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April 28, 2014 Articles

Cleared for Takeoff: Disability Rights under the Air Carrier Access Act

People with disabilities have specific rights and recourse, and the ACAA is their copilot.

By Mária Zulick Nucci

Humankind has always been fascinated by flight. Cultures worldwide have had gods, myths, legends, and folktales about it; American culture celebrates the Wright brothers and numerous military and civilian aviators; air shows are popular family entertainment; and many movies and television shows have had aviation themes. However, for many people, flight is a particular challenge because of physical, mental, or emotional disability.

History and Key Terms
General discrimination in air service was addressed in the original Federal Aviation Act of 1958, which prohibited unjust discrimination and undue or unreasonable prejudice or disadvantage; this act was repealed by the Airline Deregulation Act of 1978. Before the Deregulation Act, disability rights were addressed in the Rehabilitation Act of 1973. Section 504 of the Rehabilitation Act provided that disabled persons could not be excluded nor discriminated against in relation to federal programs. Accordingly, the Civil Aeronautics Board, predecessor to the Federal Aviation Administration (FAA), promulgated regulations applying section 504 to airlines that received direct federal subsidies. In 1986, the Supreme Court rejected the theory that these regulations could be applied to other airlines because, as beneficiaries of federally funded airport projects and the air-traffic-control system, they were indirect recipients of those funds. U.S. Dep’t of Trans. v. Paralyzed Veterans of Am., 477 U.S. 597 (1986).

In response, Congress passed and the president signed the Air Carrier Access Act of 1986 (ACAA), 49 U.S.C. § 41705. The United States Department of Transportation (DOT) then promulgated implementing regulations (14 C.F.R. §§ 382.1–382.159). The DOT, the FAA, and the courts continue to improve air transportation for people with disabilities, while recognizing American and foreign air carriers’ needs for the proper operation of their services and businesses.

The ACAA proscribes discrimination based on “physical or mental impairment that substantially limits one or more major life activities,” where the passenger has “a record of such impairment” or is “regarded as having such an impairment.” Each act of discrimination is a separate violation, per 49 U.S.C. § 46301, and the DOT secretary is to investigate complaints, implement a plan to assist airlines and disabled passengers, and provide manuals for such assistance. The DOT has a general administrative scheme for handling complaints of regulatory violations (49 U.S.C. § 46101), which is not exclusive of other remedies (49 U.S.C. § 40120). Specifically, the DOT provides What Airline Employees, Airline Contractors, and Air Travelers with Disabilities Need to Know About Access to Air Travel for Persons with Disabilities (Assistance Manual) (TAM–07–15–05).

Although both statutes address disability rights, the Americans with Disabilities Act (ADA), enacted in 1990, four years after the ACAA, excludes airports as places of public accommodation subject to the ADA (42 U.S.C. § 12181(10)). As a result, airports are regulated by the DOT and the FAA, not by the U.S. Department of Justice (DOJ), which enforces the ADA (28 C.F.R. pt. 36, app. C). (Note, too, that the ACAA is codified in Title 49 U.S.C., Transportation, while most of the ADA is codified in Title 42, The Public Health and Welfare.) Nonetheless, there is an overlap and interrelationship: Airlines are deemed to comply with ACAA regulations regarding airport accessibility if they meet the “public accommodations” requirements of the DOJ’s regulations for the ADA. By contrast, unlike the ADA, the ACAA regulations include temporary impairments as disabilities requiring accommodation (14 C.F.R. § 382.3).

Part 382 Implementation
The ACAA is short and simple; its “dos and don’ts” are provided through the extensive, detailed regulations in Part 382 and other DOT and FAA documents. The ACAA, hence its regulations, apply to foreign carriers but address handling possible conflicts with the home nation’s law (14 C.F.R. §§ 382.7–.10). This applicability was through a 2008 final rule to clarify the issue (73 Fed. Reg. 27,614 (May 13, 2008)).

Subpart A, Nondiscrimination and Access to Services and Information, prohibits carriers from requiring disabled passengers to accept special services, except for pre-boarding for seating and stowage purposes (14 C.F.R. § 382.11). Consistent with section 504 of the Rehabilitation Act, carriers must modify their policies, practices, and facilities to comply with the ACAA, and ensure that their contractors comply if they provide services to the traveling public (14 C.F.R. §§ 382.13–.15). Moreover, the number of disabled passengers on a flight cannot be limited (14 C.F.R. § 382.17). The ACAA’s protection of disabled passengers includes addressing other passengers’ potential reactions: Service cannot be refused because the disabled passenger’s “appearance or involuntary behavior . . . may offend, annoy, or inconvenience crewmembers or other passengers,” subject to safety and security requirements of the FAA, the Transportation Security Administration (TSA), or a foreign carrier’s home state (14 C.F.R. § 382.19).

