gluten-free-diet_edited-1I reported in September on the decision in Phillips v. P.F. Chang’s China Bistro finding that a plaintiff with celiac disease had not stated a claim for discrimination under the ADA based on P.F. Chang’s policy of charging $1.00 extra for gluten free meals. On November 23, 2015 the same court found that the plaintiff had stated a claim based on an enhanced set of allegations in her Amended Complaint. Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 7429497, at *1 (N.D. Cal. Nov. 23, 2015).  This is a very common pattern in ADA litigation: Once the plaintiff knows what to say, he or she is almost always willing to say it in order to get past a Motion to Dismiss. For restaurants and their owners this latest decision requires some thought and possibly the adoption of new policies concerning menu items.

The Court’s change of heart hinged on two changes in the plaintiff’s allegations. First, she sufficiently alleged that celiac disease constitutes a disability under the more liberal definition of disability in the 2008 ADAA. Her new allegations amounted to a claim that she could not eat at any restaurant that did not have a special gluten free preparation area because of the risk of “cross-contamination” from exposure to products containing gluten. This distinguished her disease from avoidable nut allergies that have been found not to amount to a disability because they did not interfere with a major life activity. The Court expressed some doubt about this, but at the motion to dismiss stage could not do anything but accept the allegations as true.

The second change concerned the ease with which P.F. Chang’s could, according to the plaintiff, create gluten-free dishes. She alleged that creating a gluten free dish was equivalent to eliminating nuts, as P.F. Chang’s does for those with peanut allergies, or meat, as it does for vegetarians. It was, she claimed, discriminatory to charge for one kind of change (leaving out products with gluten) while not charging for other similar changes. The Court once again expressed skepticism about the truth of the allegations, but had to accept them as true until later in the litigation.

What does this mean for P.F. Chang’s and other restaurants? It seems likely that in the end Ms. Phillips will lose if P.F. Chang’s is willing to continue the fight. If that happens restaurants that charge more for gluten free meals will be vindicated. Unfortunately, any restaurant that is sued in the interim is likely to find itself in an expensive legal battle unless it takes steps now to avoid this kind of claim. This can be done easily enough by: (1) not charging extra for gluten free meals or any other kind of substitution based on an alleged medical condition if the request is from a person with celiac disease or other food related disability, or (2) simply not offering gluten free meals or other substitutions that are based on medical condition of some kind. Remember, it is a fundamental rule of ADA accommodation that a restaurant does not have to change or add to its menu in order to accommodate those with disabilities. It just can’t charge extra for an alternative that it offers to everyone.

The Phillips case won’t be resolved any time soon; in fact, the parties will not have to submit a proposed schedule until January of 2016, and any resolution is likely to be more than a year after that. In the meantime every restaurant should examine its policy on customers with food related disabilities on substitution of ingredients to make sure it has a policy that takes the Phillips worst case scenario into account.