United States: Does The ADA Require Drink Dispensers To Talk?

In April 2015, Mary West and Patricia Diamond visited a Moe's Restaurant, where they attempted to use a "Freestyle" drink dispenser, which allows customers to select from over 100 different beverages using a touch-screen interface. Both women are blind, and neither could use the dispenser's touch screen. They asked for assistance from restaurant employees, but were ultimately assisted by another customer instead. Eleven days later, they filed a class action lawsuit in the Southern District of New York against the franchisee that owned the restaurant, claiming that it violated the Americans with Disabilities Act ("ADA," "the Act") by using machines that lacked "adaptive features," such as a screen reader with audio descriptions and tactilely discernible control buttons that enable blind customers to use the dispensers independently.

In December 2015, siding with the restaurant, Judge William Pauley III dismissed the action. Understanding his reasons—and why his decision is important—requires a short review of the "auxiliary aids" standard of the ADA.

The Auxiliary Aids Standard

Title III of the ADA generally prohibits retailers and other public accommodations from discriminating against individuals with disabilities "in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. . . ."1 The Act contains both "general prohibitions" and "specific prohibitions," that guide the interpretation of the Act's antidiscrimination rule. "General prohibitions" are principles of nondiscrimination applicable to all entities subject to Title III.2 "Specific prohibitions" apply Title III's prohibitions to particular situations, and control over the general prohibitions in circumstances where both specific and general apply.3

The auxiliary aid standard is a specific prohibition that requires covered public accommodations to "take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services," unless providing that accommodation would "fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered, or would result in an undue burden."4 "Auxiliary aids and services" include things like qualified interpreters, qualified readers, taped texts, modifying equipment or devices, and other similar services or actions.5

The obligation to provide auxiliary aids is grounded in the general obligation of public accommodations to "effectively communicate" with disabled customers, clients, patients, and participants, as well as with their companions.6 According to Department of Justice ("DOJ") regulations, "[i]n order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability."7

West v. Moe's Franchisor LLC

In West v. Moe's Franchisor LLC, Judge Pauley rejected the idea that the specific accommodation demanded by the plaintiffs was required by the ADA, dismissing their case.8 He recognized that, although Title III requires "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation," the auxiliary aids standard is "flexible" and "[t]he type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place."9

He further explained that, while public accommodations "should" consult with disabled individuals to determine what auxiliary aid is needed, "the ultimate decision respecting what measures to take rests with the public accommodation, as long as it results in effective communication." For example, he noted that "a restaurant would not be required to provide menus in Braille for patrons who are blind, if the waiters in the restaurant are made available to read the menu."10

Ultimately, Judge Pauley held that the plaintiffs failed to state a claim for violation of Title III because disabled patrons could seek assistance from Moe's employees in using the Freestyle dispensers. He explained that the auxiliary aids standard permits restaurants "to use qualified readers to assist visually-impaired patrons with menu selections," and that "[n]othing in the ADA or its implementing regulations supports Plaintiffs' argument that Moe's must alter its Freestyle machines in a way that allows blind individuals to retrieve beverages without assistance."11 He acknowledged that, while technological additions to the Freestyle machines might be both feasible and preferable, the law did not require the restaurant to acquire those additions. He also concluded that he could not infer from a single visit that the franchisee had failed to appropriately train its employees to assist customers with disabilities.12

Practical Implications for Businesses

West is an interesting case for a number of related reasons.

First, the case illustrates the tension between the evolution and availability of advanced technology and the statutory obligation to provide an accommodation. Twenty-five years ago, Congress acknowledged that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities," and that "[s]uch advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities."13 Courts seize on this and similar ADA legislative history to observe that "[a]s new devices become available, public accommodations must consider using or adapting them to help disabled guests have an experience more akin to that of nondisabled guests."14

But West confirms that the auxiliary aids standard does not require public accommodations to adopt the most advanced technology, merely because it becomes available. Instead, the focus of the auxiliary aids standard is on "effective communication." This is consistent with DOJ's regulator guidance interpreting Title III, which acknowledges that the "use of the most advanced technology is not required," and that public accommodations have the right to "choose among various alternatives," so long as the result is effective communication.15

Second, West clarifies the relationship between independent use and third-party assistance. As noted above, DOJ's regulations urge that auxiliary aids and services should, among other things, protect "the privacy and independence of the individual with a disability."16 Taken literally, this regulation could suggest that an auxiliary aid is not effective unless it empowers individuals with disabilities to use and enjoy a public accommodation's goods and services independently—that is, without the assistance of others. The plaintiffs in West urged Judge Pauley to require such independence, pointing to regulations requiring it for automated teller machines.17 But preservation of independence should not, as a definitional matter, be the sine qua non of an effective auxiliary aid. As Judge Pauley recognized, Title III and DOJ's regulations expressly recognize that third-party assistance, through qualified readers and interpreters, can qualify as effective auxiliary aids, depending on the circumstances, especially when privacy concerns are absent (as they were in merely obtaining one's preferred cola product).

