<i>Jancik v. Redbox Automated Retail</i>

Congress also enacted “rules of construction” to provide guidance in interpreting this catch-all rule. Among other things, Title III prohibits discrimination in the provision of goods, services and facilities in general, and to provide unequal goods, services and facilities to individuals with disabilities in particular. See generally , 42 U.S.C. ' 12182(b)(1)(A). In addition, Title III generally requires public accommodations to provide “auxiliary aids and services” “as may be necessary to ensure that individuals with disabilities are not treated differently than other individuals because of the absence of auxiliary aids and services,” unless doing so would “fundamentally alter” the nature of the good, service or facility being offered, “or would result in an undue burden.” 42 U.S.C. ' 12182(b)(2)(A)(iii).

How far do these rules extend? Is it possible to conclude that a retailer or other public accommodation fails to provide “full and equal enjoyment” to its goods and services unless it takes steps to ensure that the goods it provides are themselves accessible to individuals with disabilities? When must a retailer provide “auxiliary aids” to assist customers and member of the public use its goods and services? The federal District Court's decision in Jancik v. Redbox Automated Retail, LLC, 2014 U.S. Dist. LEXIS 67223 (C.D. Cal. 2014) explores these important questions.

Jancik v. Redbox and the 'Special Goods Exception'

In Jancik, plaintiff Francis Jancik obtained movies in DVD format from the ubiquitous “Redbox Retail Kiosks” ' self-service automated machines that allow customers to rent and return DVDs for home viewing. However, Mr. Jancik is deaf, and claimed that he could not fully enjoy Redbox DVDs because too few of them were closed-captioned. He asked Redbox Retail, the owner and operator of the kiosks, to accommodate his disability by providing a greater number of closed-captioned DVDs at its kiosks. Redbox Retail allegedly declined to do so. In response, Jancik filed a federal lawsuit against Redbox Retail and others, claiming in part that the company violated Title III of the ADA, as well as a number of related state laws, by failing to sell DVDs with closed captioning.

Jancik argued in his lawsuit that, by failing to rent closed-captioned videos from its kiosks, Redbox Retail failed to provide “full and equal access” to its goods and services as required by Title III. He also claimed that “by mandating the provision of auxiliary aids and services, the ADA requires businesses to sell goods that carry auxiliary aids and services to ensure that the physical access is meaningful, and that closed captioning is an example of such an auxiliary aid.” Id. 2014 U.S. Dist. LEXIS 67223 at *9.

The district court rejected most of Jancik's claims. Invoking what is typically referred to as the “special goods exception” to Title III, the court emphasized the important distinction between a public accommodation's obligation to provide “access to” its goods and services, which is generally required by Title III, and the alleged obligation to make the goods themselves accessible, which is not. The court explained that “The core meaning of Title III, plainly enough, is that the ADA requires equal access to places of public accommodation ' not equally valuable goods and services available at the public accommodation.” Id. at *9 (quoting Arizona Ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 671 (9th Cir. 2010). The court generally recognized that Title III does not obligate a covered public accommodation to “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities,” id . at *12 (quoting 28 C.F.R. ' 36.307(a)), and illustrated its holding as follows:

The common sense of the statute is that the content of the goods ' offered by a place of public accommodation is not regulated. A camera store may not refuse to sell cameras to a disabled person, but it is not required to stock cameras specially designed for such persons. Had Congress purposed to impose so enormous a burden on the retail sector of the economy and so vast a supervisory responsibility on the federal courts, we think it would have made its intention clearer and would at least have imposed some standards. It is hardly a feasible judicial function to decide whether shoe stores should sell single shoes to one-legged persons and if so at what price, or how many Braille books the Borders or Barnes and Noble bookstore chains should stock in each of their stores.

Id.' at *10-11 (quoting Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999)). Hence, the court held that “Title III does not apply to the goods in a retailer's inventory,” id. at *12.

