Althouse: The 9th Circuit held Chipotle violated the Americans with Disabilities Act by not giving persons in wheelchairs the same view of the food prep that other people have.

July 27, 2010

The 9th Circuit held Chipotle violated the Americans with Disabilities Act by not giving persons in wheelchairs the same view of the food prep that other people have.

"The court said the accommodation the company offered - bringing spoonfuls of each dish to wheelchair users for inspection before ordering - didn't measure up. That would provide only 'a substitute experience that lacks the customer's personal participation in the selection and preparation of the food,' the court said in a 3-0 ruling."

54 comments:

Unknown said...: Good grief.; 7/27/10, 8:33 PM
Scott M said...: o-m-g

how about a freaking mirror?; 7/27/10, 8:40 PM
GMay said...: So how many taxpayers dollars were wasted in this whole process? CA can't die fast enough.; 7/27/10, 8:46 PM
rhhardin said...: Chief Justice Ito is in your future.; 7/27/10, 8:51 PM
Kirk Parker said...: GMay, this is the 9th Circus, so it's not just a CA thing, the entire West Coast suffers under those guys (and gals.)

In this case, however, they may not be wrong, and the fault is in the ADA itself. With respect to which, P. J. O'Rourke said pretty much all that needed to be said in Parliament of Whores, way back in '91.; 7/27/10, 8:53 PM
mc said...: It's going to be like ordering food in a surgical school.

What was it that the Seinfeld character dropped?; 7/27/10, 9:07 PM
Josh said...: What about free bottles of Chipotlaway for the Blood Stained Underwear? http://joshblackman.com/blog/?p=4922; 7/27/10, 9:07 PM
GMay said...: Kirk,

I'm aware of the jurisdiction. But the suit came from California and when you take into account all the other onerous and frivolous regulations on CA business owners (the latest regulations on eggs come to mind) must account for - not to mention their obscene tax burdens - the state's imminent demise is no big shocker.; 7/27/10, 9:10 PM
Joe said...: I once worked on a project with ticket dispensing machines. One of my tasks was to implement ADA support for the blind. Given the costs, I proposed that the blind just be given free tickets. Turns out the customer had proposed the same thing before I got involved. The lawyers said no.; 7/27/10, 9:15 PM
Michael said...: Fine. No more visible kitchens. Thanks for that. I think I'll take a jog.; 7/27/10, 9:19 PM
Rich said...: This opinion (which I have not read owing to its length) was written by Judge Daniel M. Friedman, who is on the Federal Circuit, not the Ninth Circuit, and who was sitting on this particular panel by designation (i.e. the Ninth Circuit borrowed him from the Federal Circuit for a few cases, of which this was one). So it's not all a Ninth Circuit production.

Also of note is that lawyer representing Chipotle, in a valiant but losing effort, was one John F. Scalia.

Justice Scalia's son if I am not mistaken.

For those interested the opinion is here.; 7/27/10, 9:23 PM
David said...: Let's all move to the kitchen. Only then will we be truly equal.; 7/27/10, 9:23 PM
Unknown said...: In a restaurant, the least thing you want to see is the kitchen.; 7/27/10, 9:28 PM
Unknown said...: Should be 'last', not least.; 7/27/10, 9:29 PM
Elliott A said...: Several years ago, in Virginia, the court said that the state had to lower all the emergency call boxes because they were too high for wheelchair bound drivers to reach. Someone actually ahd the sense to offer all such folks (there aren't really very many) free prepaid cell phones to keep in their vans.Those bringing the suit gratefully accepted and for very little cost, fairness was served.

However, emergency callboxes are an essential service. Seeing the kitchen is not. Do I have a right for special seating in the movies because I am short? How about my 4 foot ten inch daughter? The lunatics have taken over the asylum.; 7/27/10, 9:38 PM
KLDAVIS said...: How did Subway not incur their wrath years ago?; 7/27/10, 10:29 PM
Gene said...: "how about a freaking mirror?"

I agree. What they need is a burritoscope.

Also if a person in a wheelchair is disadvantage because he can't see the food prep, how about about a blind person? He can't see it either. Should they let him feel the food first?; 7/27/10, 10:41 PM
Synova said...: Oh for freaks sake.

The solution is, of course, to artificially handicap people who are not disabled so that no one can experience anything a disabled person can't.; 7/27/10, 10:56 PM
Erich said...: How will they accommodate their blind patrons?; 7/27/10, 11:40 PM
Methadras said...: KLDAVIS said...

How did Subway not incur their wrath years ago?