Finally, West almost certainly has ramifications that reach far beyond drink dispensers in brick and mortar restaurants. In recent months, businesses and other public accommodations that maintain a presence on the internet have been barraged by demand letters and lawsuits in which the plaintiffs/claimants argue that websites are inaccessible to individuals who are blind or who have vision impairments because they fail to comply with certain accessibility guidelines published by the World Wide Web Consortium, commonly referred to as the "WCAG 2.0."18

Despite the certainty asserted in these claims, whether Title III applies to internet websites at all is far from a settled question.19 And because WCAG 2.0 is comprised of privately issued "guidelines" that do not have the force of law, it remains unclear whether and to what extent WCAG 2.0 will be adopted as a legally enforceable Title III standard. The Department of Transportation has adopted WCAG 2.0 as the standard for airline website accessibility.20 The Department of Health and Human Services so far has taken a different approach in its proposed Affordable Care Act nondiscrimination regulations.21 And DOJ, which first proposed to issue Title III website accessibility regulations in July 2010,22 remains undecided, predicting only that a notice of proposed rulemaking will be issued some time in 2018.23 Unless DOJ promulgates enforceable regulations adopting WCAG 2.0 as the standard for website accessibility, West's holding and rationale suggest that a website's failure to comply with WCAG 2.0 by itself is not a violation of Title III if (assuming accessibility is required) another accommodation or auxiliary aid is available.24

Although Judge Pauley expressed serious misgivings that the Amended Complaint could be rehabilitated, he gave the plaintiffs 45 days to re-plead. That deadline has passed, and the plaintiffs have neither taken him up on that invitation nor filed a Notice of Appeal. Although the Second Circuit will apparently not have the opportunity to weigh in, Judge Pauley's opinion provides helpful guidance regarding the nature and extent of Title III's auxiliary aid standard at a dynamic time in the development of adaptive technologies and accessibility standards.


[1] 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).

[2] 42 U.S.C. § 12182(b)(1); 28 C.F.R. §§ 36.202 – 36.212.

[3] 28 C.F.R. § 36.213.

[4] 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. §§ 36.303(a) & (g).

[5] 42 U.S.C. § 12103(1)(A)-(D). DOJ's regulations provide additional, and more technologically current, examples of "auxiliary aids and services," including on-site or video remote interpreting services, videotext display, screen reader software, and other effective methods of making visually delivered materials available to individuals with vision impairments. 28 C.F.R. § 36.303(b)(1)-(4).

[6] 28 C.F.R. § 36.303(c); see National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 955-56 (N.D. Cal. 2006).

[7] 28 C.F.R. § 36.303(c)(1)(ii).

[8] 2015-CV-2846, 2015 U. S. Dist. LEXIS 165070 (S.D.N.Y. Dec. 9, 2015)

[9] Id. at *6 & *7.

[10] Id.

[11] Id. at *9.

[12] Id. at *10 - *11.

[13] H.R. Rep. No. 101-485(II), at 108 (1990).

[14] Baughman v. Walt Disney World Company, 685 F.3d 1131 (9th Cir. 2012); see also, e.g., Enyart v. Nat'l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1163 (9th Cir. 2011).

[15] 28 C.F.R. pt. 36, App. B at 727-28 (2010).

[16] 28 C.F.R. § 36.303(c)(1)(ii) (emphasis added.)

[17] Current ADA Accessibility Guidelines for ATMs do not by their terms apply to other types of interactive transaction machines like the Freestyle dispenser. See 36 C.F.R. pt. 1191 app. D, Advisory 707.

[18] For more information on WCAG 2.0, see http://www.w3.org/TR/WCAG20/.

[19] Compare, e.g., Cullen v. Netflix, Inc., 2015 U.S. App. LEXIS 5257 (9th Cir. 2015) ("Netflix is not subject to the ADA"); and Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1319 (S.D. Fla. 2002) (the term "place of public accommodation" does not include southwest.com), with, e.g., Nat'l Fed'n of the Blind v. Scribd Inc., 2015 U.S. Dist. LEXIS 34213 (D. Vt. 2015) (websites are public accommodations); Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) (same).

[20] See Dep't of Transportation, Nondiscrimination on the Basis of Disability in Air Travel -- Accessibility of Websites and Automated Kiosks, 78 Fed. Reg. 67882 (Nov. 12, 2013).

[21] See Dep't of Health & Human Services, Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54172 (Sept. 8, 2015).

[22] See Dep't of Justice, Advance Notice of Proposed Rulemaking, Accessibility of Web Information Services of State and Local Governments and Public Accommodations, 75 Fed. Reg. 43460 (July 26, 2010)

[23] See Dep't of Justice, Fall 2015 Statement of Regulatory Priorities, http://www.reginfo.gov/public/jsp/eAgenda/

[24] See Department of Justice, September 9, 1996 Letter to Senator Tom Harkin, http://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/tal712.txt. (owners of inaccessible websites may provide web content in "other alternate accessible formats," including "Braille, large print, and/or audio materials"); Dep't of Justice, Advance Notice of Proposed Rulemaking, Accessibility Of Web Information And Services, 75 Fed. Reg. at 43466 ("covered entities with inaccessible Web sites may comply with the ADA's requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site").

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions