“We get questions constantly about the rights of people with food allergies and celiac to be a part of meals out in the world,” says Mary Vargas of the law firm Stein & Vargas, who also has a son with food allergies. “We’ve wanted to take this issue on for a long time.”
Eleven-year-old J.D., as he is referred to in the suit, visited Colonial Williamsburg, the site meant to replicate life in the 18th century, in May. J.D. loves history, and had long looked forward to the trip, which he and classmates had been fundraising for since the first grade.
However, J.D.’s anticipation turned to anguish when the class sat down for lunch at Shields Tavern, an historical restaurant within the facility. According to court documents, J.D. has a severe gluten intolerance and is under the care of doctors at the Johns Hopkins Hospital, who have told him it’s critical he not eat even a trace of gluten, as it can cause a drop of blood pressure that can result in a loss of consciousness.
Student Not Allowed His Own Food
His father, who was a chaperone on the trip, advised the staff member assigned to their table that J.D. was not able to eat the food from the restaurant. The father then proceeded to unpack the lunch he brought for his son. The lawsuit contends that at this point the father was told that if his son was going to eat food from outside the restaurant, they would need to leave immediately.
J.D. was forced to eat his meal outside, as it rained, while the rest of the class “learned about colonial life,” alleges the complaint, filed on July 19 in U.S. District Court in Norfolk. In late August, the Colonial Williamsburg Foundation issued its official response, asking that the court dismiss the suit and denying any mistreatment or violation of laws.
Colonel Williamsburg says that the school was aware of the policy prohibiting outside food and that “the Tavern’s kitchen staff is professionally trained and regularly prepares quality meals to meet the needs of its customers who suffer from gluten and other allergies.” The foundation says the father refused the chef’s offer of a gluten-free meal and “stated that he did not trust the Tavern’s kitchen.”
Under the Americans with Disabilities Act (ADA), a place of public accommodation can’t exclude people on the basis of disability. However, the foundation says this family’s claim “is barred in whole or in part because plaintiff does not have a disability as defined by the laws under which he sues Colonial Williamsburg.”
This will be a key point of argument in this case. An amendment to the ADA, 2008’s ADA Amendments Act, broadened the definition of disability to include people whose impairment substantially limits a major life activity, such as eating or breathing, or major bodily functions like the immune or digestive systems.
Meal or Learning Experience?
“Before that change – people with food allergies were losing in the courts,” says Vargas. Still, not every case of exclusion warrants a lawsuit. “We are trying to be cautious in filing those cases that we can win, because we need to develop good law,” she explains. Although the foundation says otherwise, Vargas contends that J.D.’s case is compelling. “This wasn’t just about the meal. It was the opportunity to learn and to experience life in a tavern in Colonial Williamsburg,” she says. “It’s a strong case.”
She counters the Colonial Williamsburg response, saying it does not accurately portray the facts or the treatment the boy and his father received. “Ultimately, a jury will have to decide whether sending a child out in the rain because of his disability is what the Americans with Disabilities Act requires,” she says.
Vargas says these lawsuits based on allergy disability can benefit the allergy community as a whole, but they often take a toll on the families who go public with their stories. Those suing are often lambasted by their communities, and even the food allergy community, for speaking out. “These offhand comments can be very harmful. I don’t think people realize how hard it is.”
This case was won by the plaintiff. See: