Access to Aisles at Mervyn’s Is Focus of Court Case

Sharon Pliska never shops at Mervyn’s stores alone. The Bakersfield resident can’t navigate Mervyn’s narrow aisles in her wheelchair without getting stuck, she said, or blocked off by shelves or fallen clothes that she has accidentally knocked off the racks.

Usually she enlists her 11-year-old daughter to help clear her path, or go to the register and pay for her goods while she waits in the main aisle. Sometimes, Pliska said, she can’t enter some of the store’s departments at all because the clothes racks are so tightly packed.

“It’s a very frustrating experience,” she said.

Pliska told her story last week before an Alameda County Superior Court judge as part of a lawsuit filed by a Sacramento advocacy group alleging that Mervyn’s department stores in California discriminate against disabled shoppers by not giving them enough room to maneuver.

Mervyn’s, a unit of Minneapolis-based Target Corp., denies the allegations by the group, Californians for Disability Rights.

Its suit is the first legal challenge to California’s disabled rights law, the Unruh Civil Rights Act, that has made it to trial, attorneys say. The Alameda County Court case, which is expected to last for several weeks, centers on what constitutes “full and equal access” to disabled shoppers under state law.

Earlier legal challenges against Macy’s and Robinsons-May stores in California federal courts were settled out of court, with the retailers agreeing to widen the space between racks to a minimum of 32 inches, which space advocacy groups say is necessary for wheelchairs, scooters and walkers to squeeze through.

Mervyn’s has spent $5.5 million in recent years updating its 242 stores nationwide to make them comply with the federal Americans with Disabilities Act. And the chain said it is working on removing more space barriers as part of a $100-million renovation that is underway.

“We think our system works,” said Harold McElhinny, Mervyn’s San Francisco attorney.

Taking more clothing racks off the floor to create wider aisles would be an unnecessary burden, he said, costing the chain’s 125 California stores $40 million a year in lost sales.

And making these changes, he said, would result in the closure of many of the chain’s under-performing stores.

Attorney Sid Wolinsky, who represents the disability group in the Mervyn’s case, said the retailer is one of the few chains that steadfastly refuses to widen pathways between racks, often leaving little more than one foot between racks, hardly enough room for people to walk through, let alone roll through in a 25-inch wide wheelchair.

“Businesses are shaping up in California,” said Wolinsky. “Mervyn’s is a big, bad holdout.”

The advocacy group filed its suit in state court against Mervyn’s after losing a similar legal challenge against the retailer in U.S. District Court in Northern California.

Mervyn’s wants to accommodate its disabled customers and tries to provide the recommended space “whenever it can,” McElhinny said. But the disability advocates “have never suggested a change that is both practical and cost effective,” he said.

Although the Americans with Disabilities Act spells out requirements for bathrooms, parking lots and ramps, it doesn’t specify how much space disabled shoppers need to navigate between merchandise in a store’s departments.

Several years ago, the California disability group filed suit in U.S. District Court in Northern California against a Macy’s store in San Francisco. The court ultimately ruled that the retailer had to provide at least a 32-inch pathway to 90% of the merchandise in its stores.

As a result, the advocacy group reached an agreement in principle with Macy’s that would soon require all of its California stores to meet that space requirement.

Retailer Robinsons-May, sued by a disabled shopper in U.S. District Court in Los Angeles, reached a similar settlement several months ago, agreeing to establish a 32-inch space buffer in all of its California stores.

Meanwhile, Mervyn’s has been fighting charges of discrimination since 1999, when the disability group first filed suit in U.S. District Court in Northern California accusing the retailer of violating ADA and state unfair business practices statutes.

After a judge ruled that federal laws do not contain specific spacing standards for movable fixtures, Wolinsky took the case to state court last year.

“We thought that when we won the Macy’s case the issue had been solved,” Wolinsky said. “But Mervyn’s adamantly refused to make these changes. I don’t view this as law reform, it’s law enforcement.”