The Ambassador Theatre Group has proven, once again, that the best defense is a good offense.
Last year, Evelyn Castillo sued the Broadway landlord in federal court over its policy blocking guests from bringing outside food into its theaters. She complained that the practice discriminates against individuals with diabetes, and violates the Americans with Disabilities Act.
Under the federal law, places of public accommodation like Broadway theaters cannot deprive individuals with disabilities from the “full and equal enjoyment” of their shows. The venues must make reasonable changes to their policies, practices, and procedures to make their musicals and plays accessible to all.
Diabetes is recognized as a disability, and Castillo claimed the theater owner “imposes access barriers that make it difficult, if not impossible, for customers who are medically obligated to eat only particular foods to access and enjoy the public accommodations at the Public Facility.” It must “stop enforcing its draconian anti-food policy against disabled people who need food to treat their condition,” she stated.
Castillo insisted that “she must snack to boost her blood sugar if it gets dangerously low.” “When she cannot bring her own packaged or pre-measured food to an event, [she] is at risk of both overeating and undereating,” and, “[w]hen this happens, she is at further risk of either using too much insulin or not enough.” Purchasing food like other theatergoers at the concession booth is not a practical solution, she argued, because the packaged items contain “an unknown amount of sugar.”
According to her complaint, Castillo wanted to purchase a ticket to watch Head Over Heels at the Hudson Theatre. “However, she did not book a ticket due to the accessibility barrier of outside food being banned, as [the Ambassador Theatre Group] clearly states on its website,” her lawyers explained. “She understood Defendant’s discriminatory policy, and knew that such an attempt would be futile,” they claimed.
The argument hinges on a part of the law taken from racial discrimination lawsuits. “If an employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs,” wrote one Supreme Court justice. If it is obvious that someone with a disability would not be able to access a place of public accommodation, and any attempt to do so would be a so-called “futile gesture,” then the person does not need to try before filing a lawsuit to make it more accessible.
Without purchasing a single ticket, Castillo’s lawyer, C.K. Lee, filed almost identical lawsuits against Radio City Music Hall, Carnegie Hall, the Apollo Theater, and the Ambassador Theatre Group’s largest Broadway competitor, the Shubert Organization. He sued at least 43 businesses in New York over similar policies, including almost half of them over a span of two days.
But, whereas the Shubert Organization and many other companies chose to avoid the high cost of litigation and settle the lawsuits, the Ambassador Theatre Group decided to fight it.
Lawyers for the Broadway theater owner pointed to how its website “provides several methods for potential customers to contact [the firm], and … an accessibly statement and an additional number to call for assistance.” “Providing such information demonstrates [the Ambassador Theatre Group]’s intent to comply with the ADA,” the attorneys insisted, and Castillo “does not allege that attempting to attend an event at … [the] theatre and asking for a reasonable accommodation at the entrance would be futile.”
Castillo “does not allege that she asked [the theater] for a reasonable modification of its no-outside-food policy,” argued the attorneys for the Ambassador Theatre Group. She did not claim that a guard checking bags at the Hudson Theatre “otherwise knew of her disability, and refused to accommodate her.”
“Before a place of public accommodation has an obligation to consider modifying a policy to accommodate an individual with a disability, it first must have known of the alleged disability and why a modification of the policy may be required,” the lawyers argued. “Requiring places of public accommodation to anticipate every possible disability and prophylactically change policies to accommodate them would be facially absurd,” they stated.
The judge agreed, and dismissed the lawsuit in September.
“Castillo has not alleged any facts … to suggest that she had actual notice that the Theaters did not intend to comply with the Americans with Disabilities Act,” the judge observed. “She has not alleged, for example, that the Theaters maintained policies against individual exceptions to the no-outside-food rules, or that the Theaters had a pattern of declining such requests, or that an employee or agent of the Theaters warned her that she would not receive an accommodation if she requested it,” he explained. Castillo does not provide any reason to think that the theater owner would refuse to accommodate her.
Castillo does not plan to appeal the decision.