Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilitiesAir Carrier ...
About The Presenter• Curtis Edmonds– J.D., University of Texas• Program Manager, Richard WestAssistive Technology Advocacy...
About DRNJ• Disability Rights New Jersey is the stateProtection & Advocacy agency for NewJersey.– http://www.drnj.org/• Ea...
About the AT Act Programs• The Richard West Assistive TechnologyCenter is the state AT Act program forNew Jersey.– http://...
A Brief History of the ACAA• The ACAA was passed in 1986 tooverturn the result of a Supreme Courtcase, Paralyzed Veterans ...
A Brief History of the ACAA• The ACAA was signed by PresidentReagan, nine days before he met withSoviet Premier Gorbachev ...
A Brief History of the ACAA• The #1 song in the country on October 2,1986 was “Stuck With You,” by HueyLewis and the News....
A Brief History of the ACAA• Bill Buckner committed a famous ninth-inning error as the New York Mets cameback to defeat th...
A Brief History of the ACAA• The number-one movie at the box officewas “Crocodile Dundee.”Disability Rights New JerseyNew ...
A Brief History of the ACAA• And you could fly all of these airlines:Disability Rights New JerseyNew Jerseys designated pr...
ACAA TimelineDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
ACAA Basics• The ACAA was passed in the“nondiscrimination phase” of disabilitylaw, before the ADA ushered in the“accommoda...
ACAA Basics• 49 U.S.C. § 41705(a)– (a) In General.— In providing airtransportation, an air carrier, including(subject to s...
ACAA Basics• 49 U.S.C. § 41705(a)– (1) the individual has a physical or mentalimpairment that substantially limits one orm...
ACAA Basics• The ACAA is similar to Section 504 in thatit sets forth a simple, basicnondiscrimination law and requires afe...
ACAA Basics• The ACAA specifically applies to aircarriers.• It does not apply to the various otherentities responsible for...
Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
ACAA Regulations• The U.S. Department of Transportation,Federal Aviation Administration (FAA) isresponsible for:– Maintain...
ACAA Regulations• The ACAA regulations spell out:– Modifications of air carrier policies - 14C.F.R. § 382.13– Limitation o...
ACAA Regulations• The ACAA regulations spell out:– Requirement to provide notice - 14 C.F.R. §382.25-27– When a passenger ...
ACAA Regulations• The ACAA regulations spell out:– How information is provided to passengers -14 C.F.R. § 382.41-5– Access...
ACAA Regulations• The ACAA regulations spell out:– Boarding assistance - 14 C.F.R. § 382.91-105– In-flight services - 14 C...
ACAA Regulations• The ACAA regulations spell out:– Wheelchair stowage - 14 C.F.R. § 382.121-133– How air carriers must tra...
ACAA Update• In this presentation, we will focus on:– Recent changes to the ACAA regulations– Proposed upcoming changes to...
New ACAA Regulations• In the past 13 years, there have beenmultiple revisions to the ACAAregulations.• The FAA periodicall...
New ACAA Regulations• In 2000, the ACAA was amended toinclude foreign carriers providing serviceto American airports.• The...
New ACAA Regulations• The FAA published draft rulemaking inSeptember 2005 on the issue of medicaloxygen aboard airplanes.•...
New ACAA Regulations• The “final rule” for all of these threeproposals was published by the FAA inMay 2008, and went into ...
New ACAA Regulations• Why do regulations change?– Regulations change because technologychanges.– Regulations change becaus...
May 2009 FAA Revisions• The May 2009 revisions made severalmajor changes to the ACAAregulations, including:– Making new pr...
May 2009 FAA Revisions• Foreign carriers:– ACAA regulations apply to any flight betweena US airport and a foreign airport....
May 2009 FAA Revisions• Refusal to provide services– The FAA imported “direct threat” languagefrom the ADA into the regula...
May 2009 FAA Revisions• Airport accessibility– New requirement for relief areas for serviceanimals– New requirement that T...
May 2009 FAA Revisions• Captioning– New requirement that videos or DVDs playedon flight must be captioned.Disability Right...
