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Any good human resources professional understands that fostering a safe and inclusive workplace is good business—but in some cases, it is also the law.
The Rehabilitation Act of 1973 prevents discrimination on the basis of a disability in programs and organizations that receive federal funding. The Americans with Disabilities Act of 1990 (ADA) was passed as an effort to expand the anti-discrimination protection to the private sector. According to Tyra Hilliard, CMP, Esq. states in a piece for Hotel Business Review, these laws were traditionally not interpreted to consider dietary restrictions as a disability. Not until 2008, that is.
In that year, the ADA was amended (ADAAA) to better fit the spirit of the law as it was originally intended. The amended law broadened the definition of “disability” by modifying key terms that define it. The list of “major life activities” was expanded to include, but not be limited to seeing, hearing, eating, sleeping, walking, standing, speaking, breathing, concentrating, thinking, and working as well as “major bodily functions,” which includes the immune, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Notice that “eating” and “digestive” functions are included in the amended law.
The changes to the ADA have had a powerful impact on organizations. There is a greater risk of negligence liability regarding food allergies and other dietary needs in the workplace. Discrimination based on dietary needs can take the form of harassment, bullying, threats, retaliation by coworkers and companies themselves, not to mention ignoring employee needs when providing food and beverage in corporate cafeterias, vending machines, and at company meetings and events.
(I won’t get into laws preventing religious discrimination in this post—but rest assured, the protections are there for employees who keep kosher or halal, unless an accommodation would cause an undue hardship to the employer.)
Take the 2015 lawsuit filed by Dustin Maldonado, a 26-year-old man with multiple food allergies, including peanuts and tree nuts, against his former employer Panera, LLC, for severe and pervasive discrimination based on disability, for example. The complaint outlines conduct by Dustin’s general manager and coworkers that included a “campaign of humiliation led by management, threats that the disabled employee would be poisoned, and retaliation when the employee sought protection from Panera headquarters.”
On multiple occasions, Dustin was not only taunted about his allergy by his general manager and other employees, but he was also tricked into eating foods that contained tree nuts, threatened that his coffee would be poisoned, and teased that his EpiPen would spread AIDS. When he sought help from Panera headquarters in stopping the dangerous and discriminatory behavior, the human resource department told Dustin, who has had to be intubated after exposure to peanuts in the past, that he should have more of a sense of humor.
Although we don’t know how much Panera ultimately paid out—the lawsuit was settled out of court—the situation brings to light the financial and legal implications that can result from not creating a workplace where all employees feel welcome and are treated with dignity and respect.
Do you have a story of discrimination due to a food allergy? Share with me in the comments below or on social media. Do you have questions or clarifications you need about food allergies in the workplace? Connect with me! I’m here to help and to educate.