|
| Patrick Witty for The New York Times |
| The federal government has accused a McDonald's franchisee in Northport, Ala., of violating the Americans with Disabilities Act by refusing to promote Samantha Robichaud to manager because of how she looks. |
ORTHPORT, Ala. — Samantha Robichaud was born with a dark purple birth mark covering her face, and she has felt the sharp sting of discrimination ever since.
"As a child, I was always exiled," Ms. Robichaud said. "No one wanted to play with me. Kids were scared that if they touched me it would rub off."
In school, Ms. Robichaud (pronounced ROW-buh-shaw) remained an outcast because of her birthmark, known as a port wine stain.
"I was never in the social scene, never with the cheerleaders or football crowd," she said. "The big joke was the guys would dare each other to make a date with me. Then some good-looking guy would go out with me and break my heart. Then everyone giggled about it."
Ms. Robichaud is 32 now, married and the mother of two, and well past worrying about schoolyard cruelty. Her struggle now is to obtain a measure of justice in a lawsuit that charges her former employer, a
In early March, the Equal Employment Opportunity Commission filed a federal lawsuit in Birmingham, 60 miles away, accusing the McDonald's franchisee of violating the Americans With Disabilities Act by refusing to promote Ms. Robichaud to manager because of how she looks. The franchisee, R.P.H. Management, denies the accusation.
About one in 3,000 children are born with port wine stains, caused by dilated capillaries under the skin, but Ms. Robichaud's doctors said hers was one of the worst they had ever seen, and untreatable by laser surgery.
Sometimes, she acknowledged, people derisively call her an alien.
In August 2000, Ms. Robichaud took a job at a McDonald's restaurant here, down Highway 43 from her high school. "I let them know when I was hired that I would be seeking a management position, that I would not want to be on the bottom of the totem pole forever," she said.
From 4 a.m. to 2 p.m. each day, she worked the grill, rushing hundreds of Big Macs and Egg McMuffins to the drive-through window and front counter. Eager to move up, she sought to master all the skills of running a McDonald's, learning how to stock the restaurant and working the counter and drive-through window when co-workers were out sick.
In her five months at McDonald's, she said she grew frustrated when some workers hired after her were promoted to manager. Ms. Robichaud, who was making $5.75 an hour, said she occasionally asked her superiors why she had not been promoted and was told she needed more experience and should learn to do some tasks faster.
One day, in January 2001, she said, opening the restaurant with the shift manager, the manager complained of health problems and voiced concern that there was no one suitable to replace her if she was out sick.
"I asked her, `Why don't you train me to be a shift leader?' " Ms. Robichaud said. "She said: `I'm tired of telling you a bunch of lies and coming up with a bunch of different excuses. You will never be in management here because I was told you would either make the babies cry or scare the customers off.' "
Ms. Robichaud was stunned. "I felt as if someone just slapped me upside the head," she said, tears filling her eyes. "It hurt."
A talkative woman, with a knack for telling stories, she insisted that she got along well with the customers and especially the children, often joking with them about what toys were in their Happy Meals.
After the rebuff over a promotion, Ms. Robichaud said, she decided she would "stop giving 150 percent."
"I had the willingness to do whatever it took to move up," she said. "And then someone says, `No matter what you do, no matter what you put in, you're not going to go anywhere.' How would that make you feel?"
The next day, Ms. Robichaud said, the shift manager criticized her for working slower than usual, saying she had developed a morale problem. Ms. Robichaud was so upset that she clocked out and went home. She never went back, considering herself forced out.
The next day, she contacted the E.E.O.C., which concluded that she had been improperly discriminated against. After months of efforts to reach a settlement with the franchisee, the commission filed suit on March 7, seeking unspecified compensatory and punitive damages.
"This is no different from a whole line of cases in which employers said, `We can't hire someone who's black for this kind of position because our customers would be uncomfortable,' " said Sharon Rennert, acting director of the commission's Americans With Disabilities Act division. "That's illegal discrimination, and it's no different here."
Charles A. Powell III, a lawyer for R.P.H. Management, asserted that the franchisee had done nothing wrong, but he declined to comment further on the case.
This disabilities act lawsuit is unusual because commission officials acknowledge that Ms. Robichaud is not disabled — she can walk, talk and work as well as most people. But the lawsuit relies on a part of the law that protects workers regarded as having a disability, and Ms. Robichaud asserts that McDonald's viewed her as having a disability that disqualified her from becoming a manager.
"This is an important case," Ms. Rennert said, "because this is a qualified person, an individual who met all the requirements to work at this McDonald's, who showed enthusiasm, a desire to improve herself, and yet for all her efforts, all the employer could see was this facial disfigurement. The employer was making a mountain out of a molehill."
But several experts on the disabilities law who represent management asserted that Ms. Robichaud's case faced an uphill battle because of a 1999 Supreme Court decision interpreting the Americans With Disabilities Act. The court defined a covered disability as one involving a substantial limitation of a major life activity. The court added that the limitation had to involve more than one particular job.
"She faces a lot of tough legal hurdles on this," said Peter Petesch, a Washington lawyer who represents companies in employment matters. "First, why would they have hired her if they were going to discriminate against her? Second, she has to show that she's substantially limited in a major life activity, and to do that you have to examine whether she's limited from a fairly broad range of jobs. We don't know that."
The case may boil down to whether Ms. Robichaud can demonstrate that McDonald's, by not wanting to place her in a visible job, was excluding her from a broad range of jobs.
"This is exactly the type of discrimination that those of us who helped enact the A.D.A. expected the law to address," said Chai Feldblum, a Georgetown University law professor who helped draft the disabilities act. "But given the way the law has been interpreted, it's uncertain whether a court will rule that this woman should get a remedy under the law."
If the federal courts dismiss her case, lawyers say, Ms. Robichaud will have no other legal remedy.
Since the lawsuit was filed, Ms. Robichaud has appeared several times on television, where she has sought to spread the teachings of "Beauty and the Beast" and the lessons her mother sought to instill in her — it is beauty inside that counts.
"You can be Miss America, but if you're ugly on the inside, your beauty doesn't mean anything," Ms. Robichaud said. "The beauty needs to come from the heart."
