Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co. ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
August 29, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
COLORADO CROSS-DISABILITY
COALITION, a Colorado non-profit
corporation; ANITA HANSEN; JULIE
FARRAR, on behalf of themselves and
all others similarly situated,
Plaintiffs - Appellees,
and
BENJAMIN HERNANDEZ; ROBERT
SIROWITZ; JOSHUA STAPEN;
ROBIN STEPHENS,
Plaintiffs,
v. No. 13-1377
ABERCROMBIE & FITCH CO.;
ABERCROMBIE & FITCH STORES,
INC.; J.M. HOLLISTER LLC, d/b/a
Hollister Co.,
Defendants - Appellants.
---------------------------
UNITED STATES OF AMERICA;
LEGAL CENTER FOR PEOPLE
WITH DISABILITIES AND OLDER
PEOPLE; AMERICAN
ASSOCIATION OF PEOPLE WITH
DISABILITIES; CENTER FOR
RIGHTS OF PARENTS WITH
DISABILITIES; DISABILITY
RIGHTS AND ADVOCATES;
DISABILITY RIGHTS EDUCATION
AND DEFENSE FUND; DISABILITY
RIGHTS LEGAL CENTER; LEGAL
AID SOCIETY– EMPLOYMENT
LAW CENTER; NATIONAL
DISABILITY RIGHTS NETWORK;
NATIONAL FEDERATION OF THE
BLIND,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:09-CV-02757-WYD-KMT)
Mark A. Knueve (and Michael J. Ball of Vorys, Sater, Seymour and Pease, LLP,
Columbus, Ohio; Gregory Alan Eurich and Joseph Neguse of Holland & Hart
LLP, Denver, Colorado, on the briefs), for Defendants - Appellant.
Amy F. Robertson (and Timothy P. Fox of Civil Rights Education and
Enforcement Center, Denver, Colorado; Bill Lann Lee of Lewis, Feinberg, Lee,
Renaker & Jackson, PC, Oakland, California; Kevin W. Williams and Andrew C.
Montoya of Colorado Cross Disability Coalition, Denver, Colorado; Julia
Campins and Hillary Benham-Baker of Campins, Benham-Baker, LLP, San
Francisco, California, on the brief), for Plaintiffs - Appellees.
Sasha Samberg-Champion, (Jocelyn Samuels, Acting Assistant Attorney General,
and Mark L. Gross, Department of Justice, Civil Rights Division, Appellate
Section, on the brief), Washington, D.C., for Amicus Curiae United States of
America.
Michelle Uzeta, Monrovia, California, for Amici Curiae Legal Center for People
With Disabilities and Older People, American Association of People with
Disabilities, Center for Rights of Parents with Disabilities, Disability Rights
Advocates, Disability Rights Education and Defense Fund, Disability Rights
Legal Center, Legal Aid Society – Employment Law Center, National Disability
Rights Network and National Federation of the Blind.
2
Before KELLY, TYMKOVICH, and McHUGH, Circuit Judges.
KELLY, Circuit Judge.
Defendants–Appellants Abercrombie & Fitch Co., Abercrombie & Fitch
Stores, Inc., and J.M. Hollister LLC, d/b/a Hollister Co. (collectively,
Abercrombie) 1 appeal from several orders by the district court holding that
Hollister clothing stores violate the Americans with Disabilities Act (ADA).
First, Abercrombie challenges the district court’s holding that the Plaintiffs have
Article III standing. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch
Co., 957 F. Supp. 2d 1272, 1277 (D. Colo. 2013). Second, it challenges the
court’s certification of a nationwide class of disabled persons who shop at
Hollister stores. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co.,
No. 09-cv-02757, 2012 WL 1378531, at *7 (D. Colo. 2012). Third, it challenges
the court’s holding that entrances at many Hollister stores violate Title III of the
ADA. See Abercrombie & Fitch Co., 957 F. Supp. 2d at 1283. Finally, it
challenges the court’s entry of a permanent injunction remedying those violations.
See Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-02757,
1
Abercrombie & Fitch Stores, Inc. and J.M. Hollister LLC are wholly
owned subsidiaries of Abercrombie & Fitch Co. For simplicity, this opinion
refers to the defendant entities as “Abercrombie” and the public accommodation
at issue as “Hollister stores” or “Hollister.”
3
2013 WL 6050011, at *1 (D. Colo. 2013). Our jurisdiction arises under 28 U.S.C.
§ 1291, and we affirm in part, reverse in part, and remand for further proceedings.
Background
Plaintiff–Appellee Colorado Cross-Disability Coalition (CCDC) is a
disability advocacy organization in Colorado. Aplee. Br. 7. It advocates on
behalf of its members to promote “independence, self-reliance, and full inclusion
for people with disabilities in the entire community.” II Aplt. App. 486. In 2009,
CCDC notified Abercrombie that Hollister stores at two malls in
Colorado—Orchard Town Center and Park Meadows Mall—violated the ADA.
Aplt. Br. 4-5. Initial attempts to settle the matter were unsuccessful, and this
litigation followed. Id. at 4.
An ADA complaint was filed by CCDC and four of its members, one of
whom was Anita Hansen. I Aplt. App. 24. Ms. Hansen, who uses a wheelchair
for mobility, encountered accessibility obstacles at the Hollister at Orchard Town
Center. Id. at 111. Because steps led to the store’s center entrance, she attempted
to enter the store through an adjacent side door, which was locked. Id. at 112. A
Hollister employee let her in, but once inside, Ms. Hansen had to ask employees
to move tables and furniture to get about the store. Id. This experience left her
“frustrated and humiliated.” Id. at 113. She had a similar experience at the
Hollister at Park Meadows Mall. Id. at 114-15. The complaint alleged that these
4
barriers, including the stepped “porch-like structure” that served as the stores’
center entrance, violated Title III of the ADA. Id. at 29-37. The Plaintiffs added
class allegations to the complaint, challenging these barriers at “Hollister Co.
stores throughout the United States.” Id. at 71.
Abercrombie took it upon itself to correct some of these barriers. It
modified Hollister stores by lowering sales counters, rearranging merchandise to
ensure an unimpeded path of travel for customers in wheelchairs, adding
additional buttons to open the adjacent side doors, and ensuring that the side
doors were not blocked or locked. III Aplt. App. 782. However, one thing
remained unchanged: a stepped, porch-like structure served as the center entrance
at many Hollister stores.
There are two types of Hollister stores in the United States: those with
center entrances that are level with the surrounding mall floor, and those like the
Park Meadows Hollister 2 that feature a stepped porch as their center entrance.
Aplt. Br. 5-6. These porches share a common design: the porch protrudes into the
mall corridor and is covered by a terracotta roof, which gives it the look and feel
2
Some Hollister stores, including the one at Orchard Town Center, have
closed since the start of this case. III Aplt. App. 782-83. For much of the time
that this case was proceeding before the district court, porches were present at
249 Hollister stores in the United States. See II Aplt. App. 688. When this
appeal was briefed, that number was 231. See Aplt. Br. 3. The case is moot as to
these closed stores; therefore, we will focus on the Park Meadows Hollister,
which remains open.
5
of a Southern California surf shack. Id. at 6; Aplee. Br. 4. Two steps lead from
the mall floor onto the porch—where clothed mannequins, upholstered chairs, and
marketing images are displayed—and another two steps lead off the porch into
either the “Dudes” (male) or “Bettys” (female) side of the store. Aplt. Br. 5-7;
Aplee. Br. 4-5. On either side of the porch are two doors leading into the store
that are level with the mall floor. Aplt. Br. 5. These doors are on the same
storefront as the porch. Whether a person enters the store through one of these
doors, or ascends and descends the porch, that person arrives at the same point in
either the Dudes or Bettys side of the store. Id. at 6-7. The following picture,
depicting the raised porch in the center and the level doors to the sides, may be a
helpful reference.
After the Plaintiffs filed a third amended complaint, Abercrombie moved to
6
dismiss arguing that the Plaintiffs lacked Article III standing. I Aplt. App. 184.
The district court denied the motion, holding that the Plaintiffs alleged a “real and
immediate threat” of future harm if the alleged ADA violations were not
remedied. Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-
02757, 2011 WL 2173713, at *3 (D. Colo. 2011). 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. I Aplt.
App. 270. The Department of Justice (DOJ) filed a Statement of Interest
supporting the Plaintiffs. II Aplt. App. 346. The district court granted the
Plaintiffs’ motion, holding that the “steps to the center entrance are a legally
unacceptable piece of [Hollister’s] branding and violate Title III of the ADA.”
Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 835 F. Supp. 2d. 1077,
1083 (D. Colo. 2011).
Thereafter, four of the named Plaintiffs withdrew, and Julie Farrar, another
CCDC member who uses a wheelchair, was added to join Ms. Hansen on the final
complaint. II Aplt. App. 474. On the Plaintiffs’ motion, the district court
certified a class defined as
all people with disabilities who use wheelchairs for
mobility who, during the two years prior to the filing of
the Complaint in this case, were denied the full and
equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any
Hollister Co. Store in the United States on the basis of
disability because of the presence of an Elevated
7
Entrance.
Abercrombie & Fitch Co., 2012 WL 1378531, at * 1.
The parties filed cross motions for summary judgment. The Plaintiffs
sought summary judgment on whether all Hollister stores with porches—some
249 stores nationwide—violated Title III of the ADA. II Aplt. App. 698. They
also sought entry of a permanent injunction remedying this nationwide violation.
Id. Abercrombie sought summary judgment on standing, arguing that the
Plaintiffs failed to offer proof of a concrete injury in fact. III Aplt. App. 946-47.
It also argued that the district court’s earlier grant of partial summary judgment
should be vacated because Abercrombie made changes to the Park Meadows
Hollister addressing the court’s concerns. Id. at 711. The district court granted
the Plaintiffs’ motion in full and denied Abercrombie’s. Abercrombie & Fitch
Co., 957 F. Supp. 2d at 1283-84. The court held that the Plaintiffs produced
evidence of their standing and that Abercrombie’s changes to the Park Meadows
Hollister did not moot the claim against the porch entrance. Id. at 1277. The
court then held that the porch structures at all Hollister stores violated Title III of
the ADA. Id. at 1283.
Finally, the court entered a permanent injunction; it ordered Abercrombie
to bring all Hollister stores with porches into compliance with Title III of the
ADA within three years, at a rate of at least 77 stores per year. III Aplt. App.
1098-99. Abercrombie could do so by modifying the porches in one of three
8
ways: (1) making the porch entrance “level with the surrounding floor space”; (2)
placing a ramp on the porch; or (3) closing the porch off from “any public
access.” Id. at 1098. Abercrombie appealed.
Discussion
I. Standing
This court reviews standing de novo. Tandy v. City of Wichita, 380 F.3d
1277, 1283 (10th Cir. 2004). At its “irreducible constitutional minimum,”
standing has three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). First, a plaintiff must suffer an “injury in fact” that is actual or imminent.
Id. Second, the injury must be fairly traceable to the challenged action of the
defendant. Id. Third, it must be likely that the injury will be redressed by the
relief requested. Id. at 561. In response to a summary judgment motion, a
plaintiff must support each element of standing by setting forth, through affidavit
or other evidence, “‘specific facts,’ which for purposes of the summary judgment
motion will be taken to be true.” Id. (citation omitted) (quoting Fed. R. Civ. P.
56(e)).
Abercrombie contends that Ms. Hansen and Ms. Farrar have not suffered a
genuine injury in fact because they are ADA testers. Aplt. Br. 19-20. This court
has held, however, that “testers have standing to sue under Title II of the ADA.”
Tandy, 380 F.3d at 1287. We believe the same is true for Title III of the ADA.
9
See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332-34 (11th Cir.
2013) (relying on Tandy and holding that testers have standing under Title III of
ADA). Like Title II, Title III provides remedies for “any person” subjected to
illegal disability discrimination. Compare 42 U.S.C. § 12133 (Title II), with id. §
12188(a)(1) (Title III); see also Tandy, 380 F.3d at 1286-87. Thus, anyone who
has suffered an invasion of the legal interest protected by Title III may have
standing, regardless of his or her motivation in encountering that invasion.
