NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUDY SZWANEK; JAMES LOPEZ II, No. 20-16942 individually and on behalf of all others similarly situated, D.C. No. 3:20-cv-02953-WHA
Plaintiffs-Appellants, MEMORANDUM* v.
JACK IN THE BOX, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding
Argued and Submitted October 18, 2021 San Francisco, California
Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,** International Trade Judge. Dissent by Judge WATFORD.
Judy Szwanek and James Lopez II, who are both legally blind, claim that Jack
in the Box violated Title III of the Americans with Disabilities Act (ADA) and the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Unruh Civil Rights Act by closing inside seating at night in two of its restaurants
and serving food solely through drive-through windows that are available only to
customers in motor vehicles. The district court granted Jack in the Box’s motion to
dismiss the operative complaint in this putative class action. We affirm.
1. “To prevail on a Title III discrimination claim, the plaintiff must show that
(1) she is disabled within the meaning of the ADA; (2) the defendant is a private
entity that owns, leases, or operates a place of public accommodation; and (3) the
plaintiff was denied public accommodations by the defendant because of her
disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). There is
no dispute that Szwanek and Lopez are disabled, nor that Jack in the Box restaurants
are “place[s] of public accommodation.” The only issue is whether Szwanek and
Lopez were denied accommodations “because of” their blindness.
A facially neutral policy, like the one at issue here, violates the ADA only if
it burdens a plaintiff “in a manner different and greater than it burdens others.”
Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996). The operative complaint
does not plausibly allege that the Jack in the Box policy did so. The refusal to serve
food to pedestrians at drive-through windows does not impact blind people
differently or in a greater manner than the significant population of non-disabled
people who lack access to motor vehicles. If these non-disabled individuals wish to
purchase food at Jack in the Box restaurants when the dining rooms are closed, they
2 face precisely the same burden as blind people—they must arrive at the drive-
through window in a vehicle driven by someone else.
2. Crowder is not to the contrary. At issue in that case was a Hawaii policy
requiring a 120-day quarantine for all dogs entering the state. Id. at 1481–1482. In
finding the policy violated Title II of the ADA, we stressed that
Although Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many of the visually- impaired, Hawaii's quarantine effectively denies these persons—the plaintiffs in this case—meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.
Id. at 1484. We also noted the legislative history and governing regulations made
clear that “the general intent of Congress” in enacting the ADA was “to ensure that
individuals with disabilities are not separated from their service animals.” Id. at
1485 (cleaned up).
Here, in contrast, the Jack in the Box policy burdens the plaintiffs in precisely
the same manner as non-disabled individuals who wish to purchase food when
indoor dining is not available at the restaurants and do not drive or have access to
motor vehicles. Nor do ADA regulations give special solicitude to those who wish
to obtain takeout meals when restaurant dining rooms are closed. Finally, there is
no indication in the legislative history that Congress meant to do so. The district
court did not err in dismissing the operative complaint.
3 AFFIRMED.
4 FILED Szwanek v. Jack in the Box, Inc., No. 20-16942 NOV 3 2021 WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I think the plaintiffs have alleged a viable claim for discrimination under
Title III of the Americans with Disabilities Act (ADA), at least for purposes of
surviving a motion to dismiss. I would therefore reverse and remand for further
proceedings.
The ADA defines the concept of “discrimination” more broadly than other
anti-discrimination statutes. Title III contains a general prohibition stating that no
person “shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).
Key here is a provision that defines discrimination to include “a failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity
can demonstrate that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges, advantages, or
accommodations.” § 12182(b)(2)(A)(ii).
This latter provision goes beyond merely requiring disabled patrons to be
treated the same as non-disabled patrons. Indeed, in some situations, treating Page 2 of 3
disabled patrons the same as non-disabled patrons is the very conduct prohibited
by this provision. As we noted in Fortyune v. American Multi-Cinema, Inc., 364
F.3d 1075 (9th Cir. 2004), “the ADA defines discrimination as a public
accommodation treating a disabled patron the same as other patrons despite the
former’s need for a reasonable modification.” Id. at 1086. Thus, preferential
treatment of the disabled is sometimes required by the ADA. See, e.g., id.
(requiring movie theater to ensure that a disabled patron’s companion could be
seated next to him); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002)
(“preferences will sometimes prove necessary to achieve the Act’s basic equal
opportunity goal”).
In this case, it is true that Jack in the Box’s policy is facially even-handed:
All patrons, disabled or not, are required during certain hours to use the drive-thru
to obtain access to the goods Jack in the Box offers. But that fact alone does not
render Jack in the Box’s policy non-discriminatory. “We have repeatedly
recognized that facially neutral policies may violate the ADA when such policies
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUDY SZWANEK; JAMES LOPEZ II, No. 20-16942 individually and on behalf of all others similarly situated, D.C. No. 3:20-cv-02953-WHA
Plaintiffs-Appellants, MEMORANDUM* v.
JACK IN THE BOX, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding
Argued and Submitted October 18, 2021 San Francisco, California
Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,** International Trade Judge. Dissent by Judge WATFORD.
Judy Szwanek and James Lopez II, who are both legally blind, claim that Jack
in the Box violated Title III of the Americans with Disabilities Act (ADA) and the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Unruh Civil Rights Act by closing inside seating at night in two of its restaurants
and serving food solely through drive-through windows that are available only to
customers in motor vehicles. The district court granted Jack in the Box’s motion to
dismiss the operative complaint in this putative class action. We affirm.
