Chipotle Mexican Grill coined the phrase the “Chipotle Experience” to describe customers’ participation in the preparation of their meal. In July 2010, the Ninth Circuit ruled in Antoninetti v. Chipotle Mexican Grill, Inc., that the Chipotle Experience violated the ADA because there was no “equivalent facilitation” for customers in wheelchairs, who could not see over a wall separating the food from the customers. The court awarded injunctive relief, damages, and attorney’s fees. Like Chipotle, other restaurants and retailers are at risk for failing to offer the same customer experience to all their patrons, particularly if they advertise the experience to the public.

The Facts:  Maurizio Antoninetti, a wheelchair-bound paraplegic man, sought the “Chipotle experience” at two Southern California locations. All Chipotle restaurants were designed with a long counter displaying different foods from which a customer could create a personalized order that was assembled as the customer looks on. A wall separating the customers from the food display and preparation counter, made it impossible for customers in wheelchairs, such as Antoninetti, to view the displayed food or observe order assembly. Chipotle had an unwritten policy providing that, at a customer’s request, employees would display food to customers in wheelchairs and assemble meals at a customer’s table or on the wheelchair-accessible payment counter, which adjoined the food preparation counter. 

Antoninetti was not satisfied with Chipotle’s accommodations and alleged that Chipotle’s violated the Americans with Disabilities Act by failing to offer him the “Chipotle experience.” 

After Antoninetti filed suit, Chipotle enacted a written “Customers With Disabilities Policy.” According to the policy, Chipotle would (1) offer samples of different foods to customers in soufflé cups, (2) allow customers to see or sample food at a table; (3) describe the food preparation process to customers, and (4) accommodate any reasonable customer request. Antoninetti did not visit a Chipotle’s after implementation of the new policy.

After a bench trial, the District Court found that while Chipotle’s unwritten policy violated the ADA, its new, formal policy was compliant. The court therefore denied injunctive relief but awarded Antoninetti $5,000 in statutory damages under the California Disabled Persons Act and $136,537.83 in attorney’s fees (considerably less than the fees requested).

The Ninth Circuit Ruling:  The Ninth Circuit, on the other hand, held that even Chipotle’s written policy violated the ADA because it did not allow wheelchair-bound patrons to participate personally in the selection and preparation of their meals. Under Title III of the ADA, “public accommodations” built after January 26, 1993, must be “readily accessible to and useable by individuals with disabilities.” ADA guideline § 7.2 sets forth what “readily accessible” means for service counters, and it provides that if the counter does not meet specific dimension requirements, “equivalent facilitation shall be provided.”

The Ninth Circuit found that the written policy was not “equivalent facilitation” because the measures described “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 lack’s the customer’s personal participation in the selection and preparation of the food that the full ‘Chipotle experience’ furnishes” (emphasis added).

The court granted injunctive relief to Antoninetti, a decision with costly implications for Chipotle. It also ordered the district court to reconsider its damages and attorney’s fee awards as potentially insufficient.

Implications and Lessons:  The Chipotle case has a number of implications for retailers.

• There may be more a retailer can/must do to provide disabled patrons with the same customer experience as its other patrons. 
• Publicizing a customer experience as integral to a business can have significant implications unless a business can offer that experience to all patrons.
• Upon being sued, Chipotle may have limited its exposure in other suits (including class actions) by taking the initiative to retrofit all its California restaurants with a new counter design.
• Antoninetti’s status as a repeat litigant (he had sued over twenty different establishments for violations of the ADA) did not dissuade the Ninth Circuit, which commented that “Courts must tread carefully before construing a Disability Act plaintiff’s history against him . . . As we have noted more than once, ‘[f]or the [ADA] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [ADA].’”