The United States Court of Appeals for the Ninth Circuit recently issued a decision in Antoninetti v. Chipotle Mexican Grill, Inc., applying the Americans with Disabilities Act (ADA) to claimed violations at a fast food Mexican restaurant. Concluding that the "experience" customers receive as a result of the restaurant's layout must be accessible to disabled customers, the Ninth Circuit held that Chipotle had violated the ADA by failing to provide a comparable experience to wheelchair-bound customers as it does to non-disabled people.
Specifically, the company maintained a separator wall in its facilities which prevents wheelchair-bound customers from participating in the preparation of their meal, a critical component of the Chipotle "experience." Further, the Ninth Circuit warned lower courts to steer clear of deciding whether to award injunctive relief based on the allegedly litigious nature of the plaintiff, explaining that the ADA's purpose of ensuring greater access to public accommodations may best be served by "committed individuals" willing to bring "serial litigation."
Chipotle customers order food at a "food preparation counter" which is separated from the customer by a separator wall that rises 45 inches above the ground. Customers pick from ingredients displayed on a menu behind the food preparation counter and interact with a Chipotle employee who assembles the food in front of the customer. Then, customers pick up the order and pay at a "transaction station" that rises 34 inches above the ground.
Before the suit, Chipotle's unwritten accommodation policy required employees to show disabled customers samples of ingredients in tongs or plastic cups, and then assemble food at the transaction station or at a table. Following instigation of the litigation, Chipotle promulgated a written accommodation policy requiring employees to offer a "suitable accommodation" to disabled customers, such as: (1) showing or handing samples of food to customers; (2) showing or allowing customers to sample food at a table; (3) describing the ingredients or finished meals; or (4) any combination of the above.
After visiting two Chipotle restaurants, the plaintiff filed suit under the ADA and its California analogue, contending that the food preparation counter violated the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) § 4.33.3. That section requires that "[w]heelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public." (emphases added). The plaintiff asserted that the food preparation counter failed to comply with this Guideline because the average person in a wheelchair cannot see over the separator wall, thereby failing to provide a line of sight comparable to non-disabled people.
The Ninth Circuit's Holding That Chipotle's Food Preparation Counters Violated the ADA
On appeal from the district court, the Ninth Circuit explained that § 4.33.3 was not the correct standard because it covers a fundamentally different situation-accessibility to fixed-seating structures where people view performance events-not restaurants. A further reason that § 4.33.3 was not applicable is that the food preparation counter was not a part of any fixed seating plan, being separate from the seating area in the restaurant. Instead, § 7.2(2) supplied the correct standard, which applies to "ticketing counters, teller stations in a bank, registration counters in hotels and motels, box office ticket counters, and other counters that may not have a cash register but at which goods or services are sold or distributed," because the food preparation counter was a counter at which goods (the food) or services (food preparation) are sold or distributed.
Turning to whether Chipotle had complied with Section 7.2(2), the Ninth Circuit examined the three alternatives to compliance under that provision: (1) a portion of the main counter must be no higher than 36 inches; (2) an "auxiliary counter . . . in close proximity" must be no higher than 36 inches; or (3) there must be an "equivalent facilitation." The Ninth Circuit rejected Chipotle's argument that the transaction station, being less than 36 inches, satisfied the first two options, because the transaction station serves a different function (payment and collection of the order) from that of the food preparation counter (placing and directing the order). The separator wall prevents disabled people from "fully participating in the selection and preparation of their order at the food preparation counter, . . . subject[ing] them to a disadvantage that non-disabled customers do not suffer." Finally, the unwritten and written policies did not provide an "equivalent facilitation" because they failed to provide for an equivalent "Chipotle experience," namely that the customer cannot see and evaluate visually the various alternative ingredients, could not watch the food preparation, and could not personally participate in the food preparation through interaction with a Chipotle employee as the food was being assembled.
Finding a violation of the ADA, the Ninth Circuit reversed the district court's denial of injunctive relief. The district court had failed to grant an injunction because it doubted the plaintiff's desire to return to the restaurants and that the plaintiff's history as a frequent litigant in ADA litigation militated against such relief. The Ninth Circuit warned lower courts to "tread carefully before construing [an ADA] plaintiff's history of litigation against him" because (in the Ninth Circuit's opinion) it may be necessary for "committed individuals to bring serial litigation" to advance the ADA's goal of accessibility. While the Ninth Circuit shied away from addressing whether the ADA authorizes district courts to deny injunctive relief after finding a violation, as the ADA only authorizes injunctive relief for a violation and not damages, the Ninth Circuit explained that it would be an abuse of discretion in the circumstances of this case, where the defendant had violated the ADA and the defendant's policies had failed to "ameliorate" the violation.
The Ninth Circuit's Holding on Related Issues Regarding Attorney's Fees and the California Statute
Finally, the Ninth Circuit returned the issue of attorney's fees to the district court to re-examine the award based on the plaintiff's greater scope of victory on appeal than at the district court. Further, the Ninth Circuit sent back the issue of damages under California's analogue statute (allowing for recovery of damages of a minimum of $1,000 per violation of the federal ADA) given the Ninth Circuit's expanded finding of a violation.
The Ninth Circuit's holding in the Chipotle case presents a potentially tough new standard for restaurants and other public accommodations. Such entities must take into account the "experience" they are providing to the public, not just the physical characteristics of their facilities. If that "experience" does not include counter space meeting the requirements of the ADAAG, along with other attributes required by the ADAAG, then public accommodations risk a finding of liability under the ADA. The Chipotle case also underscores the importance of correctly determining the applicable Guideline for accessibility and the need to involve counsel early on: selection of the wrong Guideline could falsely lead a public accommodation to believe it has complied with the ADA. Finally, the Ninth Circuit's rejection of the district court's denial of injunctive relief partially because of the plaintiff's litigiousness suggests that this is a losing strategy in litigation.