1. “To prevail on a Title III discrimination claim, the plaintiff must show that
(1) she is disabled within the meaning of the ADA; (2) the defendant is a private
entity that owns, leases, or operates a place of public accommodation; and (3) the
plaintiff was denied public accommodations by the defendant because of her
disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). There is
no dispute that Szwanek and Lopez are disabled, nor that Jack in the Box restaurants
are “place[s] of public accommodation.” The only issue is whether Szwanek and
Lopez were denied accommodations “because of” their blindness.
A facially neutral policy, like the one at issue here, violates the ADA only if
it burdens a plaintiff “in a manner different and greater than it burdens others.”
Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996). The operative complaint
does not plausibly allege that the Jack in the Box policy did so. The refusal to serve
food to pedestrians at drive-through windows does not impact blind people
differently or in a greater manner than the significant population of non-disabled
people who lack access to motor vehicles. If these non-disabled individuals wish to
purchase food at Jack in the Box restaurants when the dining rooms are closed, they
2 face precisely the same burden as blind people—they must arrive at the drive-
through window in a vehicle driven by someone else.
2. Crowder is not to the contrary. At issue in that case was a Hawaii policy
requiring a 120-day quarantine for all dogs entering the state. Id. at 1481–1482. In
finding the policy violated Title II of the ADA, we stressed that
Although Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many of the visually- impaired, Hawaii's quarantine effectively denies these persons—the plaintiffs in this case—meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.
Id. at 1484. We also noted the legislative history and governing regulations made
clear that “the general intent of Congress” in enacting the ADA was “to ensure that
individuals with disabilities are not separated from their service animals.” Id. at
1485 (cleaned up).
Here, in contrast, the Jack in the Box policy burdens the plaintiffs in precisely
the same manner as non-disabled individuals who wish to purchase food when
indoor dining is not available at the restaurants and do not drive or have access to
motor vehicles. Nor do ADA regulations give special solicitude to those who wish
to obtain takeout meals when restaurant dining rooms are closed. Finally, there is
no indication in the legislative history that Congress meant to do so. The district
court did not err in dismissing the operative complaint.
3 AFFIRMED.
4 FILED Szwanek v. Jack in the Box, Inc., No. 20-16942 NOV 3 2021 WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I think the plaintiffs have alleged a viable claim for discrimination under
Title III of the Americans with Disabilities Act (ADA), at least for purposes of
surviving a motion to dismiss. I would therefore reverse and remand for further
proceedings.
The ADA defines the concept of “discrimination” more broadly than other
anti-discrimination statutes. Title III contains a general prohibition stating that no
person “shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).
Key here is a provision that defines discrimination to include “a failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity
can demonstrate that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges, advantages, or
accommodations.” § 12182(b)(2)(A)(ii).
This latter provision goes beyond merely requiring disabled patrons to be
treated the same as non-disabled patrons. Indeed, in some situations, treating Page 2 of 3
disabled patrons the same as non-disabled patrons is the very conduct prohibited
by this provision. As we noted in Fortyune v. American Multi-Cinema, Inc., 364
F.3d 1075 (9th Cir. 2004), “the ADA defines discrimination as a public
accommodation treating a disabled patron the same as other patrons despite the
former’s need for a reasonable modification.” Id. at 1086. Thus, preferential
treatment of the disabled is sometimes required by the ADA. See, e.g., id.
(requiring movie theater to ensure that a disabled patron’s companion could be
seated next to him); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002)
(“preferences will sometimes prove necessary to achieve the Act’s basic equal
opportunity goal”).
In this case, it is true that Jack in the Box’s policy is facially even-handed:
All patrons, disabled or not, are required during certain hours to use the drive-thru
to obtain access to the goods Jack in the Box offers. But that fact alone does not
render Jack in the Box’s policy non-discriminatory. “We have repeatedly
recognized that facially neutral policies may violate the ADA when such policies
unduly burden disabled persons, even when such policies are consistently
enforced.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004); see
also Crowder v. Kitagawa, 81 F.3d 1480, 1484–85 (9th Cir. 1996). The drive-
thru-only policy unduly burdens the blind because, as a result of their disability,
they are unable to drive. It is irrelevant that other people are also unable to access Page 3 of 3
Jack in the Box’s goods because they cannot drive for reasons not protected under
the ADA. The blind (and others whose disabilities preclude them from driving)
are entitled to a reasonable modification of the drive-thru-only policy because that
is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in
the Box offers. 42 U.S.C. § 12182(a); see Baughman v. Walt Disney World Co.,
685 F.3d 1131, 1135 (9th Cir. 2012). Even if affording such an accommodation to
the blind is regarded as “preferential” treatment, such accommodations “are not
only contemplated by the ADA, they are required.” Fortyune, 364 F.3d at 1086.
The remaining concerns Jack in the Box raises must be addressed at a later
stage of the proceedings. The modifications plaintiffs request must of course be
reasonable, taking into account the costs of such modifications, disruption of the
entity’s business, and safety concerns. Baughman, 685 F.3d at 1135; Fortyune,
364 F.3d at 1083. If the plaintiffs’ requested modifications are ultimately found to
be reasonable, Jack in the Box can still avoid liability if it shows that implementing
the modifications would “fundamentally alter” the nature of the goods it provides.
42 U.S.C. § 12182(b)(2)(A)(ii). Those issues cannot be resolved in this case on a
motion to dismiss, which is why the plaintiffs’ claims should have been allowed to
proceed.