Mr. Peanut goes to court: accommodating an individual's peanut allergy in schools and day care centers under the Americans with Disabilities Act.

• Author: Plicka, Marie

1. INTRODUCTION

   Recently, the Department of Transportation, "DOT," declared peanut allergy a "disability" under the Air Carrier Access Act,(1) a 1986 law that guarantees disabled passengers access to airliners, and which can be considered the air travel equivalent of the Americans With Disabilities Act, ("ADA.")(2) In doing so, the DOT sent letters to ten of the major airlines explaining that a medically diagnosed allergy to peanuts constitutes a "disability" under the Carrier Act.(3) Accordingly, the to DOT created "peanut-free zones" or "buffer zones," where peanuts would not be served, on commercial air flights in order to protect passengers who notify the airline in advance of their documented allergy to peanuts.(4)

   In response, Congress, pressured by lobbyists for the peanut industry, attached a repealer to the 1999 Omnibus Appropriations Bill that prohibits the DOT from spending any money to implement "peanut free zones" and further requires the DOT to submit to Congress "a peer reviewed scientific study" which documents the severe allergic reactions before the DOT can once again move for "peanut free zones."(5) Even after Congress' response, the DOT is still recommending "buffer zones" on commercial flights; however, without funding, enforcement of the zones has become impossible.(6)

   The airline industry is not the only one being affected by peanut allergies. There are many schools in such states as New York and Maryland that have banned peanuts and peanut by-products such as peanut butter from classrooms and cafeterias in fear of potential ADA claims.(7) School administrators at Trevor Day School in Manhattan have gone so far as to ban anyone from bringing peanuts in any form into the school.(8) If this is not enough, in some schools, parents have repainted classroom walls after peanut science projects in fear of residual peanut particles.(9) Some parents have become upset by these bans because they feel that the bans disrupt the day-to-day activities of school, while other parents feel that the ban on peanut butter denies their children an inexpensive source of protein.

   Why have peanut allergies become such a hot topic? Approximately 1.5 million Americans are allergic to peanuts and other nuts.(10) While some individuals who are allergic to peanuts may exhibit only an itchy rash, it is estimated that twenty percent of these individual are so severely allergic that a reaction can be fatal.(11) This is obviously no laughing matter to the individuals who are allergic to peanuts, particularly because peanuts and peanut by-products are in many foods that one would not necessarily associate with peanuts. To compound the fact, reactions to peanuts can be touched off by actually eating peanuts, or a by-product of peanuts, or even by casual contact with their residue, such as shaking hands with an individual that has just eaten a peanut butter and jelly sandwich.(12)

   The question becomes how society can balance the rights of those allergic to peanuts against the rights of those who are not allergic. It is clear that non-allergic individuals out number those who are allergic. It is also not generally disputed that individuals who are allergic to peanuts can suffer severe reactions, which may send them into fatal shock.

   The Eighth Circuit recently decided a case in which a mother of a child that suffers from peanut allergy filed suit against a day care center for not accommodating her child's allergy.(13) While the majority held that the child's allergy to peanuts did not constitute a disability under the ADA,(14) the dissent believed that there was an issue of fact as to whether the child's food allergy to peanuts substantially limited her ability to function and therefore acted as a disability.(15)

   The issue of whether peanut allergy is a disability under the ADA is far from settled. It is likely that this recent case is only a stepping stone to further litigation. It has now become a question of whether an individual's food allergy to peanuts can ever rise to a high enough level of severity that a court will recognize it as a disability, and if so what the consequences of the court's decision will be. Accommodation will become a key factor in the analysis of peanut allergy under the ADA. Courts will need to consider how far schools and day care centers will need to go to accommodate individuals allergic to peanuts.