However, the fact that “tester standing” exists under Title III does not displace
the general requirements of standing. See Houston, 733 F.3d at 1334. Like any
plaintiff, a tester must demonstrate that she has indeed suffered a cognizable
injury in fact that will be redressed by the relief sought.
The “injury in fact” requirement differs “depending on whether the plaintiff
seeks prospective or retrospective relief.” Tandy, 380 F.3d at 1283 (citing City of
Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). When prospective
relief—such as an injunction—is sought, “the plaintiff must be suffering a
continuing injury or be under a real and immediate threat of being injured in the
future.” Id. In Tandy, we held that several ADA testers had standing to seek
injunctive relief against the City of Wichita. Id. at 1287-89. These plaintiffs
were “under a real and immediate threat of experiencing a lift malfunction” on the
city’s buses because they averred in affidavits an intent “to test Wichita Transit’s
10
fixed-route services several times per year.” Id. at 1287. 3 We held that
“testimony of an intent to use buses ‘several times per year’ suggests a concrete,
present plan to use” the buses “several times each year, including the year in
which [the plaintiff] made that statement.” Id. at 1284; see also id. at 1285 n.12.
This contrasted with the plaintiffs in Lujan v. Defenders of Wildlife, whom the
Supreme Court held “merely expressed a desire to someday visit places halfway
around the world.” Id. (citing Defenders of Wildlife, 504 U.S. at 564).
With these principles in mind, we hold that Plaintiff Julie Farrar has
standing to seek prospective relief. In two affidavits, Ms. Farrar averred that she
“intend[s] to . . . return to” the Park Meadows Hollister, II Aplt. App. 463, and
that she “will likely be going to the Park Meadows Mall at least six times per
year,” id. at 644. This “six times per year” testimony has the same effect as the
“several times per year” testimony in Tandy. It suggests a concrete, present plan
to return to the Park Meadows Hollister several times—at least six—each year,
including the year in which Ms. Farrar made that statement. See Tandy, 380 F.3d
at 1284.
Abercrombie challenges the plausibility of Ms. Farrar’s intent to return to
the Park Meadows Hollister, pointing out that she has never entered a Hollister
store and that the Park Meadows Mall is not the closest to her home. Aplt. Br.
3
We held that one plaintiff lacked standing because he failed to file such
an affidavit. Tandy, 380 F.3d at 1288.
11
21-22; Aplt. Reply Br. 5. For the purposes of summary judgment, however, we
must take the specific facts set forth in Ms. Farrar’s affidavit as true. See
Defenders of Wildlife, 504 U.S. at 561. Moreover, her claim that she will return
to the Park Meadows Hollister at least six times per year is not rendered
implausible by the distance between the store and her home. Ms. Farrar testified
that she will go to the Park Meadows Mall more often now that her friend has
moved nearby. II Aplt. App. 644, 661; see Houston, 733 F.3d at 1336-37 (ADA
plaintiff suffered an injury in fact because his frequent trips to his lawyer’s
offices took him near the defendant’s store, which was more than thirty miles
from his home). Ms. Farrar’s testimony demonstrates that she suffers a real and
imminent threat of encountering the alleged accessibility barrier at the Park
Meadows Mall in the future; this injury is directly traceable to the porch at
Abercrombie’s store, and it is likely that a remedial injunction, if warranted,
would redress this harm. Therefore, Ms. Farrar has standing to seek prospective
relief.
Ms. Farrar sought prospective relief as the representative of a nationwide
class. Because we hold that she has Article III standing to challenge the porch at
the Park Meadows Hollister, we need not decide whether the other named
Plaintiffs, i.e., Anita Hansen and CCDC, have standing to serve as class
representatives. See Horne v. Flores, 557 U.S. 433, 446-47 (2009); Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977) (“[W]e have
12
at least one individual plaintiff who has demonstrated standing . . . . Because of
the presence of this plaintiff, we need not consider whether the other individual
. . . plaintiffs have standing to maintain the suit.”). However, Abercrombie insists
that our standing analysis does not end at the Park Meadows Mall. It argues that
Ms. Farrar lacks standing to bring a claim for nationwide injunctive relief because
she does not intend to visit every Hollister store with a porch—over 230 stores
nationwide. Aplt. Br. 23-24. We have no doubt that if Ms. Farrar were seeking a
nationwide injunction in her own right, then she would lack standing to challenge
accessibility barriers at stores she never intends to visit. 4 See Scherr v. Marriot
Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013) (although ADA plaintiff had
standing to challenge the design of a single hotel she intended to visit, plaintiff
lacked standing to challenge that same design at 56 other hotels she had no plans
to visit). Although the concepts of standing and adequacy of status to maintain a
4
In this case, the district court held that the “individual named Plaintiffs
have standing to bring a claim requesting nationwide injunctive relief.” Colo.
Cross-Disability Coal. v. Abercrombie & Fitch, No. 09-cv-02757, 2011 WL
1930643, at *4 (D. Colo. 2011). This holding seems superfluous, however, given
that the individual Plaintiffs did not request a nationwide injunction to remedy
their own injuries but rather to remedy the injuries of a nationwide class they
sought to represent. See I Aplt. App. 203 (“In any event, if [the Plaintiffs’]
claims are common with and typical of those of a nationwide class, they will be
entitled to represent that class which will have standing to seek a nationwide
injunction.”); Aplee. Br. 1 (The Plaintiffs “do not argue that the two individual
plaintiffs have standing to obtain a nationwide injunction.”). The question
whether nationwide injunctive relief may issue was more appropriately answered
by asking whether a class seeking that relief should be certified.
13
class action appear related, they are independent criteria and must be evaluated
separately. See Hassine v. Jeffes, 846 F.2d 169, 175-76 (3d Cir. 1988). The
question whether an injunction may properly extend to Hollister stores nationwide
is answered by asking whether Ms. Farrar may serve as a representative of a class
that seeks such relief. All that is necessary to answer this question is an
application of Rule 23. See DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188,
1194 (10th Cir. 2010). We turn to that task next.
II. Class Certification
“The class action is an exception to the usual rule that litigation is
conducted by and on behalf of the individual named parties only.” Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (internal quotation marks
omitted). To justify departure from that rule, “a class representative must be part
of the class and possess the same interest and suffer the same injury as the class
members.” Id. (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S.
395, 403 (1977)) (internal quotation marks omitted). It is “Rule 23(a) [that]
ensures that the named plaintiffs are appropriate representatives of the class
whose claims they wish to litigate.” Id. Rule 23(a)’s requirements are quite
familiar: (1) the class is so numerous that joinder of all members is impracticable
(numerosity); (2) there is a question of law or fact common to the class
(commonality); (3) the claims or defenses of the representative parties are typical
of the claims or defenses of the class (typicality); and (4) the representative
14
parties will fairly and adequately protect the interests of the class (adequacy).
Fed. R. Civ. P. 23(a).
In addition to Rule 23(a), the class proponent must also satisfy through
evidentiary proof at least one of the provisions of Rule 23(b). Comcast Corp. v.
Behrend, 133 S. Ct. 1426, 1432 (2013). In this case, the class was certified under
Rule 23(b)(2), which requires the court to find that “the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.” Fed. R. Civ. P. 23(b)(2).
We review the standard the district court used in making its Rule 23
determination de novo, and we review the merits of that determination for an
abuse of discretion. Wallace B. Roderick Revocable Living Trust v. XTO
Energy, Inc., 725 F.3d 1213, 1217 (10th Cir. 2013). The district court enjoys
“considerable discretion” in this area, and “we defer to the district court’s
certification ruling if it applies the proper Rule 23 standard and its decision falls
within the bounds of rationally available choices given the facts and law
involved.” Devaughn, 594 F.3d at 1194 (internal quotation marks omitted).
A. Class Standing
Before we apply Rule 23, we must address Abercrombie’s repeated
contention that no one, not even the class, has standing in this case. Specifically,
Abercrombie argues that the class lacks standing because the Plaintiffs “never
15
established that there are actual, non-hypothetical class members who intend to
patronize each of the Hollister stores.” Aplt. Br. 29. That is, the Plaintiffs must
offer proof of “actual members of the certified class who have standing” as to the
231 Hollister stores with a porch. Id. at 30.
We have heard this argument before. In DG ex rel. Stricklin v. Devaughn,
the defendants argued that “Rule 23(a)’s commonality and typicality requirements
demanded that Named Plaintiffs prove all members were [injured] or are actually
exposed to an imminent threat of harm as a result of” the defendants’ actions.
594 F.3d at 1197. We rejected this argument, noting that it “conflate[d] the
requirements for standing, prospective injunctive relief, and class certification.”
Id. “First,” we held, “only named plaintiffs in a class action seeking prospective
injunctive relief must demonstrate standing by establishing they are suffering a
continuing injury or are under an imminent threat of being injured in the future.”
Id. “Second, Rule 23’s certification requirements neither require all class
members to suffer harm or threat of immediate harm nor Named Plaintiffs to
prove class members have suffered such harm.” Id. at 1198.
Other authorities support the notion that class “standing” does not require
individualized proof from class members. See Denney v. Deutsche Bank AG, 443
F.3d 253, 263 (2d Cir. 2006) (noting that Article III standing does “not require
that each member of a class submit evidence of personal standing”); Prado-
Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000) (Court
16
must first determine whether “at least one named class representative has Article
III standing,” then “question whether the named plaintiffs have representative
capacity, as defined by Rule 23(a), to assert the rights of others.”). Three Justices
of the Supreme Court favorably quoted this principle from a leading class action
treatise:
“[Unnamed plaintiffs] need not make any individual
showing of standing [in order to obtain relief] . . . .
Whether or not the named plaintiff who meets individual
standing requirements may assert the rights of absent
class members is neither a standing issue nor an Article
III case or controversy issue but depends rather on
meeting the prerequisites of Rule 23 governing class
actions.”
Lewis v. Casey, 518 U.S. 343, 395-96 (1996) (Souter, J., concurring) (alterations
in original) (ellipses added) (quoting 1 H. Newberg & A. Conte, Newberg on
Class Actions § 2.07, pp. 2-40 to 2-41 (3d ed. 1992)). The majority seemed to
agree, pointing out that its holding did “not rest upon the application of standing
rules.” See id. at 360 n.7. 5
5
Abercrombie’s position could be framed as an argument that nationwide
injunctive relief was inappropriate because there was no proof of nationwide
injuries necessitating such relief. See Lewis, 518 U.S. at 348-49. In this case,
however, we are faced with a nationwide design—“231 Hollister stores that have
one elevated entry door with steps in addition to two adjacent, level, fully
accessible entry doors.” Aplt. Br. 3. An injunction aimed at those and only those
Hollister stores fits perfectly with the claim that those stores violate class
members’ rights under the ADA. Contra Lewis, 518 U.S. at 360 (absent showing
of systemwide constitutional violation, injunction with systemwide scope was
inappropriate).
17
Thus, the question whether this class may seek nationwide injunctive relief
is not answered by demanding proof of standing from each class member but by
application of Rule 23.
B. Numerosity
“The burden is upon plaintiffs seeking to represent a class to establish that
the class is so numerous as to make joinder impracticable.” Peterson v. Okla.
City Hous. Auth., 545 F.2d 1270, 1273 (10th Cir. 1976). “The numerosity
requirement requires examination of the specific facts of each case and imposes
no absolute limitations.” Gen. Tel. Co. of the Nw., Inc. v. Equal Emp’t
Opportunity Comm’n, 446 U.S. 318, 330 (1980). Plaintiffs must offer “some
evidence of established, ascertainable numbers constituting the class,” but there is
“no set formula to determine if the class is so numerous that it should be so
certified.” Rex v. Owens ex rel. Okla., 585 F.2d 432, 436 (10th Cir. 1978).
