P.F. Chang's restaurant adds a $1 surcharge for items from its gluten-free menu. It is being sued by a woman with celiac disease (as part of a class action) who claims that the surcharge is discriminatory and in violation of the Americans with Disabilities Act (ADA).
Without commenting further on the lawsuit, I could guess instantly at the problem. Gluten-free food is what a person with celiac disease is limited to eating, it is not just a preference. Celiac disease can be disabling; moreover, it can be life threatening. So, why grab the attention of a diner with a medical condition by saying that they must pay extra for their food? Even if this lawsuit fails, my point stands. The same result could be expected of a parking lot that charges extra for the larger and closer disabled parking spot, or the museum that actually charged extra for patrons who used electric wheelchairs as a surcharge against any resulting damage to exhibits. If you court attention by singling out anyone with a disability, in today's society you will court a lawsuit. This is not simply because of a litigious society, but because people are more aware of the law, of disabilities, and of a disdain for being treated unfairly, whether it is justified or not.
The Department of Justice has determined that food allergies can be a disability under the ADA. Whether this is a slippery slope argument remains to be seen--will plus-sized clothing that typically costs more than the "regular sized" clothing be considered discriminatory? I doubt it. Plus-sized clothing costs more to make, and being overweight is not necessarily disabling. Compare that to food preparation--if gluten-free food does not cost more to make, but costs more perhaps because it is not made as frequently, then charging more would be discriminatory.
Basic Advice 101 on avoiding an ADA lawsuit: do not single out disabled customers. Or, per the advice of Dallas attorney Richard Hunt, an ADA expert, P.F. Chang's executives should have asked themselves how they would have treated their mothers. "Mom, I know you have celiac disease, and you are required to choose gluten-free food. Fortunately, we have a gluten-free menu; unfortunately, you must pay extra."
The general argument regarding discriminatory pricing is, if you offer for all (food), charge prices that do not single out a disabling condition.
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