Do Businesses Now Have to Accommodate Allergies as if They Were Disabilities?

Posted by Edward Sharkey on Thu, 04/30/2015 - 04:00

Businesses continue to struggle with the legal definition of “disability” under anti-discrimination laws. One area that remains obscure is allergies. Does a seafood restaurant need to modify its kitchen to accommodate diners with allergies to shellfish? Can a parent with hay fever force his child’s soccer league to hold games indoors?

We previously posted about a lawsuit in which the DOJ claimed a university violated the Americans with Disabilities Act (“ADA”) by failing to provide students with celiac disease gluten free menu options. The university settled before any decision was made by the court.

We also summarized a Maryland court opinion upholding a verdict in favor of a parent who sued her son’s school for discrimination. She claimed to have an allergy to latex, and the school had declined to remove all latex objects from the premises.

Now, the restaurant chain P.F. Chang’s is facing a lawsuit alleging that their gluten free menu violates Title III of the ADA. The plaintiff claims that the restaurant discriminates against customers with gluten allergies by charging $1 extra for gluten free options. She demands an injunction to stop the surcharge, restitution, civil penalties, compensatory damages, and punitive damages.

From the outside looking in, P.F. Chang’s appears to be trying hard to accommodate allergic diners. The chefs created a new menu with 18 gluten free options. Gluten free items are served on plates with a special insignia to ensure they are not confused with non-gluten free dishes on the table. Is there a better friend to gluten free diners in the country? The chain was even voted the second most allergy friendly large restaurant by the Allergy Eats blog.

The CEO of the Celiac Disease Foundation weighed in on the case with some sympathy for the restaurant. She acknowledged the challenges faced by restaurants. She explained that the “Celiac Disease Foundation recognizes that restaurants bear a financial burden for the employee training and other accommodations that are required to serve meals that are safe for those with celiac disease.”

The plaintiff in the case points out, however, that certain items on P.F. Chang’s gluten free menu, such as vegetables, contain the exact same ingredients as the items on the regular menu but still incur the surcharge. She adds that the restaurant does not add surcharges for accommodations on regular menu items.

A decision in the case would provide greater clarity for all. If the court decides in favor of the plaintiff, restaurants will be tasked with the challenge of providing gluten free menu options at prices that do not reflect the higher cost of production. This is not to mention the numerous other ways businesses would have to accommodate customers with a variety of allergies. If the plaintiff loses, businesses would have some indication that there is a limit to what the law considers a “disability” requiring extra accommodation.

Alas, if history is a guide, the case will result in a settlement before trial providing little for those suffering from celiac disease, a fee for the lawyers, and nothing for businesses nationwide starved for guidance on a costly issue.

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