Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

air carrier Access act

DOT Final Statement of Enforcement Priorities Regarding Service Animals

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Airplane

 

peacock
On a plane?

 

On a plane?

Last week, I had the opportunity to attend the Olmstead at 20 conference held at Georgia State law school here in Atlanta Georgia. Hats off to Susan Goico who led the organization of the conference. It brought together leading people from all over the country who are doing the work of disability inclusion. It was absolutely fabulous, and I met a lot of great people. Some of whom I had already knew and had been in touch with, but had never met. Congratulations again for a great conference.

 

With respect to how I go about finding something to blog on, sometimes my pipeline runs really low. Sometimes, I get a whole bunch of things in my pipeline at once, and then I have to figure out which one to blog on. Today’s blog entry is one of those situations where a whole bunch of things wound up in my pipeline at once. After reviewing my pipeline and seeing what the legal blogosphere is up to, I felt I had no choice but to blog on the final statement of enforcement priorities regarding service animals issued by the Department of Transportation last week. My colleague, Richard Hunt, has already done a blog on this here. His blog entries are always provocative. He does go over what the rules say, and so much of what I say in this blog entry will overlap. Of course, my perspective is always very different. So here goes. My thoughts are contained throughout. That said, ¶ ¶ 20-22 contain entirely my thoughts.

 