Oh, that's happening next.; 7/28/10, 1:42 AM
Methadras said...: Most ADA lawsuits are bullshit. This one being no different. It's only news because it hits a bigger food chain. The problem is, is that if Chipotle lowers their food counters any more, to serve the wheelchair bound, then OSHA might come after them for improper working surface heights. And if you don't think that is beyond the obscene, then you read it here first. They can't win.; 7/28/10, 1:43 AM
Akiva said...: I remember being at a nursing agency in a small town in Ohio. They had just built a moderate 2 story building.

This was a home health agency, visiting nurses that go to people's homes to care for them. So the office was administrative staff and a place for the nurses to pick up supplies and do paperwork.

Due to ADA regulations, they were forced to expand their building by 15% to add an elevator and disabled restrooms to allow for wheelchair access.

They noted to me this doubled the cost of their building. And that there was no one in their town who was in a wheelchair.

Not to worry, cost passed on to the customers of said nursing care.; 7/28/10, 3:21 AM
rhhardin said...: Hand out booster cushions at the door.; 7/28/10, 4:15 AM
Tank said...: This is YOUR future. The Zero Admin is passing law after law creating agencies and boards full of B-crats who think just like the Plaintiff in this case and who will be making the rules.

Bend over, here it comes.; 7/28/10, 7:33 AM
Hagar said...: It's years ago now, the City Council was debating whether to buy city busses with handicap lifts or to provide free on-call transportation with handicap vans, there was an especially loud and vociferous young lady in a wheel chair insisting that they buy the busses regardless of cost. A City Councilor asked her how she got around now, and she answered that she never used public transportation as she had her own van with handicap lift. He then asked, if that was so, why did she care? And she said it was her civil rights for the City to have busses available even if she had no intention of ever riding on one!; 7/28/10, 7:51 AM
MadisonMan said...: there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We've all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we've been committed to containing the costs that may be incurred

From the signing statement of George H. W. Bush.; 7/28/10, 8:30 AM
Hagar said...: The ADA requirements for sidewalk handicap ramps at street intersections are physically impossible to implement if the intersecting streets have much slope to them, so the current system here is that the contractor calls City Hall when he has a street corner graded and ready to construct the ramp, and a joint delegation from the Public Works Dept. and "the handicapped community" is supposed to go out to inspect the work and see if he has done "all that can be done" to comply with the act.
In practice, "the handicapped community" has not proved all that interested, so usually an "observer" from PWD does the inspection by himself.; 7/28/10, 8:45 AM
TMink said...: No matter how many laws are on the books, no matter how good people's intentions, the disabled will remain disabled, uncomfortable, and inconvienenced. It is sad, but it is reality.

Besides, if everyone could walk, nobody would get to carry someone else.

Trey; 7/28/10, 8:57 AM
Brian said...: How do you define a handicap? I know the usual ones, like blindness, wheelchair-bound, etc. But what about phobias? mental illness?

In some instances, the ADA is overreach. There's small shops & businesses here where their parking lot is small to begin with, so half their parking space is handicap parking, because they have to have at least two parking places as handicap spaces.

So is there someone, somewhere, suing to make all traffic lights in the USA have to be changed out because they're color blind?; 7/28/10, 9:02 AM
Andrea said...: Every time I read something like this, I feel like pushing the next wheelchair-bound person I see down a flight of stairs. Isn't it great how progressive laws make people more compassionate!; 7/28/10, 9:05 AM
Brian said...: How do professional (or local) sports get away with the fact that wheelchair bound athletes can't compete on the field like non-disabled people? Is there an exception in the law for them?

Remember that case where a golfer with a disability that made it painful to walk, sued under ADA to make the PGA let him play using a golf cart? All the other golfers had to walk, as required by the rules.; 7/28/10, 9:06 AM
former law student said...: "The 9th Circuit held Chipotle violated the Americans with Disabilities Act by not giving persons in wheelchairs the same view of the food prep that other people have."

The article said Chipotle fixed the problem by making the food visible to all. So why pursue the lawsuit? Doesn't that violate the "actual cases or controversies" rule?

Without knowing the exact layout, I thought that angled mirrors would have been a simple solution.; 7/28/10, 9:06 AM
Dust Bunny Queen said...: In a restaurant, the least [last] thing you want to see is the kitchen.

No kidding!! I once got a glimpse into the kitchen in a chinese restaurant in SF that I liked to go to late at night when I got off work (10 pm). It almost turned me off of chinese food for quite some time.

Good thing I have a strong stomach and firmly believe in the 5 second rule.; 7/28/10, 9:09 AM
former law student said...: All the other golfers had to walk, as required by the rules.