But that did not end the district court's inquiry. The court went on to explain that a Department of Justice (DOJ) regulation, which generally recognizes the special goods exception, 28 C.F.R. ' 36.307(a), also obligates public accommodations to “order accessible or special goods at the request of an individual with disabilities, if, in the normal course of its operation, it makes special orders on request for unstocked goods, and if the accessible or special goods can be obtained from a supplier with whom the public accommodation customarily does business.” 28 C.F. R. ' 36.307(b). The court explained that:

For example, a clothing store would be required to order specially-sized clothing at the request of an individual with a disability, if it customarily makes special orders for clothing that it does not keep in stock, and if the clothing can be obtained from one of the store's customary suppliers. This does not mean that defendants can be liable under this prong of the regulation if they participate in any kind of special ordering. Rather, the Department of Justice intended for ' 36.307(b) to require special orders only of those particular types of goods for which a place of public accommodation normally makes special orders. For example, a book and recording store would not have to specially order Braille books if, in the normal course of its business, it only specially orders recordings and not books.

Id. at *14-15 (citations and quotations omitted).

Applying this regulation to Mr. Jancik's case, the district court held that it could not “deny the ADA claim wholesale,” because it remained to be determined whether and to what extent “Redbox Retail normally takes special orders for DVDs and whether such goods can be obtained from its suppliers ' .” Id. at *15.

Comments

Jancik is an interesting decision in a number of respects. First and foremost, it properly applies the special goods exception by recognizing that the ADA's broad and salutary mandates typically will not require retailers to provide “accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.” As the DOJ has recognized in the commentary accompanying its original Title III regulations in 1991, the goal of the Act is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided. See 56 Fed. Reg. 35,544, 35,571 (1991). In this regard, Jancik's holding is in accord with a number of federal circuit court decisions, e.g., Arizona ex rel. Goddard v. Harkins Amusement , 603 F. 3d 666, 673 (9th Cir. 2010); Doe, 179 F.3d at 560; McNeil v. Time Ins. Co. , 205F.3d 179, 187 (5th Cir. 2000); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

Second, Jancik recognizes that the special goods exception does not excuse public accommodations from complying with Title III's general and specific prohibitions. As noted above, public accommodations can violate the Act by providing goods, services and facilities that are not equal to that afforded to other individuals. This rule finds special application in the context of the special goods exception, at least to the extent that a retailer or other public accommodation accepts special orders, and accessible or special goods can be obtained from their traditional suppliers.

Third, Jancik does not fully explore the relationship between the special goods exception and the obligation to provide auxiliary aids and services. The duty to provide auxiliary aids is grounded in the general obligation of public accommodations to “effectively communicate” with disabled customers, clients, patients and participants, as well as with their companions. 28 C.F.R. ' 36.303(c). Hence, covered public accommodations must provide auxiliary aids and services so that individuals with disabilities are not “excluded, denied services, segregated or otherwise treated differently than other individuals” unless doing so would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered, or would result in an undue burden.” 42 U.S.C. ' 12182(b)(2)(A)(iii). The Act defines “auxiliary aids and services” to include “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;” “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;” “acquisition or modification of equipment or devices”; and “other similar services and actions.” 42 U.S.C. ' 12103(1)(A)-(D).

How does the auxiliary aids and services standard apply, for example, to the written instructions printed on the packaging of products sold in a grocery store? An individual who is blind might argue that the store must provide an auxiliary aid by providing the instructions in Braille or in audio format, reasoning that he or she could not fully enjoy the packaged product unless the instructions are “accessible.” Providing an individual with vision impairments a package without Braille instructions, so the argument goes, is equivalent to providing an individual without a vision impairment a package with a blank label. The grocery store, on the other hand, might invoke the special goods exception and argue that it is not required to alter or change the contents of the packages it sells.

Jancik provides some guidance on this important question by emphasizing the distinction “between access to a good and the good itself.” 2014 U.S. Dist. LEXIS 67223 at *10. Under Jancik , the auxiliary aids standard should not require a public accommodation to modify the content of the goods it sells. Instead, the auxiliary aids standard might only require that public accommodations effectively communicate existing content so that it can be perceived by individuals with disabilities.

