This blog and the next were prompted by two recent efforts by state officials to deal with the problem of emotional support animals. One was a decision from the Iowa Supreme Court that puts a state law overlay on how to deal with conflicts between disabled and non-disabled tenants. You can find the details in William Goren’s blog.¹ The other was a recent legislative effort in Florida, the passage of Senate Bill 1084, which adds specific anti-discrimination provisions for emotional support animals.² These are far from the first efforts at the state level to do something about animals and disabilities,³ but they illustrate the problems these laws create for landlords trying to deal with fake emotional support animal requests.(4) More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Litigation Procedure, Restaurants Tags: ADA defense, allergies, celiac disease, Colonial Williamsburg, gluten intolerance, gluten-free meals
J.D. v. Colonial Williamsburg Foundation, Case No. 18-1725 (4th Circuit, May 31, 2019) to my attention. For those interested in the parameters of the ADA’s requirement that public accommodations modify their rules for the disabled the case has a thorough discussion of the basic case law. What I find more interesting is the Court’s failure to address its imposition of a double standard in dealing with modification requests. It seems that for businesses it is forbidden to deny a modification request based on past experience with others while for those with disabilities it is perfectly reasonable to demand a modification based on the fear that what others did in the past will be done by a completely different public accommodation. The Court never explains why this should be the case.
The background is simple. The plaintiff child has celiac disease or some similar lesser condition and reacts badly to gluten. In the context of this appeal from a summary judgment the existence of a “disability” under the ADA was assumed.** On a school trip to Colonial Williamsburg his parents packed a special gluten free meal for him despite the availability of gluten free options at the Shields Tavern, the restaurant to which the group went to for lunch. They did this because they had had bad experiences at other restaurants in the past although they had never been to this restaurant or any other at Colonial Williamsburg in the past. Based on their experience with other, unrelated, restaurants they were afraid to trust the Shields Tavern.
When they arrived at the Shields Tavern they were told they could not bring in outside food because it violated health department regulations, but the restaurant could provide gluten free meals for the child or allow them to simply wait inside with the rest of the group to enjoy the atmosphere. Things went badly and the child and his father ended up eating outside. This lawsuit followed.
The principal question was whether the restaurant had unlawfully refused a requested reasonable modification that was necessary for the child to have the same dining experience as his classmates; that is, was it necessary that the father and child be permitted to eat their special food in the restaurant. The restaurant’s argument was simple – because it offered gluten free meals no modification was necessary. Their existing gluten free options completely addressed any need related to the child’s disability. The parents, on the other hand, argued that their fear based on past experiences at other restaurants made it unreasonable to expect them to trust this restaurant. Thus it was “necessary” that they be permitted to bring their own food.
The ADA and its implementing regulations have something to say about fear based on past experience. When a public accommodation is asked to grant a modification and believes the requested modification presents some threat or danger it must make “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.” 28 CFR §36.208(b). This means, for example, that a basketball camp could not exclude a player with HIV because there was no objective medical evidence that there was a significant risk others would be infected through contact. Doe v. Deer Mt. Day Camp, Inc., 682 F. Supp. 2d 324, 349 (S.D.N.Y. 2010). This was so despite the fact that even if the risk is very small, the consequences of HIV infection are very severe.
In J.D. v. Williamsburg the 4th Circuit adopted a different standard for the parents’ fear of exposing their child to food cooked in a restaurant. Instead of an individualized assessment of the restaurant’s ability to produce a truly gluten free meal the parents were allowed to demand a modification based on past experience with other unrelated restaurants.
The Court addressed this as part of the “necessity” requirement for a reasonable modification. In doing so the Court completely disregarded the usual requirement that decisions be based on an individual inquiry rather than mere stereotypes. It found that the offer of a gluten free meal might not be adequate (a jury would have to decide) based on the family’s experience with food “prepared by commercial kitchens.” The phrase “commercial kitchen” applies to a very wide variety of food service establishments. The taco stand in the Chevron station a few miles from my house is a commercial kitchen, as are fast food restaurants, food trucks and, of course, the most expensive fine dining experience in the world, the Osteria Francescana in Moderna, Italy, ranked as the best restaurant in the world in 2018 according to Forbes.
