UNITED STATES COURT OF APPEALS FOR THE TENTH …€¦ · · 2017-10-24ABERCROMBIE & FITCH CO.,...

No. 13-1377

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

COLORADO CROSS-DISABILITY COALITION, ANITA HANSEN and

JULIE FARRAR, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellees,

v.

ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC.,

and J.M. HOLLISTER, LLC,

Defendants-Appellants.

Appeal from the U. S. District Court for the District of Colorado

The Honorable Wiley Y. Daniel, Senior United States District Judge

Civil Action No. 09-cv-2757-WYD-KMT

BRIEF OF 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 CALIFORNIA, DISABILITY RIGHTS EDUCATION AND

DEFENSE FUND, LEGAL AID SOCIETY–EMPLOYMENT LAW

CENTER, NATIONAL DISABILITY RIGHTS NETWORK AND

NATIONAL FEDERATION OF THE BLIND AS AMICI CURIAE IN

SUPPORT OF PLAINTIFFS-APPELLEES’ PETITION FOR REHEARING

AND REHEARING EN BANC

Michelle Uzeta, Esq.

710 S. Myrtle Ave., #306

Monrovia, CA 91016

Tel: 626.765.7625

[email protected]

Appellate Case: 13-1377 Document: 01019329920 Date Filed: 10/23/2014 Page: 1

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici

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 California, Disability Rights

Education and Defense Fund, Legal Aid Society-Employment Law Center,

National Disability Rights Network and National Federation of the Blind make the

following disclosure:

1. Amici are private 501(c)(3) non-profit organizations; not publicly held

corporations or other publicly held entities.

2. Amici do not have any parent corporations.

3. No publicly held corporation or other publicly held entity owns ten

percent (10%) or more of any Amicus organization.

Dated: October 23, 2014 LAW OFFICES OF MICHELLE UZETA

By: /s/Michelle Uzeta

MICHELLE UZETA

Counsel for Amici Curiae


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TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………………………………………ii-iv

STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE

PROCEDURE 29(C)(5)………………………………………………….……..…1

STATEMENT REGARDING CONSENT………………………………………1

INTEREST OF AMICI CURIAE…………………………………………...……2

INTRODUCTION………………………………………………………...............3

ARGUMENT…………………………………………………….………..............4

I. The Majority Opinion Conflicts with Congressional Intent and

Frustrates the ADA’s Remedial Purpose.……………………………..….4

a. The ADA was enacted to eliminate discrimination……………….…4

b. The ADA was enacted to eliminate architectural barriers………….5

c. The ADA was enacted to address the underlying social stigma associated with segregation………………………………………….6

d. The ADA’s guarantee of “full and equal enjoyment” requires more than “mere access” to facilities……………………………………...8

II. By Declining to Give Substantial Deference to the DOJ’s Interpretation

of the Regulations at Issue, the Majority Opinion Creates an

Unintended Loophole that will Result in Decreased Accessibility in the

Marketplace.……………………………………………………………..…9

a. The DOJ’s Interpretation of Laws within its Purview is Entitled to Substantial Deference…………………………………………..……9

b. The Majority Opinion Creates an Unintended Loophole that will

Result in Increased Discrimination Against, and Stigmatization of People with Disabilities……………………………………………..11

CONCLUSION…………………………………………………………..………12

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)……………………14

CERTIFICATE OF SERVICE……………………………………………...15,16


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TABLE OF AUTHORITIES

Cases

Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997) ..............11

Baughman v. Walt Disney, 685 F.3d 1131, 1135 (9th Cir. 2012) ............................. 8

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct.

2778, 81 L. Ed. 2d 694 (1984) .............................................................................11

Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443

(2009) ...................................................................................................................... 9

Kinney v. Yerusalim, 812 F.Supp. 547 (E.D. Pa 1993), affirmed 9 F.3d 1067,

certiorari denied 114 S.Ct. 1545, 511 U.S. 1033 (1996) ........................................ 7

Neighborhood Ass’n of the Back Bay v. Federal Transit Admin., 463 F.3d 50, 65

(1st Cir. 2006) ......................................................................................................... 8

Noel v. New York City Taxi & Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012)

................................................................................................................................ 7

PGA Tour, 532 U.S. at 675 ........................................................................................ 5

PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001) ................................................ 4

