Orlando Sentinel - Disney autism disability lawsuit moves to Orlando federal court

[LAKid53]

Serious question - why have these people not sued Universal or any other theme parks that use the exact same system?

Have either Universal or the operators of other theme parks recently changed their procedures for accommodating those who meet the definition of disabled under the ADA? And if so, has such change generated the amount of publicity that Disney's has? That may be the answer to your question.

BTW, the EEOC has the list of both physical and mental conditions considered disabilities under the ADA.

 

[Gomer]

Very well stated. I appreciate your perspective and explanation of this complicated and sensitive subject.

Just curious though of your thoughts regarding the law suit claims alleging that Disney has intentionally changed the system to cleanse the park of some of these families and/or guests with these types of disabilities?

Quote from the lawsuit, top of page 30 - http://www.dogalilaw.com/files/86572403.pdf


Some of the claims they make are pretty far stretched and more opinion based than actual legal claims, but things like the above claim in the suit, really seem to make it feel like they're grasping at anything to try and pin this on Disney. Like you, I feel sorry for them, because I don't see where they have a legal claim here, unless they get a VERY sympathetic judge. Even sadder though, is the thought that many of them might not be able to enjoy Disney in the future, without something similar to the former system in place. I would like to hope that Disney is still concerned about these guests, and would look for other ways to accommodate them in the future. It's sad really that it had to come to a law suit though. Seems like they jumped the gun in the matter instead of pleading and working with Disney for an alternative solution.

Honestly, I think that was likely added by the lawyers, knowing that in order to win the suit they would have to prove that Disney was maliciously trying to inhibit a certain demographic from enjoying the parks. Painting Disney as the villain, and winning the public sentiment, is the best chance for Disney to try and settle this quickly.

That being said I don't agree with the claims at all.

Maybe I'm in the minority, but I think the reasons for Disney making changes are painfully obvious. The GAC card didn't play nice with FP+. And appealing to the autism demo will never match with that multi-billion dollar investment in milking more money out of the average guest. For their models to work, GAC had to go away. DAS (as a glorified FP+) is Disney throwing a bone to old GAC users in a way that doesn't damage operational efficiency under the new model.

People can say it was exposure on the news or Disney getting fed up with abusers all they want. But, unless someone proves otherwise, I'll continue to believe that this was never an ethical battle or caving to societal pressures. This was operational metrics pure and simple.

 

[NowInc]

Reading through the claims made, this is an obvious power play scare tactic in hopes to get their golden ticket back.

As mentioned many times, a trip to WDW (or any theme park) is a privilege. With the current system in place, there are no inhibiting factors that keep any individual from attending and enjoying the park. Disney is fully ADA compliant (actually more so than the law requires) and to accuse them of wanting to "cleanse" the parks of "un magical" guests pretty much shows the clear intent of those whom are making the accusations. Whenever a lawsuit brings in a claim such as that, it shows the entire basis of the argument is based on anger and not facts. In fact, bringing that accusation up in a Federal Court could lead to a bigger backlash towards the plaintiffs.

Disney loves money. They don't care who brings it in. If they wanted to "cleanse" the parks, they would increase the dress code requirements, as well as be far more aggressive towards the rules that are already in place.

Regarding the change of Venue. It being brought to Florida Federal (in Orlando no less) only works well for Disney. The amount of Tax revenue (as well as jobs) that are brought in by the MANY Orlando attractions (arguably the most attended globally), is not something any court will ignore. I am not suggesting the courts will "bend" any rules, but for sure it will be a factor in making the case showing how the ADA requirements are met all over the theme parks, as the chances are very high that the Judge has been to the parks once or twice

 

[Bairstow]

Interesting reason Disney gave in requesting the federal judge to transfer jurisdiction to Florida. Wouldn't the case be heard in either the jurisdiction in which the alleged violation took place or the jurisdiction where the corporation headquarters of the offending organization resides?

Neither one, necessarily.
The place where the incident occurred is relevant only for subject matter jurisdiction, not venue. Where Disney's corporate headquarters is located might have been relevant except that according to Disney, the executives who actually crafted and implemented DAS are in Florida, not California.

I suspect that Disney's actual motivation in moving for a change of venue had to do with their desire to remove to a more conservative forum, but that would not have been part of their legal reasoning.

I get the feeling this case may eventually find its way to the U.S. Supreme Court.

What makes you say that?
The only really contentious issue at play here is whether Disney's efforts at accommodation were "reasonable".

