On Monday, the Ninth Circuit Court of Appeals issued an interesting decision in Antoninetti v. Chipotle [PDF].  Incredibly, the decision finds that Chipotle violated the Americans with Disabilities Act (ADA) by failing to provide customers with the full “Chipotle experience,” which includes seeing one’s food prepared.  This one is a sad loss for the geniuses that brought us the barbacoa fajita burrito bowl with guac.

The Ninth Circuit determined that part of the essence of Chipotle is walking down the cafeteria-style line and watching the burrito goodness get put together.  Unfortunately for wheelchair bound individuals, however, burrito gazing is impossible for those lower to the ground, as a high dividing wall separates customers from their foody delights.  The panel concluded, in an opinion authored by Judge Friedman, that burrito-gazing is an interest protected by federal law:

In these circumstances, the wall conceals the food preparation counter from wheelchair-bound customers and thus prevents those customers from having the experience of non-disabled customers of fully participating in the selection and preparation of their order at the food preparation counter. The wall subjects them to a disadvantage that non-disabled customers do not suffer.

. . .

As noted, the presence of the wall in the two restaurants significantly reduced Antoninetti’s ability to enjoy the “Chipotle experience.” From his wheelchair, he could not see and evaluate the various available foods and decide which or how much of each he wanted. He also could not watch the food service employee combine those ingredients to form his order.

Predictably, conservatives are frothing at the mouth because this panel included the eeeeeeevil Judge Stephen Reinhardt.  I think it’s unfair to blame this one on Judge Reinhardt, but this case does strike me as a bit silly.  It’s hard to put a finger on what actual injury the plaintiff suffers in this case, a point that the panel somewhat meekly dismisses.  Moreover, Chipotle also made a real effort to accommodate those with disabilities.  Indeed, Chipotle established a formal policy stating that employees should (1) show samples of the food to the customer in small cups; (2) allow the customer to see or sample the food up close; (3) describe the food preparation process to the customer; or (4) prepare the food at the customer’s table or at the end of the food preparation area (where the counter is lower).  The Ninth Circuit nevertheless rejected these alternatives:

The substitutes that Chipotle provided—showing him samples of the individual foods in serving spoons, held in tongs or in plastic cups, or assembling the food at the “transaction station” or at a table in the seating area—do not constitute “equivalent facilitation” because they do not involve “use of other designs and technologies” or “provide [him with] substantially equivalent or greater access to and usability of the facility.” They merely provide a substitute experience that lacks the customer’s personal participation in the selection and preparation of the food that the full “Chipotle experience” furnishes.

So federal law protects not just a “burrito experience,” but a complete burrito experience?  Hmmm . . . I’m going to step out of my lawyer shoes for a second and say that — even putting aside whatever the statutes or regulations say — this result seems just plain weird.

It will be interesting to see if this theory is advanced in other food contexts.  Is the counter at the Starbucks too high to enjoy the “barista experience?”  Is the counter at Subway too high to see the sandwich artists at work?  Only time will tell.

Lastly, I would note that the opinion includes perhaps the first picture of a Chipotle in an appellate opinion.  Admittedly, it’s not the coolest picture* to appear in an appellate opinion, but it nevertheless strikes me as a bit funny.

-Michael

*That honor goes to the picture of a lion eating a birthday cake made of horse meat in Judge Posner’s opinion in Cavel International, Inc. v. Lisa Madigan [PDF], 500 F.3d 544 (7th Cir. 2007).