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Hollister Disabled-Access Case: Class Certification Affirmed by 10th Cir.

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By Mark Wilson, Esq. on September 09, 2014 4:36 PM

For some reason, Anita Hansen wanted to go into a Hollister store. You know Hollister: the Abercombie & Fitch brand designed to make everyone think they're a hip surfer dude. Anyway, for some reason, Anita Hansen wanted to go into this place -- maybe to figure out what that smell was -- but she couldn't get in. Hansen is disabled, and says she couldn't get into the store because there are steps leading to its front entrance (Abercrombie wants you to think you're entering a hut or something). Even after she was let in through a side door, she couldn't move around the store because the pathways between display tables were too narrow.

Abercrombie made a few changes to the store's layout, but that silly entrance remained. As a result, Hansen filed an ADA complaint. After Abercrombie couldn't get her claim tossed out of court, Hansen then had the case certified as a class action.

The district court held that the ridiculous hut-stairs not only offended good taste, but violated Title III of the ADA, issuing an injunction requiring Abercrombie to modify Hollister stores' entrances.

Class Certification

On appeal to the Tenth Circuit were two issues: (1) class certification and (2) the merits of the ADA violation. The court first addressed whether class certification was appropriate and whether Hansen was an adequate representative. Though Abercrombie claimed that the class' existence was merely hypothetical, the court rolled its eyes at this argument. First of all, the law in the Tenth Circuit doesn't require the plaintiff to go out and find people who've been harmed in order to certify a class. Second, as long as the plaintiff can provide plausible evidence that others can be harmed, and they'll suffer the same type of injury, the case can proceed as a class action.

The court found that all of these requirements were met.

ADA Claims

On to the main course: the ADA violations. Abercrombie claimed that use of the porch wasn't essential; disabled shoppers could always come in through a different way. The United States, which filed an amicus brief, said that the porch was a "a part of the shopping experience" and thus needed to be redesigned to afford full benefit of the porch to disabled shoppers. The court disagreed with the characterization of the porch as something that Abercrombie "uses." The porch exists, but for there to be a violation, there must be some policy surrounding the use of the porch -- for example, if Abercrombie had set different hours for the porch entrance as opposed to the side entrance (which wasn't the case).

Nor was the court convinced that the ADA required that "every 'space' shall be an 'accessible space.'" And even if the porch was used by a "majority of people," that standard is from 1991; the new 2010 standard requires only that at least 60 percent of the entrances be accessible: Here, there were three other entrances meeting that requirement.

Dissent

Judge Paul Kelly dissented in part, including a big part: He would have found an ADA violation because the ADA Design Guidelines require all "areas" to comply -- which, he said, must include "spaces." Kelly also said that the porch was an essential part of the Hollister experience, what with "trees, decorations, upholstered chairs, mannequins displaying merchandise, and a large marketing image on the back wall." Even though Abercrombie said the porch's structure wasn't integral to the experience, it nevertheless balked when the district court suggested the porch could be redesigned.

Unfortunately, no one asked the key question that could have resolved this dispute: Why does anyone go into Hollister in the first place?

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