By Eden Anderson

On July 25, 2012, Judge Joseph Spero of the United States District Court for the Northern District of California issued an opinion in Gregory Pilling v. Alameda Park Street Bicycle, Inc., et al., Case No. C-12-02186-JCS which serves as a reminder to all public accommodations of the obligation to make “reasonable modification” to policies, practices, or procedures when such modifications are necessary to provide persons with disability with full and equal enjoyment. 

The plaintiff in the case, a cancer survivor, required the use of a colostomy bag.  He used his bike and train to commute to his job as a street sweeping foreman.  After getting off the train, he would store his bike at a bike storage facility, which was jointly operated by the train and a private entity.   

The bike storage facility had a rule requiring that entry and exit into the facility be accomplished within 10 minutes.  The rule’s purpose was to help deter and detect instances of theft.  The plaintiff requested that the rule be modified to allow him the time he needed (12-18 minutes) to use the restroom while in the facility.  After his request for reasonable modification was denied, he sued alleging claims under the ADA and analogous state laws. 

Judge Spero held that the defendants were required to comply with the DOJ regulation which requires that “reasonable modification in policies, practices, or procedures” be made when necessary to avoid discrimination unless the modification would “fundamentally alter the nature of the service, program, or activity.”  28 C.F.R. § 35.130(b)(7).  That the 10 minute rule was neutral on its face and had a legitimate purpose was no defense.  It should have been modified to allow the plaintiff the time he needed in the restroom. 

Any place of public accommodation should take note of the ruling.  Even if a policy, procedure, or practice seems reasonable and non-discriminatory on its face, the ADA may very well require that it be modified to afford a person with disability full and equal enjoyment.