By Minh N. Vu  

The U.S.  Department of Justice (DOJ) recently announced a settlement with Lesley University requiring it to take comprehensive measures to accommodate the needs of students with food allergies.  Under the agreement, the university must:

  • Provide allergen and gluten-free food choices to students with food allergies at all dining venues;
  • Allow students with food allergies to pre-order their meals, which must be prepared in a separate allergen-free facility;
  • Deliver pre-ordered allergen-free meals to students at the dining location of their choice;
  • Provide a dedicated allergen-free area for students to store and prepare their food that includes a sink counter area, dish rack, kitchen supplies, refrigerator, freezer, cabinet space, and appliances such as a toaster, microwave, and food warmer;
  • Purchase allergen-free foods that students with food allergies place on their shopping lists;
  • Pay $50,000 in damages to students with alleged food allergies;
  • Adopt a written Disability Services for Students policy, post it in various locations, and disseminate it to all students and employees;
  • Ensure that all food service personnel receive training on food allergies;
  • Provide disability rights training to all employees in various departments;
  • Maintain a record of every person who seeks information about food-related disability services at the university;
  • Engage in an interactive process with all students with food allergies to develop an individualized modification to their meal plan; and
  • Post prominent notices regarding food allergies all dining venues.

The DOJ’s position is that all of these measures are mandated by the ADA’s requirement that public accommodations make reasonable modifications to their policies, practices, and procedures that are necessary to ensure that individuals with disabilities have access to their goods and services.  However, the law does not require a public accommodation to engage in any measures that would “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations” offered.  Had the university not complied with the DOJ’s demands and DOJ brought an enforcement lawsuit, the university might have been able to rely on this defense.  For example, the DOJ’s ADA Title III Technical Assistance Manual states:  “As a general rule, a public accommodation is not required to alter its inventory to carry accessible or special products that are designed for or easier to use by customers with disabilities. Examples of accessible goods include . . .  foods that meet special dietary needs.”

This settlement raises the obvious question of whether restaurants will be next on the list of public accommodations the DOJ investigates for failing to offer gluten-free or allergy-free items on their menus prepared in special allergen-free facilities.  In a technical assistance document released after the settlement was announced, the DOJ said that “a restaurant may have to take some reasonable steps to accommodate individuals with disabilities” and gave as an example “omitting or substituting certain ingredients upon request if the restaurant normally does this for other customers.”  The DOJ said that the ADA does not require restaurants to change their menus to offer gluten or allergen-free foods. So for the time being, only schools that offer mandatory meal plans should take a careful look at this settlement agreement.

Click here to read more commentary on this settlement agreement.