Statutes

101st Cong., 2d Sess. 60, 63 (1990) .......................................................................... 6

42 U.S.C. § 12101(a)(2) ............................................................................................. 4

42 U.S.C. § 12101(a)(5) ............................................................................................. 5

42 U.S.C. § 12101(b)(1) ............................................................................................ 4

42 U.S.C. § 12182(a) ................................................................................................. 8

42 U.S.C. § 12182(b)(1)(A)(ii) .................................................................................. 7


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42 U.S.C. § 12182(b)(1)(A)(iii) ................................................................................. 7

42 U.S.C. § 12182(b)(1)(B) ....................................................................................... 7

42 U.S.C. § 12183(a) ................................................................................................. 5

42 U.S.C. § 12188(b)(1)(A) .....................................................................................10

42 U.S.C. § 12188(b)(1)(B)(ii) ................................................................................11

42 U.S.C. §§ 12182(b)(1)(A)(ii-iii), (B) .................................................................... 8

42 U.S.C. §§12101(a)(2), (3), (5) and (6) .................................................................. 7

Americans with Disabilities Act of 1989 ................................................................... 6

H.R. Rep. No. 101-485, pt. 2, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 303,

385 .......................................................................................................................... 7

House Comm. on the Judiciary, H.R. Rep. No. 485(III) ........................................... 6

Legislative History: 101-336 (May 9, 1989) ............................................................. 6

Rule 26.1 of the Federal Rules of Appellate Procedure ............................................ 1

S. Rep. No. 101-116, at 9 (1989) ............................................................................... 7

Title III of the Americans with Disabilities Act ........................................................ 2

Other Authorities

Appendix D to 28 C.F.R. part 36, “1991 Standards for Accessible Design .............. 9

Architectural and Transportation Barriers Compliance Board. 28 C.F.R. pt. 36 ...... 9

Do People with Disabilities Believe the ADA Has Served Their Consumer

Interests?, 39 J. of Consumer Aff. 1, 24 (Summer 2005) ....................................12

How Consumers with Disabilities Perceive “Welcome” in Retail Servicescapes: A

Critical Incident Study, 23 J. of Serv. Marketing 160, 167-168(2007) ...............12


iv

Kevin I. Coco, Beyond the Price Tag: An Economic Analysis of Title III of the

Americans with Disabilities Act, 20 Kan. J. L. & Pub. Pol’y 58, 76, 85 (Fall

2010) .....................................................................................................................11

Reasonable Access for Mobility-Disabled Persons is More Than Widening the

Door, 75 J. of Retailing 479, 483, 494 (1999) .....................................................12

Standards for Accessible Design. 28 C.F.R. § 36.406(a) ........................................10

The 2010 Standards appear in Appendices B and D to 36 C.F.R. part 1191 ............ 9

Rules

Rule 26.1 of the Federal Rules of Appellate Procedure ............................................ 1


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STATEMENT PURSUANT TO

FEDERAL RULE OF APPELLATE PROCEDURE 29(C)(5)

The undersigned certifies that no party’s counsel authored this brief in whole

or in part, and that no party, party’s counsel or any other person other than Amici,

their members, or their counsel, contributed money that was intended to fund

preparing or submitting this brief.

STATEMENT REGARDING CONSENT

Neither Counsel for Appellants nor Counsel for Appellees oppose the filing

of this brief.


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INTEREST OF AMICI CURIAE

Amici are organizations that regularly represent the disability community in

the investigation and litigation of cases under federal anti-discrimination statutes,

including Title III of the Americans with Disabilities Act (“ADA”). Amici also

engage in other forms of advocacy under these laws, challenging stigma, inequality

and discrimination in all its forms. Collectively and individually, Amici are

interested in ensuring that the ADA is properly interpreted and enforced, consistent

with Congress’s intent to eliminate discrimination and address the stigma

associated with segregation. Amici are similarly interested in ensuring that the

ADA and its implementing regulations are interpreted by the courts in a manner

that is consistent with, and provides substantial deference to, the Department of

Justice (“DOJ”).

Given Amici’s strong interests, the September 2, 2014 Majority Opinion is of

significant concern, in that it: (1) endorses the idea of segregated and less

privileged entrances to newly constructed places of public accommodation for

individuals with disabilities, in conflict with congressional intent and the liberal

construction that is to be afforded the ADA; (2) ignores the DOJ’s interpretation of

the ADA, a law within the agency’s statutory purview; and (3) holds that spaces in

newly constructed facilities need not be accessible unless a specific accessibility

standard requires as much, creating a new and uncontemplated statutory defense to

full and equal access in new construction.

