While somewhat out of the lane of employment law, this Title III ADA case – about whether a restaurant ought to have accommodated a parent’s request to allow a child to bring his own food on a field trip – has some good general lessons for disability-discrimination law.
J.D. v. Colonial Williamsburg, No. 18-1725 (4th Cir. May 31, 2019): Eleven-year-old J.D. was on a school trip to Colonial Williamsburg, where the class was scheduled to make a visit to Shields Tavern, “which offers guests a traditional, 18th-century experience with costumed actors and musicians.”
Because J.D. is diagnosed as having “either celiac disease or non-celiac gluten sensitivity,” his family routinely provides him with separate, homemade meals when he dines away from home, along with separate servingware. (In the past, they had trusted the kitchens to produce “gluten-free” food, but found that they could not rely on the cooks to segregate those meals.) Exposure to gluten in any amount caused J.D. severe and painful symptoms.
Shields Tavern refused the father’s request that J.D. be allowed to eat his own food in their dining hall, stating that it was a health-code violation and “offering to prepare a gluten-free meal for J.D.” J.D. wound up eating his homemade meal outside.
The father filed suit under the ADA, Rehabilitation Act, and Virginia law for failure to provide a reasonable accommodation. The district court granted summary judgment, holding that “that J.D.’s request to bring his homemade meal inside Shields Tavern was not a ‘necessary’ modification under the ADA because the gluten-free meal offered by Shields Tavern would have provided J.D. with full and equal enjoyment of the restaurant.”
The panel, 2-1, reverses summary judgment.
First, the majority affirms the district court’s holding that there was a genuine dispute of material act about whether J.D. had a disability. The defendant argued that J.D. was not substantially limited in a major life activity because all he had to do was avoid gluten. But the “need to maintain a strict diet is a learned behavioral modification, which the court was prohibited from considering [in deciding whether the plaintiff is disabled]. In other words, the district court was required to consider the effects of J.D.’s impairment when he’s not on a strict gluten-free diet.” (This serves as a reminder that the ADAAA changed the definition of “disability” in 2008 to discount the use of mitigating methods.)
Second, the panel majority reverses the district court on the question of whether the requested accommodation was “necessary.” It agrees with plaintiff that “the district court ignored his history of repeatedly getting sick when eating purportedly gluten-free meals prepared by commercial kitchens, which (he says) shows that he was at a significant risk had he accepted the gluten-free meal offered by Shields Tavern.” The panel majority stresses that when evaluating “necessity,” the court must make “an individualized inquiry into the plaintiff’s capacity” and whether the defendant’s proposed accommodation “account[s] sufficiently for [plaintiff’s] disability.” (The capacity issue comes up quite often in employment cases, especially about such issues as pain management.)
The panel majority also holds that there is a genuine dispute that J.D.’s proposed accommodation was reasonable. “His request didn’t cost anything; nor did it require Shields Tavern to do anything.” The defendant’s contention that the homemade meal violated health codes was, at least, debatable. And that plaintiff had supposedly failed to provide notice to the restaurant, while possibly inconvenient, did not make the request unreasonable; “timing of the request is simply an additional fact to consider in the totality of circumstances.” The record also showed that Colonial Williamsburg had allowed outside food in other circumstances (e.g., infants and toddlers).
Finally, there was the question of whether the requested modification would “fundamentally alter the nature” of the goods and services, 42 U.S.C. § 12182(b)(2)(A)(ii), an affirmative defense on which the burden rests on defendant. The panel majority holds that “a jury could reasonably conclude that granting J.D.’s specific request would not have affected the experience of the other patrons in the restaurant,” or hurt sales because “there is no evidence that Colonial Williamsburg has been deluged with requests from people seeking to bring in outside food.”
In dissent, Judge Wilkinson would hold the restaurant’s proposed accommodation – cooking and serving a gluten-free meal – reasonable as a matter of law. The chef submitted a declaration describing his experience with making such meals, and that he had served thousands of them without any complaints from customers. Also, allowing “people [to] bring in their own meals, occupy the Tavern’s tables, engage the time and attention of the Tavern’s servers, and otherwise divert the Tavern’s resources from paying customers,” would be districting and potentially costly for the restaurant, not to mention “disrupt[ive of] the carefully cultivated eighteenth-century atmosphere of the Tavern.”
The dissent concludes: “The majority holds that forcing restaurants to give up control over the food they serve is a perfectly reasonable thing to do. While the majority claims its analysis is ‘individualized,’ Maj. Op. at 13, the real-world consequences of its ruling are sweeping in effect. Even restaurants which, like the Tavern, have made indisputably rigorous and wholly commendable efforts to prepare gluten-free meals and thereby accommodate people with J.D.’s disability are strung up. Only in the judicial monastery could this impractical and unworkable requirement hatch. While the holding here is not the end of the matter-Colonial Williamsburg may well prevail at trial-it has the flavor of a de facto per se rule: Restaurants must either allow patrons to consume food prepared outside their premises or must justify their refusal at a costly trial. In practice, I suspect many will forgo the litigation and simply fold the tent. Thus do we bid a rule whose health and safety benefits are self-evident farewell.”