TWO COMPLAINTS FILED AGAINST UNITED AND SOUTHWEST FOR FOOD ALLERGY-RELATED DISABILITY DISCRIMINATION
December 19, 2022
Two complaints were recently filed with DOT in which passengers alleged disability related discrimination on the part of airlines related to severe food allergies.
On November 1, an unnamed passenger submitted a complaint against United Airlines (“United”) for allegedly being removed from a United flight due to disclosing a food allergy. The complainant alleged that United employees acted in violation of the Air Carrier Access Act (“ACAA”) and the recently published Airlines Passengers with Disabilities Bill of Rights by allegedly berating her, and removing her from a flight from Huntsville, AL to Washington D.C. upon disclosing the fact that she had a severe food allergy to a flight attendant. The complainant alleged that she was ordered off her flight without being offered a seat on another flight or compensation, which forced her to rent a car at her own expense and drive from Huntsville to Washington D.C., since there were no other direct flights to Washington D.C. leaving the same night. Based on this the complainant alleged that she incurred $1,427.31 in additional travel related expenses but was told by United that she could only be given a partial refund and a small flight credit for future travel, or a small stipend. Eventually the complainant was able to obtain a full refund for her ticket but was allegedly never reimbursed for her travel expenses or given additional information on what safety concerns caused her removal as she requested. In response the complainant filed a complaint with DOT requesting, among other things, reimbursement for additional travel expenses, a statement from United admitting that it discriminated against her in violation of the ACAA, a fine on United according to the ACAA, and mandated training for United employees to ensure that passengers with food allergies are not removed or prevented from traveling on its flights. Following this United filed an answer to the complaint generally denying most of the allegations made by the complainant and asserting an affirmative defense arguing that having to grant the relief requested by the complainant would result in an undue burden on United. DOT has yet to issue a response or take further action in this case.
Then on November 16, the Allergy & Asthma Network, Asthma and Allergy Foundation of America, Food Allergy & Anaphylaxis Connection Team, and No Nut Traveler, three national non-profit organizations who advocate on behalf of individuals with food allergies, filed a joint complaint against Southwest Airlines for alleged violations of the Air Carrier Access Act and Airline Passengers with Disabilities Bill of Rights. They alleged that Southwest recently changed its policies and now does not allow individuals with food allergies to pre-board and rejects “necessary accommodations.” Some of the arguments alleged in the complaint are that passengers with food allergies qualify as individuals with disabilities under the Air Carrier Access Act and its implementing regulation, 14 CFR Part 382, and therefore, should be allowed to pre-board to secure and wipe down their seating area. The complainants also argue that under Part 382 rules, airlines are required to allow such passengers to pre-board if they self-identify at the gate and must grant accommodations if requested, such as requests for additional time or assistance to board or requests to stow accessibility equipment. The complainants’ claims in this case therefore center on the question of whether an allergy can be considered to be a disability. DOT has yet to issue a response or take further action in this case as well.
These cases present interesting issues because the topic of food allergies was discussed when DOT was implementing Part 382 but ultimately, the Department decided not to generally regulate allergy issues by making, for instance, carriers operate nut-free flights or serve nut-free food. Nevertheless, DOT has indicated in prior guidance that passengers with severe allergies can be considered passengers with disabilities under Part 382, and therefore such passengers should be allowed to request accommodations prior to arriving at the airport or at the gate. Based on this, carriers can take certain actions such as allowing passengers to pre-board and wipe down their seating area.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com 202-659-6622) or Drew Derco (dderco@eckertseamans.com 202-659-6665).
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