Last week, in Best Buy. Wussed Way., I promised I’d write about the provisions of the Americans with Disabilities Act, and how they might apply to (at least some) barefooters.
Let me do that now.
Let me start off by saying that it sure looks to me as if the ADA would apply to those who go barefoot due to medical issues. It meets the definition of disability (as far as I can tell, even if it is not an obvious disability) and a reasonable accommodation is really trivial for any public accommodation.
What I’d really like to see is for more such affected barefooters to also, if they are discriminated against, file complaints with the Department of Justice Civil Rights Division. As it is right now, I have no idea what they will think about my complaint.
But we can start with small steps. If they start getting similar complaints, they might start doing the research and thinking about the issue and how the law applies. Additionally, it’s really not that hard to file a complaint. They’ll research it and then get back to you.
One other thing: do not do this unless wearing shoes really does “disable” you, as per the definition and accompanying explanations.
We refer to the ADA, but what is actually in effect right now is really (at least if you are going to be picky), the ADAAA. That stands for the Americans with Disabilities Act Amendments Act of 2008. The original ADA was passed in 1990, but then the Supreme Court immediately started emasculating it with their rulings. In particular, they made it quite difficult to claim a disability (mainly in regards to a job, but also in general). The ADAAA added to the ADA to broaden the definitions, and to make clear that the act was supposed to be interpreted broadly.
In fact, the ADAAA starts with findings of Congress that include statements that the Supreme Court “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect,” and that “lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities,” and also that the Supreme Court “interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress.”
In the “Purposes” section of the ADAAA, it specifically says, “that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” To me, the sort of pain that comes to some of us from being forced to wear shoes to enter a public accommodation is exactly that sort of impairment.
There are actually two levels of rules that apply. The ADAAA is a federal statute (the U. S. Code). But then the enforcement bodies, governmental agencies, are required to make additional rules to implement the Act. These are part of the Code of Federal Regulations. The ADAAA has three main “titles”. Title I applies to employment; Title II applies to state and local governments; and Title III applies to public accommodations. While the EEOC (Equal Employment Opportunity Commission) makes the rules for Title I, it is the Department of Justice that is responsible for Titles II and III, the ones we are interested in.
When it comes to the statute, section 12102 defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual,” and one of the major life activities includes walking.
In addition, the rules for construction for (how to interpret) that definition say
The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.
Again, I think those who go barefoot because of the pain of shoes can make a pretty strong case that, at least under this definition, they are “disabled” and subject to this law. (Note, from here on, when I refer to the “barefooted”, I am referring to those who go barefoot because of the pain associated with wearing shoes.)
Let me also quote from the law certain sections that I think apply to the barefooted (section 12182):
(i) Denial of participation
It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.
(ii) Participation in unequal benefit
It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
As an example, Best Buy’s attempt to claim I should use a wheelchair really seems to violate (ii).
The act then goes further in saying what discrimination is
(i) the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered;
(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;
(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.
So, they can only deny service if allowing us would fundamentally alter the nature of their service. Of course, merely shopping barefoot does no such thing.
There is one additional caveat, though, that provides an out for a public accommodation:
Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term “direct threat” means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.
Note that this requires, not a threat to the barefooter, but a direct threat to others. This, of course, is nothing that a store could possibly prove. Heck, they really cannot prove it in regard to the barefooted.
When we get to the rules codified in the Code of Federal Regulations (this is 28 CFR 36). I already mentioned some of these in my previous post regarding Best Buy.
§ 36.301 Eligibility criteria.
(a) General. A public accommodation shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.
(b) Safety. A public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
A generalized and mythical fear just won’t cut it.
That pretty well covers it, as far as I am concerned. The area that I think any store would resist cooperating is that they would claim that having to go barefoot was not a genuine disability.
In some ways, I can see that. How do you measure pain? How can a doctor certify pain? All the doctor can really do is verify some underlying physical ailments (for instance, in my case, shattered cartilage in my knee and a deteriorating spine, both with accompanying MRIs). The doctor might be able to talk about how going barefoot might alleviate that pain, but it is so individualized (and the research is so much in its infancy) that it is hard to see how “proof” could be provided for an awful lot of similar disabilities. And, after all, one of the purposes of the ADAAA says that an extensive analysis is not required. (I would also point out that, even if the disability is not considered “major”, the accommodation, allowing the barefooted into the store in bare feet is so inconsequential, that a store continuing to insist on shoes is downright perverse.)
Here are some links in case you want to look at some of this stuff yourself.
- The ADAAA statutes.
- The ADAAA regulations made by the DOJ.
- How to file a complaint.
- Some interesting legal commentary and explanations.
Finally, how is the ADAAA enforced? The DOJ is in charge of enforcing Title III.
If the DOJ does decide that there was a violation, they will first negotiate with the public accommodation to come to a settlement. That settlement would include an assurance that the public accommodation would not discriminate in that fashion again. For a barefooter, that would actually be rather cool and useful. It could set a precedent.
If the public accommodation refused to settle, the DOJ could take administrative action and impose a fine and an order to modify their policies, but the public accommodation could always appeal that.
The DOJ can also actually sue the public accommodation. That could get very interesting.
Finally, if the DOJ decided not to take any action, the barefooter could always sue on their own. This is of course a much more drastic step and could cost a lot of money. Also, one would go into the lawsuit in the position that the DOJ didn’t think it was a violation (or at least not a violation worth fighting over). That could make things even more difficult.
So, what we want to hope for is that the DOJ recognizes that this sort of hidden disability, whose amelioration by a public accommodation is utterly trivial (requiring just a recognition of the acceptance of myths), is worth fighting over. It’s the sort of case and issue that could send a message regarding the ADAAA that they might want to send.
Or they might treat it the way so many other anti-barefoot people do—just not getting it and relying on the myths themselves.
In the end, all we can do is wait.
But also keep in mind that if you have pain from wearing shoes, you too might be able to file a complaint if a public accommodation refuses to accept your invocation of the Americans with Disabilities Act Amendments Act.