On July 23, 2015, the Department of Justice and Carnival Corporation entered into a settlement to resolve ADA claims. That settlement can be found here. The lesson of the settlement agreement is that every company should have a system in place for complying with the ADA. If they don’t, the Department of Justice may just create one for you. As is typical with my blog entries, I have divided the blog entry in the categories: Are cruise ships even subject to the ADA?; history of the case; terms of the settlement agreement; specific provisions of attachment C of the settlement agreement; and takeaways. Normally, I say you are free to read any of the categories or all of them, but in this case, it probably makes sense to read all of them.
Before moving on to actual discussion of the blog entry, the deadline for the ABA Blawg 100 is August 16 at 11:59 PM. If you have not already done so and feel it worthy of a nomination, please go here to nominate.
The Blog Entry
Are Cruise Ships Even Subject to the ADA?
The answer to that question is yes as a result of the United States Supreme Court decision in Spector v. Norwegian Cruise Lines, Limited, 545 U.S. 119 (2005). In that case, which I also discuss in my book, the United States Supreme Court in a plurality opinion found that the ADA applied to cruise ships even were they were carrying a foreign flag so long as the internal affairs of the ship were not compromised. The plurality is due to no majority existing for what internal affairs meant.
History of the Case
The United States received numerous complaints from individuals with disabilities and their traveling companions alleging that the company discriminated against them on the basis of disability. Examples of such discrimination included the failure to: provide accessible seating and entertainment and dining venues; reasonably modify policies, practices and procedures to accommodate individuals with disabilities; properly provide and reserve accessible accessible cabins to individuals with mobility disabilities; afford individuals with disabilities the same opportunity to participate in the programs and services provided by the company, including embarkation and disembarkation; and, provide effective communication during muster and emergency drills.
Terms of the Settlement Agreement
1. The settlement agreement, as is true with most settlement agreements, denies liability, but settles in the interest of future litigation being prevented.
2. Despite the lack of admission of liability, the company agreed to pay DOJ $55,000 in civil penalties and $350,000 in compensation to complainants identified by DOJ. It appears that none of the complainants hired private attorneys because attorneys fees is completely absent from the settlement agreement.
3. The company is given time frames to establish the following: corporate accessibility standards and implementation document; ADA compliance officer; ADA responsibility officers; ADA shipboard officers; training; accessibility request and grievance procedures; and reservations. The specific time frames can be found here.
4. Corporate accessibility standards are specifically incorporated into the settlement agreement. See here. The corporate accessibility standards are quite comprehensive and cover: coordination and management of accessibility issues; request and complaint procedures; dissemination of information regarding accessibility; training; accessible cabins: reservation, booking, and upgrades; accessible airport transfers; embarkation and disembarkation; shore excursions; effective communication; dining; medical and related auxiliary services; youth program; emergency drills; entertainment venue; and service animals.
5. If the corporate accessibility standards and implementation documents are modified, such modifications must be consistent with the agreement and Carnival Corporation has to provide notice and a copy of the change to the Department of Justice within 14 days of the modification.
6. Within 90 days of the settlement agreement, Carnival Corporation has to designate or hire an executive level ADA compliance officer for the company. That individual has the responsibility for overseeing the company’s compliance with title III of the ADA and for implementing and administering the company’s obligations under the agreement. The person has the authority to implement changes and effectuate the agreement. Underneath them, the position of ADA responsibility officers is created and report to the ADA compliance officer. There are actually two ADA responsibility officer positions (one for Carnival Cruise Lines and another for Holland America line and Princess cruises lines). These people serve as the respective brand’s ultimate contact on disability issues for the public and for the party to this agreement. They are given the authority to make decisions regarding accessibility issues where those issues are unable to be resolved by the ADA shipboard officer and have direct access to the ADA compliance officer.
A. The ADA compliance officer and the ADA responsibility officers must be approved by the Department of Justice. The names of such people have to be given to the Department of Justice within 90 days of the settlement agreement. Once the Department of Justice has signed off, the company has to bring these individuals on board.
B. Within the time frames set forth in attachment B, the company has to train the ADA compliance officer and the ADA responsibility officers on the requirements of title III of the ADA. Here is where things get interesting. This particular provision references a paragraph 23. That paragraph talks about training. Attachment B says that within 60 days of the company’s receipt of the United States approval of the ADA compliance officer and the ADA ADA responsibility officers, the company has to submit proposed training materials to the Department of Justice for review and approval. The DOJ then has 30 days to provide any feedback. Within 45 days of DOJ giving approval for the training materials, the company then has to train the ADA compliance officer, the ADA responsibility officers, and other relevant members of senior management having a role in implementing the corporate standards and other aspects of compliance.
