The Department of Transportation has dismissed a complaint against Southwest Airlines by four national advocacy groups for nut allergy sufferers who accused the Dallas-based carrier of violating federal law when it changed pre-boarding rules, effectively discriminating against their members.
The complaint dates all the way back to late 2022, when Southwest Airlines barred nut allergy sufferers from pre-boarding the plane in order to give them the opportunity to wipe down and sanitize their seat area and prevent possible contamination from nut particles left behind by other passengers.
Airlines have been required to offer pre-boarding to nut allergy sufferers since 2019, when the DOT ruled that not doing so was a breach of the Air Carrier Access Act because.
For the purpose of this law, allergy sufferers are considered ‘disabled,’ and the regulations require airlines to “offer preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board.”
In September 2022, however, Southwest Airlines sent an internal memo that moved nut allergy sufferers from the pre-boarding group to what was then known as the ‘extra time boarding group’, which came after pre-boarding and Group A boarding.
Southwest Airlines says this change was a mistake and started the process of reversing the decision even before the advocacy groups made their official complaint to the DOT.
The airline later explained that it couldn’t just make the change overnight, and, in the end, it wasn’t until late December 2022 that nut allergy sufferers were placed back in the pre-boarding group.
Southwest asked for the complaint to be dismissed because it took steps to reverse its mistake before the complaint was even filed, but the advocacy groups fought back.
They complained that Southwest’s pre-boarding policy only applied to nut allergy sufferers and not other passengers who suffer from other severe food allergies, who would also want to pre-board in order to wipe down their seat areas.
After years of legal wrangling, the DOT has finally made a determination in this case, and Southwest prevailed.
Blane Workie, the Assistant General Counsel in the DOT’s Office of Aviation Consumer Protection, wrote that while food allergies are considered a disability, the department has only ever linked the right to pre-board with nut allergy sufferers.
“The existence of a disability does not automatically mandate a specific form of boarding unless that requirement has been clearly articulated by the Department,” the order reads.
And while the DOT acknowledges that “dairy, egg, or shellfish allergies can be just as severe as those of nut allergies,” it didn’t think it was fair to extend pre-boarding requirements to these groups without going through a formal rulemaking procedure to explicitly include these groups.
As for the period when Southwest denied pre-boarding to nut allergy sufferers, the DOT said it was using its “enforcement discretion” not to penalize the airline, as this was due to an “unintentional internal miscommunication” and Southwest made efforts to reverse the policy before a complaint was even filed.
In February 2024, Southwest agreed to start stocking epinephrine auto-injectors in its onboard medical kits for the first time. Commonly known by the brand name EpiPen, these autoinjectors can be used by non-medically trained laypeople to treat life-threatening allergic reactions when someone has gone into anaphylactic shock.
The decision came several months after three Senators urged the FAA to force airlines to carry EpiPens, arguing that it had only been “good fortune” that no passengers had died mid-flight from anaphylactic shock.
The FAA currently only requires airlines to stock epinephrine in single-dose vials, but these need to be administered via syringe by trained medical professionals only.
