Analysis: Gluten-free Watershed?

Will Lesley University settlement lead to food allergies being considered a disability?

By 
Paul King, Editor

Editor's note: This story has been updated from the print edition to reflect comments from Mary Pat Lohse, chief of staff to the president of Lesley University.

Lesley University is a small, private college in Cambridge, Mass., specializing in education, writing and fine arts programs. For much of its 103-year history, the college has operated in the shadow of its more famous neighbor, Harvard University. But the college began grabbing headlines late last year for a foodservice issue that could have ramifications not just for colleges but for the non-commercial foodservice industry as a whole.

On Dec. 20, 2012, Lesley entered into an agreement with the Department of Justice (DOJ) to settle a complaint filed three years earlier by a group of undergraduate students alleging that the university did not provide adequate foodservice for students who suffer from celiac disease or food allergies, even though students living on campus are required to purchase a meal plan. In taking up the complaint, the DOJ alleged that Lesley was in violation of Title III of the Americans with Disabilities Act (ADA). “Food allergies may constitute a disability under the ADA,” the settlement states.

In a follow-up Q&A document, the DOJ had this response to whether a food allergy is considered a disability under the ADA: “It depends. A disability as defined by the ADA is a mental or physical impairment that substantially limits a major life activity, such as eating.” The explanation goes on to say: “Some individuals with food allergies have a disability as defined by the ADA—particularly those with more significant or severe responses to certain food. This would include individuals with celiac disease.”

Although the DOJ settlement covers accommodations for students with celiac disease and food allergies, the original complaint dealt primarily with the issue of gluten-free dining.

Celiac disease is an autoimmune disorder that afflicts 1% of the U.S. population, making it the most common autoimmune disorder in the country. For people with celiac, consuming gluten can cause diarrhea, abdominal pain, anemia, chronic fatigue and muscle weakness.

Under the terms of the settlement, which the university and the DOJ entered into “voluntarily,” the university did not admit to any wrongdoing. However, Lesley administrators agreed to change a number of its practices, as well as pay $50,000 to a group of students who were part of the original complaint.

For example, the department agreed to work with the university’s disability services department to seek out students who have food allergies or a gluten intolerance and to create a customized plan for each student. “Depending on the individual circumstances, the university may allow students to be exempt from the mandatory meal plan as a possible form of a reasonable modification,” the agreement stipulates.

The university, whose foodservice is managed by Bon Appétit Management Co., a Compass Group company, also agreed to post prominent notices describing and discussing food allergies in each of its five dining locations. Administrators also said they would ensure that Bon Appétit “will continue to offer and identify a variety of food options made without certain allergens, and the food service staff will take reasonable steps to avoid cross-contamination.”

Those steps must include preparing meals in a designated area within the kitchen and serving the meals in a dedicated space in White Hall, one of the university’s dining facilities. Affected students also have the option of preordering their meals and having them delivered to other campus dining locations.

So what impact will the agreement have on other dining institutions? The DOJ’s Q&A document states: “The ADA does not require that every place of public accommodation that serves food to the public provide gluten-free or allergen-free food.”

Rather, “reasonable steps” can be expected. According to the DOJ, those actions can be as simple as offering information about a dish’s ingredients. If a location customizes what it serves, it may not be unreasonable to expect the tweaks to include the removal or avoidance of allergens, the agency continued.

What is not necessary, the DOJ specified, is “a fundamental alteration,” an alteration that changes the character of a dish or a concept. “For example, a restaurant is not required to alter its menu or provide different foods to meet particular dietary needs,” it wrote.

“Political” fallout

Mary Pat Lohse, chief of staff and senior advisor to the university’s president, said the university does not know exactly how the DOJ had become involved, but believes it was the result of one student's actions—a student who Lohse said the university already had been working with on the gluten issue.

"Our goal has always been to safely meet the food challenges of our students, and we believe the DOJ recognized this during the course of its investigation," Lohse adds. "We had already put in place many of the measures that are now set forth in the settlement agreement. During the course of the DOJ's investigation we implemented additional measures on our own inititative in order to provide all of our students with a variety of safe and healthy food options."

She notes that Lesley also amended its contract with Bon Appetit "to memorialize the procedures that Bon Appetit and the university were already following."

Bon Appétit officials refused to comment on the settlement, citing the “sensitive nature” of the issue with its client. However, Chartwells Higher Education Dining Services, another Compass entity, issued a statement in response to an interview request.

“We can’t predict the impact or ramifications of legislation that has not been officially put into effect,” said Kristine Andrews, communication director for Chartwells, in an email. “Chartwells supports its college and university partners regarding accommodating the needs of all guests with food sensitivities. Going forward we will continue to work with our partners on new innovations or requirements as needed. We have historically worked with students and all guests dining on campus to ensure that mealtime is a positive part of their academic experience.”

Not surprisingly, the celiac community is pleased with the agreement.

“It is a step in the right direction,” says Marilyn Geller, COO of the Celiac Disease Foundation (CDF). “We have come a long way in creating awareness of celiac disease, and this is a big help.”

However, Geller cautioned that awareness is only part of the solution. “Five years ago, [most] restaurant servers hadn’t even heard the word ‘gluten,’” Geller says. “Now most know what it is. Whether they truly understand about gluten? That’s another matter.”

