Metropolitan News-Enterprise


Friday, November 5, 2021


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Ninth Circuit:

Suit Accusing Jack in the Box of ADA Breach Properly Axed


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has held, over a dissent, that the District Court properly dismissed with prejudice an action against Jack in the Box for alleged discrimination against those who are legally blind by closing indoor seating at night in two of its locations, serving patrons only at its windows accessible exclusively to those in motor vehicles.

Judy Szwanek and James Lopez II, who are legally blind, brought the action under the federal Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act. The dismissal was by District Court Judge William Alsup of the Northern District of California.

Affirmance came Wednesday in a memorandum opinion by Circuit Judge Andrew Hurwitz and M. Miller Baker, a judge of the U.S. Court of International Trade, sitting by designation. Circuit Judge Paul J. Watford dissented.

The majority took the position that all pedestrians, sighted or not, were treated equally—as the defendant’s lawyer expressed it at oral argument, the detriment universally imposed was, “You can’t come to a late-night drive-thru to get a hamburger”—while Watford contended that the ADA sometimes requires “preferential treatment” of the disabled and that the action ought to have been allowed to proceed. 

No Discrimination

The majority said:

“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.”

They rejected the plaintiffs’ contention that the Ninth Circuit’s 1996 opinion in Crowder v. Kitagawa dictates a contrary result. In that case, the majority of a three-judge panel reversed a summary judgment in favor of Hawaii in an action by visually impaired persons who use guide dogs and contested the application to them of a law requiring a 120-day quarantine on carnivorous animals entering the state.

The majority opinion in Crowder said:

“We hold that without reasonable modifications to its quarantine requirement for the benefit of visually- impaired individuals who rely on guide dogs Hawaii’s quarantine requirement effectively prevents such persons from enjoying the benefits of state services and activities in violation of the ADA. We conclude there is a genuine dispute of a material fact as to whether the plaintiffs’ proposed alternatives to Hawaii’s quarantine for guide dogs are ‘reasonable modifications’ under the terms of the ADA and implementing regulations.”

Facts Differentiated

In Wednesday’s decision, Hurwitz and Baker wrote:

“Although Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many of the visually-impaired, Hawaii’s quarantine effectively denies these persons—the plaintiffs in this case—meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.”

They pointed out:

“Here, in contrast, the Jack in the Box policy burdens the plaintiffs in precisely the same manner as non-disabled individuals who wish to purchase food when indoor dining is not available at the restaurants and do not drive or have access to motor vehicles. Nor do ADA regulations give special solicitude to those who wish to obtain takeout meals when restaurant dining rooms are closed.”

Watford’s Dissent

In his dissent, Watford maintained that the plaintiffs have set forth “a viable claim.” He quoted Title III of the ADA as declaring c 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,” and requiring “reasonable modifications” of facilities to accomplish that. “Indeed, in some situations, treating disabled patrons the same as non-disabled patrons is the very conduct prohibited by this provision,” he said, adding:

“Thus, preferential treatment of the disabled is sometimes required by the ADA.”

Watford argued:

“The drive-thru-only policy unduly burdens the blind because, as a result of their disability, they are unable to drive. 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. The 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.”

Plaintiffs’ Lawyer’s Argument

Oral argument in the case took place on Oct. 18. New Orleans attorney Roberto Luis Costales, representing the plaintiffs, told the judges:

“The lower court argued that all pedestrians are treated equally whether or not they are visually impaired or not and our perspective is that that is a dangerous precedent to set because so long as an ADA defendant can identify a hypothetical group of non-disabled people who are also not able to access a public accommodation, the entire ADA could potentially be invalidated.”

Hurwitz posed the prospect that a facility was in a neighborhood in which it was too dangerous to admit patrons at night, and asked:

“If they completely closed the restaurant, I take it, you’d have no ADA complaints?”

Costales responded:

“Correct, your honor.”

The judge remarked:

“It seems to me if they could close the restaurant to everyone, merely serving through the drive-thru window should be allowed.”

The lawyer went on to insist that if food is sold at such a window, some accommodation must be provided the visually impaired who cannot drive, suggesting “simply reimbursing the blind for UBER Eats or other comparative food delivery service, right?”

Defendant’s Lawyer’s Points

Arguing for Jack in the Box was Oakland attorney Don Willenburg of Gordon & Rees LLP. He said:

“Plaintiffs were not denied anything because of their disability but because if something they shared with many non-disability individuals: they weren’t served at a late-night drive-thru because they were not driving.  No court has ever held that is a major life activity under the ADA.”

Willenburg pointed out:

“There’s no allegation that sighted pedestrians were served at the late-night drive-thrus where plaintiffs and others with vision impairments were refused.”

He noted:

“The complaint alleges that it’s unsafe for pedestrians to use the drive-thru.”

The case is Szwanek v. Jack in the Box, Inc., 20-16942.


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