Restaurants nationwide are beginning to offer gluten-free alternatives to regular menu items. This is welcome news to those long suffering from celiac disease, a chronic and serious immune reaction to eating gluten, a protein that is found in wheat, barley and rye. The National Foundation for Celiac Awareness cites a statistic that one out of every 133 Americans has celiac disease. While that number seems small, that means that a busy restaurant will likely encounter at least one customer with celiac disease every few days at the least, and quite often daily. Many restaurants that do provide gluten-free options, however, charge an added fee for the dish. This raises a few important topics of note for those with celiac disease – whether celiac disease is a “disability” that requires accommodation under the American with Disabilities Act (“ADA”), whether a restaurant must provide a gluten-free dish as an accommodation, and finally, whether it may charge an added fee for the accommodation.

Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. Restaurants open to the public fall squarely within this rule, for instance. A disability under the ADA is any mental or physical impairment that substantially limits a major life activity. As to whether celiac disease is considered a disability for ADA purposes, the Justice Department of Justice (“DOJ”), the department in charge of enforcing Title III of the ADA, has already answered in the affirmative. In 2012, the DOJ entered into a settlement with Lesley University, a college in Cambridge, MA that requires the college’s meal plan to provide gluten-free and allergen-free food options.

As to the question of whether all public accommodations must serve gluten-free food, the DOJ has an answer as well: No. The meal plan at issue in the Lesley University situation was a mandatory meal plan for all students living on campus. Students were required to eat the food, so the ADA required a reasonable modification to the plan to accommodate students with celiac disease. While colleges with meal plans should take note of this circumstance, restaurants that serve the public aren’t under the same obligations. Populations that have ready access to other sources of food aren’t likely to fall under the same requirement as the college at issue here.

Finally, the question now becomes whether restaurants that do serve gluten-free alternatives and charge an extra fee for them are in violation of the ADA for charging those with celiac disease a premium. This is the subject of a current California class-action lawsuit against P.F. Chang’s, which offers gluten-free food for a $1 surcharge. The argument behind the lawsuit is that the added surcharge has a discriminatory effect against those with the disease. Some commentators have likened this to installing a wheelchair ramp and charging for the privilege of using it. The restaurant chain has defended the practice, stating that the higher costs of specialty ingredients and separate preparation areas necessitate the added surcharge.