May 2009 FAA Revisions• Service Animals– Air carriers can ask for your plan to let theanimal relieve itself on flights las...
May 2009 FAA Revisions• Service Animals– “Emotional support animals” require a letterfrom a doctor, psychiatrist or psycho...
May 2009 FAA Revisions• Service Animals– Miniature horses, pigs and monkeys are OKunless they cause a direct threat.– Only...
May 2009 FAA Revisions• Wheelchair stowage– Requires space for cabin storage of at leastone folding manual wheelchair– Whe...
May 2009 FAA Revisions• Oxygen– Passengers allowed to use (with notice) aventilator, respirator, CPAP, or oxygenconcentrat...
2011 NPRMs• In 2011, the FAA issued two new noticesof proposed rulemaking for the ACAAregulations.• The FAA has not issued...
2011 NPRM• June 2011 – Seat-Strapping– “Seat-strapping” is when an airline uses aseatbelt to strap a manual, folding wheel...
2011 NPRM• June 2011 – Seat-Strapping– Some commenters were concerned that thiscould stigmatize passengers who usewheelcha...
2011 NPRM• June 2011 – Seat-Strapping– Some commenters were concerned thatseat-strapping could cause damage towheelchairs,...
2011 NPRM• September 2011 – Web Sites and Kiosks– The FAA discussed whether air carriersshould have to make their websites...
2011 NPRM• September 2011 – Web Sites and Kiosks– Should smaller air carriers (like chartercarriers) be included?– What ab...
2011 NPRM• September 2011 – Web Sites and Kiosks– Should the FAA use WCAG or Section 508compliance rules?– Should there be...
2011 NPRM• September 2011 – Web Sites and Kiosks– How much is converting websites toaccessibility really going to cost?– H...
2011 NPRM• September 2011 – Web Sites and Kiosks– What standards should be used to makekiosks accessible?– Does every kios...
2011 NPRM• September 2011 – Web Sites and Kiosks– How much is all of this going to cost?– Is there a real benefit for trav...
2012 TAM• In 2012, the FAA put out a new“Technical Assistance Manual” for airlineemployees on the new rules.Disability Rig...
New ACAA Cases• Lopez v. Jet Blue Airways, 662 F.3d 593(2d Cir. 2011)Disability Rights New JerseyNew Jerseys designated pr...
Lopez v. JetBlue Airways• The plaintiff in Lopez was a person withreflex sympathetic dystrophy whorequested wheelchair ass...
Lopez v. JetBlue Airways• The plaintiff alleged that she experiencedanxiety and nightmares due to the delay.• She filed a ...
Lopez v. JetBlue Airways• “We agree with the Tenth and EleventhCircuits that the text and structure of theACAA manifests n...
Lopez v. JetBlue Airways• “The statute does not expressly provide aright to sue the air carrier, and that rightshould not ...
Lopez v. JetBlue Airways• “Accordingly, public transportationterminals, depots, or stations usedprimarily to facilitate ai...
New ACAA Cases• Two other federal circuit courts havesimilarly ruled that there is no right to suean airline for an ACAA v...
New ACAA Cases• The challenge for attorneys is to come upwith other ways, outside of the ACAA, tosue airlines in cases whe...
New ACAA Cases• The Lopez court suggested that oneapproach could be to request judicialreview from a federal circuit court...
New ACAA Cases• Gilstrap v. United Air Lines, Inc., 709 F.3d995 (9th Cir. 2013)Disability Rights New JerseyNew Jerseys des...
Gilstrap v. United Air Lines, Inc.• The plaintiff in this case had knee andback injuries that made it difficult for herto ...
Gilstrap v. United Air Lines, Inc.• She alleged that on several flights, Unitedrefused to provide her with a wheelchair –c...
Gilstrap v. United Air Lines, Inc.• She sued under Title III of the ADA, aswell as California state-law tort claims:– Negl...
Gilstrap v. United Air Lines, Inc.• The plaintiff did not sue under the ACAA.• Instead, she claimed that United‟s allegedf...
