Lawsuits Say Charging Extra for Lactose-Free Options Violates ADA

A class action lawsuit is suing Dunkin’ for $5 million for charging extra for its lactose-free options. The lawsuit claims the company formerly known as Dunkin’ Donuts is violating the Americans with Disabilities Act (ADA) with its pricing practice. The company charges $2 extra for substituting dairy with almond or oat options.

The class action lawsuit explains that choosing pricier milk options is a choice for some, but not a choice for others.  The plaintiffs in the lawsuit either have a milk allergy or are lactose intolerant and believe the added costs are discrimination. They have no choice but to pay extra for something to avoid getting sick.

This isn’t the only time something like this has happened. There’s another class-action lawsuit against Starbucks for the same practice. Starbucks’ lawyers have filed a motion to dismiss. This case is still pending.

About the Lawsuit and Major Life Activities under the ADA

Hello, everyone. This is Thomas Logan from Equal Entry here with Ken Nakata of Converge Accessibility. And in this episode of A11yInsights, we’re going to be talking about something a little different. We’re going to talk about a class action suit right now that’s occurring against Dunkin’ Donuts.

They’ve been charging extra for nondairy milk substitutions, your soy milk, your oat milk. And for some people due to allergies and disabilities, this is not optional. This is the whole discussion. So, should a company like Dunkin Donuts be allowed to charge more for nondairy alternatives?

Ken, under the ADA, there’s this idea of life activities and major life activities as something protected under the ADA. So, how does this case interrelate with that concept?

Ken Nakata: The ADA defines a person with a disability as having a limitation or impairment that substantially limits a major life activity. And so that’s why we have to get into this discussion of what constitutes a major life activity. And in this case, in the plaintiff’s complaint, it boiled down to the idea of being able to digest things and also just drinking things, those would constitute major life activities.

And so in this case, a person is drinking a cup of coffee, and the major life activity of drinking, in this case, something that includes lactose, would be substantially impaired. Because if they consume lactose, then, they may be get incapacitated, they might have stomach cramps, they may have to go to the bathroom constantly, they might not be able to go to work.

So, for some people, drinking milk in coffee is going to be a real problem, and for those people it’s going to be a disability.

Thomas Logan: This is a little hard for me to understand because I happen to be someone that typically drinks cold brew or a black coffee. So I don’t necessarily see that the idea of drinking coffee requires the use of milk to perform that life activity. What do you think?

Ken Nakata: Well, that’s true. I mean, the people that are lactose intolerant could just as easily be drinking their coffee black like you do. But in this case, they’re offering people a latte, for instance, that has milk in it. And If you’re lactose intolerant, you probably can’t have a regular latte because it contains milk. And so they’re asking to have the milk substituted with something else.

So the product itself is a milk-containing product, and they’re asking for an accommodation by making that milk-containing product a product that contains soy milk or oat milk instead.

What the ADA Says about Surcharges

Thomas Logan: I guess the crux of the issue here is in the complaint they allege that at Dunkin, they charge $0.50 to $2.15 more for a coffee-based drink that uses a nondairy alternative.

And so it’s pulling in this idea of the ADA and about surcharges for people with disabilities. Could you explain to us what the ADA says about surcharges for people with disabilities?

Ken Nakata: Oh, sure. The idea is that if you are a person with a disability and a business makes an accommodation for you because of that disability, they can’t charge you extra.

So if you went into your doctor’s office and needed a sign language interpreter, for instance, you as the patient shouldn’t be charged for that sign language interpreter.

Instead, it’s the obligation of the doctor’s office to pay for the sign language interpreter. And similarly, a small accommodation like this, which is substituting soy milk or oat milk for regular milk is the same kind of accommodation and therefore, it would be a surcharge.

So, in that sense, I think that this case actually does have some legal merit to it.

Thomas Logan: Right? And it sounds like they’ve done some analysis as well on the base cost of the products that are used to make these drinks and in the complaint, they’re saying that the price per fluid ounce is pretty similar. So they’re also pointing out that there’s not a substantial cost necessarily in the products that are being used to make the coffee.

