As everyone knows, I keep a pipeline of cases to blog on. Sometimes, even with my pipeline of cases, I just get stuck. One of the things that my readers may not realize is that while my practice focuses on understanding the ADA so that the client understands how to comply with that law and related laws, “related laws,” really means something. For example, I have consulted on a case involving the interactive process with respect to the Fair Housing Act. I also have consulted on several cases involving the intersection of the Airline Deregulation Act, Title II of the ADA, the Air Carrier Access Act, and state negligence laws. All three of those cases (I actually consulted on the defense side), involved a passenger with a disability suffering a personal injury and then assessing what rules apply and what the situation was. So, when I saw a consent order with a record civil penalty imposed by the US Department of Transportation on American Airlines for violating the Air Carrier Access Act and other laws, here, I just felt I had to blog on it. It has been a while since I blogged on anything involving the Air Carrier Access Act. So, I thought it would be a good time to return to it. As usual, the blog entry is divided into categories and they are: consent order summary; applicable law; DOT’s facts and conclusions; American Airlines response; DOT decision; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Consent Order Summary

 

  1. DOT found that American Airlines failed in numerous cases to provide passengers with disabilities using wheelchairs with adequate enplaning, deplaning, and connection assistance, including assistance in moving within the terminal.
  2. American Airlines failed in numerous cases to provide adequate wheelchair assistance to passengers with disabilities from 2019-2023, and some of those cases resulted in injury to passengers.
  3. Inadequate wheelchair assistance includes untimely assistance, unsafe physical assistance, and undignified assistance.
  4. From 2019-2023, passengers reported that American Airlines mishandled thousands of passengers’ wheelchairs and scooters by damaging them or delaying their timely return.
  5. The order directs American Airlines to cease and desist from future similar violations of the Air Carrier Access Act and other statutory provisions and for American Airlines to pay $50,000,000 in civil penalties.

 

 

II

Applicable Law

 

  1. 14 C.F.R. Part 382 requires carriers to provide passengers with disabilities with assistance with enplaning and deplaning the aircraft, as well as connecting assistance and assistance in moving throughout the airport.
  2. 14 C.F.R. §382.95(a) requires carriers to promptly provide or ensure assistance requested by or on behalf of passengers with a disability in enplaning and deplaning the aircraft. That assistance must include, as needed, the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, onboard wheelchair, and ramps or mechanical lifts.
  3. 14 C.F.R. §382.91 requires carriers to provide or ensure assistance requested by or on behalf of of a passenger with a disability and transportation between gates to make a connection to another flight and assistance in moving from the terminal entrance through the airport to the gate for a departing flight, or from the gate to baggage claim and the terminal entrance for an arriving flight. This requirement also includes assistance in accessing key functional areas of the terminal and a brief stop at the entrance to a restroom upon the passenger’s request.
  4. 14 C.F.R. §382.125(c),(d) require carriers to provide for the checking and timely return of wheelchairs and scooters as close as possible to the door of the aircraft, so that passengers may use their own equipment to the extent possible and assure that there wheelchairs and scooters are among the first items retrieved from the baggage compartment.
  5. 14 C.F.R. §382.129(b) requires carriers to return wheelchairs, other mobility aids, and other assistive devices to the passenger in the condition in which they were received.
  6. 14 C.F.R. §382.141 requires carriers to ensure that airline personnel, including their contractors, dealing with the traveling public are trained to proficiency as appropriate to their job duties and responsibilities on the requirements of 14 C.F.R. Part 382. Airline personnel must also be trained to proficiency on the airline’s procedures in providing air travel to passengers with disabilities, and the use of the boarding and deplaning assistance equipment used by the carrier and appropriate boarding and deplaning assistance procedures that safeguard the safety and dignity of passengers if involved in providing such assistance.
  7. To the extent that the Air Carrier Access Act and Part 382 violations occurred in interstate air transportation, that meant there were also violations of 49 U.S.C. §§41702, 41310, 41712,

 

 

III

DOT’s Facts and Conclusions

 