Gilstrap v. United Air Lines, Inc.• The federal district court in Californiaruled that the ACAA preempted plaintiff‟sCalif...
Gilstrap v. United Air Lines, Inc.• For example, federal drug law preemptsall state action in terms of testing andapprovin...
Gilstrap v. United Air Lines, Inc.• Combining preemption with cases wherethere is no right of access to sue wouldhave resu...
Gilstrap v. United Air Lines, Inc.• “In sum, we hold, first, that the ACAA andits implementing regulations preemptstate an...
Gilstrap v. United Air Lines, Inc.• “The ACAA does not, however, preemptany state remedies that may be availablewhen airli...
Gilstrap v. United Air Lines, Inc.• The Ninth Circuit dismissed the plaintiff‟sADA complaint.• The Gilstrap case was reman...
New ACAA Cases• Compass Airlines, LLC v. Montana Dept.of Labor and Industry, Hearings Bureau,--- F.Supp.2d ----, 2012 WL 6...
Compass v. MT Dep’t of Labor• Dustin Hankinson was appointed by theGovernor of Montana to serve on theMontana Human Rights...
Compass v. MT Dep’t of Labor• Mr. Hankinson was denied boarding on aflight from Missoula to Minneapolis withhis ventilator...
Compass v. MT Dep’t of Labor• Mr. Hankinson filed a complaint with theFAA.– He got an apology and a flight voucher fromCom...
Compass v. MT Dep’t of Labor• The FAA investigated, released itsfindings to Compass, and issued a letterof warning.• Mr. H...
Compass v. MT Dep’t of Labor• Compass then sought a federal injunctionagainst the Montana Human RightsBoard to stop their ...
Compass v. MT Dep’t of Labor• “The substantial regulations promulgatedby the DOT regarding the use ofelectronic respirator...
Compass v. MT Dep’t of Labor• “Nevertheless, the ultimate goal ofCongress of discouraging disabilitydiscrimination in comm...
Compass v. MT Dep’t of Labor• The court granted the preliminaryinjunction against the stateagency, enjoining their investi...
New ACAA Cases• Edick v. Allegiant Air, LLC, 2012 WL1463580 (D. Nev., 2012).Disability Rights New JerseyNew Jerseys design...
Edick v. Allegiant Air• The plaintiff in Edick was the wife of anindividual with a brain tumor.• The plaintiff‟s husband d...
Edick v. Allegiant Air• The husband experienced a fall in theparking garage at McCarran.• The wife found a bench for him t...
Edick v. Allegiant Air• The airline also refused to send awheelchair to the parking garage for thehusband.• The airline al...
Edick v. Allegiant Air• The court found that since the airline didnot control the parking garage, there wasno responsibili...
New ACAA Cases• Mikerina v. Delta Air Lines, Inc., 834F.Supp.2d 54 (D. Mass., 2011)Disability Rights New JerseyNew Jerseys...
Mikerina v. Delta Air Lines• The plaintiff in this case was a personwith a chronic neurological condition whofainted on a ...
Mikerina v. Delta Air Lines• The plaintiff and her family were allegedlyforced off the plane and had to spend aweek in Pol...
Mikerina v. Delta Air Lines• The court dismissed the plaintiff‟s ACAAclaim because it was preempted by theWarsaw Conventio...
New ACAA Cases• Foley v. Jetblue Airways, 2011 WL3359730 (N.D. Cal., 2011)– Plaintiff‟s state-law claim that websites andk...
New ACAA Cases• Glass v. Northwest Airlines, Inc., 798F.Supp.2d 902 (W.D. Tenn., 2011).– Airline did not violate ACAA regu...
DiscussionDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
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8 e edmonds air carrier access act update

  1. 1. Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilitiesAir Carrier Access Act UpdateCurtis EdmondsNational ADA SymposiumSan Antonio, TexasMay 15, 2013
  2. 2. About The Presenter• Curtis Edmonds– J.D., University of Texas• Program Manager, Richard WestAssistive Technology Advocacy Center atDisability Rights New Jersey– cedmonds@drnj.org– https://www.facebook.com/atacofdrnjDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  3. 3. About DRNJ• Disability Rights New Jersey is the stateProtection & Advocacy agency for NewJersey.– http://www.drnj.org/• Each state has its own P&A agency:– http://www.ndrn.org/en/ndrn-member-agencies.htmlDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  4. 4. About the AT Act Programs• The Richard West Assistive TechnologyCenter is the state AT Act program forNew Jersey.– http://www.drnj.org/atac• Each state has its own AT Act program.– http://resnaprojects.org/allcontacts/statewidecontacts.htmlDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  5. 5. A Brief History of the ACAA• The ACAA was passed in 1986 tooverturn the result of a Supreme Courtcase, Paralyzed Veterans of America v.Department of Transportation, whichfound that Section 504 did not apply tothe airlines.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  6. 6. A Brief History of the ACAA• The ACAA was signed by PresidentReagan, nine days before he met withSoviet Premier Gorbachev in Iceland.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  7. 7. A Brief History of the ACAA• The #1 song in the country on October 2,1986 was “Stuck With You,” by HueyLewis and the News.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  8. 8. A Brief History of the ACAA• Bill Buckner committed a famous ninth-inning error as the New York Mets cameback to defeat the Boston Red Sox in theWorld Series.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  9. 9. A Brief History of the ACAA• The number-one movie at the box officewas “Crocodile Dundee.”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  10. 10. A Brief History of the ACAA• And you could fly all of these airlines:Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  11. 11. ACAA TimelineDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  12. 12. ACAA Basics• The ACAA was passed in the“nondiscrimination phase” of disabilitylaw, before the ADA ushered in the“accommodations phase.”• The ACAA simply provides that airlinesmay not discriminate against passengerswith disabilities.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  13. 13. ACAA Basics• 49 U.S.C. § 41705(a)– (a) In General.— In providing airtransportation, an air carrier, including(subject to section 40105(b)) any foreign aircarrier, may not discriminate against anotherwise qualified individual on the followinggrounds:Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  14. 14. ACAA Basics• 49 U.S.C. § 41705(a)– (1) the individual has a physical or mentalimpairment that substantially limits one ormore major life activities.– (2) the individual has a record of such animpairment.– (3) the individual is regarded as having suchan impairment.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  15. 15. ACAA Basics• The ACAA is similar to Section 504 in thatit sets forth a simple, basicnondiscrimination law and requires afederal agency to develop regulations toput the discrimination policy into practice.• Unlike the ADA, there is not an affirmativeduty to accommodate anyone.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  16. 16. ACAA Basics• The ACAA specifically applies to aircarriers.• It does not apply to the various otherentities responsible for airportconstruction, airport services, and airportmaintenance.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  17. 17. Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  18. 18. ACAA Regulations• The U.S. Department of Transportation,Federal Aviation Administration (FAA) isresponsible for:– Maintaining and updating the ACAAregulations (14 C.F.R. Part 382)– Taking and investigating passengercomplaintsDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  19. 19. ACAA Regulations• The ACAA regulations spell out:– Modifications of air carrier policies - 14C.F.R. § 382.13– Limitation of passengers with disabilities onflights – 14 C.F.R. § 382.17– Procedures on passengers withcommunicable diseases - 14 C.F.R. § 382.21Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  20. 20. ACAA Regulations• The ACAA regulations spell out:– Requirement to provide notice - 14 C.F.R. §382.25-27– When a passenger with a disability needs anattendant - 14 C.F.R. § 382.29– Service charges not allowed - 14 C.F.R. §382.31Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  21. 