The blogosphere is atwitter about the news of recent Department of Justice settlement with Lesley University. In it the University, without admitting any ADA violation, agreed to set up a number of special programs for students disabled by food allergies. One expert has called it a major expansion of the ADA [http://m.postbulletin.com/life/health/food-allergies-might-be-disability-under-law/article_61810501-3c95-5d7e-9574-7c1e985a9998.html], while others see it as a natural consequence of the changed definition of disability in the 2008 amendments to the ADA. In either case it is being seen as having important consequences for Title III entities (which includes almost all businesses) that serve food. But though the settlement is interesting, case law suggests that it does not signal a dramatic change in the definition of disability as applied by the Courts.
The analysis of “disability” in Griffin v. United Parcel Service, 661 F.3d 26 (5th Cir. 2011) serves as a perfect example of why food allergies and food related diseases may not become as important as the word on the web suggests. In that case the plaintiff suffered from diabetes that was controlled by medication and a restricted diet. The Fifth Circuit had no trouble concluding that the plaintiff suffered from a “physical impairment,” which is the first requirement for a disability. It also recognized that eating can be a major life activity. However, the plaintiff’s claim failed because the Court was not persuaded that his diabetes “substantially limited” the activity of eating. Because his diet restrictions were modest and similar to those observed by many people “for health and lifestyle reasons” the Court found he was not disabled although he did suffer from a physical impairment. The Court rejected the notion that a food related disease was necessarily a disability, quoting a lower court that “to so hold would be to recognize all persons with diabetes, lactose intolerance, food allergies, and various other eating-related impairments as disabled.” Instead the Court found that this kind of disability required an individualized inquiry into the extent of the effect of the disease on a major life activity.
Applying Griffin to food related disorders generally it would seem that those requiring only modest dietary restrictions will not be disabilities. For celiac disease, which seems to be the eating related problem that triggered the DOJ’s interest in Lesley University, treatment amounts to eating gluten-free foods. This excludes many kinds of grain products, but includes many other foods including (according the Mayo Clinic, http://www.mayoclinic.com/health/gluten-free-diet/my01140), beans, seed, eggs, meat fish and poultry, fruits and vegetables and most dairy products. It also includes cornmeal, rice and soy, so the starches are well represented. It would be reasonable for a court to conclude that celiac disease, although serious, is not a disability because it only requires a modest change in diet.
The Griffin court also noted that for the plaintiff, a failure to follow his restricted diet was not immediately life threatening and could be corrected by eating properly afterwards. Many food allergies are not life threatening although they may cause some discomfort. Diagnosis rates for celiac disease are very low precisely because the symptoms are subtle and the harm occurs only over time.
Which takes us back to Lesley University. The University’s problem was that in the context of student life, where eating in the school cafeteria is important and hard to avoid, the lack of allergen free options actually did substantially limit the major life activities of those students with food allergies. Students with food related diseases were likely to be exposed to allergens daily and the option of bringing their own food or eating off campus were impractical as a daily routine. The same considerations might not apply in lower school where students live at home and a substantial number bring lunch daily in any case. They would not apply at all to a restaurant or grocery store. This may be why the Department of Justice has not amended its Technical Assistance Manual, which states that “as a general rule” public accommodations are not required to provide foods that meet special dietary needs. Institutions like schools that may give students little choice about where to eat need to look carefully at their food service policies, but for most businesses that sell food there does not appear to be any dramatic change in the law.
