs a free Information Line providing technical assistance on compliance with Title III of the ADA and can be reached at 800-514-0301, or 800-514-0383 (TDD).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.