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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
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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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i
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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ii
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
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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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1
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
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(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
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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.
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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
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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.”).
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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.
Dated: October 23, 2014 LAW OFFICES OF MICHELLE UZETA
By: /s/Michelle Uzeta
MICHELLE UZETA
Counsel for Amici Curiae
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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.
Dated: October 23, 2014 LAW OFFICES OF MICHELLE UZETA
By: /s/Michelle Uzeta
MICHELLE UZETA
Counsel for Amici Curiae
Appellate Case: 13-1377 Document: 01019329920 Date Filed: 10/23/2014 Page: 20
15
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]
E-mail: [email protected]
Kevin W. Williams
Andrew Montoya
Colorado Cross-Disability Coalition Legal Program
655 Broadway, Suite 775
Denver, CO 80203
E-mail: [email protected]
E-mail: [email protected]
Julia Campins
Hillary Benham-Baker
Campins Benham-Baker, LLP
8 California Street, Suite 703
San Francisco, CA 94111
E-mail: [email protected]
E-mail: [email protected]
Bill Lann Lee
Lewis, Feinberg, Lee, Renaker & Jackson, P.C.
476 – 9th Street
Oakland, CA 94607
E-mail: [email protected]
Appellate Case: 13-1377 Document: 01019329920 Date Filed: 10/23/2014 Page: 21
16
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
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
Dated: October 23, 2014 LAW OFFICES OF MICHELLE UZETA
By: /s/Michelle Uzeta
MICHELLE UZETA
Counsel for Amici Curiae
Appellate Case: 13-1377 Document: 01019329920 Date Filed: 10/23/2014 Page: 22