It has been a while since I blogged on the ADA with respect to amusement parks. On July 7, 2023, the 11th Circuit in a published decision came down with a case discussing the ADA with respect to amusement parks. Among the topics discussed are the screen out provisions and direct threat. The case has wider implications as well. The case is Campbell v. Universal Partners, here. As usual, the blog entry is divided into categories and they are: facts; ADA provisions involved; burden of proof; just what does necessary/necessity mean; complying with state law is not sufficient to activate the necessity defense; comparative advantage is not sufficient to activate the necessity defense; administrative feasibility and uniformity v. necessary; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories.
Dylan Campbell was born with only one hand. It was hot, so he took his son to Universal’s Volcano Bay Waterpark and got in line to ride a waterslide version of a roller coaster. As he approached the front of the line, Universal pulled him aside and told him he was unfit to ride the ride. Universal did not allow people without two natural hands to ride that ride. Campbell then sued alleging a discriminatory eligibility criterion in violation of the ADA.
During the litigation, Universal stipulated that the manufacturer of the ride had identified no specific risks of riding to anyone like Campbell. However, due to a series of Florida laws, regulations, rules, and industry practices, Universal had no choice but to follow the manufacturer of the ride recommendations regardless of whether the manufacturer based those requirements on actual risks, speculation, or even discrimination.
ADA Provisions Involved
- Under title III of the ADA, discrimination includes, per 42 U.S.C. §12182(b)(2)(A)(i), the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations. So, the general rule is that places of public accommodations are prohibited from imposing eligibility criteria that tend to preclude those with disabilities from enjoying the public accommodation’s good or service.
- A public accommodation can impose discriminatory eligibility criteria if such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered- the necessity exception.
- The ADA does not define what it means by, “necessary.”
- The ADA, per 42 U.S.C. §12182(b)(1)(D)(i), also prohibits public accommodations from avoiding liability under the ADA through contractual delegation. It expressly states that public accommodation cannot directly or through contractual or other arrangements, utilize standards or criteria or methods of administration having the effect of discriminating on the basis of disability.
- The ADA also has a relationship to other laws provisions. That section, 42 U.S.C. §12201(b), provides that nothing in it should be construed to invalidate the remedies, rights, and procedures of any federal law or law of any State providing greater or equal protection for the rights of individuals with disabilities. So, the ADA establishes the floor for the rights of persons with disabilities, but it does not limit the ceiling.
Burden of Proof
- In a case like this, plaintiff has the initial burden to show that: 1) he or she has a disability; 2) the defendant is a place of public accommodation; the defendant imposed eligibility criterion that screened out or tended to screen out an individual with a disability. Once the plaintiff shows this, the burden then shifts to the defendant to show that the eligibility criterion is necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.
- This burden shifting is consistent with both the statute, per 42 U.S.C. §12182(b)(2)(A)(i), and with how courts have interpreted parallel clauses of 42 USC § 12182(b)(2)(A).
- In §12182(b)(2)(a)(ii), the defendant private entity bears the burden of proof on the fundamental alteration inquiry. §12182(b)(2)(a)(iii), requires provisions of auxiliary aids and services unless the public accommodation can demonstrate that taking such steps would fundamentally alter the nature to facilities being offered or would result in an undue burden. While the 11th Circuit has not interpreted this section of the ADA, other circuits have. Without exception, those circuits have held that public accommodations bear the burden of proving either a fundamental alteration or an undue burden.
- The 11th Circuit has noted the same type of analysis for title II cases whereby if a plaintiff makes an initial showing of disparate treatment under the FHA or the ADA, the burden of going forward shifted to the defendant to establish the differential treatment is justified.
- This burden shifting analysis makes sense on several levels. First, the public accommodation or public entity is in a unique and far better position than the plaintiff to know why compliance fundamentally alters the nature of the facility it offers or why differential treatment would be justified, or whether such an eligibility criteria is necessary.
- Whether 1) a certain requirement is necessary to the facility; or 2) changing the requirement would fundamentally alter the defendant’s facility; or 3) differential treatment is justified turns on fact uniquely in the defendant’s position. That is, all of those determinations go to the core of the facility offered by the defendant. Further, it is the public accommodation or public entity with the incentive to show why noncompliance would be necessary and why compliance fundamentally alters the nature of what is being offered, or why compliance results in an undue burden.
- The sections of the ADA dealing with architectural barriers and the whole concept of readily achievable are not applicable to this kind of case. Architectural barriers present a different kind of situation so it makes sense that the way the courts have looked at burden shifting in those cases is different than what it would be in this case.