 

[LAKid53]

They're definitely citing Title III. It's going to be hard to stretch it around to fit their mold though. They'd have to prove reasonable accomodation for enjoyment was not made. And how do you say that is being denied? You're still able to utilize the rides and attractions with shorter waits, you just don't have a front of the line access to everything in sight. That to me is a reasonable accomodation. Especially since there is so much to do between those times. Family 1 can't ride The Haunted Mansion yet because the line is too long. They're given a return time 45 minutes from now. Fine, go see The Hall of Presidents and come back. You've been given a reasonable accomodation (the ability to have a place in line, but not stand in that line) and offered enjoyment to pursue in the mean time.

And I also see this making it's way to the SC docket. I think the FL judge will rule for Disney and we'll see an appeal. The goal would be to make the decision something nationwide at all recreational facilities.

Question from SC justice to plaintiffs' attorney, "So you are stating that Disney's new DAS doesn't provide reasonable accommodation for the children of your clients to have full and equal enjoyment of the attractions at both Disneyland and Disney World because some children with autism are unable to wait in line without experiencing what you refer to as a 'meltdown'. But couldn't that be said of many children without a disability? As parents we are all aware that children have short attention spans which clearly impact their waiting in long lines for just about anything. Should we then not provide your requested relief to the families of those children also? Should any parent whose child has experienced a 'meltdown' while waiting in line for a ride at Disney not also be allowed to go to the head of the line? And how is providing a ticket with a return time that means a shorter wait - which is what you base your complaint on, a long wait time - not a reasonable accommodation that allows the children of your clients full and equal enjoyment?"

 

[LAKid53]

Neither one, necessarily.
The place where the incident occurred is relevant only for subject matter jurisdiction, not venue. Where Disney's corporate headquarters is located might have been relevant except that according to Disney, the executives who actually crafted and implemented DAS are in Florida, not California.

I suspect that Disney's actual motivation in moving for a change of venue had to do with their desire to remove to a more conservative forum, but that would not have been part of their legal reasoning.



What makes you say that?
The only really contentious issue at play here is whether Disney's efforts at accommodation were "reasonable".

Because if the court in Florida rules against the plaintiffs, I expect an appeal that may end up at the Supreme Court's door. Never said the Court would agree to hear the appeal, just that, given the nature of the complaint and the individuals affected, it is not unreasonable for the case to go that far.

 

[GrumpyFan]

Question from SC justice to plaintiffs' attorney, "So you are stating that Disney's new DAS doesn't provide reasonable accommodation for the children of your clients to have full and equal enjoyment of the attractions at both Disneyland and Disney World because some children with autism are unable to wait in line without experiencing what you refer to as a 'meltdown'. But couldn't that be said of many children without a disability? As parents we are all aware that children have short attention spans which clearly impact their waiting in long lines for just about anything. Should we then not provide your requested relief to the families of those children also? Should any parent whose child has experienced a 'meltdown' while waiting in line for a ride at Disney not also be allowed to go to the head of the line? And how is providing a ticket with a return time that means a shorter wait - which is what you base your complaint on, a long wait time - not a reasonable accommodation that allows the children of your clients full and equal enjoyment?"

Adding to this, if Disney is forced to accommodate for anyone's special needs, they will then have to do it for all of the others as well who claim to have an issue, in which case, the "front of line" privilege is given to more and more people, eventually making it longer or at least equal to the regular line. If they make the exception to just one person, they have to make it for everyone, otherwise they run the risk of not being compliant with ADA. Am I right?

 

[4disneylovers]

I truly am not trying to start an argument LAKid53. I am not in favor of the lawsuit and I do not have an autistic child. But I can see the difference that parents of an autistic child face compared to the parent of a child without autism that simply has a child that needs a nap or is having a melt down because they aren't getting the $50 stuffed animal they just asked for. There is definitely a difference between bad behavior and disability.

Again I say, I am not in favor of the lawsuit and I understand the point you are trying to make. I just think there is more to the comparison that needs to be thought about.

 

[righttrack]

I truly feel for parents and the children and siblings. Disney is a sensory overload experience and something needs to be done to accommodate all. You don't get a ID card saying "my child has autism". The "gaming the system" expose' of the last two years and it's remediation unfortunately hurts those that aren't "gaming the system".

