ADA’s anniversary, cont’d

by Walter Olson on July 27, 2010

Among reactions and links to my Cato piece yesterday: David Frum, Brian Doherty/Reason “Hit and Run”, Richard Epstein/Ricochet, LoTempio Law Blog/Blawg Review #274, John Stossel/Fox Business (with kind words), Steve Bussey (ditto, with a historic-preservation-related reader comment).

In other news, a Ninth Circuit panel (Friedman, Nelson, Reinhardt) has ruled that the “Chipotle Experience” at Chipotle Mexican Grill, in which customers can watch their food being made behind a glass partition, violates the ADA “because the restaurants’ 45-inch counters are too high. The company now faces hundreds of thousands of dollars in damages.” [AP, Reuters, decision in Antoninetti v. Chipotle courtesy Leagle]. More: Ted at PoL and my followups here and at Cato at Liberty.

{ 4 trackbacks }

“Good Lord, people are complaining because they can’t see a taco, get a life”
07.29.10 at 8:43 am
ADA and the ‘Chipotle Experience’ | Think Tank West
07.29.10 at 3:01 pm
Ross Douthat, “Did The Americans With Disabilities Act Work?”
07.30.10 at 5:54 pm
Obama Justice Department Uses Americans with Disabilities Act to Harm the Disabled, Risk Lives, and Undermine Safety | OpenMarket.org
08.09.10 at 12:13 pm

{ 19 comments }

1 Jack Wilson 07.27.10 at 11:33 am

Based on what I see of regulatory agencies like OSHA ,EEOC and the Consumer Protection Agency administering ADA ,CPSIA and others, there really is no reason for Congress. We are ruled by decree from regulatory agencies.

And politicians are never asked about these regulations. The regulations are a given, like gravity, and are not to be challenged.

2 Black Death 07.27.10 at 1:04 pm

Jack -

You are right. Congress loves to pass vague, confusing legislation and then offload the enforcement to unelected bureaucrats with no political accountability. Why do we need Congress? Let’s just elect an emperor every four years and allow him to issue decrees through his imperial bureaucracy.

3 Chris Hoey 07.27.10 at 1:31 pm

I was house counsel for a major retailer before, during and after the passage of the ADA, and persuaded my company to take a proactive part in the industry efforts to try to inject reasonable standards in the bill as a result of a comment made to me in 1989 at a lunch with an EEOC official. This individual, himself disabled, told me, “let’s face it Chris, there is no accommodation [my employer] can’t afford to accommodate a disabled employee.” The topic being discussed was whether an employer would have to hire a sighted person to assist a blind checkout operator.
This attitude persists today, and is the result of a statute that deserves a Pulitzer for vagueness, in an area fraught with sympathetic plaintiffs.

4 AMcA 07.27.10 at 1:49 pm

How are they supposed to make their counter compliant, one wonders. They can’t lower the counter, because the work surface is there. Do we need a lift? Or do we do away with the ability of standing customers to monitor who their burritos are being put together?

What’s the solution?

5 Mark Biggar 07.27.10 at 2:37 pm

I guess the rule has to be: “if you can’t do something for everybody, then you do it for nobody.” Which in some cases means that your only choice is to go out of business.

6 Le Mur 07.27.10 at 3:04 pm

I guess the rule has to be: “if you can’t do something for everybody, then you do it for nobody.”

At some point everything will be required or prohibited.

7 anne 07.27.10 at 3:41 pm

If Chipotle lowers the glass and countertop to accommodate the view from a wheelchair, the workspace will conflict with OSHA counter height guidelines for workers….and if Chipotle raises the floor, they’ll violate health department codes because the sneeze guard will be too low for standing customers.

This suit will likely force Chipotle to move the prep line out of view of all customers (as in McDonalds and every other banal fast food joint) and thus undermine a very well designed and considered customer experience.

8 gumby 07.27.10 at 4:31 pm

do you guys not have the concept of “undue hardship” down there?

9 Allan 07.27.10 at 4:34 pm

Ann,

How about raising the floor in front of the counter, say 12 inches above ground level, using a ramp? Then both customer and employee are accommodated.

10 Ted Frank 07.27.10 at 5:23 pm

NB the Ninth Circuit’s reversal of the district court’s factual finding that the plaintiff was not entitled to an injunction because his purported desire to view the food as it was being made was not sincere—even though that factual finding was not clearly erroneous:

The court found that Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the [r]estaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the [r]estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”

Once again, the Ninth Circuit has ruled upon the issue of serial ADA litigants without fully considering the adverse precedent on the very same issue in the very same circuit: an intra-circuit split, if you will. I hope Chipotle seeks en banc review.

