Last November I attended FAREcon, an annual event devoted to food allergy research and education. I published my notes in a long, deep-dive post that included one short section on pending litigation (below).
I’m thrilled to report a positive update:
“A federal appeals court Friday ruled against the tavern that refused to let the child eat his own food at its site.” – Ann E. Marimow, writing for The Washington Post (full story behind their pay wall)
Gwen Smith, writing for Allergic Living, also covered the decision:
A U.S. Court of Appeal has ruled that a 12-year-old with a severe gluten intolerance has a disability, and that it was reasonable for him to request that a restaurant within the Colonial Williamsburg historic site allow him to eat his own gluten-free food on their premises. Staff at the Shields Tavern within the venue would not allow the boy to so, which lead to his lawsuit.
The case will now be sent to trial and a jury will need to consider the facts related to the dining experience of J.D., as he’s referred to in legal documents. However, the language of the May 31 decision of the U.S. Court of Appeals for the Fourth Circuit is already being hailed as a victory for those with medically necessary diets.
Asked about the impact of the court’s decision for those with gluten sensitivity and food allergies, J.D.’s attorney Mary Vargas said: “It’s everything. It’s the ability to participate in the things that matter: the social events, the educational opportunities – the ability to be to have a seat at the table.”
As for his response to the news, young J.D. said: “I’m feeling overwhelmed and overjoyed that the next person who comes along will not have to experience what I did.”
Read the U.S. Court of Appeals for the 4th Circuit’s opinion (PDF).
Here’s what I find surprising: Colonial Williamsburg is not backing down.
To recap: J.D. paid full price for his seat, including for the meal. He just didn’t want to eat their food. What is the harm to the restaurant if a kid eats his own food, that he knows will be safe? Further: why did they force him and his dad to sit outside in the rain?
This is an opportunity for Colonial Williamsburg to engage with the food allergy community and learn about how to create a safe and inclusive environment. I’d love to read news that they hired someone like Joel Schaefer, co-founder of Your Allergy Chefs and former Special Diets Manager of Walt Disney World, an organization that places children and their safety (and delight) at the center of their work. Colonial Williamsburg instead appears to be doubling down on discrimination.
Let’s celebrate this win. And let’s keep educating people about food allergy (if you read the dissenting opinion, you’ll see the glaring need for more education.)
Here’s the excerpt from my original post if you’d like to dig into more details:
A Seat at the Table: Recent Developments in Food Allergy Litigation
Disability rights lawyer Mary Vargas of the litigation firm Stein & Vargas LLP gave a compelling, jam-packed presentation about the food allergy cases she has been involved with in recent years.
She opened her talk by telling us (all adults in the room) that she had just spent the previous session with all teens and they hadn’t gotten further than the first case because the teens turned into an angry mob (not at her but at the injustice of it). She said it was inspiring to see the teens coming into their power and realizing that the law currently does not recognize their status as a fully protected class under the Americans with Disabilities Act (ADA). Then she told us about the case: J.D. vs. Colonial Williamsburg Foundation. And yes, it made us mad, too, but we let her go on with her presentation.
Again, this talk was so detailed that I didn’t capture it all in my notes, but I did find some source material online. Here’s the original complaint, which describes how J.D. was treated shamefully by the staff of a restaurant in Colonial Williamsburg.
Essentially, on a middle school field trip, he paid for a meal in order to have a seat at the table with all his classmates, but because he didn’t have confidence that they could provide a safe meal he planned to eat his own food. When his dad told the server not to bring J.D. anything, the manager and chef came out, words were exchanged, and J.D. was eventually made to eat his dinner out in the restaurant’s backyard in the rain. The District Court held that whether J.D. has a disability is an issue for jury to decide. The Court’s dismissal was due to finding it was not necessary for the restaurant to allow J.D. to eat his safe food in order for him to have equal opportunity to participate. The case is on appeal to the Fourth Circuit.
Another case involved a Panera Bread worker who doesn’t speak English misinterpreting a “no peanut” request to be a “add peanut butter” to a grilled cheese sandwich. That case is going forward.
A third case involved discrimination against a peanut-allergic child who wanted to be part of a Shakespeare group and they specifically barred him from joining. That case settled in the child’s favor.
There were more cases but I couldn’t take notes fast enough!
My take-aways: I want to follow the litigation more closely and find ways to contribute to this work. I did not know how skimpy and fragile our rights are as food allergy families under current law.
Featured image: Fortifications at Colonial Williamsburg by Kate Mereand-Sinha on Flickr.
