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P.F. Chang’s Pesky Gluten-free Disability Lawsuit Won’t Go Away Just Yet

Celiac.com 01/04/2016 - Does P.F. Chang's Asian Bistro discriminate against people with celiac disease by charging more for gluten-free dishes than for their non-gluten-free counterparts? A complaint filed in federal court says it does, and a ruling by a federal judge means that the lawsuit against P.F. Chang's over its gluten-free menu won't be dismissed just yet.

Photo: CC--Mark CrowleyThat means a class action lawsuit against P.F. Chang's for allegedly charging more for gluten-free menu items can continue. Judge Ronald Whyte's Nov. 23 order denied the company's motion to dismiss plaintiff Anna Marie Phillips' first amended complaint.

"Neither party has cited, and the court has not found, any case specifically discussing whether celiac disease constitutes a disability under the ADA (Americans with Disabilities Act) or Unruh Act," Whyte wrote in his 13-page ruling. "However, accepting the additional detail in the FAC (first amended complaint) about the consequences of ingesting or being exposed to gluten, which plaintiff must guard against, plaintiff has pled sufficient facts to support her claim that she has a disability that impacts a major life activity.

"The court notes that on a more complete factual record, the court might reach a different conclusion."

Phillips sued P.F. Chang's in a California state court last December. Chang's then successfully moved the case to U.S. District Court for the Northern District of California. Basically, the outcome of the move to dismiss hinges on whether or not celiac disease constitutes a disability under the state's Unruh Act.

In his order last month, Whyte concluded that Phillips, in her new complaint, pled sufficient facts to claim that the immune reaction to eating gluten meets the definition of a "medical condition" under the state's Unruh Act for people with celiac disease.

The law specifically outlaws discrimination based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, marital status or sexual orientation. In her amended complaint, Phillips also claims that celiac disease is an "inheritable and hence genetic characteristic."

P.F. Chang's argues that the plaintiff must allege that she actually inherited characteristics known to cause disease under the second prong of the "medical condition" definition.

At stake in the lawsuit is whether or not P.F. Chang's, and, by extension, other restaurants can charge more money for gluten-free food than they do for similar, non-gluten-free menu items.

The restaurant chain first moved to dismiss Phillips' class action in February, claiming her celiac disease does not make her a disabled person under the ADA. It urged Whyte to dismiss the lawsuit before the entire restaurant industry was impacted.

Whyte heard oral arguments in May. According to the case's docket, the motion to dismiss was "tentatively granted" at the hearing, with a final ruling to be issued by the court later.

In August, the judge granted P.F. Chang's motion to dismiss Phillips' original complaint. Whyte ruled that the plaintiff failed to allege facts showing that the restaurant chain discriminated against her and other guests with celiac disease or a gluten allergy/intolerance, by charging $1 more for some gluten-free menu items compared to non-gluten-free versions of menu items with a similar name but prepared and handled much differently.

However, Whyte granted Phillips a leave to amend. In doing so, the judge expressed his "reservations" about whether the plaintiff could ever state a viable claim under her discrimination theory. Phillips filed her first amended complaint soon after.

In September, P.F. Chang's filed a motion to dismiss the new complaint, arguing that it asserts the same disability-discrimination claims and offers "few additional facts" and "none that warrant a different result."

But a detailed list of Phillips' symptoms and reactions when ingesting gluten forced the judge to change his mind.

As to whether or not the lawsuit will gain traction, stay tuned.

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25 Responses:

 
Christine White
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
11 Jan 2016 5:49:38 AM PST
This lawsuit is going to make it more difficult for those of us with celiac to go out to eat. What restaurant in it's right mind should have to lose money on me whenever I eat there. We all know it costs more to eat GF. Therefore it costs more for restaurants to provide me with GF pasta, buns, soy sauce, pizza dough, etc. Therefore if I want to eat GF foods, I will need to pay more to do so. Restaurants are in business to make money. They provide a service to customers. They name their price. If you do not like the price, then don't eat there. You have no RIGHT to expect the same price for GF food when it costs more for the restaurant to buy and prepare for you than it's non GF counterpart. If you don't want to pay for that luxury, then eat elsewhere.

