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THE BRAVE NEW WORLD OF FOOD ALLERGIES

On January 9, the Iowa Court of Appeals issued a ruling in a case that could have a huge impact on people dealing with food allergies. The parents of a young girl, Shannon and Joseph Knudsen, sued Tiger Tots Community Child Care Center Corporation. The Knudsens had applied to have their daughter enrolled in the daycare center. At that time, they disclosed the child had a tree nut allergy and outlined an emergency care plan with the center’s directors. The center said staff and liability issues rendered the center unable to meet Knudsen’s request and rejected their child’s application. The Knudsens sued on the basis that the refusal amounted to disability discrimination under the Iowa Civil Rights Act.

The District Court granted Defendants’ motion for summary judgment, rejecting the argument that the child had a “disability” as contemplated by Iowa civil rights law. The Knudsens appealed. The appeals court noted that summary judgment is appropriate if there is no genuine issue of material fact and the party asking for summary judgment is entitled to it as a matter of law. Iowa law defines “disability” as “the physical or mental condition of a person which constitutes a substantial disability…” Iowa Code Section 216.2(5). The Court noted that, in the past, Iowa Courts have found common purpose between the Americans With Disabilities Act and civil rights law and that federal law offers a good framework for analyzing what a “disability” is.

The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more life activities of such individual.” Further, ADA provides one of the “rules of construction” is that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

The appeals court noted that no one disputed the child’s tree nut allergy was “episodic or in remission”. The Court further found that there is, however, a question as to whether that allergy would substantially limit a major life activity “when active.” Because District Court didn’t consider that question, the case was remanded back to the District Court level for further consideration. That’s where the case is now.

Meanwhile, in Massachusetts, the US Justice Department just settled a case with Lesley University. A student complained that the university which has a “mandatory” food plan (you have to pay for the food served by the dining hall whether you can eat it or not) was discriminating by not allowing the student to be exempt from the meal plan even though celiac disease (an inability to absorb gluten, found in wheat, rye and barley which can cause serious stomach problems) prevents the student from eating the food.

Under the agreement, the university will provide gluten-free food options in the dining hall, let students pre-order, provide dedicated storage and preparation areas to avoid contamination, train staff about food allergies and pay a cash settlement to students affected by all this.

A lot of people read stuff like this, shake their heads, and scoff at whiny people . I could cite statistics about how food allergies are increasing, not going down. I could refer you to horrible stories about kids dying from eating the wrong thing. I could tell you how freaky it is to send your six-year-old out into the world to play, armed with an epinephrine pen you hope she’ll never have to stab herself with.

I’m not going to do any of that because it won’t matter. It won’t matter because most people who don’t have a food allergy simply don’t get how serious it is. They think being allergic to shellfish or nuts is like getting the sniffles from your grandma’s cat, getting watery eyes when the pollen count goes up in the spring, or feeling itchy from a wool sweater.

It’s not like that.

Yes, those things can happen. But people with food allergies hope that’s the worst that happens. Some with a nut allergy, though, doesn’t just get the sniffles if they eat a nut. They stop breathing. Touching peanut oil or dust can be just as threatening. Eating something cooked in a pan that had nuts in it or processed on a factory’s machine that also processes nuts can trigger an allergic reaction.

School cafeterias and daycare centers are not restaurants. If a person has a food allergy, they can try to avoid menu items at a restaurant. But if the person with the allergy is a toddler in daycare or a college kid who has to eat in the dining hall, they cannot. Not to mention that, while all public establishments have a duty not to put people at risk, schools and daycares are different. They have a heightened duty to keep the kids and students in their care safe. Asking the daycare, the elementary school, or the college to make safe alternative foods available – no required change to what they offer everyone else – is a minimal intrusion to protect a life.

That’s just what I think.

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