On an ordinary day in May 2017, the Colonial Williamsburg Foundation welcomed in a school for a field trip. Among the students was J.D., a young boy with a severe medical condition that precludes him from consuming even a trace amount of wheat and/or gluten. What should have been a routine visit turned into a nightmare for both the foundation and J.D.

While there were no fatal reactions to allergies that day, J.D. was embarrassed and felt discriminated against. So that no one else would have to have the same experience, he and his father brought the Foundation to court in what would be more than a year’s battle both in the District Court and the Court of Appeals.

Trial Summary

J.D.’s lawsuit centers on discrimination because of his food allergy. He felt that there were no reasonable accommodations made for his disability and that the Foundation should compensate him for discrimination.

When J.D. went to dine with his classmates in a restaurant operated by the Foundation, Shields Tavern, his father brought out food made at home to avoid eating food contaminated by wheat or gluten. However, restaurant policy does not allow outside food due to health code violations and other reasons. Virginia law states that “food prepared in a private home shall not be used or offered for human consumption in a food establishment unless the kitchen is inspected by the Virginia Department of Agriculture.”

J.D.’s father explained to the general manager and chef that J.D.’s condition is so severe — a crumb can hospitalize him and potentially harm his body for months — that he was not comfortable feeding food prepared in the restaurant.

The general manager explained that the chef was trained in preparing safe gluten-free meals and had done so without complaint for 12 months. He then gave J.D. and his father three options: 1) The chef could prepare a gluten-free meal for him. 2) He could stay in the restaurant and refrain from eating altogether. 3) He could eat his homemade food outside and return when finished. J.D.’s father chose the third option since J.D. needed to eat.

Soon after returning home, J.D. filed a lawsuit against the Foundation for “excluding him from the educational experience it offered to other non-disabled children” – an act which violates three different laws on both a national and state level: the Rehabilitation Act, the ADA, and the Virginia Rights of Persons with Disabilities Act.

The District Court ruled that J.D., in fact, does have a disability, but in favor of the Colonial Williamsburg Foundation saying that the restaurant had made reasonable accommodation for J.D.’s disability. However, J.D. and his father brought the trial to the Court of Appeals.

What We Can Learn

The incident with J.D. serves as a precautionary tale for restaurants, hotels and event venues. Even if the Colonial Williamsburg Foundation is not found at fault in the appeals hearing, they have been tied up in time-consuming trials for over a year, which can damage their reputation and cause loss of revenue. So what can we learn from the incident and what measures can we take to avoid a similar incident happening to us?

The field trip organizer

In this instance, the school system and J.D.’s teachers are the ones who coordinated the field trip. They were the “event organizers,” so to speak, and there are a few things that they could have done differently.

  • Collected dietary needs information from all students and parents before the trip.
  • Talked to all food and beverage providers about attendees’ dietary needs.
  • Asked for information from the food and beverage providers on their capabilities and policies for managing guests’ dietary needs and food allergies.
  • Introduced the food and beverage providers to J.D.’s dad so he could communicate J.D.’s needs in advance.

Shields Tavern had no advance notice of J.D.’s gluten allergy, and J.D.’s family were not provided information on where they would be eating, so they were not informed about the restaurant’s ability to prepare gluten-free food. That responsibility falls on the field trip organizer.

If J.D.’s father had known about the restaurant’s ability and procedures to prepare gluten-free food, he may not have had to bring J.D. his own food or been concerned about accepting a gluten-free meal from them. If given the chance, he would have had the opportunity to discuss the kitchen’s gluten-free standards beforehand. The field trip coordinator (a.k.a. event organizer) should have been the one to make that happen.

J.D. and his dad

J.D. and his dad are the attendees in this situation, and the following are a couple of actions they could have taken to advocate for themselves before the trip.

  • Talked to the teachers and the school system to get more detailed information on their trip, specifically the restaurants.
  • Ensured the school system/teachers were communicating J.D.’s dietary needs to all food and beverage service providers for the trip.
  • Collected information on what/how J.D. could partake in food and beverage experiences.
  • Ensured that J.D.’s 504 plan was well-communicated to everyone involved.

The Venue

Shields Tavern was the venue and hospitality provider in this case. There are a few things that they could have done to prevent this situation.

  • Asked for allergy information in advance

The venue should have asked the event organizer if any of the children attending (and the chaperones) had any dietary needs. Part of the food preparation process should be to ask for allergy information in writing in advance of guests’ arrival. That way the kitchen knows to prepare food accordingly.

By asking about dietary needs in advance, guests will also have the opportunity to both inform the kitchen about their needs and ask any questions they may have about how the food is prepared. This written communication can later be useful for restaurants and other food and beverage venues if they need to produce a record in court proving their good faith and willingness to provide reasonable accommodation to their guests.

  • Provided information about dietary needs management on their website for guests to read and determine if it is safe for them to dine with them.

If you were to go to the Shields Tavern website and download their menus, you will notice that there is no mention of food allergies. None of the recipes are labeled to indicate allergens, nor is there mention of an alternative menu for guests with allergies or other dietary needs.

  • Labeled Menus and Provided Options

Labeling allergens on the menu can help avoid a potentially disastrous medical event. However, those who are familiar with their own allergies often know to ask about certain dishes. Providing an alternative menu for guests with food allergies can give them the comfort that your kitchen is trained in such matters and can accommodate their needs in a safe and efficient way. If J.D.’s father had seen a menu meant for gluten-free guests, he might have had more confidence in the Chef’s abilities.

  • Been proactive in addressing their policies and procedures and offerings for the food allergic with the school system in advance of the field trip.

When collecting food allergy information in advance, provide language on your forms and communications that indicate the kitchen’s abilities to accommodate guests’ allergy needs. If the restaurant provides clear messaging in regards to their abilities, guests will feel more comfortable providing their allergy information and discussing their options beforehand – in time to prevent an incident due to miscommunication.

  • Trained Serving Staff

One of the successful lines of defense that Foundation attorneys pleaded was the chef’s training in preparing meals for guests with food allergies.

“This chef was well-skilled and well-trained to prepare meals for customers with food allergies. The safety protocols he follows are undisputed. He changes aprons and gloves before he cooks, and the prep area where he does the cooking is 13 feet from the other areas in the kitchen.”

The chef was clearly knowledgeable and well-trained, but what about the rest of the staff? Other kitchen employees and serving staff should be empowered with equal knowledge to handle situations that arise with food allergies.

While I feel that J.D. should have been allowed to eat his own food inside the restaurant with his classmates, I think that all parties involved can learn something from this experience. These are just a few lessons we can learn from “J.D. vs. Colonial Williamsburg Foundation.” If you want to learn more about how to prepare your staff and menus to handle food allergies and avoid potential discrimination lawsuits, give me a call.