Four allergy advocacy organizations have jointly filed a complaint with the U.S. Department of Transportation (DOT) over Southwest Airlines’ change to its food allergy pre-boarding policy.
The DOT complaint alleges that the airline’s decision to deny pre-boarding to passengers with food allergies violates the Air Carrier Access Act and the Airline Passengers with Disabilities Bill of Rights.
“The blatantly discriminatory actions of Southwest Airlines are harming passengers with food allergies on a daily basis and requires immediate intervention by DOT,” states the complaint.
Food allergy passengers often ask to pre-board to wipe their seating area and tray table. This gets rid of allergen residue and reduces the risk of an in-flight reaction.
The nonprofit organizations behind the DOT complaint are: Allergy and Asthma Network (AAN); Asthma and Allergy Foundation of America (AAFA); Food Allergy & Anaphylaxis Connection Team (FAACT); and No Nut Traveler.
Their complaint was filed the morning of November 16, 2022. Allergic Living asked the airline for comment, and a few hours later Southwest’s spokesperson Chris Perry emailed a statement:
“The safety and comfort of our customers and employees is Southwest’s top priority. We are currently reconsidering our recent policy change related to the boarding process for customers self-disclosing severe nut allergies,” said Perry.
Ahead of Southwest’s response, Kenneth Mendez, AAFA’s president and CEO, said his organization hoped the complaint would elicit DOT action, and lead the airline to reverse its policy. After seeing the airline’s statement, he said: “I hope the visibility we’ve brought around this issue allows Southwest to correct their policy and to acknowledge that those passengers who have food allergies should be given the same accommodations as other passengers with disabilities.”
FAACT’s involvement in the formal complaint is part of the organization’s advocacy for the civil rights of individuals with food allergies, says Eleanor Garrow-Holding, FAACT’s president and CEO.
“FAACT hopes that this DOT complaint against Southwest Airlines sends a reverberating message to all airlines that individuals with food allergies (to any allergen) have a legal right to pre-board their flight with enough time to thoroughly clean their seating areas without being rushed before other non-disabled passengers are allowed to board the plane,” she says.
Lianne Mandelbaum, the food allergy and airlines advocate who founded No Nut Traveler, stressed the importance of allergy organizations working in unison. “It’s important that we have a coalition saying that passengers with food allergies deserve the right to pre-board to make their space safe. Cohesiveness shows strength and conviction,” she says.
Pre-boarding and Food Allergies
In September 2022, Southwest changed its policy removing the pre-boarding option for customers with a peanut or “peanut dust” allergy. The written policy did not apply to other food allergens.
For a previous article about the policy change, Southwest’s Perry said the airline would still grant time to those with peanut allergy to clean seats and tray tables. However, it is not during pre-boarding. Perry told Allergic Living that the airline instead is directing customers with peanut allergies who would like to clean seats to board after group A, but before groups B and C.
The groups’ complaint says that, under the Air Carrier Access Act (ACAA), airlines must “offer pre-boarding to passengers who self-identify at the gate as needing additional time or assistance to board.” It notes that in a previous complaint, DOT found that American Airlines had violated the ACAA by denying pre-boarding to the family of a child with food allergies.
By the time of that May 2019 finding, American had changed its policy to allow such pre-boarding. But DOT still warned the airline.
Advocacy organizations are hearing from many Southwest passengers with food allergies that they are being denied pre-boarding. As for the recent “extra time” boarding alternative, one parent told Allergic Living that this was a scramble and not acceptable for her son, as other passengers rushed aboard the flight.
“Such wiping down of surfaces cannot be effectively accomplished other than during pre-boarding,” the DOT complaint states. The groups also say it contravenes the ACAA.
In his statement, Perry said: “Southwest takes seriously the obligation to comply with the Air Carrier Access Act (ACAA) and its implementing regulations, to make air transportation accessible for passengers with disabilities.” He notes that airline is “an active participant in stakeholder groups that discuss improvements for customers with disabilities.”
Issues with ‘Extra Time’
“Passengers with food allergies qualify as individuals with disabilities within the meaning of the Air Carrier Access Act because food allergies cause substantial limitation in major life activities including, but not limited to, eating and breathing,” says the complaint.
“Airline passengers with food allergies deserve to feel safe and secure on flights,” notes Lynda Mitchell, chief operations officer for the Allergy and Asthma Network. “Permitting them to pre-board to wipe down seats and tray tables to remove potential allergen residue is common sense. It is the minimum that airlines can do to help ensure their health and safety.”
“Southwest is wrong to deny pre-boarding to passengers with food allergies,” says AAFA’s Mendez. “The regulations are clear that food allergies are classified as a disability.”
According to the complaint, some passengers with food allergies have also paid an extra fee to get “upgraded boarding.” This allows passengers to board during Group A (before the allotted “extra time” slot”). The complaint says that air carriers “are specifically prohibited from importing a surcharge on individuals with disabilities who need to pre-board because of a disability.”
Trying to clean a seat area while other passengers try to walk by and could already be sitting in neighboring seats is not sufficient, says Mary Vargas of the firm Stein & Vargas. The Washington, D.C.-based disability rights attorney is jointly representing the organizations with attorney Laurel Francoeur. The Francoeur Law Office, located outside of Boston, specializes in legal issues for people with food allergies.
Mandelbaum has been hearing from several Southwest passengers about their experiences at her website No Nut Traveler, which recently became a nonprofit organization. Some passengers have shared stories of finding food debris, with all sorts of allergens, such as crushed chips and nuts in their seating area. “Boarding the plane early to clean the area is the best step you to mitigate the risk of exposure to allergens,” she says.
Immediate Action Sought
The allergy organizations’ complaint asks that DOT act immediately with a cease-and-desist order against Southwest “to prevent it from denying pre-boarding as an accommodation for passengers with food allergies.”
This is not just about one flight crew, Vargas says. “An entire airline is denying federal rights of an entire group of people,” she told Allergic Living.
Although the Southwest pre-board policy only addressed peanut allergies, the complaint says provisions of the ACAA require accommodations for all food allergies, not just peanuts. “If someone has a food allergy, it doesn’t matter what they’re allergic to. It doesn’t matter if the plane serves the food. What matters is they have a disability,” Vargas says.
Passengers are eating food on airlines, both food served by the airline and food they bring on board. So any allergen can be crushed in the seat or on the tray table, she says.
“The need to pre-board for a passenger with food allergies is not determined by the food to which they are allergic and should not be limited to passengers with peanut allergies,” FAACT’s Garrow-Holding says.
The complaint also seeks civil penalties. “It’s incredibly concerning that a major airline is flatly refusing to comply with the ACAA in regard to a group of people,” Vargas says.
The DOT complaint also seeks mandated crew training on food allergies as disability, as well as attorneys’ fees.
Mandelbaum says the complaint against Southwest is asking DOT to enforce its own regulations. “The fact that the allergy groups are unifying in their action is important in working to ensure safer travel for passengers with food allergies,” she says.
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