At least one federal appellate court has adopted this approach. In Arizona ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666 (9th Cir. 2010), the Ninth Circuit was asked to determine whether Title III required the Harkins theater chain to provide closed captioning for movies displayed in its theaters. Harkins argued that Title III only required it to provide equal access to its theaters, and relied on the special goods exception to argue that Title III did not require it to modify its services so that deaf patrons could more fully enjoy displayed movies. The Ninth Circuit rejected Harkins' argument by noting that the Title III obligation to provide auxiliary aids and services “limits [the] general rule that public accommodations do not have to provide different services for the disabled.” Id. at 671-72. The panel went on to explain that, “[b]y its very definition, an auxiliary aid or service is an additional and different service that establishments must offer the disabled.”

That being said, the distinction Jancik recognizes between the special goods exception and the auxiliary aids standard is difficult to apply in practice, and may fray badly at the edges. For example, it is one thing to suggest that a grocery store clerk might assist a customer with a vision disability by reading out loud the written instructions on the packaging of a product in which the customer is interested. That may very well be an effective auxiliary aid designed to “make visually delivered materials available to individuals with visual impairments.” However, it is much less certain that the grocery store would have the same obligation to provide auxiliary aids once the customer leaves the store.

Conclusion

The district court's opinion in Jancik is not the last word on the relationship between the special goods exception and Title III's auxiliary aids and services standard. Indeed, Jancik is on appeal to the Ninth Circuit. Nonetheless, the district court's opinion reminds retailers and other public accommodations that Title III applies not only to facilities, but to their sales practices and other dealings with the public.

Robert A. Naeve is a partner at Jones Day in the firm's Irvine, CA, office. He can be reached at [email protected].

Title III of the Americans with Disabilities Act, 42 U.S.C. ” 12181-12189 (ADA or Title III) prohibits retailers and other businesses that transact business with the public from “discriminating” against individuals with disabilities. The statute is broadly worded to prohibit a wide range of discriminatory practices, and has been the subject of literally thousands of individual and class action lawsuits seeking to change how the business community deals with individuals with disabilities. Congress enacted the ADA “to remedy widespread discrimination against disabled individuals.” PGA Tour, Inc. v. Martin , 532 U.S. 661, 674 (2001). The salutary effect of the ADA cannot be understated. However, many business owners and operators might, at the same time, rightly ask whether there are any limits to the Act's reach. Jancik v. Redbox Automated Retail, LLC, 2014 U.S. Dist. LEXIS 67223 (May 14, 2014) explores one such limit ' the so-called “special products exception.”

Overview of Title III of the ADA

We begin with first principles. As is relevant here, Title III prohibits discrimination by public accommodations generally, by providing that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. ' 12182(a). The term “public accommodation” is defined to include most retail and service establishments and other businesses that are open or provide services to the public. 42 U.S.C. ' 12182(7)(A)-(L).

Congress also enacted “rules of construction” to provide guidance in interpreting this catch-all rule. Among other things, Title III prohibits discrimination in the provision of goods, services and facilities in general, and to provide unequal goods, services and facilities to individuals with disabilities in particular. See generally , 42 U.S.C. ' 12182(b)(1)(A). In addition, Title III generally requires public accommodations to provide “auxiliary aids and services” “as may be necessary to ensure that individuals with disabilities are not treated differently than other individuals because of the absence of auxiliary aids and services,” unless doing so would “fundamentally alter” the nature of the good, service or facility being offered, “or would result in an undue burden.” 42 U.S.C. ' 12182(b)(2)(A)(iii).

How far do these rules extend? Is it possible to conclude that a retailer or other public accommodation fails to provide “full and equal enjoyment” to its goods and services unless it takes steps to ensure that the goods it provides are themselves accessible to individuals with disabilities? When must a retailer provide “auxiliary aids” to assist customers and member of the public use its goods and services? The federal District Court's decision in Jancik v. Redbox Automated Retail, LLC, 2014 U.S. Dist. LEXIS 67223 (C.D. Cal. 2014) explores these important questions.

Jancik v. Redbox and the 'Special Goods Exception'

In Jancik, plaintiff Francis Jancik obtained movies in DVD format from the ubiquitous “Redbox Retail Kiosks” ' self-service automated machines that allow customers to rent and return DVDs for home viewing. However, Mr. Jancik is deaf, and claimed that he could not fully enjoy Redbox DVDs because too few of them were closed-captioned. He asked Redbox Retail, the owner and operator of the kiosks, to accommodate his disability by providing a greater number of closed-captioned DVDs at its kiosks. Redbox Retail allegedly declined to do so. In response, Jancik filed a federal lawsuit against Redbox Retail and others, claiming in part that the company violated Title III of the ADA, as well as a number of related state laws, by failing to sell DVDs with closed captioning.