This is one of those "balance" issues where WDW must have senior management available to make decisions on how to accommodate. Perhaps a family that calls itself out needing special care to be accompanied by someone to help customize the experience. Some families need front-of-line, some families might just need better access, or a quieter line to wait in. It's not a one-size-fits all, and over-accommodating as they maybe have done in the past, perhaps isn't the right thing to do, lest it be prone to abuse. Under-accommodating is wrong and not in the true spirit of WDW. I think, given the money we are all paying, that a more customized approach is best. Give these families an hour with a guide, someone senior in the organization, to help assess and plan.

 

[LAKid53]

Adding to this, if Disney is forced to accommodate for anyone's special needs, they will then have to do it for all of the others as well who claim to have an issue, in which case, the "front of line" privilege is given to more and more people, eventually making it longer or at least equal to the regular line. If they make the exception to just one person, they have to make it for everyone, otherwise they run the risk of not being compliant with ADA. Am I right?

Provided those making the additional claim have disabilities covered under the ADA...

But in order for Disney to not be hit with constant litigation, this could be a nightmare depending on how the court rules. Which I am sure Disney will argue.

 

[4disneylovers]

I'm sorry that I have moved way past the comment where I was quoted and it is stated that there legally is no difference between a privilege and a right. I was going to quote it here, but don't feel like going back and finding it. I actually saw that same comment prior to me making my comment. I am hoping you can help me understand this a little. I know that many times there are things in the law that make no sense and this could be one of them. I am curious now that I have seen it said more than once.

I just made this comment to my daughter this morning: Me paying for a large 13th birthday party for you is a privilege not a right. Someone else said that going to Disney is a privilege not a right. Me giving my child a gift card to spend at Disney how they want is a privilege not a right. I could go on with examples. I am curious what the law says because I know that my opinion makes no difference when it comes to the law. How are they the same legally?

 

[GrumpyFan]

This suit seems to make the claim that waiting in line is not reasonable for them or their child, which I think in itself is an unreasonable expectation to place on theme park. It could be said that waiting in line is just part of the theme park experience. Sure, it's not a part that anybody likes, but it is unavoidable due to the nature of what they offer and the demand for it. It varies, but many parks go to great lengths to accommodate their guests waiting by going so far as trying to make the wait tolerable by offering shade, entertainment and sometimes AC and almost always a system whether it be a queue line or now days an electronic means to communicate when your time to ride is available. So, to sue a park for not allowing you to cut the line, just seems silly and unreasonable. It's just not feasible or reasonable for them to allow this. I sympathize for them and their child, but I just don't see how Disney or any park, really, can accommodate for this in a reasonable manner short of closing the park to non-disabled guests and offering a special time for those who are disabled, but even that would require them to limit the number they let in or they would have the same issues.

 

[Disneyfanman]

I think I understand what you are trying to say but, respectfully, I suggest you read the Americans With Disabilities Act (ADA):

The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce

(I) a park, zoo, amusement park, or other place of recreation​

Amusement parks are covered under ADA. Being able to do business with WDW is a right protected by ADA.

This does not mean Disney has to offer free admission to those with disabilities. Instead, this means that Disney cannot create barriers for those with disabilities who want to do business with Disney.

The obvious example of this is wheelchair access. Disney has spent many millions making its parks, busses, pools, hotels, etc. accessible to those with mobility issues.

Those in wheelchairs have ADA-protected rights to do business with WDW.

ADA protects both physical and mental disabilities. Those with mental disabilities have the same rights as those with physical disabilities.

By law, Disney must accommodate them if a reasonable accommodation can be made.

That's the crux of the matter. What is a reasonable accommodation?

Per ADA, discrimination occurs when there is a "failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations".

Per the Federal Government's ADA webpage:

“What is a fundamental alteration? A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.”

What constitutes a “reasonable modification” or a “fundamental alteration” is what the lawsuit is about. Are the plaintiffs asking for a reasonable accommodation? Does what the plaintiffs seek alter the essential nature of what Disney offers?

Note that safety plays a vital role in determining what's reasonable. Effectively, safety takes precedence.

Surprisingly, there isn't much established case law on the subject that's applicable to the lawsuit.

One way or the other, the ruling is going to set a precedent that could have far-reaching consequences.

This is a terrific explanation. Working in restaurants, the ADA has dramatically impacted my industry over the past couple of decades. The ADA started as a fairly simple idea and has morphed over the years has courts and states have heard individual cases. The real purpose of a lawsuit such as this one is usually to force change rather than to collect damages (although make no mistake....damages are sometimes awarded).

We have several friends with Autistic children, and I can tell you the daily stress, financial drain, and insensitivity of people take their toll. My sense of this case is that some people see Disney......which had indeed exceeded industry standards in this situation, as taking a large step backwards in providing accommodations to their families. They want those things restored.

