If you have a drive through window, you should implement a method to be used by blind and deaf patrons to order at your drive through window if you want to avoid discrimination claims and class action suits. You should also be sure self-serve soda machines have raise braille on the user-input interfaces. Several cases have been filed across the US against fast food retailers with drive-through windows alleging discrimination because there were not adequate accommodations for blind or deaf customers. In the case of Scott Magee et al. v. McDonald’s Corp., a blind patron sued McDonalds alleging accusing it of violating the Americans With Disabilities Act (ADA) by limiting its late-night services to drive-throughs that blind individuals cannot access. Many fast food retailers limit late night service to the drive-through because it reduces the employee count and provides protection to the employees against theft and other criminal activity. Many establishments also refuse to serve customers not in cars in the drive-through due to safety concerns. The patron claims that because pedestrians are prohibited from ordering at the drive-thru windows or entering the restaurants in the late evening and early morning, blind people are completely blocked from ordering from the fast-food restaurants during those hours unless they hire a taxi or have a friend who drives them through the drive through window. The enjoyment of fast food was likened to a right of living in the US, and should be available without reliance on a third party, especially for those who may not be able to cook for themselves. The patron proposed a phone that could be used for ordering from outside and that employees could bring the order out personally to the disabled patrons.
A Nebraska case against McDonalds in 2007 made similar claims and argued that the company should post a sign at the order location (the “squawk box” ordering device) instructing deaf and blind patrons to proceed to the pick-up or order window for service. They argue that interruption in drive through service for order or pick up window orders is a reasonable accommodation. Such accommodation was found reasonable by a DC judge in a similar case about a decade earlier against a midwest McDonalds business.
In Cirrincione v. Taco Bell Corporation et al., a case against two Taco Bell locations, allegations included the failure to provide accommodations for deaf patrons in the drive through ordering process and to properly train employees working the drive through windows how to handle handicapped patrons. The patron alleged that she was treated rudely when she attempted to hand a note with her order to the employees at two separate New Jersey pick-up windows (rather than order through the two-way speaker system). She was told that she interrupted the drive-through service and that she should come inside the store on future visits.
Taco Bell settled another discrimination case in 2014 paying a $5.4 million settlement to a class of disabled customers in a lawsuit alleging the California locations of the restaurant didn’t accommodate people using wheelchairs or scooters. White Castle and McDonalds have been sued for not allowing walk-up (or motorized wheelchair or bicycle) service at the drive-through window.
Last year, a blind man in New York sued McDonalds because its “Freestyle” soda machines, which allow customers to mix their own cocktails of soda flavors using a touch screen, violate the ADA because blind consumers cannot use them without assistance. The patron argued that the machines could easily accommodate the needs of the blind by using tactile buttons and an audio interface.
What would be acceptable accommodations? A few things found acceptable in settling some of the cases include the use of picture menus, pen and paper, raised braille menus and button interfaces, voice command customer interfaces and permitting ordering at the person manned window. No matter what accommodations you choose to implement, you should provide training to your staff on serving customers with disabilities, particularly those who are deaf or hard of hearing, and inform employees that corrective or disciplinary action will be taken against employees who do not comply with your accessibility policy.
The two 2016 cases are Scott Magee et al. v. McDonald’s Corp., case number 1:16-cv-05652, in the U.S. District Court for the Northern District of Illinois and Cirrincione v. Taco Bell Corporation et al., case number 1:16-cv-04248, filed in U.S. District Court of New Jersey.
About Tracy Jong
Tracy Jong has been an attorney for more than 20 years, representing restaurants, bars, and craft beverage manufacturers in a wide array of legal matters. She is also a licensed patent attorney.
Her book Everything You Need To Know About Obtaining and Maintaining a New York Retail Liquor License: The Definitive Guide to Navigating the State Liquor Authority will be available next month on Amazon.com as a softcover and Kindle e-book.
Her legal column is available in The Equipped Brewer, a publication giving business advice, trends, and vendor reviews to help craft breweries, cideries, distilleries and wineries build brands and succeed financially.
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