Each amicus and its specific interests are described in the accompanying

motion of Amici Curiae for leave to file the present brief in support of Appellees’

Petition for Rehearing and Rehearing En Banc.


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INTRODUCTION

For an individual who uses a wheelchair, the symbolic meaning of the

Hollister store design is simple and direct. The staired and extensively decorated

main porch entrance, through which able-bodied customers are welcomed,

celebrated and able to enjoy the full Hollister experience, is off-limits; a privileged

space in which individuals with disabilities are not welcome. Denied the shade of

the mission-style overhang and feeling of entering a hip California surf shack,

individuals with disabilities are relegated to using plain, shuttered doors located to

the side of, and recessed behind, the open main porch area. The message is clear.

You don’t belong here. You need to stay out of sight. You need to be separated.

You have less value. You are unequal.

The current proceedings are part of an ongoing challenge to the legality of

Appellants’ use of segregated and less privileged entrances for individuals with

disabilities in newly constructed Hollister stores. On September 2, 2014, a

Majority of this Court’s panel reversed the District Court’s opinion finding such a

practice to be violative of the Americans with Disabilities Act (“ADA”). In so

doing, the Majority Opinion has interpreted a public accommodation’s obligations

under the ADA in an overly-narrow manner that conflicts with congressional

intent, frustrates the ADA’s remedial purpose, belies well-established rules of

statutory construction, and creates an unintended loophole that will result in

decreased accessibility in the marketplace and disasterous outcomes for individuals

with disabilities.

Accordingly, Amici believe Appellees’ Petition for Rehearing or Rehearing

En Banc to be highly merited and of utmost importance, and respectfully request

that it be granted.


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ARGUMENT

I. The Majority Opinion Conflicts with Congressional Intent and

Frustrates the ADA’s Remedial Purpose.

In holding that spaces in a newly constructed facility need not be accessible

unless a specific standard directly requires as much, the Majority Opinion declines

to acknowledge the broad purposes of the ADA and the requirement that the ADA

be broadly construed to effectuate those purposes, ignores the well-established rule

of statutory construction that meaning should be attributed to each subsection of a

statute and endorses the discriminatory concept of segregated and less privileged

entrances to places of public accommodation for individuals with disabilities.

a. The ADA was enacted to eliminate discrimination.

The ADA was passed by Congress in 1990, ushering in a new era of civil

rights, by acknowledging and seeking to end the discrimination encountered by

individuals with disabilities. The far-reaching purpose of the ADA was pronounced

boldly and unequivocally by Congress: “To provide a clear and comprehensive

national mandate for the elimination of discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1). See also, PGA Tour, Inc. v. Martin, 532

U.S. 661, 674 (2001) (“Congress enacted the ADA in 1990 to remedy widespread

discrimination against disabled individuals.”) “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)).


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Notably, in enacting the ADA, Congress did not mandate a “decrease,”

“minimization,” or “curtailing” of discrimination against those with disabilities;

instead, it carefully and purposefully mandated in absolute terms its elimination. In

other words, Congress decreed a future where persons with disabilities in the

United States face no discrimination at all. See PGA Tour, 532 U.S. at 675

(internal quotation marks omitted)(“After thoroughly investigating the problem,

Congress concluded that there was a compelling need for a clear and

comprehensive national mandate to eliminate discrimination against disabled

individuals, and to integrate them into the economic and social mainstream of

American life.”)

b. The ADA was enacted to eliminate architectural barriers.

In the ADA, Congress expressly acknowledged that public accommodations

often contain architectural barriers that discriminate against persons with

disabilities. 42 U.S.C. § 12101(a)(5) (Congressional finding that “individuals with

disabilities continually encounter various forms of discrimination, including … the

discriminatory effects of architectural … barriers, [and] … failure to make

modifications to existing facilities….”) Consequently, and with an eye towards a

barrier-free future, discrimination under the ADA includes a “failure to design and

construct [commercial] facilities … that are readily accessible to and usable by

individuals with disabilities” and “a failure to make alterations in such a manner

that, to the maximum extent feasible, the altered portions of the facility are readily

accessible to and usable by individuals with disabilities,” except where an entity

can demonstrate that an accessible facility is “structurally impracticable.” 42

U.S.C. § 12183(a).


