This is not the first time (or second) time that I’ve written in this blog about the potential discrimination involved when fast-food restaurants keep their drive-through windows open later than their interior dining rooms, preventing the visually impaired from accessing their services. Almost two years ago, the Federal District Court for the Northern District of Illinois, in Davis, et al. v. Wendy’s International LLC, Case No. 1:19-cv-04003, dismissed a claim against the fast-food chain. That court found that since there were any number of reasons one might not have a driver’s license besides a disability, the restraint was not so much discriminating against the visually impaired as it was just not serving pedestrians. Shortly thereafter, in Morey v. McDonald’s USA, LLC, No. 1:18-cv-01137 was dismissed for the altogether different reason that the court found that the Plaintiff wasn’t actually disabled under the definition of the ADA.
As it turns out, these were far from the only similar action percolating through the courts, however. Recently, the longer-lived Magee, et al. v. McDonald’s USA, LLC., Case No. 1:16-cv-05652 foundered as well. The facts were substantially the same: the Plaintiff, who does not have a diver’s license based on her visual impairment, sought to patronize open McDonalds stores but was unable to do so because their interior dining rooms were closed (the stores themselves were located in various states but McDonald’s Corporate is located in Illinois). Interesting, both Davis and Morey were cited by the parties.
In this particular case, the court granted summary judgment in favor of McDonald’s on two separate grounds. In the first, it agrees with the earlier Davis decision that Magee’s lack of service is not based on his lack of sight, but rather on his lack of a vehicle and a driver’s license. The more nuanced grounds for dismissing the suit is that the court found that McDonald’s USA did not actually operate any of the restaurants that the plaintiff visited. The ADA applies to “any person who owns, leases (or leases to), or operates a place of public accommodation,” forbidding them from discriminating on the basis of disability. 42 U.S.C. § 12182. McDonald’s USA is a franchisor, meaning that the restaurants are operated by independent entities according to a franchise contract, which allows the operators to use the business branding and proprietary information of McDonald’s in exchange for a franchise fee and meeting certain standards in the operation of the business. Crucially for the purpose of this case, none of the mandated standards set by the franchise agreements have anything to do with policies for late-night service at the restaurants. The “Operations and Training Manual” provided by McDonald’s to Operators has suggested procedures about dining room hours, but these are very explicitly optional. In short, McDonald’s USA leaves the decision of whether to keep the drive-though open later than the dining room up to the discretion of its franchisees.
It’s somewhat unfortunate that these cases continue to bounce around, as each failure to gain traction actually risks weakening the overall landscape for ADA claims as a whole. For example, the decision regarding the franchisee-franchisor relationship has implications that go far beyond the issue of drive-though hours, potentially chilling ADA actions on a wide range of issues. McDonald’s USA, regardless of their specific mandates on dining room hours, does have an enormous amount of influence over the management of their restaurants, and decisions insulating them from liability makes it harder to fulfill the purpose of the ADA in ensuring that individuals with disabilities have equal access to everyday services and participation in public life.
Attorney Travis Dunn