Massachusetts is one of many states which have adopted legislation, commonly known as a “ban the box” law, prohibiting public and private employers from requesting criminal record information in a prospective employee’s “initial written employment application” and limiting the type and scope of questions an employer may ask a candidate following receipt of an “initial written employment application.” Massachusetts Attorney General Maura Healey announced that her office has settled with four businesses and issued warning letters to 17 others for violations of Massachusetts’s ban the box law, marking the first enforcement efforts by the Massachusetts Attorney General’s Office. …
In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
On March 5, 2015, the United States Court of Appeals for the Ninth Circuit issued an opinion in Chapman v. Pier 1 Imports (U.S.) Inc., 2015 WL 925586 (9th Cir. Mar. 5, 2015) that provides retailers with useful insight into how to manage the issue of “temporary obstructions” to accessible routes under Title III of the Americans with Disabilities Act (“Title III”).
Title III’s overarching obligations that retailers provide individuals with disabilities with full and equal enjoyment of their goods and services and engage in ongoing barrier removal include the requirement to provide and maintain accessible routes (generally, a minimum of 36 inches in width) into the store, to merchandise, and to locations such as check-out and service counters, restrooms, fitting rooms, and other amenities. Title III’s implementing regulations and related Technical Assistance Manuals clarify that isolated and temporary obstructions to the accessible route do not violate the ADA, if infrequent and promptly removed.
Here, Chapman alleged that Pier 1 violated Title III and related state accessibility laws, by, among other things, repeatedly obstructing its aisles with merchandise, furniture, display racks, and ladders. Chapman encountered such obstructions on eleven separate visits to a Pier 1 store. In upholding the district court’s finding of summary judgment for Chapman on the obstructed aisle issue, the Ninth Circuit rejected Pier 1’s argument that these allegations should be excused as mere temporary obstructions and thus, did not violate the law.
The Ninth Circuit’s reasoning suggests helpful guidance for retailers looking to avoid similar lawsuits:
- Adopting policies governing the placement of merchandise to maintain accessible routes, and practices and procedures to help implement those policies (g., regular walks of the store with a tape measure) do not insulate a retailer from liability if, the policies, practices, and procedures are – as in Chapman – ineffective;
- An obstruction is unlikely to be deemed temporary, if retailers place the onus upon the customer to request its removal;
- An obstruction will not necessarily be deemed temporary just because it was created by another patron and not the retailer itself – the retailer has an obligation to maintain its accessible routes;
- Even if individual instances of obstruction when viewed separately might be temporary, a volume of “temporary obstructions” can become sufficiently prevalent to constitute repeated and persistent failures that were not promptly remedied and, thus constitute a violation of Title III; and
- True temporary obstructions – those that are isolated and transitory in nature – g., maintenance equipment being actively used to make repairs or items currently involved in re-stocking merchandise – remain subject to Title III’s exemption to the accessible route requirements.
For additional information please contact Joshua A. Stein.