In August 2019, an Oklahoma City area Burger King restaurant refused service to a customer because she is deaf. According to KFOR-TV, the customer, Rachel Hollis, complained that a Burger King employee told her that staff was “too busy” to fill her order. Burger King has fired the employee involved, according to Oklahoma City media reports.
A restaurant’s refusal to provide service to a person with a disability because of the disability is discrimination pursuant to Title III of the Americans with Disabilities Act (ADA).
As KFOR-TV reports:
“Rachel Hollis says she was stopping to get food after taking her two sons to hockey practice.
‘I had my order ready, I had it typed on my phone. I do that often when I go through drive-thrus, it hasn’t ever been an issue,’ Hollis told News 4 through an interpreter. ‘I show him my order, and he gives me this face of frustration.’
Hollis says she started taking a video of the incident because she was feeling uneasy, then in the video you can see the employee hand her a note that says, ‘Can’t do a full order at the window. Too busy.’
Eventually, the employee comes back to the window and starts arguing with Hollis. ‘You have to come inside. It’s too busy. Too busy ma’am, I can’t do a full order at the window I’m sorry,’ the employee says to Hollis. ‘It has nothing to do with your disability, I have a disability too.
After that, he slams the window shut.
Hollis says one of the worst parts about the whole experience was that it happened with her kids in the car. ‘I could tell they knew something was going on, I was just trying to keep them calm,’ Hollis said. ‘I said I’ll explain it to you when we get home. But they knew something was going on.’
Hollis says she tries to stay calm in that moment, but she’s tired of people being treated that way.
‘When I got home, that was when I really broke down. I was very upset, I was crying, I was very tired. I’m tired of discrimination,’ Hollis told News 4 through an interpreter. ‘I’ve never experienced anything like that, for someone to call the police. That’s crazy, it just doesn’t seem right.’”
After the incident, KFOR contacted Burger King’s corporate offices for comments. Seeming to concede the truth of Hollis’s complaint, Burger King provided a statement to the Oklahoma City television station. As KFOR reported:
“All guests should be treated with respect and provided with a high level of service at our restaurants. The restaurant owner has reached out to the guest and her family to apologize, the employee was terminated and all employees at the location will undergo additional sensitivity training to ensure our customers always feel welcomed.”
KFOR posted online Hollis’s recording of her interaction with the employee. In the recorded video, Hollis had a brief exchange with the employee. After the employee refused service, he closed the Burger King’s drive through window and walked away.
Just days after her Burger King experience, Hollis announced that she would be suing Burger King for disability discrimination. A check of the docket for the U.S. District Court for the Western District of Oklahoma in Oklahoma City at the end of August revealed that a federal Americans with Disabilities Act had not yet been filed by Hollis.
According to Fox 6 News:
“Hollis, her attorney Cameron Spradling, and the Oklahoma Disability Law Center say the excuse was both unacceptable and illegal.
‘You can’t make them do something different in order to get those services,’ Joy Turner from the Oklahoma Disability Law Center said.
They’re now starting the process of filing a lawsuit, claiming the restaurant is ‘failing the deaf community and ignoring the Americans with Disabilities Act…”
Fox added further reporting that the local Burger King employee called the police as Hollis waited for service in the drive through lane.
According to Fox6’s reporting:
“Meanwhile, another employee calls the police.
‘I have a lady that’s stuck – sitting in my drive-thru and won’t move,’ the employee tells the 911 dispatcher. “She just pulled up to the window and my drive-thru is all the way wrapped around.”
Later, the [Burger King employee] motions for Hollis to come inside… If this is a multibillion dollar international company how come they do not know better? Spradling said.
That’s exactly what this pending litigation asks, pointing out that this particular location was part of the franchise’s ‘Burger King of Tomorrow’ plan. Through this plan, the restaurant added a ‘simplified ordering journey.”
The [attorney’s] letter also mentions the McDonald’s across the street, which has a sign telling ‘customers with speech or hearing difficulties to pull up for assistance.’
As for Hollis and her legal team, they’re just hoping to serve justice. ’It’s complete thoughtlessness,’ Spradling said. Burger King told KFOR the employee in the video was fired and that specific restaurant is going through sensitivity training.”
What does the law say?
Under ADA Title III, restaurants, hotels, and other public businesses are legally required to provide effective communicate for customers. Title III affords businesses some flexibility in deciding the type of communication to offer in given situations. The complexity of the transaction will inform the type of accommodation needed. For example, simply ordering food at a restaurant or cashing a check at a bank are typically not viewed as necessitating sign language interpretation, as determined by the federal courts and the U.S. Department of Justice.
According to U.S. Department of Justice Title III Guidance:
“Communicating successfully with customers is an essential part of doing business. When dealing with customers who are blind or have low vision, those who are deaf or hard of hearing, or those who have speech disabilities, many business owners and employees are not sure what to do. The ADA requires businesses to take steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities.
Because the nature of communications differs from business to business, the rules allow for flexibility in determining effective communication solutions…. For example, a restaurant can put its menu on an audio cassette or a waiter can read it to a patron…. Usually a customer will tell you which format he or she needs. If not, it is appropriate to ask.
In-person sign language interpreters or Video Remote Interpreting typically will not be required in restaurant settings. In this case, Hollis attempted to communicate with Burger King by written note. If the employee had responded appropriately, in writing, without refusing service to Hollis, the written communication would likely have been legally appropriate here.
However, without such an appropriate interaction, Burger King now faces disability discrimination litigation in federal court.
Check out some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson 2019, special for Bromberg, All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches implicit bias, cultural and civil rights awareness.