Fortunately or unfortunately, lawsuits are the way that a single person can force a large organization, like Disney, to change. This one will be very interesting to watch. Did Disney, by exceeding industry standards, actually create the environment to support the suit?

 

[LAKid53]

I truly am not trying to start an argument LAKid53. I am not in favor of the lawsuit and I do not have an autistic child. But I can see the difference that parents of an autistic child face compared to the parent of a child without autism that simply has a child that needs a nap or is having a melt down because they aren't getting the $50 stuffed animal they just asked for. There is definitely a difference between bad behavior and disability.

Again I say, I am not in favor of the lawsuit and I understand the point you are trying to make. I just think there is more to the comparison that needs to be thought about.

Agree. But I can see a judge asking such a question. And then it would be to the plaintiffs' attorneys to explain the difference between disability resulting in an outcome that is also demonstrated by children without said disability. There are unenlighted judges on the bench....

I have a question about the lawsuit, based upon some posters comments. Did the filing really contain language stating that Disney was in essence trying to discourage, as some sad, "un magical guests'? I find that, if the case, contrary to what I have observed at the parks.

 

[PolynesianPrincess]

I truly feel for parents and the children and siblings. Disney is a sensory overload experience and something needs to be done to accommodate all. You don't get a ID card saying "my child has autism". The "gaming the system" expose' of the last two years and it's remediation unfortunately hurts those that aren't "gaming the system".

This is one of those "balance" issues where WDW must have senior management available to make decisions on how to accommodate. Perhaps a family that calls itself out needing special care to be accompanied by someone to help customize the experience. Some families need front-of-line, some families might just need better access, or a quieter line to wait in. It's not a one-size-fits all, and over-accommodating as they maybe have done in the past, perhaps isn't the right thing to do, lest it be prone to abuse. Under-accommodating is wrong and not in the true spirit of WDW. I think, given the money we are all paying, that a more customized approach is best. Give these families an hour with a guide, someone senior in the organization, to help assess and plan.

While I think this would be a good plan in theory if people actually told the truth, what's going to stop Family A from saying "no my child can't wait in line at all" when in fact they can? If you give special access to one family, every other family is going to want that same access. If Little Suzie's mom plans a trip to WDW and Suzie can wait in line and then plans something out with someone from WDW (a guide, as you stated above) but then finds out her friend Little Johnny went to WDW and can't wait in line at all and got access to get on the rides rides with no wait, what's going to stop Suzie's mom from saying Suzie can't wait either? Eventually, every guest who can in fact wait will claim they can't and then Disney will have to give them all access with no wait and we're back to the same abuse as the GAC card. You make an exception for one, you have to make an exception for everyone.

While I don't have a child with autism, my sisters co-worker has a son who is autistic. She won't let him do anything he wants for fear of a meltdown. This makes me wonder how many of these parents who have children with autism purposely keep their children away from crowds, lines, etc.. for fear of a meltdown. Is it possible that if these children were exposed at younger ages to crowds and lines that they might do better at places like WDW? Again, as I said before, I don't have a child with autism but it seems like these children might do better if they had been exposed to these things previously. If you never take your child in crowds or make them wait in lines, obviously WDW is going to be very overwhelming, even if the child is not autistic. Like these children might do better if they had been exposed to these things previously. If you never take your child in crowds or make them wait in lines, obviously WDW is going to be very overwhelming.

I also read somewhere on here that it's the Whole issue of telling little Johnny they’re going to ride Peter Pan’s Flight, getting him excited, only to be told to come back in 45 minutes. Couldn’t parents help resolve the issue of this by not telling their child they’re going to ride PPF right now? Unfortunately, I do think some plaintiffs in the lawsuit are just using this to bring back instant gratification. On the other hand, I feel some of these plaintiffs really can’t use the new DAS due to their child’s restrictions. And it’s unfortunate Disney can’t accommodate those who REALLY need it. Too many people try and cheat the system and it affects those who really and truly need it. I feel that Disney is doing exactly what they need to do to Accommodate those who need it with the DAS. With GAC, they were altering the experience in favor of those who couldn’t wait in line and making those who can wait in line wait even longer. The DAS is a fair way for those who can’t wait in line to still be able to experience things they want to and it lets those people who have to wait in line not watch dozens of people go through the FP line with GAC cards while they haven’t moved 10 steps in the last 15 minutes.

