A disability rights class action brought against Kohl’s more than two and a half years ago is on the shelf after a federal judge in Chicago denied class certification, saying, because Kohl’s store layouts vary from store to store, plaintiffs would have too difficult of a time proving the retailer had in place a nationwide policy diminishing access to people using wheelchairs.

In an opinion issued May 2, U.S. District Judge Ronald A. Guzman denied the motion for class certification in a complaint that originated in October 2014 when the Equal Rights Center and six individual plaintiffs sued Kohl’s Corporation, alleging the retailer violated the Americans with Disabilities Act and the New York Human Rights Law by designing stores in ways that “prevent individuals with disabilities from navigating their stores with the same ease and dignity as customers without disabilities,” according to the original complaint.

Last year, Guzman rejected an attempt by Kohl’s to strike class allegations and dismiss the suit, which, among other allegations, said side aisles in the retail chain’s 1,100 U.S. stores were too narrow, its counters too high and its merchandise displays too difficult for those who need wheelchairs or suffer from other disabilities to browse through with ease.

But Guzman did allow the retailer to argue the plaintiffs fail to demonstrate a legally allowable class of plaintiffs exists by filing an amended complaint satisfying that so-called “ascertainability” requirement. Kohl’s again tried to strike allegations and dismiss the count alleging ADA violations. Guzman denied that motion and suspended consideration of the class certification to allow the parties to negotiate a settlement. When that proved unsuccessful, Guzman again considered certification.

The plaintiffs proposed the class include anyone who shopped at any Kohl’s in the 12 months prior to the initial filing while using “wheeled mobility devices” and encountered aisles narrower than 36 inches.

Guzman’s analysis focused on Federal Rule of Civil Procedure 23, primarily the commonality of shopping experience among all people the class would encompass. He wrote the “plaintiffs acknowledge that Kohl’s written Shopability Standards, ‘if enforced, would most likely have avoided this lawsuit altogether.’ Thus, Plaintiffs challenge not a company-wide policy but daily individual decisions by relevant Kohl’s employees in each particular store as to how wide aisles would be and where merchandise racks would be placed.”

The complaint, Guzman noted, also is weak in naming only 12 shoppers who reported accessibility issues at 17 stores, and includes admission that obstructions could differ from store to store and even by the day a shopper may visit — insufficient for demonstrating a nationwide policy intended to cause discrimination.

Likewise, Guzman wrote the complaint failed to satisfy a numerosity requirement, saying the nationwide statistics used to suggest the number of shoppers affected are weakened because Kohl’s doesn’t require every store employ an identical layout.

“Simply because a store may have one or more aisles that are less than 36 inches does not necessarily lead to the conclusion that it was inaccessible to a person using a wheeled mobility device,” Guzman wrote.

Finally, Guzman took issue with the plaintiffs’ request for an injunction requiring Kohl’s to enforce its own corporate policies and comply with ADA guidelines.

“Such injunctive relief simply directs Kohl’s to obey the law,” Guzman wrote. “These types of injunctions are viewed with caution given the possibility for overbreadth and vagueness. … Plaintiffs do not indicate how an injunction containing such broad and non-specific language could be enforced given that the layout of over 1,100 stores could and do vary on a daily basis.”

Kohl’s is represented in the case by attorneys from the firm of Baker & Hostetler LLP, with offices in Chicago and Orlando, Fla.

The ERC and six individual plaintiffs are represented by attorneys from Robbins Salomon & Patt Ltd., of Chicago, and the Washington Lawyers’ Committee for Civil Rights, of Washington, D.C.

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Baker and Hostetler
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Chicago, IL - 60606

U.S. District Court for the Northern District of Illinois
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Chicago, IL - 60604

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