Fourth Circuit Revives Lawsuit Over Kid’s Gluten-Free Meal

RICHMOND, Va. (CN) – A divided Fourth Circuit panel ruled Friday that the living-history museum Colonial Williamsburg must face a lawsuit claiming it kicked an 11-year-boy out of a restaurant for bringing in an outside gluten-free meal while on a field trip.

Brian Doherty chaperoned his son’s school field trip to Virginia’s Colonial Williamsburg in May 2017. The two were told to eat at the historical site’s Shields Tavern, where they unboxed a packed lunch inside the restaurant.

When Doherty explained to Shields Tavern staff that his son, referred to as J.D. in court documents, has celiac disease and cannot eat even trace amounts of gluten without experiencing severe reactions, the restaurant offered a gluten-free meal.

But Doherty declined, cautious about the ability of restaurant employees to prepare food for J.D., who had been harmed by restaurant food in the past. The boy was forced to eat his food outside, away from his classmates.

A federal judge ruled last year that J.D.’s request to bring food into the restaurant was unnecessary and unreasonable, but the Fourth Circuit vacated that decision Friday.

“The district court incorrectly overlooked the testimony that J.D. repeatedly became sick after eating purportedly gluten-free meals prepared by commercial kitchens. Until a jury resolves the disputes surrounding the nature and extent of J.D.’s disability, we cannot determine if the accommodation Shields Tavern offered, as good as it may be, fully accounted for his disability,” U.S. Circuit Judge Albert Diaz wrote for the majority.

Colonial Williamsburg argued that while the child’s gluten sensitivity may cause harm, the district court should have granted summary judgment on this issue because J.D. “can simply avoid foods that contain gluten.”

But Diaz noted that the Americans with Disabilities Act covers people with severe dietary restrictions and said it is unclear whether J.D. is considered disabled under that law.

“The evidence here—which a jury may choose to credit or not—is that J.D. and his parents must remain vigilant because the ingestion of even a small amount of gluten may have serious consequences for J.D.’s health,” the ruling states. “Unlike a person with simple diet restrictions, J.D. says that he must monitor everything he eats. And unlike a person with simple diet restrictions, J.D. alleges that he doesn’t enjoy much (if any) margin for error.” (Parentheses in original.)

Diaz, a Barack Obama appointee, was joined in the majority by U.S. Circuit Judge Henry Floyd, also appointed by Obama.

U.S. Circuit Judge J. Harvie Wilkinson III, a Ronald Reagan appointee, dissented and called the majority’s decision “terrible.”

“The majority’s almost per se rule forces restaurants throughout the Fourth Circuit to give up control over their most valuable asset: the food they serve,” Wilkinson wrote.

The judge said the ruling forces restaurants to allow customers to bring in food that was prepared off the premises, which could be unsafe.

“It exposes the restaurants’ patrons to public health risks, subjects the restaurants themselves to legal liability, and deprives servers of much needed tips,” wrote Wilkinson, who said he would uphold the lower court’s decision that J.D.’s request was unreasonable.

Wilkinson said that while Colonial Williamsburg might prevail at trial, his colleagues’ ruling “has the flavor of a de facto per se rule: Restaurants must either allow patrons to consume food prepared outside their premises or must justify their refusal at a costly trial.”

The dissenting judge said he suspects restaurants will want to avoid litigation and let people bring in outside food. 

“Colonial Williamsburg is disappointed by the Court’s decision,” Joe Straw, a spokesperson for the Colonial Williamsburg Foundation, told Courthouse News.

Straw added, “We have a long and successful track record of preparing gluten free meals for our guests and believe doing so is a reasonable accommodation, as noted by the dissenting judge. We are analyzing the decision and considering our options.”

Mary Caroline Vargas of Stein & Vargas LLP argued on behalf J.D. and Doherty at oral arguments on Jan. 29.

“This critical victory underscores the importance of inclusion for individuals with disabilities and for businesses. The accommodation J.D. needed cost nothing but compassion,” Vargas told Courthouse News on Friday. “Having paid full price for a meal he couldn’t eat, J.D. just asked to be in the room with his classmates and to experience living history and all that Colonial Williamsburg has to offer. Today’s court decision gives those like J.D. who have medically necessary dietary restrictions a seat at the table.”

Dana Rust of McGuireWoods LLP argued for the Colonial Williamsburg Foundation.

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