   This article explores the ADA and the interpretive case law, as it pertains to schools and day care centers, in hopes of better understanding the purpose of the statute as well as to predict its future. Part II of this article provides a brief explanation of peanut allergies. Part III contains an overview of Title II and Title III of the ADA and their interpretive regulations. Part IV analyzes whether an individual asserting a Title II claim under the ADA, where the relief sought is also available under the Individual with Disabilities Education Act, must first exhaust all of the administrative procedures under Individual with Disabilities Education Act before asserting his or her ADA claim. Part IV also analyzes, through relevant case law, the application of the Title II and Title III of the ADA to individuals suffering from peanut allergy. Part V analyzes when accommodation will be necessary and the cost of such accommodation under the ADA and proposes a case-by-case analysis of peanut allergy cases in order to protect the rights and needs of the severely allergic and to balance those needs against the rights of non-allergic individuals.

2. BACKGROUND ON PEANUT ALLERGIES

   The average American consumes an estimated eleven pounds of peanut products each year.(16) It has been further estimated that 1.5 million Americans are allergic to peanuts.(17) Out of this number, approximately twenty percent are allergic to the point that an attack can be fatal.(18) As little as half a peanut can cause a fatal reaction for severely allergic individuals.(19) Unlike many other food allergies, peanuts do not only pose a problem when ingested; rather, the mere touch or smell of peanuts can cause an attack.(20)

   A food allergy occurs when an individual's immune system creates IgE antibodies to a certain food and these antibodies react with the food causing the body to release histamine and other chemicals which cause the outward symptoms of the allergic reaction such as hives.(21) Eight foods cause an estimated 90% of all allergic reactions due to food.(22) They are milk, eggs, wheat, peanuts,(23) soy, tree nuts, fish, and shellfish.(24)

   Currently there is no cure for food allergies and, consequently the only way to prevent a reaction from occurring is by avoiding the food that causes the reaction.(25) If an individual who is allergic to peanuts accidentally ingests a peanut product, this individual will suffer an anaphylactic(26) reaction that may include: hives, swelling of the lips or tongue, difficulty swallowing, tightness in the throat and chest, itchiness, drooling, wheezing, choking, coughing, voice change, sneezing, nausea, vomiting, cramps, diarrhea, dizziness, pallor, and loss of consciousness.(27) Anaphylaxis can proceed very rapidly.(28) Symptoms may begin within minutes to one hour after the ingestion of peanuts.(29)

   When an individual suffers a severe anaphylactic reaction that results in the swelling of the breathing tube and possible loss of consciousness, the individual must be immediately treated with an injection of epinephrine (adrenaline) and taken to the emergency room.(30) Self-administration kits such as Epipen and Anakit are available to individuals with peanut allergy and can be administered by the individual themselves during an attack, or by someone else trained to administer the shot.(31) A shot of epinephrine will temporarily alleviate the symptoms of the attack and allow an individual an extra ten or fifteen minutes to get to the hospital.(32) It has been estimated that approximately one third of all emergency-room visits for anaphylaxis may be due to peanut allergies.(33)

   The Centers for Disease Control reported eighty-eight deaths accredited to all food allergies, including allergies to peanuts, from 1979 to 1995.(34) Many people feel that the number of fatalities due to food allergies is underreported and that in fact up to 0.5 to 1.0 percent of all Americans actually suffer from peanut allergies.(35) These individuals also believe that an estimated 125 people die every year from food allergies, the majority of these fatal attacks caused by peanut allergy.(36)

3. THE ADA IN A NUTSHELL

   1. Introduction to the ADA

      The ADA was passed into law on July 26, 1990, in response to the longtime discrimination against individuals with disabilities.(37) On enacting the ADA, Congress found that approximately 43 million Americans have one or more physical or mental disability and that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continues to be a serious and pervasive social problem."(38) To further enumerate its reasons for enacting the statute, Congress stated that the purpose of the ADA was to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."(39)

      Before the enactment of the ADA, the Rehabilitation Act of 1973(40) had been in place to prevent discrimination against individuals with disabilities. The Rehabilitation Act however only applied to federal financial assistance recipients, while the ADA broadened the protection offered to disabled individuals by removing the federal financial assistance requirement and extending the law to include state and local governments, as well as a majority of the private sector.(41) The ADA did not nullify the Rehabilitation Act; rather, the two now coexist, allowing a disabled individual to assert claims under both Acts.

   2. The...