But while celiac sufferers are celebrating the decision, operators are weighing the potential impact of this settlement. Although the settlement is only between the federal government and Lesley, there is the potential for customers at other institutions to use the agreement as a springboard for complaints or lawsuits of their own.

The National Association of College and University Food Services (NACUFS) already has taken steps to help its members deal with students seeking gluten-free or allergen-free dining.

“All of our nutritionists and dietitians are talking about this,” says Tim Dietzler, director of dining services at Villanova University, in Pennsylvania, and the current president of NACUFS. “We will be having a Hot Topics session on this at the national conference, and on our website we are putting information up to help guide those smaller schools that don’t have dietitians or nutritionists on staff.”

But universities aren’t the only operations that have expressed concern about the Lesley University decision. Some hospitals are viewing this as a cautionary tale, considering the possibility that customers could make similar demands of their foodservice programs, even though no hospital employees are required to eat in their facility’s cafeteria. At Elmhurst Hospital, in Illinois, for example, Nutrition and Foodservice Director Dave Reeves says that the hospital’s legal department has asked foodservice to draft a plan to provide gluten-free dining “just in case.” At Rex Healthcare, in Raleigh, N.C., Nutrition Services Director Jim McGrody says his hospital already provides some gluten-free foods for customers who say they need it, while admitting that he can’t guarantee that foods are truly gluten free unless they have been prepared elsewhere and packaged.

Around the college circuit

The irony is in this that many colleges already have found some ways to make allowances for students with gluten intolerance or food allergies.

“In many ways NACUFS members are ahead of the curve,” Dietzler says. “There are already a lot of best practices, and we are looking to build a framework of information for our members.”

Some examples include:

• Stanford University, in Palo Alto, Calif., offers a variety of gluten-free foods in its dining halls. However, acknowledging that because the dining centers themselves are not gluten free, it warns students about the possibility of cross-contamination. To combat this, two years ago Dining Services opened a Gluten-Free Micro Kitchen at Arrillaga Family Dining Commons. The kitchen has a designated cabinet, freezer, microwave oven and toaster to allow afflicted students the ability to find additional foods, condiments and appliances to finish preparing gluten-free meals.

• Sodexo, the Gaithersburg, Md.-based contractor, recently launched a program called Simple Servings. According to the company, the program is an initiative that offers “minimally processed, tasty food options prepared without gluten or seven of the eight most common food allergens.” (Fish is the only allergen not covered.) The program was piloted at Liberty University in Lynchburg, Va.

“I think the timing of the Lesley settlement got more client partners interested in [the Simple Servings] program and also got more people thinking about how they related to health and disability services on their campus, rather than just dealing with students on their own,” says Beth Winthrop, R.D., product development director for wellness, Sodexo Education-Campus. “I think it’s also given us a way to open discussions with administrators related to how we accommodate students with allergies and celiac.”

The bigger issue

At its heart, however, providing for customers with celiac disease isn’t simply a matter of offering them gluten-free items. As awareness of the disease continues to grow, more companies specializing in gluten-free foods are sprouting up, and more traditional food manufacturers are creating their own line of gluten-free foods.

Truly satisfying the needs of such customers without making them feel ostracized means having the capacity to prepare meals fresh for them, the same as operators do for their general customer base. That goal raises the challenge of cross-contamination.

“Awareness of celiac disease is important, but is it translating to a healthier environment?” asks CDF’s Geller. “A salad bar can be gluten free until someone drops croutons into the lettuce bowl.”

Geller notes that it can take very little gluten to make a celiac disease sufferer ill; according to the Food & Drug Administration, the tolerance level is a mere 20 parts per million.

“It can be as simple as eating french fries that were cooked in the same oil used to fry chicken nuggets,” she explains. “The gluten molecule is very sticky; it can be left on colanders used to drain pasta that aren’t cleaned properly.”

So, at present, most operators who, as Dietzler points out, are “ahead of the curve,” still must issue a caveat to customers with a gluten intolerance: They can’t always guarantee that foods are truly gluten free.

“We are doing our best,” says Ida Shen, executive chef and associate director of Cal Dining at the University of California, Berkeley. “We’re hardly perfect.”

For example, Berkeley has a method for making gluten-free pizzas by using a special gluten-free crust that comes with its own sheet pan. That is placed on top of aluminum foil before being run through an Impinger oven.

“So we can limit cross-contamination on the pizzas, but they still are going through ovens that make regular pizzas as well,” Shen explains. “It’s also a training issue for us. We can’t get all of our people trained because we go through so many [workers] at any one time.”

But if the Lesley agreement becomes the spur for a groundswell of support for increased options for gluten-free dining, facility design as well as training will become much more important.

“What we’re going to be seeing,” Dietzler adds, “is that as we are doing renovations, we’re going to have to make reasonable accommodations for this. When the ADA was first released, we had to make accommodations for wheelchairs; it’s going to be the same thing now.”

Shen echoes that, adding that some hard choices might have to be made.

“We were considering converting one kitchen to a kosher facility, because there aren’t any kosher dining options in the Bay Area,” she points out. “Now, it’s become an issue of which one do we do, kosher or gluten free.”