It’s just the company’s decision to price that type of item higher, probably because they know that a lot of the customers that aren’t lactose intolerant or just have a preference for that. And they realize they can charge a premium for that, in my opinion.

Ken Nakata: Yeah, I’m not really sure why they do it. It could very well be a profit motive, just like you suggested, but it could also just be the administrative headache of keeping in stock half a dozen types of alternative milks based upon the preference of the customer.

And having to juggle between those and run back to the back refrigerator to get a different kind of milk. Maybe they just figured that it creates a burden for the barista and slows their things down. So maybe they just decided that they’re just going to charge extra for it. Maybe it’s a way of discouraging people to getting alternative milks when they really want to get people focused on using regular milk if they can.

But, either way, yeah, it is likely a surcharge for some of the people that have disabilities. That’s an issue that we can come back to. But also, that points out some of the weaknesses in the case too.

Thomas Logan: And I can say from my personal experience going to lots of coffee shops, I go to a coffee shop almost every day.

Anytime a barista makes a mistake in an order, then there is the cost of having to remake the item. And as you mentioned, I guess the more variables you put into a customer’s specific order, the more opportunities there are for an error to occur and then requiring to remake the beverage.

In Japan, I noticed that they actually had receipts which would specifically indicate the type of milk you ordered and you needed to show the barista that receipt.

So they actually had something more formalized, in Japan for that process. That was at Starbucks in Japan, but I did note that that took extra time to print the receipt and also to show that receipt and confirm the order. So that was just something I observed in my life.

As I was listening to you, you mentioned there were some weaknesses in this case, so could you elaborate on that some more?

Weaknesses in the Case

Ken Nakata: Yeah, that’s a great question, Thomas. It goes back to the definition of the class. We’ve got some people are honestly so lactose intolerant that if they have milk, they are going to really have problems. They might not be able to go to work. They might not be able to focus. They may be spending the day in the bathroom.

And for those people, having any kind of milk really does substantially limit there are major life activities. But there are also a large number of people who just don’t like regular milk that they just prefer soy milk or they prefer oat milk. And then in between those two, you’ve got some people who have a reaction to milk, they have maybe a mild stomach ache, some indigestion.

And for those two groups that I just mentioned, the people that just do it out of preference or the people that just have a minor effect from the soy milk, those are not people with disabilities when it comes to soy milk.

And the way in which this class is defined, it seems to encompass all of those different categories of people, and that broad class of people isn’t protected. There’s a small portion of the class, which includes the people that do have serious reactions to milk, and they’re serious enough to make them people with disabilities.

But, I suspect that that portion of the class is relatively small. And one of the problems I think that’s going to come up is how is the court going to make sure to frame the remedies and the class in a way that the relief is limited to that small group of people. So, for instance, How do we make sure that the class is originally defined this way in that narrower sense so that the class really does encompass people with disabilities?

And also, how do you make sure that the remedy isn’t too broad so that Dunkin Donuts doesn’t have to pay back all those customers who just prefer soy milk over regular milk. Because those people don’t have disabilities, and so they shouldn’t be entitled to the same kind of relief that the people that are more seriously affected are entitled to because they actually have a disability.

Class Certification

Thomas Logan: Have you seen other instances of like class certification being an issue and identifying who belongs in a class certification as a person with a disability or as a person not with a disability?

Ken Nakata: That’s a great question, Thomas. And I was just thinking about that. Well, when I was back at the justice department, we had the same sorts of issues coming up in some of the cases that we used to deal with.

So, for instance, I was involved in some cases that dealt with the inquiries by licensing associations for candidates to become lawyers. And so it was a case against the Virginia Board of Bar Examiners. And in that case, the Virginia Board of Bar Examiners would ask this very open-ended question of, “Within the last five years, have you had any treatment or counseling for any mental health conditions?”

