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Gluten-intolerant boy may pursue restaurant disability suit


A federal appeals court has reversed a lower court ruling in a 2-1 decision and held a boy who was forced to eat his homemade gluten-free meal outside of a restaurant can pursue his disability discrimination litigation against the establishment.

Eleven-year-old J.D. suffered from severe problems whenever he ate gluten, including abdominal pain, cognitive impairment and temporary loss of consciousness, according to Friday’s ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in J.D. v. Colonial Williamsburg Foundation.

On several occasions, even when his family was assured a meal was gluten-free, he had nevertheless become ill, according to the ruling. As a result, his family regularly prepared his food and packed separate tableware so he could participate in school parties, celebrations and meals to the extent possible, according to the ruling.

In May 2017, J.D. and his father accompanied his classmates on a school trip to Colonial Williamsburg that included a meal at the Shields Tavern on its premises. Although the restaurant’s head chef offered to prepare a special meal for J.D., they refused and the two ate outside on picnic tables, before returning to the restaurant.

J.D.’s father filed suit on his son’s behalf in U.S. District Court in Newport News, Virginia, charging violation of Title VIII of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and state law for discriminating against J.D. by excluding him from the tavern and failing to modify its policy against outside food.

The District Court concluded that while there was a genuine dispute of material fact as to whether J.D. is disabled, he did not meet the burden of showing he was discriminated against because of his disability.

On appeal, the majority opinion agreed with the lower court that J.D.’s impairment could qualify as a disability under the ADA, but disagreed as to whether he may have been discriminated against.  

Pointing to the gluten-free meal the chef had offered to prepare, the ruling said the District Court “concluded that J.D.’s proposed modification was not necessary in light of this offer. We disagree.”

A jury “might well reject J.D.’s evidence about the severity of his gluten intolerance, and thus find that the protocols at Shields Tavern were sufficient to account for his disability.

“But in our view, J.D. has put forth enough evidence at this stage to raise a genuine dispute of material fact as to whether the proposed accommodation sufficiently accounts for his disability,” said the ruling.

“In sum, the district court incorrectly overlooked the testimony that J.D. repeatedly became sick after eating purportedly gluten-free meals prepared by commercial kitchens.

“Until a jury resolves the disputes surrounding the nature and extent of J.D.’s disability, we cannot determine if the accommodation Shields Tavern offered, as good as it may be, fully accounted for his disability.

“Accordingly, we hold that the district court erred in finding as a matter of law that J.D.’s proposed modification was not necessary to have an experience equal to that of his classmates,” said the majority opinion, in reversing the lower court ruling, and remanding the case for further proceedings.

The dissenting opinion said the majority’s decision “forces restaurants throughout the Fourth Circuit to give up control over their most valuable asset: the food they serve. This is a terrible rule.

“It forces restaurants to allow customers to bring in food prepared off the premises, in who knows what conditions, containing who knows what ingredients.

“It exposes the restaurant’s patrons to public health risks, subjects the restaurants themselves to legal liability, and deprives servers of much needed tips. The accommodation requested this case was not necessary, because of the Tavern’s offer of a gluten-free meal prepared inhouse,” the dissent said.

The boy’s attorney, Mary C. Vargas, a partner with Stein & Vargas LLP in Washington, D.C., said the ruling is “obviously a critically important victory for J.D. but is also a critically important victory for individuals who have celiac disease and food allergies and their families, because this gives them a seat at the table, too.”

Colonial Williamsburg’s attorney did not immediately respond to a request for comment.  






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