 

[PolynesianPrincess]

Excellent, excellent read. Seriously, if you only have time for one part of the blog, read Pt. 2 on Carnival Cruise and embarkation lines.

http://www.legalrollercoaster.com/2014/05/here-now-pt-2-is-immediate-on-demand.html

I read that. Very insightful! Carnival did what they felt was enough (and the court thought was enough) for these people but in AOTS's eyes, it's not enough. It seems though that AOTS won't be satisfied until they get exactly what they want, which is immediate boarding.

 

[GrumpyFan]

Provided those making the additional claim have disabilities covered under the ADA...

But in order for Disney to not be hit with constant litigation, this could be a nightmare depending on how the court rules. Which I am sure Disney will argue.

Except there is no requirement to show or prove any disability whatsoever, and Disney, by law, can't require this either. So, anyone who wants to have DAS just has to ask for it.

 

[PolynesianPrincess]

http://www.dogalilaw.com/files/86572403.pdf
Page 30. I threw up in my mouth a little.




The counters to the suit also bring up that passes are available at Guest Relations booths. Thus, you can pick up a return time without being near the ride. I'm not sure where these booths are, as I assume they're referring to there being more than guest relations on Main Street.

And that would make complete sense to do that rather than walk to the ride, get the child excited to ride and then turn around and say "no, we have to wait." If there are kiosks throughout the park to do this, just like with Magic Bands, then Disney is being FULLY accommodating.

 

[LAKid53]

I'm sorry that I have moved way past the comment where I was quoted and it is stated that there legally is no difference between a privilege and a right. I was going to quote it here, but don't feel like going back and finding it. I actually saw that same comment prior to me making my comment. I am hoping you can help me understand this a little. I know that many times there are things in the law that make no sense and this could be one of them. I am curious now that I have seen it said more than once.

I just made this comment to my daughter this morning: Me paying for a large 13th birthday party for you is a privilege not a right. Someone else said that going to Disney is a privilege not a right. Me giving my child a gift card to spend at Disney how they want is a privilege not a right. I could go on with examples. I am curious what the law says because I know that my opinion makes no difference when it comes to the law. How are they the same legally?

There is a difference, legally, between a right and a privilege. Rights are owned, privileges are granted, i.e., rights cannot be taken away for bad behavior while privileges can be. Those concepts enumerated both in the Declaration of Independence and the first 10 amendments to the U.S. Constitution are rights. Driving is a privilege.

But your question is an excellent one. Is the full and equal enjoyment of the goods and services provided by Disney a right - like free speech - of those individuals whose physical or mental condition is covered under the ADA? And thus requires protection by the government, just as the 1st amendment provides government protection for our right of speech? Or a privilege granted by the government which can be revoked at any time? Like my driver's license.

 

[Gomer]

While I don't have a child with autism, my sisters co-worker has a son who is autistic. She won't let him do anything he wants for fear of a meltdown. This makes me wonder how many of these parents who have children with autism purposely keep their children away from crowds, lines, etc.. for fear of a meltdown. Is it possible that if these children were exposed at younger ages to crowds and lines that they might do better at places like WDW? Again, as I said before, I don't have a child with autism but it seems like these children might do better if they had been exposed to these things previously. If you never take your child in crowds or make them wait in lines, obviously WDW is going to be very overwhelming, even if the child is not autistic. Like these children might do better if they had been exposed to these things previously. If you never take your child in crowds or make them wait in lines, obviously WDW is going to be very overwhelming.

Yes and no.
There can be benefits in sensory stimulating experiences for some if they are slowly acclimated over time. For some, no level of acclimation will help. The issue I was getting at earlier is that it is difficult for parents to find places in which to test those waters. Disney had traditionally offered a great environment in which to acclimate children who were capable of doing so.

My son doesn’t really need the GAC anymore. But he would have never gotten there if we weren’t able to use the GAC to help acclimate him to waiting in line. So, it’s a catch 22. I have no doubt that without the GAC and our efforts to slowly ease him into waiting on lines surrounded by people, my family may not have been able to feasibly visit WDW as he got older. But because of the GAC we can visit now…without it.

WDW offers the perfect carrot on a stick for driving behavior in someone with autism. It’s difficult to find that level of reward elsewhere in a safe and comfortable place that can be used to the same effect. Trust me, we tried. You need a perfect balance of sensory overload and reward for the child suffering through it. If that exists elsewhere, I am yet to find it.

Again, none of this is to say Disney is wrong in removing GAC. Just that it is sad no one else will benefit from it in the same way I have.