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Michael Hiltzik / GOLDEN STATE

A Case of a Narrow Perspective at Mervyn's

September 11, 2003|Michael Hiltzik

I was in my local Mervyn's department store the other day, checking the width of the merchandise aisles with a tape measure.

The idea was to determine how many of them would be accessible to a shopper who uses a wheelchair, which by convention requires about 32 inches side to side. But in truth, it was hard enough for me to navigate some of the crowded aisles myself without dislodging stacks of jeans or shirts, and I was on my own two feet.

This is not a personal crusade, but it is one for disability rights groups, which say that Mervyn's ranks among the state's most recalcitrant major retailers when it comes to meeting federal and state standards governing access for the disabled.

"Mervyn's is Public Enemy No. 1 for people who use wheelchairs," says Sid Wolinsky, litigation director for Disability Rights Advocates, an Oakland law group that sued Mervyn's over the issue. The trial is scheduled to conclude today in Alameda County Superior Court.

Wolinsky's words may betray a touch of the histrionic, but his lawsuit, which charges that Mervyn's congested merchandise aisles violate the state's Unruh Civil Rights Act, raises a few questions worth exploring.

Mervyn's maintains that the most important is whether we are going to let lawyers run our lives by pressing unreasonable regulatory goals. I'll leave that aside for the moment, and instead ask how a department store chain already dealing with plenty of other problems can end up in an embarrassing lawsuit over regulations that its own parent, Target Corp., seems to be able to comply with in its own (more profitable) flagship stores.

Harold McElhinny, the outside attorney for Mervyn's, says the chain is getting a bad rap from the disability bar. He says Mervyn's has standards calling for 32-inch aisles where it's "physically possible" to place them. Local supervisors, he adds, are sent grid maps from company headquarters in Hayward, Calif., encouraging them to hew to the standard, and they're evaluated, in part, on how well they comply.

Despite those efforts, he told me, Mervyn's is in the disability crosshairs because plaintiffs' lawyers insist that it mandate minimum aisle widths in all circumstances, which he says is extreme.

But it's also evident that Mervyn's management doesn't consider wide aisles to be nearly as important to its business plan as loading the sales floor with plenty of merchandise. McElhinny says that as a mid-market discount chain, Mervyn's doesn't have the luxury of caching items in stockrooms to be produced on request for idly browsing customers, as might happen at Nordstrom. In Mervyn's, he says, "if they don't see it, they don't buy it."

What's more, Mervyn's has contended in court that its profit would decline by $40 million a year at its 125 California stores if it had to remove enough display racks to widen the merchandise aisles by a few inches.

But the $40-million figure was extrapolated from a test done at only six stores -- questionable results, given that the stores were located in and around Silicon Valley, where the economy is in the tank.

Indeed, several disability rights experts I talked with suggested that Mervyn's might find ways to overcome the loss of display space if it would only look.

"Some organizations put a lot of energy into fighting the regulations," says Peter Margen, a Bay Area retail consultant on accessibility issues who worked with Wolinsky's group on a federal lawsuit it won against a Macy's store in San Francisco in 1999.

Whether Mervyn's management is as obdurate as the disability lawyers claim, I can't say. But in her testimony at trial, Diane Neal, the chain's president, didn't sound like she falls all over herself trying to find ways to make her stores more accessible to wheelchair users.

Asked about the newest California Mervyn's, a $10-million behemoth in Folsom, she testified that the chain didn't explore how to ensure 32-inch spacing there from the outset because it prefers to keep its guidelines "consistent" across the whole chain.

Neal, a career Target Corp. executive who has been president of Mervyn's since April 2001, also said that during her tenure the chain had not undertaken studies to see whether there were ways to adjust floor design or inventory flow so it could widen the aisles without cutting into profit.

The day of her testimony, Neal issued a statement attesting that her chain's "commitment to maintaining a store environment that is open and accessible to all of our guests" doesn't exclude "guests with disabilities."

She said the company was taking a strong stand in the lawsuit because "we are outraged at the extreme position of lawyers who would rather see us go out of business and put thousands of our California team members out of work than recognize all we are doing to make our stores accessible."

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