“This is a terrible rule,” wrote Judge J. Harvie Wilkinson III.
The case was brought by an 11-year-old boy from Maryland who tried to bring his gluten-free chicken sandwich into Shields Tavern during a school trip in May 2017. He and about 60 classmates planned to have dinner at the tavern, which offers a traditional 18th-century experience with actors and musicians.
But the restaurant, owned and operated by the Colonial Williamsburg Foundation, refused the boy’s request and offered instead to prepare a gluten-free meal, according to the opinion.
The boy turned it down because he “didn’t trust the restaurant to safely prepare” his food, court filings stated. He ate outside, humiliated, he said, and apart from his classmates.
The boy, identified in court papers by the initials J.D., suffers severe health problems when he ingests gluten, “including significant constipation, abdominal pain . . . and temporary loss of consciousness,” the ruling says. He said in court filings that this amounts to a disability.
He alleged that Colonial Williamsburg discriminated against him by keeping him out of the restaurant and refusing to change its policy against outside food in violation of federal and state laws protecting people with disabilities.
“This isn’t about a single person with celiac or non-celiac gluten sensitivity going into a restaurant and trying to use the restaurant as a covered picnic area. This is about a child who was part of a school trip to an educational venue who paid full price to be in the room and instead was escorted out back in the rain,” his lawyer Mary Vargas said Friday.
“The court is saying here that yes, celiac disease and non-celiac gluten sensitivity can qualify as disabilities entitled to protection under federal law,” Vargas said.
A spokesman for Colonial Williamsburg said the foundation was disappointed by the court’s decision.
“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,” spokesman Joseph Straw said in a statement. “We are analyzing the decision and considering our options.”
A district court judge had sided with the restaurant and Colonial Williamsburg in finding that the boy had not met the legal standard for showing he was discriminated against because of his disability. The family appealed the lower-court decision.
The 2-to-1 ruling Friday sends the case back to the district court in Virginia for a jury trial. The Richmond-based U.S. Court of Appeals for the 4th Circuit reviews appeals from Maryland, Virginia, West Virginia, North Carolina and South Carolina.
Even though the restaurant prepares gluten-free meals that may accommodate most people with a gluten intolerance, the court said, there are significant questions in the case involving the Maryland boy about whether the “accommodation sufficiently accounts for his disability.”
The district court was wrong, the appeals court said, in finding that the boy’s homemade meal or “proposed modification was not necessary to have an experience equal to that of his classmates,” according to the majority opinion, written by Judge Albert Diaz and joined by Judge Henry F. Floyd.
The initial ruling also “overlooked” evidence that the boy “repeatedly became sick after eating purportedly gluten-free meals prepared by commercial kitchens,” the court said.
In response to the ruling, the boy, now 12, and a history buff, said in an interview Friday that he hopes his case will ensure that “nobody has to go through what I have gone through.”
With the lawsuit, the boy said, “I am trying to make a change so that people can be themselves without being forced to be who they aren’t.”