- Accordingly, 42 U.S.C. §12182(b)(2)(A)(i) has to be read so that the burden is on the public accommodation to show that discrimination is necessary where a plaintiff makes the requisite initial showing. Plaintiff made that initial showing because everybody agrees that Campbell has a disability and that Volcano Bay is a place of public accommodation. Also, Universal hasn’t contacted that it’s two hands eligibility criterion screens out or tends to screen out persons with disabilities. Universal therefore forfeited any argument otherwise.
Just What Does Necessary/Necessity Mean
- Necessary does include discriminatory eligibility criteria imposed to ensure safety.
- A prohibition is necessary if it is required for legitimate safety reasons.
- The ADA does not define, “necessary.”
- The ordinary meaning of “necessary,” doesn’t provide much guidance either. At best, all that can be said is the eligibility criteria must be in some way “essential,” or “cannot be avoided,” and offering a facility.
- A criteria providing a safe user experience is essential in offering a facility for public use because a public accommodation would go out of business quickly if the facilities and offered to the public were dangerous.
- 42 U.S.C. §12182(b)(3) specifies that nothing requires an entity to permit an individual to participate in or benefit from the facilities of such entity where that individual poses a direct threat to the health or safety of others. That provision continues to say that the term direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policy, practices, or procedures, or by the provision of auxiliary aids or services. Therefore, it is fair to say that congressional intent includes the safety of others as being necessary.
- It is not a far leap to conclude that the customer’s own safety is likewise necessary (see the thoughts/takeaways section of this blog entry for my strong disagreement with this particular conclusion of the court).
- 28 C.F.R. §36.301(b) provides that public accommodations may impose legitimate safety requirements necessary for safe operation.
- Legitimate safety requirements must be based upon actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
- “Necessary,” can include more than what is required for safety. Nothing in title III suggest that the general definition of “necessary,” is limited to just safety. Even the DOJ regulation says that safety is a permissible justification for discriminatory eligibility criterion and does not say that it is the only permissible justification.
Complying with State Law Is Not Sufficient to Activate the Necessary Defense
- Florida law requires amusement park to comply with ASTM standards. ASTM standards in turn demand compliance with manufacturer recommendations. Here, the manufacturer says that Campbell can’t ride because he doesn’t have two hands.
- The texts of the ADA precludes a court from finding that it is necessary to comply with state law when state law otherwise requires a public accommodation to violate the ADA. Such an argument conflicts with the ADA’s non-preemption provision when state law requires less discrimination protection for those with a disability than does the ADA. The ADA explicitly provides, per 42 U.S.C. §12201(b), that the ADA does not preempt state laws providing greater protection for persons with disabilities. Therefore, a state law providing less protection than the ADA to those with disabilities is preempted by the ADA. A state law at odds with a valid act of Congress is no law at all.
- Even apart from the ADA’s preemption provision, Universal’s construction of the ADA does not make any sense. Congress passed a sweeping law prohibiting discrimination unless discrimination is necessary. If compliance with state law were necessary, then any State could unilaterally nullify the ADA by enacting a state law requiring discrimination, which can’t possibly be right.
- If all state laws were insulated from title II’s reasonable modification requirement solely because they were state laws, state law would be an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting title II. The same analysis applies to title III.
- If a state imposed a requirement on businesses related to legitimate safety concerns, then compliance with that state law is necessary. However, compliance would be necessary because the rule promoted safety and not because the rule was a state law.
- Defendant’s argument that they will face criminal and civil penalties if they don’t have this eligibility criterion, simply does not fly in light of the supremacy clause. If a federal law requires Universal to allow Campbell to ride and state law prohibits it, then Universal must let Campbell ride. In other words, a discriminatory state law is not a defense to liability under federal law, rather it is a source of liability under federal law. If Florida were to seek an enforcement action or a declaratory judgment against Universal, Universal would be able to assert the ADA as a defense. In short, federal law trumps state law when the two conflict.
- When Justice Gorsuch was on the 10th Circuit, he stated that state officials relying on their compliance with discriminatory state laws as evidence of the reasonableness will normally find themselves proving their own liability and not shielding themselves from it. So, ADA liability does not get excused where discriminatory eligibility criteria exists because of state law.
Comparative Advantage Is Not Sufficient to Activate the Necessary Defense
- The mere fact that a manufacturer has more experience and therefore a comparative advantage in identifying safety risks does not make complying with the recommendations necessary when those recommendations are not in fact based upon actual risks.
- Only safety requirements addressing actual (emphasis in opinion), safety risks are necessary under the ADA.