Nowhere does the Court consider whether something beyond the parents’ fear creates a “necessity” for the modification; in fact it expressly disregards the actual ability of the restaurant to deliver a truly gluten free meal. The child was entitled to eat his own food in the restaurant based only the fact he had bad experiences in other restaurants in other places and without any evidence other than speculation that his other restaurant experiences were in fact the cause of symptoms or any showing the symptoms in those past incidents were especially severe.†
What seems to really stand behind this decision is not the need for the modification (because there was no objective evidence that it was needed) but rather the ease of granting it. Whether the parents’ fears were objectively rational or not, letting the child eat his special food in the restaurant would have cost the restaurant almost nothing in terms of money or convenience. As a reason for a practical decision by the restaurant’s management the low cost of granting the modification makes sense, but the ADA doesn’t require modifications unless they are necessary – reasonableness is a different inquiry. With this case we have a double standard in evaluating modification requests. A public accommodation cannot rely on fears based on past similar experiences; it must consider only the individual request before it. Those with disabilities, on the other hand, are entitled to a modification based only fear arising from the past mistakes of completely unrelated parties who happen to be in the same business (“commercial kitchens”).
The legal takeaway for restaurants is simple. If you want to avoid expensive litigation grant the unreasonable modification that probably isn’t required. After all, the person demanding it has the ability to use the courts to cause far more trouble than it is worth to stick to what the law requires or permits. This is, of course, the entire story of private enforcement of the ADA and the reason money is wasted on lawyers instead of being devoted to real issues of accessibility for the disabled.
** The circumstances under which allergies and food intolerances constitute disabilities are hard to define because in most cases there is a wide range of symptoms from almost trivial to life threatening and in many cases medical evidence of the condition is hard to find. See my blogs on “Allergies and the ADA” “Gluten free for free” and “A story with a moral” for more on this subject.
† The only evidence recited by the court was that after eating at one restaurant the child “wasn’t feeling well” and in the case of the other he “experienced symptoms consistent with having ingested gluten.” There was no evidence that restaurant food had caused severe reactions and no medical evidence that in the two cases recited by the parents the later symptoms were in fact caused by consumption of restaurant food although they did say that in one case they returned to the restaurant and found a regular noodle mixed in with the gluten free noodles in his pasta.
A news story about a children’s theater group caught my eye this week because it so vividly illustrates the trouble a business can get into if it does not understand the law of reasonable accommodation under the ADA. You can read the story HERE. In brief, a potential theater member with a severe peanut allergy requested that the theater have a “no nuts” policy and that the director be willing if necessary to help the child with his epi-pen. The owner declined and probably said some unfortunate things about the request. Eventually the DOJ got involved and now, unless the matter settles, everyone will be off to court.
What went wrong? First, it is clear that the theater director did not understand the reasonable accommodation obligation and even more important, did not understand the “interactive process” that the ADA regulations encourage.* The name of the game in reasonable accommodation is trying to find a solution to the problem presented. A requested accommodation is not something to be accepted or rejected; it is something to be talked about. For a business this has the value of creating the appearance of reasonableness and, even more important, the opportunity to think about the issue carefully. In this case the first requested accommodation – making the theatre nuts free – is about as cheap and easy as it gets. All the theater owner had to do notify other parents that nuts were forbidden.
The second accommodation – willingness to use the child’s epipen – was more problematic. Many organizations are reluctant to administer prescription drugs. In a litigation happy society, it just seems like too big a risk to take. Here too, though, simply thinking through the problem and doing a little on-line research would have led to a different result. First, it only takes a little time with the internet to find that the Department of Justice has been suing or investigating child oriented business about epipens for more than 15 years. Unless you really want to take on Uncle Sam about whether peanut allergies are a disability** the battle isn’t worth fighting.
Perhaps more important, it seems likely that the theater already had a general release of some kind that all the parents had to sign. The owner’s demand for a special waiver of liability might not have been necessary and certainly looked like discrimination against one particular child based on a disability.
