Theater Discrimination Decision Seen as “Wake-up Call” on Allergy as Disability

in Food Allergy, Food Allergy News, Peanut & Tree Nut
Published: July 18, 2016
Mason and Sam TogetherMason Wicks-Lim and Sam Picone-Louro.

The U.S. Department of Justice (DOJ) has clearly stated that a theater company violated the civil rights of a child with severe allergies to peanuts and nuts when it refused to make accommodations that would have allowed the boy to enroll in a children’s Shakespearean production.

In a June 10, 2016 “letter of finding,” the Justice Department says Mason Wicks-Lim, 11, faced discrimination on the basis of disability, as defined by the Americans with Disabilities Act (ADA), when the Young Shakespeare Players East (YSPE) of Massachusetts refused to alter practices to afford him the same access as other children to participate in the program.

“This should serve as a wake-up call” for entities running various children’s programs, Jim Long, a disability law expert based in Denver, told Allergic Living.

Mason’s family made a formal complaint to the Justice Department about the theater’s refusal to accommodate in November 2015. The theater’s program director had said a nut-free policy could be instituted. However, she refused the request of Mason’s mother that an adult, trained in the use of an epinephrine auto-injector, be available to supervise the group that would include Mason. (The mother, Ali Wicks-Lim, had offered to do the training.) In fact, the director suggested there would be stretches of several hours in which the children would have no supervision.

Gregory Dorchak, a special assistant U.S. attorney, wrote on behalf of the Justice Department that the requests surrounding epinephrine and adult involvement were reasonable. “Existing YSPE staff would have only needed to administer the EpiPen in the unlikely event that [the boy] had a reaction, and administering an EpiPen is a task that can be performed by lay people.” He added that the accommodation would not present a burden or financial hardship.

The boy’s complaint also included his friend Sam Picone-Louro, 12, who was barred from the program for sending an email to the program director asking her to reconsider and to stop discriminating against Mason. Dorchak wrote that such a retaliatory action violates Title III of the ADA, which prohibits discrimination against those who oppose actions that are not lawful under the act.

The Justice Department further found the theater company’s director to be “coercive and intimidating,” when she told Mason’s mother that she might have to “close up shop,” affecting all the children, if the auto-injector accommodation had to be made.

YSPE has been ordered to pay undisclosed damages to the families of Mason and Sam, as well as their legal fees. The department also directs the company to implement a disability non-discrimination policy.

The Bigger Picture: Experts Speak on the DOJ’s Position

The Justice Department’s letter makes clear that Mason’s peanut allergy is considered a disability under the ADA since “it can potentially impair a major life activity, such as breathing.” As well, the letter refers to the theater as “a place of public accommodation,” which must provide equal access.

Jim Long, a former senior attorney with the Office for Civil Rights in the U.S. Department of Education, says the equal access point is important. “I think the letter is significant because it requires the youth program to provide affirmative services to the child to give him an equal opportunity to participate,” said the consultant on disability rights in education.

“This should serve as a wake-up call for all those entities that provide activities for children that they need to catch up and comply with the ADA – sports programs, summer camps, dance schools, cheerleading and tumbling schools, summer activity/sports camps, and so on,” he told Allergic Living.

Tess O’Brien-Heinzen, a Wisconsin attorney with expertise in special education and disability law, says that “while the DOJ’s letter is directed only to the theater company and carries no weight of authority with respect to other businesses or schools, it certainly sends the message that both big and small privately owned public places of accommodation have obligations under disability laws.”

She expresses some surprise at the decision in light of the size of the business. However, “in reading the facts, I suspect the DOJ took particular interest in light of the owner’s strong reaction to the student and his friend and to the retaliation that followed. The facts cited in the letter indicate that the theater company made no good faith effort to accommodate the student and, in fact, seemed to go out of its way to retaliate in response to the student’s request.”

Stein & Vargas LLP and the Francoeur Law Office represented the families. In a statement, they call the finding “an unequivocal statement by the Department of Justice condemning not only the exclusion of kids with food allergies, but retaliation against those who advocate on their behalf.”

How do the independent experts view this as a “win” for the food allergy community? “I can’t say whether it is sending a message, but any time the DOJ institutes an enforcement action to enforce the disability laws with respect to food allergies, it is a win for the food allergy community,” says O’Brien-Heinzen.

For his part, Long says: “This clearly demonstrates the views of the Department of Justice, but it’s probably going to take more court decisions to get the attention of entities that seem to be getting poor advice from their counsel suggesting to them that they can ignore children with allergies that may constitute disabilities.”

See also: Article on Families’ Original Complaint