Citing a ruling handed down on Wednesday by Judge Rebecca Pennell in Niederquell v. Dosanjh Enterps.
The central question before the court is whether the defendants violated Title III of the Americans with Disabilities Act (ADA) by enforcing a footwear policy at its 7-Eleven location, despite Niederquell’s insistence that he cannot wear shoes due to a disability.
The court finds that the defendants did not breach the ADA. The footwear rule constitutes a legitimate health and safety measure that may be enforced notwithstanding Niederquell’s asserted disability. Additionally, the defendants have provided Niederquell with remote shopping options that sufficiently accommodate his situation and guarantee him full and equal access to the store’s products….
The defendants’ store carries foods and drinks packaged in glass, which are placed on shelves within areas accessible to customers. The store also runs a self-service section that sells hot foods and beverages. The hot items are baked in a 500-degree oven and then placed on heated trays in the self-service area at a temperature ranging from 165 to 175 degrees. Spills and breakages occur regularly, often multiple times during an eight-hour shift. In recent years, the store has faced a growing problem of discarded street drugs and drug paraphernalia left in public spaces within the store. Employees have also reported human feces, blood, urine and vomit on the floors.
Given the hazards associated with offering products on a self-service basis, the defendants’ store has maintained a policy requiring all customers to wear shoes while inside the store since at least April 2017….
The court, acting under the discovery order that bifurcated proceedings, assumes Niederquell is disabled and unable to wear shoes. And, as the parties agree, the defendants operate a place of public accommodation. Therefore, the question on summary judgment is whether there are genuine issues of material fact as to whether the defendants engaged in discriminatory conduct by improperly imposing entry criteria or by denying Niederquell’s request to modify the policy requiring patrons to wear shoes in the store.
In assessing the dispute, it is important to recognize that a company does not violate the ADA solely by setting eligibility criteria for customers or by denying a request for accommodations. Title III’s requirements permit exceptions. As acknowledged by the Department of Justice’s implementing regulations and federal precedent, a public accommodation may adopt eligibility criteria grounded in legitimate safety concerns. Likewise, a covered entity may deny a modification request based on legitimate safety concerns….
Mr. Niederquell contends that under Title III, the only safety concerns that may be considered are those affecting others. He asserts that because his inability to wear shoes inside the defendants’ store does not present a health or safety risk to others, the defendants cannot enforce their footwear policy merely because Niederquell poses a risk to himself….
Mr. Niederquell correctly notes that the language of Title III states that nothing in the statute requires a covered entity to adjust accommodations in a way that would create a “direct threat to the health or safety of others.” Yet, crucially, Title III does not state that a covered entity is prohibited from adjusting accommodations out of concerns for the health or safety of the disabled individual. This is a meaningful distinction. See Chevron v. Echazabal (2002) (In the context of Title I, Congress’s explicit concerns about threats to others do not bar an employer from adopting policies necessary to protect the disabled person themselves). Indeed, it strains credulity to believe that Congress intended Title III to empower disabled individuals to compel covered entities to permit them to engage in dangerous activities. Instead, in line with DOJ regulations and controlling case law, Title III permits a covered entity to adopt reasonable safety measures to safeguard both the disabled person and others….
Defendants emphasize that the goods sold in their store present hazards to all customers, including broken glass, spilled liquids, discarded drug paraphernalia and the resulting risks of burns, cuts or infection. These dangers are heightened if a customer is not wearing shoes. Given the realities of running a 7-Eleven, the defendants argue that not only is their footwear policy necessary, but Niederquell’s proposed accommodation—an exemption from the policy—is unreasonable….
There is no evidence that the defendants adopted their footwear policy based on stereotypes about people with disabilities. Indeed, part of the difficulty in this case is that Niederquell’s stated disability is unusual and likely not anticipated by the defendants when they adopted the policy. The court recognizes that stores face the threat of substantial tort liability from slip-and-fall incidents. This risk increases where, as here, there are self-service areas. It is entirely reasonable for a store to implement policies such as a footwear requirement to protect customers and minimize liability….
James B. King and Christopher J. Kerley (Evans, Craven & Lackie, P.S.) represent defendants.