21. ACAA Regulations• The ACAA regulations spell out:– How information is provided to passengers -14 C.F.R. § 382.41-5– Accessibility of airline facilities - 14 C.F.R. §382.51-7– Accessibility of aircraft - - 14 C.F.R. §382.61-71Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  22. 22. ACAA Regulations• The ACAA regulations spell out:– Boarding assistance - 14 C.F.R. § 382.91-105– In-flight services - 14 C.F.R. § 382.111– Service animal requirements - 14 C.F.R. §382.117Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  23. 23. ACAA Regulations• The ACAA regulations spell out:– Wheelchair stowage - 14 C.F.R. § 382.121-133– How air carriers must train employees - 14C.F.R. § 382.141– How air carriers handle complaints – 14 C.F.R.151-9Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  24. 24. ACAA Update• In this presentation, we will focus on:– Recent changes to the ACAA regulations– Proposed upcoming changes to the ACAAregulations– Recent court cases involving the ACAADisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  25. 25. New ACAA Regulations• In the past 13 years, there have beenmultiple revisions to the ACAAregulations.• The FAA periodically issues draft rules,requests public comment, and thenpublishes “final rules” which then updatethe regulations.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  26. 26. New ACAA Regulations• In 2000, the ACAA was amended toinclude foreign carriers providing serviceto American airports.• The FAA published draft rulemaking inNovember 2004 to apply the existingregulations to foreign carriers.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  27. 27. New ACAA Regulations• The FAA published draft rulemaking inSeptember 2005 on the issue of medicaloxygen aboard airplanes.• The FAA published draft rulemaking inFebruary 2006 on accommodations forpassengers who are deaf, hard ofhearing, or deaf-blind.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  28. 28. New ACAA Regulations• The “final rule” for all of these threeproposals was published by the FAA inMay 2008, and went into effect in May2009.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  29. 29. New ACAA Regulations• Why do regulations change?– Regulations change because technologychanges.– Regulations change because of history.– Regulations change because the lawchanges.– Regulations change because of newexperiences.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  30. 30. May 2009 FAA Revisions• The May 2009 revisions made severalmajor changes to the ACAAregulations, including:– Making new provisions for assistivetechnology devices, Segways, and CPAPmachines.– Updates security screening section to includeTSA.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  31. 31. May 2009 FAA Revisions• Foreign carriers:– ACAA regulations apply to any flight betweena US airport and a foreign airport.– ACAA regulations do not apply on flightsbetween foreign airports unless it‟s a layoveron a connecting flight with the same flightnumber (i.e., DFW to Heathrow to Cairo).Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  32. 32. May 2009 FAA Revisions• Refusal to provide services– The FAA imported “direct threat” languagefrom the ADA into the regulations.– A refusal to provide services must be safety-related and the passenger must pose a“direct threat” that cannot be accommodated.– “Direct threat” includes communicablediseases (like SARS) that are not disabilities.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  33. 33. May 2009 FAA Revisions• Airport accessibility– New requirement for relief areas for serviceanimals– New requirement that TVs in gate areasmust have captioning.– Obligation for accessibility at foreign airports.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  34. 34. May 2009 FAA Revisions• Captioning– New requirement that videos or DVDs playedon flight must be captioned.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  35. 35. May 2009 FAA Revisions• Service Animals– Air carriers can ask for your plan to let theanimal relieve itself on flights lasting morethan 8 hours.– Air carriers must acceptID, harnesses, paperwork, or “credible verbalassurance” that an animal is a serviceanimal.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  36. 36. May 2009 FAA Revisions• Service Animals– “Emotional support animals” require a letterfrom a doctor, psychiatrist or psychologist orLCSW.– No “unusual” animals allowed –snakes, reptiles, ferrets, rodents, andspiders.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  37. 37. May 2009 FAA Revisions• Service Animals– Miniature horses, pigs and monkeys are OKunless they cause a direct threat.– Only dogs allowed on foreign flights.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  38. 38. May 2009 FAA Revisions• Wheelchair stowage– Requires space for cabin storage of at leastone folding manual wheelchair– Wheelchairs must be “among the first” itemsunloaded from baggage (prior rules called for“prompt” return).Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  39. 