July 2016 decision on this discrimination complaint is available here.
Two Massachusetts children were barred from a youth production of William Shakespeare’s The Tempest, due to what their lawyer describes as discrimination related to one of the kids’ severe food allergies.
Through their parents, the children have made a formal complaint with the U.S. Department of Justice and the Massachusetts Commission Against Discrimination. The complaint, filed Nov. 3, 2015, alleges discrimination on the basis of disability by the theater company, and requests substantive changes to the troupe’s policies for dealing with children with disabilities.
Ten-year-old Mason Wicks-Lim says in the complaint that the organizers of the Young Shakespeare Players East (YSPE), a Massachusetts chapter of the Wisconsin-based Young Shakespeare Players (YSP), because of the accommodations his food allergies require. These include always being in the presence of an adult trained in the use of an epinephrine auto-injector.
When his friend Sam Picone-Louro sent an email advocating on Mason’s behalf, the 12-year-old was also barred from the theater program – unless she agreed to write an apology.
“A place of public accommodation needs to be open to everyone,” says Mary Vargas, a lawyer representing Mason and Sam. “You can’t say that everyone is welcome but then exclude kids with disabilities.” Under the Americans with Disability Act and Massachusetts state law, it is prohibited to deny children access to educational and recreational programming on the basis of disability. In many cases, a person with a food allergy is considered to have a disability under the ADA. As well, the complaint refers to the theater as being “a place of public accommodation,” which must provide equal access.
In a statement to Allergic Living from its lawyer Frank DiPrima, the non-profit YSPE adamantly denied the discrimination allegations. “This is the story of a mother who refused to accept responsibility for her little boy’s medical condition, and then exploited that condition to accuse a tiny charity of discrimination,” wrote DiPrima. He notes that many youths with disabilities have “flourished” in YSPE’s programs, including those with food allergies.
This offstage drama began when Mason, an avid reader with severe allergies to peanuts and tree nuts since the age of 3, started taking an interest in Shakespeare. Back in May, Mason’s parents tried to enroll him for the YSPE’s autumn production of The Tempest – one of his favorite plays.
Suzanne Rubinstein, director of the YSPE, contacted the boy’s mother, Ali Wicks-Lim, to discuss his food allergies. According to the complaint, over the course of three conversations, Rubinstein raised concerns about the severity of Mason’s allergies and the social exclusion he might face in the program. The complaint said she characterized the boy’s need to carry epinephrine auto-injectors as “scary”. Wicks-Lim said that Mason had been successfully managing his allergies for eight years, but the complaint says Rubenstein said only to reapply the following year, when Mason’s case “might” be reconsidered.
When Sam, who has appeared in YSPE productions, heard that Mason wouldn’t be allowed to participate, she emailed Rubinstein. “My friend has a nut allergy, which is a disability, and saying that we are a private organization and you don’t have to follow those laws is an excuse, and you are defending something that is not worth defending,” wrote Sam.
DiPrima says Sam was not allowed back into YSPE programs, for which a student’s family pays $500 per production, unless she apologized for what he called her letter’s “disrespectful tone.” But Vargas takes quite a different view, saying of Sam’s support of a friend: “Disability law does not only protect those with a disability, it protects those who advocate for them. We want to encourage people with our laws to do the right thing.”
After receiving Sam’s letter and one from another child on Mason’s behalf, Rubinstein then sent an email to all of the theater program’s families. “YSP strives to be open and accessible to as many children who want to participate,” she wrote. “Unfortunately, in some rare instances we cannot always accommodate the necessary support a child or family might need. It would be irresponsible for YSP East to overlook such risks or take them lightly.”
According to the complaint, after three months of correspondence and discussions, the founder and board of directors of the parent YSE agreed they could adopt a nut-free policy for food brought in by program participants. Rubinstein emailed Wicks-Lim agreeing that she and another YSPE volunteer could be trained to administer an epinephrine auto-injector. She said Wicks-Lim would need to sign a waiver absolving the company of liability should the device need to be used.
However, the waiver that Wicks-Lim was ultimately asked to sign had different provisions, such as stating that the boy’s health and well-being – including the dispensing of his medications such as epinephrine – were solely the responsibility of his family and not of YSPE. If the mother wanted to ensure Mason was always around an adult able to administer emergency epinephrine, YSP suggested that she – or someone hired by the family – attend the nine hours of weekly rehearsal with him.
Wicks-Lim could not agree to the conditions that were put forward in this waiver. As a result, Mason, who has attended summer camps and taken kung fu lessons with no such issues related to his allergies, was unable to enroll.
The theater company’s lawyer DiPrima said it was not feasible for YSPE to agree that Mason would always be supervised by an adult while in the program. “The tiny charity, with no employees, no staff, one adult full-time volunteer and one quarter-time volunteer, no premises of its own and no money, responded that it cannot possibly have an adult in the boy’s presence at all times unless that adult is the mother or someone she appoints,” he wrote to Allergic Living. Of young Sam, he wrote pointedly: “The disrespectful are not a protected class.”
As for the young, would-be actors, the complaint refers to Mason and Sam suffering “humiliation, embarrassment and sadness” over the drama that has unfolded and their inability to take part in a kids’ theater production.
Though this process has been difficult, Mason told Allergic Living there is a lesson in it: “I learned that if someone does the wrong thing, you really have to tell them that or else they’ll keep doing it.”
