Nicole and Paul MacKenzie had been traveling from Portland to Charlotte, NC, via Dallas with their daughter Isla in September 2016. As the girl has severe allergies to tree nuts, peanuts and seeds, Nicole MacKenzie phoned to ask the airline to allow her to pre-board in order to wipe down the seating area, tray tables and armrests. The idea was to reduce the possibility of Isla unintentionally being exposed to her allergens.
American Airlines has a “nut allergy” policy listed on its website that specifically denies pre-boarding to those with nut or peanut allergies, so her request was turned down. When the woman later submitted written disability forms asking for the same accommodation on the return flight, she says she received no response, but was again denied the pre-boarding when she spoke to an airline representative.
Nicole MacKenzie decided to launch the formal DOT complaint with the assistance of Mary Vargas of Stein & Vargas, a lawyer who specializes in equal access work.
Vargas explains to Allergic Living that she and her client view American Airlines’ policy against pre-boarding for nut allergies as discriminatory of a medical disability, and “a blatant violation” of the Air Carrier Access Act. “We want to see a complete retraction of this policy,” she says.
Allergic Living explores some of the issues in the complaint.
When is a food allergy disability in the skies?
Vargas cites this specific clause (Title 14 CFR 382.93) in the act: “As a carrier, you must offer pre-boarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated.”
“The legal question is: ‘Are you an individual with a disability?’” she says, answering that, in her view, severe food allergies fit that description and this is being acknowledged in law. As evidence, she says “to look specifically at the Air Carrier Access Act and how the Department of Transportation interprets it in their regulation.”
Vargas notes that DOT breaks disability complaints into categories, and one of the categories it specifically lists is food allergies. “So I don’t see how anyone could argue that those with food allergies are not considered individuals with disabilities under the Air Carrier Access Act,” she says.
The department is now investigating the complaint, and American Airlines will have an opportunity to give its full response.
Why is pre-boarding to wipe seating areas central to this complaint?
Vargas says the issue of pre-boarding is to provide physical protection at 35,000 feet – “the peanuts that people regularly find on the floor to wipe down the tray table and armrest to prevent allergen exposure.”
In American’s case, the airline’s nut allergy policy says that tree nuts are served and that the airline’s own cleaning may not “ensure the removal of nut allergens.” The complaint says this acknowledgment of exposure risk makes the pre-boarding cleanup more important.
The MacKenzies found it difficult to wipe down their seating area with their daughter standing in the aisle, as other passengers were jostling to take their seats. “That’s why pre-boarding is necessary and why it actually speeds up boarding and benefits other passengers,” Vargas says. (Pre-boarding was also identified as a factor in mitigating food-allergy reactions in a 2013 University of Michigan study.)
Vargas says a secondary reason to pre-board is a child’s psychological comfort – “It’s scary, and a rational scary as [a severe reaction] is something that can happen. As allergy parents, we teach them that it can happen.”
What about other food allergens?
The MacKenzie complaint cites peanut and tree nut allergies because those are the allergies the child has. “Had she had a milk allergy, the complaint would have been worded differently,” says Vargas.
The lawyer says that American’s policy clearly doesn’t provide pre-boarding to those with nut allergies. But the way the policy is written, it likely also excludes pre-boarding for other severe food allergies too. “That would be equally a violation of law, if the person was an individual with a disability and needed to pre-board to get safely seated,” she says.
Why not simply fly another airline?
Some travelers might say, why not simply choose another airline that’s more accommodating? Vargas says this is not always practical. Depending on the passengers’ location, sometimes flights are not widely available or schedule changes may occur that land travelers on a different carrier.
“It’s also a type of victim-blaming response to tell a person that if somebody’s going to discriminate against you, then you just need to fly with somebody else.” In her view, “That’s not the way the world ought to work.”