The ADA is an extremely complex and comprehensive law. The temptation is to think that the ADA applies whenever a person with disability has their rights arguably infringed. However, that just isn’t the case. The situation may be governed by other laws. For example, if a person has an individual education plan, the law that covers that situation is IDEA. Another example, is if an airline discriminates against a person with a disability, the ADA is probably not the law involved. Recently, the actions of American Airlines made news. If a person faced with a similar situation were to sue under the Americans with Disabilities Act, would they be successful?
A case that probably answered this question, the answer being in the negative, is Lopez v. Jet Blue Airways, 662 F.3d 593 (2nd Cir. 2011). In that case, a person with a disability alleged that JetBlue discriminated against them by failing to provide timely wheelchair assistance during a round trip that she took from JFK to Puerto Rico with the result that she suffered pain and swelling in the foot as well as suffering from anguish, anxiety, and nightmares. Id. at 595. She filed a claim with the Department of Transportation but the Department of Transportation was unable to determine whether the airline had violated any regulations. Id. The Department of Transportation then took no further action against the airline with respect to the complaint. Id. The plaintiff then filed on their own a complaint against the airline in US District Court alleging violations of the Air Carrier Access Act and the Americans with Disabilities Act. Id. JetBlue filed a motion to dismiss claiming that regardless of whether the claim fell under Air Carrier Access Act or the Americans with Disabilities Act, neither law allowed for a private lawsuit in this situation. Id.
The Second Circuit agreed with JetBlue’s claims. Id. at 596. The air carrier access act is actually a single statute, 49 U.S.C. § 41705. The statute doesn’t say much. The first section of the statute tracks what is a person with a disability under the ADA and said that an air carrier, including a foreign air carrier, may not discriminate against an otherwise qualified handicapped individual (for whatever reason, Congress has not amended the law to strike handicapped in favor of a person with a disability). See Id. at § 41705(a). The second part of the statute goes on to say that a separate violation occurs for each individual act of discrimination. Id. at § 41705(b). The final section of the law says that the Department of Transportation is responsible for investigating such claims and for offering technical assistance. Id. at § 41705(c).
The Second Circuit was faced with two issues. First, is there a private cause of action under the Air Carrier Access Act? Second, does the ADA even apply to a situation where airline transportation is involved? With respect to the first issue, the Second Circuit said that the Air Carrier Access Act does not authorize a private cause of action. Lopez 662 F.3d at 597. The Second Circuit relied on a Supreme Court opinion that that held a statute must have a clear manifestation of congressional intent in order to create a private cause of action before the court can find that Congress implied a private cause of action. Id. at 596 citing to Alexander v. Sandoval 532 U.S. 275 (2001). In particular, the court noted that the Air Carrier Access Act does not expressly contain the right to sue the air carrier and further, the statute provides an administrative enforcement scheme designed to vindicate fully the rights of passengers with disabilities. Id. That administrative scheme includes a mandate that the Department of Transportation: investigate complaints that appear to be based on reasonable grounds; issue orders to compel compliance with statutory provisions after they have completed their investigation and given the air carrier an opportunity to be heard; review all complaints directed against air carriers of disability discrimination and publish disability related complaint data, have the option to revoke an air carrier certificate; impose fines; or even request that the Atty. Gen. bring a civil enforcement action. Id. at 597 and fn 3. The Air Carrier Access Act also provides for the ability of an individual with a substantial interest in the administrative decision the Department of Transportation file a petition for review in the United States Court of Appeals. Id. at 597. Accordingly, while a person who suffered discrimination by the airlines cannot bring a private cause of action, they can file a complaint with the Department of Transportation.
What about the Americans with Disabilities Act? With respect to the ADA, the court found that the ADA simply did not apply to the situation where a person is discriminated by airlines during the course of air travel. Id. at 598. In particular, the court said that title III of the ADA, which prohibits places of public accommodation from discriminating against persons with disabilities, was not in play at all. In particular, while the ADA does apply to terminals, depots, or other stations used for specified public transportation, that particular statute contains an exception for aircraft. Id. at 599. See also 42 U.S.C.A. § 12181(10). Therefore, the Second Circuit held that the rest from two terminal, depot, or other station contained in the public accommodation provisions of the Americans with Disabilities Act would not meant to include facility devoted primarily to air travel. Id. at 599.
But is that the end of the story? Not necessarily. In a footnote, the Second Circuit said that there were questions that remain open. For example, could an air carrier be found to be an owner, lessor, lessee, or operator of a public accommodation? Id. at 599 fn 8. Another question that remains open is whether there carrier could be held liable for disability discrimination if they were somehow involved in the provision of travel services other than by aircraft or in the provision of travel services located in a terminal, depot, or other station not primarily used for air travel. Id.
Finally, what about the regulations themselves? They are extremely comprehensive. Recently, the Department of Transportation requested comments on an update to the technical assistance manual. Those comments are due by October 3, 2012 and can be found at.