39. May 2009 FAA Revisions• Oxygen– Passengers allowed to use (with notice) aventilator, respirator, CPAP, or oxygenconcentrator, subject to the device meetingFAA safety requirements.– Passengers must bring adequate batteries.– The FAA did not require airlines to provideoxygen.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  40. 40. 2011 NPRMs• In 2011, the FAA issued two new noticesof proposed rulemaking for the ACAAregulations.• The FAA has not issued final rules oneither of these NPRMs.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  41. 41. 2011 NPRM• June 2011 – Seat-Strapping– “Seat-strapping” is when an airline uses aseatbelt to strap a manual, folding wheelchairto an empty seat in order to stow it in anaircraft cabin.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  42. 42. 2011 NPRM• June 2011 – Seat-Strapping– Some commenters were concerned that thiscould stigmatize passengers who usewheelchairs.– Some commenters were concerned that thiscould cause fellow passengers to lose seatson full flights.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  43. 43. 2011 NPRM• June 2011 – Seat-Strapping– Some commenters were concerned thatseat-strapping could cause damage towheelchairs, especially if flight attendantswere not trained in how to do this.– Badly-strapped wheelchairs could becomeprojectiles on a turbulent flight.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  44. 44. 2011 NPRM• September 2011 – Web Sites and Kiosks– The FAA discussed whether air carriersshould have to make their websites andelectronic kiosks more accessible for peoplewith disabilities.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  45. 45. 2011 NPRM• September 2011 – Web Sites and Kiosks– Should smaller air carriers (like chartercarriers) be included?– What about travel agents and online bookingsites that sell airline tickets?– How should the FAA coordinate with futureDOJ regulations on website accessibility?Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  46. 46. 2011 NPRM• September 2011 – Web Sites and Kiosks– Should the FAA use WCAG or Section 508compliance rules?– Should there be an objective or a subjectivecriteria for whether a website is accessible ornot?– What about mobile websites?– Must the whole website be accessible?Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  47. 47. 2011 NPRM• September 2011 – Web Sites and Kiosks– How much is converting websites toaccessibility really going to cost?– How fast can any accessibility criteria beimplemented?– How do you handle compliance andenforcement issues?Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  48. 48. 2011 NPRM• September 2011 – Web Sites and Kiosks– What standards should be used to makekiosks accessible?– Does every kiosk have to be accessible?– Should accessible kiosks be phased in overtime?– Can existing kiosks be retrofitted?Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  49. 49. 2011 NPRM• September 2011 – Web Sites and Kiosks– How much is all of this going to cost?– Is there a real benefit for travelers withdisabilities to make kiosks accessible?– Can kiosks be made to be interoperable withother AT?– What about biometrics?Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  50. 50. 2012 TAM• In 2012, the FAA put out a new“Technical Assistance Manual” for airlineemployees on the new rules.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  51. 51. New ACAA Cases• Lopez v. Jet Blue Airways, 662 F.3d 593(2d Cir. 2011)Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  52. 52. Lopez v. JetBlue Airways• The plaintiff in Lopez was a person withreflex sympathetic dystrophy whorequested wheelchair assistance to get toher plane on a flight from New York JFKto Puerto Rico.• A delay in providing a wheelchair almostcaused her to miss her flight.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  53. 53. Lopez v. JetBlue Airways• The plaintiff alleged that she experiencedanxiety and nightmares due to the delay.• She filed a complaint with the FAA, butthey found no evidence that JetBlue hadviolated any regulation.• The plaintiff filed pro se in 2010, allegingan ACAA violation.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  54. 54. Lopez v. JetBlue Airways• “We agree with the Tenth and EleventhCircuits that the text and structure of theACAA manifests no congressional intentto create a private right of action in afederal district court.”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  55. 55. Lopez v. JetBlue Airways• “The statute does not expressly provide aright to sue the air carrier, and that rightshould not be implied because the statuteprovides an administrative enforcementscheme designed to vindicate fully therights of [passengers with disabilities].”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  56. 56. Lopez v. JetBlue Airways• “Accordingly, public transportationterminals, depots, or stations usedprimarily to facilitate air transportation arenot „public accommodation[s]‟ forpurposes of Title III of the ADA.”