A discrimination suit filed by a hearing-impaired Nebraska woman against McDonald's Corp. may hinge on whether it is reasonable for the fast-food chain to slow down the processing of drive-through orders to accommodate the disabled.

Karen Tumeh alleges she is unable to use drive-through order or “squawk” boxes because of her impairment and employees of a McDonald's in Lincoln, Neb., violated the Americans with Disabilities Act (ADA) by refusing to let her order directly from the drive-through window.

“The use of the drive-thru window for taking a food order is a necessary and reasonable accommodation for Plaintiff,” she says in a complaint which describes several confrontations with McDonald's staff between Sept. 1, 2007 and June 9 of this year.

On two occasions, an employee at the drive-through window allegedly told Tumeh to drive around again to the order box or go inside to order. During a May 2 visit to the restaurant, the suit says, “Defendant's employee ... stated, 'I told you before you need to order at the box,'” and only served Tumeh “[a]fter much argument and humiliation.”

Under the ADA, discrimination includes “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.”

While there is no appeals court precedent that addresses access to a drive-through window for the hearing-impaired, Tumeh doesn't seem to be asking for much. “If she's in a hurry ... and wants to use the drive-thru rather than dealing with the hassle of going inside to order, then why shouldn't she be able to?” asked a Lincoln Journal Star reader.

Tumeh says her hearing aid begins to screech when she tries to order food from drive-through order boxes.

But McDonald's would have a defense if it can show that allowing drive-through window orders would “fundamentally alter the nature of [its] goods, services, facilities, privileges, advantages, or accommodations.”

According to an article by a former McDonald's worker, a drive-through team at busy times consists of an order-taker, a money-taker, a runner who assembles the order and a presenter who delivers it to the customer. “The ultimate goal of the drive through team is to have this whole process completed within 60 seconds,” the article says.

If Tumeh was allowed to bypass the order box, that could add time to the process, delaying other customers, as she blocks the drive-through window while making her order.

“If you can't complete orders in 60 seconds you get yelled at by the boss and you have to deal with people like her all day long wanting you to figure out what they want,” said a reader of the Moonbattery blog.

A Washington, D.C., judge, however, ruled in 1995 that a McDonald's discriminated against a deaf customer by refusing to serve him at the drive-through window after he was unable to order at the order box. Bunjer v. Edwards, 985 F.Supp. 165.

The restaurant should provide for the deaf and hearing-impaired by putting up a sign at the order box "instructing deaf patrons to proceed directly to the [drive-through] window to have their orders filled," U.S. District Judge Stanley Sporkin said in affirming a $1,500 jury award. He also described the case as a "wake-up call" for the company as a whole.

Tumeh is seeking injunctive relief and a court order directing McDonald's

to train all employees in their duties pursuant to the ADA and its implementing regulations, specifically allowing deaf and/or hearing- impaired persons to order at drive-thru window without harassment, embarrassment or humiliation.

Plaintiff's attorney Shirley Mora James (Nebraska Advocacy Services, Lincoln) says the facts in Bunjer "are almost identical to my client’s case expect that my client’s case is much more damaging because my client was actually denied services on more than one occasion."

By Matthew Heller
7/24/08