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The concept that new facilities must be fully accessible was one of the core

principles underlying the ADA. Stated ADA sponsor Senator Harkin:

[One of eight basic principles in drafting the ADA] was that it is not

economically feasible to remove all architectural and communication

barriers in existing facilities, but that improvements can be made in

existing facilities, and that we can and must insist on full accessibility in

new facilities. Again, all the witnesses at the hearings concurred with this

principle. …

On March 31, 1988, then Vice President Bush stated, and again I quote:

“In order to assure that every American who wants a productive job in

the private sector has a job, I will continue to support initiatives to

improve transportation and workplace accessibility for existing facilities,

and insist on accessibility for all new construction.”

Americans with Disabilities Act of 1989, Legislative History: 101-336 (May

9, 1989) (Statement of Sen. Harkin). See also House Comm. on the Judiciary,

H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 60, 63 (1990) (“Because it costs far

less to incorporate accessible design into the planning and constructing of new

buildings and of alterations, a higher standard of ‘readily accessible to and usable

by’ persons with disabilities has been adopted in the ADA for new construction

and alterations. … The ADA is geared to the future – the goal being that, over

time, access will be the rule rather than the exception.”).

c. The ADA was enacted to address the underlying social stigma

associated with segregation

In addition to mandating the elimination of discrimination and architectural

barriers, the ADA was enacted with the specific purpose of addressing the

underlying social stigma associated with segregation. The legislative history of

Title III of the ADA reflects this central purpose. See S. Rep. No. 101-116, at 9


7

(1989); see also H.R. Rep. No. 101-485, pt. 2, at 102 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 385 (stating that the provision of services in the most integrated

setting is a fundamental principle; noting historically persons with disabilities have

been “relegated to separate and often inferior services”); 42 U.S.C. §§12101(a)(2),

(3), (5) and (6) (Congressional findings to ADA on social isolation, segregation,

and discriminatory effects of architectural barriers).

In line with these remedial purposes, the ADA mandates that goods and

services be provided in the “most integrated setting appropriate to the needs of the

individual.” 42 U.S.C. § 12182(b)(1)(B). It also prohibits a place of public

accommodation from providing a “good, service, facility, privilege, advantage or

accommodation [to persons with disabilities] that is different or separate from” that

provided to persons without disabilities, 42 U.S.C. § 12182(b)(1)(A)(iii), or that “is

not equal” to that provided to others. 42 U.S.C. § 12182(b)(1)(A)(ii).

These general anti-discrimination provisions must be broadly construed, to

effectuate the ADA’s remedial purposes. See Kinney v. Yerusalim, 812 F.Supp.

547 (E.D. Pa 1993), affirmed 9 F.3d 1067, certiorari denied 114 S.Ct. 1545, 511

U.S. 1033 (1996) (As a “remedial statute, designed to eliminate discrimination

against the disabled in all facets of society”, the ADA “must be broadly construed

to effectuate its purposes.”). See also Noel v. New York City Taxi & Limousine

Comm'n, 687 F.3d 63, 68 (2d Cir. 2012) (“As a remedial statute, the ADA must be

broadly construed to effectuate its purpose” of providing “a clear and

comprehensive national mandate for the elimination of discrimination against

individuals with disabilities.”).


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d. The ADA’s guarantee of “full and equal enjoyment” requires more

than “mere access” to facilities.

Consistent with the ADA’s remedial purpose and broad construction, federal

courts have held that the Act’s guarantee of “full and equal enjoyment” requires a

place of public accommodations to do more than provide “mere access” to its

facilities. Baughman v. Walt Disney, 685 F.3d 1131, 1135 (9th Cir. 2012) (citing

42 U.S.C. § 12182(a)). For public accommodations to fulfill the promise of the

ADA and avoid stigmatizing people with disabilities and undermining their

feelings of self-worth and independence, “[p]ublic accommodations must start by

considering how their facilities are used by non-disabled guests and then take

reasonable steps to provide disabled guests with a like experience.” Baughman,

685 F.3d at 1135 (internal citation omitted).

Appellants’ use of segregated entrances at newly constructed Hollister stores

may succeed in providing “mere access” to persons with disabilities, but it

nonetheless violates the ADA by providing a less privileged and therefore

“different or separate” accommodation that is “not equal” and not “in the most

integrated setting.” 42 U.S.C. §§ 12182(b)(1)(A)(ii-iii), (B). See e.g. Neighborhood

Ass’n of the Back Bay v. Federal Transit Admin., 463 F.3d 50, 65 (1st Cir. 2006)

(Supporting judgment of FTA that placing accessible elevator entrance 150 feet

from main entrance to subway would create a “segregated handicap entrance and

violate ADA regulations.”).