Abercrombie argues that the Plaintiffs failed to meet the numerosity
requirement because “they presented no evidence regarding the size of their
proposed class.” Aplt. Br. 50. This court has said, however, that the numerosity
requirement is not “a question of numbers.” Horn v. Associated Wholesale
Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977). Rather, there are a several
“factors that enter into the impracticability issue.” Id. Such factors may
“includ[e] the nature of the action, the size of the individual claims, and the
location of the members of the class or the property that is the subject matter of
18
the dispute.” 7A Charles Alan Wright, Arthur R. Miller & Marry Kay Kane,
Federal Practice and Procedure § 1762, at 206-07 (3d ed. 2005) (footnote
omitted). “[B]ecause it is such a fact-specific inquiry, we grant wide latitude to
the district court in making this determination,” and we defer to its determination
if the court “made an appropriate judgment call.” Trevizo v. Adams, 455 F.3d
1155, 1162 (10th Cir. 2006).
In this case, the district court had before it several facts that pointed to the
existence of a class so numerous that joinder would be impracticable. At the time
of the court’s certification decision, it was undisputed that porches were present
at nearly 250 Hollister stores in over 40 states. II Aplt. App. 451-58, 688.
Moreover, CCDC submitted declarations from five of its members who averred
that they shop at malls where Hollister stores are located. I Aplt. App. 111-28. It
is undeniable, and subject to judicial notice, that there are millions of Americans
with disabilities. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 370
(2001) (citing the congressional finding that “some 43,000,000 Americans have
one or more physical or mental disabilities”). It was therefore reasonable to infer
that a substantial number of disabled people live in the 40 states where Hollister
stores are located; that these people, like CCDC members and many Americans,
shop at malls, including the 250 malls with porched Hollisters; and that joining
all of these people in one suit would be impracticable. The district court did not
abuse its discretion in so finding.
19
The dissent suggests that we have weakened the evidentiary burden a class
proponent faces on the numerosity element. To be sure, this class was defined
only to include those who have suffered a past injury. See Abercrombie & Fitch
Co., 2012 WL 1378531, at *1. But the only relief sought by this class was
prospective in nature. We agree with the dissent that whether the class was
defined only to include those suffering a past injury does not bar certification. As
we see it, the timing of the class’s injuries has little effect on the issue of
impracticability: identifying, locating, and joining individuals who encounter
accessibility discrimination at shopping malls in 40 states would be impracticable,
regardless of whether the injury occurred in the past, is ongoing, or will occur in
the future. See Penderson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir.
2000) (“‘[J]oinder of unknown individuals is certainly impracticable,’” and “the
fact that the class includes unknown, unnamed future members also weighs in
favor of certification.”) (first quoting Jack v. Am. Linen Supply Co., 498 F.2d
122, 124 (5th Cir. 1974)). Overturing the district court’s class certification
determinations would be substituting our discretion for that of the district
court—something we are not empowered to do.
C. Commonality, Typicality, and Adequacy
Abercrombie argues that the Plaintiffs failed to meet Rule 23(a)’s
remaining requirements—commonality, typicality, and adequacy. Aplt. Br. 51-
52. Because these requirements “tend to merge,” Wal-Mart, 131 S. Ct. at 2551
20
n.5, and because Abercrombie does not address them separately, we address them
together.
First, Abercrombie argues that tester plaintiffs cannot assert claims
common to or typical of a class of bona fide patrons. See Aplt. Br. 51-52. This
argument lacks merit. As mentioned, a plaintiff’s status as tester is irrelevant in
determining whether she has suffered an injury in fact under Title III of the ADA.
To maintain a class action, a “class representative must be part of the class and
possess the same interest and suffer the same injury as the class members.” Wal-
Mart, 131 S. Ct. at 2550 (internal quotation marks omitted). The interest asserted
here is the same—the right to be free from disability discrimination in a place of
public accommodation—as is the alleged injury—denial of that right by porches
at Hollister stores.
Elsewhere, Abercrombie again raises the specter of standing and argues
that, because Ms. Farrar does not intend to visit every Hollister store with a
porch, she lacks standing to obtain a nationwide injunction, and her status as class
representative does not cure her lack of standing. Aplt. Br. 25. This argument
conflates standing and the ability to represent a class under Rule 23. What
Abercrombie challenges is whether Ms. Farrar presents “questions of law or fact
common to the class” and a claim “typical of” the class when she has only visited
one of the many stores against which the class seeks relief. See Fed. R. Civ. P.
23(a).
21
The commonality and typicality requirements of Rule 23(a) do not require
that every member of the class share a fact situation identical to that of the named
plaintiff. Devaughn, 594 F.3d at 1195; see also Realmonte v. Reeves, 169 F.3d
1280, 1285 (10th Cir. 1999). “[D]iffering fact situations of class members do not
defeat typicality under Rule 23(a)(3) so long as the claims of the class
representative and class members are based on the same legal or remedial theory.”
Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). The class’s “common
contention ‘must be of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke.’” XTO
Energy, 725 F.3d at 1218 (quoting Wal-Mart, 131 S. Ct. at 2551).
Given this authority, it is untenable to suggest that Ms. Farrar cannot
represent a class unless she shares a factually identical claim with each class
member—that she visit every Hollister store that the class claims violates the
ADA. Her claim against the Park Meadows Hollister is “common to” the claims
of the class because it raises a common question of law—whether Hollister stores’
porched entrances violate the ADA. 6 Her claim is “typical of” the class’s even
6
Before the district court, Abercrombie argued that class certification was
inappropriate because Hollister stores utilize varying designs in their porch
layout. II Aplt. App. 690, 692. On appeal, Abercrombie does not raise this issue,
and we are satisfied that the porches are sufficiently similar as to pose a common
question of law.
22
though she has not visited the remaining 230 stores. These claims are based on
the same legal and remedial theory—that Title III of the ADA mandates
injunctive relief against the porches.
These claims are capable of classwide resolution. In this regard, it is
telling that Abercrombie does not challenge the district court’s decision to certify
the class under Rule 23(b)(2), i.e., that Abercrombie “acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief . . . is
appropriate respecting the class as a whole.” II Aplt. App. 695 (quoting Fed. R.
Civ. P. 23(b)(2)) (emphasis added). The district court did not abuse its discretion
in finding the requirements of Rule 23(a) and (b)(2) met, and it appropriately
certified the class. We now turn to the merits of the class’s ADA claim.
III. ADA Violation
In 1990, Congress passed 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). Title III of the ADA “prohibits
discrimination against the disabled in the full and equal enjoyment of public
accommodations.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128
(2005). Clothing stores, like Hollister, are public accommodations. 42 U.S.C. §
12181(7)(E). Title III provides that
No individual shall be discriminated against on the basis
of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
23
accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or
operates a place of public accommodation.
Id. § 12182(a). After the ADA, all “new construction” of and alterations to
public accommodations must be “accessible.” Id. § 12183(a)(1), (2). That is,
discrimination under § 12182(a) includes “a failure to design and construct
facilities . . . that are readily accessible to and usable by individuals with
disabilities.” Id. § 12183(a)(1). There are statutory exemptions, e.g. id. §§
12182(b)(1)(A)(iii), 12183(a)(1), but none of these apply here.
Congress authorized the Attorney General to promulgate regulations
implementing the directives of Title III. Id. § 12186(b). Within a year of the
ADA’s enactment, the DOJ issued regulations based on ADA Accessibility
Guidelines published by the Architectural and Transportation Barriers
Compliance Board. 28 C.F.R. pt. 36. These guidelines now appear in Appendix
D to 28 C.F.R. part 36, “1991 Standards for Accessible Design,” or simply the
“1991 Standards,” id. § 36.104.
In 2010, the DOJ revised its ADA regulations. Without abrogating the
1991 Standards, the DOJ promulgated new regulations—the “2010
Standards”—that adopted newer ADA Accessibility Guidelines. See id. The
2010 Standards appear in Appendices B and D to 36 C.F.R. part 1191, and also
include the requirements of subpart D of 28 C.F.R. part 36. Id. We refer to the
1991 and 2010 Standards generally as the “Design Standards.”
24
The Design Standards apply in phases: Public accommodations that were
newly constructed or altered after January 26, 1993, but before September 15,
2010, need only comply with the 1991 Standards. 28 C.F.R. § 36.406(a) app.
Those newly constructed or altered between September 15, 2010, and March 15,
2012, have the choice of complying with either the 1991 or 2010 Standards. Id.
And those newly constructed or altered after March 15, 2012, must comply with
the 2010 Standards. Id. There are exceptions: Any public accommodation that is
required to comply with the 1991 Standards, yet does not so comply, must “be
made accessible in accordance with the 2010 Standards.” Id. § 36.406(a)(5)(ii).
Additionally, for public accommodations subject to the 1991 Standards,
If the 2010 Standards reduce the technical requirements
or the number of required accessible elements below the
number required by the 1991 Standards, the technical
requirements or the number of accessible elements in a
facility subject to this part may be reduced in
accordance with the requirements of the 2010 Standards.
Id. § 36.211(c).
This regulatory framework sets the stage: Because the Hollister stores at
issue were constructed after January 26, 1993, but before September 15, 2010,
Aplee. Br. 44, they must comply with the 1991 Standards. To the extent the
stores do not comply with the 1991 Standards, they must be brought into
compliance with the 2010 Standards. And to the extent the 2010 Standards
“reduce the technical requirements” of the 1991 Standards, Hollister stores are
25
deemed to comply with the Design Standards so long as they meet the lower
requirements of the 2010 Standards.
The district court held that the porch at Hollister stores violates Title III of
the ADA in three ways. First, the court held that, regardless of any compliance
with the Design Standards, Abercrombie violated the “broad statutory
requirements” of the ADA. Abercrombie & Fitch Co., 835 F. Supp. 2d at 1082.
Specifically, the raised porch violated the “overarching aims” of the ADA by
providing a “different or separate” accommodation that was not “in the most
integrated setting.” Id. at 1082-83 (quoting 42 U.S.C. § 12182(b)(1)(A)(iii), (B)).
Second, the court held that the porch was a “space” under the Design Standards,
and because Abercrombie made that space “available to individuals who do not
require wheelchairs for mobility, [it] must comply with regulations governing
circulation paths and accessible routes to accessible spaces.” Abercrombie &
Fitch Co., 957 F. Supp. 2d at 1281. Finally, as the porch was also an “entrance”
under the Design Standards, the court held that the porch violated the 1991
Standard stating that the entrance used by the “majority of people” must be
accessible. Id. at 1279; see also Abercrombie & Fitch Co., 835 F. Supp. 2d at
1081-82.
We review a district court’s interpretation of statutes and regulations de
novo. United States v. Davis, 339 F.3d 1223, 1226 (10th Cir. 2003). We review
the district court’s summary judgment decisions do novo, applying the same
26
standard as the district court. Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir.
2012). Because the district court held that the porches violate the ADA on three
independent grounds, we only need to find one supportable to affirm, but we must
find all wanting to reverse. We analyze each in turn.
A. Statutory ADA Violations
Abercrombie argues that the district court erred by holding that a facility
may violate the ADA even if it complies with the regulations regarding accessible
design. Aplt. Br. 32-34, 47. It argues that no court has ever found a Title III
violation based on a public accommodation’s design in the absence of a violation
of the 1991 or 2010 Standards. Id. at 33. The Plaintiffs counter that whether the
porch violates the broad statutory guarantees of the ADA does not depend on the
porch’s design but rather Abercrombie’s use of that design. Aplee. Br. 53, 57-59.
The United States, as amicus, sums up this “use” argument:
The problem is not that wheelchair users cannot enter
the store and access defendants’ merchandise. Rather, it
is that defendants exclude them from a part of the store
that defendants themselves have made a part of the
shopping experience. Having chosen to imbue the porch
with such significance, the defendants cannot, as here,
exclude individuals with disabilities from it and consign
them to a wholly different experience.
U.S. Br. 14. Because Abercrombie “uses” its porches as the central feature of the
“Hollister experience,” this argument goes, it denies disabled customers the full
and equal enjoyment of that experience in violation of 42 U.S.C. § 12182(a). See
27
Aplee. Br. 58.
