First off, I want to wish everyone a happy new year! Hope everyone had a happy and safe new year. Back to the grind for all of us and back to school for our kids. Before moving on to the blog entry of the week, a lot has happened over the last two weeks. The biggest thing that happened is that I am no longer a pure solo practitioner. Over the last couple of weeks, I became Of Counsel to the firm Kitchens New Cleghorn, a firm in Atlanta. My practice, which is described here, stays the same. The difference now is that I have the advantages a firm offers me, including administrative support and colleagues with a shared purpose. Very excited about the opportunity. Second, my blog site and my website changed to reflect the new reality of being of counsel to Kitchens New Cleghorn in different ways. One way that it changed is that www.williamgoren.com gets forwarded to my blog site. That needed to be done anyway as my website was really acting as nothing more than a placeholder for the blog site attached to it. The website was pretty static, and it is the blog site that has been actively changing the content for the last several years now. The other way the blog site changed is that you now see a reference to the law firm, and there is also the section describing my practice. Otherwise, it is pretty much the same everyone has grown comfortable with.  I am looking forward to this exciting new journey for me, and I believe it will benefit my clients and myself going forward.

Airplane

Turning to the blog entry of the day, I had several choices. In the end, I decided to go back to airplanes. In particular, recently, the Federal Aviation Administration Reauthorization Act became law, and there are several provisions in it affecting persons with disabilities. Also, the Department of Transportation on November 16, 2018 fined Scandinavian Airlines system $200,000 because they had developed a separate website for persons with disabilities rather than a single website allowing everyone, including persons with disabilities, to use. So, as usual, the blog entry is divided into categories, and they are: key provisions of the Federal Aviation Administration Reauthorization Act; takeaways with respect to the Federal Aviation Administration Reauthorization Act; and highlights of the consent order between the Department of Transportation and Scandinavian Airlines system/takeaways. The reader is free to concentrate on any or all of the categories.