The failure of the Majority Opinion to give any effect or credence to the

general anti-discrimination provisions of the ADA in analyzing this matter and

related failure to conclude that people with disabilities are being denied a full,

equal and integrated experience at Hollister stores is of serious concern to Amici.

Ignoring the broad statutory requirements and overarching aims of the ADA sets a

dangerous precedent and renders critical parts of this carefully-crafted statute


9

meaningless. In addition to running afoul of congressional intent, such an approach

violates the well-established rule of statutory construction that meaning should be

attributed to each subsection of a statute. See Corley v. United States, 556 U.S.

303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (“[a] statute should be construed

so that effect is given to all its provisions, so that no part will be inoperative or

superfluous, void or insignificant ...” (internal quotation marks omitted)).

II. By Declining to Give Substantial Deference to the DOJ’s Interpretation

of the Regulations, the Majority Opinion Creates an Unintended

Loophole that will Result in Decreased Accessibility in the Marketplace.

a. The DOJ’s Interpretation of Laws within its Purview is Entitled to

Substantial Deference.

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.


10

The “new construction” provision of the ADA requires compliance with the

DOJ’s Standards for Accessible Design. 28 C.F.R. § 36.406(a). Both the 1991 and

2010 Standards contain provisions generally requiring that, unless excused by an

exception, all areas of covered facilities must be accessible. 1991 Stds § 4.1.1(1);

2010 Stds § 201.1. The DOJ has stated unequivocally that these provisions include

the Hollister store porches, thereby requiring they be accessible and on an

accessible route.1 The Majority Opinion expressly rejects this interpretation -

despite the fact that it is a reasonable interpretation, consistent with statutory

construction and legislative history - holding instead that only specifically

enumerated spaces require such access. Slip Op. at 34-37.

For reasons detailed in the Appellees’ Petition and set forth in the Dissent,

the Majority Opinion is incorrect. Although Amici join in all those arguments, they

are particularly concerned with the fact that the Majority Opinion fails to give

deference to the DOJ’s interpretation of its own regulations, particularly when the

meaning of the regulations and Appellants’ obligations under the regulations are so

squarely at issue.

The DOJ is the administrative agency statutorily charged with investigating

discrimination claims, monitoring compliance and civil enforcement under Title III

of the ADA.2 Accordingly, its interpretation of its regulations is entitled to

1 U.S. Br. 11. (“Accordingly, the porch entrance also must comply with the

general accessibility requirements applicable to all areas or spaces not specifically

exempted. See 2010 ADA Standard 201.1 (“All areas of newly designed and newly

constructed buildings and facilities and altered portions of existing buildings and

facilities shall comply with these requirements.”).”)

2 42 U.S.C. § 12188(b)(1)(A)(The Attorney General shall investigate alleged

violations of this subchapter, and shall undertake periodic reviews of compliance

of covered entities under this subchapter, and civil enforcement of Title III of the


11

substantial deference. See Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L.

Ed. 2d 79 (1997) (stating an agency's interpretation of its own regulation is entitled

to substantial deference unless it is "plainly erroneous or inconsistent with the

regulation"); accord Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). It is error for the Court to

substitute its own interpretation of the regulations when the DOJ has provided a

permissible construction. See Chevron, 467 U.S. at 843-44.

b. The Majority Opinion Creates an Unintended Loophole that will

Result in Increased Discrimination Against, and Stigmatization of

People with Disabilities.

By declining to provide deference to the DOJ’s interpretation of its own

regulations, and holding that spaces in a newly constructed facility need not be

accessible unless a specific standard directly requires as much, the Majority

Opinion creates an entirely new statutory defense to full access in new

construction; a defense neither contemplated by Congress in the enactment of the

ADA nor intended by the DOJ in promulgating its implementing regulations.