Here is what befuddles me. Under the settlement as literally phrased, Carnival Corporation has 270 days if my math is correct which I believe it is, to train the ADA compliance officer and the ADA responsibility officers on title III of the ADA. The number of days is a maximum of 315 days with respect to the training of ADA shipboard officers and all existing first-line supervisors and managers with regular anticipated guest contact and another maximum of 30 days on top of that for all other existing crews/employees with regular anticipated guest contact. This timeframe seems too long. Does the company have an infrastructure in place for dealing with disability issues prior to this timeline being completed? After all, disability issues are arising every day.
7. Each ship covered by the settlement agreement needs to have an ADA shipboard officer on it. This person travels with the ship for the duration of the covered sailing and oversees the onboard department or other individuals responsible for responding to accessibility issues. The person will be an employee of the company and trained in accessibility issues. They are given the authority to address the most common accessibility issues during cover sailings and the ability to rapidly escalate issues outside of their authority to the appropriate ADA responsibility officer.
8. Training materials have to be submitted to the DOJ and approved by them. If you do the math on this one, the deadline for submitting the training materials to the DOJ is a maximum of 195 days from the date of the settlement.
Again, this seems awfully long. In the interim, how are people getting trained on ADA issues within this company?
9. Refresher training must occur for every individual required to receive training under the settlement agreement every two years.
10. Once the training materials are approved, the company has 120 days to train all other existing crews/employees with regular anticipated guest contact. They will also begin training on new hire employees with regular anticipated guest contact within 45 days of the employee joining his or her first ship. Finally, they also have 120 days to implement the corporate accessibility standards and implementation documents; the accessibility request and grievance procedures; and the reservation policies.
Again, we are talking about an industry that faces disability issues on a daily basis. These time frames are rather long. What is going to be happening until then?
11. Every covered senior executive, manager, supervisor, crewmember, an employee asked to receive refresher training every two years.
Specific Provisions of Attachment C
1. For 18 months each covered brand will maintain written report documenting each ADA complaint received in its resolution. What happens after 18 months? Wouldn’t it be a good idea to do this in perpetuity?
2. Each brand’s website must be accessible to persons with disabilities. Same goes for printed materials.
3. The ADA training includes at a minimum: general background on the ADA; an overview of the company’s accessibility policies, practices and procedures (including examples of reasonable modifications of policies, practices, and procedures); etiquette for interacting with individuals with disabilities; the process for responding to ADA requests and complaints; and relevant accessibility features of the ships.
These are the same requirements found in paragraph 23 of the settlement agreement. It is curious that literally speaking no mention of the legal requirements of the ADA appears, though I guess you could say it is implicit. This leads to another question, which is who is going to be doing the training and what will be their background. I don’t see anything in the settlement agreement that talks about who the trainers are, though the training materials have to be approved by the DOJ.
4. With respect to deaf or hard of hearing customers, Carnival may provide necessary related accessible features to the cabins by utilizing portable devices and kits. As I have mentioned before, the best option for the hospitality industry is to go with the portable devices and kits. Otherwise you are creating a feeling of segregation.
5. Service animals are specifically allowed, but emotional support animals are out. Also, nothing in attachment C talking about the limitations that title III entities have with respect to assessing whether an animal is a service dog.
1. If you are a company, get an ADA compliance plan in place. Otherwise, you may have the Department of Justice setting up a bureaucracy for you to deal with. In this case, a complete ADA compliance bureaucracy has been created. I count three levels here in a ascending order: Shipboard officer, responsibility officer, compliance officer. No mention of a legal person. Considering that a legal person is necessary, that means four levels. What is the process for making sure that the disability issues get to legal? So, for your company you do want to have a system in place. Does it really have to be four levels? That would be an individual call for each company. Regardless, you do want to make sure you have a system for legal review whenever necessary.
2. Interesting that service dogs are mentioned and emotional support animals are out. Well, I get that due to Title III regulations. However, nothing in the settlement agreement talks about the limitations a title III entity has when it comes to assessing whether an animal is a service dog.
3. Make sure whoever is training your employees on the ADA is knowledgeable and also it would be a good idea for such training to explicitly include at least a general overview of the legal requirements imposed by the ADA.