If you are able-bodied and have a car, you may not think twice about pulling through a fast-food drive-thru and picking up a late-night snack. But for people with disabilities, a drive-thru may not be helpful.

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Individuals with visual impairments and other physical limitations may not be able to drive. Since walking through a drive-thru is off-limits, a person with a disability has to rely on going inside a fast-food restaurant to order or pay a driver to take them. It can be an expensive burden for a simple meal.

That is the issue raised in several lawsuits against McDonalds, Wendy’s, and Taco Bell. People with disabilities who cannot utilize the drive-thru are unable to order and receive food when these establishments close their dining rooms late at night.

It is clear the Americans with Disabilities Act (ADA) applies to fast-food restaurants, but do these establishments have to make changes to ensure people with disabilities can order food late at night? That’s a question for the courts to decide.

What Is the ADA?

The ADA, a federal civil rights law, went into effect in 1992. The purpose of the ADA is to prohibit and penalize discrimination against individuals with disabilities in public life.

It was amended in 2008 with the Americans with Disabilities Act Amendments Act (ADAAA), which made significant changes to the definition of “disability.”

People should have equal access when it comes to employment, transportation, education, public places, and private places open to the general public. Under the ADA, when someone has a disability, there must be public accommodations to ensure they can receive the same benefits and services as individuals without disabilities.

Does the ADA Apply to Fast Food Restaurants?

Yes, the ADA applies to fast food restaurants because they are public accommodations.

The ADA is divided into five titles, each of which covers an area of public life. Title III includes public accommodations, which include privately owned operations. Title III covers restaurants, hotels, retail stores, doctors’ offices, private schools, daycare facilities, health and fitness clubs, sports stadiums, movie theaters, and much more.

A more significant question is whether the ADA applies to the franchisor or the franchisee.

“For years, plaintiffs have sought to hold franchisors with deep pockets liable for ADA violations by franchisees,” according to Martin H. Orlick, a partner at Jeffer Mangels Butler & Mitchell LLP. “Recognizing that the franchise business model is designed to offer the brand, products, methods, and operations, courts have typically resisted finding franchisors liable since they do not own or operate the actual businesses. The prevailing precedents have not held franchisors liable for ADA violations in franchised stores.”

However, Mr. Orlick notes a few exceptions. When a franchisor controls a business’s design, construction, and operation, a court could hold that franchisor liable for an ADA violation. When the franchisor owns the property, it is independently liable for ADA violations.

Fast Food Customer Accessibility Under the ADA

Under the ADA, all restaurants have to remove barriers that people with disabilities may face when trying to eat there. These barriers may have to do with parking, entrances and exits, doorways, the layout of the restaurant, tables, seats, counters, and restrooms.

This can be challenging, but there are many straightforward regulations restaurants must adhere to and official advice offered on ADA.gov.

When a Restaurant Is Not Required to Remove a Barrier

There are limited exceptions as to when a restaurant does not have to remove a barrier for disabled people.

Historic properties meaning those listed on the National Register of Historic Places or a local or state registry are not subject to as strict of requirements as modern buildings. The owners of a historic building are not required to fully renovate it and make it accessible to all individuals with disabilities.

Existing buildings need to be modified to remove barriers. However, owners of buildings that existed prior to the ADA’s enactment do not have to alter the building it they can show removing a barrier is not “readily achievable.” This standard means something is easily accomplished and can be carried out without much difficulty or expense.

Ultimately, a restaurant would not have to remove a barrier if it would be excessively difficult or costly to do so. However, whether something is too challenging or expensive depends on the size and resources of a business. A larger, more successful business is held to a higher standard than a small mom-and-pop shop that cannot afford expensive renovations.

Fast Food Restaurants Are Facing Lawsuits for Inaccessible Drive-Thrus

It is common for fast-food restaurants to close their dining rooms and only offer food through the drive-thru late at night. This can reduce the number of employees who have to be on duty at this time. It also may be safer for employees and reduce the risk of robberies or assaults.

However, people are not allowed to walk through the drive-thru. This is a safety issue. People on foot may be hit by vehicles. People with visual, hearing, and other physical impairments can use a drive-thru, though then. Late at night, the restaurant is entirely inaccessible to them.

Several lawsuits are attempting to address this lack of accessibility for disabled people. There is a class-action lawsuit in California against Taco Bell. A similar lawsuit was filed against Wendy’s in California. Previously, a similar lawsuit was brought against McDonalds. However, it was dismissed for lack of specificity.

The fast-food restaurants have deployed a variety of defenses. McDonalds originally claimed the plaintiffs should sue the franchise owner instead of McDonalds itself. Then, the fast-food giant claimed the plaintiffs failed to show they had specifically been injured.

“Based on my experience representing quick service restaurant franchisors and franchisees in ADA litigation, ADA plaintiffs face initial hurdles of determining who are the proper parties.” Said Mr. Orlick. “Suits against franchisors will be vigorously defended based on lack of Article III standing, and these motions are likely to succeed.”

The restaurants also argue people with disabilities can go through the drive-thru with a companion driver or rideshare service. Or, their food can be accessible through a delivery service.

Whether fast food joints are required to make any changes to remove barriers for late-night disabled patrons depends on how these lawsuits proceed. We will have to wait and see.

Contact an Attorney

If you are an individual with a disability and a local restaurant isn't making accommodations for your needs, you may need to seek an attorney. An experienced attorney can help you navigate the legal process and determine if your rights have been infringed upon.