by Deana Weiss

A divided federal appeals court ruled that a jury should decide whether the Americans with Disabilities Act was violated when a boy was stopped from bringing a gluten-free meal into a Colonial Williamsburg restaurant.

On May 11, 2017, a group of 5th graders from Maryland traveled to Colonial Williamsburg, a living history museum in Williamsburg, Virginia. The students had been raising money for the class field trip since first grade.

One of the children, an 11-year-old boy with severe gluten intolerance (referred to in court documents as “J.D.”) suffered from celiac disease where exposure to even trace amounts of gluten can produce severe reactions. His father, Brian Doherty, chaperoned the trip and brought along a home-prepared lunch for his son.

The staff at Shields Tavern, an 18th century themed restaurant operated by Colonial Williamsburg, would not permit J.D. to eat his self-prepared lunch on their premises and instead offered to make a gluten-free meal. However, Doherty declined, citing numerous instances where the boy had been sickened by eating restaurant food that claimed to be gluten safe.

Colonial Williamsburg staff insisted that outside food was not allowed as it was a violation of the Virginia Health Code despite exceptions being made for baby food, snacks for toddlers, and cakes and wine for celebrations. When J.D. began to cry, his father took him outside to eat at picnic tables in a covered pavilion. His lawsuit filed in July 2017 alleged that the Colonial Williamsburg Foundation failed to reasonably accommodate the boy’s gluten insensitivity.

U.S. Court of Appeals for the Fourth Circuit Overturns Ruling

Last year, a federal judge ruled that J.D.’s request to bring outside food into the restaurant was unreasonable. However, on May 31, that decision was overturned by the U.S. Court of Appeals for the Fourth Circuit. The case will now be sent to a jury trial, with the family alleging that the Colonial Williamsburg Foundation’s policy violates the Rehabilitation Act, the Virginians with Disabilities Act, and the Americans with Disabilities Act (ADA), and that Colonial Williamsburg discriminated against J.D. “by excluding him from the restaurant and by refusing to modify its policy against outside food.”

Colonial williamsburg carriage rides for Valentine's Day or any day!

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.” And, according to the Virginia Health Code, food prepared in a private home is prohibited from being “used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services.”

However, J.D.’s physician expressed his medical opinion that “a gluten free diet is medically necessary for J.D.”  Additionally, their family history is positive for celiac disease or non-celiac gluten sensitivity.

Celiac disease is an autoimmune disorder where the ingestion of gluten, even in small amounts, causes damage to the small intestine. Symptoms include fatigue, abdominal pain, constipation, and cognitive impairment. Untreated, celiac disease can lead to additional serious health problems, including intestinal cancer, short stature, liver disease, and nervous system disorders such as seizures and migraines.

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

The complete court filing can be accessed here.

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