Law360 (June 16, 2021, 8:35 PM EDT) -- The Walt Disney Co. can't escape claims it violated the Americans with Disabilities Act when it barred an autistic boy from a store for not wearing a mask, a Pennsylvania federal judge ruled Tuesday, saying the boy's mother showed waiving the mask rule was reasonable and necessary.
Shea Emanuel said Disney was wrong to deny her son entry last year to a Disney Store in a mall in Whitehall, Pennsylvania, for not adhering to the store's pandemic policy. Emanuel said her 7-year-old son, called N.B. in the suit, can't wear a mask due to his autism and that she decided she wouldn't force him to wear a face covering in public.
Disney in January moved to toss the suit, arguing that Emanuel's request for her son was not reasonable, that she hadn't shown the requested modification was necessary for her son to access its store and that her request to waive the mask requirement poses a threat to the health of Disney's other guests and employees.
U.S. District Judge Joseph F. Leeson Jr. disagreed, however, saying in his order Tuesday that Emanuel has sufficiently alleged that it would not have been an undue burden on Disney to provide the requested accommodation for her son. She said her son was neither infected with COVID-19 nor exhibiting any symptoms of the illness and that everyone else in the store — including about 10 other shoppers — was wearing a mask.
Emanuel has also sufficiently shown the requested accommodation was necessary because her son is highly sensitive to touch, particularly on his face, the judge said.
"On several occasions, Emanuel alleges that she attempted to test N.B.'s tolerance for wearing different face coverings," the order states. "Emanuel's efforts proved unsuccessful because the sensation of the covering on N.B.'s face created an experience so unpleasant for him that he would immediately rip the covering off."
The judge found that Emanuel has sufficiently alleged that the accommodation was needed so her son could have access to the Disney store in the same manner as other non-disabled customers who were able to wear a face covering, according to the order.
In terms of Disney's safety-related affirmative defenses, those are not appropriate for this motion, Judge Leeson said. The judge denied Disney's motion.
Counsel for Disney did not respond Wednesday to a request for comment.
In her suit filed in September, Emanuel said Pennsylvania's statewide mask order includes a carveout for people whose disabilities prevent them from being able to wear a mask. But she said Disney refused to exempt her son from the store's mask-wearing policy, even though he had no COVID-19 symptoms and promised to abide by health officials' other safety guidance.
"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," Emanuel said. "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."
Emanuel is seeking a court order forcing Disney to make an exemption to its mask policy for people whose ADA-covered disability prevents them from being able to wear masks. She's also seeking attorney fees and costs.
"We are very pleased with the court's decision, which confirms what we've known all along: civil rights do not disappear during a pandemic," William P. Mansour of Mansour Law LLC, Emanuel's attorney, told Law360 on Wednesday.
Emanuel is represented by William P. Mansour of Mansour Law LLC.
Disney is represented by Paul M. Thompson, Kerry Alan Scanlon and Jeremy White of McDermott Will & Emery LLP.
The case is Shea Emanuel v. The Walt Disney Co., case number 5:20-cv-04639, in the U.S. District Court for the Eastern District of Pennsylvania.
--Additional reporting by Mike LaSusa. Editing by Ellen Johnson.
Update: This story has been updated with comment from the plaintiff's attorney.
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