I

Highlights of the Federal Aviation Administration Reauthorization Act

  1. By April 5, 2019 the Comptroller General of the United States has to submit to the appropriate congressional committee a report assessing: the availability of functional lavatories on commercial aircraft; the extent to which flights take off without functional lavatories; the ability of passengers with disabilities to access lavatories on commercial aircraft; the extent of complaints to Department of Transportation and air carriers related to lavatories and any efforts they had taken to address complaints; and the extent to which air carriers are reducing the size and number of lavatories to add more seats and whether this creates passenger lavatory access issues.
  2. Not later than 90 days after the enactment of the act, which by my calculations would be around January 5, 2019, two days ago, the Secretary of Transportation shall require each covered air carrier to submit a summarized one page document describing the rights of passengers in air transportation, including guidelines, among other matters, compensation for mishandled baggage, including delayed, damaged, pilfered, or lost baggage (which presumably includes wheelchairs that are checked).
  3. Sometime in early May 2019, the air carriers have to make available that one page document in a prominent location on its website.
  4. Not later than October 5, 2019, the Comptroller General of the United States must have conducted a study that includes: 1) a review of airport accessibility best practices for individuals with disabilities, including best practices that improve infrastructure facilities and communication methods, including those related to way finding, amenities, and passenger care; 2) review of air carrier and airport training policy related to 49 U.S.C. §41705 (Air Carrier Access Act); 3) a review of air carrier training policy related to properly assisting passengers with disabilities; and 4) a review of accessibility best practices that exceed those recommended under: the Architectural Barriers Act oof 1968; Rehabilitation Act 1973; Air Carrier Access Act oof 1986; and the ADA of 1990 as amended. Not later than one year after the date the Comptroller General initiates the study, the Comptroller General has to submit to the Secretary of Transportation and to the appropriate committees of Congress a report on the study, including its findings and recommendations.
  5. By October 5, 2020, the Architectural And Transportation Barriers Compliance Board in consultation with the Secretary of Transportation, aircraft manufacturers, air carriers and disabilities advocates, shall conduct a study to determine: 1) the feasibility of cabin wheelchair restraint systems; and 2) if feasible, the ways in which individuals with significant disabilities using wheelchairs, including power wheelchairs, can be accommodated within cabin wheelchair restraint systems. Not later than one year after initiation of the study, the Architectural and Transportation Barriers Compliance Board must submit to the appropriate committees of Congress a report on the findings of the study. From this report, the Secretary of Transportation has to develop, if appropriate, specific recommendations regarding improvement to wheelchair assistance provided by air carriers and recommendations on how training programs by air carriers can address consumer complaints regarding wheelchair assistance.
  6. The Secretary of Transportation has to develop a document known at the Airline Passengers with Disabilities Bill of Rights. That document must use plain language to describe the basic protections and responsibilities of covered air carriers, their employees and contractors, and people with disabilities under the Air Carrier Access Act. This document must include at a minimum, plain language descriptions of protections and responsibilities provided in law relating to the following: 1) the rights of passengers with disabilities to be treated with dignity and respect; 2) the rights of passengers with disabilities to receive timely assistance, if requested, from properly trained covered air carrier and contractor personnel; 3) the right of passengers with disabilities to travel with wheelchairs, mobility aids, and other assistive devices, including necessary medications and medical supplies, including stowage of such wheelchairs, age, and devices; 4) the rights of passengers with disabilities to receive seating accommodation, if requested, to accommodate a disabilities; 5) the rights of passengers with disabilities to receive announcements in an accessible format; and 6) the rights of passengers with disabilities to speak with a complaint resolution officer or to file complaint with the covered air carrier or the Department of Transportation. In developing the Airline Passengers with Disabilities Bill of Rights,, the Secretary of Transportation has to consult with stakeholders, including disability organizations, covered air carriers, and their contractors.
  7. Each covered air carrier has to include the Airline Passengers with Disabilities Bill of Rights on a publicly available Internet website of the covered air carrier and in any preflight notifications or communication provided to passengers who alert the covered air carrier in advance of the need for accommodations relating to disabilities.
  8. Covered air carriers and contractors of covered air carriers have to submit to the Secretary of Transportation plans ensuring employees of covered air carriers and their contractors received training on the protections and responsibility described in the Airline Passengers with Disabilities Bill of Rights. The Secretary of Transportation has to review those plan to ensure the plans address the matters described as being necessary to the Bill of Rights for Airline Passengers wwith Disabilities.
  9. A sense of Congress provision was added to make clear that it is the sense of Congress that: 1) the aviation industry and every relevant stakeholder must work to ensure that every individual who experiences a disability has equal access to air travel; 2) as technology and ease of travel continue to advance, accessibility is a continuing priority; and 3) accommodations must extend to every airport and service or facility of an air carrier and are inclusive of every disability.
  10. The civil penalty assessed for violating the Air Carrier Access Act with respect to damages to a passenger’s wheelchair or other mobility aid or injury to a passenger with a disability has now increased to an amount not to exceed three times the maximum penalty otherwise allowed.
  11. When it comes to the Air Carrier Access Act, a separate violation occurs for each act of discrimination prohibited by the Air Carriers Access Act.
  12. The Secretary of Transportation has to engage in rule-making to define the term “service animal,” for purposes of air transportation and to develop minimum standards for what is required for service and emotional support animals carried in aircraft cabins. In conducting that rule-making, the Secretary of Transportation has to consider at least the following: 1) whether to align the definition of service animal with the DOJ regulations implementing the ADA; 2) reasonable measures to ensure pets are not claimed as service animals. Such measures might include: a) requiring photo identification for service animal identifying the type of animal, the breed of animal, and the service the animal provides to the passenger; B) requiring documentation indicating whether or not a service animal was trained by the owner or an approved training organization; C) requiring, from a licensed physician, documentation indicating the mitigating task or tasks a service animal provides to its owner; and D) whether to allow a passenger to be accompanied by more than one service animal; 3) reasonable measures to ensure the safety of all passengers, such as whether to require health and vaccination record for service animal and whether to require third-party proof of behavioral training for service animals; 4) the impact additional requirements on service animals could have on access to air transportation for passengers with disabilities; and 5) if impacts on air transportation for passengers with disabilities are found, ways to eliminate or mitigate those impacts. The Secretary of Transportation has until April 5 of 2022 to issue final rules on the matters covered in this paragraph.
  13. The Secretary of Transportation has to establish an advisory committee on issues relating to your travel needs of passengers with disabilities. The duties of that committee include: 1) identifying and accessing the disability related access barriers encountered by passengers with disabilities; 2) determining the extent to which the programs and activities of the Department of Transportation are addressing accessibility barriers; 3) recommending consumer protection improvement in the travel experience of passengers with disabilities; 4) advising the secretary with regards to the implementation of the Air Carrier Access Act;; and 5) conducting such activities as the Secretary considers necessary to carry out this section. Members of this committee are to be appointed by the Secretary of Transportation and must be composed of at least one representative of each of the following groups: passengers with disabilities; national disability organizations; air carriers; airport operators; contractor service provider; aircraft manufacturer; wheelchair manufacturer; and national veterans organization representing veterans with disabilities. This committee is also charged with reviewing current regulations with respect to practices for ticketing, preflight seat assignment, and stowing of assistive devices for passengers with disabilities and with making recommendations on whether these current regulations need to be modified with respect to: a) providing accommodation for passengers with disabilities, if requested, in ticketing and preflight assignments; B) requiring covered air carrier to provide priority access to bulkhead seating of passengers with disabilities needing access to features of those seat due to disabilities regardless of class of service of ticket purchase; and C) ensuring passengers with disabilities can stow their assistive devices without cost.
  14. Not later than 14 months after the advisory committee is established and annually after that, the advisory committee has to submit to the Secretary of Transportation a report on the needs of passengers with disabilities in air travel, including: a) an assessment of existing disability related access barriers, and any emerging disability related access barriers likely to be an issue in the next five calendar years; B) evaluation of the extent to which the Department of Transportation’s programs and activities are eliminating disability related access barriers; C) a description of the advisory committee’s action; D) a description of improvement related to air travel experience of passengers with disabilities; and E) any recommendation for legislation, administrative action, or other action that the advisory committee considers appropriate. The advisory committee terminates on September 30, 2023.
  15. Not later than 180 days after October 5, 2018 (approximately April 5 of 2019), Secretary of Transportation shall: 1) review, and if necessary revise, applicable regulations ensuring that passengers with disabilities requesting assistance while traveling in air transportation receive dignified, timely, and effective assistance in airports and on aircraft from trained personnel; and 2) review, and if necessary revise, applicable regulations relating to covered air carrier training program for air carrier personnel, including contractors, who provide physical assistance to passengers with disabilities to ensure that training under such programs occur on an annual schedule for all new and continuing personnel charged with providing physical assistance and also includes, where appropriate, construction by personnel with hands-on training for employees who physically lift or otherwise physically assist passengers with disabilities, including the use of relevant equipment.
  16. The compliance date of the final rule dated November 2, 2016, on the reporting of data for mishandled baggage and wheelchair in aircraft cargo compartments is effective not later than 60 days, approximately December 5 of 2018, after the enactment of this act.