Additionally, the ACAA addresses communicable diseases, which received publicity regarding air travel during the SARS epidemic. Service cannot be refused or delayed, nor may special restrictions or a medical certificate be required, absent determination of a “direct threat” as defined in section 382.3 (14 C.F.R. § 382.21). The regulation gives examples of non-threatening ailments, such as a common cold, as distinct from a threat such as SARS, referencing standards of the Centers for Disease Control and Prevention and the World Health Organization, with terms for accommodating the passenger. A medical certificate may be required if a passenger needs a stretcher, incubator, or oxygen, or if there is reasonable doubt that the disabled passenger can complete the flight without extraordinary medical assistance (14 C.F.R. § 382.23). This follows the 2008 Final Rule, which generally applied Part 382 to foreign carriers, as it also addressed passengers with communicable diseases. Consequently, a carrier may require a disabled passenger to give advance notice of a particular need, such as oxygen or a stretcher, or if a group of 10 or more disabled passengers will travel on the same flight (14 C.F.R. §§ 382.25–.27); however, it cannot require a passenger to travel with an assistant except in certain specified situations (14 C.F.R. § 382.29).

Significantly, a carrier may not impose an extra charge on a passenger for special services, except for using more than one seat, which cost is not regarded as an “extra charge” (14 C.F.R. § 382.31). This is significant given, first, the media coverage of the incident in which a Southwest Airlines employee allegedly told a passenger she was “too fat to fly.” The passenger sued, but the action was dismissed without prejudice. Tiggeman v. Sw. Airlines Co.,No. 12–1177 (E.D. La. Oct. 31, 2012). It is also significant as carriers increasingly charge for various services and amenities, many of which were previously provided on a complimentary basis, as “ancillary” services; carriers typically defend this “ancillary” approach as giving passengers “choice.” Similarly, despite the potential risks of providing special services, a carrier may not require a disabled passenger to provide a waiver or release (14 C.F.R. § 382.35).

Subpart C, Information for Passengers, details what information must be provided (14 C.F.R. § 382.41). Subpart D covers access to on- or in-airport facilities that a carrier might “own, lease, or control,” including security screening and search procedures beyond those performed by the Transportation Security Administration (14 C.F.R. §§ 382.51–.55). In-aircraft matters such as armrests, lavatories, wheelchairs, and audio/video equipment to communicate safety and other information are addressed in Subpart E (14 C.F.R. §§ 382.61–.69). The related issue of seating is addressed in Subpart F (14 C.F.R. §§ 382.81–.87), while assistance with boarding, deplaning, and connecting for flight changes is covered by Subpart G (14 C.F.R. §§ 382.91–.99). Carriers must negotiate in good faith with airport operators for the provision of lifts, where standard entry-level boarding is not available, and carrier–airport contracts must set forth the parties’ respective duties for boarding and deplaning assistance (14 C.F.R. §§ 382.99). Wheelchair and mobility-device requirements are more extensively covered in Subpart I (14 C.F.R. §§ 382.121–.133).

Subpart H addresses in-flight services, including accommodation of service animals, a topic that tends to receive media coverage when there is a particular incident in this area. Traditionally, “service animal” was typically presumed to mean a guide dog for a person with a vision impairment. Since the ACAA’s passage, the services provided by animals, and the species of animals involved, have expanded, and the law responded to these changes. In 1996, the DOT issued Guidance Concerning Service Animals in Air Transportation (61 Fed. Reg. 56,409, 56,420 (Nov. 1, 1996)). This was amended by a 2003 Policy Guidance (68 Fed. Reg. 24,874 (May 9, 2003)), in part to address the issue of whether an animal is a service animal or simply a pet; the key is usually the animal’s training. The Assistance Manual addresses service animals, including the newer areas of service animals “for the emotional well being of a passenger” and for alerting the passenger to a potential seizure; the Assistance Manual’s Appendix VI contains additional guidance.

Section 382.117 reflects these societal and regulatory changes. An airline may not bar a service animal because it “may offend or annoy carrier personnel or persons traveling on the aircraft.” It may require specified documentation regarding a service animal, including an animal traveling with the passenger for emotional support or psychiatric service. Carriers need not allow “certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders).” Other “unusual or exotic animals,” such as “miniature horses, pigs [and] monkeys,” merit case-by-case evaluation, to consider whether they can be safely accommodated in the cabin or present a risk of “direct threat” or “significant disruption.” If, following guidelines, the carrier determines that the passenger’s assistant must travel in the normal cargo area for animals, it must be treated compliant with the carrier’s standard policies for transporting animals (68 Fed. Reg. 24,877).

