Class action disability discrimination cases can be particularly difficult. While there is little question of whether a particular individual is in a protected group in a typical case involving race, gender or age, the question of whether an individual is disabled can be more complex. Further, questions may arise regarding the extent of a disability, whether it requires accommodation, the appropriate type of accommodation and how the claimed conduct relates to the disability.
The U.S. Court of Appeals for the Third Circuit recently addressed these issues, along with others, in a case involving a claim of public accommodations under Title III of the Americans with Disabilities Act (ADA). In Allen v. Ollie's Bargain Outlet, Inc., Case No. 21-2121 (3d Cir. 2022), the plaintiffs were individuals with mobility disabilities who claimed that Ollie's, a discount chain with over 400 stores, failed to accommodate them. The core of their contention was that store aisles were frequently filled with merchandise, limiting access by those in wheelchairs.
The plaintiffs moved the district court to certify a nationwide class of "all persons with qualified mobility disabilities" who "experienced access barriers in interior paths of travel." They relied on a series of arguments based on claimed statistics, extrapolation of data, company policies and customer complaints, which will be discussed below. The district court certified the class.
On appeal, the Third Circuit reversed on multiple grounds. In a lengthy decision, it first reviewed the evidence relied on by the district court. It found that the plaintiffs had failed to even demonstrate numerosity. Because they could not identify specific class members, they were required to produce "evidence specific to the products, problems, parties and geographic areas" within the class definition. In this regard, the plaintiffs relied on census data regarding the number of individuals with mobility issues. However, the number of those in wheelchairs – the focus of the complaint – was far smaller. The plaintiffs did not introduce evidence of the number of people in wheelchairs who actually shopped at Ollie's. Further, some individuals, such as certain morbidly obese persons, might not qualify as disabled under the ADA.
The plaintiffs, the court found, similarly failed to show how many individuals in wheelchairs did, in fact, encounter problems shopping at the stores. Some of the "complaints" submitted were actually complimentary of the arrangement of the stores and the helpfulness of staff toward those with disabilities. In this light, the majority saw no need to address whether the unauthenticated complaints were even admissible.
The court also found further questions relating primarily to the issue of commonality. The plaintiffs relied on company "visual standards" to establish a common policy, but the company's policy was also "to retrieve goods for patrons that have trouble accessing them." It found little evidence that the policies were connected to the alleged harm. The court observed that "[s]titching together a corporate-wide class requires more." It also noted problems with the overbreadth and vagueness of the description of the claimed misconduct. The arguments made by the plaintiffs appeared to relate to merchandise being placed in aisles but the class definition included a range of potential barriers.
Finding that the class certification was an abuse of discretion, the Third Circuit reversed and remanded the matter.
The Allen case is notable for several reasons. First, the decision is worthwhile because of its relatively rare consideration of numerosity in addition to the element of commonality. Second, the plaintiffs seemed to rely on several sources of evidence to bolster their claims but the court, through rigorous analysis, found that none were appropriate. Third, although the majority saw no need to address whether unauthenticated customer complaints were admissible as hearsay, the concurrence forcefully argued that the Supreme Court's decision in Dukes, Federal Rule of Evidence 1101, and the better-reasoned authority demand that certification decisions be based on admissible evidence.
The bottom line: Class actions based on disability discrimination under the ADA present particularly difficult issues that cannot be resolved by resorting to generalities.
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