Jancik argued in his lawsuit that, by failing to rent closed-captioned videos from its kiosks, Redbox Retail failed to provide “full and equal access” to its goods and services as required by Title III. He also claimed that “by mandating the provision of auxiliary aids and services, the ADA requires businesses to sell goods that carry auxiliary aids and services to ensure that the physical access is meaningful, and that closed captioning is an example of such an auxiliary aid.” Id. 2014 U.S. Dist. LEXIS 67223 at *9.

The district court rejected most of Jancik's claims. Invoking what is typically referred to as the “special goods exception” to Title III, the court emphasized the important distinction between a public accommodation's obligation to provide “access to” its goods and services, which is generally required by Title III, and the alleged obligation to make the goods themselves accessible, which is not. The court explained that “The core meaning of Title III, plainly enough, is that the ADA requires equal access to places of public accommodation ' not equally valuable goods and services available at the public accommodation.” Id . at *9 (quoting Arizona Ex rel. Goddard v. Harkins Amusement Enters., Inc. , 603 F.3d 666, 671 (9th Cir. 2010). The court generally recognized that Title III does not obligate a covered public accommodation to “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities,” id . at *12 (quoting 28 C.F.R. ' 36.307(a)), and illustrated its holding as follows:

The common sense of the statute is that the content of the goods ' offered by a place of public accommodation is not regulated. A camera store may not refuse to sell cameras to a disabled person, but it is not required to stock cameras specially designed for such persons. Had Congress purposed to impose so enormous a burden on the retail sector of the economy and so vast a supervisory responsibility on the federal courts, we think it would have made its intention clearer and would at least have imposed some standards. It is hardly a feasible judicial function to decide whether shoe stores should sell single shoes to one-legged persons and if so at what price, or how many Braille books the Borders or Barnes and Noble bookstore chains should stock in each of their stores.

Id. ' at *10-11 (quoting Doe v. Mutual of Omaha Ins. Co. , 179 F.3d 557, 560 (7th Cir. 1999)). Hence, the court held that “Title III does not apply to the goods in a retailer's inventory,” id. at *12.

But that did not end the district court's inquiry. The court went on to explain that a Department of Justice (DOJ) regulation, which generally recognizes the special goods exception, 28 C.F.R. ' 36.307(a), also obligates public accommodations to “order accessible or special goods at the request of an individual with disabilities, if, in the normal course of its operation, it makes special orders on request for unstocked goods, and if the accessible or special goods can be obtained from a supplier with whom the public accommodation customarily does business.” 28 C.F. R. ' 36.307(b). The court explained that:

For example, a clothing store would be required to order specially-sized clothing at the request of an individual with a disability, if it customarily makes special orders for clothing that it does not keep in stock, and if the clothing can be obtained from one of the store's customary suppliers. This does not mean that defendants can be liable under this prong of the regulation if they participate in any kind of special ordering. Rather, the Department of Justice intended for ' 36.307(b) to require special orders only of those particular types of goods for which a place of public accommodation normally makes special orders. For example, a book and recording store would not have to specially order Braille books if, in the normal course of its business, it only specially orders recordings and not books.

Id. at *14-15 (citations and quotations omitted).

Applying this regulation to Mr. Jancik's case, the district court held that it could not “deny the ADA claim wholesale,” because it remained to be determined whether and to what extent “Redbox Retail normally takes special orders for DVDs and whether such goods can be obtained from its suppliers ' .” Id. at *15.

Comments

Jancik is an interesting decision in a number of respects. First and foremost, it properly applies the special goods exception by recognizing that the ADA's broad and salutary mandates typically will not require retailers to provide “accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.” As the DOJ has recognized in the commentary accompanying its original Title III regulations in 1991, the goal of the Act is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided. See 56 Fed. Reg. 35,544, 35,571 (1991). In this regard, Jancik's holding is in accord with a number of federal circuit court decisions, e.g., Arizona ex rel. Goddard v. Harkins Amusement , 603 F. 3d 666, 673 (9th Cir. 2010); Doe, 179 F.3d at 560; McNeil v. Time Ins. Co. , 205F.3d 179, 187 (5th Cir. 2000); Weyer v. Twentieth Century Fox Film Corp. , 198 F.3d 1104, 1114 (9th Cir. 2000).