All this lawsuit is going to do is decrease the number of restaurants that offer us GF options when we dine out. I for one and ecstatic to have the opportunity for myself and my daughter to get to eat at a restaurant and have a semblance of a "regular" meal. I for one do not expect someone else to subsidize my celiac disease. I for one am rational and am happy to pay for the privilege of eating a yummy GF burger with an actual bun -- not lettuce wrapped around it. Or to eat a great tasting pizza. Or to eat excellent Chinese food with GF soy sauce prepared at a good restaurant.

What I am NOT happy about is that people like Anna Marie Phillips could ruin this for the rest of us who live in the real world. The rest of us need to speak up and let restaurants know we are delighted they offer GF options and for $1 more we will pay for those.

 
George
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
11 Jan 2016 6:38:14 PM PST
I agree 100%. This woman is doing the gluten free community a disservice by continuing with this lawsuit.

 
Dee
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said this on
11 Jan 2016 10:20:54 PM PST
Christine, that was beautifully and accurately said. I agree with you completely. The woman who is suing PF Changs for them charging $1 more for a GF dish is a complete IDIOT!. This is going to only cause more restaurants for not be troubled with providing GF foods. GF foods DO COST MORE MONEY ! IT'S A FACT! Restaurants need to make money not lose money!

 
Lisa
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said this on
14 Jan 2016 12:38:28 PM PST
I completely agree. This woman is hurting celiacs all over the world. We have all fought so hard to have restaurants accommodate us and because of one woman all of us may suffer.

 
cheryl
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said this on
14 Jan 2016 7:49:24 PM PST
Excellent response! I too love the fact that I am able to enjoy a meal out in a restaurant and hold an actual menu with a list of GF options! Please don't let one bad apple spoil it for the rest of us.

 
Kelvin S.
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
11 Jan 2016 9:00:02 AM PST
If PF Chang's were providing the exact same food and service, but charging more because someone asks for it to be gluten-free, that would be discrimination. If it is providing something different--for instance, using a different preparation process to ensure non-contamination, using different ingredients--then it's hard to understand how one can claim discrimination based on a medical condition. While a store or restaurant might choose to price different offerings the same, I don't see how they can legally be compelled to do so. Should other diners be compelled to pay the cost of higher-priced ingredients for my benefit? Won't this just discourage restaurants to accommodate special needs? Be careful what you wish for; you might get it.

 
Alex Giasson
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said this on
11 Jan 2016 9:20:31 AM PST
I'm afraid of what's going to happen with GF menus all over the country if P.F.Chang's doesn't win again. In many places, you are getting a $1 or $2 overcharge for the GF option. I'm afraid that restaurants will stop giving a GF option if they can not charge for the trouble. I'd rather pay $2 more than my wife and be able to dine out than being forced of eating home because there's no GF option. I know that celiac disease is not a choice. However, it's the restaurant owner's choice to give us a chance to eat out or not. Don't give them a good reason to quit offering it.

 
Jenny
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said this on
13 Jan 2016 11:36:35 AM PST
I ate at PF Chang's restaurant in Santa Monica only because it was recommended and was delighted how delicious the GF dish was and supremely reasonably priced it was.
That Phillips woman needs to get a life and stay home and cook her own meals. We don't need people like her making it bad for the rest of us who would like to get out to a nice place and enjoy fine dining with family and friends. She needs to withdraw her lawsuit!! STUPID IDIOT!!!

 
Jared M
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said this on
11 Jan 2016 11:24:13 AM PST
Anna Marie Phillips is doing a huge disservice to the celiac community. Restaurants will just quit offering gluten-free items in response to this. She should reconsider this lawsuit.

