A consumer has filed a putative class action alleging the $1 surcharge that P.F. Chang’s imposes on its gluten-free menu items violates the Americans with Disabilities Act (ADA) by discriminating against those with celiac disease. Phillips v. P.F. Chang’s China Bistro, No. 15-344 (N.D. Cal., removed to federal court January 23, 2015). The complaint asserts that P.F. Chang’s maintains a separate gluten-free menu that charges $1 more than seemingly identical items on its regular menu and that it does not add a similar surcharge for other dietary accommodations. The plaintiff alleges that the surcharges lack justification because they “do not reflect additional costs of ingredients” and some of the items “are the same as the non-gluten free options or contain fewer ingredients” or are “naturally gluten free.” The plaintiff seeks certification of a California class and violations of the state’s Unruh Act, Disabled Persons Act and Unfair Competition Law. Issue…
Tag Archives ADA
According to a news source, a 600-pound man, who worked as a Hometown Buffet restaurant manager, has filed a lawsuit under the Americans with Disabilities Act against OCB Restaurant Co. in a Connecticut federal court, alleging that he was fired and replaced with a worker who “is not morbidly obese and does not suffer from chronic knee pain.” Flanders v. OCB Restaurant Co., LLC, No. 14-1239 (D. Conn., filed August 27, 2014). See Courthouse News Service, August 28, 2014. Issue 536
A wheelchair-bound plaintiff has reportedly filed a putative class action in California state court against the largest franchisee of TGI Friday’s, Briad Restaurant Group LLC, for alleged violations of the Americans with Disabilities Act (ADA). Hicks v. Briad Restaurants Grp. LLC, No. BC546927 (Cal. Super. Ct., Los Angeles Cty., filed May 28, 2014). Plaintiff, Chris Hicks, alleges that Briad Restaurant violated the ADA by having deficient bathroom facilities and insufficient signage for disabled parking spaces in at least 20 of its locations, and he further asserts that the company had received notice of the issues, was given an opportunity to fix them and failed to do so. As a result, Hicks argues that Briad Restaurant has violated the Unruh Civil Rights Act and the California Disabled Persons Act and seeks statutory relief and injunctive damages. See Law360, May 29, 2014 Issue 525
A federal court in Missouri has determined that a man who alleges employment discrimination and retaliation in violation of the Americans with Disabilities Act (ADA) on the basis of his severe obesity has sufficiently stated his claims and may proceed with his action. Whittaker v. America’s Car-Mart, Inc., No. 13-0108 (D. Mo., order entered April 24, 2014). The plaintiff allegedly began working for the defendant in August 2005 and was discharged from his general manager position in November 2012, purportedly because of his disability. He claims that the defendant regarded him as having a physical impairment under the ADA and “as being substantially limited in a major life activity, walking, as a result of his obesity.” To support its argument that the alleged disability “is not an actual disability under the ADA unless it is related to an underlying physiological disorder or condition and that plaintiff fails to allege that his…
A federal court in California has approved the settlement of class claims that will require Burger King Corp. to remove barriers to wheelchair and scooter access at more than 75 of the restaurants it leases to franchisees in the state and pay $19 million to the settlement class. Vallabhapuapu v. Burger King Corp., No. 11-00667 (N.D. Cal., decided October 29, 2012). This is the second settlement of Americans with Disabilities Act claims against the company; the first involved 10 certified classes and 10 alleged noncompliant restaurants in California. Each individual who files a claim by November 15, 2012, will take a pro rata share of the settlement for up to six visits to a Burger King restaurant “where he or she encountered a barrier to access.” As of mid-October, 620 claims had been filed with an average recovery expected to be nearly $5,000 per store visit, based on an adjusted…
Employment law practitioners are, according to a recent article, predicting an increase in the number of obesity-related claims filed against employers under the Americans with Disabilities Act (ADA). The 2008 amendments have made it easier for employees to prevail in these cases, and a trio of claims filed and resolved in recent months demonstrates that the Equal Employment Opportunity Commission and courts are recognizing obesity as a disability in itself, rather than focusing on some underlying physiological condition as the basis for the employees’ disability. Settlements of obesity claims in Texas and Louisiana have resulted in payments of $55,000 and $125,000, respectively, while the Montana Supreme Court determined that a physiological disorder underlying morbid obesity is not necessary for a disability claim under a state law that mirrors the ADA. See The National Law Journal, September 24, 2012.
Responding to a question certified by a federal district court, a divided Montana Supreme Court has said that obesity which is not the symptom of a physiological condition may be a “physical or mental impairment” as the terms are used in the Montana Human Rights Act. BNSF Ry. Co. v. Feit, No. OP 11-0463 (Mont., decided July 6, 2012). The issue arose after an extremely obese applicant for a conductor-trainee position was told he would not be considered for the position unless he lost 10 percent of his body weight or completed certain medical examinations, including a $1,800 sleep study, at his own expense. The applicant successfully pursued an administrative remedy through the state department of labor and industry alleging that the railway defendant had illegally discriminated against him because of perceived disability. He was awarded damages for lost wages and benefits, prejudgment interest and emotional distress. On appeal, the…
According to the U.S. Equal Employment Opportunity Commission (EEOC), the owner and operator of a long-term residential treatment facility for chemically dependent women and their children has agreed to pay $125,000 to the estate of an employee allegedly terminated from her position because she was severely obese. EEOC v. Res. for Human Dev., Inc., No. 10-03322 (E.D. La., consent decree entered April 10, 2012). Additional information about the court decision denying the employer’s motions for summary judgment and recognizing obesity as a disability under the Americans with Disabilities Act (ADA) appears in Issue 421 of this Update. EEOC also indicated that under the consent decree, the employer will “provide annual training on federal disability law to all human resources personnel and corporate directors of RHD [Resources for Human Development] nationwide.” The agreement further requires the company to report to EEOC “for three years on all complaints of disability discrimination and…
Citizens Medical Center, located in Victoria, Texas, has reportedly instituted a prohibition on hiring any employee with a body mass index (BMI) higher than 35, or 210 pounds for an individual 5 feet, 5 inches tall or 245 pounds for someone 5-foot-10. Apparently, the hiring policy is not based on the expense of health care for the obese or purported increased absenteeism, but linked to physical appearance. The center’s chief executive officer reportedly said in an interview, “The majority of our patients are over 65, and they have expectations that cannot be ignored in terms of personal appearance.” Because weight is not a protected category in Texas, some believe the policy is not illegal, but others claim the weight-based discrimination violates the Americans with Disabilities Act. In either event, while smokers have been subject to similar policies for some time, weight restrictions are apparently virtually unknown in the medical field. The…
Denying an employer’s motions for summary judgment in an employment discrimination suit, a federal court in Louisiana has determined that severe obesity, regardless of its basis, qualifies as a disability under the Americans with Disabilities Act. EEOC v. Res. for Human Dev., Inc., No. 10-03322 (E.D. La., decided December 7, 2011). The court did not decide whether the employer had terminated the obese employee’s employment because she was regarded as disabled, finding that the matter presented a genuine issue of fact to be decided by a jury. The employee, now deceased, weighed more than 400 pounds when she was hired by the defendant, which owned and operated a long-term residential treatment facility for chemically dependent women and their children. Some eight years later, the employee was terminated from her position; at the time, she weighed 527 pounds. She filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) alleging…