II

Takeaways with Respect to the Federal Aviation Administration Reauthorization Act

  1. There is a strong focus on accessibility to aircraft for persons with mobility impairments. You don’t see much of a focus on other disabilities, at least not explicitly. It is true that Act in its sense of Congress provision does contain all disabilities language.
  2. Some of the deadlines have already passed. For example, airlines should have already submitted their one page document describing the rights of people with disabilities in air transportation to the Secretary of Transportation, and the final rule for the reporting of data dealing with mishandled baggage with respect to wheelchairs has already gone into effect. Other provisions of the act have deadlines that are coming up shortly. For examples: a report dealing with lavatories on commercial aircraft is due in early April; one page document to be displayed by airlines in early May 2019; and by sometime in early April, the Secretary of Transportation has to review and revise applicable regulations mentioned in ¶ I15 above. There are also October, 2019, deadlines as well.
  3. Civil penalties for damages to wheelchairs have just tripled.
  4. The continuing violation doctrine is a nonstarter as every act of discrimination is a separate act.
  5. The problem dealing with animals on airplanes has to be specifically addressed. On the table, is matching up the Air Carrier Access Act with the Department of Justice regulations on service animals. While they are at it, they may want to consider getting rid of the completely arbitrary distinction between psychiatric service animals and service animals for those with physical disabilities. It is also entirely possible that a bunch of requirements specifically noted for the advisory committee to consider in the Reauthorization Act will result in a situation with respect to animals on planes that would not be allowed if this was an entity dealing with service animals under title II or try to III of the ADA.
  6. The advisory committee is problematic because of the way people with disabilities silo. Passengers with disabilities and national disability organizations each get at least one (not clear if it can be more than one), representative, but how you go about making sure that every disability is represented when people with disabilities silo terribly, I have no idea. For example, the deaf and hard of hearing community is going to have very different issues than the wheelchair community when it comes to airplane access.
  7. The advisory committee terminates on September 30, 2023. I don’t understand why it terminates at all because I don’t see these issues ever ending.

