Several individuals who use wheelchairs (and an organization representing individuals with disabilities, the Colorado Cross-Disability Coalition (CCDC)) filed this lawsuit in the U.S. District Court for the District of Colorado on November 24, 2009, claiming that Hollister stores (owned by Abercrombie & Fitch Co.) were inaccessible in violation of Title III of the Americans with Disabilities Act (ADA) and the Colorado Civil Rights Act. The main entrances of Hollister stores typically have "raised porches" (featuring stairs) and thus force individuals in wheelchairs to use separate entrances or not enter at all. The plaintiffs also allege several architectural barriers in the set-up and design of the stores.
Abercrombie & Fitch Co. (A&F) moved to dismiss the complaint in May 2010, alleging that the plaintiffs in the case did not have standing to assert their claims. A&F argued that the individual plaintiffs did not have standing to demand compliance in Hollister stores nationwide, but rather, could only make claims in reference to those stores that each individual plaintiff was likely to visit again. A&F also argued that the CCDC did not have adequate organizational standing to bring these claims on behalf of its members. The court (Judge Wiley Y. Daniel) rejected this motion in May 2011. Judge Daniel found that the individual plaintiffs could assert claims in reference to Hollister stores across the country because the stores share a common plan or design that plaintiffs allege violates the ADA. The court also found that CCDC had satisfied the requirements for organizational standing.
On March 16, 2011, the plaintiffs moved for partial summary judgment with respect to two Hollister stores, arguing that the raised porch design violates Title III. Title III and its accompanying regulations require that all buildings erected after 1993 with the Department of Justice Standards for Accessible Design ("DOJ Standards"). The 1991 DOJ Standards state that, where feasible, the accessible entryway should be near the entrance that is used by the majority of people. The U.S. Department of Justice filed a brief supporting the plaintiffs' interpretation and recommending that the court grant summary judgment. The court granted this motion on August 31, 2011.
The plaintiffs filed a motion for class certification on October 21, 2011, and the court certified the class on April 20, 2012. The named plaintiffs in the case were now certified to represent the interests of all individuals who use wheelchairs who wish to enter Hollister stores across the country. In light of this, the plaintiffs filed a motion for summary judgment on April 27, 2012.
A&F filed its own motion for summary judgment, or in the alternative to vacate the August 31, 2011 order, on May 3, 2012. In that motion, they allege that the two stores that were subject to the August 31, 2011 order are no longer in violation of the ADA (one closed, the other made modifications). A&F also claimed that regardless of the changes, Hollister stores comply with the 2010 DOJ Standards. The defendants argued that the 2010 standards on entrances were more flexible than the earlier 1991 version. In response to this claim, DOJ filed a brief again siding with the plaintiffs. The DOJ brief explained that although the language of the 2010 DOJ Standards is slightly different from the 1991 DOJ Standards, this difference of language is not meaningful. DOJ reference the regulatory history to argue that the language of the standards was not intended to change the requirement from the 1991 version.
After a hearing on January 24, 2013, Judge Daniel granted the plaintiffs' motion for summary judgment. In an order issued on March 7, 2013, the judge found that the named plaintiffs could raise claims on behalf of a nationwide class and that the raised porch design violated both the 2010 and 1991 standards, which demand the same accessibility of entrances.
The case is ongoing, as the parties will now meet to negotiate an appropriate injunction so that Hollister stores can move toward ADA compliance. Beth Kurtz - 04/09/2013