  1. The guidelines are voluntary. Well, not really. That is, this an enforcement guidance. So, it telegraphs to the airlines exactly how the Department of Transportation will proceed if it gets a complaint. Therefore, airlines would be wise to adjust accordingly, and DOT says as much in the guidance document. The voluntary part of it comes from understanding this blog entry, where we discussed Kisor v. Wilkie. As discussed there, Auer deference is barely hanging on. Since this document is a guidance and not formal rulemaking, it is anybody’s guess as to what kind of authority this document will be given. As such, compliance with this document is voluntary. Of course, failure to comply with the document will expose that particular airline to enforcement action. If the airline chooses to fight that despite having notice at to what the Department of Transportation is going to do, it will be up to the airline to convince a court that Auer deference is not warranted in this situation.
  2. The guidance still makes what I feel is an arbitrary distinction between service animals for those with physical disabilities and service animals for those with psychiatric disabilities. The DOT responded to that by saying it would have to take rulemaking (a plan to issue a notice of proposed rulemaking will be forthcoming at some point), to change that since the regulations themselves have that distinction. In the meantime, I do believe DOT regulations making a distinction between psychiatric service animals and service animals for those with physical disabilities are arbitrary and in violation of the Administrative Procedure Act. I do understand why the DOT felt constrained not to change the distinction in this guidance. It is pretty clear from our blog entry discussing the current state of Auer deference that the DOT could not make such a change in a guidance. Rather, such a change will have to come from rulemaking. I do understand why a rational distinction could be made between a psychiatric service animal, a service animal for those with physical disabilities v. an emotional support animal. That said, putting together in one category psychiatric service animals, which go through an incredible amount of training, and an emotional support animal, which may have little or no training at all, makes little sense and to my mind and is completely arbitrary. Viewing the regulations in a historical context, I suppose I can see how the distinction evolved. However, we know a lot more about psychiatric service animals and service animals assisting people with disabilities than we did back then. The distinction between psychiatric service animals and service animals for those with physical disabilities is simply untenable.
  3. The guidance uses the terminology of service animal, ESA (emotional support animal), and PSA (psychiatric service animal). However, while most of the time in the guidance DOT uses “service animal,” to cover a situation of a service animal for a person with physical disabilities, at other times it uses the term “service animal,” as a catchall category for service animals, ESA’s and PSA’s. That doesn’t help anything. It just really makes things confusing.
  4. What wound up being this document received 94 comments, mainly from disability rights advocates and the airlines.
  5. DOT will prioritize ensuring that the most commonly recognized service animals (dogs, cats, and miniature horses) are accepted for transport. Airlines will not be subject to enforcement action if they continue to deny transport to snakes, other reptiles, ferrets, rodents, and spiders. However, categorical refusal to transport other animals or species will subject airline to potential enforcement action. The emphasis here is, “categorical.” DOT also notes that an animal regardless of its kind it is can be barred from a flight depending on a variety of factors, two large; to heavy; poses a direct threat to the health or safety of others; or would cause a significant disruption in cabin service.
  6. A single individual can travel with up to a total of three animals. The animals can be a combination of one emotional support animal and then a psychiatric service animal and/or what DOT calls a service animal. Airlines cannot put a limit on the total number of service animals/ESA on any flight.
  7. Airlines cannot limit the number of passengers with a disability on a particular flight.
  8. DOT will focus its resources on ensuring that airline do not require advanced notice for passengers with physical disabilities traveling with service animals unless the flight segment is for eight hours or more. The current regulations allow for advanced notice to be required with respect to emotional support animals and psychiatric service animals. DOT admits that the current regulations discriminate against passengers with psychiatric disabilities, but reserves that issue for future rulemaking.
  9. Airlines can continue to seek credible verbal assurance that the passenger is an individual with a disability and that the animal is a service animal by asking a variety of questions. Those questions include question directed to the passenger’s need for service animal. For example, one question could be, “how does your animal assist you with your disability?” This sounds good in theory, but I have trouble understanding how this gets carried out as a practical matter, especially in the context of an animal flying on a plane.
  10. Verification of the animal as an emotional support animal or psychiatric service animal in the lobby is perfectly okay but not for service animals assisting people with physical disabilities. DOT regulations require ESA and PSA users to check in one hour before the check-in time for the general public. DOT does say they intend to take action against airlines requiring passengers with physical disabilities using a service animal to check in at the lobby of an airport.
