The Court of Public Opinion

It goes without saying that we understand there are multiple sides to a given story that 140 characters or bold headlines can’t possibly encapsulate.  Hopefully we’re all discounting lead-ins and click-bait but even when you don’t read on or click through, exposure to information in brief can wedge into our minds and impact our perception.  Put another way, reading case law in a given area makes King Solomon’s child custody dilemma of old seem quaint.  Over at the Allergy Law Project, Laurel, Mary, and I have talked about speaking softly but also knowing your rights and standing firm while on this blog I’ve pontificated about issues with legalities in labeling and personal responsibility.

When I watch old movies with my mother she’ll cringe at inaccurate depictions of Germans (sorry mom, I still love Bedknobs and Broomsticks!) and I change the channel for most legal dramas (no one would really want to watch a show about what most attorneys do all day!). . .so watching the fallout from the recent #AAAAI LEAP study announcement has me empathizing with friends in scientific fields.  The furor has not left us “law talkers” (yes, a Simpson‘s reference) without reasons to want to chime in about issues like disclosure and liability.  And yet, I’ve refrained because I genuinely am out of my element except that the scientific method and peer review are things I esteem so I will keep reading about food allergy research even though I roll my eyes at proclamations about “cures.”  Still, when a friend forwards some article my way I feel appreciated because it got them thinking about food allergies or capacity or whatever is the topic at hand.

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Aside from feeling prone to parentheticals this beautiful spring-like Las Vegas morning, I did set out to talk a bit further about why it is important to take much of what you read with a grain of salt.  The “TL;DR” version is that there’s always more to the story.

For example, when a suit against PF Chang’s was recently filed regarding discriminatory pricing for gluten-free versus standard menu items, my knee jerk reaction was to think of how class actions tend to benefit attorneys most of all.  Trying to find the original complaint in the case was not simply a matter of using Google so once it was located the work of combing through the allegations began.  Even so, there has been discussion on the Allergy Law Project facebook page about the resulting piece covering the lawsuit about the risks of taking on a company that is actually trying to serve food allergic individuals safely.  Even I had trouble articulating why it is not okay to tell food allergic individuals to not eat somewhere if they don’t like a policy until I read Mary Vargas’ remark – “If the choice is whether to experience discrimination or not, that would seem a false choice [,] wouldn’t it?”

Debating whether or not there is something I could have done differently so that my daughter wouldn’t have food allergies is not going to get me anywhere, but railing against study approaches is equally unfruitful.  If suing a company with allegations of discrimination results in the ire of a community, what chilling effect is there on rights advocacy, or even in other fields, research, with that negativity?  I’m no Pollyanna, pessimism and worst case scenarios are the name of the game for me, but there’s a difference between being realistic and being in a constant state of attack.

Going back to Mary’s point, it is a false choice to say to a family they can keep their child home if they’re worried about safety (“just homeschool” is the refrain).  It was a false choice when I was in middle school and my parents had to leave me to be bullied by students and staff or keep me home in 7th and 8th grade.  The other remark seems to be that my child needs to “get used to” discrimination.  I’ll teach my child well enough about the cruelness of the world without someone turning basic social situations into minefields, thankyouverymuch.

I’ve written often about how lucky our family is to have the support of those that care about inclusion but sometimes it means biting your tongue.  Sometimes it means not fighting the small battle because of the larger one.  We’ve been refused service at a restaurant because of food allergies and walked away only to find a much better option to save the evening (thank you, random balloon twister at Macayo’s!). And sometimes it means calling a restaurant to task who is doing great most of the time but who makes a misstep in their approach.  Read a snippet of the argument in PF Chang’s response to the suit where they claim celiac disease isn’t a disability:

“Counsel for P.F. Chang’s has not found a single case where a court has held that celiac disease qualifies as a legal disability within the meaning of the Unruh Act, the DPA, or the ADA. There is no basis for this Court to blaze that trail here. Under any reasonable interpretation of these acts, a person cannot be considered “disabled” just because he or she cannot eat certain foods containing gluten.”

(Source: Motion to Dismiss, see page 6).  To add our grain of salt here, of course the attorneys for PF Chang’s are making the arguments they can.  I’m not faulting them for that.  But it does mean that there would be some that argue that suing them in the first place pushes them to make claim about disability.  I don’t know how the case will turn out, nothing is without nuance and there are a lot of procedural arguments in the motion that could carry the day depending on how the court views matters.  Another way to look at the corner PF Chang’s is in:  Just as the attorneys for the restaurant ignore the case by case analysis mandated by the Americans With Disability Act for disability determination by summarily stating there are no cases that hold celiac disease to be a disability – a case about a dollar surcharge may end up opening different doors than anticipated.

I had the privilege of doing some consults yesterday with seven very different individuals (thank you to my mother in law for watching the kids!) and though I know I’m a rambler by nature, fifteen minutes apiece as mandated by the Ask-A-Lawyer program was not remotely enough to get a real feel for each person’s case, let alone give them the advice I would like to.  Fifteen minutes isn’t enough, one news article isn’t enough either.  One headline.  One meme.  One piece of he-said-she-said.  It can be something that discourages us or something that emboldens us to seek deeper into issues that polarize us.  Get uncomfortable, try to see the other side(s).

I get calls from time to time, though I mainly practice elder law, from adults that have experienced anaphylaxis while eating out.  People of all ages and walks of life tell me they do not want to get anyone in trouble, that they don’t want to harm their ability to eat out in the future, that they don’t want everyone else to think they’re after money when what they really want is an apology.  A college student served a coffee drink containing milk, a man that begged staff at a hotel to call 9-1-1 while he fumbled for his epinephrine after being assured a dessert was nut free, a mom given real milk for her toddler instead of soy milk as requested. . .every one of them spoke to me of businesses that demanded to know what damages they wanted.  “I don’t want money,” one of them said, he just wanted to know his daughter won’t by left lying on the floor like he was.

So even if you read about a lawsuit about a death, or a surcharge, or what have you, consider that litigation is the arena our American system gives us to redress grievances, consider that many of the rights that are protected now are often the result of someone willing to weather the storm in the court of public opinion.  I want to leave you with the story of Jenny Hatch shared with me yesterday.  It moved me and I hope it moves you too:

Thanks for reading!

4 thoughts on “The Court of Public Opinion

  1. I find your thoughts fascinating and a lined with mine. It reminds me that there are a small few who ruin things for the masses. If one wants to ensure their children a better life then their own, one can be called allies by some or traitors by others. I find myself being more selfish and ungrateful then ever before. All any parent wants is for their children to thrive in a world that welcomes them with open arms, even if we have to create that world for them. It is amazing how our life has changed in just a year. It is interesting to see how people react to our decisions and how they freely give their opinions as if it would change our choice.

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    1. I love this: “All any parent wants is for their children to thrive in a world that welcomes them with open arms, even if we have to create that world for them.” – so true – if people thought more about how others want inclusion for their children the same as other folks, we could all work together more.

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