The 4th Circuit Takes Up Gluten Intolerance

Did Colonial Williamsburg violate a student’s rights by refusing to let him eat his own homemade gluten-free meal in one of its restaurants?

That question was before the 4th U.S. Circuit Court of Appeals this morning, where oral argument focused on whether or not the restaurant’s own “gluten-free” menu offering was a reasonable accommodation for an 11-year-old child – known as “J.D.” in court documents – with a severe sensitivity to gluten. The case is J.D. v. Colonial Williamsburg Foundation, No. 18-1725.

When “gluten-free” isn’t enough

According to J.D.’s brief, he was diagnosed at a young age with Celiac disease, a genetic autoimmune disorder where even trace amounts of gluten can damage the small intestine and cause short- and long-term impairment. Such small amounts are easily dispersed during standard food preparation via flour particles in the air, and they can be difficult or impossible to remove from cooking utensils by washing. This “cross-contamination” compounds the absence of federal “gluten-free” labeling standards, so it’s hard for people like J.D. to eat commercially-prepared food safely.

On the few occasions when J.D.’s family tried to arrange in advance for truly gluten-free meals at restaurants, even clear communication about food prep standards didn’t always get through to the kitchen. There was no way to detect gluten before eating, but afterward J.D. would be ill for days or even months. Those experiences are why he eats at only two restaurants, J.D.’s counsel, Mary Vargas, told the court.

But a school field trip to Colonial Williamsburg was different, she argued. It was an all-day excursion with a busy itinerary that included dinner at Shields Tavern, followed by more activities. At the tavern, when J.D. began to eat the gluten-free dinner he’d brought from home, restaurant staff told him he was violating the restaurant’s no-outside-food policy, which Virginia’s health code required them to have.

The chef at Shields Tavern offered to make a gluten-free meal. But J.D.’s father, attending as a chaperone, declined, explaining the complexity of avoiding cross-contamination. Restaurant staff ushered J.D. to an outdoor pavilion where he could eat his own food, but J.D. was distressed to be separated from his peers.

Through his father, J.D. sued Colonial Williamsburg under the Americans with Disabilities Act, claiming that eating his own food was a reasonable accommodation that would let him experience the venue on equal footing with his classmates. But the trial court granted summary judgment to Colonial Williamsburg, accepting the chef’s testimony that he prepared several gluten-free meals per day based on his training in culinary school.

Balance of responsibilities?

At oral argument, Judge J. Harvie Wilkinson III challenged Vargas about how the restaurant’s accommodations were unreasonable. After all, the restaurant’s no-outside-food policy was mandated by the state to protect other patrons. And as Judge Albert Diaz observed, the record showed no basis for J.D.’s father to suspect that this particular chef wouldn’t prepare a safe gluten-free meal. “Aren’t you putting Colonial Williamsburg between a rock and a hard place?” Wilkinson asked.

No, Vargas answered, because Colonial Williamsburg restaurants had in fact permitted exceptions in other cases. In those other cases, though, the facilities had notice of a patron’s special needs and time to consider potential accommodations. Here, J.D.’s family didn’t communicate with facilities staff beforehand, which Wilkinson asserted left the Shields Tavern manager with few immediate options. Vargas pointed out that the ADA doesn’t require individuals to give establishments advance notice of their needs, but Wilkinson wasn’t convinced. “You’ve got to give them a chance” to evaluate the accommodation, he said, suggesting that either the parents or the school should perhaps have done more to avoid putting J.D. in an unfortunate position.

What’s reasonable?

Although the panel gave no outward sign it might reverse the district court, that resolution would leave open two broader issues that I’d expect to return in future “reasonable accommodation” litigation.

The first concerns the lack of advance notice that particularly concerned Judge Wilkinson. Though it may be true as a general principle that such notice isn’t legally required, can a failure to make uncommon requests in advance still have the practical effect of making an otherwise-reasonable accommodation unreasonable? Both Colonial Williamsburg and the court seemed inclined toward this proposition.

The second concerns how risk-averse an accommodation-seeker is entitled to be. Here, panel members observed more than once that J.D.’s father didn’t have any immediate reason to decline Shields Tavern’s gluten-free practices specifically as unsafe. But given J.D.’s history of gluten-induced illness, Vargas characterized this approach as akin to Russian roulette. Most of us – indeed, even most diners with gluten sensitivities – may be able to eat out on the default assumption (even if not the guarantee) that the food won’t make us sick. But J.D. argued that his risk calculation has to be fundamentally different than other people’s, such that his default assumption is that he will get sick from commercially-prepared food. Is this reasonable? The district court thought not, and the appellate panel seemed to agree.

Photo credit: Kevin, “Shields Tavern at Colonial Williamsburg Virginia.” Some rights reserved.

Categories: 4th U.S. Circuit Court of Appeals, News


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