On January 28, 2014, in Martinez v. Columbia Sportswear USA Corp., the United States Court of Appeals for the Ninth Circuit affirmed summary judgment for our three retail defendants, holding for the first time that a 60-inch long dressing room bench constitutes an “equivalent facilitation” under the 1991 ADA Standards, which specify that benches must be 48” long.

The 1991 ADA Standards permits deviations from particular scoping requirements as long as the deviations allow for “substantially equivalent or greater access to” the facility–otherwise known as an “equivalent facilitation.”  Although a number of lower courts had held that a 60-inch bench constitutes an equivalent facilitation, prior to the Martinez decision, the Ninth Circuit had not taken a position.  The issue is now settled in California – where a disproportionate number of access lawsuits are filed.

In another boon for retailers, the Ninth Circuit also held in Martinez that “the clearing of moveable merchandise racks” that blocked store aisles addressed this barrier and rendered the claim moot.  While this is a great result, prevention is the best cure.  Retailers should have policies and procedure in place to keep their keep aisles clear of merchandise and merchandise racks to avoid a claim on this basis in the first place.