April 2, 2012
by Mara Goltsman
(Originally published May, 2008)
The United States Court of Appeals for the Second Circuit in Camarillo v. Carrols Corp. (2008 U.S. App. LEXIS 2814) (2d Cir. 2008), issued a decision advancing the rights of the disabled by holding that a legally blind patron was discriminated against at several fast food restaurants due to the restaurants’ employees’ failure to read the menu pursuant to her request in violation of the American with Disabilities Act and New York Executive Law.
The Court vacated the lower court’s decision, which dismissed the Complaint for lack of standing. The Court determined that Plaintiff established a pattern of a violation of the ADA and New York Executive Law (the decision discussed the fact that the scope of New York State’s disability discrimination provisions is similar to that of the ADA) and remanded for further proceedings. This decision stands for the proposition that restaurants are required to ensure that their menu options are effectively communicated to legally blind customers, in this instance, by training their employees in the appropriate methods of assisting such customers.
The Americans with Disabilities Act, enacted in 1990, serves to prohibit discrimination against those with disabilities in areas which include employment and public accommodations. The protection of the ADA applies to an individual with a disability or someone associated with such an individual. Specifically, the ADA of 1990, Title III (42 U.S.C. § 12182 (a)) provides that: “No individual 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.” Discrimination is defined by Title III as “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. §12182(b)(2)(A)(iii).
The typical scenario for a claim under Title III applies to the physical layout of a building, i.e., where an individual in a wheelchair is unable to enter because of a lack of appropriate accommodation (Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002)), or a prohibition against allowing a service animal into a building (Stan v. Walmart Stores, 111 F.Supp.2d 119 (N.D.N.Y. 2000)). The alleged discrimination in Camarillo was a new area that had not been previously addressed.
Since the Court was reviewing the matter following the lower court’s dismissal of the Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), the Court accepted all of the factual allegations in the Complaint as true and drew all reasonable inferences in Plaintiff’s favor. Plaintiff’s disability was legal blindness, which is defined by The American Medical Association as central visual acuity of 20/200 or less in the better eye with best correction, or visual field of less than 20 degrees (normal visual field is 180 degrees). Plaintiff would therefore need to stand 20 feet from an object to see it with the same degree of clarity as a normally sighted person could from 200 feet and is able to read enlarged writing at a very close distance. Since the restaurants involved in
the lawsuit did not make large print menus available (which they are not required to do), Plaintiff asked the restaurants’ employees to read the menu items. According to the Complaint, various employees either mocked her, forced her to wait until they had served other customers or failed to read the entire menu.
In order to prevail in a claim under Title III, a plaintiff must allege: “(1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide.” 42 U.S.C. § 12182(a); Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007); Powell v. National Bd. of Med. Examiners, 364 F.3d 79 (2d Cir. 2004); Stan v. Wal-Mart Stores, Inc., 111 F. Supp.2d 119, 124 (N.D.N.Y. 2000).
The Court held that the only disputed issue was whether Plaintiff suffered discrimination under the ADA.
Defendants argued that Plaintiff was still able to eat and otherwise use the restaurants, and that the Complaint was about inadequate service rather than discrimination under the ADA. The lower court, in dismissing Plaintiff’s claims, held that the various employees “were willing and able to read her the menus.” See Camarillo, 2006 U.S. Dist. LEXIS 69405, 2006 WL 2795238.
The lower court decision also stressed the position that the ADA is not the appropriate means of preventing an individual’s insensitivity to someone with a disability.
The Appellate Court stated that Plaintiff’s allegations were evidence of the fact that Defendants failed to adopt policies that would train the restaurant employees to assist disabled patrons, and they thus failed to take steps under the ADA to ensure that disabled patrons are not “excluded, denied services, segregated or otherwise treated differently.” 42 U.S.C. § 12182 (b)(2)(A)(iii).
Once the Court decided that Plaintiff suffered discrimination by Defendants’ employees’ failure to read the menus to her, a determination had to be made whether Plaintiff had standing to bring her claim under the ADA. The Court considered the three-part test utilized in Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002) – - (1) past injury under the ADA; (2) reason to believe that the discriminatory practices will continue; and (3) the discriminatory practices will harm the plaintiff in the future – - and determined that Plaintiff had standing to bring this litigation.
If restaurants do not provide large-print or Braille menus, they must require their employees to read their entire menu to their legally blind customers.
Failure to read the entire menu (for reasons ranging from an employee’s failure to do so to an employee’s inability to do so because of time constraints, or because the customer did not need to have the entire menu read to her) may result in a restaurant‘s liability for a violation of the Americans with Disabilities Act.
(aMENU Note: I have to wonder how many Restaurants are really interested in tying up their Staff reading menus and how many Servers want to spend time doing so, especially when tips are part of their income.
Placing your menu on www.amenu.ca would not only solve the time consuming problem of your Staff not having to read the menu but would also help those potential customers who dont read Braille or see large print.)