Susannah Fox says
I referred in the post above to the work that Joel Schaefer has done for Disney and for other organizations that want to create a truly safe kitchen for preparing food for people with allergies. Here are my notes from his session at FAREcon:
Behind the Scenes Tips for Safe Dining
Joel Schaefer, co-founder, Your Allergy Chefs, author of “Serving People with Food Allergies, Kitchen Management and Menu Creation” and former Special Diets Manager of Walt Disney World gave a detailed presentation about how a restaurant kitchen functions. He explained how he adapted NASA’s concept of HACCP (pronounced “hassip”) for culinary settings:
Critical Control Points
Meaning: Identify all the possible hazards. Analyze each one. Create controls for each one to minimize the risk of mistakes.
For example: He advises restaurants on how to set up their kitchens to be safe, such as: Don’t store the messy tuna on the far side of the deli sandwich counter because when someone scoops it out, they are likely to drip on the ham or turkey slices. Use color-coded cutting boards so there is never a mistake of mixing dairy with non-dairy, etc. This part of the presentation was extremely detailed and I didn’t capture it all in my notes, unfortunately.
He advised us to go to a restaurant when it is not busy and ask questions about how they store food, whether they use the same grill for hamburgers as they do for fish, whether they have a dedicated fryer just for fries (and tons more questions). Perhaps most importantly: Do you understand the seriousness of food allergies?
When ordering at a deli, ask: Can you please get my lunch-meat fresh from the walk-in? (That minimizes the chance of the dripped tuna fish, peanut butter, or whatever else.) If a waiter doesn’t seem to understand what you’re asking for in terms of accommodations, ask for the manager who should have more time to spend with you.
For special occasions when you know you have to eat at a restaurant: Have an idea about what your kid eats or may want to order before talking with the chef. He or she will hopefully welcome the chance to host you and your family and make accommodations. Be calm. Go in with solutions.
An audience member asked: How do we ask in a way that doesn’t upset or offend the server? His answer: If they are upset by your questions, walk out. Don’t eat at a place that doesn’t welcome you. It’s just not worth it.
He took all the unanswered question cards and promised to write a blog post answering them. His blog: YourAllergyChefs.com/blog
My take-aways: This session was meant to be empowering, I think, but was quite frightening. There are so many variables, so many points of failure, so many aspects to dining out that I had never thought about or asked about before. He takes an all or nothing attitude about safety: If they don’t have a dedicated fryer for fries, do not eat the fries. If they don’t have a dedicated grill for meat (with no fish ever) then do not accept their suggestion to cook your steak on a piece of foil.
Dave deBronkart says
Following my own advice, I’ll capture here some comments I had on Twitter.
First, I truly wonder about the motivation of Colonial Williamsburg (and, ultimately, its Foundation). I well remember my first trip there in 8th grade, and how we were taught about individual citizens standing up for their rights – and especially rebelling against those in power who didn’t care about individual citizens’ needs. SERIOUSLY, Colonial Williamsburg Foundation?
But I think the Foundation needs to think seriously about the legal liability they take on by FORBIDDING people from taking personal responsibility for food safety. What if – just what if – they forbid some future child from eating safe-from-home food, forcing the child instead (perhaps due to parental absence, unlike this case) and something goes wrong in the kitchen, no matter how careful they are?
What if that child dies?
Has Colonial Williamsburg Foundation just set a precedent for itself, rejecting its visitors’ self-protection efforts, thereby taking on absolute responsibility for the child’s health.
Would the Foundation’s attorney’s then stand up in court and say “Hey, it wasn’t OUR fault – if they’re that picky they should have brought their own food”?
Dave deBronkart says
On a separate note – ADA – I wonder, what are the criteria for a “disability” that triggers protection under that law?
Here’s what I see at the top of the ADA Network page https://adata.org/learn-about-ada –
The act “guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation…” So, public accommodations seems relevant here.
An update during the Bush 43 administration:
“In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law and became effective on January 1, 2009. The ADAAA made a number of significant changes to the definition of disability.”
The site’s glossary page https://adata.org/glossary-terms#D says it’s an “impairment that substantially limits one or more major life activities…” Same on the FAQ’s page about definitions. https://adata.org/faq/what-definition-disability-under-ada
I would think being unable to safely eat food prepared at a place of public accommodation would qualify. BUT, it seems here the restaurant is insisting THEY will decide what’s safe – which, per my previous comment, is taking on quite a responsibility, both medically and legally.
Susannah Fox says
Thanks, Dave! You and I had the same questions about the ADA — love the links you shared. I added a link to the 4th Circuit’s opinions to the post above (PDF only). I tweeted screenshots of two key lines:
The ADA defines a “disability” in pertinent part as “a physical or mental impairment that substantially limits one or more major life activities.”
Eating is a major life activity.
The dissenting judge’s opinion is worth reading to see what he is focused on: The restaurant’s rights. But he does not appear to dispute that food allergy is covered by the ADA.
Patricia F Anderson says
Susannah, thank you for this post, and Dave, thank you for bringing it to my attention. This is part of my daily life.
