Disabled Shoppers Sue for Better Access at Macy’s

After years of getting stuck in aisles too narrow to navigate by wheelchair, of knocking over mannequins and of getting tangled in Macy’s clothing racks, Glen Vinton and Ellen Lieber are facing the retail giant in federal court this week in a battle over passage and profitability.

The two shoppers say that state and federal laws require Macy’s to make the sprawling Union Square store here more accessible, in part by widening aisles to fit Vinton’s electric wheelchair and Lieber’s three-wheeled electric scooter.

Macy’s contends that it needs every inch of available floor space to display its wares and stay competitive and that widening aisles is not possible without altering the fundamental nature of its business and losing money.

The California Retailers Assn. says that the industry supports Macy’s position in the trial, which is being closely watched by retailers and people with disabilities.

But activists in the disabled community point to other chains that they say provide easier access than Macy’s does, who acknowledge that the nation’s 52 million people with disabilities spend money too and who understand that making goods accessible can increase sales.

And they are quick to point out that access is an issue that is broader than just wheelchairs and canes. Parents with strollers, shoppers with bulky packages and the growing elderly population all appreciate wide thoroughfares.

Such walkways can be hard to find at Macy’s, where some areas between display racks are as narrow as 12 inches, according to witnesses testifying against the department store. In court Tuesday, one expert witness got stuck trying to ease an electric wheelchair through a mock-up of a Macy’s-sized aisle.

“Is this the point at which you give up and go to Nordstrom?” asked Chief Judge Marilyn Patel, who is presiding over the nonjury trial.

“Your Honor, this is the time you ask for a sales associate’s help,” responded David Copus, attorney for Macy’s.

To Vinton, who suffered a spinal cord injury in a diving accident 28 years ago, gaining access to what he views as an impenetrable department store is a serious matter.

“Once you’re in a wheelchair, the most difficult thing is asking for help,” he testified. “Every time you have to do that, you lose a little bit of your independence, and to me, independence is very, very important.”

Pressure for Nationwide Changes

The trial focuses on Macy’s Union Square store and its Men’s Store across the street in San Francisco’s flossiest shopping district. Another suit is pending against the Sacramento store, and a class-action suit filed last week takes on the other 83 Macy’s stores statewide.

All three cases were filed by Oakland-based Disability Rights Advocates, whose attorneys hope to pressure Federated Department Stores into improving access at its Macy’s shops and its other retail chains throughout the country. In recent years, Macys’s presence has greatly increased in California as its parent company acquired Bullocks, Broadway and I. Magnin.

“If the suit is won, it will affect not just Macy’s nationwide, it will affect all of the large retail establishments,” said Sid Wolinsky, the group’s director of litigation. “This is not an issue, for people with disabilities, of it being inconvenient or difficult to shop.

“The way Macy’s is set up, it’s as if there’s a sign at the front door that says people with disabilities are not welcome.”

Attorneys for Macy’s declined to comment on the litigation. But in a written opening statement filed in federal court they said they will show there is no “feasible means to provide access to all merchandise in the store without significantly reducing the available selling space in the stores and without altering the fundamental nature of Macy’s 52-year-old business in San Francisco.”

Bill Dombrowski, president of the California Retailers Assn., said the industry fully supports Macy’s position. As a department store with “moderate to upper-moderate price points,” he said, the store must offer a wide variety of merchandise.

“It’s pretty basic in retail,” Dombrowski said. “Inventory per square foot drives sales per square foot, which drives your profit.”

But activists in the disabled community argue that a variety of other stores have wide aisles and easier access. Sears is a favorite for ease of access, and so is Mervyn’s, said Deborah Kaplan, executive director of the Oakland-based World Institute on Disability.

Kmart stores have aisles that easily accommodate wheelchairs, canes and walkers, said Wolinsky, while Nordstrom is navigable and prides itself on customer service.

Dombrowski contends that Macy’s cannot be lumped in with such stores that have made accommodations. Most California Nordstrom stores were built after 1980, he said, unlike some Macy’s facilities that may be older and more difficult to reconfigure.

“And when you talk about Sears and Kmart and wide aisles, it’s a totally different kind of retail format,” Dombrowski said. “You’re looking at a discounter. . . . You’re confusing configuration for different retail formats.”

Global retail consultant Edward Leaman, president of Marketing Mind, said that Macy’s has “a lot of support and some bottom-line rationale” in its merchandising strategy. He describes the company’s efforts as putting “a compendium of product together, a merchandising selection that’s aimed at hitting a fractured market, all of whom shop in department stores.”