  11. DOT does not intend to take action against an airline asking service animal user to present documentation relating to a service animal’s vaccination, training, or behavior, so long as it is reasonable to believe that the documentation will assist the airline in determining whether an animal poses a direct threat to the health or safety of others. That said, DOT admits that the regulations are unclear as to whether the regulations are violated if an airline requires additional documentation to determine whether a service animal poses a direct threat. Not helpful is that direct threat isn’t defined. In ADA parlance, we know what a direct threat is, and we have discussed that many times, such as here. However, when you are dealing with an individual traveling with an animal on an airplane in a highly stressful situation, trying to figure out whether that animal might be a direct threat has to be an extremely difficult endeavor.
  12. DOT does not intend to take action against airlines asking ESA or PSA service animal users to present such documentation of vaccination, training, or behavior up to 48 hours before his or her flight. That said, airlines need to be careful that the documentation requirements are not being used to prevent passengers with disabilities from traveling with their service animals. That is, another way to think about it, is that DOT will be watching to see whether such policies screen out people with disabilities.
  13. With respect to controlling a service animal for those with physical disabilities, an ESA, or a PSA on the plane, tethering and similar means of controlling an animal permitted by the ADA are one reasonable means of controlling service animals in the aircraft cabin. Other thing to be thinking about with respect to reasonableness include: the size and species of the animal; the rights of other passengers to enjoy their own foot space; and the continued ability of the animal to provide emotional support or perform a task while being restrained if kept in a pet carrier.
  14. Breed restrictions are out. That is, Delta Air Lines recently put in a policy saying pit bull type dogs cannot fly on flights. DOT says airlines can’t do that as evidence doesn’t exist that an animal poses a direct threat simply because of the kind of breed it is. DOT continues to stand by its June 22, 2018 public statement from its enforcement office that a limitation based exclusively on breed of the service animal is not allowed under the Air Carrier Access Act and such restrictions are inconsistent with current regulations. On the ADA side, we already know from this blog entry, that breed restrictions are out.
  15. Airlines are perfectly within their rights to ban the transport of service animals for those with physical disabilities, ESA’s, and PSA’s that are younger than four months as the training service animals have to go through takes time.
  16. Refusal of an airline to accept ESA’s or PSA’s over 65 pounds won’t wash and is prohibited by the regulations. DOT notes that airlines have other means of ensuring safety for large animals aside from banning them outright. For example, DOT regulations already allow an animal to be excluded if it is too large or too heavy to be accommodated in the specific aircraft at issue. Even so, a categorical ban is out.
  17. DOT regulations clearly prohibit a policy of not accepting PSA’s on flights lasting eight hours or more. That said, airlines can require 48 hours advance notice and check-in one hour before the check-in time for the general public in order to accommodate any service animal on a flight scheduled to last eight hours or more.
  18. Requiring that medical forms found on the airlines own website be the only forms that can be accepted for purposes of approving an ESA or PSA is out. That is, airlines may ask or encourage a passenger to request that a licensed mental health profession or treating the passenger fill out the airline’s own proprietary medical forms. However, if a different form is submitted meeting the requirements set forth in the regulations, airlines cannot reject the request for a PSA or an ESA.
  19. DOT regulations are violated where an airline requires an owner of a service animal for a person with a physical disability to present documentation related to that animal’s vaccination, training, or behavior before the check-in time for the general public. Such conduct violates the advanced notice provisions of the DOT regulations and DOT will seek enforcement action.
  20. Seems to me that this enforcement guidance tries to have it every which way. As a result, it just confuses the issue. It doesn’t help that DOT uses the term “service animal,” in two different ways throughout the document. The guidance is helpful in some respects and not helpful at all in other respects. As a practical matter, it is going to make the jobs of airlines much more difficult. It also continues the entirely unsupportable distinction between psychiatric service animals and service animals for those with physical disabilities. I understand why DOT thought that it could not erase that distinction because a guidance is not formal rulemaking, but nevertheless, the distinction is entirely arbitrary and simply not supportable.
  21. It isn’t a cure-all to say that the DOT by regulation should only allow psychiatric service animals and service animal for those with physical disabilities to fly on airplanes and completely eliminate emotional support animals. Even there, how would such a system be put in place to ensure that the animal was a service animal? For example, one would have to be careful that such a system would not eliminate the ability of an individual to train the animal to be a service animal.
  22. While we are comfortable with the concept of direct threat in terms of ADA matters, figuring that out for an animal about to fly on an airplane would have to be an extraordinarily difficult thing to do. It is entirely possible that an animal may never be a direct threat outside of flying on an airplane, but could be on the airplane itself because flying on an airplane is such an unusual and stressful situation. In fact, it is entirely possible that the owner of the animal itself, particularly where an ESA is involved, wouldn’t even know. That said, I do know places training service animals to assist those with physical or psychiatric disabilities will, oftentimes if not invariably, as part of their training, have the animals fly on airplanes. I don’t know if every place that does training for psychiatric service animals or service animals for those with physical disabilities take that step with respect to training their animals, but I do know that many, if not all, do.

