One of my favorite bands put on a music festival¹ in April that I’d been looking forward to for months. I had hung out online the day tickets were released, to catch some before they sold out. I made hotel reservations way in advance. And I planned what food I’d bring with me to keep me fed for a two-day festival. Because I have Celiac Disease, I often have to bring my own food when Celiac-safe food might not be available. (There is often a wide gulf between food marketed as “gluten free” and food which is Celiac-safe).
My excitement derailed when the production company running the festival sent out an email listing things that would not be allowed in, which included food of any kind.
I figured that, as in most cases, I could simply tell the folks at the gate that I have a disability, and that the ADA allows me to bring in my own food. That approach has always worked for me (though others have nightmare stories). But this time, since it was an out-of-town, two-day festival, I figured I’d better check on their policies ahead of time — or risk starvation.
So I wrote to the festival, and politely asked them to confirm that ADA accommodations would still be made, despite the apparent blanket ban on outside food.
The answer was NO – unless I brought a doctor’s note saying that I have an “allergy.”²
So I went on Westlaw to read the relevant regs, and called the ADA line³ at the Department of Justice. As one does.
The ADA Specialist at DOJ said, yes, a festival must allow you to bring in your own food, and, no, they can’t ask you to “prove” your disability.
I’ll list the regs they pointed me to below, but first, an important point: THE FACT THAT THEY LEGALLY CAN’T DISCRIMINATE WILL NOT STOP THEM FROM DISCRIMINATING. You and I can’t rely on the law. We can’t just show up and expect some guy at the gate to be an enlightened non-Troglodyte who will nod politely at your box of Glutino crackers and usher you in.
Indeed, this production company, when faced with the information that the Department of Justice says the law of the land does not allow them to ask me for a doctor’s note, responded by doubling down, and not only reiterating that I must present a doctor’s note, but also placing restrictions on the kind of food I would be allowed, even with the note. They said I could only bring packaged food. For this last restriction, they may be able point to some justification relating to restaurants and food safety; perhaps they’ve suffered a rash of fresh-baked muffin bombs. Whatever. That part I could live with.
The part I could NOT live with — eating being a “major life activity,” as defined by the ADA — was not starving all day due to my inability to obtain a doctor’s note at last minute.
And I shouldn’t have to live with that nonsense.
It is not okay to treat disabled people as liars. The DOJ’s ADA Specialist supported his opinion with a publication called the ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities, which states simply at section III-4.1300: “The ADA prohibits unnecessary inquiries into the existence of a disability.”
Support for this statement comes from relevant regulations, including the following:
§ 36.301 Eligibility criteria.
(a)General. A public accommodation shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.
(b)Safety. A public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
And should I ever realize my dream of having my Chihuahua trained to sniff gluten, this reg should come in handy:
§ 36.302 Modifications in policies, practices, or procedures. . . (6)Inquiries. A public accommodation shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. (emphasis added)
Alas, all of this does me no good when I’m standing with a bag full of food before an officious festival worker determined to enforce company policy in spite of the ADA. In the end, rather than risk starving, I simply attended only a couple of the festival’s acts. Maybe by throwing a big fit, I could have gotten in without a doctor’s note. But I’m exhausted. I’m tired of the fight. I don’t have the emotional energy to be a Disability Warrior every damn day. It was wrong that I had to waste part of my $115 ticket. But it seems we live in a world where not only do right and wrong not matter, but legal and illegal do not matter.
Note: the DOJ’s ADA line makes the point, when you call, that their answers are non-binding. And as a lawyer, looking at the regs the specialist pointed me to, I could still make a weak argument that those regs don’t cover this situation. The examples are not closely on point. It would be helpful if the ADA would publish guidance specifically related to food sensitivities in places of public accommodation. I would be more than happy to draft it for them.
¹ I won’t name the bands or the name of the festival – because the discrimination was not their fault. It was the fault of the production company, which wanted to squeeze every last dollar out of a captive audience.
² That would be impossible unless I found a doctor ignorant enough to classify an autoimmune disease as an allergy, but I think we can agree that this production company managed to betray, in a single sentence, a profound ignorance of both medicine and the law.
³ 800-514-0301 (voice); 800-514-0383 (TTY)