Attorney says retailers could avoid class actions by learning from Kohl's ADA ruling

By Denise Royal | May 18, 2017

Retailer Kohl’s won't face a class action lawsuit over wheelchair accessibility in its stores — and other retailers can learn from the decision, employment and labor attorney John. J. Michels Jr. told the Cook County Record

The lawsuit alleges Kohl’s violated the Americans with Disabilities Act (ADA) and the New York Human Rights Law by designing stores that can’t be navigated easily by people in wheelchairs. 

A ruling issued May 2 by a federal judge in the U.S. District Court for the Northern District of Illinois focused on how layouts at Kohl’s stores vary from location to location. U.S. District Judge Ronald A. Guzman determined plaintiffs would have too difficult of a time proving the retailer had a nationwide policy that discriminated against people in wheelchairs.

 “The moral of the story is retailers should have a national policy in regards to the Americans with Disabilities Act,” said Michels, a partner at Lewis Brisbois’ Chicago office. He and his firm were not involved in the Kohl’s case. 

 “But retailers should also give their individual stores the flexibility to set their displays as they see fit, because even when they are not in compliance with the company policy, it is almost impossible to establish a class action.”  

The ADA is a federal civil rights law enacted in 1992. It prohibits discrimination against people with disabilities in all areas of public life, including jobs, schools, transportation, shopping and all public and private places that are open to the general public. 

Guzman’s decision focused on Federal Rule of Civil Procedure 23 — the common experience among all people the class would encompass. 

“The ruling makes perfect sense under Procedure 23,” Michels said.  "The whole essence of a class action is that there is some kind of consistent policy or action being applied against a large group of people, so that you can take a small group of those people and decide the facts for everyone else. It failed in this case because the store layouts vary from store to store; the plaintiffs could not show that there was some sort of nationwide policy about diminishing access to people using wheelchairs. That was the basis for the denial of certification, which effectively kills the lawsuit."

Michels also said it’s important to note the rejection of the class action claim has no bearing on whether Kohl’s was actually in compliance with the ADA. 

“I always advise my clients to follow the law,” Michels said. "I want them to have policies that will keep them ADA compliant. 

"On the other hand, this is one of those circumstances where allowing your local folks a lot of control over how they organize their goods, how they set their store displays up and providing them with a lot of leeway can actual be a benefit to stores. I realize that's anathema to a lot of large companies — the idea of giving a lot of control to local store managers — but in cases like this it works to your advantage and can make you a much more difficult target for class action suits, on this basis.”

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Lewis Brisbois Bisgaard & Smith LLP U.S. District Court for the Northern District of Illinois

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