Accommodating Nut Allergies

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I know it has been awhile since I did a blog entry, but I have a really good excuse. The last day of May was my daughter’s last day of her freshman year in high school. Then, the following week dealt with chasing her around and also going to Portland Maine for the ABA Law Practice convention. Beautiful country up there. Then, when I came back, I had to make sure that my daughter had everything she needed and was all packed to go off to overnight camp for four weeks in the Georgia mountains. It is her second year there, and so we are optimistic that she will have an even better time than last year, and she liked it a lot last year. I got her off the camp yesterday morning. So, my wife and I are now empty-nesters for the next four weeks.

Today’s blog entry is a twofer. That is, one Department of Transportation letter and one case. In both cases, the plaintiffs were represented by Mary Vargas of the law firm Stein and Vargas. Full disclosure: I refer probably three cases a month to Mary. She and her firm do fabulous work, and it is not unusual for me to blog on her cases. Also, with respect to the case that we are going to discuss, my colleague Richard Hunt, beat me to it here. Richard’s blog entries are always provocative. He and I are going to be presenting on two different webinars in Dallas, Texas, on June 26 and June 27. The difference in our perspectives should make for a very lively webinar. The two webinars will discuss the whole deal with service animals and emotional support animals under federal laws and separately, the wild west of Internet accessibility litigation. With respect to signing up for the first seminar dealing with animals under federal laws, you can do so here if you are a member of the Federal Bar Association and here if you are not. As usual, the blog entry is provided into categories and they are: DOT letter facts and holding; DOT letter takeaways; JD v. Colonial Williamsburg foundation introduction and facts; majority reasoning vacating summary judgment and remanding case for further proceedings; dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. This blog entry is unusual in that you might get away with respect to the JD v. Colonial Williamsburg sections of the blog entry just reading the facts and the takeaways. I don’t recommend it, but it’s possible as the thought/takeaways section evolved into something rather different this time.

I

DOT Letter Facts and Holding

May 21, 2019 letter from the General Counsel’s office of the US Department of Transportation involving American airlines and a person with severe peanut allergies.

This matter involved a seven-year-old girl with a severe allergy to peanuts, tree nuts and seeds and at risk of anaphylactic shock if she is exposed to or ingests these allergens. Accordingly, upon arrival at the airport to take an American Airlines flight, her father identified her daughter’s severe food allergy to an agent and requested pre-boarding in order to wipe down their assigned seats and tray tables. The American Airlines agent refused the request to pre-board. Also, it was alleged that the agent became hostile when the family identified the disability as a food allergy. A similar set of occurrences occurred in advance of the return flight from Charlotte to Portland.

American Airlines asserted that unlike some carriers, it doesn’t serve peanuts. However, it does serve other nut products. While the airline cleans its aircraft regularly, those cleanings are not designed to ensure the removal of nut allergens nor is its air filtration system designed to ensure the removal of nut allergens. Finally, American Airlines indicated that other customers can bring peanuts or tree nuts on board. Subsequent to the complaint being filed with the Department of Transportation, American Airlines amended its pre-boarding policy to allow pre-boarding for nut allergies effective December 2018.