Service animals thus present many issues of interest: In its Final Rule, reorganizing and updating the ACAA rules, including new terms for passengers who use medical oxygen or who have hearing impairments or service animals, the DOT noted that more than 1,100 of the 1,290 comments received regarding the proposed rule changes related to service animals (73 Fed. Reg. 27,614 (May 13, 2008)), although the focus of the underlying proposed changes concerned applying the ACAA to foreign carriers and revising the communicable-disease regulations.

Subpart J covers carriers’ employee-training and administrative obligations, including record-keeping for disability matters (14 C.F.R. §§ 382.141–.145). The related topics of handling complaints and furthering compliance are addressed in Subpart K. If a carrier uses aircraft with 19 or more seats, it must have a complaints-resolution official (CRO) to receive, investigate, and resolve complaints (14 C.F.R. §§ 382.151–.153). Carriers are to report all complaints to the DOT, using a form provided in the regulations (14 C.F.R. § 382.157). Separate from the CRO, there is a designated procedure for submitting complaints to the DOT, which includes using a website (14 C.F.R. § 382.159).

Private Actions
In addition to service animals and communicable diseases, a significant ACAA issue is that of a private cause of action. In Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir. 2013), a passenger with osteoarthritis alleged that United Airlines violated state tort law and the ADA by providing inadequate assistance for her transit through the airport—specifically, delays in providing a wheelchair and rude treatment from airline employees. The district court found the tort claims preempted by the ACAA. The Ninth Circuit reversed, noting earlier cases that implied a private cause of action for alleged ACAA violations. Id. at 1002, citing Shinault v. Am. Airlines, Inc., 936 F.2d 796, 800 (5th Cir. 1991); Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 570 (8th Cir. 1989). However, the U.S. Supreme Court then limited the circumstances in which a private cause of action may be asserted. Id., citing Alexander v. Sandoval, 532 U.S. 275 (2001). Later cases found no implied private right under the ACAA. Id., citing Lopez v. Jet Blue Airways, Inc., 662 F.3d 593 (2d Cir. 2011); Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); Love v. Delta Air Lines, 310 F.3d 1347 (11th Cir. 2002). The Ninth Circuit in Gilstrap noted that 49 U.S.C. § 40120 states that remedies are not exclusive, and section 41112 requires carriers to maintain liability insurance; this indicated that the Federal Aviation Act did not create a federal cause of action but contemplated allowing state-law claims. 709 F.3d at 1004. The ACAA thus did not preempt state-law damages claims but established the standard of care owed a disabled passenger. Id. at 1006–7. The court held it proper to dismiss the plaintiff’s ADA claim, in light of the ACAA, but reversed the dismissal of the state-law tort claims.

Recent Developments
ACAA regulatory updates, such as judicial rulings, continue. FAA Order 1400.9A, National Policy, Standards and Procedures Essential for Ensuring Access to Airport Facilities by Persons with Disabilities (Aug. 27, 2013), addresses the interplay and obligations of air carriers and airports under the Rehabilitation Act, the ACAA, and the ADA. Airports have certain responsibilities (49 C.F.R. pt. 27), and airports’ leases and other contracts with air carriers are to set forth the parties’ respective duties regarding accessible facilities and services. The order clarifies that the ACAA and Part 382 are enforced by the DOT’s Office of the Assistant General Counsel for Aviation Enforcement and Proceedings. In November 2013, the DOT issued Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks in U.S. Airports (78 Fed. Reg. 67,882 (Nov. 12, 2013)), and Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Aircraft and Storage of Wheelchairs (78 Fed. Reg. 67,918 (Nov. 12, 2013)). Regarding passenger complaints, the February 2014 Air Travel Consumer Report, from the DOT’s Office of Aviation Enforcement and Proceedings, Aviation Consumer Protection Division, noted 741 disability-related complaints in 2012, ranking disability as seventh of 12 categories of complaints; in 2013, there were 679 complaints, for a ranking of sixth out of 12.

The rights of persons with disabilities have grown since the 1973 Rehabilitation Act, as have societal recognition of these rights and acceptance of affected persons. Cases in point are the winners of the Phi Beta Kappa Society’s inaugural Martin R. Lebowitz and Eve Lewellis Lebowitz Prize for Philosophical Achievement and Contribution: Anita Silvers, of San Francisco State University, and Eva Feder Kittay, of Stony Brook University, whose work in the area of disability and justice was presented at the Eastern Division American Philosophical Association’s December 2013 symposium, Expanding Justice, Including Disability. People with disabilities are also now people with specific rights and recourse, and the ACAA is their copilot.

Keywords: litigation, access to justice, ACAA, FAA, Federal Aviation Act, Federal Aviation Administration, disability, miniature horse, monkey

Mária Zulick Nucci graduated from Temple University School of Law. She focuses on appellate litigation and aviation and animal law.

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