There is a significant flaw in the Plaintiffs’ argument. Apart from its
existence (a byproduct of its design and construction) Abercrombie does not
“use” the porch at all. It is the porch’s design (as a two-stepped, elevated
structure) that denies disabled persons access to the store through the center
entrance; the Plaintiffs do not point to any distinct policy or practice of
Abercrombie’s that can be called a discriminatory “use” of that structure. See
Aplee. Br. 5-6 (“Because the Raised Porch Entrance is inaccessible to shoppers
who use wheelchairs, those shoppers must use doors at the mall level that are
located to the side . . . .”); id. at 47 (The porches “were constructed in violation”
of the ADA.); id. at 50 (The porches violated the ADA “when built.”). Even the
United States cannot keep this “use” argument straight: It first asserts that the
“complaint is not the existence of an inaccessible entranceway but its
idiosyncratic use as an integral part of the shopping experience.” U.S. Br. 12. It
then does an about-face and states that the “claim here is that the defendants’
unnecessarily discriminatory design—which serves no functional purpose—makes
wheelchair users feel unwelcome and excluded.” Id. at 17-18 (emphasis added).
The fact that the Plaintiffs’ challenge the porch as it was built, calling it a
discriminatory design, leads us to conclude that we are dealing with the design of
the porch and the exclusive effect of that design. The sources the Plaintiffs cite
bear out that the Design Standards are the appropriate measure of ADA liability
28
in this case.
In Antoninetti v. Chipotle Mexican Grill, Inc., the Ninth Circuit held that
service counters at Chipotle restaurants violated the ADA. 643 F.3d 1165, 1174
(9th Cir. 2010). The case turned on the Design Standards, which require
“equivalent facilitation” if counters do not meet certain height requirements. Id.
at 1173 (quoting 1991 Standard 7.2(2)(iii)). The court held that Chipotle’s
“policy” of showing disabled patrons samples of food and preparing food in
seating areas was not “equivalent facilitation” because it denied disabled
customers the full “Chipotle experience.” Id. at 1174. Chipotle’s “service or
policy” violated the ADA, not because of a statutory guarantee of equal
experiences, but because “it did not comply with the Guidelines.” Id.
In Fortyune v. Am. Multi-Cinema, Inc., the Ninth Circuit considered a
movie theater’s “policy concerning the use of wheelchair companion seats.” 364
F.3d 1075, 1078 (9th Cir. 2004). The court noted that the Design Standards were
irrelevant because, unlike “cases that involve the design of a public
accommodation under the ADA,” the case against the theater “concern[ed] a
public accommodation’s policy regarding the use of that design (e.g., the use and
availability of a companion seat).” Id. at 1085. The court held that the plaintiff
established an ADA claim because the theater “employed a discriminatory policy
or practice.” Id. (citing 42 U.S.C. § 12182(a), (b)(2)(A)(ii)).
The Design Standards are also instructive. The purpose of the standards is
29
“to effectuate title III of the Americans with Disabilities Act.” 28 C.F.R. pt. 36,
app. C (guidance to 28 C.F.R. § 36.101). A public accommodation that “complies
with these guidelines” is deemed “accessible.” 1991 Standard 3.5. The
commentary provides that
A private entity that renders an “accessible”
building inaccessible in its operation, through policies or
practices, may be in violation of [42 U.S.C. § 12182].
For example, a private entity can render an entrance to a
facility inaccessible by keeping an accessible entrance
open only during certain hours (whereas the facility is
available to others for a greater length of time). A
facility could similarly be rendered inaccessible if a
person with disabilities is significantly limited in her or
his choice of a range of accommodations.
28 C.F.R. pt. 36, app. C, at 914 (guidance to 28 C.F.R. § 36.401) (emphasis
added).
Unlike the case in Fortyune, we are not dealing with a public
accommodation’s use of a design (e.g., a distinct policy or practice concerning to
whom an accommodation is available, when an accommodation is available, or
what choice of accommodations is available), but rather the design itself (i.e., the
form and shape of a structure that render it inaccessible). See U.S. Br. 17 (“[T]he
claim here is that the defendant[s] [adopted an] unnecessarily discriminatory
design.”). And Antoninetti counsels that, even when dealing with a “service or
policy,” Design Standards specifically addressing an issue are a better benchmark
than more general prohibitions found in the statute itself. See Antoninetti, 643
30
F.3d at 1174; see also United States v. Hoyts Cinemas Corp., 380 F.3d 558, 566
(1st Cir. 2004) (“[I]t makes more sense to focus upon a somewhat uncertain
regulation directed to the very problem at hand rather than an even vaguer set of
statutory provisions framed in more general terms.”).
By their own terms, the Design Standards provide the necessary guidance
required to build an “accessible” structure. The ADA itself makes this clear: §
12183(a)(1) requires new construction to be “readily accessible” except where it
is “structurally impracticable to meet the requirements of such subsection in
accordance with standards set forth or incorporated by reference in regulations
issued under this subchapter.” 42 U.S.C. § 12183(a)(1) (emphasis added). In
turn, the regulations assure that a facility is “accessible” if it “complies with these
guidelines.” 1991 Standard 3.5. Of course, if an entity constructs an “accessible”
facility, but takes affirmative steps to bar disabled persons from enjoying it, then
it has violated the ADA’s prohibition of providing a separate benefit “on the basis
of a disability.” See 42 U.S.C. § 12182(b)(1)(A)(iii). But that is not the case
here. Abercrombie built porches that, as the Plaintiffs claim, were “inaccessible”
from their inception. See Aplee. Br. 50. Such a claim must be evaluated through
the lens of the Design Standards; were it otherwise, an entity’s decision to follow
the standards and build an “accessible” facility would have little meaning. See
United States v. Nat’l Amusements, Inc., 180 F. Supp. 2d 251, 258 (D. Mass
2001) (To hold that compliance with the standards is not sufficient to satisfy
31
sections 12182 and 12183 of the ADA “would render compliance with these
regulations meaningless, because a fully compliant structure would always be
subject to a claim under ADA § [12182].”). The porch’s design—and its
secondary exclusive effect—must be evaluated solely under the Design Standards.
The district court erred by imposing liability on Abercrombie’s design decision
based on the “overarching aims” of the ADA.
The dissent agrees with our major premise, that “we must look to the
Design Standards to determine whether a defendant has discriminated in the
design, construction, or alteration of a facility,” but disagrees with our conclusion
that Abercrombie did not engage in a secondary discriminatory “use” of that
design. The dissent posits that Abercrombie “uses” the porch as a “branding tool,
display area, and customer lounge.” However, none of these “uses” are what
deny disabled people access to the porch—it is the porch itself that effects that
alleged injury. In fact, the dissent points out that Abercrombie has an alternative
design for the porch, one that incorporates the “same surf-shack motif” but at
“ground level.” By all indications, Abercrombie “uses” this design in the same
manner as its stepped porches—as a “branding tool, display area, and customer
lounge.” This “use” is not discriminatory in one instance and non-discriminatory
in the other—it is the design that differs between the two porch layouts, and that
must be the sole source of accessibility discrimination. The Design Standards
specifically address that issue.
32
B. Design Standard Requirements for “Spaces”
We now turn to the Design Standards. Abercrombie argues that the district
court erred by holding that the porch is a “space” required to be accessible under
the Design Standards. Aplt. Br. 44. After holding the porch to be a “space,” the
district court noted that “if nondisabled customers can get to a space, customers
who use wheelchairs have to be able to get to that space as well.” Abercrombie &
Fitch Co., 957 F. Supp. 2d at 1281.
The 1991 and 2010 Standards contain identical definitions of “entrance”
and “space”:
Entrance. Any access point to a building or portion of
a building or facility used for the purpose of entering.
An entrance includes the approach walk, the vertical
access leading to the entrance platform, the entrance
platform itself, vestibules if provided, the entry door(s)
or gate(s), and the hardware of the entry door(s) or
gate(s).
...
Space. A definable area, e.g., room, toilet room, hall,
assembly area, entrance, storage room, alcove,
courtyard, or lobby.
1991 Standard 3.5; see also 2010 Standard 106.5. The 1991 Standards define
“Accessible Space” as a “[s]pace that complies with these guidelines.” 1991
Standard 3.5; see also 2010 Standard 106.5 (defining “Accessible” as “[a] site,
building, facility or portion thereof that complies with this part.”).
As we see it, whether the porch is a “space” is not the issue—given the
33
definition of “space” as any “definable area,” it is hard to envision what is not a
“space.” Rather, the issue is whether the regulations in fact require that all
“spaces” be accessible, as the Plaintiffs contend. Aplee. Br. 45-46; U.S. Br. 11.
Because the 1991 Standards distinguish between a “space” and an “accessible
space,” it seems that the regulations clearly anticipated that not all “spaces”
would be accessible.
The Plaintiffs take the use of “space” in the Design Standards to extremes.
Their starting point is 1991 Standard 4.1.1. Aplee. Br. 46. This standard
provides that “[a]ll areas of newly designed or newly constructed buildings and
facilities required to be accessible by 4.1.2 and 4.1.3 . . . shall comply with these
guidelines.” 1991 Standard 4.1.1(1) (emphasis added). Contrary to the Plaintiffs’
suggestion, Aplee. Br. 45-46, this standard does not say that “all areas” must be
accessible, but rather that areas must be accessible when other standards require
accessibility. So we must keep looking. Turning to the first standard listed, 4.1.2
provides that an accessible route “shall connect accessible buildings, accessible
facilities, accessible elements, and accessible spaces that are on the same site.”
1991 Standard 4.1.2(2) (emphasis added). Similarly, 4.1.3 requires an accessible
route connecting all “accessible building or facility entrances with all accessible
spaces and elements within a building or facility.” 1991 Standards 4.1.3(1)
(emphasis added). By their plain text, these standards do not require “spaces” to
be accessible; rather, they assume that the mentioned space is already an
34
“accessible space,” i.e., that another standard requires it to “compl[y] with these
guidelines.” 1991 Standard 3.5.
Throughout the Design Standards, the term “space” is seldom used apart
from the modifier “accessible.” See, e.g., 1991 Standard 4.3.2(2) (“At least one
accessible route shall connect accessible . . . spaces.”); id. 4.3.10 (“Accessible
routes serving any accessible spaces”); id. 4.5.1 (“Ground and floor surfaces
along accessible routes and in accessible rooms and spaces”); id. 4.14.1
(“Entrances required to be accessible by 4.1 shall . . . be connected by an
accessible route to all accessible spaces.”). The term “accessible space” is a
placeholder, used throughout the standards to denote compliance with other
standards regulating areas that fall under the expansive definition of “space” (e.g.,
those for toilet rooms (4.22), assembly areas (4.33), entrances (4.14), and storage
rooms (4.25)).
Simply put, the Plaintiffs cannot point to any standard stating that every
“space” shall be an “accessible space.” The standards clearly indicate when
something that qualifies as a “space” must be accessible, e.g., by stating that
certain “entrances . . . must be accessible.” 1991 Standard 4.1.3(8)(a)(i). But
there is no similar requirement for “spaces” generally. To defer to the DOJ’s
position—the “Standards guarantee people with disabilities physical access to
spaces,” U.S. Br. 14—“would be to permit the agency, under the guise of
interpreting a regulation, to create de facto a new regulation.” Christensen v.
35
Harris Cnty., 529 U.S. 576, 588 (2000). The standards are not ambiguous: the
expansive definition of “space” is not an independent accessibility requirement.
It was error for the district court to require that the porch be accessible because it
is simply a “space.” 7
The dissent reaches the opposite conclusion. Our principal disagreement
concerns whether the standards require “all areas” or “spaces” to be accessible
outright unless expressly exempted. As discussed, this expansive reading is
untenable given the standards’ repeated reference to “accessible spaces” and the
specific standards regulating those areas that fall under the definition of “space.”
See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (“[I]t is a
commonplace of statutory construction that the specific governs the general.”).
Even so, the idea that the porch is a “lobby” or “customer lounge” is a weak one,
as the porch is not a destination in itself but a means of passage into the store.
7
It was also error for the district court to impose accessibility
requirements on the porch as a “space” because it contained “more than one use.”
See Abercrombie & Fitch Co., 957 F. Supp. 2d at 1281. The district court
apparently thought the porch was used as an “accessible space” because
Abercrombie made it “available to individuals who do not require wheelchairs for
mobility.” Id. A space is not an “accessible space” because it can be accessed by
nondisabled persons; rather, it is an “accessible space” only if it “complies with
[the] guidelines” for disabled access. 1991 Standard 3.5. The “use” envisioned
by the standards refers to those “use[s] covered by a special application section,”
e.g., “restaurants and cafeterias, medical care facilities, business and mercantile,
libraries, accessible transient lodging, and transportation facilities.” 1991
Standard 4.1.1(2); see also 2010 Standard 201.2 (requiring multi-use spaces to
comply with “the applicable requirements” for each use). The district court made
no finding that the porch contained any of these special uses.