And that was a really overbroad question. And in asking that question, it roped in some people who were seriously impaired in their major life activities such as, if they were so depressed that they weren’t able to go to work. Or if they had a mental condition that just prevented them from being able to function on a day-to-day basis.

Those people are clearly people with disabilities. But that question also included a lot of other people who weren’t so limited, such as a person who, may just be going for mild depression counseling. And in that case, you’ve got this mix of people that are either substantially limited and some people that are not so substantially limited in their major life activities.

And so, again, you’ve got that mix of people with disabilities and some people without disabilities. And the question comes up, “Well, how do you define the class? And then how do you structure the relief?” So, in that case, it was a little bit easier to say that the Virginia Board of Bar Examiners shouldn’t ask such overbroad questions because the outcome of this has such a substantial impact on a person’s ability to ever practice law in the Commonwealth of Virginia.

That’s a pretty big deal. If you end up having lactose intolerance for a day or two, and you’re really in a bad shape, that doesn’t rise to quite the same category. So it’s easier to come with up with an effective ban on their ability to do that. And then another thought that I had when I was thinking about this case is peanut allergies on planes.

So, airlines now, they just don’t serve peanuts on board airplanes, and that’s because some children have peanut allergies. Well, in that case, the downside of having peanuts on the plane is so severe. If a child has an allergic reaction, they could die while the plane’s in flight.

And so, it makes perfect sense in those cases that you can define the class a little bit more fluidly because the downside of continuing to have this discriminatory impact is really really severe, like children dying or people not being able to get licensed in their professions is really really a big deal.

But in the case of milk allergies, there aren’t that many people that are so severely impacted that they would likely die from drinking a latte. And if you were that allergic to milk, you probably would be drinking your coffee black in the first place.

Thomas Logan: Yes. And I think also going to the first example, being able to become a lawyer and being able to do your life’s work with your chosen profession is very major.

Obviously, people need to be supported to do the career that they love and support.

Whereas, an airplane choosing to serve peanuts or instead serving Sun Chips or some other product. It’s not the same idea where the limitation there isn’t so strong. And specifically just to wrap up our discussion here on Dunkin, I think the idea that you have to order coffee with milk is not something that I think is a widely held truth.

I mean, there’s options to do that. So it’s just not something that’s to me feels that essential to life, to have milk included in my coffee. It doesn’t seem to relate at all to like the idea of like an activity of like being able to do the job that I studied for and took the bar exam for.

Ken Nakata: Exactly. To wrap up, I don’t really like this case at all, but I think it’s really amusing to think about this case. But at the end of the day, I really don’t like it very much at all because it is a relatively small issue, and obviously if you are severely lactose intolerant you may feel differently about this.

But you still have a choice about what kind of coffee drink you’re going to get. And yes, you may desire to have a latte, and yes, you may be required to order soy milk, but having to pay extra for that, it doesn’t exactly seem like this kind of groundbreaking disability rights issues that are fundamental to the ADA.

And I think that it’s really easy for critics of the ADA to use cases like this against the ADA because it seems as though from the average person on the street’s perspective, to be the kind of thing that it’s just a bunch of upper middle-class yuppies who just want to get things the way in which they’re used to getting things, and if they can’t get things, they’re going to sue over it.

And I think that there’s some emotional appeal to that kind of reaction because let’s face it, Tom Harkins and Ted Kennedy, I imagine were not thinking about the rights of people with lactose intolerance to get their coffee on the cheap.

Thomas Logan: I definitely don’t think so either, but hey, what do you think?

Got Milk?

We’d love to hear from you. So if you have a different perspective or if you agree, just join us in the conversation. Please add comments and we’ll be happy to respond. Thank you for your time and we’ll catch you in the next A11yInsights.

References

• Is that extra charge for nondairy milk discrimination?
• Dunkin’ faces lawsuit over milk?
• Dunkin’ Facing Class Action Suit Over Non-Dairy Milk Pricing
• ADA 28 CFR § 36.301 – Eligibility criteria

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