Stuck in the Drive-Thru

When I write a blog about a particular case, I generally keep an eye out for updates and developments in the litigation, just to see if something substantive changes in the law or even if the general direction of decisions has shifted on appeal.

I initially thought that was the case when I saw a headline regarding a class action suit against McDonald’s regarding visually impaired customers use of their drive-thru window, filed under the Americans with Disabilities Act (ADA) in Morey v. McDonald’s USA, LLC, No. 1:2018cv01137. I quickly realized that I was thinking of my blog from January on a quite separate case against Wendy’s, in Davis, et al. v. Wendy’s International LLC, Case No. 1:19-cv-04003.

One might understand my momentary confusion. Both cases involved classes of visually impaired customers trying to validate their protections under the ADA, specially their ability to obtain Fast Food without being illegally discriminated against. Unfortunately, both cases also have in common that they were dismissed at a relatively early stage, albeit for different reasons.

As you might recall, the suit against Wendy’s was dismissed because the court was persuaded that the inability of the Plaintiffs’ to get a burger was because the store was preventing all non-drivers from purchasing food, not just those with a disability of some sort. Arguably they were discriminating against non-drivers, but pedestrians (and those who do not have the means or desire to purchase a car) are not protected categories under the ADA.

The complaint against McDonald’s describes a remarkably similar set of circumstances, where the Plaintiff walked to the restaurant only to find that the indoor part of the store was closed, and that the only way to get food is to take a car through the drive-thru. As a result of their medical conditions, they argued they are disadvantaged in their use of the public business compared to the sighted members of the public.

However, the decision of the District judge in this case was on grounds very specific to the specific Plaintiff involved. In order to qualify for the protections sought, the Plaintiff must actually be considered to be disabled under the statute. Two parts of this analysis are identifying the life activity upon which [plaintiff] relies and determine whether it constitutes a major life activity under the ADA; and determining whether the impairment substantially limited this major life activity. The Plaintiff in her complaint, understandably given the circumstances, stated that her vision impairment interfered with the major life activity of driving automobiles. There were two problems with this argument. First, the Seventh Circuit has ruled pretty definitely that driving in and of itself is not a major life activity unless it, for example, prevents you from working and supporting yourself. The Plaintiff’s Complaint is not about anything like that though, it is about access to Fast Food. The second major issue with the Plaintiff in this case is that she actually could drive at the time of the incident at McDonald’s. In fact, she owned a car at the time that it happened that she was perfectly capable of driving to the McDonald’s—she had just happened to walk there that night. The judge thus ruled that she wasn’t actually disabled such to qualify for the protections of the ADA and ruled against her.

All things considered, there is probably more legal influence to give to the Wendy’s decision compared to this new ruling, since that was a much more sweeping and less fact-specific analysis of the issue. Nevertheless, it is interesting that this seems to have become a recurring fact pattern in ADA law.

– Attorney Travis Dunn