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Macy’s Ruling May Affect All Big Retailers Federal judge orders Macy’s to widen aisles for disabled By Michael D. Goldhaber The National Law Journal November 8, 1999 -------------------------------------------------------------------------------- Macy’s boasts the world’s largest store. Lawyers for the disabled add that it boasts "the world’s largest ADA violation," and a federal judge in California seems to agree. "They have half a million feet of retail space in this store," says Melissa Kasnitz, of Disability Rights Advocates, "and they couldn’t find 36 inches for a wheelchair." On Oct. 28 a district court found that shopping aisles at the Macy’s on San Francisco’s Union Square offered "barely enough room for even able-bodied customers to squeeze through" and that the store "rarely, if ever," gave the disabled decent customer service -- flouting the access requirements of the Americans with Disabilities Act. "This is the most important decision to come out of a federal court involving access for disabled people," says Arthur F. Silbergeld, of Proskauer Rose L.L.P. "It’s going to cause shock waves in the retail industry." Lieber v. Macy’s West, No. C96-2955 MHP (N.D. Calif., Oct. 28, 1999), may be found online at www.cand.uscourts.gov. The ruling comes as an unwelcome holiday gift for retailers. The litigation director for Disability Rights Advocates, Sid Wolinsky, said, "If the retail industry doesn’t get the message this Christmas, they can certainly expect more lawsuits." Abbey Hairston, of Epstein Becker & Green P.C., in Washington, D.C., agreed: "You’re creating a cottage industry for advocates. The retail industry will have to pull together." Officials at the National Retail Federation declined to comment; those at the California Retailers Association didn’t return calls. The lead trial lawyer for Macy’s -- David Copus, of Jones, Day, Reavis & Pogue -- says, "It ought to refresh retailers’ recognition of their ADA obligations. If our trial can provide them with some guidance, that’s great." Macy’s issued a like conciliatory statement: "In the 18 months since the trial of this case, Macy’s has proactively implemented a plan to address the accessibility concerns raised by the plaintiffs." Mr. Wolinsky scoffs that "Macy’s Union Square still looks like my neighbor’s garage sale." But in New York, Disabled in Action’s Daniel Robert last week checked Macy’s main store, accompanied by a reporter and riding in a wheelchair bearing the sticker "Don’t tread on our ADA," and found relatively few problems. THE UNION SQUARE SUIT The case represents the first major ADA class action to reach trial and the first major ADA suit to target a retailer. "I kind of wondered when they’d get past the stadiums," says Ms. Hairston. The suit was filed in 1996 on behalf of people with "mobility disabilities" who were denied access to Macy’s Union Square. Two later Disability Rights Advocates class actions named, respectively, Macy’s Sacramento store and the roughly 80 other California stores. Chief Judge Marilyn Hall Patel, of the Northern District of California, is presiding over the San Francisco and statewide cases. The courts are set to proceed with the Sacramento case and with the damages phase of the San Francisco case based on state civil rights law. However, both sides indicated in interviews that they are open to a global settlement. The defendant might be leery of repeating some courtroom scenes. Near the start of the three-week trial, plaintiffs’ lawyers set up two pieces of plywood to simulate a 30-inch aisle (Macy’s target width in San Francisco), and a witness in a wheelchair tried to make a 90-degree turn to pass between them. The paraplegic witness desperately backed and filled as his front wheels wedged ever more tightly against the panels. As the plaintiffs tell it, the judge leaned over and asked, "Is this the point at which you leave Macy’s and go over to Nordstrom’s?" A defense lawyer stood and said, in essence, "Your honor, we stipulate that a 30-inch pathway was unusable for various class members." The testimony of Macy’s own lead witness, Director of Stores Rebecca Canfield, was almost as hurtful. According to court findings, she admitted on cross-examination that "she has no idea how wheelchair users actually get to the merchandise." Indeed, she conceded that disabled shoppers would have trouble reaching at least 25% of the merchandise even during the off-season. The ADA requires operators, in certain areas of public accommodations, to remove access barriers to the extent that is "readily achievable." This is the first major elaboration of that requirement. The plaintiffs argued that Macy’s Union Square violated the ADA in its dense layout of moveable display racks. Macy’s responded that expanding all aisles to 36 inches would result in a significant loss of sales or entail a significant change in its business model, a sacrifice the law specifically doesn’t require. Judge Patel found it "revealing" that Macy’s introduced no expert testimony that wider aisles would reduce sales. She dismissed its lay testimony as "speculative" and wrote, "Widening pathways might encourage shoppers who would otherwise be deterred." Mr. Copus says that he was unable to find any empirical study of the space sales link. With respect to unfixed display racks, the court ordered Macy’s to develop a plan within 60 days to maximize access to merchandise, with customer service backup. The order also lays out a range of changes to bring the store into compliance with ADA standards on signs, entrances, counters and fitting rooms. Proskauer’s Mr. Silbergeld predicts that the ruling will affect midmarket department stores, boutiques and groceries. Spacious megastores and upscale department stores will have an advantage, he says: "In the next three to five years you’ll see a lot of planning around these issues." Macy’s