III

SAS Matter/Takeaways

  1. Scandinavian Airline System developed a separate website for individuals with disabilities instead of ensuring that a primary website was consistent with Web content accessibility guidelines 2.0 level AA standard, which unlike the ADA, is required by 14 C.F.R. §382.43(c)(1). The product was developed by a company called Usablenet and Scandinavian Airlines system believed that that product was the best way to meet the Department of Transportation website accessibility requirements.
  2. Under the Department of Transportation rulemaking system, airlines were required to ensure all remaining webpages on their primary website were accessible by December 12, 2016.
  3. The Department of Transportation previously had said that creating a separate accessible website would likely perpetuate the problem of unequal access access as carriers would allot fewer resources than needed over time to properly maintain the secondary site. The Department of Transportation also said that it is well-established with respect to disability nondiscrimination law that separate or different aids, benefits or services can only be provided to individuals with disabilities when necessary to provide age, benefits, or services that are as effective as those provided to others. Finally, the Department of Transportation does allow airline to use an alternative version only when conforming a public facing webpage constitutes an undue burden or fundamentally alter the information provided by that page.
  4. Scandinavian Airlines system does not admit liability, but did agree to pay a fine of $200,000 to resolve the matter. $100,000 of that payable within 30 days with the other $100,000 becoming due and payable if Scandinavian airlines violates the order cease and desist order payment provisions.
  5. With respect to takeaways on the Scandinavian Airline systems matter, they are: 1) the Department of Transportation imposed a significant penalty for not having an integrated website that all people could use; 2) the Department of Transportation does not believe that separate but equal will suffice when it comes to people with disabilities being able to access airline websites; 3) the Department of Transportation references auxiliary aids language of the final regulations implementing the ADA; and 4) by DOT regulations, the ADA concepts of undue burden and fundamental alteration, are also in play. So, even though websites that are not air carrier owned are not subject to the Air Carrier Access Act  and its final implementing regulations, this particular case is a red flag alert to title II and title III entities that may be considering developing a separate website for persons with disabilities. The answer to that question is don’t do it.

One Response to Federal Aviation Administration Reauthorization Act and Separate but Equal will not Fly with the Department of Transportation

The most puzzling thing to me about the SAS decision and the DOT regulations is the notion that a separate website for the disabled is “less likely” to be maintained than the principal website. For airlines and others operating sophisticated websites “maintenance” isn’t really an applicable concept – the websites are constantly being revised and updated with both new information and new applications. Because of this accessibility features of the “main” website must also be constantly revised and updated. There is no reason to think that accessibility features in a main website are any less likely to be maintained than those in a separate website. If the airline is committed to accessibility it will keep both sites up to date. If not then making the main site accessible at one point in time isn’t going to stick anyway. The DOT rationale also ignores the fact that an alternative website must by law include all the same features as the main website. Why assume that the airlines will not comply with the law as it relates to an alternative site but will when it relates to the “main” site?

I think the underlying problem is conceptual. “Separate but equal” is a phrase from the 19th century that was used to justify segregation based on race. It is true the “equal” part was a joke, but the real problem is that it is irrational to put human beings with perfectly equal abilities to learn and consume in separate places. For the disabled this phrase doesn’t make sense because it is impossible to create equal experiences for individuals with different abilities. A blind person can never experience a photograph the way a sighted person experiences it, and a deaf person can never experience a sound the way a person who is not deaf experiences it. The point of website accessibility should not be to put everyone into the same website or put them on the same webpage but rather to provide the most complete experience possible given the disability. If the easiest way to achieve that is a separate website designed with the particular disability in mind then demanding accessibility in the “main” website doesn’t achieve any meaningful goal.

It must also be remembered that website “segregation” is an arbitrary concept. Modern websites deliver an experience that is personalized to the individual user. If I log on to the SAS website I see a page customized to the fact that I live in the U.S. and, because I’ve flown on SAS before, that I live in Dallas. If I were a member of its frequent flyer program there would be additional customizations. Since we have the technology to deliver individualized web experiences why not deliver a web experience customized for those who are blind, deaf, or otherwise disabled? Why require a single website to deliver a mediocre experience to all users, disabled or not, when it is possible to deliver an excellent experience to all users by having separate sites or pages?

The old concepts of segregation and separate but equal simply don’t apply to access for the disabled in the concept of a website, web page or web application. The question should not be what URL the user goes to, but whether the destination website creates the most equal experience possible.

Leave a Reply

Your email address will not be published. Required fields are marked *