The ADA is an extremely complex and comprehensive law. The temptation is to think that the ADA applies whenever a person with disability has their rights arguably infringed. However, that just isn’t the case. The situation may be governed by other laws. For example, if a person has an individual education plan, the law that covers that situation is IDEA. Another example, is if an airline discriminates against a person with a disability, the ADA is probably not the law involved. Recently, the actions of American Airlines made news. If a person faced with a similar situation were to sue under the Americans with Disabilities Act, would they be successful?

A case that probably answered this question, the answer being in the negative, is Lopez v. Jet Blue Airways, 662 F.3d 593 (2nd Cir. 2011). In that case, a person with a disability alleged that JetBlue discriminated against them by failing to provide timely wheelchair assistance during a round trip that she took from JFK to Puerto Rico with the result that she suffered pain and swelling in the foot as well as suffering from anguish, anxiety, and nightmares. Id. at 595. She filed a claim with the Department of Transportation but the Department of Transportation was unable to determine whether the airline had violated any regulations. Id. The Department of Transportation then took no further action against the airline with respect to the complaint. Id. The plaintiff then filed on their own a complaint against the airline in US District Court alleging violations of the Air Carrier Access Act and the Americans with Disabilities Act. Id. JetBlue filed a motion to dismiss claiming that regardless of whether the claim fell under Air Carrier Access Act or the Americans with Disabilities Act, neither law allowed for a private lawsuit in this situation. Id.

The Second Circuit agreed with JetBlue’s claims. Id. at 596. The air carrier access act is actually a single statute, 49 U.S.C. § 41705. The statute doesn’t say much. The first section of the statute tracks what is a person with a disability under the ADA and said that an air carrier, including a foreign air carrier, may not discriminate against an otherwise qualified handicapped individual (for whatever reason, Congress has not amended the law to strike handicapped in favor of a person with a disability). See Id. at § 41705(a). The second part of the statute goes on to say that a separate violation occurs for each individual act of discrimination. Id. at § 41705(b). The final section of the law says that the Department of Transportation is responsible for investigating such claims and for offering technical assistance. Id. at § 41705(c).

The Second Circuit was faced with two issues. First, is there a private cause of action under the Air Carrier Access Act? Second, does the ADA even apply to a situation where airline transportation is involved? With respect to the first issue, the Second Circuit said that the Air Carrier Access Act does not authorize a private cause of action. Lopez 662 F.3d at 597. The Second Circuit relied on a Supreme Court opinion that that held a statute must have a clear manifestation of congressional intent in order to create a private cause of action before the court can find that Congress implied a private cause of action. Id. at 596 citing to Alexander v. Sandoval 532 U.S. 275 (2001). In particular, the court noted that the Air Carrier Access Act does not expressly contain the right to sue the air carrier and further, the statute provides an administrative enforcement scheme designed to vindicate fully the rights of passengers with disabilities. Id. That administrative scheme includes a mandate that the Department of Transportation: investigate complaints that appear to be based on reasonable grounds; issue orders to compel compliance with statutory provisions after they have completed their investigation and given the air carrier an opportunity to be heard; review all complaints directed against air carriers of disability discrimination and publish disability related complaint data, have the option to revoke an air carrier certificate; impose fines; or even request that the Atty. Gen. bring a civil enforcement action. Id. at 597 and fn 3. The Air Carrier Access Act also provides for the ability of an individual with a substantial interest in the administrative decision the Department of Transportation file a petition for review in the United States Court of Appeals. Id. at 597. Accordingly, while a person who suffered discrimination by the airlines cannot bring a private cause of action, they can file a complaint with the Department of Transportation.

What about the Americans with Disabilities Act? With respect to the ADA, the court found that the ADA simply did not apply to the situation where a person is discriminated by airlines during the course of air travel. Id. at 598. In particular, the court said that title III of the ADA, which prohibits places of public accommodation from discriminating against persons with disabilities, was not in play at all. In particular, while the ADA does apply to terminals, depots, or other stations used for specified public transportation, that particular statute contains an exception for aircraft. Id. at 599. See also 42 U.S.C.A. § 12181(10). Therefore, the Second Circuit held that the rest from two terminal, depot, or other station contained in the public accommodation provisions of the Americans with Disabilities Act would not meant to include facility devoted primarily to air travel. Id. at 599.

