AVVO Q&A #11: Having an ADA policy that is not enforced is no defense. It results in a needless expenditure of attorney’s fees.

Christopher J. Weiss

Christopher J. Weiss

In a recent case against (Curtis v. Home Depot USA, Inc., 2015 WL 351437 (E.D. Cal. 2015)) the plaintiff’s complaint was that accessible route from the parking to the store’s front door was frequently blocked by merchandise displays. Before filing suit he complained to the store manager, but without effect. Home Depot’s defense was that the issue was moot because it had a policy against blocking the access aisle.

After the lawsuit was filed, the manager testified that the access aisles were not being blocked. The court observed that:

This complaint was made at a time when a Home Depot policy against obstruction was in place. However, whatever policy was in force did not prevent Curtis from experiencing non-temporary obstructions on numerous occasions, nor did the existence of the policy change results when Curtis complained to store managers.

The situation was not improved by the policy given to the store manager before his deposition. The Court held Home Depot’s voluntary cessation of obstructing the accessible route did not moot the controversy.

The result was that the plaintiff was granted summary judgment against Home Depot on his claim concerning the accessible route. Home Depot was able to avoid summary judgment on other claims, and even persuaded the judge that some claims should be dismissed. Those victories will probably not count for much at the end of the day.  In most ADA cases the largest expense of the case is attorney’s fees, and a defendant who loses on any substantial claim will end up paying the plaintiff’s attorneys. One need only read the opinion to realize those fees are bound to be substantial in this case.

Home Depot is typical of cases in which a business relies on its ADA policy as a defense to an ADA claim but finds that because the policy was not honored, its presence is more a liability than a benefit. The takeaway for business is simple. Having an ADA policy is just a start. To be an effective defense, the policy must be included in new employee training, understood by the employees and enforced by management. If it isn’t, the time spent creating it will have been wasted.

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