 
Jonas Tesla
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
11 Jan 2016 11:26:45 AM PST
I don't mind paying a bit more for GF choices and frankly, going to court over a few dollars is what's wrong with this country. However, what I would support is a ruling that said all restaurants must provide GF alternatives for 20% of their main courses.

 
Diane
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said this on
12 Jan 2016 8:27:03 AM PST
All stores and restaurants charge more for gluten free items, I think it's terrible, but we need the choice in our restaurants. If your going to sue one restaurant than you need to sue them all and the stores. It would not be fair just signaling out one. The restaurant probably pays more for the gluten free product just as we do and needs to charge more. I believe this suit against P F Changs is not fair. At least they are providing a chance to buy gluten free articles on the menu. Most restaurants don't. Don't let this lawsuit make restaurants stop having this choice for GF patrons.

 
Teresa
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said this on
11 Jan 2016 1:15:28 PM PST
I agree with the comments everyone has made. I have been gf for 5 years and have been to PF Chang's many times. They are the BEST Chinese food around and I appreciate the fact that I can go out and eat and not have to worry about contamination. I wish people would just accept the fact that you are going to pay more for GF food.

 
Teresa
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said this on
11 Jan 2016 2:42:57 PM PST
Great, what we need is someone litigating so as to dampen the motivation for restaurants to be helpful to those of us who require gluten-free.

 
Linda
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said this on
11 Jan 2016 2:48:53 PM PST
Oh for.goodness sake. Get a life. Yes, we pay more for a GF meal. Thank you for taking the extra time and care with my meal. Yes, I gladly pay a couple extra dollars for your trouble. And no, you are not that disabled. Either eat at home or go somewhere else. You choose to eat where you want. I have no patience or this kind of person!

 
Mel
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said this on
15 Mar 2016 3:26:51 PM PST
Who are you to say if this person is disabled or not!! I was on my death bed from celiac and it has taken me 20 years to get into the good place I am now but am still disabled. All celiacs have different degrees of the disease. Being and autoimmune disease each person can have zero to a multitude of other disorders/health aliments, my list is long as I had much damage that was irreversible.
As for P.F. Changs, most if not all of their GF options are the same as the non GF options, their is no difference in ingredients!!! They simply have a different station that they cook them at and different plates so it costs P.F. Changs NOTHING to provide us with our GF food, hence we are being ripped off!!!

 
admin
( Author)
said this on
16 Mar 2016 9:39:23 AM PST
How can you assume that offering different preparation stations, areas for plates and utensils, training for everyone who works there, ingredients (yes, they do use GF soy and other sauces which do cost more), etc. would cost this chain nothing? Of course it costs them, but they also see a potential return on their investment. Do you think suing them will make them charge the same? What about suing GF bread makers to make their breads cost the same? This is the worst strategy and will backfire for celiacs as restaurant chains DO NOT need to cater to us.

 
Kay
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
11 Jan 2016 3:34:44 PM PST
What would follow a win for Phillips would be devastating to all people with celiac disease; as similar law suits would certainly start to appear against manufacturers and grocery stores for charging more for a gluten free version of the same products. This would result is a lack of availability and take us back 25 years to when almost nothing gluten free was available; and even pasta had to be made from scratch by hand.

We were one of those families; and trust me Ms. Phillips, you do not want to go there.

We are more than happy to pay the extra few dollars for gluten free options; and are thrilled that restaurants like P. F. Chang's are willing to accommodate us.

 
Sage Ferdinand
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
11 Jan 2016 9:21:06 PM PST
Very clear that most with celiac disease or gluten sensitivity/intolerance do not agree with the plaintiff. I'm grateful for having PF Chang's as a safe option for dining out. We should have some dine in/take out nights where we can band together to show our support for PF Chang's and other restaurants that offer safe options.