36
The standards provide no safety if an entity complies with the guidelines plainly
regulating a contemplated feature (e.g., an “access point to a building or portion
of a building or facility used for the purpose of entering,” i.e., an “entrance,”
1991 Standard 3.5) only later to be told that the feature is also a “space” that must
be accessible unless fitting into a limited exemption. That is not the thrust of the
highly detailed ADA regulations.
C. Entrance Standards: “Majority of People” Requirement
Abercrombie argues that the district court erred by holding that Hollister’s
porches violated Design Standards regulating entrances. Specifically, it argues
the court erred by finding noncompliance with 1991 Standard 4.1.3(8). Aplt. Br.
39. That standard provides that
(a)(i) At least 50% of all public entrances . . .
must be accessible. At least one must be a ground floor
entrance. Public entrances are any entrances that are not
loading or service entrances.
(ii) Accessible entrances must be provided in a
number at least equivalent to the number of exists
required by the applicable building/fire codes. (This
paragraph does not require an increase in the total
number of entrances planned for a facility.)
(iii) An accessible entrance must be provided to
each tenancy in a facility (for example, individual stores
in a strip shopping center).
One entrance may be considered as meeting more
than one of the requirements in (a). Where feasible,
accessible entrances shall be the entrances used by the
majority of people visiting or working in the building.
37
1991 Standard 4.1.3(8).
The district court held that, despite the fact that at least 50% of Hollister’s
public entrances are accessible, the store violated 1991 Standard 4.1.3(8)(a)
because it was “obvious” that a majority of people enter through the inaccessible
porch. Abercrombie & Fitch Co., 835 F. Supp. 2d at 1082; see also Abercrombie
& Fitch Co., 957 F. Supp. 2d at 1279. Abercrombie raises two arguments: (1)
that the 2010 Standards eliminated the “majority of people” requirement, thus
releasing Abercrombie from this burden; and (2) even if this requirement is
effective, the Plaintiffs offered no evidence of how many people enter Hollister
stores through the center porch compared to the two side entrances. Id. at 39.
Abercrombie is correct on both points.
As mentioned, the 1991 Standard required, among several other things, that
“[a]t least 50% of all public entrances . . . must be accessible.” 1991 Standard
4.1.3(8)(a)(i). In 2010, the DOJ simplified its entrance standards, providing that
“at least 60 percent of all public entrances shall [be accessible].” 2010 Standard
206.4.1. The 2010 Standard omits any reference to the 1991 “majority of people”
language. In other words, while the 1991 Standard regulated how many and
which entrances must be accessible (if feasible), the 2010 Standard simply
regulates how many entrances must be accessible. The Plaintiffs’ only argument
against this reading is that the DOJ intended the 2010 revision to have the “same
38
result” as the 1991 Standard. Aplee. Br. 51 (quoting 28 C.F.R. pt. 36, app B, at
835). However, the “same result” envisioned was the overall level of
accessibility, not any continued requirement about which entrances must be
accessible. See 28 C.F.R. pt. 36, app B, at 835. We thus agree with
Abercrombie that, by abandoning the dual requirements of the 1991 Standard in
favor of a straightforward percentage-of-entrances requirement, the 2010 Standard
“reduce[d] the technical requirements” of the 1991 Standard. See 28 C.F.R. §
36.211(c). Therefore, Abercrombie need only comply with the simpler method of
compliance—that a certain percentage of its public entrances be accessible. 8 See
2010 Standard 206.4.1.
To be sure, the new method is simpler. Although the Plaintiffs sought
summary judgment that the porch was used by a majority of people visiting or
working in the store (and the district court viewed it as apparent), no evidence
supports that proposition. We need not decide whether the porch designer’s
intentions or actual empirical evidence concerning porch use by visitors or
8
We need not decide whether the percentage is 50% or 60%, as
Abercrombie meets either. We will not consider the Plaintiffs’ argument to the
contrary, Aplee. Br. 51 n.13, as it is raised for the first time on appeal, see Valdez
v. Squier, 676 F.3d 935, 950 (10th Cir. 2012). In any event, their argument—that
the porch actually constitutes two entrance “doors”—fails to take into account
that the standards regulate the number of “entrances,” see 1991 Standard
4.1.3(8)(a)(i); 2010 Standard 206.4.1, and that one “entrance” may be made up of
more than one “entry door(s),” see 1991 Standard 3.5.
39
employees would have been necessary to create a triable issue. 9 Given three side-
by-side entrances, logic alone will not suffice. The Plaintiffs assert that the porch
was intended to be used by the majority of people. Aplee. Br. 50. Abercrombie
maintains that it is just as likely that the majority of people prefer a more direct
route (all entrances have the same terminus) rather than ascending and descending
the porch. See III Aplt. App. 728. It is an open question, and one which we do
not resolve. 10
Accordingly, we hold that each of the district court’s grounds for awarding
the Plaintiffs summary judgment are unsupportable. It was error to impose
liability on the design of Hollister stores based on “overarching aims” of the
ADA. It was also error to impose liability based on the holding that the porch as
9
The regulatory guidance does not mention the “majority of people”
provision, see 28 C.F.R. pt. 36, app. C, at 929 (guidance to 4.1.3(8)), nor does the
analysis and commentary to the 2010 standards, see 28 C.F.R. pt. 36 app. B, at
822-23 (analysis of “Public Entrances”). No published case has ever imposed
ADA liability on a public accommodation for violating the “majority of people”
component of 4.1.3(8)(a).
10
The dissent offers that the Plaintiffs presented “deposition testimony,
declarations, photographic evidence, and architectural drawings that all support a
reasonable inference that a majority of people use the porch entrance.”
Responding to a summary judgment motion, Plaintiffs had the burden of
providing significantly probative evidence establishing an essential element of
their case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Plaintiffs’
summary judgment evidence demonstrates nothing more than the porch’s
existence positioned between two nearby doors. We simply do not know about
utilization of the various entrances. Regardless, this question is now irrelevant,
as we hold that the 2010 Standards effectively eliminated the additional majority-
of-people requirement in the 1991 Standards.
40
a “space” must be accessible. Finally, it was error to hold that the porch must be
accessible because it is the entrance used by a “majority of people.”
We AFFIRM the district court’s denial of Abercrombie’s summary
judgment motion. We AFFIRM the district court’s certification of the class.
However, we REVERSE the district court’s partial grant, and later full grant of
summary judgment to the Plaintiffs, and we VACATE the court’s permanent
injunction. We REMAND this case for proceedings consistent with this opinion.
All pending motions are DENIED.
41
No. 13-1377, Colo. Cross-Disability Coalition v. Abercrombie & Fitch
McHUGH, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority’s sound analysis and ultimate conclusion that Ms.
Farrar has standing under Article III. However, I respectfully dissent from the
majority’s conclusion regarding numerosity. As a result, I would hold that the
district court abused its discretion in certifying the class. I also respectfully
dissent from the court’s conclusion that Abercrombie did not violate Title III of
the ADA. I would therefore affirm the injunction as it relates to the Park
Meadows store but reverse the class certification order and vacate the injunction
as it relates to other Hollister stores.
I. Class Certification
I agree with most of the majority’s thoughtful analysis on class
certification, including the relationship of standing to class representation. But I
part ways on the issue of numerosity. I would hold that at this point in the
litigation, the Plaintiffs were required to present more evidence to meet their
burden of establishing the numerosity requirement of Rule 23(a) of the Federal
Rules of Civil Procedure, with respect to the class as defined.
In my view, the Plaintiffs have failed to establish facts from which a
reasonable inference can be drawn as to the number of members of the defined
class. Rule 23(a)(1) requires that a class be “so numerous that joinder of all
members is impracticable.” While impracticability is not “a question of numbers,”
Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977),
that is not to say that numbers are irrelevant. Indeed, the text of Rule 23(a)(1)
indicates that the impracticability of joinder must be due to the class being
numerous. See Fed. R. Civ. P. 23(a)(1). As the majority notes, impracticability
turns on “[a] variety of factors,” such as “the nature of the action, the size of the
individual claims, and the location of the members of the class or the property
that is the subject matter of the dispute.” See 7A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 1762, at 206–07 (3d
ed. 2005) (footnote omitted). But “[t]he most obvious consideration is the size of
the class itself.” Id. at 177. Thus, a proper numerosity analysis should consider
how the size of the class affects the practicability of joinder given “the particular
circumstances of the case.” See Rex v. Owens ex rel. State of Okl., 585 F.2d 432,
436 (10th Cir. 1978).
In applying this rule, the Tenth Circuit has rejected any “arbitrary limit,”
Horn, 555 F.2d at 275, “set formula,” Rex, 585 F.2d at 436, or presumptive
numerical threshold. Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006).
And proof of “absolute numbers” is unnecessary, at least in the context of
injunctive or declaratory relief. Horn, 555 F.2d at 276; see also 7A Wright &
Miller, supra, § 1762, at 177–84.
But this caution against a formulaic, rigid approach to impracticability does
not excuse the party seeking certification from providing evidence as to the size
2
of the particular class that has been defined. Nor does it excuse the district court
from considering the impact of the size of the class on other factors in the case as
it undertakes its “‘rigorous analysis’” of the practicability of joinder. See
Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 2551 (2011). The
requirements of Rule 23(a) are “stringent guidelines,” Rex, 585 F.2d at 435, and
“actual, not presumed, conformance with Rule 23(a) remains . . . indispensable.”
General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). The composition of
a class need not be readily ascertainable in a suit for injunctive or declaratory
relief. Shook v. El Paso Cnty., 386 F.3d 963, 972 (10th Cir. 2004); Horn, 555
F.2d at 276 (“[W]here . . . the class is composed of a substantial number, no great
need is present to identify each and every one.”). But even for injunctive and
declaratory relief, the party seeking certification must produce “some evidence of
established, ascertainable numbers constituting the class” “or otherwise establish
by reasonable estimate the number of class members who may be involved” “in
order to satisfy even the most liberal interpretation of the numerosity
requirement.” Rex, 585 F.2d at 436 (emphasis added); William B. Rubenstein,
Newberg on Class Actions § 3:13 (5th ed.) (“[A] good-faith estimate of the class
size is sufficient when the precise number of class members is not readily
ascertainable.”).
In the present case, the class is: people with disabilities who use
wheelchairs and who have faced discrimination because of the presence of a
3
raised porch at any Hollister store in the two years prior to the filing of the
complaint in this case. See Colo. Cross-Disability Coal. v. Abercrombie & Fitch
Co., No. 09-CV-02757-WYD-KMT, 2012 WL 1378531, at *1 (D. Colo. Apr. 20,
2012) (defining the class at hand). Although the remedy requested in this case is
injunctive relief, it is brought on behalf of a relatively narrow group of class
members. Only those persons using wheelchairs who suffered past discrimination
as a result of the raised porches, and only the subset of that group who were
deterred by the raised porches within the two years immediately preceding the
filing of the complaint in this action. In my view, the Plaintiffs have not offered
any evidence from which even a reasonable estimate of the number of members of
this class can be made. 1
Furthermore, requiring some evidence of class size is consistent with the
Supreme Court’s characterization of the burden Rule 23(a) places on the
proponent of a class:
Rule 23 does not set forth a mere pleading standard. A party seeking
class certification must affirmatively demonstrate his compliance
with the Rule—that is, he must be prepared to prove that there are in
fact sufficiently numerous parties, common questions of law or fact,
1
Although meeting the numerosity requirement as I interpret it requires
some effort on the part of a proponent of a class, CCDC has demonstrated in other
litigation that as a general matter, it is capable of meeting this burden. See Colo.
Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 358 (D. Colo. 1999)
(finding a potential class that “may include more than 2,000 people” based on
census data and survey results provided by CCDC demonstrating that 14.5% of
the 200 people who responded fit the class definition).
