By Laura F. Rothstein
Health Law & Policy Institute

New awareness of sensitivity to peanuts and the disastrous effects of eating peanuts or even breathing peanut fumes or touching peanuts has caused parents to request accommodations for their children with these severe allergic sensitivities. In recent months, much attention has been paid to the issue of banning peanuts or limiting peanuts to certain areas everywhere from airplanes to kindergarten classes. So far, no one has tried to prohibit selling peanuts and Cracker Jacks at ballparks, although at least one Chicago parent is afraid to take her children to Wrigley Field. See Jeremy Manier, "For 2 Million, Danger Can Be a Peanut Shell Away," Chicago Tribune, September 3, 1998, Page 1, Metro Section.

While airlines and schools have recently begun efforts to accommodate this condition, courts have not yet clearly resolved what the requirements of disability discrimination law are with respect to this issue. An August 12, 1998 Department of Transportation (DOT) order to airlines over which it has jurisdiction mandated that they create peanut-free zones to accommodate passengers who have peanut allergies. While not requiring that airlines ban peanuts entirely, they are banned in the rows in front of and behind the passenger making the request. The DOT effort to comply with the Air Carrier Access Act, however, has met with criticism from some members of Congress, and reconsideration of the policy is in progress.

To date, no reported cases have addressed the legal issues involved in requests for accommodations by individuals with peanut allergies. It is not unlikely, however, that litigation may occur in the future, and it is therefore useful to review the legal analysis that would apply in such a case.

Federal discrimination law -- i.e., the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, and the Air Carrier Access Act -- require covered programs to not discriminate against otherwise qualified individuals with disabilities on the basis of their disability. More importantly for the purposes of peanut cases, these laws require reasonable accommodation. Reasonable accommodations are those that are not unduly burdensome either administratively or financially.

The first issue is whether a particular program is covered by these laws. Virtually all of the major programs currently subject to the media attention are covered by one or more of these statutes. Airlines are subject to the Air Carrier Access Act. Schools (both public and private) are subject to the ADA, and most are subject to the Rehabilitation Act. Ballparks would also be covered by the ADA.

The second issue is whether allergies to peanut butter are disabilities within the definitions of applicable federal law. Under the current interpretations of federal law, including the Supreme Court's decision in Abbott v. Bragdon, which applies the definition of disability broadly to cover a woman who was HIV positive but asymptomatic (see Bragdon v. Abbott -- Supreme Court Decision Addresses Application of Americans with Disabilities Act to Individuals with HIV, Bragdon -- The Unanswered Questions, and 118 S.Ct. 1206 (1998)), the courts are likely to find that at least those individuals with severe reactions to peanuts are substantially limited in the major life activity of breathing. It is less clear whether individuals with moderate reactions would be covered. The courts have distinguished between degrees of limitation in cases involving depression, mobility, and other impairments, so it is not impossible to imagine a program challenging the coverage of discrimination law to at least some individuals, although to do so might not be wise from a public relations perspective.

The third and most significant of the issues is the nondiscrimination/reasonable accommodation question. How far do schools, airlines, and other programs have to go to ensure that individuals with these sensitivities are able to participate in everyday activities? The consequences of not making some accommodations might be that these individuals are not able to participate in a wide range of activities that most people take for granted, such as attending school and traveling on airplanes. There has been backlash to some of the efforts that may go too far and may be counterproductive to ensuring protection. That backlash, combined with the mandate that only "reasonable" accommodations are required should encourage programs to carefully evaluate any accommodation efforts.

A key factor in determining what is reasonable is to assess each type of program. Accommodations for one type of program are not necessarily appropriate for other programs. For example, on airplanes, peanut free zones have been requested and provided because in a recycled air environment on a plane, having to breathe the fumes from dozens of bags of peanuts being opened at the same time can be deadly. Airlines may, however, have to consider whether they should have "peanut free" flights upon request with reasonable notice. Or is it simply too administratively burdensome to plan for that? Should airlines have to ensure that all of their meals are prepared with no peanut products, or could they provide peanut free meals (like Kosher meals or children's meals)? Certainly a large airline is in a position to ensure that certain meals are peanut free if requested in advance. What efforts will the airline have to take to clean the seats between flights to ensure that spilled peanuts are not in the seats? Judicial precedent indicates that the burden will be on the program to demonstrate that appropriate officials came to rationally justifiable conclusions that available alternatives would require substantial program alteration.

In the context of school programs, it may be appropriate for a daycare program for young children to provide different accommodations than a school for older children. A three year old is not in a position to read a label on a packaged food, while a high school student could be expected to do so. Banning peanuts and peanut products for one age group may be necessary while providing peanut free lunch tables at a high school might be all that is needed. Again, the key is for the relevant officials to make decisions based on good information and to be prepared to justify the denial of an accommodation based on rational conclusions.

The issue has not yet arisen in the workplace, although a similar type of issue has been discussed in several cases involving employees with severe reactions to smoke requesting that the workplace be made smoke free. The court decisions on this issue have applied the same issue analysis as above. These decisions balance the burden on the workplace to provide a smoke free environment with the impact on the individual with the sensitivity. Other cases on smoke free environments have involved adult entertainment locations (such as bars) and fast food restaurants. As is suggested above, each case must be evaluated in its own context -- i.e., who is affected (children, adults, etc.), are the individuals disabled, and what are the burdens of accommodating in a particular setting? While the smoking cases are not yet clearly resolved themselves, they can nonetheless serve as guidance for how courts might handle peanut sensitivity cases.

The fact that the ADA may not require certain accommodations does not mean that it is not good policy and practice to make certain accommodations. It is important for those attempting to make reasonable accommodations, however, to seek out the best information. One advocacy group does not support total peanut bans, because they create a false sense of security.

Information about food allergies can be found by emailing the Food Allergy Network at fan@worldweb.net. For more information about federal discrimination law, see Laura F. Rothstein, Disabilities and the Law (Westgroup 1997) and cumulative supplements.

10/15/98