  1. The Office of Aviation Consumer Protection investigation revealed a significant number of violations for failing to provide individuals using wheelchairs adequate enplaning and deplaning assistance, and assistance in moving within the terminal and connecting assistance. Three categories of those violations existed: cases of unsafe physical assistance provided to wheelchair users, including assistance resulting in direct harm or injury to the passenger; cases of undignified assistance provided to wheelchair users; and other cases that primarily concerned lack of prompt wheelchair assistance. In a footnote, “undignified assistance,” is defined to include instances of improper transfer assistance that disrobed passengers and wheelchair assistance failures and extreme delays resulting in passengers soiling themselves due to the inability to access the rest room.
  2. The Office of Aviation Consumer Protection investigation also uncovered numerous violations for failing to return passengers wheelchairs in a timely manner at deplaning and failing to return to wheelchairs in the condition in which they were received. Office of Aviation Consumer Protection reviewed consumer complaints filed with the Office of Aviation Consumer Protection against American Airlines between January 1 of 2019, and December 31, 2023, as well as formal complaints by the Paralyzed Veterans Association that alleged that the carrier mishandled passengers wheelchairs and scooters. The investigation found that American Airlines damaged or delayed the return of passenger’s power wheelchairs, manual wheelchairs, and scooters, leading to actual or heightened risk of physical harm and significant impacts on passengers mobility. Office of Aviation Consumer Protection also investigated an incident captured on video, of American Airlines personal mishandling a wheelchair at Miami International Airport by dropping it down a baggage ramp. In addition, from 2019 to 2023, American Airlines reported thousands of claims of mishandled wheelchairs and scooters. Office Of Aviation Consumer Protection found that over this period, American Airlines was one of the worst performers among reporting carriers in terms of both the total number wheelchair and scooter mishandling claims as well as the reported mishandling claims rate.

 

 

IV

American Airlines Response

 

  1. American Airlines in 2024 spent in excess of $175 million on services, infrastructure, training, and new technology to support passenger using mobility devices when traveling.
  2. American Airlines strongly believe that is substantially complies with the Air Carrier Access Act and Part 382, and is only entering into the agreement for settlement purposes without admitting any violation of any statute or regulation or waiving any statute of limitations or conceding DOT’s statement of applicable law or its recitation of facts and conclusions. American Airlines also disagrees with DOT’s interpretation of many aspects of the Air Carrier Access Act and Part 382. It also reserves the right to challenge the DOT’s legal interpretations and factual assertions in the future, including with respect to rulemaking.
  3. American Airlines is dedicated to providing a positive travel experience for all customers, which includes, among other things: 1) offering comprehensive wheelchair assistance throughout the airport terminal; 2) offering passengers with disabilities pre-boarding; 3) supplying attendance and equipment to assist passengers with an planing and deplaning; 4) ensuring that passengers with disabilities can bring their personal wheelchairs or other assistive devices with them on their flight; 5) allowing certain assistive devices to be carried on the plane if they meet size and safety criteria; and 6) storing larger devices like battery-powered wheelchairs in a preferential location and cargo and generally returning those devices on the jet bridge for passengers to use when they deplane.
  4. Moving an individual from one wheelchair to another, or from a wheelchair to their seat, is often a challenging interaction that has to account for and adapt to each customer’s specific circumstances and needs.
  5. American Airlines has established the first ever automated tag system for wheelchairs and assistive devices.
  6. American Airlines has invested significantly in airport infrastructure, including by installing wheelchair movers and lifts at its hubs and other airports with high mobility device traffic.
  7. American Airlines has deployed additional employees at large its hubs and gateways in support of providing coordination for accessibility devices across the airport.
  8. American Airlines has adapted its online customer profile system to allow customers to save travel preferences, including traveling with a mobility device or service animals.
  9. American Airlines created an Accessibility Council and Customer Accessibility Team in order to ensure continued focus on disability access.
  10. In 2023, American Airlines received approximately 7.9 million advanced requests for wheelchair assistance. That number does not count for the millions more request that American Airlines received and honored for customers requesting assistance after arriving at the airport. Considering that American Airlines received 9,717 disability related complaints of any kind, the complaint rate was about .1%, which means that nearly 100% of the time passengers requesting wheelchair assistance from American do not submit a complaint about the service provided.
  11. Comparing American Airlines performance from the first half of 2024 with the full year of 2022 revealed that American Airlines rate of clean mishandling was reduced by over 60%, and American Airlines anticipates that ongoing investment would drive that number down even further.
  12. American Airlines take complaints by customers very seriously and investigates every one of them. It routinely provides customers with compensation by way of trip credits, miles, vouchers, and cash in order to make the situation right. With respect to damage or delay to wheelchairs, American Airlines asserts that it pays for repairs, replacement, and loners.

