Five Guys Must Face ADA Class Action, Judge Rules

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Five Guys was unable to dodge a class action lawsuit alleging the fast food chain’s website doesn’t comply with the Americans with Disabilities Act requirements that the site be accessible to customers who are blind.

Plaintiff Lucia Marett alleges in her class action lawsuit that she was unable to access Five Guy’s website and encountered thousands of barriers that limit the use of the site by blind customers. Five Guys filed a motion to dismiss the class action arguing that not only were they were working on updating their website, but that the website isn’t even covered by ADA requirements.

U.S. District Judge Katherine B. Forrest tossed Five Guy’s motion to dismiss. Five Guys attempted to end the class action by arguing that the ADA does not cover websites because the law includes a list of places considered public accommodation. This list includes hotels, restaurants, movie theaters and performance facilities, retail outlets, schools, museums, libraries, and service providers like banks and dry cleaners. Five Guys said that these places are all physical facilities, unlike their website.

In the order, the judge explained that Five Guy’s website is covered by the ADA. “[T]he text and purposes of the ADA, as well as the breadth of federal appellate decisions, suggest that defendant’s website is covered under the ADA, either as its own place of public accommodation or as a result of its close relationship as a service of defendant’s restaurants, which indisputably are public accommodations under the statute,” said the judge in her order.

Five Guys had also argued that they were working on updating their website to make it more accessible to blind users; however, the judge dumped this argument as well.

The judge also pointed out that the class action plaintiff had included steps that the restaurant could take to ensure its website was compliant with the ADA, including the Web Content Accessibility Guidelines 2.0.

The judge also noted that Five Guys had not yet completed the update to their website to make it accessible to those with visual impairments. “While defendant may be in the process of updating the accessibility of its website, they have yet to successfully do so,” notes the order.

“[Five Guys] has not established that ‘it [is] absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,’” continued the order.

The plaintiff alleges in her class action that she attempted to use the Five Guy’s website to order food, but found it simply impossible. The class action lawsuit claims Five Guys should have integrated recently developed technology to allow those with visual impairments to access their website.

According to the class action lawsuit, the plaintiff seeks to represent a nationwide Class of individuals with visual impairments who attempted to access Five Guy’s website, but could not because of the alleged access barriers.

Marett is represented by C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Five Guys Website Accessibility Class Action Lawsuit is Lucia Marett v. Five Guys Enterprises LLC, Case No. 1:17-cv-00788, in the U.S. District Court for the Southern District of New York.