The Franchise Memorandum

A federal court in California found that a restaurant does not violate the Americans with Disabilities Act or the California Unruh Civil Rights Act when it provides late-night service exclusively through its “drive-thru.” Szwanek v. Jack in the Box, Inc., 2020 WL 5816752 (N.D. Cal. Sept. 30, 2020). Plaintiffs Judy Szwanek and James Lopez II are California residents and patrons of Jack in the Box fast food restaurants within walking distance of their homes. Visual impairments prevent each from driving. They brought a putative class action against the franchisees who operate the restaurants they frequent, as well as the franchisor, after they were refused late-night service at the restaurants. The restaurants provide late-night service exclusively through their drive-thrus, which pedestrians are not permitted to use. The franchisor, joined by the franchisees, argued that the action should be dismissed because the drive-thru-only policy does not discriminate on the basis of disability, and because the plaintiff’s claims were based not on their visual impairments, but on their inability to drive. The court agreed with each argument and granted the motion to dismiss.

As to the first argument, the court noted that the burden imposed by the restaurants’ drive-thru-only policy was imposed on those who cannot drive for any number of reasons. As a result, this policy did not burden the visually impaired any differently or greater than it affected pedestrians who are not disabled. Therefore, there was no proof that the plaintiffs were excluded due to their disability. As to the second argument, the definition of a “disability” under the ADA requires the limitation of a “major life activity” as a result of the impairment. The court concluded that driving — specifically, driving to access a drive-thru for the purpose of enjoying a late-night hamburger — is not a major life activity. In reaching its decision, the court was also guided by two recent decisions from the Northern District of Illinois rejecting similar claims of discrimination flowing from restaurants providing only drive-thru-only service. Because the court held that the plaintiffs were not disabled under the meaning of the ADA, it granted the motion to dismiss.