American Airlines case highlights challenge of allergies

Parents of an allergic child have complained after an airline denied them early access to clean their daughter’s seat.

As the world questions the in­definite suspension of the Indian Ocean search for missing flight MH370, a lesser known battle is gathering pace in the US ­Department of Transportation Aviation Consumer Protection Division.

It involves a seven-year-old girl named Isla Mackenzie whose parents were refused permission to pre-board a domestic flight in the US on September 26 last year to ensure that her seat area was free from nut allergens.

Isla has a severe allergy to peanuts, tree nuts and seeds, which American Airlines had been notified about several times before her flight. But the airline’s policy is to grant no such permission as is clearly outlined on its website.

Currently, American does not serve peanuts on its planes, but it does serve other nut products that may contain trace elements of nut ingredients. Other passengers might also bring nut products on board.

Despite the airline’s refusal to allow them to pre-board on the outbound flight, so they could wipe down her seat and tray table, Isla’s parents made a similar request ahead of their return flight, and allege they were told that, despite the airline’s policy, such requests could be granted for loyalty club members and those who were prepared to pay an extra fee.

Airlines must fulfil certain responsibilities in maintaining the safety and wellbeing of passengers with a disability or serious health condition, including those who suffer from serious allergies.

In the US, one of those responsibilities is set out in a federal law known as the Air Carrier ­Access Act, which states that air carriers cannot discriminate against individuals with a dis­ability.

Isla’s mother perceived the airline’s refusal as a blatant act of discrimination and filed a ­petition last month with the US transport department.

She argued that avoiding allergens was not just critical for her daughter’s and other child nut allergy sufferers’ physical wellbeing, but also their emotional and psychological wellbeing.

She claims the stress and fear the airline’s actions caused her daughter increased the risk of an allergic reaction, according to her complaint filed on December 28.

The Mackenzies’ petition calls for enforcement action against American Airlines to bring their policy in line with federal law and ensure the airline does not continue to deny this simple request for nut allergy sufferers.

Food Allergy Research and Education, which represents the rights of individuals with food ­allergies, has since filed its own complaint with the DoT demanding action to align American’s policy with the Air Carrier Access Act.

It argues American’s policy stands out in its exclusion of providing any assistance to sufferers.

In addition to enforcement of the act, FARE’s written complaint also seeks mandatory training of staff to ensure the airline adopts a uniform approach and prevents employees from ­applying the allegedly discriminatory policy.

The issue appears to have already hit a nerve; the department has updated its training guide since Isla Mackenzie’s parents’ and FARE’s complaints were lodged, with the “Guidance for airline personnel on non-discrimination in air travel”, and “Passengers’ right to fly free from discrimination” now published online.

The not-too-subtle coincidence of the timing of the petitions, strong media interest in the injustice it describes, and the publication of the training materials indicate how seriously the issue is being treated.

In Australian domestic and international air travel, the circumstances of individual travellers might make the airline liable for injuries suffered by people with allergic reactions caused by inadvertent or negligent exposure to nut allergens.

Airlines also have policies that sufferers would be, or should be, made aware of when they book their flights.

And while it’s hard to exclude allergens altogether, precautions can be taken to minimise the risk of an allergic reaction and access to medication is a must.

Ultimately, though, nut allergy sufferers face enough challenges each day without having to deal with unsympathetic airlines that are bound by law not to discriminate against them.

The DoT’s decision is being anxiously awaited by all air carriers who are no doubt keen to avoid similar complaints, and of course the adverse publicity that accompanies them.

Joseph Wheeler is the principal of IALPG, national head of aviation law at Maurice Blackburn Lawyers and aviation legal counsel of the Australian Federation of Air Pilots.