Finally, it would have been worth while to think through when an epipen is to be used. Epipens are for emergency use, and in many ways a child or adult in anaphylactic shock is like a person who has suffered a severe wound. Would the theater director really stood by and watch a child suffer because he didn’t want the risk of liability? Probably not. The refusal in advance to do something he would have done in the event of an emergency was pointless.
The moral of the story? Consider every request for accommodation as an invitation to try to solve a problem, and then think through – perhaps with the help of a lawyer – what risks would come from granting the accommodation and what risks might come from denying it. Reasonable accommodations are all about being reasonable, and that requires knowledge and a rational analysis of the various risks and costs involved.
* The “interactive process” is best defined in employment cases under Title I of the ADA and landlord tenant cases under the Fair Housing Act, but courts apply it in Title III cases as well.
**Many courts hold that food allergies are not disabilities. (See my blog HERE) DOJ disagrees, and the Supreme Court has not opined on the subject. Since DOJ will fight and has unlimited resources it isn’t the best opponent to take on with respect to this kind of claim.
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Policies, Restaurants, Retail Tags: ada litigation, ada violation, allergies, Department of Justice, gluten free, P.F. Chang's, private lawsuits, restaurants
Many restaurants have responded to consumer demand by offering various alternative menu items to satisfy special dietary needs or desires. One of the most popular is gluten free alternatives for those who need or want a gluten free diet. A recent case from California makes it clear that these options are not required by the ADA, and that many dietary restrictions are not disabilities covered by the ADA.
Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 4694049, at *9 (N.D. Cal. Aug. 6, 2015) concerned a claim by a plaintiff with celiac disease who was unhappy with the fact that P.F. Chang’s charges $1.00 more for various gluten free alternative menu items. She claimed, in a nutshell, that celiac disease is a disability and that the additional $1.00 charge was discriminatory under the ADA. The Court rejected both ideas.
Whether an allergy or food intolerance constitutes a disability under the ADA depends on the particular allergy and its effect, but in general even serious allergies do not constitute disabilities if the consequences can be avoided by observing a restricted diet. The Court did not find any cases dealing with celiac disease, but compared it to nut allergies, which require nothing more than avoidance of nuts. (Citing Slade v. Hershey Co., 2011 WL 3159164 (M.D.Pa. Jul. 26, 2011)).
The Court did recognize a DOJ settlement with Lesley University that is predicated on the idea that celiac disease and other food allergies are disabilities; however, it referred to it for a completely different part of the analysis. Courts addressing allergy issues generally find that even allergies causing severe reactions are not disabilities because they do not substantially limit a major life activity. For example, a latex allergy may make it difficult for an individual to study nursing, but it does not impair the ability of the person to learn generally (Webb-Eaton v. Wayne Cnty. Cmty. Coll. Dist., 2013 WL 3835208, at *4 (E.D. Mich. July 24, 2013). Restaurants can reasonably conclude that food allergies are not disabilities under the ADA in most circumstances, despite DOJ’s contrary belief.
The Court in Phillips v. P.F. Chang’s also rejected the idea that a $1.00 additional charge was discriminatory. The discrimination inquiry came in two parts. First, was the restaurant required to provide meals that those with allergies could enjoy and second, was the $1.00 charge an illegal surcharge imposed on the disabled.
With respect to the first question the Court did address the DOJ’s settlement with Lesley University, and in particular an Information Sheet concerning the settlement issued by DOJ. DOJ recognized that the students at Lesley University, unlike the patrons of a restaurant, had no alternative to the University’s mandatory meal plan. DOJ agrees that ordinary restaurants are not required to provide any special foods to meet particular dietary needs, which is consistent with the more general principle that a public accommodation does not have to add to the goods and services it offers in order to accommodate the disabled. (See, 28 CFR Part 36, Appendix B at p. 224).
As for the surcharge, a higher price for goods and services is improper only if the price applies only to the disabled. For example, selling plus-sized clothing at a higher price is not discrimination against the obese (who may in some cases be disabled) because the same price applies no matter who buys the clothes. (See,Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 537 (W.D. Pa. 2013)). P.F. Chang’s one dollar surcharge applied to all customers wanting a gluten free dish, and so it was not discriminatory.