The impact of allowing such a loophole will be severe. People with

disabilities are known to experience a loss of dignity, independence, personhood

and pride associated with segregation and lack of access to public

accommodations. See Kevin I. Coco, Beyond the Price Tag: An Economic

Analysis of Title III of the Americans with Disabilities Act, 20 Kan. J. L. & Pub.

Pol’y 58, 76, 85 (Fall 2010). Access barriers and segregation in the retail context

create social stigma and undermine feelings of self-worth and independence of

ADA). 42 U.S.C. § 12188(b)(1)(B)(ii)(“The Attorney General may commence a

civil action in any appropriate United States district court.”).


12

persons with disabilities. Stacey Menzel Baker, Jonna Holland and Carol

Kaufman- Scarborough, How Consumers with Disabilities Perceive “Welcome” in

Retail Servicescapes: A Critical Incident Study, 23 J. of Serv. Marketing 160, 167-

168(2007). They also cause people with disabilities to have a negative overall

reaction to the whole retail environment, and to experience fear and discomfort in

that environment. Carol Kaufman-Scarborough, Reasonable Access for Mobility-

Disabled Persons is More Than Widening the Door, 75 J. of Retailing 479, 483,

494 (1999). Studies confirm that the greater the perceptions of one’s disabilities as

a preventive factor in participation in the marketplace, the less satisfied one is with

life. Carol Kaufman-Scarborough and Stacey Menzel Baker, Do People with

Disabilities Believe the ADA Has Served Their Consumer Interests?, 39 J. of

Consumer Aff. 1, 24 (Summer 2005).

CONCLUSION

The ADA was enacted for the purpose of eliminating discrimination,

removing barriers to access and addressing the social stigma associated with

segregation. The Majority Opinion loses sight of this purpose, ignoring the ADA’s

integration mandate and general prohibitions against discrimination, and endorsing

the use of architecture to exclude, segregate and stigmatize people with disabilities

in the marketplace. The ADA was not intended to be so limited in its application; it

is a far-reaching statute with purposeful, common sense provisions that must be

effectuated.


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Based on the foregoing, Amici urge the Court to grant Appellees’ Petition for

Rehearing and Rehearing En Banc.



MICHELLE UZETA



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CERTIFICATE OF COMPLIANCE

I certify that pursuant to 10th Cir. R. 25.5, (1) all required privacy redactions have

been made, (2) that the hard copies to be submitted to the court are exact copies of

the version submitted electronically, and (3) that the electronic submission was

scanned for viruses with the most recent version of a commercial virus scanning

program, and is free of viruses. Pursuant to Federal Rule of Appellate Procedure

29(d) and 10th

Cir. R. 29, the attached brief is proportionately spaced, has a

typeface of 14 points or more, and contains 2948 words. In making this statement,

the undersigned relied in the word count of Microsoft Word 2010, the word

processing program used to prepare this brief, excluding the Table of Contents,

Table of Authorities and certifications of counsel.



MICHELLE UZETA



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CERTIFICATE OF SERVICE

I hereby certify that on October 23, 2014, I have caused to be electronically filed

the foregoing with the Clerk of Courts using CM/ECF system which will send

notification of such filing to the following e-mail addresses:

Amy F. Robertson

Tim Fox

Civil Rights Education and Enforcement Center

104 Broadway, Suite 400

Denver, Colorado 80203

E-mail: [email protected]


Kevin W. Williams

Andrew Montoya

Colorado Cross-Disability Coalition Legal Program

655 Broadway, Suite 775

Denver, CO 80203



Julia Campins

Hillary Benham-Baker

Campins Benham-Baker, LLP

8 California Street, Suite 703

San Francisco, CA 94111



Bill Lann Lee

Lewis, Feinberg, Lee, Renaker & Jackson, P.C.

476 – 9th Street

Oakland, CA 94607



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Mark A. Knueve

Michael J. Ball

VORYS, SATER, SEYMOUR AND

PEASE LLP

52 E. Gay Street

P.O. Box 1008

Columbus, Ohio 43215

Tel: (614) 464-6387

Fax: (614) 719-4808

[email protected]

OF COUNSEL:

HOLLAND & HART LLP

555 Seventeenth Street, Suite 3200

Post Office Box 8749

Denver, CO 80201-8749

Tel: (303) 295-8749

Fax: (303) 975-5464

[email protected]



MICHELLE UZETA



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