The Rules of Golf forbid carts? How have E-Z Go and Club Car been able to get away with it for so long.

If golf were an endurance event you'd have to carry your own clubs.; 7/28/10, 9:10 AM
MadisonMan said...: Good thing I have a strong stomach and firmly believe in the 5 second rule.

Strong stomach acid is what you really want to be thankful for in that case.; 7/28/10, 9:15 AM
Dust Bunny Queen said...: So is there someone, somewhere, suing to make all traffic lights in the USA have to be changed out because they're color blind?

I think traffic lights are standardized now for this very reason.

In the 1950's my mother, who was color blind, was in an auto accident. In Texas the green is on the top and red on the bottom. When we moved to California the traffic lights are reversed and no one thought to tell her that. (DOH!!!) She could only see the light was on or off...not what color it was and went through the red light.

This is also why we have the walking man/stop-hand signals at cross walks AND the beeping or chirping sound. Color blind can't see the colors and blind people can't see at all. Dunno what the next step will be for the Helen Keller types. Maybe airlifts across the street?; 7/28/10, 9:23 AM
Leland said...: In addition to DBQ's comments, "Green" is actually a "Green/Blue" hue to help in distinction, and yes, traffic lights are fairly standardized now. Where they are not, is usually because of gradual improvements such as switch to LED lights.; 7/28/10, 9:58 AM
ALP said...: I have a first-hand account that illustrates this entitled attitude well.

I worked for an agency serving the developmentally disabled (vocational services) for a decade. The Executive Assistant, a close friend of mine, owned a massive collection of VHS movies (this was pre-DVD) as her husband worked for Warner Brothers. This woman, out of the kindness of her heart, hauled about 100+ of her tapes to work on a weekend, and set up an internal, free "video store" for the staff of the agency - complete with a simple database and a system for signing out the movies, at no charge. It was a huge hit as everybody pretty much lived from paycheck to paycheck - thus even a free movie rental was welcome.

One of our staff, a young deaf woman, borrowed a few movies one day. The next day, she shows up at the executive assistant's desk, signing wildly - clearly very upset. Apparently, she was distraught at the fact that the movie she "rented" did not have close captioning for the deaf! She threatened the agency (a non profit barely scraping by) with an ADA lawsuit! Think about the level of gall you have to have to complain about a video that you borrowed from a casual acquaintance. Its amazing how hard people will work to classify themselves as victims.

I had a front row seat to this woman's meltdown over this ridiculous, non-issue. Luckily, the Executive Director talked some sense into her, and the lawsuit never materialized.; 7/28/10, 9:59 AM
Big Mike said...: I have a handicapped child, so ADA is pretty important in our household. But all this case does is cheapen ADA. Kind of like insisting on braille instructions at drive-up windows.; 7/28/10, 10:08 AM
Big Mike said...: @former, the rules for professional golf tournaments are different, as I suspect you know. You're in a really snarky mood today, even worse than normal.

As I recollect it, the judges had to decide whether the athleticism necessary to walk the 18 holes outweighed the upper body and hip strength to swing a golf club with authority coupled with steady nerves on the putting green. I thought at the time that the ruling was fair, but wrong. Any professional sport should be able to set its own rules without interference from legal authorities.; 7/28/10, 10:17 AM
Kirk Parker said...: MadMan,

Signing that monstrosity is just about the most indefensible thing GHWB did. Imagine taking the position that government would take the letter of the law and always interpret in the least invasive way possible...; 7/28/10, 11:29 AM
Methadras said...: I wonder why the ADA hasn't been used to sue the city of San Fransisco to flatten all of its hills so the city can be wheelchair/handicapped accessible. The nerve of that city.; 7/28/10, 12:53 PM
former law student said...: Any professional sport should be able to set its own rules without interference from legal authorities.

But, as I've already pointed out, walking the course is not a fundamental part of playing the game of golf, neither as played by the vast majority of golfers, nor as a part of the athletic competition. It is tangential.

Imagine the PGA enacted a similarly tangential rule, finding that because of the danger of sun exposure inherent to the game of golf -- melanoma, etc. -- they decide that all players have to have as much skin pigment as Lee Trevino. Would that be fair to the melanin-challenged Phil Mickelson?; 7/28/10, 1:24 PM
Joe said...: Story #2.