Based upon the above facts, the Department of Transportation concluded that passengers with severe nut allergies are passengers with disabilities for purposes of the Air Carrier Access Act. Further, when a passenger with a severe allergy asks for pre-boarding to wipe down seating surfaces, that passenger is requesting additional time to be seated because from the passenger’s perspective, the seating area cannot be safely access unless totally wiped down. Accordingly, the Department of Transportation believes that when an airline fails to allow passengers with severe nut allergies to pre-board to wipe down seating services, 14 C.F.R. §382.93 is violated, and therefore, American Airlines gets a warning from the Department of Transportation.

II

DOT Letter Takeaways

  1. 14 C.F.R. §382.93 requires carriers to offer pre-boarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, store accessibility equipment, or be seated. Department of Transportation is going on record here that nut allergies are a disability.
  2. Since Delta basically owns Atlanta, has 80% of the gates I have read, Delta is pretty much the option for flying out of Atlanta. Southwest does have a hub here, but I can never get used to the cattle call on Southwest. Also, I have always enjoyed the Delta experience. That said, I know Southwest has a lot of fans out there. What I am trying to say is that Delta is one of those airlines offering nuts on its flights. I happen to love nuts, and they can be healthy too. In fact, just last week, on my way to and back from Portland, Maine, I had almonds as my snack with my usual tomato juice on ice. It would be hard to say how many people on Delta choose nuts for their snack. It would make sense that this family would choose an airline not offering nuts. I suppose this family would have to fly as a group to ensure that a person sitting next to their daughter does not eat nuts. Apparently, the aircraft filtration system works for the daughter so long as her area is wiped down. That may or may not be true for everyone.
  3. The Air Carrier Access Act, as we have discussed here, contains no private cause of action. So, it is remarkable that an attorney of Mary’s stature took on the filing of a matter with the Department of Transportation.

III

J.D. v. Colonial Williamsburg Foundation Introduction and Facts

As I mentioned above, I was first alerted to this case by Richard Hunt’s blog entry on it. I know Richard quite well. His blog entries are always very thought-provoking. He is also extremely knowledgeable about title III of the ADA and the Fair Housing Act as well. He and I communicate regularly. It also is not unusual for he and I to discuss the same cases since our perspectives are so different from each other. The particular blog entry where he discussed this case was so thought-provoking that I had people encouraging me to write my own blog entry on this. Finally, I have warned Mary that this blog entry may not go precisely as she would like, and she was okay with that. Even so, this blog entry has a different take on the case from Richard’s. I do hope you can join us for our webinars in a couple of weeks. I have never actually met Richard in person, and I am looking forward to doing so.

Facts:

JD is an 11-year-old boy suffering from several health problems and experiences a host of symptoms whenever he ingests gluten. Those symptoms include: significant constipation; abdominal pain; foot pain; numbness; cognitive impairment; elevated liver enzymes; and temporary loss of consciousness. The diagnosis is either celiac disease or non-celiac gluten sensitivity. For such a condition, the only medically accepted treatment is a strict gluten-free diet, and JD’s physician is of the opinion that a gluten-free diet is medically necessary for JD. Further, JD’s parent testified that his health significantly approved once he is on a strict gluten-free diet. However, whenever he accidentally ingests gluten even in trace amounts, the symptoms come crashing back. Accordingly, JD’s parents regularly prepare his food and use separate tableware to ensure that he can participate in school parties, celebrations, and meals to the greatest extent possible. Although there are some restaurant his parents do trust, in general, they no longer eat out as a family due to the risk of gluten exposure.

The school went on a field trip to Colonial Williamsburg. That trip included dinner at Shields Tavern. The restaurant has a policy against allowing outside food into its restaurant subject to two exceptions: 1) parents can bring baby food or snacks for infants and toddlers; and 2) patrons may bring cakes and wine for a band subject to a plating and corkage fee. Shields Tavern also appears to allow outside food at the discretion of the manager (emphasis mine).

Months before the trip, JD’s father informed the school that he and JD wouldn’t be eating at any of the restaurants but instead would bring their own food. However, nothing in the record suggested that the school relayed that message to the restaurant. In fact, an invoice from Colonial Williamsburg showed that the school placed an order for two gluten-free meals at Shields Tavern. The parties disputed whether those meals were intended for JD and his father.