 
C Tucker
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
12 Jan 2016 4:42:06 AM PST
I do agree there needs to be more awareness about celiac disease. However, I am happy when there is a gluten free option on a menu- I get real sick of eating salad. I expect to pay more...because that's what the grocery stores etc...tell me. I can't eat the 89 cent loaf of bread. If I want a quality bread it is $9 a loaf. Over nine times more expensive. If I were a restaurant owner I would just eliminate the GF option. Too much trouble...especially if I had to worry about getting sued. I sincerely hope they do not!

 
I. Leibowitz
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said this on
12 Jan 2016 8:33:12 AM PST
Good article, please follow up with more research on other places.

 
Dawn
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said this on
12 Jan 2016 10:25:01 AM PST
Actually, I eat regularly at several lovely, small, local restaurants that don't charge extra for GF, and they don't charge extra so I know that it can be done. We all know that it costs more to buy GF products. What I don't know is whether it actually costs 400% more to make those GF products, or if the industry is charging that much because they can. If the industry is charging more because they can, then that most definitely is discrimination. Do restaurants charge a dollar extra to sit at a handicap-accessible table? Or to provide elevator service?

 
Caroline
Rating: ratingfullratingfullratingfullratingfullratingempty Unrated
said this on
12 Jan 2016 12:00:47 PM PST
Completely agree with the others. We are delighted to just be out and dine with our family of which two members have diagnosed celiacs . It is always more money for gluten free items, as these items simply cost more. I hope this doesn't blow it for us!!

 
Barbara
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said this on
18 Jan 2016 1:19:37 PM PST
I certainly agree with the others that this lawsuit will make it more difficult for celiacs to eat out. My hubby was diagnosed with celiac almost 20 years ago and it was extremely difficult to ever eat out. We are so thankful that so many restaurants have taken the time and put forth the extra effort to make sure we are able to get a safe meal. We regularly pay the extra $1 or $2 for gluten free buns or pasta because it does cost more as we all know!

 
Stacy
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
04 Feb 2016 2:40:08 PM PST
I ate at PF Chang's last night and had the GF spicy chicken and GF lettuce wraps. They should charge more, as it costs more for certain ingredients, more money to train employees and they have special equipment and a special area of the kitchen designated as GF to avoid cross contamination. I travel a ton for work, and am grateful to folks like PF Chang's that go out of their way as they have. If the charge wasn't for the increase in cost, and just "because they could," then I would feel differently. I belong to a major airline lounge who won't let me bring in my own food to eat. Considering the only thing they have that is gluten free is an alcohol drink mix, I'm pretty sure they're not making a reasonable accommodation as outlined in Title 3 of the ADA. I don't expect them to prepare me GF food, I just want to eat what I bring from home in peace. By the way, there was a lawsuit that upheld Celiac with the ADA: https://www.bostonglobe.com/metro/2013/01/16/college-dining-halls-latest-challenge-gluten-free/ZGWMFABp0ruPI87L8BV8wM/story.html

 
Linda
Rating: ratingfullratingfullratingfullratingfullratingfull Unrated
said this on
25 Sep 2016 8:23:55 AM PST
I agree with the majority here that paying a little more to have safe options when eating out is what we have come to expect. What I'm questioning is WHY this has come about! Sugar-free items for diabetics are not more expensive in restaurants. Why has the food industry in general been gouging those of us with a gluten issue???? I resent forking over my hard earned money for special products. I eat out but I bring a small, discreet set of items to help me out because dairy and soy make me very ill too. I bring a bun in a sandwich baggy, a tiny container of soy-free Mayo and soy and dairy free butter, almond coconut milk or creamer for my coffee and if eating Chinese I bring coconut aminos and ask for steamed veggies, plain chicken and plain brown rice. For breakfasts out I make my own toast before I leave, wrap it in foil and bring it with. Most places are unprepared or just don't notice if you have your own things along just so long as you order a decent/normal meal from them. It's my way of fighting back against ridiculously inflated prices. It doesn't cost them $1-2 extra per GF bun. They are just going with the I industry standards that have come about.




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