Under the Americans with Disabilities Act (“ADA”), it is illegal discrimination for a place of public accommodation (including a university) to fail to make reasonable accommodations for the disabilities of its patrons (or students).  The same is true under the Maine Human Rights Act and other states’ disability rights laws.  Some types of reasonable accommodations are quite obvious; for example, restaurants must provide wheelchair access and handicapped restrooms.  A recent settlement between the Lesley University in Massachusetts and the United States government shows that the accommodations requirement of disabilities laws may also extend to food menu offerings.

In 2009, students from Lesley University in Massachusetts filed a charge of discrimination under the ADA, alleging that the university failed to make reasonable accommodations, with respect to meal plans and menu choices, to students with a disability in the form of a food allergy – gluten intolerance.  Gluten is a common food allergy which can manifest into celiac disease in some people.  Celiac disease is an autoimmune disorder “that damages the lining of the small intestine and prevents it from absorbing parts of food that are important for staying healthy.  The damage is due to a reaction to eating gluten, which is found in wheat, barley, rye, and possibly oats.”  See Celiac Disease Definition, U.S. Nat’l Library of Medicine, Nat’l Inst. of Health, A.D.A.M. Medical Encyclopedia (Jan. 20, 2010), available at http://www.ncbi.nlm.nih.gov/.  Symptoms of celiac disease vary greatly and can include anything from abdominal pain to seizures.  The condition can also lead to malnutrition.  Other types of food allergies, such as a peanut allergy, can cause dangerous, even life-threatening reactions like asthma or anaphylaxis.  Some food allergies occur suddenly and require immediate medical treatment.  Because of the seriousness of reactions to gluten and other food allergies, people who suffer from these conditions have to focus on avoiding the foods on a daily basis.  The university’s mandatory meal plan, they argued, did not allow them to do so.  The students claimed that the university violated the ADA by failing to accommodate their disability with sufficient gluten-free meal choices.

A threshold issue in this charge was whether an allergy to food, such as gluten, qualifies as a “disability” for purpose of the ADA.  When the ADA was amended, effective January 1, 2009, the definition of disability was revised to specifically include an “impairment that is episodic or in remission … if it would substantially limit a major life activity when active.”  42 U.S.C. §12102(4)(D). Because having a food allergy can cause intermittent, serious reactions, limiting breathing, eating, digestion, and perhaps other major life activities, the condition might now be a disability requiring accommodations.  In addition, many state laws provide greater protections than the ADA, including broader definitions of disability.  For example, unlike its federal counterpart, the Maine Human Rights Act, contains a per se list of conditions that are automatically disabilities for purposes of qualifying for reasonable accommodations under the Act.  5 M.R.S.A. §4553-A(1)(B).  Neither food allergies nor celiac disease are included in Maine’s per se list, but would fall within the Act’s reach to the extent the conditions impair major life activities.

The Lesley University students claimed that, because the university food service and meal plan did not offer safe and nutritious meals for students with celiac disease and other types of food allergies, students with the allergies were not enjoying the full benefit of their education.  Further, these students argued that they were not getting equal access to their education because they were not able to equally enjoy the university’s meal plan programs, which are a required part of enrollment and tuition.  The United States government, charged with enforcing the applicable sections of the ADA, investigated the claims and the university’s practices, which resulted in last month’s comprehensive settlement agreement between the parties.  The terms of the settlement included the university’s agreement to amend some of its procedures and policies to better accommodate celiac disease and other food allergies.   Examples of the university’s new food allergy policies include:

-Maintaining ready-made hot and cold gluten- and allergen-free food options in its dining hall food lines;

-Setting up an interactive process for students with food allergies to work directly with disability services to develop individualized meal plans;

-Allowing students to pre-order their meals or request specific foods to be made available in campus dining halls;

-Dedicating spaces for the storage and preparation of gluten-free and allergen-free foods in order to avoid cross-contamination;

-Displaying notices about food allergy risks and identify foods containing specific allergens; and

-Training food service workers and University staff members about celiac disease and other types of food allergies.

The University also agreed to pay $50,000 in monetary damages to the students involved in the charge of discrimination.  The university will also consider waiver of the mandatory meal plan, as an accommodation for some students with gluten sensitivities and other food allergies.  The full settlement agreement can be found at:  http://www.ada.gov/lesley_university_sa.htm.

Although the result of the students’ charge was an agreed-upon settlement, the government’s response to the charge suggests that food allergies are considered a disability under the ADA, and that reasonable accommodations may need to be made.   It remains to be seen whether this settlement will open the door to lawsuits for failure to accommodate similar allergies or food insensitivities in non-university settings, such as restaurants, hotels, school, hospital, and other cafeterias, airlines, and other places of public accommodation where food is served.  An important distinction, in the university setting, is that students are known to the organization and are long-term “customers” for purposes of food purchases, as opposed to patrons coming in off of the street to eating establishments such as restaurants.  That the university had a mandatory meal plan was also important to the students’ claim that the lack of gluten-free foods impaired their equal access to education.  The settlement does provide precedent to the college and university community, however, and provides guidance that all universities should follow in accommodating the dietary needs of their students with celiac disease and other food allergies.  The settlement may also provide incentive and ammunition to encourage food allergic students in other universities to assert their needs and rights and request similar accommodations so that they may more fully enjoy their college experience and obtain full equality in education, including meal plans.

By Sonia J. Buck, Esq.

This article is not legal advice but should be considered general guidance in the area of disability discrimination.