December 5, 2022

Volume XII, Number 339


December 05, 2022

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Federal Court Upholds Enforcement of Grocery Store’s Face-Covering Policy Over Customer Claims of Disability Discrimination

A Pennsylvania district court delivered good news for retailers struggling to balance enforcement of their face mask policies against the rights of customers who assert that their disabilities (or other factors) excuse them from wearing masks. The court denied a plaintiff’s application for a preliminary injunction to modify a grocery store chain’s policy requiring all customers to wear face masks or other face coverings, finding that the policy did not discriminate against the plaintiff based on his disabilities.


Josiah Kostek is one of 69 plaintiffs in an action against Giant Eagle, Inc. grocery stores that alleges violations of Title III of the Americans with Disabilities Act of 1990 (ADA). The ADA prohibits disability discrimination in places of public accommodation, including grocery stores, and requires stores to make reasonable modifications to their policies in order to provide full access to individuals with disabilities. This was Kostek’s second motion for a preliminary injunction that would have enjoined Giant Eagle’s face-covering policy and permitted him to enter the company’s stores without a face covering. The court denied both motions.

U.S. District Judge Nora Barry Fischer’s order concluded that Kostek had failed to show that his request to be permitted to shop in Giant Eagle’s grocery stores without a mask was reasonable or necessary. The court found that the store’s face-covering policy was a reasonable interpretation of the Pennsylvania Department of Health’s orders requiring people to wear face coverings in all public places, which included a suggestion that individuals who cannot wear face coverings due to medical or mental health conditions wear face shields instead.

Giant Eagle allows customers who cannot wear masks to wear full-face shields or other face coverings instead, and the company offers alternatives for customers who cannot wear any face coverings, including curbside service, home delivery, and personal shoppers. Kostek refused to avail himself of these options and instead visited the company’s a store on two separate occasions without a mask. The first time, he attempted to shop without a mask or other face covering, which resulted in his arrest and conviction for disorderly conduct. The court found that, in a second incident 11 days later, he “intentionally entered the store without a mask or face covering for the purpose of causing a scene and creating a confrontation.”

The Court’s Analysis

While the ADA requires retailers and other businesses to reasonably modify their policies in order to provide full access to individuals with disabilities, the court found that Kostek had failed to offer any medical evidence that his cited mental health conditions, including anxiety disorder, panic disorder, and post-traumatic stress disorder, left him unable to wear a mask. The court was persuaded, in part, by Kostek’s numerous social media posts and a video he had made when he visited the store, in which he stated that he was in excellent health but had a “‘right to refuse wearing a mask.’” Accordingly, the court concluded that Kostek had not shown that he was entitled to an exception to Giant Eagle’s face-covering policy.

The court also found that Giant Eagle had not discriminated or retaliated against Kostek by sending him a letter informing him that he was not permitted to return to the Giant Eagle store where he was previously arrested. Local police suggested that Giant Eagle send the letter after Kostek’s second disruptive visit to the store.

Having found other grounds for denying Kostek’s motion, the court did not consider Giant Eagle’s arguments that its face-covering policy was a legitimate safety requirement during the COVID-19 pandemic or that Kostek’s refusal to wear a face covering presented a direct threat to the health and safety of other customers and employees. In a positive nod to those important defenses, the court called those defenses “well-taken” without relying on them to reach its ruling.

In light of the court’s denial of Kostek’s motion for a preliminary injunction, the attorney who represents Kostek and his 68 co-plaintiffs advised that they intend to proceed with discovery on all claims.

Key Takeaways

The court was swayed by the fact that Giant Eagle permitted customers who could not wear face masks to wear other kinds of face coverings and provided several other means for customers who could not wear any face coverings to access its goods. The court also commented positively on the store’s clear communication of its policies, which were posted on the front door of the store and on the company’s website, and expressly referenced the state guidelines for essential businesses.

Retailers, restaurants, and other businesses may want to explore alternative means of providing their goods and services to customers in lieu of making exceptions to their face-covering policies; align their policies to reflect state and local guidelines (including incorporating applicable exceptions), and clearly communicate those policies in their business locations and on their websites.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 303

About this Author

Caroline Larsen, Litigation, Employment, Ogletree Deakins Law Firm

Caroline Larsen has litigated and defended clients in a wide variety of employment matters in various venues, including Arizona state court, various district courts, the Arizona Court of Appeals, the Court of Appeals for the Ninth Circuit, the Equal Employment Opportunity Commission, the Department of Labor, Arizona Civil Rights Division, U.S. Department of Justice - Office of the Chief Administrative Hearing Officer, the Arizona Division of Occupational Safety and Health (ADOSH), U.S. Department of Housing and Urban Development, the Office of Federal Contract Compliance Programs (OFCCP),...