The concept of common sense clashed with company policy in a decision regarding an El Torito Restaurant in Burlingame, Calif. A disabled individual requested permission to use the employee restroom on the first floor, to avoid dealing with the 18-stair climb leading to the public restroom on the second floor. The manager refused the request and instructed the disabled fellow to use the restroom in another restaurant located next door.

The disabled man had previously been in an accident, which resulted in the amputation of his right leg several inches below his knee. He wore a prosthesis and used crutches to ease the pain.

Using his crutches, the disabled patron, who subsequently assumed the title of “plaintiff,” maneuvered his way out of the restaurant and “across the approximately 75 yards of parking lot to the restaurant where the El Torito Restaurant manager had directed him to go. That restaurant was not, however, handicapped accessible. On his way back to the El Torito Restaurant, [the plaintiff] encountered several people in the El Torito parking lot. Unable to wait any longer, [the plaintiff] found a bush and relieved himself.”

The Court of Appeal reports that the plaintiff “was angered and humiliated by this experience.”

The trial court found that El Torito had breached its duty to the plaintiff as a disabled person “and discriminated against him by refusing to permit him to `use the only available restroom facilities on the ground floor of the building, the employees’ facilities.’ The court awarded [the plaintiff] $80,000 as damages for this discriminatory act.”

The company argued that the plaintiff was denied access to the restroom pursuant to company policy, but contended that the policy was not discriminatory since it applied to all restaurant patrons. El Torito also argued that the policy “was motivated by health, safety and sanitation concerns… because [the plaintiff] would have to travel through a portion of the food preparation area to get there.” Specifically, the company argued “a guest returning from using the restroom would be tempted to sample food from the preparation bins, which could result in widespread contamination among diners.”

The Court of Appeal, however, stated, “We decline to find that an unsubstantiated and totally speculative concern that El Torito would be unable to prevent the patron from surreptitiously sampling food on the way to or from the restroom justifies denying a handicapped patron access to the only first-floor restroom on the premises.”

The moral of the story? Courtesy and common sense have a value. In this case, it was $80,000.

[This column is only intended to provide general information and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.]

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