When JD and his father arrived at the restaurant, they sat down at a two-person table. The father informed a server not to bring out any food for them. He then unpacked a cooler filled with plates, cups, and utensils, and began making a gluten-free chicken sandwich. Another server told JD’s father that he couldn’t bring in outside food because it would violate the health code. The father then asked to speak to the manager, who confirmed the policy, and insisted that they would have to eat their food outside. The head chef soon arrived and offered to prepare a gluten-free meal for JD.

The Virginia Health Code prohibits food prepared in a private home from being used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services. That code also requires that food that is unsafe or contaminated must be rendered unusable and discarded.

According to Colonial Williamsburg, the head chef had already prepared the gluten-free meals based on the order placed by the school. JD’s father testified that the meals were not yet prepared and that the head chef offered to prepare them on the spot. The father alleged that he did not trust the tavern to be able to prepare gluten-free meals after preparing fried chicken meals for the other guests. The court said that the District Court properly viewed these facts in the light most favorable to JD.

IV

Majority’s Reasoning Vacating the District Court’s Grant of Summary Judgment and Remanding the Case for Further Proceedings

  1. The ADA was enacted to remedy widespread discrimination against people with disabilities and to provide clear, strong, consistent and enforceable standards addressing such discrimination.
  2. Title III provides that no individual can be discriminated on the basis of disability in the equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  3. Prevailing under title III of the ADA means a plaintiff has to show: 1) he is a person with a disability within the meaning of the ADA; 2) the defendant owns, leases, or operates a place of public accommodation; and 3) the defendant discriminated against him because of his disability.
  4. The parties did not dispute that Shields Tavern was a place of public accommodation. They did dispute whether JD was disabled and whether he was discriminated against because of his disability.
  5. The ADA defines a disability as a physical or mental impairment substantially limiting one or more major life activities. Eating is a major life activity.
  6. Viewing the facts in the light most favorable to the plaintiff, the district court correctly believed that JD’s impairment qualified as a disability under the ADA.
  7. Any time you consider whether an impairment substantially limits an individual in a major life activity, that has to be looked at broadly in favor of expansive coverage. That approach is consistent with the purpose of the amendments to the ADA. Finally, the amendment to the ADA make clear that whether a major life activity is substantially limited has to be decided without regards to any mitigating measures, including learned behavioral modifications.
  8. JD submitted extensive evidence about the serious consequences to his health when he ingests gluten.
  9. While no one can eat whatever he or she desires without experiencing some negative health effect, persons with disabilities who have a disability due to severe dietary restrictions must be allowed to enjoy the protections of the ADA. Unlike a person with simple diet restrictions, JD must monitor everything he eats and there is no margin for error. Accordingly, the District Court correctly determined that a genuine dispute of material fact existed as to whether JD was disabled within the meaning of the ADA.
  10. 42 U.S.C. §12182 is the failure to accommodate provisions of title III of the ADA. That particular provision requires a place of public accommodation to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities in the absence of a fundamental alteration.
  11. Proving up a claim under 42 U.S.C. §12182 involves showing: 1) whether the requested modification is necessary for the individual with a disability; 2) whether it is reasonable; and 3) whether it would fundamentally alter the nature of the public accommodation. For each element, the ADA requires an individualized inquiry based upon the particular circumstances of that case.
  12. In determining whether a modification is necessary, the Fourth Circuit uses a like experience standard. That is, you start by considering how the facility is used by persons without disabilities and then consider what are the necessary and reasonable steps to provide guests with disabilities with a like experience.
  13. The District Court erred by not drawing the factual inferences stemming from JD’s history of repeatedly getting sick when eating purportedly gluten-free meals prepared by commercial kitchens, which he says shows that he was at a significant risk had they accepted the gluten-free meal offered by the restaurant.
  14. In a footnote, the court could not see how sitting at a restaurant and not eating would have provided JD a like experience to the people without disabilities.
  15. The necessary inquiry requires an individualized inquiry into the plaintiff’s capacity. Here, the evidence showed that JD repeatedly became sick when exposed to gluten at restaurants and that happened despite his parents best effort to ensure gluten-free meals.
  16. While it is true that the restaurant averred that rigorous protocols existed for preparing gluten-free needles and that a jury might well reject JD’s evidence about the severity of his gluten intolerance and find that the restaurant’s protocols were sufficient to account for his disability, JD did put forth enough evidence to raise a genuine dispute of material fact as to whether that accommodation sufficiently accounted for his disability. So, the District Court’s granting of summary judgment that the accommodation proposed was not necessary must be overturned.
  17. Whether an accommodation is reasonable is a fact specific inquiry looking to whether modification is reasonable under the circumstances. One of the things to think about is whether the cost of the accommodation does not clearly exceed its benefits.
  18. JD pointed out that the restaurant allows parent to bring in outside food for toddlers and infants. The record also shows that two weeks after the events in this case, the restaurant granted a similar accommodation to a child visiting a different one of its restaurants. In that situation, the restaurant was notified before the child’s visit of severe allergies and Colonial Williamsburg determined that it could not accommodate him. So, it allowed the child to eat a homemade meal in the restaurant. The fact that Colonial Williamsburg granted a similar request speaks directly to the reasonableness of JD’s request.
  19. Colonial Williamsburg’s argument that advanced notice is required makes no sense. Nothing in title III of the ADA or the implementing regulations mandate prior notice at a place of public accommodation. In fact, the regulations emphasized that advanced notice requirement are generally undesirable and should only be used when necessary to ensure the accommodation can be made.
  20. In this situation, advanced notice wasn’t necessary because JD was not asking the restaurant to take any action or provide any additional services. Further, the restaurant allows outside food for toddlers and infants without prior notice.
  21. With respect to the state health code provision, Virginia case law has never interpreted the provision. The Fourth Circuit believed that the provision was actually vague because while the provision does prohibit restaurants from serving food prepared in a private home, that provision doesn’t necessarily prohibit customers from bringing in outside food.
  22. While a place of public accommodation can impose legitimate safety requirements necessary for safe operation per 28 C.F.R. §36.301(b), those safety requirement don’t always override a reasonable modification request. Further, it is not even clear here whether JD’s request posed a safety concern in the first place since there is no evidence of the risk of contamination from JD’s meal and the restaurant permits guest to bring outside food in other circumstances.
  23. The defendant bears the burden of proof when it comes to fundamental alteration, and the Fourth Circuit holds that a genuine issue of material fact exists here as well.
  24. A fundamental alteration is anything that is a modification to an essential aspect of the place of public accommodation’s program.
  25. Food service is an essential aspect of the restaurant.
  26. No evidence exists that Colonial Williamsburg has been deluged with request from people seeking to bring in outside food to the extent that it could not give individualized attention to the handful of requests that it might receive.

