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Mandatory training

Court decision could impact QSR industry


Published:

 

A U.S. Appeals Court decision could have big implications for the way
franchisees train workers in how to help blind people read menus.

When Alice Camarillo asked for directions to the women's restroom at a Burger King in Catskill, New York, the worker directed the blind woman to the men's room as a joke.

A worker at another chain, Taco Bell, wouldn't read a menu out loud to Camarillo until all the other customers behind her had been served.

While this may seem like the random acts of unprofessional workers, to Camarillo they were violations of the Americans with Disabilities Act and the franchisees of the two chains—along with franchisees of McDonald's and Wendy's restaurants in the area—found themselves on the wrong end of a lawsuit.

In February, the U.S. Court of Appeals for the Second District agreed with Camarillo, saying that the restaurants violated the spirit of the federal law. The court said the restaurants didn't provide enough training to employees on how to deal with customers like Camarillo.

 

The court reversed a lower court decision dismissing the case. The appeals court's decision sends the lawsuit back to that court to be tried.

Observers say the ruling means that it's not enough for fast-food restaurants to simply have policies in place to help blind customers. Businesses must follow through. "It's a clarion call for franchisors and their franchisees to ensure that proper training is given regarding compliance with the ADA," said David Kaufmann, a New York-based franchise attorney with Kaufmann, Feiner, Yamin Gildin & Robbins.

"If a restaurant has large-print menus but doesn't tell staff where they are, what good are they?" asked Fred Shotz, who works with businesses and the disabled on complying with the ADA.

Yet Michael O'Neill, the New York attorney who represented Camarillo, said the case wasn't particularly groundbreaking. "It's probably the first case that focuses on this issue of how fast-food restaurants communicate the contents of their menu to their customers and the challenges that can have for sight-disabled people," he said. "But I don't think it broke new ground legally. They have always had that obligation."

The Americans with Disabilities Act passed in 1990 and went into effect in 1992. It gives certain rights to people with disabilities, outlawing discrimination and requiring anyone who owns a building, employs people or serves customers to provide access to people with certain handicaps. It's why buildings have elevators, sidewalk ramps, automatically opening doors and special parking spaces.

Advocates for the disabled, however, say that compliance has been spotty at best. Shotz, who is in a wheelchair because of a 1969 accident involving a drunk driver, said simple ADA violations such as failures to help blind people read menus are commonplace. "We shouldn't have to deal with these ridiculous cases over and over again," said Shotz, who has filed numerous lawsuits against cities and businesses for ADA violations.

Alice Camarillo is legally blind, but she is able to see a large-print menu if she holds it close to her face.

Camarillo frequented numerous fast-food restaurants near Catskill and Hudson, New York. None of the restaurants—all franchisee owned—had large-print menus for her to read, according to the lawsuit. Yet she frequently met resistance from employees whenever she asked them to read a menu. At best they read only part of the menu, the lawsuit claims.

The U.S. district court in dismissing the case said the restaurants didn't violate the ADA because staff allowed Camarillo to eat there. But the appeals court said the allegations were "more than mere rudeness and insensitivity, and more than one or two isolated mistakes." The court found that the restaurants "failed to adopt policies or procedures to effectively train their employees how to deal with disabled individuals. Such a failure to adequately  train
constitutes a violation of the ADA."

Kaufmann said the wording means that restaurant owners and others have to take care to train workers on complying with the ADA. But franchisors have to take care, too, to ensure that franchise agreements require franchisees to strictly adhere to ADA requirements. "Having a blind patron enter the wrong restroom is grievously wrong morally and now wrong legally," he said.

Franchisors, Kaufmann said, are generally not liable for the ADA violations of their franchisees. But he said another lawsuit could cite the court's decision while alleging that the franchisor didn't do enough to require franchisees to adhere to the ADA. He said franchisors should make sure they provide adequate ADA training to new franchisees with an ADA compliance program.

Franchisees' task is more difficult. Fast-food restaurants in particularly deal with a large number of inexperienced workers. Many workers are under 18. They also have notoriously high turnover rates and many restaurants frequently struggle to hire enough help, especially when unemployment is low.

"Controlling employees is always the most significant challenge on the employer front," Kaufmann said. "You have to know who you hire, know how you're going to supervise them and make sure you're actually supervising them. It's not good enough to just say 'You've got to comply with the ADA.'"

Larry Durrett, president of Southern Multifoods—an operator of Yum! Brands stores along with A&Ws in Texas—said the key in controlling workers is in hiring. "You don't train friendly customer reps, you hire them," he said. "You can tell pretty soon during the course of that person's training. If you can't train that person to smile and be a customer maniac, that person needs to find someplace else to work." His stores have large-print menus and workers will read the menus to people who can't see.

O'Neill doesn't believe the requirement to help blind customers is difficult to adhere to, but he doesn't believe it should be up to front-line workers who may see few, if any, blind customers during their time on the job. "There has to be a better way of doing it," O'Neill said. "It's not that difficult to think of better ways than for having a minimum-wage teenager responsible for complying with the ADA."

Shotz believes that role should belong to managers. One of his biggest clients is Arby's. That chain trained its managers, including assistant managers and night-shift managers, to accommodate people needing assistance. Front-line workers were told to get a manager whenever a blind or otherwise disabled person needed extra help.

"We can't expect minimum wage employees to know what to do about this," Shotz said. Managers are generally better employees, with lower turnover and higher wages. They are not in the throes of dealing with numerous customers at the same time, which can make an employee less likely to take the time necessary to read a menu.

Managers "are not in position of having 10 tables to wait on, and having customers get really annoyed asking 'Where's my food?' when you're talking to the person at that table," Shotz said. "That's where management staff comes in."

Still, he noted that "large print menus are not hard" to print off, nor is it difficult for an employee at any restaurant to read a menu to a visually impaired customer. "It shouldn't be that difficult to train everybody," Shotz said. "But I'm a pragmatist. I've worked with this too long and seen too much to be idealistic that that's going to happen."

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