Today’s blog entry discusses a letter From Representative Spaneberger (D-VA-07), and also signed by Representatives Cohen (D-TN-09), and Titus (D-NV-01), calling out DOT for its Air Carrier Access Act enforcement and demanding more information about their enforcement processes. We also mention a companion bill introduced by Senator Duckworth (D-IL) in partnership with Senator Fischer (R-NE), as well. Finally we will briefly discuss the interplay between the ADA, the Airline Deregulation Act, the Air Carrier Access Act, and State negligence laws. As usual, the blog entry is divided into categories and they are the Spaneberger letter and thoughts/comments. The reader is free to focus on either or both of the categories.
Dear Secretary Buttigieg:
Thank you for your service and leadership as Secretary of the U.S. Department of Transportation (DOT).
We write to request information regarding your Department’s enforcement of the Air Carrier Access Act (ACAA) out of concern for our constituents and individuals across the nation with disabilities who have experienced discrimination and unacceptable treatment in air travel. We have heard horrifying stories from our constituents with disabilities about airlines dropping them from wheelchairs while boarding airplanes, damaging or losing their wheelchairs, and other reproaches to their safety, health, and dignity. Passengers with disabilities continue to face unnecessary and discriminatory barriers that prevent them from participating in society on an equal basis.
The ACAA is the primary federal statute governing the rights of passengers during air travel. Since 1986, the law has provided federal protections to airline passengers with disabilities, such as (1) prohibiting discrimination on the basis of disability in air travel; (2) defining requirements regarding the accessibility of aircraft facilities; and (3) ensuring airlines provide certain services and accommodations for these passengers. Unlike the Americans with Disabilities Act (ADA), the ACAA does not expressly provide for a private right of action, thus individuals with disabilities cannot enforce their rights under the ACAA through civil litigation in U.S. courts – which significantly weakens the ACAA’s enforcement. As a result, the only recourse available to these consumers is to file a complaint with the U.S. Department of Transportation.
Our understanding of your Department’s current complaint process with regards to the ACAA is that DOT forwards all disability complaints it receives to the airline accused of a violation, requires the airline to respond to the complaint, reviews the airline’s response, and determines whether to open an investigation by weighing numerous factors, including whether DOT believes an airline is systematically violating civil rights requirements or engaging in particularly egregious conduct. The Department currently publishes the data on disability-related complaints that U.S. and foreign passenger airlines operating to, from and within the U.S. receive during each calendar year; however, DOT has not publicly provided information on how many complaints it has resolved. In addition, the DOT has been silent in response to a growing chorus of complaints regarding the Department’s enforcement of the ACAA.
This lack of transparency is particularly concerning given the rise of disability-related complaints filed with DOT in recent years. In 2021, DOT received 1,394 disability-related complaints, an increase of 54 percent from the 905 disability complaints received in 2019. Although the number of disability-related complaints has increased in recent years, DOT has taken only one enforcement action for non-compliance with applicable accessibility-related regulations for the airline industry since 2019. This is a sharp decrease in the Department’s enforcement actions from the 37 consent orders issued to airlines from 2008 through 2019 for disability-related violations.
Given DOT’s insufficient enforcement activity despite an increase in disability-related complaints, please provide responses to the following questions:
- What is the DOT’s specific process to investigate and adjudicate potential consumer protection violations when it receives an airline’s response to a disability-related complaint?
- What are the criteria used to determine whether the Department will pursue enforcement actions?
- How often is this process evaluated and, if appropriate, amended?
- Of the 1,394 disability-related complaints DOT received in 2021, what percentage of complaints resulted in dismissal, a civil monetary penalty, or other injunctive relief?
- How long did it take to resolve those investigations?
- What steps, if any, is the Department taking to improve its disability-related complaints resolution process?
We appreciate DOT’s recent efforts to strengthen the implementation and enforcement of the ACAA and to implement the accessibility-related provisions required by the FAA Reauthorization Act of 2018. However, our constituents – and all Americans – deserve more. We look forward to your response and working with you to protect the civil rights, safety, and dignity of those we serve with disabilities.
Thank you for your attention to this important matter.
- In the Senate, Senator Tammy Duckworth (D-IL) partnered with Senator Deb Fischer (R-NE) to introduce the Prioritizing Accountability and Accessibility for Aviation Consumers Act of 2023. This bipartisan bill would increase transparency about how quickly, effectively, and efficiently consumer complaints related to traveling with a disability are received, addressed and resolved by DOT. Specifically, the bill requires the Secretary of Transportation to publish an annual report on several issues, including:
- The number of aviation consumer complaints related to passengers with a disability filed within the last five years;
- The nature of the complaints, including issues with an air carrier, mishandling a passenger’s assistive technology, such as a power wheelchair, accessibility of in-flight services, difficulty in being moved or mishandled by staff, or having difficulties communicating with an air carrier or its staff; and
- An overview of the review process for such complaints, and description of how quickly each complaint was initiated for review and resolved or addressed.
- I did not realize that DOT had taken only one enforcement action for noncompliance with applicable accessibility related regulations for the airline industry since 2019.
- The lack of transparency by the Department of Transportation detailed in the letter, §I of this blog entry, signed by Representatives Spaneberger (D-VA-07), Cohen (D-TN-09), and Titus (D-NV-01) is concerning.