4
etc.
Wal-Mart Stores, 131 S. Ct. at 2551 (emphasis in original); see also Trevizo, 455
F.3d at 1162 (referring to the burden as “a strict burden of proof” (internal
quotation marks omitted)). Thus, “mere speculation as to the number of parties
involved is not sufficient to satisfy Rule 23(a)(1).” 7A Wright & Miller, supra,
§ 1762, at 181–84; accord Rubenstein, supra, § 3:13. Rather than proceeding
based on such speculation, we have required in other contexts that when facts are
established by inferences drawn by the finder of fact, such inferences must be
based on evidence. Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511,
521–22 (10th Cir. 1987). Therefore, “a plaintiff must show enough evidence of
the class’s size to enable the court to make commonsense assumptions regarding
the number of putative class members.” Rubenstein, supra, § 3:13. 2
2
In Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270 (10th Cir.
1977), we acknowledged that other courts have stated that “where the relief
sought is injunctive and declaratory, even speculative and conclusory
representations as to the size of the class are sufficient.” Id. at 275–76 (citing Doe
v. Flowers, 364 F. Supp. 953, 954 (N.D.W. Va. 1973) (three-judge panel) (per
curiam), aff’d mem., 416 U.S. 922 (1974)). Although the Fourth Circuit has relied
on this statement, it has not excused parties from first establishing the existence
of the class. See Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 645 (4th
Cir. 1975). To the extent Horn approved of the statement that speculative and
conclusory representations are sufficient, it was not necessary to the holding in
Horn because that case involved a class of specified size. See 555 F.2d at 275–76
(concluding that the district court abused its discretion because it became
“stymied by the concept of very large numbers” and ignored other factors relevant
to impracticability). Furthermore, relying on speculative and conclusory
representations is inconsistent with later Supreme Court and Tenth Circuit
precedent. See Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541,
5
Here, I would conclude that the Plaintiffs did not provide the district court
with enough to make commonsense assumptions about the size of the defined
class. The majority finds numerosity to be established because “porches were
present at nearly 250 Hollister stores in over 40 states,” “CCDC submitted
declarations from five of its members who averred that they shop at malls where
Hollister stores are located,” and “there are millions of Americans with
disabilities.” Maj. Op. 19. The first fact is relevant to “the location of the . . .
subject matter of the dispute.” 7A Wright & Miller, supra, § 1762, at 206–07.
This fact certainly pertains to the issue of impracticability, but by itself it does
nothing to establish the size or even the existence of a class. The second
fact—declarations submitted by five CCDC members—is problematic in
establishing the size of a class because each of these five members was a named
party to the present litigation, presented to the district court as proposed class
representatives. I Aplt. App. 148, 158. “[I]f there are no members of the class
other than the named representatives, then Rule 23(a)(1) obviously has not been
satisfied.” 7A Wright & Miller, supra, § 1762, at 171–72. Although four of the
five CCDC members withdrew from the litigation, the declarations do little by
themselves to provide a reasonable estimate of the size of the class. 3 I would
2551 (2011); DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir.
2010); Rex v. Owens ex rel. State of Okl., 585 F.2d 432, 436 (10th Cir. 1978).
3
The Plaintiffs did not rely on the five declarations to establish numerosity
below, nor have they done so on appeal.
6
reach the same conclusion even if the record evidence is supplemented on appeal
by public census data, of which the Plaintiffs ask us to take judicial notice.
In my view, the relevant numerosity inquiry here is whether reasonable
inferences can be drawn from the five declarations in combination with the census
data to provide a reasonable estimate of the size of the class. Relying on the
census data, the Plaintiffs note that in 2010, “approximately 1.5 percent of the
population or 3.6 million people nationwide used wheelchairs for mobility,” and
that the percentage of people who use wheelchairs in each state is similar
according to the most recent data. Aplee. Br. 39–40. Even if I were to delve
deeper into the census data than the Plaintiffs have done in their briefing to this
court and estimate the number of people who use wheelchairs in states that have
Hollister stores with porches, that number does not provide a reasonable estimate
of the number of persons who use wheelchairs and who have faced discrimination
because of the presence of a raised porch at any Hollister store during the relevant
two-year period. See Colo. Cross-Disability Coal., No. 09-CV-02757-WYD-KMT,
2012 WL 1378531, at *1. 4 Simply put, nothing about the raw numbers provides a
basis for estimating how many people who use wheelchairs were actually
4
Although no party has raised the issue, I am also troubled by the fact that
the class seeking injunctive relief is defined solely in terms of past injury. Such
disjunction between the relief sought and the injuries alleged by the class does not
present a problem of standing or class certification. Devaughn, 594 F.3d at
1197–98. Rather, it presents a problem of whether the class is entitled to
injunctive relief. Lewis v. Casey, 518 U.S. 343, 359–60 & n.7 (1996).
7
discriminated against at a Hollister store during the identified two years due to its
raised porches. Furthermore, that number cannot be extrapolated because
Plaintiffs have provided no evidence that the five CCDC members are indicative
of people who use wheelchairs in Colorado and the other states that have Hollister
stores with porches. Indeed, in its memorandum in opposition to the motion to
certify, Abercrombie pointed to deposition testimony suggesting that at least two
of the five CCDC members were sent to Hollister stores to test for compliance. II
Aplt. App. 492. Where these CCDC members were recruited to visit Hollister
stores, they provide little help in extrapolating the possible number of people who
use wheelchairs and who have shopped at Hollister stores in other states. 5
Admittedly, we grant the district court “wide latitude” in making the
numerosity determination. Trevizo, 455 F.3d at 1162. But we do so “because it is
. . . a fact-specific inquiry,” id., and therefore implicates the district court’s
discretion to make rational inferences from that evidence. Vallario v. Vandehey,
554 F.3d 1259, 1264 (10th Cir. 2009). But such inferences must be based on
evidence. See Sunward Corp., 811 F.2d at 521–22; cf. Rex, 585 F.2d at 436
(stating that party seeking certification must produce “some evidence”). Here, the
5
It is not their status as testers that is problematic in extrapolating the size
of the class based on these plaintiffs; rather, it is the fact that they may not have
fallen within the definition of the class without having been recruited by CCDC
for this litigation. This undermines the reasonableness of using such plaintiffs as
statistically representative of the number of people who fall within the class
definition in other states.
8
Plaintiffs did not provide any evidence of established, ascertainable numbers or
otherwise establish by reasonable estimate the number of persons using
wheelchairs who have been discriminated against by the presence of Hollister’s
raised porches within the relevant two-year period. See Rex, 585 F.2d at 436
(concluding that the district court did not abuse its discretion in refusing to certify
a class seeking injunctive and declaratory relief when the plaintiff presented no
evidence of the size of the class).
Instead, the Plaintiffs proved a class size of anywhere from five members
to 3.6 million members, which does not constitute a reasonable estimate. While
commonsense assumptions and reasonable inferences can help narrow that range,
the Plaintiffs failed to provide any evidence from which a reasonable estimate of
the number of class members may be deduced. This does not meet the admittedly
low threshold required for certification of a class seeking injunctive relief. To
hold otherwise would eviscerate the numerosity requirement in Rule 23(a) and run
contrary to the Supreme Court’s admonition that the proponent of a class must
“affirmatively demonstrate his compliance with the Rule.” See Wal-Mart Stores,
131 S. Ct. at 2551. As a result, I would hold the district court’s ruling amounted
to a “[m]aterial misapplication of the Rule 23 factors.” See Wallace B. Roderick
Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1217 (10th Cir.
2013) (concluding that the district court abused its discretion by, among other
things, relaxing the burden of proof under Rule 23(a)). I would therefore reverse
9
the certification order.
II. ADA Violation
Because I would reverse the certification order, I address the merits of the
case only as it relates to the Park Meadows store. Unlike the majority, I would
hold that Abercrombie violated Title III of the ADA in two respects. First, I
would conclude that the porch is a space that is required to be accessible and thus
violates the ADA by not being connected to an accessible route. Second, I would
conclude that Abercrombie’s use of the porch violates the ADA by denying
customers who use wheelchairs the opportunity to participate and instead
providing them a separate, unequal, non-integrated benefit.
“Congress enacted the ADA in 1990 to remedy widespread discrimination
against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674
(2001). “In studying the need for such legislation, Congress found that
‘historically, society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of discrimination
against individuals with disabilities continue to be a serious and pervasive social
problem.’” Id. at 674–75 (quoting 42 U.S.C. § 12101(a)(2)). Congress also found
that “individuals with disabilities continually encounter various forms of
discrimination, including . . . the discriminatory effects of architectural . . .
barriers.” 42 U.S.C. § 12101(a)(5). “After thoroughly investigating the problem,
Congress concluded that there was a compelling need for a clear and
10
comprehensive national mandate to eliminate discrimination against disabled
individuals, and to integrate them into the economic and social mainstream of
American life.” PGA Tour, 532 U.S. at 675 (internal quotation marks omitted).
“In the ADA, Congress provided that broad mandate.” Id. Twelve years after
Congress passed the ADA, Abercrombie opened a store in the Park Meadows
Mall designed with a distinctive area open to the public but accessible only to
ambulatory persons, thereby relegating patrons who use wheelchairs to non-
integrated, second-class areas. I believe the ADA and the regulations promulgated
under it prohibit this conduct.
A. Spaces, Entrances, & Routes
My disagreement with the majority is simple. As the majority reads the
guidelines, spaces in a newly constructed facility need not be accessible unless a
specific standard directly requires as much. As I read the guidelines, all spaces in
a newly constructed facility must be accessible unless specifically exempted. Both
the 1991 and 2010 Design Standards require all non-exempted spaces to be
connected by an accessible route. Accessible routes cannot have stairs. I would
conclude that the porch at issue here is a non-exempt space that is not on an
accessible route and that Abercrombie has therefore violated the ADA by
designing and constructing a non-compliant facility.
11
a. All spaces are required to comply with the regulations unless
otherwise exempted.
The 1991 Design Standards begin with the general requirement that all
non-exempt areas must comply with the guidelines:
All areas of newly designed or newly constructed buildings and
facilities required to be accessible by 4.1.2 and 4.1.3 and altered
portions of existing buildings and facilities required to be accessible
by 4.1.6 shall comply with these guidelines, 4.1 through 4.35, unless
otherwise provided in this section or as modified in a special
application section.
1991 Standard 4.1.1(1); accord 2010 Standards 201.1, 203.1. The phrase “required
to be accessible by 4.1.2 and 4.1.3” could be read as modifying either “All areas”
or “newly designed or newly constructed buildings and facilities.” If read to
modify “All areas,” as the majority does, the rule reads as follows:
All areas . . . required to be accessible by 4.1.2 and 4.1.3 and . . .
4.1.6 shall comply with these guidelines, 4.1 through 4.35, unless
otherwise provided in this section or as modified in a special
application section.
1991 Standard 4.1.1(1). As the majority notes, the Design Standards define
“accessible” as “[d]escrib[ing] a site, building, facility, or portion thereof that
complies with these guidelines.” Id. 3.5; accord 2010 Standard 106.5. The
majority correctly states that nothing in standards 4.1.2, 4.1.3, and presumably
4.1.6 expressly requires all spaces to comply with the guidelines. Unlike the
majority, I am convinced that overarching requirement is present in standard
12
4.1.1(1) itself.
When the phrase in section 4.1.1(1), “required to be accessible by 4.1.2 and
4.1.3,” is read to modify “newly designed or newly constructed buildings and
facilities,” the meaning becomes clear:
All areas of newly designed or newly constructed buildings and
facilities . . . shall comply with these guidelines, 4.1 through 4.35,
unless otherwise provided in this section or as modified in a special
application section.
Id. Under this reading, if a new building is subject to the requirements of 4.1.2 or
4.1.3, then all areas of that building must also comply with the guidelines, unless
otherwise provided. 6 The propriety of this reading—that all areas must comply
unless exempted—is reinforced by the explicit statement in standard 4.1.1 that
certain “non-occupiable spaces . . . frequented only by service personnel for
repair purposes” are not required to comply with the guidelines. 1991 Standard
4.1.1(5)(b)(ii). If spaces were never required to comply with the guidelines in the
first instance, there would be no reason to exempt certain types of spaces.