But is that the end of the story? Not necessarily. In a footnote, the Second Circuit said that there were questions that remain open. For example, could an air carrier be found to be an owner, lessor, lessee, or operator of a public accommodation? Id. at 599 fn 8. Another question that remains open is whether there carrier could be held liable for disability discrimination if they were somehow involved in the provision of travel services other than by aircraft or in the provision of travel services located in a terminal, depot, or other station not primarily used for air travel. Id.

Finally, what about the regulations themselves? They are extremely comprehensive. Recently, the Department of Transportation requested comments on an update to the technical assistance manual. Those comments are due by October 3, 2012 and can be found at.

12 Responses to The ADA doesn’t reach everywhere

Recently, the Department of Transportation issued a final rule amending its rules implementing § 504 of the Rehabilitation Act, which requires accessibility in airport terminal facilities receiving federal financial assistance. The final rule includes new provisions related to service animal relief areas and captioning of television and audio video displays. It also reorganizes a provision concerning mechanical lists for enplaning and deplaning passengers with mobility impairments and o require airports to work with foreign air carriers in addition to US carriers so as to ensure that lifts are available where level entry loading bridges are not available. The final rule applies to airport facilities located in United States with 10,000 or more enplanements receiving federal financial assistance. Some key points about the regulations:

1. The department specifically decided against adopting specific requirements with respect to the dimension, design, materials and maintenance of service animal relief areas, with the exception that service animal relief areas must be wheelchair accessible;

2. Airports are required to consult with service animal training organization regarding the design, dimension, materials, and maintenance of service animal relief areas.

3. Airports are required to provide at least one service animal relief area in each airport terminal. Furthermore, this service animal relief area, with limited exceptions, has to be located in sterile area of each airport terminal in order to ensure that individuals with service animals are able to access service animal relief areas when traveling, particularly during layovers. You may be wondering what a “sterile area of an airport,” is. Such an area is the place where passengers deplane and enplane. That is, the area of the airport beyond the security checkpoint where passengers get on and off their planes and wait for their planes. Their are two limited exceptions: first, the situation where transportation security administration has a security reason for saying that an animal relief area can’t be in the sterile area of the airport; second, where a service animal training organization, the airport, and the carriers in the terminal and with the relief area will be located agree that a relief area would be better place outside the terminal’s sterile area that of inside the sterile area. In that eventuality, the airport must document and retain a record of that agreement.

4. US airports have one year to comply with the requirement to establish at least one service animal relief area per airport terminal.

5. Airport operators are required under this rule to enable or ensure high contrast captioning at all times on TVs and other audiovisual displays capable of displaying captions located in any gate area, ticketing area, first class, or other passenger lounge provided by a US or foreign carrier or any common area of the terminal to which passengers have access. On this, I am personally delighted. This is also an example of universal design because there are lots of people that wouldn’t hear what is going on with respect to TVs located in airports and the restaurants of airports anyway. So, the captioning requirement of the situation where everyone wins.

6. In the case of TVs and other audiovisual displays located in spaces leased by a shop or restaurant, the airport operator is obligated to ensure by contract or other means that the shop or restaurant enables the captioning feature on it TVs and other audiovisual displays in a manner consistent with the final rule.

7. Airports must now negotiate with foreign carriers as well as US carriers to ensure the provision of lifts, ramps, and other devices used for boarding and deplaning where level entry boarding is not available.

The final proposed rule can be found at the link I provided for in a separate comment to this blog entry.

The ABA Journal reports today that a resolution to the ABA house of delegates asking that the ABA house of delegates approve the idea of amending the air carrier access act to support a private cause of action was withdrawn, but there are plans to reintroduce it later. I can’t imagine the airline industry supporting such a change. On the other hand, the disability rights community would say that it was sorely needed for the reasons we have discussed in our blog.

The American Bar Association House of delegates just passed a resolution saying that the air Carrier Access act should be amended so that a private cause of action, including the award of attorney fees to a prevailing party, should be allowed. The article is here:

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