No Shoes, No Service, Even if You Claim a Disability

From Wednesday’s decision by Judge Rebecca Pennell in Niederquell v. Dosanjh Enterps.:

The primary issue before the Court is whether Defendants violated Title III of the Americans with Disabilities Act (ADA) by enforcing a footwear policy at its 7-Eleven store, despite Mr. Niederquell’s protestation that he has an impairment preventing him from wearing shoes.

The Court concludes Defendants have not violated the ADA. Defendants’ footwear policy is a legitimate health and safety measure that may be imposed despite Mr. Niederquell’s alleged disability. Furthermore, Defendants have offered Mr. Niederquell remote purchasing options that adequately accommodate Mr. Niederquell’s circumstances and afford him full and equal access to Defendants’ goods….

Defendants’ store sells food and beverage products packaged in glass, which are stocked on shelves in customer accessible areas.  The store also operates a self-service area, selling hot food and beverages.  The hot food items are prepared in a 500-degree oven and then put on heated trays in the self-service area at a temperature set between 165 and 175 degrees.  Spillage and breakage occurs regularly, often multiple times in an eight-hour shift.  Over recent years, the store has had an increasing problem with discarded street drugs and drug paraphernalia being left in public areas of the store. Store employees have also reported the presence of human feces, blood, urine and vomit on the floors.

Given the hazards posed by offering products on a self-serve basis, Defendants’ store maintains a policy requiring all customers to wear shoes while inside the store since at least April of 2017….

The Court assumes, pursuant to the order bifurcating discovery, that Mr. Niederquell is disabled such that he is unable to wear shoes. And, as the parties agree, Defendants operate a place of public accommodation. So, the question on summary judgment is whether there are questions of fact as to whether Defendants engaged in discrimination by improperly imposing eligibility criteria for entry into the 7-Eleven store or by improperly refusing Mr. Niederquell’s request for a modification of its policy requiring in-store patrons to wear shoes.

In analyzing the parties’ dispute, it is important to note that an entity does not violate the ADA merely by imposing eligibility criteria on customers or by refusing a customer’s request for accommodation. Title III’s requirements are subject to exceptions. As recognized by the Department of Justice’s implementing regulations and federal case law, a place of public accommodation may adopt eligibility criteria based on legitimate safety concerns. In addition, a covered entity may deny a request to modify its policies and procedures based on legitimate safety concerns….

Mr. Niederquell argues the only safety concerns that may be considered under Title III are ones posed to others. Mr. Niederquell claims that because his inability to wear shoes inside Defendants’ store does not pose a health or safety risk to others, Defendants cannot enforce their footwear policy simply because Mr. Niederquell poses a risk to himself….

Mr. Niederquell correctly notes the language in Title III specifies that nothing in the statute requires a covered entity to make adjustments to their accommodations that would pose “a direct threat to the health or safety of others.” But, importantly, Title III does not say a covered entity is prohibited from adjusting their accommodations out of concerns for the health or safety of the disabled person. This is a distinction with a difference. See Chevron v. Echazabal (2002) (In the context of Title I, Congress’s explicit concerns about threats to others does not prohibit an employer from adopting policies necessary to protect the disabled person themselves). Indeed, it strains credulity to think that Congress intended Title III to empower disabled persons to force covered entities to allow them to undertake dangerous activities. Instead, consistent with DOJ regulations and governing case law, Title III allows a covered entity to adopt legitimate safety measures to account for the protection of both the disabled person and others….

Defendants point out the goods sold by their store pose hazards to all patrons, including broken glass, spilled liquids, discarded drug paraphernalia and the resulting risks of burns or lacerations or infection. These perils are increased if a customer is not wearing shoes. Given the realities of operating a 7-Eleven store, Defendants argue not only that their footwear policy is necessary, but also that Mr. Niederquell’s requested accommodation—exemption from the policy—is unreasonable….

There is no indication Defendants adopted their footwear policy based on stereotypes about people with disabilities. Indeed, part of the problem in this case is Mr. Niederquell’s professed disability is unusual and undoubtedly not anticipated by Defendants when they adopted the policy. The Court recognizes stores face the threat of significant tort liability as a result of slip-and-fall incidents. This risk is increased where, as here, a store offers self-service areas. It is entirely reasonable for a store to adopt policies, such as a footwear requirement, to protect the safety of customers and reduce the risk of liability….

James B. King and Christopher J. Kerley (Evans, Craven & Lackie, P.S.) represent defendants.