Key Points

  • The Sixth Circuit held 2-1 that the ADA's 60% Rule requires only that 60 percent of public entrances have doors, doorways, and gates meeting Section 404 specifications, not that those entrances be wheelchair-accessible.
  • The court declined to defer to DOJ commentary interpreting the rule to require accessible entrances, finding the regulatory text unambiguous under Kisor v. Wilkie.
  • The majority acknowledged its interpretation removes a minimum threshold for fully accessible entrances that existed under the 1991 ADA Standards.
  • Bloomekatz dissented, arguing the ruling erases a proportionality requirement for accessible entrances that has existed for over three decades.
  • The decision is unpublished.

A divided Sixth Circuit panel ruled Thursday that an Americans with Disabilities Act regulation requiring 60 percent of public entrances to meet accessibility standards does not mandate ramps or wheelchair-accessible routes to those entrances, affirming summary judgment against a Michigan woman who sued a barber shop and its landlord over a stepped entrance.

In a 2-1 decision, the court held that the so-called 60% Rule in the 2010 ADA Standards reaches only the specifications for doors, doorways, and gates themselves, not the paths leading up to them. McKeague, writing for the majority joined by Readler, concluded that the rule's text was unambiguous and rejected Department of Justice commentary interpreting the provision to require accessible entrances.

"Simply put, a ramp leading to a doorway is not a ramp at the doorway," McKeague wrote. The court found that Section 404 of the regulations, which the 60% Rule incorporates by reference, "is a narrow set of requirements that applies to doors, doorways, and gates" and does not govern adjacent features like steps.

The case arose when Darma Canter, a Muskegon County resident with Charcot-Marie-Tooth disease who uses a walker, attempted to visit Crue Hair, a barber shop in the Heritage Square Commons development in downtown Muskegon. Finding that the shop's street-facing entrance had steps she could not climb, Canter was unable to locate the building's accessible interior entrance and left without making her intended purchase of gift certificates.

Canter sued Crue Hair and its landlord, HSD II, arguing that because the barber shop has only two public entrances, the 60% Rule requires both to be fully accessible. The district court disagreed and granted summary judgment to the defendants.

On appeal, Canter argued that the 60% Rule's reference to Section 404 incorporates ramp requirements through a chain of cross-references. She pointed to Section 404.2.5, which governs "raised thresholds and changes in level at doorways" and cross-references Section 303, which requires ramps for changes in level greater than half an inch.

The majority rejected this interpretation, holding that Section 404.2.5 applies only to features "at doorways," not adjacent elements like the steps in front of Crue Hair. A separate section of the regulations, Section 405, governs ramps, the court noted.

The panel also declined to adopt a structural argument that the 60% Rule inherits an accessible-route requirement from Section 206.4, the overarching provision in which it appears. That provision states that entrance doors, doorways, and gates "shall comply with 404 and shall be on an accessible route." But the majority found this general language does not modify the specific text of the 60% Rule, which references only Section 404.

"The expression of one cross-reference implies the exclusion of others," McKeague wrote. "If the regulatory drafters wanted to require 60% of public entrances to comply with section 404 and be on an accessible route complying with section 402, there are several straightforward ways they could have done so."

Turning to agency guidance, the court declined to defer to DOJ commentary interpreting Section 206.4.1 as requiring "at least sixty percent (60%) of public entrances to be accessible." Under the Supreme Court's decision in Kisor v. Wilkie, courts do not defer to an agency's interpretation of its own regulations "unless the regulation is genuinely ambiguous," the panel noted. Here, the majority found the text clear.

"[I]f the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense," McKeague wrote, quoting Kisor.

The majority acknowledged that its interpretation means "the 2010 Standards removed a minimum threshold for completely accessible entrances" that existed under the prior 1991 regulations, which required 50 percent of public entrances to be accessible. But McKeague wrote that compliance with Section 404 still advances ADA purposes by regulating door closing speeds, opening force, and revolving doors, expanding accessibility for "a significant portion of the disabled population" even if not those who cannot climb stairs.

"We cannot rewrite regulatory text to fit our preferred vision of the minimum accessibility requirements—whatever that vision may be," McKeague wrote. "Nor can we ignore the drafting choices that produced this language. After all, judges are interpreters, not editors."

Bloomekatz dissented, accusing the majority of "erasing any proportionality requirement for how many public entrances must be accessible to those who cannot climb stairs." She argued that the ruling "contravenes the regulations' plain text, structure, history, and purpose" and removes a protection that has existed since 1991. The Access Board and DOJ have uniformly interpreted the 60% Rule to require accessible routes since the 2010 Standards took effect, she noted.

Bloomekatz wrote that the majority's interpretation produces illogical results, requiring wide maneuvering platforms at doorways that wheelchair users cannot reach in the first place. She observed that "nearly one in eight American adults cannot manage to go up and down stairs," quoting a Seventh Circuit concurrence, and criticized the majority for dismissing this population as having "the most debilitating physical disabilities."

The dissent also noted that even HSD's counsel abandoned the majority's position at oral argument, conceding that "60% [of public entrances] have to have ramps."

The decision is unpublished.