Just Who is an Operator and Facially Neutral Policies

Today’s blog entry come from a case that I found through Law 360. It is a decision by Judge John Kness of the United States District Court for the Northern District of Illinois Eastern Division. The case is Magee v. McDonald’s USA, here, decided on October 5, 2021. The Law 360 article says we can expect an appeal. The issues raised by the case are just who is an operator for purposes of title III of the ADA and whether facially neutral policies can discriminate against persons with disabilities in violation of the ADA. As usual, the blog entry is divided into categories and they are: facts; McDonald’s is not an operator; McDonald’s facially neutral policy and plaintiff cannot show causation; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

1. Plaintiff is legally blind, suffers from macular degeneration, and cannot drive a car in the McDonald’s drive-through lane.
2. Certain McDonald’s USA franchises only serve food late at night through the drive-through lane meaning that the plaintiff cannot order McDonald’s food late at night from those restaurants while at those McDonald’s unless he was in someone else’s vehicle.
3. Plaintiff’s vision disability precludes him from operating a motor vehicle.
4. Many McDonald’s restaurants close their dining lobby during late-night hours and offer only drive-through service. Late-night patrons of those restaurants have two options to obtain McDonald’s food. They can either order from a motorized vehicle through the restaurant’s drive-through window or they can order through Uber Eats.
5. Plaintiff tried to walk through the drive-through lane during late-night hours. Each restaurant denied him service.
6. Plaintiff’s visits to the California restaurant were part of a lawyer planned test of other McDonald’s restaurant to strengthen his case. His attorneys gave him the list of California-based McDonald’s restaurant to visit. His attorney suggested, plan, and paid for his California trip. Plaintiff visited many of the restaurants on the attorney provided list during the late-night hours. In fact, a friend of the plaintiff’s drove to the restaurants and parked in the lot where he then attempted to order food from the drive-through lane as a pedestrian to no avail. Plaintiff never attempted to order food from the drive-through as a passenger in a motorized vehicle.
7. Neither the franchise agreement nor the operations and training manual include mandatory policies for serving restaurant patrons during the late-night hours. Both documents are also similarly silent concerning which parts of the restaurant must remain open during late-night hours. Finally, restaurants are authorized to decide whether to allow pedestrians to use the drive-through lane.

 

II

McDonald’s as the Franchisor Is Not an Operator

 

1. The word operates means an entity that performs effectively the whole function of operating a business.
2. Where the entity does not perform the whole function of operating a business, case law in the Seventh Circuit has said that such an entity is not an operator for purposes of title III.
3. Some courts have even gone further by requiring for the operator label to apply to a franchisor, that the franchise agreement must specifically reflect the franchisor’s right to direct the franchisee to make an accessibility related change.
4. Under the franchise agreement, franchisees are bound to certain mandatory policies and procedures. For example, the franchise agreement requires franchisee’s to comply with all federal, state, local laws, ordinances, and regulations affecting the operation of the restaurant at their own expense.
5. The operations and training manual also provides for both mandatory and suggested procedures for the franchisees to implement.
6. The operations and training manual includes an explicitly permissive chapter and procedures for keeping a restaurant lobby open or closed during late-night hours. That chapter of the manual allows the franchisee to establish its own policies, and allows the franchisee to choose the information helpful to it in operating its business. That chapter also notes that the franchisees are independent employers making their own employment policies and decisions and that they may choose to use part, all, or none of the content contained in the manual.
7. Neither the franchise agreement nor the operations and training manual provide any required late-night service procedures for franchisees. It is up to the franchisees to independently decide whether they will be open for late-night hours, how they will be open, and what policies they will implement if they choose to remain open. In fact, some restaurants elect to stay open late at night and offer services via drive-through’s only. Others choose to keep their lobbies open and hire security guards to ensure safety. The late-night operation decision is left to the franchisees.

III

McDonald’s Policy Is Facially Neutral and Plaintiff Cannot Show Causation

1. Title III of the ADA talks about causation in terms of whether an entity discriminates against a person on the basis of his disability. The “on the basis,” standard requires a plaintiff to prove that but for his or her disability, he or she would have been able to access the services or benefits desired.
2. The court in a footnote cites to a previous case where a person also sued McDonald’s because of their refusal to accommodate her during late-night hours. However, at the time of that case McDonald’s did not offer delivery. Since that time, McDonald’s now offers late-night delivery through Uber Eats.
3. The policy of denying pedestrians service in the drive-through affects all patrons of the restaurant regardless of disability. It is not the disability preventing the plaintiff from purchasing McDonald’s food during the late-night hours, rather it is the pedestrian status that limits his access.
4. The policy prohibits both sighted and blind pedestrians from walking up and placing an order at drive-through lanes intended for customers in motor vehicles. Any bias in the policy lies in favor of customers in motor vehicles and against all manner of, “perambulating gourmands.”

IV

Thoughts/Takeaways

1. Very interesting that the court talks about how the plaintiff financed the California trip. That in combination with the term “perambulating gourmands,” indicates that the court has had enough of serial plaintiffs, especially since neither how the California trip was financed nor a person being a “perambulating gourmand,” is germane to the decision.
2. I am not optimistic about an appeal, which according to the Law 360 article is going to happen, because the Seventh Circuit is not a friendly place for people with disabilities.
3. If you are a franchisor, this case makes the point that the franchise agreement and the training and operation manuals are critical pieces. On the franchisor side, giving as much leeway to the franchisee as possible is the way to go.
4. I suppose the reason why the franchisee itself was not sued was because the deep pockets lie with McDonald’s.
5. If you define operates as an entity that performs effectively the whole function of operating the business, does this mean you can delegate parts of the function of the business to others and not have to worry about ADA compliance? I believe the answer to that question is no as seen in this blog entry.
6. In my opinion, it goes too far to say that an operator only exists with the franchise agreement specifically reflects the franchisor’s right to direct the franchisee to make an accessibility related change.
7. Franchisees, at least with McDonald’s, have to comply with federal law at their own expense.
8. Facially neutral policies are perfectly okay. In this case, the policy discriminated against pedestrians as a whole and not individuals with disabilities. To my mind, this raises a larger question about whether disparate impact cases are allowable. Whether disparate impact cases are allowable under the Rehabilitation Act will be heard by the Supreme Court within the next couple of months.
9. With respect to plaintiff’s visit to California McDonald’s, plaintiff would have been able to use the drive-through as he was driven to those McDonald’s by a friend who waited for him in the car. One wonders if that didn’t affect the decision in some sort of subtle way.
10. “But for” causation, has a completely different meaning than what it used to after Bostock v. Clayton County, which we discussed here. For an excellent law review article by Professor D’eandra Shu on the coming sea change in causation, see here.

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