This reading is also reinforced by the clarification of this provision in the
2010 Design Standards and its elaboration on the list of exceptions. The 2010
6
When the Standards say the areas must comply with the guidelines, that
means the areas must be accessible. 1991 Standard 3.5 (Accessible means “a site,
building, facility, or portion thereof that complies with these guidelines.”).
Compare 4.1.3(19) (requiring assembly areas to comply with 4.33), with 4.33.1
(“Assembly and associated areas required to be accessible by 4.1 shall comply
with 4.33”).
13
standards remove the confusing language and state, “All areas of newly designed
and newly constructed buildings and facilities and altered portions of existing
buildings and facilities shall comply with these requirements.” 2010 Standard
201.1 (emphasis added). Thus, the 2010 Design Standards leave no doubt that all
areas of newly constructed buildings must comply. 7 The new standards further
state, “Sites, buildings, facilities, and elements are exempt from these
requirements to the extent specified by 203.” Id. 203.1 (emphasis added).
Although standard 203.1 does not list “spaces” generally as exempt, the
enumerated list of exceptions includes several areas specifically identified as
“spaces,” such as “limited access spaces” and “machinery spaces.” See, e.g., 2010
Standards 203.4, 203.5. Again, the exemption of certain types of spaces supports
a reading in which all spaces are otherwise subject to the guidelines.
I am convinced this interpretation is the correct reading of the 1991
standards. But at the very least, standard 4.1.1(1) is ambiguous. When a
regulation is ambiguous, we must defer to the agency’s interpretation of its own
regulations, even in an amicus brief. Auer v. Robbins, 519 U.S. 452, 462 (1997);
see also Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000). Ambiguity exists
7
The Department of Justice’s Analysis and Commentary on the 2010 ADA
Standards for Accessible Design discusses “selected substantive changes”
between the 1991 Design Standards and the 2010 Design Standards. 28 C.F.R. Pt.
36, App. B at 829. The commentary does not address “[e]ditorial changes.” Id.
With respect to the amendment reflected in standard 201.1, the commentary is
silent.
14
when “[n]o statute or regulation squarely addresses” the issue. See Talk Am., Inc.
v. Michigan Bell Tel. Co., ___ U.S. ___, 131 S. Ct. 2254, 2260–61 (2011).
Therefore, I would defer to the Department of Justice’s interpretation of the
Design Standards: all non-exempt areas must comply with the guidelines.
If all “areas” must comply, a “space” must comply. This is because the
Design Standards define “space” as a “definable area.” 1991 Standard 3.5
(emphasis added). Thus, when the Design Standards state that all “areas” must
comply with the guidelines unless exempted, I would conclude this requires all
non-exempt “spaces” to comply. I do not share the majority’s concern about “the
expansive definition of ‘space’” in the Design Standards. Maj. Op. 34. Although
“definable area” could be read expansively, the enumerated list of spaces places a
limit on that definition. “[T]he commonsense canon of noscitur a sociis . . .
counsels that a word is given more precise content by the neighboring words with
which it is associated.” Freeman v. Quicken Loans, Inc., ___ U.S. ___, 132 S. Ct.
2034, 2042 (2012). Thus, a “space” must not only be a definable area, but it must
be a definable area in the same manner as a “room, toilet room, hall, assembly
area, entrance, storage room, alcove, courtyard, or lobby.” See 1991 Standard 3.5;
accord 2010 Standard 106.5.
The raised porch at issue is a “space.” Indeed, the majority concludes that
the porch is an entrance, separate from the two entrances flanking the porch. See
Maj. Op. 37-38; see also 1991 Standard 3.5 (defining entrance); accord 2010
15
Standard 106.5 (same). As an “entrance,” the porch would expressly fall within
the definition of a “space.” But as discussed more fully below, I would conclude
that the porch is not just an entrance. It is also an area that is definable in the
same sense as a room or lobby. See 1991 Standard 3.5; 2010 Standard 106.5.
However, I agree with the majority that concluding the porch is a space does not
end the inquiry. We must next determine whether the space is exempt from
compliance with the guidelines. I would conclude that it is not. The porch is a
non-exempt space that is required to be connected to an accessible route. As
described below, it was not connected to an accessible route and, therefore, does
not meet either the 1991 or 2010 Design Standards.
b. The porch does not comply with the ADA under the 1991 Design
Standards.
To determine whether a space complies with the Design Standards, I would
look first to any general exceptions. I would then look to the specific
requirements for the type of space involved to determine what compliance entails
and whether the specific standards contain any relevant exceptions.
Under the 1991 Design Standards, section 4.1.1 provides a list of spaces
and other areas that are exempt from the guidelines:
Accessibility is not required to (I) observation galleries used
primarily for security purposes; or (ii) in non-occupiable spaces
accessed only by ladders, catwalks, crawl spaces, very narrow
passageways, or freight (non-passenger) elevators, and frequented
only by service personnel for repair purposes; such spaces include,
but are not limited to, elevator pits, elevator penthouses, piping or
16
equipment catwalks.
1991 Standard 4.1.1(5)(b). 8 In the present case, deposition testimony,
photographic evidence, and architectural drawings all establish that the porch is
neither an observation gallery used primarily for security purposes nor a
non-occupiable space accessed only by ladders, etc., and frequented only by
service personnel for repair purposes. Thus, this general exception does not
exempt the porch from the requirement that it comply with the regulations and
Abercrombie does not argue otherwise.
Nor, in my view, is the porch exempt as an entrance under the 1991 Design
Standards. The 1991 Design Standards state, “At least 50% of all public entrances
. . . must be accessible.” Id. 4.1.3(8)(a)(I). The negative inference of standard
4.1.3(8) is that half of all public entrances need not comply with the guidelines.
However, the standard further provides, “Where feasible, accessible entrances
shall be the entrances used by the majority of people visiting or working in the
building.” Id. 4.1.3(8)(a).
The majority concludes that no evidence was presented from which the
district court could infer that the porch was used by a majority of people visiting
or working in the Park Meadows Hollister. I disagree. Unlike the lack of evidence
8
Standard 4.1.1 also contains an exception for structural impracticability.
1991 Standard 4.1.1(5)(a). Abercrombie has not argued that the porch is exempt
from compliance on this basis.
17
supporting the district court’s inference as to class size, the record contains
deposition testimony, declarations, photographic evidence, and architectural
drawings that all support a reasonable inference that a majority of people use the
porch entrance at the Park Meadows Hollister. The four CCDC members who are
no longer named parties in this litigation submitted declarations stating that the
side entrances were difficult to find and “looked like shutters . . .
indistinguishable from the rest of the shutters on the exterior of the store.” I Aplt.
App. 118, 121, 123–24, 126–27. The side entrances have since been modified to
make them more visible. III Aplt. App. 734–36. But Ms. Farrar did not see the
two side entrances at the Park Meadows Hollister after the modifications took
place, id.; II Aplt. App. 462, 657, though she admittedly did not continue to look
for accessible entrances after being deterred by the porch, II Aplt. App. 462,
657–59.
The inference that the porch was the entrance used by the majority of
visitors is also supported by Abercrombie’s own actions. Indeed, it was not until
after this litigation began that Abercrombie directed store managers to unlock the
side entrances when opening the store. III Aplt. App. 734. And Abercrombie
representatives declared that the porch was designed to draw customers into the
store. III Aplt. App. 732–33. Tellingly, Abercrombie submitted a declaration
stating that roping off the porch entrance “would be confusing to customers” and
18
would cause “immense and unquantifiable loss in sales and revenue.” III Aplt.
App. 1071.
In my view, this evidence combined with the photographs and architectural
drawings illustrate that the porch is the focal point of the storefront, with trees,
decorations, upholstered chairs, mannequins displaying merchandise, and a large
marketing image on the back wall. I Aplt. App. 298–302; Aplee. Br. 7.
Furthermore, the photographs of the Park Meadows Hollister storefront depict a
large pillar blocking one’s view of the side entrance into the “Bettys” section of
the store. 9 I Aplt. App. 298–302. I would hold that it is a small and imminently
reasonable step to infer from this evidence that a majority of people use the porch
to enter the Park Meadows Hollister. And because Abercrombie has identified no
contrary evidence to support a reasonable inference that a majority of people do
not use the porch to enter the store, no genuine dispute of material fact exists on
this point. 10
Because a majority of people use the porch entrance, the porch entrance
was required to be “accessible.” 1991 Standard 4.1.3(8)(a). As an “accessible
entrance,” the porch was required to be on an “accessible route”:
9
See photograph attached at the end of this decision as Attachment 1.
10
Although Abercrombie has challenged whether CCDC adequately proved
the porch is the entrance used by the majority of customers, it has never
suggested or offered any evidence that the porch, in fact, is not the main entrance
to the store.
19
Entrances required to be accessible by 4.1 shall be part of an
accessible route complying with 4.3. . . . They shall also be
connected by an accessible route to all accessible spaces or elements
within the building or facility.
Id. 4.14.1; see also id. 4.1.3(1) (“At least one accessible route complying with 4.3
shall connect accessible building or facility entrances with all accessible spaces
and elements within the building or facility.”); id. 4.3.2(2) (“At least one
accessible route shall connect accessible buildings, facilities, elements, and
spaces that are on the same site.”); id. 4.3.2(3) (“At least one accessible route
shall connect accessible building or facility entrances with all accessible spaces
and elements and with all accessible dwelling units within the building or
facility.”). An “accessible route” is a “continuous unobstructed path connecting
all accessible elements and spaces of a building or facility” that “may include
corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures.” Id. 3.5.
Of particular relevance here, “[a]n accessible route does not include stairs, steps,
or escalators.” Id. 4.3.8 (emphases added). Because it was accessible only by
stairs, the porch was not connected to an accessible route. Therefore, it violates
the 1991 Design Standards.
The porch also violates the 1991 Design Standards as a space in other
respects. The majority concludes that because the porch is an entrance, the porch
need only comply with guidelines relating to entrances. But as I indicated above,
the porch is not just an entrance. Abercrombie submitted declarations and
20
deposition testimony to the district court characterizing the porch as a “display
area.” See III Aplt. App. 738, 968, 971–72. One Abercrombie official explained,
“It’s not really an entrance, it’s more of a display area.” III Aplt. App. 968.
Another stated that the porch is “used as a visual display analogous to a store
window in another retail store.” III Aplt. App. 971–72; see also id. at 738. The
record also establishes that the porch is a definable area much like a room or
lobby, III Aplt. App. 908–09, which functions as a customer lounge and as a
distinct marketing space, designed to draw customers into the store and strengthen
the Hollister brand and image. Id. at 732–33.
Where a space has multiple uses, each portion of the space must comply
with the requirements applicable to that use. See Caruso v. Blockbuster-Sony
Music Entm’t Ctr. at the Waterfront, 193 F.3d 730, 737–38 (3d Cir. 1999) (Alito,
J.) (holding that an assembly area was required to be on an accessible route
because all “accessible spaces” are required to be on an accessible route,
“regardless of whether or not the facility [was] also required to meet the more
specific DOJ Standards concerning fixed seating plans” for assembly areas); cf.
1991 Standard 4.1.1(2) (“When a building or facility contains more than one use
covered by a special application section, each portion shall comply with the
requirements for that use.”); 11 Talk Am., 131 S. Ct. at 2265 & n.6 (stating under a
11
The 1991 Design Standards phrase the principle in terms specific to
“special application sections.” But the 2010 Design Standards clarify that the
21
different regulatory scheme that when telephone wires and cables can be used for
different functions, “regulatory treatment can vary depending on [their] use”).
The 1991 Design Standards do not have any provisions directed specifically
at display areas or customer lounges. But in each of these ways, the porch is a
space—i.e, a definable area in the same manner as a room or lobby. As with non-
exempt entrances, all non-exempt spaces are required to be on an accessible route.
1991 Standard 4.1.2(2) (“At least one accessible route complying with 4.3 shall
connect accessible buildings, accessible facilities, accessible elements, and
accessible spaces that are on the same site.”); id. 4.1.3(1) (“At least one
accessible route complying with 4.3 shall connect accessible building or facility
entrances with all accessible spaces and elements within the building or
facility.”); id. 4.3.2(3) (“At least one accessible route shall connect accessible
building or facility entrances with all accessible spaces and elements and with all
accessible dwelling units within the building or facility.”).