- Congress enacted the ADA to address disability discrimination based upon stereotypes about disabilities. 42 U.S.C. §12101(a). So, it is not surprising that the ADA expressly prohibits discrimination against people “with disabilities” and those perceived as having a physical or mental impairment regardless of whether the impairment limits or is perceived to limit a major life activity. 42 U.S.C. §12102(3)(A).
- Stereotypes about what people with disabilities can or cannot do not justify exclusion under the ADA.
- A manufacturer imposed safety requirement is necessary only to the extent that it is related to actual risks to the health and safety of guests.
- A safety requirement imposed because of stereotypes is not necessary within the meaning of the ADA in light of how the ADA defines a disability. So, a manufacturer’s eligibility requirement, without more-i.e. based upon actual safety risks-does not qualify as necessary just because a manufacturer has a comparative advantage compared to a public accommodation in designing eligibility requirements.
- 28 C.F.R. §36.301(b) provides that safety requirements must be based upon actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
- The hazard analysis reveals no actual risks to people like Campbell. In fact, the parties stipulated that aside from identifying one risk involving a potential hazard for visually impaired patrons, the hazard analysis performed by two different entities identified no specific risks for anyone with a limp difference or other physical disability. Based upon the parties stipulation, the recommendation made to the manufacturer identified no safety related justification. Universal also does not suggest a different reason for why the recommendation of the manufacturer that such an inclusion was necessary.
Administrative Feasibility and Uniformity v. Necessary
- Universal’s claim that making particularized safety determinations about the inability or ability of the guests to safely ride is administratively infeasible is overstated in light of the record. That is, at this point in the case, Universal has not shown that administrative feasibility is relevant.
- Universal stipulated that aside from identifying one risk involving a potential hazard for visually impaired patrons, the hazard analysis identified no specific risks for anyone with a limp difference or other physical disability. So, it isn’t as though actual risks for people with certain limb differences were found and that risks specific to those with other types of limb differences being cost prohibitive existed. Instead, Universal stipulated that no specific risk for anyone with a limp difference was identified at all. Further, how a risk to a visually impaired rider has any relevance to a risk for those with limb differences is not self-explanatory.
- I strenuously disagree that it is not a far leap to include that direct threat to others also includes direct threat to self. If the DOJ felt that it did, it could have adopted the EEOC view of direct threat, which includes both direct threat to others and to self. See Chevron v. Echazabal, here. In fact, the Supreme Court in Chevron v. Echazabal, on page 82 of the opinion, specifically mentioned that DOJ and other agencies decided not to include direct threat to self in its regulations. They make a similar comment about Health, Education, And Welfare final implementing regulations in footnote 4 of that opinion. So, it simply is too far of a leap to assume that direct threat to others also includes direct threat to self. The distinction matters a great deal. The last couple years of my practice has seen me become involved in medical licensing matters whereby medical licensing boards via PHP’s attempt to force out persons with disabilities from healthcare professions on the basis of their disabilities. An issue that comes up frequently in those cases is the distinction between direct threat to others v. direct threat to self and others. From reading Chevron v. Echazabal, DOJ and other regulatory entities would have been perfectly within their rights to also include direct threat to self but they did not do so.
- This case has much wider implications than just amusement parks. As I mentioned above, in the licensing field “ability to practice safely,” arises frequently. This opinion emphatically says that the standard is direct threat and that any threat involving safety requirements must be legitimate safety requirements based upon actual risks and not upon stereotypes.
- The necessity defense is an affirmative defense. That is, the defendant has the burden of showing that an eligibility criteria that screens out persons with disabilities is necessary.
- Safety can be necessary with respect eligibility criteria but the criteria must be legitimate safety requirements based upon actual risks.
- It is possible that eligibility criteria besides a safety base criteria, that screen out people with disabilities could be necessary. It would be up to the defendant to show that such is the situation.
- Compliance with State law that discriminates against persons with disabilities is not by itself sufficient to activate the necessary defense. The supremacy clause simply won’t permit that.
- It isn’t unusual for Circuit Court opinions to cite to a lower court opinion by a sitting Justice of the Supreme Court. I view that as a situation where the appellate court is trying to add persuasiveness to its opinion and also telegraphing to a Justice on the Supreme Court that they should be aware of something they said previously if such a case comes up the Supreme Court.
- Manufacturers have an obligation to make sure that if they suggest our riders with disabilities be excluded from certain rides, they have objective evidence to show actual risks. An amusement park operator blindly relying on manufacturer’s guidance, when the manufacturer did nothing to figure out what actual risks were based upon scientific evidence, will not protect the amusement park from ADA liability.