11 Richard Nieporent 07.27.10 at 7:13 pm

Chipotle is not very creative. All they have to do is put up a mirror or if they want to go high tech a TV monitor. But knowing the crazies that make up the 9th circuit I am sure that they would say that was not an “authentic” experience. This ruling is sheer madness. Nowhere in the original ADA law did it require that the disabled must be able to have an identical experience as the non-disabled. If so, how are they going to accomplish this for deaf people at a symphony or blind people at an art gallery?

12 Andrew_M_Garland 07.28.10 at 1:04 am

“We will only experience true empathy in a world where we are all similarly disabled.
We will only experience true community in a world where we are all similarly poor.
We will only experience true humility in a world where we are all similarly subservient to Progressive rule.”

– Attributed to The Mad Progressive.

13 Jack Wilson 07.28.10 at 7:58 am

Not sure if it was on this site or another, but there is a case pending where an employee needs a guide dog and another employee is allergic to dogs. Pre ADA, an employer could devise some sort of reasonable solution. Under ADA, that is not possible.

14 anne 07.28.10 at 1:42 pm

@ Allan,
If the floor were raised 12″ and the sneeze guard glass was also raised by the same amount, I suppose it would allow a sight line for someone in a wheelchair. In this case, Chipotle would *also* need 2 4′ wide x 20′ long ramps (with non-slip flooring) to bring people up and down from the food prep area.

15 Jack Wilson 07.28.10 at 3:53 pm

If they lower the counters, wouldn’t that make viewing difficult for those suffering from giantism?

To truly comply with ADA and to accommodate all conceivable handicaps, all facilities need to be available in an infinity variety of shapes and sizes.

16 anne 07.28.10 at 4:26 pm

Perhaps Chipotle could have 2 lines…just like new buildings have duplicate drinking fountains and elevator control panels – to serve those at wheelchair height and those with bad backs/eyesight and giantism.

17 Melvin H. 07.28.10 at 10:10 pm

THere is one other possibility: Shakey’s Pizza used to allow customers to watch their pizzas being made, with glass separating the work area from the customers. I realize this is a problem with self-service lines and cafeterias (especially the conflict with health laws vs. the ADA).

Seems to me there should be an amendment to the ADA: “if a business or other public accomodation is legally following a law, rule, or regulation–or previous court rulings, absent such–which comes into conflict with the ADA, the ADA does NOT apply at all, and NO suits can be brought under the ADA if such conflict exists. This would apply to laws such as, but not limited to, health and safety laws, whether local, state and/or federal. Any such ADA lawsuit brought would be AUTOMATICALLY dismissed, with Rule 11 sanctions against the plaintiffs counsel and full restitution for legal costs assessed against the plaintiff(s) and their counsel(s) paid to defendant(s) and counsel for defendant(s).”

18 Aaron Worthing 07.29.10 at 1:54 pm

Mmm, i think i have said it before, but let me simplify it:

Before the ADA: high school drop out (or push out as disabled people call it).

After the ADA: lawyer and all around contributor to society.

No law is perfect, no law can’t be tweaked a little and even fully tweaked every law will be subject to abuse. But if you look at its whole effect it is a net positive good for our society.

To butcher a phrase from Reagan, if you give a paraplegic man a fish, he will eat for a day; but if you make the docks wheelchair accessible, he’ll eat forever.

i will add that the lawsuits you hear about tend to be disproportionately unmeritorious. The slam dunk situations–the new construction with no wheelchair ramps at all, for instance–those aren’t even litigated. to the degree they even occur these days, they are settled once a lawyer explains to the client just how wrong they are. So typically the only cases litigated are the ones that prompt a fight. Now some prompt fights because the prejudice is uniquely entrenched (LD rights come to mind), but of course the truly ridiculous cases (like Chipolte above) are also more likely to be litigated, because they are ridiculous.

19 Melvin H. 07.29.10 at 11:42 pm

Or, to take Richard’s point further: When do we start seeing the lawsuits forcing the NCAA, the WNBA, and the NBA to get wheelchair basketball players into their leagues? When do we see the lawsuits against the airlines (are there pilots who need wheelchairs on the major airlines?) How about the lack of officials in sports who are blind (really, not the epithet thrown around, usually at baseball games)?
Where is the line drawn, short of full repeal of the ADA?

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