- The Senate legislation (text not available as of yet. ¶ 1 of this section comes from Senator Duckworth’s website), essentially mimics the letter.
- It is absolutely correct to say that there is no private cause of action for violation of the Air Carrier Access Act, and we discussed that in this blog entry.
- It is also absolutely correct to say that any violations of the Air Carrier Access act with respect to any remediation entirely depends upon what the Department of Transportation decides to do.
- I have consulted on several cases involving the intersection of the ADA, Air Carrier Access Act, Airline Deregulation Act, and State negligence laws. The intersection is quite fascinating and can be difficult to parse out.
- People may not realize due to several United States Supreme Court decisions, that if they get injured while under the control of an air carrier, they do have a right to sue for negligence but the standard of liability will be the regulations in the Air Carrier Access Act as a result of the Airline Deregulation Act’s preemption clause. So, the regulations put out by the Department of Transportation implementing the Air Carrier Access Act are extremely important.
- While we do not have the text of the Senate bill mentioned in II(1) yet, it is worthwhile noting that a Republican has partnered on the bill.
- Disability is not partisan. My experience has taught me that if a person has a disability, has a family member with a disability, or a close friend with a disability, then they get disability on some level. You can see the same thing at work when reading judicial opinions. For someone like myself, you can tell a difference in whether a judge gets disability or not for most probably the reasons mentioned in this paragraph. Whether a judge gets disability or not does not depend upon his or her or they’s partisan leanings.
- The intersection between the Airline Deregulation Act (you can imagine my confusion when I first started reading these cases and the cases were talking about the ADA but the ADA wasn’t involved), the ADA as we talk about it in this blog, the Air Carrier Access Act, and State negligence laws works something like this: 1) the Airline Deregulation Act has a preemption provision within it, 49 U.S.C. §41713(b)(1), that preempts anything to do with States from enacting or enforcing a law, regulation, or other provision having the force and effect of law that are related to an air carrier’s price, route, or service; 2) the DOT regulations implementing the Air Carrier Access Act preempt the field; 3) most airports are owned and/or operated by a public entity subjecting the airport facility itself to title II of the ADA; 4) once a person is under control of the air carrier, it is the Air Carrier Access Act that applies and not the ADA; 5) the Supreme Court has allowed people with disabilities injured while under control of the air carrier to sue for their personal injuries on negligence grounds. However, due to the preemption provisions and the DOT regulations preempting the field, it is the regulations that govern liability; and 6) a person with a disability that suffers discrimination by one of the private entities operating within the airport, such as one of the concessionaires, would have a title III claim against the concessionaire. That person may also have a claim against the owner/operator of the airport (the public entity in most cases), because of a regulatory provision, 28 C.F.R. 35.130(b)(v), which prohibits a public entity from aiding or perpetuating discrimination by providing significant assistance to another entity that discriminates against persons with disabilities with respect to people utilizing the public entity.
- Congress is so consumed by partisan division that it is hard to believe much of anything can get through Congress nowadays. The fact that Senator Duckworth has a Republican partner on the bill is heartening. Also heartening, is that this is entirely regulatory driven and everyone is flying nowadays. So, air carrier accessibility is not a partisan issue. Finally, all the bill requires is for DOT to report certain things on a regular basis.
- As a deaf individual that flies from time to time, whether it be for my consulting practice or for visiting my daughter at college, I personally have to deal with air carrier accessibility issues myself (don’t even get me started on deaf room accessibility in the hotels). For example, the announcements in the airport are terribly difficult to hear. Fortunately, the people working the counter let me pre-board so that I don’t have to worry about trying to figure out what they might be saying. The other piece that drives me crazy is that not everything shown on the back of the seat has captioning. So, my viewing choices are much more limited than the hearing person next to me. If there is an announcement during the airplane ride itself, I get a notice on the screen (assuming a screen even exists on the back of the seat), that an announcement is going on but of course have no clue what the person is actually saying. When everything is going well, you can surmise that what is being said is not significant because of the timing in the flight of the announcement. I am fortunate enough where knowing what is being said has never been really an issue for me because my flights are invariably uneventful. Nevertheless, it is an accessibility problem to deal with.
- I could see the airlines getting behind Senator Duckworth’s bill for a couple of reasons. First, regulation bring certainty to some degree to a business. Second, air carriers certainly don’t want to see a situation develop where a person would be allowed a private cause of action after exhausting administrative remedies in a manner like the way title VII of the Civil Rights Act and title I of the ADA work. So, a bill like this one would increase transparency and still allow air carriers the luxury of knowing that it is only the DOT they have to worry about when it comes to disability discrimination.
- There are very few lawyers working the plaintiff side with respect to disability discrimination by air carriers because of the lack of a private cause of action. Also, anybody can file a complaint with DOT on their website. You don’t need a lawyer to do that, though it may help.
- Since negligence actions are allowed if a person with a disability is injured while under the control of the air carrier, you do see more lawyers representing plaintiffs on that side of it. However, those lawyers often do not realize just what are the liability standards in play for the reasons we mentioned above (the preemption of rules by the Airline Deregulation Act).
- Coverage under the Air Carrier Access Act is much broader than just what we think of as the typical big airlines.