New ERA Article August, 1998

Common Sense Vs. Company Policy.
The Case Of The Employee Restroom?

The  concept  of common sense clashed with company  policy  in  a
recent  decision regarding an El Torito Restaurant in Burlingame,
California.   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 seventy-five
          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]  $80,000.00  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
that
                 "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 that

                  "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  rest
          room  justifies denying a handicapped  patron
          access  to the only first floor rest room  on
          the premises."

The  moral of the story?  Courtesy and common sense have a value.
In this case, it was $80,000.00!


[This column is intended to provide general information only  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.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1998-2002

	Myles M. Mattenson ATTORNEY AT LAW 5550 Topanga Canyon Blvd. Suite 200 Woodland Hills, California 91367 Telephone (818) 313-9060 Facsimile (818) 313-9260 *Email:* MMM@MattensonLaw.com *Web:* http://www.MattensonLaw.com	Common Sense Vs. Company Policy. The Case Of The Employee Restroom?
Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters. In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses. Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967. Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue. This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index. In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.