Just Who is an Operator and Facially Neutral Policies: The Ninth Circuit Speaks

Today’s blog entry comes from the title III blog put out by Seyfarth Shaw, which you can find in my blogroll. As always, Minh Vu does an excellent job with the case. However, as readers of this blog know, I will blog on cases discussed by others if I think I have a different perspective to offer. This is one of those situations. The case of the day is Szwanek v. Jack-in-the-Box Inc., an unpublished decision from the Ninth Circuit decided on November 3, 2021, here. This case again presents the question of whether a franchisee that limits the lobby hours to only certain times of the day might violate the ADA because blind or visually impaired individuals cannot use the drive through. We discussed such a case in October of this year, here. The facts are essentially the same. That is, a blind individual was denied service at the drive through window when they were unable to order from the lobby after the lobby had close to customers. The district court granted Jack-in-the-Box’s motion to dismiss, and the plaintiff appealed. As usual, the blog entry is divided into categories, and they are: majority opinion; dissenting opinion (Judge Watford); and thoughts/takeaways. Of course, the reader is free to look at any or all of the categories.

 

I

Majority Opinion

 

1. Prevailing on a title III discrimination claim means the plaintiff has to show: 1) she is disabled; 2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and 3) the plaintiff was denied public accommodations by the defendant because of her disability.
2. A facially neutral policy violates the ADA only if it burdens a plaintiff in a manner different and greater than it burdens others.
3. The refusal to serve food to pedestrians at drive-through windows did not impact blind people differently or in a greater manner than the significant population of people without disabilities lacking access to motor vehicles. That is, the policy burdens plaintiffs in precisely the same manner as individuals without disabilities wishing to purchase food when indoor dining is not available at the restaurants and who do not drive or have access to motor vehicles.
4. If individuals without disabilities lacking access to motor vehicles wish to purchase food at Jack-in-the-Box restaurants when the dining rooms are closed, they face the same exact burden as blind individuals, i.e. they must arrive at the drive-through window in a vehicle driven by someone else.

 

II

Dissenting Opinion (Judge Watford)

 

1. Title III of the ADA contains a general prohibition stating that no person 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. 42 U.S.C. §12182(a).
2. Discrimination is defined to include a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities, unless the entity can demonstrate that making such modifications fundamentally alters the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §12182(b)(2)(A)(ii).
3. 42 U.S.C. §12182(b)(2)(A)(ii) goes beyond merely requiring patrons with disabilities to be treated the same as patrons without disabilities. Indeed, in some situation, treating patrons with disabilities the same as treating patrons without disabilities is exactly what is prohibited by this provision. In other words, preferential treatment of people with disabilities is sometimes required by the ADA.
4. It is true that the Jack-in-the-Box policy is facially evenhanded. That is, under the policy, all patrons are required during certain hours to use the drive-through in order to obtain access to the good Jack-in-the-Box offers. However, the Ninth Circuit has repeatedly held that facially neutral policies can violate the ADA when such policies unduly burden persons with disabilities even when such policies are consistently enforced.
5. The drive-through only policy unduly burdens the blind because they are unable to drive as a result of their disability.
6. It is irrelevant that other people are also unable to access Jack-in-the-Box’s goods because they cannot drive for reasons not protected under the ADA.
7. The blind and others whose disabilities preclude them from driving are entitled to a reasonable modification of the drive-through only policy because that is what is necessary to give them full and equal enjoyment of the goods that Jack-in-the-Box offers.
8. Even if affording such an accommodation to the blind is regarded as preferential treatment, such accommodations are not only contemplated by the ADA, they are required.
9. Jack-in-the-Box’s other concerns can be addressed at a later stage of the proceedings that would consider the following: 1) the modifications requested by plaintiffs must of course be reasonable, taking into account the cost of such modification, disruption of the entity’s business, and safety concerns; and 2) the modification do not have to be offered if Jack-in-the-Box can show that the modification would fundamentally alter the nature of the goods it provides. Such question cannot be resolved on a motion to dismiss, which is why plaintiffs claim should have been allowed to proceed.

 

III

 

Thoughts/Takeaways

 

1. As we discussed here, a district court in Illinois reached the same conclusion. I would expect if that district court of Illinois decision was appealed, the Seventh Circuit would affirm it.
2. The Supreme Court is hearing a case shortly to decide whether disparate impact is a part of §504 of the Rehabilitation Act. That particular case is such that a strong argument can be made that disparate impact is not involved there at all, but rather that is a case of disparate treatment. Szwanek is a true disparate impact situation.
3. Both the majority and the dissent agree that disparate impact is a part of the ADA.
4. The dissent says that the key is that the blind or visually impaired are unable to drive is the critical feature and that it is irrelevant that other people cannot access Jack-in-the-Box for reasons not protected under the ADA. So, the dissent is essentially saying that the majority is not comparing the right things.
5. While the dissent would allow the case to go forward, the dissent does note that the plaintiffs would not be out of the woods even then. Jack-in-the-Box would have the very real defense of fundamental alterations to the nature of the business, especially considering the labor shortage that exists currently in the fast food industry. Even so, the dissent says that should be decided later on in the proceedings (I would guess at the summary judgment stage).
6. A question arises if the defense is so strong so that the case would in all probability be knocked out at the summary judgment stage, why not just knock it out at the motion to dismiss stage and save lots of litigation costs? The response to that would be at the motion to dismiss stage, the question is whether a claim is stated and not whether a claim will stick.
7. Even assuming the dissenting opinion prevailed, it does seem to me that Jack-in-the-Box would have a very strong defense of fundamental alteration to the nature of the business.
8. Will the Circuit Courts of Appeals split on this question? The dissenting opinion raises the possibility that they might. I am not sure where the split would come from since the Ninth Circuit has taken the side of Jack-in-the-Box. The 11^th Circuit can be very pro disability, but I am not sure the 11^th Circuit would not agree with the Ninth Circuit given a similar fact pattern. If it did get to the United States Supreme Court, I wonder how they might deal with this situation, especially since the defense offered by Jack-in-the-Box is so strong. At this point, I am not going to hazard a guess at the how the Supreme Court might decide such a case.
9. Causation is no longer something resembling sole cause as a result of the case we discussed here.
10. When referring to people with vision loss, it is important to note that being blind and being visually impaired are not at all the same thing to members of the vision loss community. Hence, the correct terminology would be either, “blind/visually impaired,” or “blind or visually impaired.”
11. Whether a person uses “disabled,” or “person with a disability,” is a matter of personal choice. Either is okay.

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