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  57. 57. New ACAA Cases• Two other federal circuit courts havesimilarly ruled that there is no right to suean airline for an ACAA violation:– Boswell v. Skywest Airlines, Inc., 361 F.3d1263, 1269–71 (10th Cir.2004).– Love v. Delta Air Lines, 310 F.3d 1347,1354–59 (11th Cir.2002).Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  58. 58. New ACAA Cases• The challenge for attorneys is to come upwith other ways, outside of the ACAA, tosue airlines in cases where an airline hasdiscriminated against an individual with adisability.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  59. 59. New ACAA Cases• The Lopez court suggested that oneapproach could be to request judicialreview from a federal circuit court ofcases where the FAA has found nowrongdoing by the airline.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  60. 60. New ACAA Cases• Gilstrap v. United Air Lines, Inc., 709 F.3d995 (9th Cir. 2013)Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  61. 61. Gilstrap v. United Air Lines, Inc.• The plaintiff in this case had knee andback injuries that made it difficult for herto walk.• She requested wheelchair assistancefrom United on several flights, including aflight to Canada.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  62. 62. Gilstrap v. United Air Lines, Inc.• She alleged that on several flights, Unitedrefused to provide her with a wheelchair –causing her to experience pain in walkingto the gate.• She alleged that United employees yelledat her and stated that she was notdisabled and did not need a wheelchair.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  63. 63. Gilstrap v. United Air Lines, Inc.• She sued under Title III of the ADA, aswell as California state-law tort claims:– Negligence– Negligent misrepresentation– Breach of duty of a common carrier– Intentional infliction of emotional distress– Negligent infliction of emotional distressDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  64. 64. Gilstrap v. United Air Lines, Inc.• The plaintiff did not sue under the ACAA.• Instead, she claimed that United‟s allegedfailure to follow the FAA regulations underthe FAA was negligence per se.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  65. 65. Gilstrap v. United Air Lines, Inc.• The federal district court in Californiaruled that the ACAA preempted plaintiff‟sCalifornia state-law tort claims.• Preemption occurs whenever a federalregulation or legal mandate takes over allstate jurisdiction.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  66. 66. Gilstrap v. United Air Lines, Inc.• For example, federal drug law preemptsall state action in terms of testing andapproving new prescription drugs.• Federal laws preempt state actions inregulating some employer-providedhealth insurance.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  67. 67. Gilstrap v. United Air Lines, Inc.• Combining preemption with cases wherethere is no right of access to sue wouldhave resulted in a Catch-22, wherebyplaintiffs could not sue in either federalcourt under the ACAA or in state courtunder state-law claims.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  68. 68. Gilstrap v. United Air Lines, Inc.• “In sum, we hold, first, that the ACAA andits implementing regulations preemptstate and territorial standards of care withrespect to the circumstances under whichairlines must provide assistance topassengers with disabilities in movingthrough the airport.”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  69. 69. Gilstrap v. United Air Lines, Inc.• “The ACAA does not, however, preemptany state remedies that may be availablewhen airlines violate those standards.”• “Tort plaintiffs may incorporate the ACAAregulations as describing the dutyelement of negligence, and rely on statelaw for the other negligence elements.”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  70. 70. Gilstrap v. United Air Lines, Inc.• The Ninth Circuit dismissed the plaintiff‟sADA complaint.• The Gilstrap case was remanded back tothe district court for determination ofwhether the plaintiff had actuallyexperienced damages under Californiastate tort law.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  71. 71. New ACAA Cases• Compass Airlines, LLC v. Montana Dept.of Labor and Industry, Hearings Bureau,--- F.Supp.2d ----, 2012 WL 6726428 (D.Mont., 2012).Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  72. 72. Compass v. MT Dep’t of Labor• Dustin Hankinson was appointed by theGovernor of Montana to serve on theMontana Human RightsCommission, which is under the MontanaDepartment of Labor.• The Montana Department of Laborinvestigates state civil rights complaints.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  73. 73. Compass v. MT Dep’t of Labor• Mr. Hankinson was denied boarding on aflight from Missoula to Minneapolis withhis ventilator.