V

Dissenting Opinion by Judge Wilkinson

  1. Judge Wilkinson also refers to 42 U.S.C. §12182(b)(2)(A)(ii), title III failure to accommodate provisions with respect to policy, practices, and procedures.
  2. He also agrees with the three-part inquiry for handling cases under this regulation.
  3. Necessity is determined with respect to the person with a disability ability to obtain full and equal enjoyment of the place of public accommodation. That means the ADA requires a customer with a disability to have an experience that is as equal as possible.
  4. As long as a guest with a disability has meaningful access to a place of public accommodation, the ADA’s requirements are satisfied.
  5. The availability of the restaurant’s gluten-free meal allowed JD meaningful access to the restaurant offering and renders the modification sought by JD unnecessary.
  6. When JD arrived at the restaurant on a class trip, the head chef, Anthony Zurowski, offered to personally make and serve JD a gluten-free meal. Had JD accepted the offer, he would have been able to sit with his classmates inside the tavern and enjoy its educational offering alongside them. Instead, JD decided to eat a meal prepared at home. He was asked by the restaurant to do that at some nearby picnic tables. After finishing his home prepared meal, JD rejoined his classmates in the tavern for the remainder of their time there.
  7. JD’s own expert testified that the meal offered by the head chef would have been gluten-free. Also, no dispute existed that the head chef had extensive training as a chef, including one-on-one training from Colonial Williamsburg’s head chef specifically focused on gluten-free meal preparation. Therefore, the head chef: knew how to ensure that JD’s gluten-free meal was not contaminated by any trace amounts of gluten; knew how to use a separate designated area to prepare the meal; knew how to sanitize the area and his utensils beforehand; knew how to use a fresh set of gloves and aprons; and knew to use a separate oven. Further, once the meal left the kitchen, no dispute existed that the restaurant’s procedures required that JD’s meal be labeled gluten-free and that the food be specially covered with a meal lit to avoid cross-contamination. Other facts include: the restaurant had extensive experience preparing gluten-free meals for patrons with disability similar to JD’s; over the past five years, the head chef had prepared roughly 4 to 5 gluten-free meals a day for a total of over 5000 meals without ever receiving a single complaint that the meals actually contain gluten; and JD’s father even admitted he had no reason not to trust the tavern’s kitchen staff.
  8. If JD had accepted the restaurant’s genuine offer of a gluten-free meal, he would have had a virtually identical experience to that of his classmates.
  9. The ADA does not require places of public accommodation to provide the precise modification requested by an individual with a disability. Instead, the ADA allows places of public accommodations the freedom to decide how to best provide meaningful access to patrons with disabilities.
  10. Reasonableness must be evaluated with respect to the disruption of the restaurant’s business and the threat to safety occasioned by the modification. A policy allowing patrons to consume home prepared meals inside the restaurant with no advance notice affects a significant disruption on the restaurant’s business.
  11. Allowing patrons to ignore the restaurant’s menu disrupts business. It would let people bring in their own meals, occupy the restaurant’s tables, and take time and attention of the servers, and otherwise divert resources from paying customers all without ever purchasing food from the restaurant itself. Such a policy denies the restaurant much needed revenue in an industry that is notoriously low margin. It also denies the servers gratuities they rely on to make ends meet as tips are usually calculated based upon the cost of the food ordered from the restaurant. Such disruptions are in no way mandated by the ADA.
  12. Allowing patrons to consume home prepared meals opens the gate to all manners of cuisines without any respect for the restaurant’s historical theme. People can bring in food utterly inconsistent with the atmosphere provided by the restaurant. The smell of the food or even its appearance might spoil and undercut the experience for paying customers.
  13. Food brought from home may pose a safety hazard to the restaurant’s other customers. The presence of outside food in the restaurant also increases the risk of provoking food allergies and sensitivities in other patrons.
  14. The proposed modification is unreasonable because it imposes a vague and unmanageable standard on restaurants everywhere. Under the majority rule, a patron requests to be allowed to eat outside food will sometime be reasonable and other times not, thereby, putting managers in the middle of a crazy line drawing exercise without any defined criteria for them to apply. Under the majority rule, advanced notice is not even required. Therefore, restaurant managers would have to evaluate any disruption in the safety hazard of the customer’s outside meal on the fly with the specter of litigation overhead. Finally, under the majority rule, even restaurants that have made intense efforts to prepare gluten-free meals are strung up for liability. Such a rule could only be dreamed up in the judicial monastery.
  15. While it is possible that Colonial Williamsburg may well prevail at trial, the majority reasoning has the flavor of a de facto per se rule. That is, restaurants must either allow patrons to consume food prepared outside the premises or they must justify that refusal at a costly trial.

