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Access to Black Friday

George Powers
October 2019

This publication reviews how Black Friday sales handle accessibility for people with disabilities and how the Americans with Disabilities Act (ADA) applies.

Black Friday has become the largest shopping day of the year.[1]  More people take part in the Black Friday event than people that cast a ballot in the national election.[2]  According to the National Retail Federation (NRF), more than a 160 million people shopped in store and online over the Black Friday weekend in 2018.[3]  It is one of the most, if not the most important events for the health of our economy.  “Total sales on Black Friday [are] somewhere in the neighborhood of $23 billion.”[4]  Our international policy is even influenced by the Black Friday event, as President Donald Trump delayed the tariffs on Chinese goods to December 15.[5]  Most of us have seen the chaos that occurs at these Black Friday sales.  It is somewhat intriguing how the promise of savings, the holiday season, and marketing of these events create a perfect storm of consumer misbehavior.  There is constant news coverage of people lining up for days at Walmart or BestBuy, and when the doors open we see stampedes of people rushing the stores.  These stampedes can be dangerous and even deadly.  At least 10 deaths and 100 injuries have taken place during Black Friday in the United States.[6]  I am usually at home watching the video footage on the news in wonder.  On one hand, I cannot understand how people can subject themselves to this danger; and on the other hand, I love a good sale.  Deep in my heart I know that I would like to participate in one of these sales at least once.  It’s not just my desire to get an oversized television for 50 percent off, but I genuinely want to experience what these sales are like.  These sales are a cultural rite of passage in some ways.  When I come back to the office after the holidays, I often hear my coworkers talk about the festivities they took part in when shopping for themselves and their families.  When at the dinner table for the Christmas holiday, my nephews will brag about a deal they got on the newest gaming console; and other family members will start talking about their Black Friday savings.  Unfortunately, I don’t have much to contribute to these conversations.  A lot of these sales, especially the popular ones, are not accessible for individuals with disabilities like me, and retailers are missing out on the extra revenue of the disability community.  In fact, retailers could be missing out on a significant market as “the total after-tax disposable income for working-age people with disabilities is about $490 billion.”[7]

The Americans with Disabilities Act

All retail stores, like Best Buy and Walmart, are covered by Title III of the ADA.[8]  The ADA mandates that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”[9]  In other words, the Black Friday events held by retail stores ought to be accessible for people with disabilities.  Accessibility can often be an oversight, and it can be unfortunately overlooked when special events are planned.  While these oversights are usually not intentional, they can still subject Title III entities to legal liability.

I have never seen a wheelchair user or a person with an obvious physical disability participate in the Black Friday events.  After all, when the doors open and the stampede starts, a person with a significant physical disability would have a difficult time maneuvering; not to mention the safety risks he/she would be subject to.  The overarching purpose of the ADA is to ensure that people with disabilities have the same access to society as those without disabilities.  When a retailer fails to make its events accessible, then the general purpose of the ADA is frustrated as well as the express provisions of Title III.

One of the first considerations that a Title III entity ought to consider is its policies and procedures.  The questions to ask are:

• Do we have general policies and procedures that “can inadvertently make it difficult or impossible for a customer with a disability to access [our] goods and services?”
• Do we have policies and procedures during our Black Friday sale that “can inadvertently make it difficult or impossible for a customer with a disability to access [our] goods and services?”
• Are there policies and procedures that we are ignoring during the Black Friday sale that “can inadvertently make it difficult or impossible for a customer with a disability to access [our] goods and services?”[10]

In other words, retailers have to be inclusive in the way that they organize their Black Friday events.  They ought to be planned so that people with disabilities have access to the event.

The other major consideration is facility access.  Title III entities have an obligation to maintain accessible elements so that they can be used by people with disabilities.[11]  After all, what good is an accessible parking space if it is used as a camping spot for those waiting days in line?  Furthermore, the path of travel and accessible route inside and outside of the store ought to be clear of obstructions.[12]  Retailors have to be mindful about how they place displays and sale items in the stores.  The accessible routes have to be at least three feet wide,[13] so that people with disabilities can access the goods and services offered.

Title III entities may believe that providing online Black Friday sales in addition to the brick and mortar events can meet the requirements under the ADA, but this reasoning is flawed.  First off, having items on sale on an accessible website does not influence an entity’s obligation to have accessible facilities.  The two distinct means of purchasing goods are separate considerations.  After all, every retailer could bypass their duty to have accessible parking, ramps, and other accessible elements by setting up websites.  The analysis is analogous to curbside voting:

“Curbside voting is NOT an alternative to providing accessible polling places.”[14]

“Separate but equal” access to goods and services is segregation.[15]  Being secluded to your home to purchase gifts for family members is inconsistent with the overarching purpose of the ADA.  Deciding to shop online or at a brick and mortar store is a choice that all people have a right to make.  Moreover, the online sales are not “equal.”  The in-store sales differ from those that are online, and retailers have in-store only deals.[16]  The availability of in-store items versus online items also varies.

Businesses selling goods online have an ADA obligation to have accessible websites.[17]  While the website may be accessible during regular periods, an unintended barrier may be created when these sites host Black Friday events.  For example, Amazon has timed “Lightning Deals” which can be over in a matter of seconds.  To take advantage of these timed deals, an individual needs good motor skills and hand eye coordination.  The consumer has to find the “Lightning Deal” and click the buy button within seconds after it goes live.  Retailers ought to keep general website accessibility in mind when planning Cyber Monday and Black Friday online sale events.

The final consideration that retailers have to keep in mind is accommodating employees with disabilities.[18]  If a consumer that uses a wheelchair cannot participate in a Black Friday sale event, then it may not be reasonable to expect an employee that uses a wheelchair to perform his/her tasks for instance.  Employees with disabilities should not be penalized for not being able to participate in the events.  Retailers often hire extra staff during the holidays and the availability of employees with disabilities may need to be considered.

Best Practices for Making Black Friday Events Accessible

There are many ways to make Black Friday sales accessible for people with disabilities.  A Title III entity essentially has to treat the event like any other day of the year and be cognizant of accessibility.  Display and sale items have to be positioned in a manner so that they do not obstruct accessible routes within and outside of the store.  If a retailer knows that people will be camping at the store before it opens, then it can create a designated area that does not encroach on the sidewalks and accessible parking spaces.

Moreover, retailers should make sure all staff are properly trained to assist shoppers with disabilities.  A disability etiquette or sensitivity training refresher before the event will help staff be more aware of disability issues that may be forgotten in the holiday chaos.

Another way to make Black Friday sales accessible is to “open the doors” for people with disabilities before the general public.  At a Department of Motor Vehicles, for example, there is a separate line for people with disabilities; and retailers can implement a similar system.  The store can be opened for those in the accessible line an hour before it is to the general public.  Another mechanism may be to implement a ticket system, where people can purchase the goods they want by their ticket number.  For example, 15 “red” tickets may be passed out to the first 15 consumers that arrive for a sale for the available 15 “red” goods.  The ticket system would alleviate a lot of the safety and accessibility concerns that come up in the Black Friday events.

Conclusion

In sum, Black Friday is the biggest shopping day in the country.  The holidays can be hectic, and accessibility for people with disabilities can often be overlooked.  Our civil rights laws, like the ADA, strive to foster an inclusive society.  The good news is that Black Friday events can be made accessible and inclusive without fundamentally altering the special sale event.

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Footnotes