According to a recent settlement between Lesley University and the U.S. Department of Justice, the answer is: It depends.
The DOJ alleges that the private university in Cambridge discriminated against students suffering from celiac disease, a disorder that requires sufferers to avoid eating gluten, by imposing a mandatory dining plan and failing to accommodate their dietary needs.
As a result, the university will pay a group of affected students $50,000 and implement extensive changes, including dietary accommodations for those suffering from food allergies and training for its employees.
While the agency notes that not all food allergies rise to the level of a disability under the ADA, attorneys should be prepared to handle similar actions.
Thomas P. Murphy, a senior attorney at the Disability Law Center in Northampton, Mass., said the deal was the agency’s first settlement involving a food allergy and that it could signal more involvement from the DOJ on the issue in the future.
“This is an extremely elaborate settlement,” said Minh N. Vu, leader of the ADA Title III practice group at Seyfarth Shaw in Washington, D.C. “And it is indicative of a very aggressive enforcement posture by the DOJ that we anticipate will be replicated.”
In addition to universities, employers that offer cafeteria services and even restaurants should examine their practices in light of the DOJ’s interest in food allergies, she said.
“By coming out with a settlement so comprehensive and far-reaching, it sends a message to other [entities covered by the ADA]: This is what they should be doing,” Vu said.
After a group of students complained to the DOJ in October 2009, the agency began an investigation into Lesley University’s food services.
The DOJ determined that the school’s policies and practices concerning students with food allergies did not comply with Title III of the ADA because they failed to make reasonable accommodations.
“Food allergies may constitute a disability under the ADA,” the settlement states, pursuant to 42 U.S.C. §12102.
“A disability as defined by the ADA is a mental or physical impairment that substantially limits a major life activity, such as eating. Major life activities also include major bodily functions, such as the functions of the gastrointestinal system. Some individuals with food allergies have a disability as defined by the ADA — particularly those with more significant or severe responses to certain foods. This would include individuals with celiac disease and others who have autoimmune responses to certain foods, the symptoms of which may include difficulty swallowing and breathing, asthma, or anaphylactic shock,” the agency explains in a question-and-answer guide that accompanied the settlement.
Celiac disease is an autoimmune disorder that affects the major life activity of eating and the major bodily functions of the immune, digestive, bowel and neurological systems, the DOJ says. Consumption of gluten (commonly found in foods containing wheat, barley or rye) triggers celiac disease and can result in permanent damage to the small intestines as well as vitamin deficiencies because the body is unable to absorb certain nutrients. Approximately one in 133 Americans is affected by celiac disease, according to the agency.
To settle the charges and achieve compliance with the ADA, Lesley University agreed to:
• amend its Disability Services for Students policy to include food allergies and make the updated policy available on its website, distribute it to employees and provide it to all new hires, and amend its contract with its food service provider;
• allow students with food allergies to request “reasonable modifications” by contacting Disability Services, which will meet with each affected student to “fashion an individualized plan”;
• post a notice in all dining halls that states that the kitchen handles food containing allergens and telling students to inform servers of any allergies;
• provide allergen- and gluten-free food choices to students in its dining halls and allow allergic students to pre-order meals from a separate facility;
• give students with allergies a separate area to store and prepare food; and
• train food service management and staff on compliance with the terms of the agreement and provide education about food handling and the needs of students with food allergies.
“What is great about having the DOJ involved in a case like this is how thorough the agreement is,” Murphy said. “Training is a really big piece of the puzzle. The principal parties and the lawyers may reach an outcome, but on a day-in, day-out basis, the agreement itself is implemented by the people on the front lines and they need to understand it or it will not be correctly implemented.”
Universities, employers, restaurants take note
In its Q&A guide, the agency states that the ADA does not require all places of public accommodation that serve food to also provide gluten-free or allergen-free food.
“The Lesley Agreement involved a mandatory meal program for a defined group of students,” the agency says. “Because its meal plan was mandatory for all students living on campus, the ADA required that the University make reasonable modifications to the plan to accommodate students with celiac disease and other food allergies. This is different than the ADA’s obligation for restaurants that serve the general public.”
But given that the school is located in the heart of Cambridge and not in a remote location, Vu argued that students have plenty of other options about where to eat.
Therefore, that factor doesn’t necessarily set the case apart, she said.
Instead, it reinforces the DOJ’s intent to recognize a food allergy as a disability under the ADA and reiterates the fact that the agency views the terms of the agreement as not just best practices, but legal requirements.
Vu advised that universities, employers offering food services and even restaurants familiarize themselves with the settlement and examine their own practices in light of its terms.
However, she said, not all food allergies rise to the level of a disability under the act.
“It really depends on the effect of the allergy on the person,” she said. “I may be allergic to something that makes me puff up a little bit and that is not going to require major accommodations.”
An individual must establish that a food allergy “substantially limits” a major life activity and/or a major bodily function, Murphy said. Because celiac disease results in gastrointestinal symptoms and affects the major life activity of eating, it rises to the level of requiring more substantial accommodations.
“A restaurant may have to take some reasonable steps to accommodate individuals with disabilities where it does not result in a fundamental alteration of that restaurant’s operations,” the DOJ says in its guidance. “By way of example only, this may include: 1) answering questions from diners about menu item ingredients, where the ingredients are known, or 2) omitting or substituting certain ingredients upon request if the restaurant normally does this for other customers.”