Caught in the Middle

The main issue for Macy’s, Leaman said, is that the store is caught between higher-end retailers like Nordstrom and more budget-minded merchants like Sears. Those two have the luxury of a clearer market and can narrow offerings, which leads to less clutter.

“It’s been a classic problem of a store like Macy’s,” Leaman said. “It believes it has a clear concept. It doesn’t have a clear identity with regards to the shopper’s mission. . . . The result is lack of communication, lack of cohesion and a floor that’s very full.”

As the West Coast headquarters store, Macy’s Union Square suffers even more because it tries to be everything to everyone, Leaman said. The suburban stores tend to be less cluttered, but still are fuller than some comparable Robinsons-May stores, for example, he said.

Negotiating her way through racks of women’s clothing Thursday, Nancy Young, a Pittsburgh-area bank teller, bemoaned the difficulty of navigating the Union Square store--and most department stores.

“You have a very hard time if you’re a mother with a stroller,” said the mother of three. “In every department store you cannot get through the aisles. . . . [Retailers] don’t need to put every piece of merchandise on the floor.”

Sarah Garcia, who has shopped at Macy’s in San Francisco, Phoenix and New York City, says she likes the broad selection and cluttered feel, but notes that access “is not a problem for me.”

Macy’s Cellar, the housewares department, “would really be a problem” for someone in a wheelchair, the Phoenix woman said. “It’s really crowded there. . . . It’s not accessible.”

‘Readily Achievable’ Becomes Issue

The 1990 Americans With Disabilities Act required that “readily achievable” steps be taken by January 1992 to remove barriers to access at public facilities. Newly constructed and renovated facilities were held to a higher standard, including a requirement for 36-inch aisles to allow for wheelchair maneuvering.

It is the “readily achievable” steps that are the “slippery” part of the law, said a spokeswoman for the federally funded Pacific Disability and Business Technical Assistance Center.

According to U.S. Department of Justice guidelines, the spokeswoman said, “businesses such as restaurants may need to rearrange tables and department stores may need to adjust their layout of racks and shelves in order to permit wheelchair access. But they’re not required to do so if it would result in a significant loss of selling or serving space.”

This is just what Macy’s attorneys noted in their opening statement--that it is “only obligated to make merchandise accessible to the extent it can do so without a significant loss of selling space.” And it is doing the best that it can to comply, attorneys said.

In a letter to a San Francisco newspaper this week, Kurtis J. Kearl, associate counsel for Federated Department Stores, said that Macy’s initiated a program to “identify and remove barriers to access” shortly after the disability act passed. He also noted that since 1995 Macy’s has spent nearly $3 million to comply with the law.

Peter Blanck, a law professor at the University of Iowa who studied the impact of the disability act on Sears stores, said he has never seen a study showing that shrinking floor space to widen aisles has hurt a retailer’s bottom line.

“Sears had made a tremendous investment in terms of access to stores and found that that investment paid off in terms of increased consumer demand from the disability market,” Blanck said. “Even though Madison Avenue focuses so much money on the teen market, the disability market far outweighs the teen market in terms of sales.”

A New York City research firm called Packaged Facts estimates that America’s 52 million people with disabilities represent nearly $800 billion in spending power--a figure that will reach more than $1 trillion by 2001.

The Department of Justice is responsible for enforcing the disability act but critics note that there are no “ADA police” who patrol for compliance. As a result, they say, unless a complaint is lodged with justice officials, a lawsuit is filed or a retailer decides to abide by the Americans With Disabilities Act voluntarily, compliance is spotty.

A Justice Department spokeswoman said the agency is investigating an estimated 1,300 complaints, about 9% of them against retailers. None of those complaints are against Macy’s stores.

Attorneys for Vinton and Lieber say that for years they have received a steady trickle of complaints, peaking during the Christmas season, about the difficulties of navigating Macy’s stores.

“There is hardly a store where, particularly around Christmastime, you won’t find some aisles and some departments that don’t comply,” said Wolinsky, whose group is seeking compliance and damages from the chain. “The reason we went after Macy’s is that . . . it happens by accident occasionally in other stores. It happens by policy at Macy’s.”

Vinton and Lieber, who suffers from rheumatoid arthritis, have complained through the years. In court this week, Lieber was asked if she ever found clear paths through the Macy’s store to merchandise that interested her.

“Once in a while,” she responded. “It depends on what you call a clear way. Sometimes there are dead ends and they narrow like a funnel. Sometimes you get stuck. . . . Sometimes I’ve had to call for someone to move something just because I couldn’t back out.

“It’s kind of embarrassing,” she said. “I feel like I’m making a spectacle of myself in some way. The ambulatory customers don’t get in that position.”