In my town, the bus authority has small vans that would give door-to-door service to the handicapped for the same fee as the bus fare. Some activists got involved and demanded that handicapped enabled buses be purchased (which cost 5x as much as regular buses.) The activists also argued that the door-to-door service was condescending. The bus authority caved and canceled the door-to-door service and spent a shit-load of money on the more expensive buses (even for the routes with no documented riders who needed the more sophisticated buses.) I've long wondered how many handicapped people were totally pissed off at the activists over that.; 7/28/10, 1:30 PM
Big Mike said...: @Methadras, I've been in favor of flattening San Francisco for quite some time. Preferrably while Pelosi is at home.

@former, you may have earned points with your "what ifs" back in L1 or L2, but in the real world we're not interested.

What if we took the graduates of U Wisconsin and made them swim across Lake Superior in midwinter with a cinder block tied to their feet as part of passing the bar?

(Might be a good start, though.); 7/28/10, 1:52 PM
KLDAVIS said...: "Leland said...
Where they are not, is usually because of gradual improvements such as switch to LED lights."

Oh, have you not heard? LED street lights do not produce enough heat to effectively melt the snow that settles on and obscures them during winter in northern climes...making them either extremely dangerous or very costly for cities that install them and must pay to have the snow manually removed.

Oh those unintended consequences...; 7/28/10, 1:53 PM
Revenant said...: Oh those unintended consequences...

It seems silly to install lights that throw off enormous waste heat 24/7 just so that waste heat can be used to melt snow on the few days of the year when it would otherwise block the traffic lights.

That might make sense in certain particularly snowy areas, but for the most part it seems like a problem that would be better solved by installing a simple wire heater in the light cover that kicks in at temperatures below, say, 40 degrees. It should still pay for itself in fairly short order; LEDs are enormously energy-efficient.; 7/28/10, 3:41 PM
Revenant said...: But, as I've already pointed out, walking the course is not a fundamental part of playing the game of golf

Yes, you did point that out. You forgot to explain why it is relevant that walking isn't a "a fundamental part of playing the game of golf". The closest you've come is invoking "fairness" -- as if the US government had any business regulating how fair athletic contests are.

Imagine the PGA enacted a similarly tangential rule, finding that because of the danger of sun exposure inherent to the game of golf -- melanoma, etc. -- they decide that all players have to have as much skin pigment as Lee Trevino. Would that be fair to the melanin-challenged Phil Mickelson?

Yes, it would be fair. It would also be stupid; if the PGA implemented that rule, the PGA would collapse and be replaced by a more sensible organization.; 7/28/10, 3:46 PM
the gold digger said...: The solution is, of course, to artificially handicap people who are not disabled so that no one can experience anything a disabled person can't.

Harrison Bergeron.; 7/28/10, 6:29 PM
Robin said...: The Americans with Disabilities Act has been a very expensive failure.

Its original goal was to increase participation of people with disabilities in the work environment and the claim was that compliance with this act by employers and businesses would be insignificant.

Today, the employment rate of people with disabilities is virtually unchanged from before adoption and the expense of compliance by courts who have interpreted "reasonable accomodation" to have no real financial limit has driven businesses to extinction.

This is a prime example of what is wrong with Congress and our courts.; 7/28/10, 9:21 PM
former law student said...: You forgot to explain why it is relevant that walking isn't a "a fundamental part of playing the game of golf".

The exertion of walking around the course cannot determine the outcome of the game -- unless one is handicapped the same way that the plaintiff was.

The closest you've come is invoking "fairness" -- as if the US government had any business regulating how fair athletic contests are.

So you agree that GOP Congressman Tom Davis and GOP Senator Jim Bunning were spectacularly idiotic to investigate the use of steroids by major league baseball players? Fine.; 7/28/10, 11:48 PM
Big Mike said...: The exertion of walking around the course cannot determine the outcome of the game.

Actually it can. Try googling Ken Venturi 1964 US Open Congressional Country Club

And I say again, the ruling may have been fair, but was wrong. The law isn't always fair -- I thought you knew that.; 7/29/10, 8:30 AM
traditionalguy said...: There is a strong "see me roar" need for attention for their disabilities. If that was all I could do, then maybe I would seek attention by wailing about being a victim until I had scewed up life for those without a handicap. It is bragging rights.; 8/17/10, 3:00 PM
traditionalguy said...: The handicapped and their keepers use the ADA as their form of bragging rights for forcing huge sacrifices to be made for their victim status. The law takes the position that it is better to screw up life for the great majority before causing any handicapped person to feel bad. Of course the new Constitutional doctrine that no law is rational if based upon a religious/moral belief should gut the ADA as soon as anyone wants to bring the case.; 8/17/10, 3:08 PM