VI

Thoughts and Takeaways:

  1. What is really going on here and how did we get here? In my opinion, what is really lurking here, is that title III of the ADA contains no specific requirements of an interactive process. If title III of the ADA contained an interactive process requirement, then you could argue that the restaurant and JD’s family had the obligation to engage in an interactive process. Such an interactive process may have included the chef specifically explaining and even showing JD and his family just how the gluten-free meal would be prepared and where it would be prepared. I don’t see why the family would necessarily have to enter the kitchen to do that. Even so, perhaps the restaurant could have taken the same health precautions that their cooks take prior to entering the cooking area so that they could see how the gluten-free meal would be prepared.
  2. If an interactive process was required by title III, then if the restaurant specifically showed JD and his family how the gluten-free meal would be prepared and all the precautions they took, and the family nevertheless walked away from the accommodation, then you could say that the family blew up the interactive process. Under title I of the ADA and case law interpreting the interactive process, the party blowing up the interactive process bears the consequences.
  3. Arguing that an interactive process applies to title III is not a stretch. There are cases interpreting title II holding the interactive process applies to title II. After all, how can you come up with a reasonable modification if you don’t engage in an interactive process?
  4. The other problem here is that title III has no explicit provisions for a person with a disability being otherwise qualified/qualified. If title III had such explicit provisions, then you would look to the essential eligibility requirements of the business and try to determine whether a reasonable accommodation makes any sense. It isn’t a stretch to find an otherwise qualified requirement in title III because how can you figure out if a fundamental alteration exists without knowing the essential eligibility requirements of the business? Judge Wilkinson essentially takes this approach in his dissent. In fact, the majority and the dissent disagree on just what is the essential eligibility requirement at issue. The majority view is that the essential eligibility requirement is eating in the restaurant. However, the dissent’s view is that the essential eligibility requirement is eating food prepared by the restaurant. You get to different places depending upon how you characterize the essential eligibility requirement.
  5. The ADA requires an individualized analysis based upon the particular circumstances of the case. The history that JD and his family had with other restaurants is historical, but shouldn’t be the deciding factor with respect to the particular restaurant. The key should be just what are the individual facts found in this situation. Again, importing essential eligibility requirements from title II and the interactive process from title I would solve a lot of his confusion.
  6. Is there a title II case against the school? The parents notified the school that they needed a gluten-free meal. The school then may or may not have relayed the message to the restaurant. Since the essential eligibility requirements of the field trip was going to Colonial Williamsburg and having lunch at the restaurant, an argument exists that the school may have violated its title II obligations. I also don’t think that the plaintiff would have to exhaust administrative remedies either in an action against the school system given the case we discussed here.
  7. I agree with the majority that the Virginia Health Code prohibiting food prepared in a private home from being used or offered for human consumption in a restaurant is vague.
  8. If you are a restaurant and a person shows up with home food because of a gluten-free allergy situation, it would be a really good idea to engage in an extensive interactive process with the family to see if there is some way the restaurant can serve food to the family. It would also be a good idea for a restaurant that does prepare gluten-free meals for its customers to have rigorous protocols for doing so and to be able to explain and demonstrate them if need be.
  9. I find the like experience standard a bit unwieldy. The problem with the like experience standard is that it most likely involves a person without a disability, a judge, trying to compare that experience to the experience of people with disabilities. That, is a very difficult task indeed.
  10. The restaurant ran itself into a problem with its policy of allowing parents to bring in outside food for toddlers and infants. It ran itself into a bigger problem when Colonial Williamsburg granted a similar accommodation to a child visiting another of its restaurants. Moral of the story here: training, training, training, and more training is necessary across all of a company’s restaurants. Further, everybody should receive the same high quality training and the restaurant needs to be monitored to ensure that they are doing it right.
  11. As a person with a disability, I get the whole advanced notice debate. I want to be able to show up anywhere I want without advanced notice and be accommodated. For example, I expect restaurant, movie theaters, and entertainment venues to have what I need if I just want to show up on the spur of the moment. On the other hand, sometimes it is more complicated than that. For example, as a consultant, I do some traveling. It is a real pain in the tuchas, but after making my hotel reservation at the hotel’s central reservation booking system and asking for a room for persons with disabilities, I always call the hotel directly and have an elaborate conversation with them about what it means to accommodate a deaf patron in the hotel room. If I don’t have that extensive conversation with the hotel itself, no way are the accommodations put in place when I walk into the room. Even if I have that conversation, it is anybody’s guess as to whether the room will accommodate me once I get there.
  12. Another thing missing from this case, is the concept of direct threat, which we discussed here. Both the majority opinion and the dissenting opinion talk about safety requirements and reach different conclusions. To borrow from other sections of the ADA, direct threat needs to be based upon the best objective and current medical evidence. Of course, that is nice to say, but how that can possibly be carried out in the restaurant setting is a difficult question for sure, especially when a restaurant allows food to be brought in in some circumstances.
  13. Fundamental alteration is an affirmative defense and the burden is on the defendant.
  14. The dissent’s standard that a person with a disability is only entitled to an experience “as equal as possible,” as a person without a disability also troubles me. The reason it troubles me is once again you have a judge, probably one without a disability, deciding what is an equal as possible experience when compared to persons without disabilities. I would prefer the more objective meaningful access standard over an “equal as possible,” standard.
  15. One thing that is happening more and more now is you are seeing litigation over what is necessary. Litigation over what is necessary is a recent development, but I would expect that trend to continue.
  16. Absolutely agree that the ADA does not require places of public accommodation to provide the precise modification requested by the disabled individual. However, if that is the case, then the ADA must require outside of the employment context an interactive process. How else can this be figured out?
  17. I don’t agree with the dissent’s view that people who bring in home-cooked meals will stiff the servers on tips. It doesn’t work like that. Oftentimes, a person is so grateful for being accommodated, that they will leave a tip as if they had purchased a meal even though they didn’t.
  18. A petition for an en banc rehearing would not surprise me.
  19. The majority keep referring to “because,” when it comes to causation. However, that isn’t the standard. For title III claims, the standard is on the basis of per 42 U.S.C. §12182(a).
  20. Appealing this decision to the United States Supreme Court would be very dangerous assuming that the United States Supreme Court would take it. There are all kinds of wildcards here. For example, the Supreme Court could decide that on the basis and because mean two different things. Also, the Supreme Court could decide that title III incorporates an otherwise qualified/qualified element into it. They could also decide that title III incorporates an interactive process. It is not a given at all that the United States Supreme Court would necessarily decide with the Corporation when it come to this scenario, which is a nonemployment scenario. As I have mentioned before, persons with disabilities have fared very well at the Supreme Court outside of the employment context. So, if I was on the defense side here, I would probably pass on appealing to the United States Supreme Court. I might go for an en banc rehearing. Otherwise, I would take my chances at trial. Just too many things could happen at the Supreme Court with this particular case to risk it.

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

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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.