Ruling May Affect All Big Retailers Federal judge orders Macy’s to widen aisles for disabled By Michael D. Goldhaber The National Law Journal November 8, 1999 -------------------------------------------------------------------------------- Macy’s boasts the world’s largest store. Lawyers for the disabled add that it boasts "the world’s largest ADA violation," and a federal judge in California seems to agree. "They have half a million feet of retail space in this store," says Melissa Kasnitz, of Disability Rights Advocates, "and they couldn’t find 36 inches for a wheelchair." On Oct. 28 a district court found that shopping aisles at the Macy’s on San Francisco’s Union Square offered "barely enough room for even able-bodied customers to squeeze through" and that the store "rarely, if ever," gave the disabled decent customer service -- flouting the access requirements of the Americans with Disabilities Act. "This is the most important decision to come out of a federal court involving access for disabled people," says Arthur F. Silbergeld, of Proskauer Rose L.L.P. "It’s going to cause shock waves in the retail industry." Lieber v. Macy’s West, No. C96-2955 MHP (N.D. Calif., Oct. 28, 1999), may be found online at www.cand.uscourts.gov. The ruling comes as an unwelcome holiday gift for retailers. The litigation director for Disability Rights Advocates, Sid Wolinsky, said, "If the retail industry doesn’t get the message this Christmas, they can certainly expect more lawsuits." Abbey Hairston, of Epstein Becker & Green P.C., in Washington, D.C., agreed: "You’re creating a cottage industry for advocates. The retail industry will have to pull together." Officials at the National Retail Federation declined to comment; those at the California Retailers Association didn’t return calls. The lead trial lawyer for Macy’s -- David Copus, of Jones, Day, Reavis & Pogue -- says, "It ought to refresh retailers’ recognition of their ADA obligations. If our trial can provide them with some guidance, that’s great." Macy’s issued a like conciliatory statement: "In the 18 months since the trial of this case, Macy’s has proactively implemented a plan to address the accessibility concerns raised by the plaintiffs." Mr. Wolinsky scoffs that "Macy’s Union Square still looks like my neighbor’s garage sale." But in New York, Disabled in Action’s Daniel Robert last week checked Macy’s main store, accompanied by a reporter and riding in a wheelchair bearing the sticker "Don’t tread on our ADA," and found relatively few problems. THE UNION SQUARE SUIT The case represents the first major ADA class action to reach trial and the first major ADA suit to target a retailer. "I kind of wondered when they’d get past the stadiums," says Ms. Hairston. The suit was filed in 1996 on behalf of people with "mobility disabilities" who were denied access to Macy’s Union Square. Two later Disability Rights Advocates class actions named, respectively, Macy’s Sacramento store and the roughly 80 other California stores. Chief Judge Marilyn Hall Patel, of the Northern District of California, is presiding over the San Francisco and statewide cases. The courts are set to proceed with the Sacramento case and with the damages phase of the San Francisco case based on state civil rights law. However, both sides indicated in interviews that they are open to a global settlement. The defendant might be leery of repeating some courtroom scenes. Near the start of the three-week trial, plaintiffs’ lawyers set up two pieces of plywood to simulate a 30-inch aisle (Macy’s target width in San Francisco), and a witness in a wheelchair tried to make a 90-degree turn to pass between them. The paraplegic witness desperately backed and filled as his front wheels wedged ever more tightly against the panels. As the plaintiffs tell it, the judge leaned over and asked, "Is this the point at which you leave Macy’s and go over to Nordstrom’s?" A defense lawyer stood and said, in essence, "Your honor, we stipulate that a 30-inch pathway was unusable for various class members." The testimony of Macy’s own lead witness, Director of Stores Rebecca Canfield, was almost as hurtful. According to court findings, she admitted on cross-examination that "she has no idea how wheelchair users actually get to the merchandise." Indeed, she conceded that disabled shoppers would have trouble reaching at least 25% of the merchandise even during the off-season. The ADA requires operators, in certain areas of public accommodations, to remove access barriers to the extent that is "readily achievable." This is the first major elaboration of that requirement. The plaintiffs argued that Macy’s Union Square violated the ADA in its dense layout of moveable display racks. Macy’s responded that expanding all aisles to 36 inches would result in a significant loss of sales or entail a significant change in its business model, a sacrifice the law specifically doesn’t require. Judge Patel found it "revealing" that Macy’s introduced no expert testimony that wider aisles would reduce sales. She dismissed its lay testimony as "speculative" and wrote, "Widening pathways might encourage shoppers who would otherwise be deterred." Mr. Copus says that he was unable to find any empirical study of the space sales link. With respect to unfixed display racks, the court ordered Macy’s to develop a plan within 60 days to maximize access to merchandise, with customer service backup. The order also lays out a range of changes to bring the store into compliance with ADA standards on signs, entrances, counters and fitting rooms. Proskauer’s Mr. Silbergeld predicts that the ruling will affect midmarket department stores, boutiques and groceries. Spacious megastores and upscale department stores will have an advantage, he says: "In the next three to five years you’ll see a lot of planning around these issues." |
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