Each day is framed by making plans for how to ensure I have access to safe food while I am at work, that I have made enough food, that I can carry enough food to get me through the day. I cannot make plans to meet with friends in the evening, or take a night class, or join a choir without carrying double the food just in case I can’t get home in between.
Home is an hour and a half away on the bus, and it just isn’t always possible to get home after work just to eat. There are no restaurants safe for me in the area of my office. On a good day, if I know well in advance that I need it, I might be able to find a hard boiled egg still in the shell and a banana, but they sell out quickly. There are some restaurants that are usually safe near the bus transfer point, if the timing works to my advantage.
This does not even touch on the issue of parties where people try to offer food that is safe for me, but instead of asking how, surprise me, and feel hurt when I still can’t partake. Or buffets at symposiums where they’ve announced that gluten free and vegan food options will be available, but they neglect to have these foods separated from the bagels and muffins. Or they only provide GF/vegan options for the lunch and not for the breakfast. Or the bagels and muffins ARE the vegan option, and yogurt is the GF option, which leaves me (gluten free and dairy free) with no options.
And this does not touch on the issues of travel, airports, trains, or vendor receptions at conferences, or the need to find a grocery store somewhere near each place I travel. One conference last year, in a rural location, I was unable to find food for the first 36 hours of the trip, and was dependent on the nuts and snacks I brought on the plane. It wasn’t enough. Another trip last month, I was trapped by weather overnight in an airport where the only restaurant listed as providing gluten free options was a burger joint that refused to serve me, saying they were unable to prepare food without cross contamination, and they were unable to clean a section of the grill or use a separate pan to cook a burger for me. What was supposed to be a 10 hour trip turned into a 38 hour trip, and the food issue became a living nightmare, as I was forced to choose between passing out from hunger due to hypoglycemia, or eating foods that were not part of my allergies but which are known triggers for other health issues. It took me a long time to recover from this trip.
These types of scenarios came up five times in this previous week. First, we had snacks at evening choir, and someone usually brings clementines, but not this week, and there was nothing I could have. That’s the light-weight example. Then there was a day long conference which provided a breakfast and lunch, and announced the GF/vegan options. I had brought travel munchies for breakfast and a snack, but I was getting awfully lightheaded before asking if the caterers could make a plate in the kitchen with any of the GF foods that hadn’t been on the buffet yet. Instead, the organizer took me to a fast-food GF restaurant elsewhere in the building and told them to charge my lunch to their credit card. There was another symposium later in the week for which I had been asked to help support them by live tweeting, registered, and was told to participate via livestream, since they would not be able to provide food that was safe. Then there was a social event for one of my clubs with an early morning meeting. They told us breakfast would be provided. Good thing I brought my own. Lastly, yesterday, a project team had a lunch meeting at a restaurant. There was nothing I could have there, so I did my usual, which is to sip water while everyone else eats, waiting until I can get home to food.
At so many restaurants, the only thing they offer that I can have is a kale salad with vinegar and oil on it. I like kale, but I have become really really tired of $15-20 bowls of raw kale. I think I actually prefer places like yesterday, where they just admit they can’t serve me at all and don’t hassle me about being part of the group, instead of getting offended at my taking up space and not ordering food.
Regarding this lawsuit? I started to tell my son about it. He is also celiac, but doesn’t have the rest of my food allergies and sensitivities. He said, “Wait, is this going to be another one of those sad stories that upset you?” I answered, “Yes, but it has a bang up ending! They take the restaurant to court, and so far the courts are supporting them! I hope they really let them have it.”
I’m usually nicer than that, more moderate in my response, but there have been too many times when I’ve been injured, made ill, had reactions, been ridiculed, pressured, left at home, left out, excluded, or (as with this young man) literally left out in the rain because the restaurants or caterers say they can provided food safely when they can’t, or expect me to pay for food I can’t eat, or deny me the food that I can eat safely. These are just a small sampling of the stories I could tell. But I’m tired. I live these examples. I can’t even imagine living in a world where the courts or laws say that caterers and restaurants must include a food allergy safe food preparation area.
Dave deBronkart says
This is where I wish there was a “Like” or a Medium-style “clap” button, so I could praise without taking up a slot!
Thank you for expanding your short tweeted comment, so future visitors can see what this WHOLE FREAKING LIFE is like!
Yes, eating is a major life activity, and this is a dis-ability! Can’t do what most people are able to do! Susannah, thanks for spelling that out – I’d missed the tweet on it.
Dave deBronkart says
> The dissenting judge’s opinion is worth reading to see
> what he is focused on: The restaurant’s rights.
Right, but by taking on the role of a public accommodation, they acquire the legal obligations all accommodations share. What I read about the ADA said its intent was to give the disabled protections comparable to civil rights (race etc), and restaurants don’t get to violate that. Seems to me.