According to the Nation's Restaurant News, a lawsuit was filed in December and is currently pending in federal court in San Jose, California alleging that P. F. Chang's China Bistro, Inc. is violating the Americans with Disabilities Act ("ADA").
Specifically, the lawsuit notes that the restaurant chain charges a $1 dollar surcharge on menu items that are on its gluten-free menu. The lawsuit also complains that other patrons who ask for an accommodation due to an allergy or simple preference are not charged a surcharge. The lawsuit claims that this is discriminatory to individuals who suffer from celiac disease or gluten intolerance.
The ADA requires that places of public accommodation not only be accessible but also that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation." (28 C.F.R. §36.201).
Many restaurants charge substitution surcharges, for example, $2 extra for an egg-white omelet. The question is will this lawsuit impact those charges.
Although the surcharge may seem ridiculous (I mean can't they simply buy the carton of egg whites just as simply as they buy eggs?), but it is generally not illegal to charge it. The reason is that any person who wants an egg-white omelet, whether because they have a disability such as heart disease or that they simply believe that is a healthier option, would have to pay the same $2 surcharge, so there is no discrimination based on disability.
People with celiac disease may count as disabled under the ADA whereas someone who is "gluten-sensitive" is not; indeed there is some debate as to whether the vast majority of people who claim to be gluten-sensitive actually are. I have heard any number of people self-diagnose themselves as being gluten-intolerant and yet watched them pour balsamic vinaigrette on their salads, apparently oblivious to the fact that vinegar has gluten. An argument could be made that the gluten-free surcharge is akin to the egg-white surcharge, since sometimes it is simply a matter of preference and not on account of a disability, and is permissible under the law.
The slight wrinkle in the lawsuit versus my egg-white example is the allegation that certain items that were naturally gluten-free were charged the upcharge. The flourless chocolate dome is the same price on both menus, which seems to negate that claim. P.F. Chang's gluten-free menu does include a surcharge for certain menu items that, on their face might have always been gluten-free. For example, the Chang's Chicken Lettuce Wraps are $9.50 on the regular menu, but $10.50 on the Gluten-free menu. Now, I can't tell from reading a menu description whether the lettuce wraps are "naturally gluten-free," but I can tell that the description is the exact same. I suspect the Plaintiff engaged in the same overly-simplistic analysis to come to some of the conclusions in the complaint.
This will be an interesting case to watch.
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