ALLENTOWN – The Walt Disney Company says its refusal to permit entry to its Disney Store in the Lehigh Valley Mall to an autistic seven year-old child was only due to his not wearing a face covering to protect customers from COVID-19, and not due to his disability.
Shea Emanuel (as parent and natural guardian of N.B., a minor) of Northampton filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 22 versus The Walt Disney Company of New York, N.Y.
“N.B. suffers from nonverbal Autism Spectrum Disorder, a developmental disorder that affects communication and behavior. Although ASD severity runs along a broad spectrum, common symptoms of ASD include impaired social and communication skills, repetitive behaviors, insistence on sameness, and sensory intolerances. Many people with ASD, particularly children like N.B., are highly sensitive to touch, especially on their faces,” the suit stated.
As part of the measures taken to combat the coronavirus pandemic, Pennsylvania Department of Health Secretary Dr. Rachel Levine issued a statewide order requiring individuals to wear face covering in certain settings, including ‘in any indoor location where members of the public are generally permitted’, with the exception for those who cannot wear a mask due to a medical condition.
Along with plaintiff Emanuel and his brother, N.B. went to the Disney Store, located in the Lehigh Valley Mall in Whitehall, on July 20. The store had adopted a policy to deny entry to any person not wearing a face covering or mask – regardless of whether or not an individual was covered by the medical condition exception included as a part of the state’s order.
“There was a line of about 10 to 15 people standing outside the Whitehall Disney Store waiting to enter when plaintiff and her boys arrived. The entrance to the store was blocked off with a rope. Outside the entrance was one of defendant’s female employees, whose job it was to enforce defendant’s policy or practice of denying entry to people without face coverings and limiting the number of patrons inside the store,” according to the suit.
“Plaintiff and her sons proceeded to take their place at the back of the line. They stood in line for about 10 to 15 minutes before getting to the entrance. N.B. did not wear a face covering at any point while he was waiting in line with his mother and younger brother.”
When Emanuel arrived at the front of the line with her boys ready for their turn to enter the store, defendant’s female employee denied them entry because N.B. was not wearing a face covering. Despite Emanuel explaining to the defendant’s female employee that N.B. suffers from ASD, which prevents him from wearing a face covering, the plaintiff says her son was not allowed into the store.
“At that point, defendant’s female employee called for the store manager. Plaintiff informed the manager that N.B. suffers from ASD, which prevents him from wearing a face covering. Unpersuaded by plaintiff’s explanation, the manager refused to allow N.B. to enter the store because he was not wearing a face covering,” the suit stated.
“Plaintiff and her sons were humiliated by defendant’s act of denying them entry to the Whitehall Disney Store, especially since it occurred in front of about a dozen other people who were still waiting in line. N.B., in particular, was especially distraught since he was unable to fully comprehend why he was not allowed to enter the Whitehall Disney Store.”
Though N.B. was not infected with COVID-19, was not exhibiting any symptoms of COVID-19, such as fever, cough or shortness of breath and posed no direct threat of physical harm to himself or any other person inside the Whitehall Disney Store, he was denied entry nonetheless.
UPDATE
In a Dec. 21 motion to dismiss the complaint, The Walt Disney Company stated that its refusal to allow N.B. entry to the store was only due to his inability to wear a face covering to protect fellow shoppers from contracting COVID-19 – and not due to his autistic condition.
“Disney’s face covering requirement at the Whitehall Disney Store was designed to reduce the risk of transmission of COVID-19 within its store. It is a legitimate safety requirement with which all guests must comply, including those with a disability. Enforcement of this policy is particularly critical because the Whitehall Disney Store is located in an indoor mall, which increases the risk of spreading COVID-19 due to decreased ventilation. This Court should take judicial notice of these undisputed facts for purposes of the instant motion. When considered in light of the governing statutory language and implementing regulations, these facts clearly support dismissal of this case,” the motion read.
“No visitor of a retail establishment, not even one with a disability covered by the ADA, has the right to take the lives of other people into his own hands and risk infecting other guests and employees with a deadly virus. Congress foresaw this type of situation and insured that safety would take precedence over requests for accommodation by explicitly providing – in the statutory language of the ADA – a complete defense in cases like this one. Therefore, no violation of law occurred here and plaintiff’s complaint should be dismissed in its entirety.”
The defendant argued that the plaintiff’s requested modification to Disney’s face covering requirement “poses a direct threat to its guests and employees.”
“There is simply no question that COVID-19 is a highly infectious disease that has infected and killed 1.7 million people, and that wearing face coverings significantly reduces the risk of infection due to community spread of the virus. Because plaintiff has not and cannot make any allegations to rebut these undeniable facts, her Title III claim should be dismissed,” the motion said.
For a count of violating the ADA through public accommodation discrimination, the plaintiff is seeking an order permanently enjoining defendant from enforcing its face covering policy or practice at the Whitehall Disney Store against individuals who cannot wear face coverings because of an ADA-covered disability; all costs and reasonable attorney’s fees, and any other relief deemed proper and just.
The plaintiff is represented by William P. Mansour of Kitay Law Offices, in Allentown.
The defendant is represented by Paul M. Thompson of McDermott Will & Emery, in Washington, D.C.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-04639
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com