united-states discrimination disabilities
Can a school provide preferential treatment for one allergen and not another?
<p>Our daughter is allergic to dairy milk.  We provide her almond milk at home, however our school has told us we cannot bring in almond milk due to concerns about nut allergies, and that we should provide soy milk instead. We do not want our daughter drinking soy milk and feel that the school's policy is discriminatory due to the fact that both soy and dairy are potential allergens and they are allowing those, while banning nuts. Therefore they are providing preferential treatment for children with one medical condition while not providing the same considerations/protections for children with another medical condition.</p>

<p>Are we correct in our assessment that this is a discriminatory practice?</p>

<p>We are willing to work with the school to develop sane practices based on CDC recommendations, such as allergy-free tables in the lunchroom, etc.</p>

<p>It may be discrimination; not all discrimination is illegal.</p>

<p>Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia:</p>

<ul>
<li>race </li>
<li>colour  </li>
<li>sex  </li>
<li>sexual preference  </li>
<li>age  </li>
<li>physical or mental
disability  </li>
<li>marital status  </li>
<li>family or carer’s responsibilities </li>
<li>pregnancy  </li>
<li>religion  </li>
<li>political opinion  </li>
<li>national extraction</li>
<li>social
origin</li>
</ul>

<p>A medical condition like an allergy is not necessarily a physical disability.</p>

<p>The school is arguably fulfilling its obligations under WHS legislation by banning nut products if that is what a risk assessment indicates. It may also be necessary to ban milk products if that is required for your daughter's safety. If (and I do not know) nuts pose a greater risk than milk then banning the former and not the latter may be perfectly justified. Ask to see the risk assessment.</p>

<p>US law requires that <em>all</em> students with disabilities be granted accommodations. This <a href="https://www.allergicliving.com/2013/04/10/lesley-u-decision-a-victory-for-allergy-celiac-access/" rel="nofollow noreferrer">includes food allergies</a>, and there is no special provision regarding nuts versus milk. In the context of only one student with an allergy (milk), the most reasonable accommodation would be allowing that student to drink any substitute beverage. Because of the nature of nut allergies, a student with a nut allergy could either result in a ban of nuts, or the establishment of a separate eating facility (I don't know if that would be sufficient given current medical knowledge). &quot;Separate but equal&quot; seems contrary to the requirement of providing an equal opportunity to participate in a school's program, but it might be deemed a reasonable accommodation. The problem is that there is not a vast body of case law on food allergies and disability law, so while it is clear that an accommodation is necessary, it's not clear what is &quot;legally reasonable&quot;.</p>
<p>However, the schools proposal (soy milk) <em>is</em> reasonable. If there were additionally a soy-allergic child and if soy allergy is similar to nut allergy, then the school must also accommodate the soy-allergic child. Your position that you don't want your daughter drinking soy isn't legally relevant (I can't use an objection to organic produce as a basis for banning the use of organic produce in schools).</p>
<p>Again, US law requires that <em>all</em> students with disabilities be granted reasonable accommodations. This is a fact-intensive inquiry.</p>

<p>If the school was banning a hazard to others, but allowing something that's a hazard to your daughter—or if they were providing something of benefit to others, which your daughter couldn't use—then you might have a supportable claim of discrimination, or at least of inequity.</p>
<p>But that's not at all what's happening here. The absence of almond milk is not a hazard to your daughter, in way the presence of it is a risk to others. It isn't something she absolutely needs; it's your strongly preferred drink given your constraints, much as a vegan family might rely heavily on nuts for their preferred nutrition.</p>
<p>But it's not a <em>need</em>. There's lots of choices for lunch drinks; they don't even have to be milk substitutes. You may well have a strong desire, for whatever reason, to avoid soy products; perhaps likewise juices, sports drinks, pop. But strong desire is trumped by a real health hazard to others.</p>
<p>Also, it's worth being mindful of the principle, legal and ethical, of minimizing damages.  If someone's actions (or requirements, or omissions) damage us (cause us a cost, or an inconvenience, or a loss) then we should be choosing the next-best reasonable alternative. If we can't get the best parking spot at the restaurant, do we turn around and go home and skip dinner that night? Or do we maybe park where we can, and walk? Or choose a less busy restaurant? This may be an opportunity for your daughter to see that she can accommodate the (very valid) needs of others, with minimal pain to herself.</p>
