Sunday, February 25, 2018

The Americans with Disabilities ACT (ADA) and Food Allergies - Cleveland Enters the Arena

Reasonableness is like pornography - hard to define, but we know it when we see it.  (with a nod toward U.S. Supreme Court Justice Potter Stewart.)

It’s interesting how folks classify themselves on the political spectrum.  Most individuals regard themselves as moderate, independent and reasonable, regardless of their views and positions.  Try asking an extremely  partisan political conservative how he classifies himself and you will hear terms such as ‘family values’, ‘mainstream’ and ‘pro American’.   A politician on the far left is more likely to describe himself as ‘Progressive’, rather than as a 'liberal fanatic'.

The point is that unreasonable people believe that they are reasonable.

I read an account of an episode that occurred last week in Cleveland that hinged upon the legal meaning of the word reasonable.   A 16-year-old boy with various allergies joined several friends at an expensive restaurant.  Without providing advance notice to the restaurant, the young man started opening his own food that he had brought with him so that he might safely dine with his friends. The restaurant levied a $15 plating fee, which apparently is their policy and compensates them for the economic loss from a BYOF (Bring Your Own Food) patron.

The agiitated child texted his parents from the table which sparked a crescendo of anger and chaos.  Lawyers became involved in the contretemps, always a sign that tranquility is just around the corner.  Accusations of discrimination were hurled against the restaurant, who ultimately decided to waive the fee as a courtesy.  Everyone involved had a negative experience.  

In my view, all parties fumbled clumsily and repeatedly.  This dispute is similar to the childhood squabbles that we parents have resolved thousands of times in our kitchens and backyards.  Of course, the kid’s parents (or the kid) should have called in advance so the restaurant could be prepared and could also communicate and discuss its BYOF policy, which during this calm converation, might have been waived.  Surely, a phone call between two reasonable people could have resolved this riddle wrapped in a mystery inside an enigma.  (with a nod toward Prime Minister Winston Churchill.)  And, of course, the restaurant might have used a softer touch rather than light a fuse.

All Could Have Been Avoided With a Simple, Old-fashioned Phone Call

The Americans with Disabilities Act (ADA) requires an establishment to make a ‘reasonable’ accommodation to disabled patrons, visitors and clients.  We all support this law which has helped to emancipate and mainstream disabled Americans and others.   A reasonable accommodation does not mean any accommodation, however. 

The ADA would classify a serious allergic reaction as a disability.  Would the law require a restaurant to permit an allergic patron to bring in his own food?  Would a plating fee be permitted or might this be regarded as a discriminatory violation?  What if several diners with allergies came each day packing their own lunch boxes?  Would this be areasonable accomodation from the restaurant's point of view?   Could lactose intolerance or gluten sensitivity be claimed as disabilities?  (Don’t dismiss this possibility of DMC - Disability Mission Creep.  Recall, that a woman recently tried to board an airplane with her comfort hamster to keep her calm!)

I reached out to Mary Vargas, a Washington, D.C. lawyer, who was quoted in the newspaper article, and I am grateful for her patient explanation of some of the relevant legal points.  If there are any legal errors in my analysis in this post, they are mine, not Mary's. While attorneys perform a critical societal role, I suspect that Mary would agree that this issue should have been easily solved internally In a manner that would have satisfied all parties.

It’s not easy to screw up a situation where everyone should have emerged a winner.  But when you season a situation with anger and entitlement, be prepared to take cover.   

How would you have handled this situation if you were the restaurant?  What if you were the kid?  All reasonable responses welcome.

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