 

 

V

DOT Decision

 

  1. In order to avoid litigation and without conceding the violations, American Airlines consent to the issuance of the order to cease and desist from future violations of the Air Carrier Access Act and Part 382 and to the assessment of $50,000,000 in compromise of potential civil penalties.
  2. American Airlines violated 14 C.F.R. §382.95 by failing to provide a prompt assistant to passengers with a disability and enplaning and deplaning the aircraft.
  3. American Airlines violated 14 C.F.R. §382.91 by failing to provide adequate assistant to passengers with a disability and moving within the terminal and in transportation between gates making a connection.
  4. American Airlines violated 14 C.F.R. §382.125 by failing to provide for the timely return of wheelchairs and scooters as close as possible to the door of the aircraft, so that passengers could use their own equipment to the extent possible and ensure that there wheelchairs and scooters were among the first items retrieved from the baggage compartment.
  5. American Airlines violated 14 C.F.R. §382.129 by failing to return wheelchairs and scooters to the passenger in the condition in which they were received.
  6. American Airlines violated 14 C.F.R. §382.141 by failing to ensure proficient training to which personnel and contractors concerning the requirements of Part 382, the carrier’s procedures concerning the provision of air travel to passengers with disabilities, and for those personnel involved in providing boarding and deplaning assistance, the use of the boarding and deplaning assistance equipment used by the carrier, and appropriate boarding and deplaning assistant procedures that safeguard the safety and dignity of passengers.
  7. $25 million of the assessed penalty is due and payable in three equal installments beginning 30 days after the date of the order and each year after that.
  8. $25 million of the assessed penalty gets credited to American for cost that American has incurred or will incur for:1) investments in equipment to reduce incidence of wheelchair damage, including wheelchair lifts at 24 or more airports in wheelchair movers at 43 or more airports; 2) investments in the systemwide wheelchair tagging system in order to reduce incidence of wheelchair delay; 3) goodwill compensation paid to affected passengers during the timeframe covered by the investigation; and 4) deployment of hub control center employees in 2024-2026 to coordinate wheelchair handling on a centralized, systemwide basis at large airports. American Airlines have to provide DOT by December 31, 2027 at the latest with supporting documentation containing a description of the expenditures associated with the $25 million credit.

 

VI

Thoughts/Takeaways

 

  1. The Air Carrier Access Act contains no private cause of action. So, passengers discriminated against on the basis of their disability or mistreated by air carriers only have recourse to Department of Transportation and to nothing else.
  2. Interesting about the complaint rate cited by American Airlines, as assuredly many people suffer damages to their wheelchairs but do not file a complaint, perhaps due to a lack of private right of action or for some other reason.
  3. This is a substantial penalty.
  4. The definition of an air carrier under the Air Carrier Access Act is actually quite broad and goes beyond what one thinks of in terms of airlines.
  5. For those traveling with service animals, American Airlines saving a passenger’s service animal information will make things much easier for such individuals.
  6. The Air Carrier Access Act is quite short and compliance is entirely driven by the DOT final rules.
  7. If anyone is wondering about the intersectionality of the Airline Deregulation Act, the ADA, the Air Carrier Access Act, and state negligence claims, it is a bit of a long story. The long and short of it is, that the DOT final regulations wind up being the liability standard for any personal injury claims that occur while the passenger is under the control of the air carrier.
  8. A civil penalty was involved. One wonders if American Airlines after Jarkesy, which we discussed here, could have challenged DOT’s ability to insist on a civil penalty at all and demand a jury trial to figure out what the penalty might be. Whether American Airlines would have received a lesser penalty in a jury trial than what it did in the consent order is a separate question.
  9. Since the Air Carrier Access Act is entirely regulatory driven, one wonders what that means post Loper Bright. See this blog entry for example.
  10. The consent order is definitely a warning shot for all other air carriers because every air carrier is dealing with the same exact issues.
  11. One place where Part 382 is lacking is in the area of Deaf, deaf, and hard of hearing accessibility. As a deaf individual that flies from time to time, I have experienced that deficiency personally.
  12. With respect to American Airlines Accessibility Council, I hope it has the full range of persons with disabilities on it because people with disabilities silo.