• The flight attendant was unaware of therules regarding boarding with a ventilator.• A CRO intervened, and Mr. Hankinsonwas allowed to board, but he refused.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  74. 74. Compass v. MT Dep’t of Labor• Mr. Hankinson filed a complaint with theFAA.– He got an apology and a flight voucher fromCompass.– Two flight attendants lost their job.– The pilot was suspended.– All Compass flight attendants had to undergoretraining.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  75. 75. Compass v. MT Dep’t of Labor• The FAA investigated, released itsfindings to Compass, and issued a letterof warning.• Mr. Hankinson filed a complaint with theMontana Human Rights Bureau.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  76. 76. Compass v. MT Dep’t of Labor• Compass then sought a federal injunctionagainst the Montana Human RightsBoard to stop their investigation on thegrounds that the ACAA had preemptedstate law claims.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  77. 77. Compass v. MT Dep’t of Labor• “The substantial regulations promulgatedby the DOT regarding the use ofelectronic respiratory devices bypassengers of commercial air carriers aredetailed, unambiguous, and expansive.”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  78. 78. Compass v. MT Dep’t of Labor• “Nevertheless, the ultimate goal ofCongress of discouraging disabilitydiscrimination in commercial airtransportation has been furthered by theretraining of the Compass Airlines flightstaff and pilots.”Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  79. 79. Compass v. MT Dep’t of Labor• The court granted the preliminaryinjunction against the stateagency, enjoining their investigation andhearings process.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  80. 80. New ACAA Cases• Edick v. Allegiant Air, LLC, 2012 WL1463580 (D. Nev., 2012).Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  81. 81. Edick v. Allegiant Air• The plaintiff in Edick was the wife of anindividual with a brain tumor.• The plaintiff‟s husband died before thecase was resolved.• The couple was flying from McCarranAirport in Las Vegas to Eugene, Oregon.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  82. 82. Edick v. Allegiant Air• The husband experienced a fall in theparking garage at McCarran.• The wife found a bench for him to sit on inthe garage, and then took the baggage tothe terminal.• At the ticket counter, the airline refused tocheck in the bags.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  83. 83. Edick v. Allegiant Air• The airline also refused to send awheelchair to the parking garage for thehusband.• The airline also refused to let the wifeleave the bags at the counter.• The wife tried to get the husband to walkto the ticket counter, but he fell again.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  84. 84. Edick v. Allegiant Air• The court found that since the airline didnot control the parking garage, there wasno responsibility under the ACAA toprovide wheelchair service.• The court found that the airline did notbreak its baggage policy.• Plaintiff‟s claims were preempted.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  85. 85. New ACAA Cases• Mikerina v. Delta Air Lines, Inc., 834F.Supp.2d 54 (D. Mass., 2011)Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  86. 86. Mikerina v. Delta Air Lines• The plaintiff in this case was a personwith a chronic neurological condition whofainted on a flight from Moscow to NewYork.• Although she explained the situation,Delta diverted the flight to Warsaw,Poland.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  87. 87. Mikerina v. Delta Air Lines• The plaintiff and her family were allegedlyforced off the plane and had to spend aweek in Poland because of a 2010volcanic explosion that caused air trafficdelays across Europe.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  88. 88. Mikerina v. Delta Air Lines• The court dismissed the plaintiff‟s ACAAclaim because it was preempted by theWarsaw Convention, an internationaltreaty regarding losses experienced bypassengers aboard international flights.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  89. 89. New ACAA Cases• Foley v. Jetblue Airways, 2011 WL3359730 (N.D. Cal., 2011)– Plaintiff‟s state-law claim that websites andkiosks were not accessible preempted byACAADisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  90. 90. New ACAA Cases• Glass v. Northwest Airlines, Inc., 798F.Supp.2d 902 (W.D. Tenn., 2011).– Airline did not violate ACAA regulations inwrongful death of passenger who fell downescalator by making him wait ten minutes forwheelchair assistance in Memphis airport.Disability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities
  91. 91. DiscussionDisability Rights New JerseyNew Jerseys designated protection and advocacy system for people with disabilities

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