Second, Jancik recognizes that the special goods exception does not excuse public accommodations from complying with Title III's general and specific prohibitions. As noted above, public accommodations can violate the Act by providing goods, services and facilities that are not equal to that afforded to other individuals. This rule finds special application in the context of the special goods exception, at least to the extent that a retailer or other public accommodation accepts special orders, and accessible or special goods can be obtained from their traditional suppliers.

Third, Jancik does not fully explore the relationship between the special goods exception and the obligation to provide auxiliary aids and services. The duty to provide auxiliary aids is grounded in the general obligation of public accommodations to “effectively communicate” with disabled customers, clients, patients and participants, as well as with their companions. 28 C.F.R. ' 36.303(c). Hence, covered public accommodations must provide auxiliary aids and services so that individuals with disabilities are not “excluded, denied services, segregated or otherwise treated differently than other individuals” unless doing so would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered, or would result in an undue burden.” 42 U.S.C. ' 12182(b)(2)(A)(iii). The Act defines “auxiliary aids and services” to include “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;” “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;” “acquisition or modification of equipment or devices”; and “other similar services and actions.” 42 U.S.C. ' 12103(1)(A)-(D).

How does the auxiliary aids and services standard apply, for example, to the written instructions printed on the packaging of products sold in a grocery store? An individual who is blind might argue that the store must provide an auxiliary aid by providing the instructions in Braille or in audio format, reasoning that he or she could not fully enjoy the packaged product unless the instructions are “accessible.” Providing an individual with vision impairments a package without Braille instructions, so the argument goes, is equivalent to providing an individual without a vision impairment a package with a blank label. The grocery store, on the other hand, might invoke the special goods exception and argue that it is not required to alter or change the contents of the packages it sells.

Jancik provides some guidance on this important question by emphasizing the distinction “between access to a good and the good itself.” 2014 U.S. Dist. LEXIS 67223 at *10. Under Jancik , the auxiliary aids standard should not require a public accommodation to modify the content of the goods it sells. Instead, the auxiliary aids standard might only require that public accommodations effectively communicate existing content so that it can be perceived by individuals with disabilities.

At least one federal appellate court has adopted this approach. In Arizona ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666 (9th Cir. 2010), the Ninth Circuit was asked to determine whether Title III required the Harkins theater chain to provide closed captioning for movies displayed in its theaters. Harkins argued that Title III only required it to provide equal access to its theaters, and relied on the special goods exception to argue that Title III did not require it to modify its services so that deaf patrons could more fully enjoy displayed movies. The Ninth Circuit rejected Harkins' argument by noting that the Title III obligation to provide auxiliary aids and services “limits [the] general rule that public accommodations do not have to provide different services for the disabled.” Id. at 671-72. The panel went on to explain that, “[b]y its very definition, an auxiliary aid or service is an additional and different service that establishments must offer the disabled.”

That being said, the distinction Jancik recognizes between the special goods exception and the auxiliary aids standard is difficult to apply in practice, and may fray badly at the edges. For example, it is one thing to suggest that a grocery store clerk might assist a customer with a vision disability by reading out loud the written instructions on the packaging of a product in which the customer is interested. That may very well be an effective auxiliary aid designed to “make visually delivered materials available to individuals with visual impairments.” However, it is much less certain that the grocery store would have the same obligation to provide auxiliary aids once the customer leaves the store.

Conclusion

The district court's opinion in Jancik is not the last word on the relationship between the special goods exception and Title III's auxiliary aids and services standard. Indeed, Jancik is on appeal to the Ninth Circuit. Nonetheless, the district court's opinion reminds retailers and other public accommodations that Title III applies not only to facilities, but to their sales practices and other dealings with the public.

Robert A. Naeve is a partner at Jones Day in the firm's Irvine, CA, office. He can be reached at [email protected].