Today’s blog entry comes from the 11th Circuit. It involves severely autistic individuals suing Walt Disney Parks and Resorts over their system of accommodating individuals, particularly when it comes to the severely autistic. The case is A.L. v. Walt Disney Parks and Resorts US, Inc., which can be found here. The decision is published, and so its persuasive authority is high. As usual, the case is divided into categories, and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.
The facts of the case are actually quite involved, but this is one of those cases where the key facts can be shortened considerably. The plaintiffs are severely autistic individuals who love going to Walt Disney Parks and Resorts. The severely autistic individuals due to the nature of their disability simply do not function in a way that enables them to defer gratification as other people do. Also, the individuals have to utilize the rides in a very routine way. If either is not the case, then the plaintiffs will have a meltdown. Disney has always had a system for accommodating people with disabilities and they have tweaked it over time. On appeal, the plaintiff claimed that their complaints also contained an intentional or disparate impact discrimination claim that the District Court was wrong to grant summary judgment on.
The District Court granted summary judgment to Walt Disney on all claims, and the parents appealed.
42 U.S.C. §12182(b)(2)(A)(ii) provides:
[Discrimination includes] a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facility, privileges, advantages, or accommodations.
Court’s Reasoning Reversing Summary Judgment and Remanding for Further Proceedings
The 11th Circuit found that the plaintiff’s had standing, the District Court was correct in granting summary judgment on the intentional and disparate impact discrimination claims (the 11th Circuit said that the complaint simply did not contain a cause of action for intentional or disparate impact discrimination), but the District Court’s summary judgment on the necessary modification claims had to be reversed, vacated, and remanded. The blog entry is going to focus on the court’s reasoning with respect to when modifications are necessary.
- For persons with autism (the autism community I have been told may actually prefer autistic), the need for sameness and consistency often leads to high levels of anxiety even when there are minor changes in their routines.
- 42 U.S.C. §12182(b)(2)(A)(ii) provides: [Discrimination includes] a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facility, privileges, advantages, or accommodations.
- The plaintiff bears the burden of proof to show that he or she is disabled and that his or her requested modification is both reasonable and necessary.
- The place of public accommodation bears the burden of proof on the fundamental alteration inquiry.
- In PGA Tour, Inc. v. Martin, (the case better known for holding that the ADA applies to professional sports, which we mentioned here, U.S. Supreme Court set forth a three part inquiry for figuring out when modifications to a place of public accommodation procedures were required. Those inquiries are: 1) whether the requested modification is reasonable; 2) whether the requested modification is necessary for the individual with a disability; and 3) whether the requested modification would fundamentally alter the nature of the public accommodation.
- Citing to a decision from the Eighth Circuit, which we discussed here, and a decision from the Ninth Circuit, the 11th Circuit said that public accommodations must start by considering how their facilities are used by nondisabled guest and then take reasonable steps to provide guests with disabilities with a like experience. Public accommodations have to provide patrons with disabilities an experience comparable to that of able-bodied patrons.
- Again citing to the Eighth Circuit decision, the 11th Circuit holds that title III, like §504 of the Rehabilitation Act, requires a place of public accommodation to provide an individual with a disability with meaningful access or an equal opportunity to gain the same benefit as his nondisabled peers.
- Citing to an 11th Circuit decision that I have yet to blog on, but which is a must include on any presentation I make dealing with the effective communication rules, the court said that the ADA and the Rehabilitation Act both focused on equal opportunity to participate in or benefit from the defendant’s goods and services. Further, such a question is an inherently fact intensive inquiry.
- The District Court correctly considered how nondisabled guests use Disney’s facilities and whether its system for accommodating guests with disabilities, DAS Card, provided guests with disabilities with a like experience and equal enjoyment.
- Meaningful access mean giving plaintiff the opportunity to have something akin or similar to the experience other people enjoy at Disney Parks.
- The specific neurologically-based manifestations of an autistic individual is: 1) they have no concept of time, cannot defer gratification, and cannot wait for rides; and 2) they must adhere to routine, must the ride the same rides repeatedly, and visit rides in the same order as in prior park visits.
- The claimed disability is waiting at all. Disney’s program for accommodating persons with disabilities accommodates the need to avoid physical lines, but not the need to avoid waits.
