Cook County Record

Wednesday, April 8, 2020

Wendy's served with class action over drive thru accessibility for the blind; McDonald's battling similar cases


By Scott Holland | Jun 19, 2019

Wendys exterior
Image courtesy of Wendy's

CHICAGO — As McDonald’s battles similar legal actions, Wendy’s has become the latest fast-food chain served with a class action lawsuit over late-night drive-through accessibility for people with impaired vision.

In a complaint filed June 14 in federal court in Chicago, Nicole Davis, of Chicago, and Jesse Zamora, of California, alleged Wendy’s committed “systematic civil rights violations” by keeping its drive-through windows open later than walk-in dining rooms, meaning there are certain hours each day during which only people who can drive a car or who are riding in a vehicle can place an order.

“Since they are unable to drive, and because it is not safe for them to walk through the [drive-through], visually impaired individuals are totally precluded from accessing [Wendy’s] products during late-night hours,” the plaintiffs asserted in their complaint.

The lawsuit largely mirrors other federal actions brought against Oak Brook-based McDonald's on similar grounds. 

Plaintiff Scott Magee, of Metairie, La., filed one such action in Chicago federal court against McDonald’s in May 2016. Almost three years later, McDonald’s asked U.S. District Judge Joan Gottschall in May to grant summary judgment in the McGee action.

In that filing, McDonald’s first said it is not a restaurant operator as defined by the Americans with Disabilities Act, and so Magee should have sued franchise operators, who set their own policies for their respective restaurants. It also said Magee had meaningful access to McDonald’s food via delivery, and said sighted people without cars face the same barriers as those who cannot legally drive.

Further, McDonald’s said two "solutions" proposed by Magee would not work. First, his proposed solution of offering free delivery through UberEats would force restaurants to operate at a loss. His other proposed solution — giving him a special phone number and access code to order food, which he could pick up in person — was far too onerous, McDonald's said. 

McDonald’s also said Magee was not an actual customer of the restaurants he sued, alleging his attorneys gave him a list of McDonald’s locations where they knew he would be barred from walking through the drive-through lane.

In a May 28 filing opposing the summary judgment motion, Magee said McDonald’s offered “overtechnical, hypothetical concerns with” his proposed accommodations, which he maintained are reasonable enough to sustain at this stage of the proceedings. He also cited a November decision in Chicago federal court, Morey v. McDonald’s, involving a different customer with vision impairment, saying that court ruled that equating the plaintiff to children or people without cars “runs counter to the goals of the ADA.”

In their complaint against Wendy's, Davis and Zamora stipulated some Wendy’s locations are run by franchisees, while others are co-owned or operated by Ohio-based Wendy’s International LLC. All locations, they said, are required to follow the “Wendy’s System,” which they allege “does not include any policy, procedure, protocols, or infrastructure for assisting, aiding, or serving visually impaired would-be customers of Wendy’s-branded restaurants when the interiors of those restaurants are closed to the public but while the [drive-through windows] of those restaurants are still open to the public.”

They seek a jury trial, compensatory and statutory damages as well as injunctions forcing Wendy’s to make restaurants with late-night drive-through hours “readily accessible and usable by blind and visually impaired individuals.”

Attorneys from the firm of Beaumont Costales LLC, of Chicago, represent Magee in the McDonald's case and the Davis and Zamora in the action against Wendy's.

McDonald’s has been defended by attorneys with Holland & Knight, of Chicago.

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Organizations in this Story

McDonald's CorporationU.S. District Court for the Northern District of Illinois Chicago DivisionBeaumont Costales LLCThe Wendy's Company