Having determined that the porch is a space that functions as a display area
and customer lounge, and, therefore, is generally covered by the guidelines, I next
consider whether it falls within an exception. Some display areas may qualify as a
principle applies generally as well: “Where a site, building, facility, room, or
space contains more than one use, each portion shall comply with the applicable
requirements for that use.” 2010 Standard 201.2.
22
“space” while also being exempted by the exceptions for employee work areas.
Standard 4.1.1(3) places limits on the requirements for “[a]reas that are used only
as work areas.” Id. 4.1.1(3). But the porch does not qualify as an exempt work
area because it is open to customers, see id., and I am aware of no other exception
that would exempt this space from compliance with the Design Standards.
In summary, the Design Standards contain an overarching requirement that
all areas—including spaces—must comply with the guidelines. In turn, the
guidelines require that all non-exempt spaces be on an accessible route. Unlike
the majority, I would conclude that the porch is a non-exempt entrance which
must comply with the 1991 Design Standards. But even if the majority is correct
that the standards governing entrances exempt the porch from the accessible route
provisions as an entrance, the accessible route provisions are equally applicable to
the porch as a definable area like a room or lobby, which is used as a display area
and customer lounge. Thus, I would hold that the porch does not comply with the
1991 Design Standards because it is not on an accessible route.
As the majority explains, any injunctive relief based on the violation of the
1991 standards would require compliance with the 2010 Design Standards. If
those newer standards exempt the porch from being on an accessible route, then,
as the majority notes, Abercrombie effectively will be deemed to be in
compliance. I am convinced that the 2010 Design Standards also require the porch
to be on an accessible route as a display area and customer lounge. Thus, even if
23
the porch is an exempt entrance under the 2010 Design Standards, it must be on
an accessible route.
c. To be brought into compliance with the 2010 Design Standards, the
porch must be on an accessible route.
I agree with the majority that because the majority-use requirement was
removed from the 2010 Design Standards, the standards governing entrances no
longer require the porch, as an entrance, to be on an accessible route. But the
standards governing spaces used for purposes other than entrances have not
changed. Therefore, I would hold that the porch must be on an accessible route to
be brought into compliance with the 2010 Design Standards.
As a definable area similar to a room or lobby, the porch is a space and is
not exempt under any general exceptions. The 2010 Design Standards expanded
and elaborated upon the list of exceptions contained in the 1991 Design
Standards. Exceptions addressing spaces in the 2010 Design Standards include
“[a]reas raised primarily for purposes of security, life safety, or fire safety,” 2010
Standard 203.3; “[s]paces accessed only by ladders, catwalks, crawl spaces, or
very narrow passageways,” id. 203.4; “[s]paces frequented only by service
personnel for maintenance, repair, or occasional monitoring of equipment,” id.
203.5; and certain employee work areas. Id. 203.9. All such spaces “shall not be
required to comply with these requirements or to be on an accessible route.” Id.
24
203 (emphasis added). The porch, which is used as a display area and customer
lounge, does not fall into any of these general exceptions.
Nor does any more specific exception exempt the porch from complying
with the accessible route requirement in this context. Because the area qualifies as
a “space,” as discussed above, it is required to be on an accessible route unless
exempted by some other provision. See id. 201.1, 203.1, 206.2.2, 206.2.4. As with
the 1991 Design Standards, a space may be exempt as an employee work area, see
id. 203.9, but the 2010 Design Standards define an “employee work area” as “[a]ll
or any portion of a space used only by employees and used only for work.” Id.
106.5. The porch is not exempted because it is open to customers and is not used
only for employee work. Thus, I would hold that the porch is a non-exempt space
and must be on an accessible route. Id. 206.2.2, 206.2.4.
To the extent there is any ambiguity in what the regulations require, placing
the porch on an accessible route is “consistent with the ADA’s purpose of
enabling people with disabilities to share equally in the benefits provided by a
public accommodation.” Caruso, 193 F.3d at 733. It is also consistent with the
interpretation advanced by the Department of Justice, which is entitled to
deference. Auer, 519 U.S. at 462.
Thus, as with the 1991 Design Standards, even if the provisions governing
entrances in the 2010 Design Standards exempt the porch from complying with
the accessible route provisions as an entrance, the accessible route provisions
25
apply to the porch as a display area and customer lounge. See 2010 Standard
201.2 (“Where a site, building, facility, room, or space contains more than one
use, each portion shall comply with the applicable requirements for that use.”).
While the doors at the end of the porch are exempt and thus need not be on an
accessible route, the porch itself must be connected to at least one accessible
route. More simply, although Abercrombie may design its stores to provide access
to the interior of the store through the side doors, it cannot deprive the
wheelchair-using public from complete access to the distinct space that is the
porch.
B. Denial of Participation, Separate & Unequal Benefit & Integration
I agree with the majority that we must look to the Design Standards to
determine whether a defendant has discriminated in the design, construction, or
alteration of a facility, but that discrimination in the use of a facility is controlled
by other regulatory and statutory provisions. 12 But nothing prohibits the Plaintiffs
from arguing—as they have both below and on appeal—that Abercrombie has
discriminated both in terms of design and use of the facility. Abercrombie uses
12
“Use” of a facility may be relevant to determining which design
standards apply. In this sense, it is not a defendant’s use of a facility that is
discriminatory; rather, the defendant’s use may give rise to an obligation to
design the facility in a certain way. But “use” of a facility may also be relevant in
that a defendant’s use may itself be discriminatory if the defendant’s (in)actions
violate the more general statutory or regulatory provisions of the ADA. See 42
U.S.C. § 12182(b)(1).
26
the space as a distinct branding tool, display area, and customer lounge that is not
accessible to people who use wheelchairs. I would hold that this use qualifies as
“discrimination” within the meaning of Title III of the ADA.
Title III of the ADA contains a list of general activities that it defines as
discrimination: the denial of an opportunity to participate, 42 U.S.C.
§§ 12182(b)(1)(A)(i), 12182(b)(1)(C); the provision of an unequal benefit, id.
§ 12182(b)(1)(A)(ii); and the provision of a separate benefit, unless doing so is
necessary to provide a benefit that is as effective as that provided to others. Id.
§ 12182(b)(1)(A)(iii). 13 Furthermore, the statute requires benefits provided to
people with disabilities to be afforded in the most integrated setting appropriate to
the needs of the individual. Id. § 12182(b)(1)(B).
I would hold that Abercrombie’s use of the porch violates each of these
provisions. As the preceding discussion indicates, I disagree with the majority’s
conclusion that “Abercrombie does not ‘use’ the porch at all.” Maj. Op. 27.
Abercrombie uses the space as an entrance, customer lounge, and display area,
decorated in a fashion calculated to draw customers into the store and strengthen
the Hollister brand and image. During the litigation, Abercrombie made much of
the fact that the porch was intended as a visual display only, and that the “visual
13
These provisions are limited to discrimination against “clients or
customers.” 42 U.S.C. § 12182(b)(1)(A)(iv). I would hold that the Plaintiffs have
established at the summary judgment stage that Ms. Farrar is a customer.
27
sensory experience of the porch is the same for able-bodied customers and
customers who use mobility devices.” III Aplt. App. 738, 940–41, 972; see also
Aplt. Br. 45–46. Yet when presented with the option of bringing the porch into
compliance by closing it off to all customers, Abercrombie submitted a
declaration stating that this was the “worst, and least acceptable” of the options
presented by the district court because it would “be extremely detrimental to the
Company’s carefully crafted branding efforts” and would “cause permanent
damage to the Hollister brand.” III Aplt. App. 1071. Abercrombie’s response
belies its assertion that the use of the porch as a customer lounge, branding tool,
and display area provides merely a visual sensory experience that all customers
can enjoy equally, even without access to the porch.
By placing trees, decorations, upholstered chairs, mannequins displaying
merchandise, and a large marketing image on the back wall of the porch entrance,
Abercrombie has provided a “facility, privilege, advantage, or accommodation” to
some of its customers while denying some customers the opportunity to
participate on the basis of their disability. 42 U.S.C. § 12182(b)(1)(A)(i). 14 The
effect is to create a benefit for some customers that is denied to others on the
14
Subsection 12182(b)(1)(A)(i) provides, “It shall be discriminatory to
subject an individual or class of individuals on the basis of a disability or
disabilities of such individual or class, directly, or through contractual, licensing,
or other arrangements, to a denial of the opportunity of the individual or class to
participate in or benefit from the goods, services, facilities, privileges,
advantages, or accommodations of an entity.”
28
basis of disability. By requiring customers who are unable to use stairs to enter
the store through entrances that are not adorned or used even remotely like the
porch entrance, Abercrombie has afforded a “facility . . . or accommodation that
is not equal to that afforded to other individuals,” id. § 12182(b)(1)(A)(ii), 15 and
that is “different or separate from that provided to other individuals.” Id.
§ 12182(b)(1)(A)(iii). 16 Finally, Abercrombie’s use of this exclusive entrance as a
customer lounge, branding tool, and display area, combined with Abercrombie’s
provision of segregated, inferior accessible entrances, violates the ADA’s
mandate to provide facilities and accommodations “in the most integrated setting
appropriate to the needs of the individual.” Id. § 12182(b)(1)(B). 17 The integration
15
Subsection 12182(b)(1)(A)(ii) provides, “It shall be discriminatory to
afford an individual or class of individuals, on the basis of a disability or
disabilities of such individual or class, directly, or through contractual, licensing,
or other arrangements with the opportunity to participate in or benefit from a
good, service, facility, privilege, advantage, or accommodation that is not equal to
that afforded to other individuals.”
16
Subsection 12182(b)(1)(A)(iii) provides, “It shall be discriminatory to
provide an individual or class of individuals, on the basis of a disability or
disabilities of such individual or class, directly, or through contractual, licensing,
or other arrangements 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 or class of
individuals with a good, service, facility, privilege, advantage, or accommodation,
or other opportunity that is as effective as that provided to others.”
17
Subsection 12182(b)(1)(B) provides, “Goods, services, facilities,
privileges, advantages, and accommodations shall be afforded to an individual
with a disability in the most integrated setting appropriate to the needs of the
individual.”
29
mandate “prohibit[s] exclusion and segregation of individuals with disabilities.”
28 C.F.R. § 36, App. C, at 901 (agency guidance on Title III’s integration
mandate). By excluding customers who use wheelchairs from the porch and
requiring them to use the unadorned, inferior side entrances, Abercrombie
effectively “relegates persons with disabilities to the status of second-class
citizens.” See id. Thus, Abercrombie’s use of the porch violates Title III of the
ADA. 18
My conclusion that Abercrombie is in violation of the general provisions of
the ADA reinforces my conclusion that Abercrombie violated the Design
Standards by not connecting the porch to an accessible route. The specific
prohibitions in the ADA must be read in light of the general prohibitions. See
Caruso, 193 F.3d at 739–40. The general prohibitions make clear that the purpose
of the ADA is inclusion of people with disabilities. The porch at the Park
Meadows Hollister sends a message of exclusion. Construing the Design
Standards in a way that allows that result would undermine the stated purpose of
Title III of the ADA.
18
Compliance with the design standards would not have been difficult. In
fact, Abercrombie designed some of its stores with the same surf-shack motif, but
in an inclusive fashion, by simply constructing the porch at ground level. A
picture of a store with that design is attached to this decision as Attachment 2.
30
In light of the foregoing, I would affirm the district court’s entry of
summary judgment in favor of the Plaintiffs, and its entry of an injunction
relating to the Park Meadows store. 19
19
Because I would hold that Abercrombie violated the ADA, I would also
address an aspect of Abercrombie’s appeal unnecessary to the majority’s analysis:
namely, whether the district court abused its discretion in fashioning the
injunctive relief granted. I would hold that where the district court was required
to issue an injunction and tailored that injunction to accommodate many of the
concerns raised by Abercrombie, the district court did not abuse its discretion.
31
ATTACHMENT 1
ATTACHMENT 2