By Minh N. Vu

Seyfarth synopsis:  The Ninth Circuit holds that a restaurant’s practice of exclusively providing service at the drive-through and refusing to serve pedestrians at the drive-through line does not violate the ADA.

Many fast food restaurants nowadays take food orders and deliver food exclusively at the drive-through window during certain business hours.  Due to safety concerns, at many locations, restaurants do not allow pedestrians to order at the drive-through window.  Blind customers who do not drive have filed lawsuits against restaurants over this practice, alleging that this facially-neutral practice denies them access to the food offered by these establishments.

So far, the restaurants are winning.  Last week, the Ninth Circuit in Szwanek v. Jack in the Box held that the fast food restaurant’s practice of only providing service at the drive-through does not violate the ADA, even if the practice prevents blind people from being able to independently order food.  The court stated:

A facially neutral policy, like the one at issue here, violates the ADA only if it burdens a plaintiff “in a manner different and greater than it burdens others.”  The operative complaint does not plausibly allege that the Jack in the Box policy did so. The refusal to serve food to pedestrians at drive-through windows does not impact blind people differently or in a greater manner than the significant population of non-disabled people who lack access to motor vehicles. If these non-disabled individuals wish to purchase food at Jack in the Box restaurants when the dining rooms are closed, they face precisely the same burden as blind people—they must arrive at the drive-through window in a vehicle driven by someone else.

(citations omitted).  The court distinguished this case from another Ninth Circuit decision from 1996 (Crowder v. Kitagawa) in which the court concluded that Hawaii’s 120-day quarantine requirement for all dogs violated the non-discrimination requirements of Title II of the ADA (applicable to state governments) because the requirement “burdens visually-impaired persons in a manner different and greater than it burdens others.”  The court noted that visually-impaired people have a “unique dependence upon guide dogs” and the quarantine “effectively denied these persons… meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.”  The Ninth Circuit in Crowder had relied in part on the legislative history of the ADA which evidenced Congress’ intent to ensure that people with disabilities are not separated from their service animals.

Ninth Circuit Judge Watford dissented in Szwanek, stating his view that the “drive-thru only policy unduly burdens the blind because, as a result of their disability, they are unable to drive,” and “[t]he blind (and others whose disabilities preclude them from driving) are entitled to a reasonable modification of the drive-thru only policy because that is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in the Box offers.”  While finding that the plaintiff did state a claim for violation of the ADA on the facts alleged in the Complaint, Judge Watford acknowledged that the restaurant might ultimately be able to show that the demanded modification of the policy was not reasonable or would fundamentally change the nature of the goods and services offered by the restaurant, but that those questions could not be decided on a motion to dismiss.

Szwanek comes on the heels of a district court decision from the Northern District of Illinois which also concluded that another fast food restaurant did not violate the ADA by limiting service to the drive-through and not allowing pedestrians to order at the drive-through window.  The trial court there concluded that the reason the plaintiff was denied service was because he was a pedestrian, not because he was disabled.  The court did not address the ADA’s obligation to make reasonable modifications to normal policies, practices and procedures that are necessary to ensure access, however, and the case is now on appeal to the Seventh Circuit.

Stay tuned for more updates on this evolving issue.

Edited by Kristina Launey