- To determine what is necessary requires multiple fact-finding regarding the disputed behavioral characteristics of autistic individuals. Until the findings are made in a bench trial, it cannot be determined what is or is not necessary under the ADA.
- The question of whether the accommodation is reasonable and/or fundamentally alters the park experience are inquiries needing to be addressed by the District Court, and the 11th Circuit specifically leaves it up to the District Court to decide both how best to approach those issues on remand and whether further record development is needed. The District Court will need to determine whether any material issues of fact exist in that regards and the 11th Circuit if the District Court has free reign in that respect.
- In a footnote, the court also reversed the summary judgment grant with respect to the California antidiscrimination law (Unruh Act), claims for the plaintiffs from California since those claims are intricately connected to the ADA claims.
- The 11th Circuit of late is proving to be one of the most pro-disability Circuits in the country.
- The fundamental alteration defense is going to be very interesting as to how it plays out. Anybody visiting a Walt Disney Park knows that deferred gratification is a fundamental part of experiencing those parks. Also, if an individual analysis is required, how could Walt Disney Parks accomplish that without a fundamental alteration? That question may be the answer as to why Walt Disney Parks currently takes it on face value that an individual has a disability rather than perform an individual analysis. On the other hand, excluding a whole group of people with disabilities is not right either.
- What often gets overlooked in fundamental alteration cases is that the modifications have to be necessary. There are very few cases discussing how to go about figuring out whether the modifications are necessary. This case offers guidance in that respect.
- The quality of experts can matter a great deal in litigation of this type.
- About the burden of proof, really confusing. That is, the plaintiff bears the burden of proof with respect to whether the requested modification is both reasonable and necessary, but the place of public accommodation bears the burden of proof on the fundamental alteration inquiry. Here is the problem. If reasonable means whatever does not constitute an undue burden, which can either be financial or logistical i.e. resulting in a fundamental alteration, it is hard to figure out how a plaintiff can have the burden of proof to show something is reasonable when doing so means they are also showing no fundamental alteration is involved, which burden is on the defense. This remains to be worked out and has always driven me crazy.
- I expect the case to have a huge impact on the lodging industry. For example, applying my own experience to staying in high end hotels when I am attending a convention, consulting, or doing training, I can tell you that hotels have a major issue with respect to providing disabled guests with a like experience.
- It isn’t the first time we have seen Argenyi (the Eighth Circuit decision talked about by the 11th Circuit in the case we are discussing here). That case, discussed in this blog entry, serves as the basis for my ADA compliance auditing in higher education blog entry.
- Silva v. Baptist Health South Florida, Inc., is a game changer for the culturally deaf community. It is a decision that I have not blogged on before because until recently I was involved with co-counsel in representing culturally deaf individuals in an effective communication case against a doctor and a hospital and did not feel comfortable about blogging about the case before that case settled. That said, Silva is a must read for both lawyers with respect to the legal profession and with respect to anybody in the healthcare profession. It is also a must slide in any training that I do talking about effective communications.
- When it comes to reasonable accommodations or reasonable modifications, places of public accommodations are not required to make the preferred accommodation of a plaintiff choice.
- Whether an accommodation or modification is reasonable and whether a fundamental alteration exists is an inherently fact intensive inquiry as the court notes. Therefore, the ability of the defense to obtain summary judgment on whether a modification is reasonable or whether a fundamental alteration exist may become more difficult after this case.
- Interesting that it appears the plaintiff requested a bench trial and not a jury trial. That is unusual.
- Be advised that language when referring to persons with disabilities is in a considerable state of flux. For example, should you use “person with a disability,” or, “disabled?” This is a very individual call and depends upon the person involved as well as the type of disability a person has. I am told that the movement is very much heading towards, “disabled.” That said, be careful because using the term “disabled,” can be very offensive to many, including myself. I thought that it was only the older generation that might be offended, but I have raised this question with teenagers and have gotten their view that people first is preferred. So, be sure to ask and/or immediately correct. You can’t go wrong with people first language with respect to, “person with a disability.” People first language may also depend upon the particular disability. For example, I have been told that “people with autism,” is out and, “autistic” is in. It seems really weird to refer to a person with hard of hearing or deafness rather than a person as hard of hearing or deaf. On the other hand, many disabilities come off as offensive when referred to in identity language terms.