This ADA lawsuit has come up a few times on these threads, generating a great deal of debate each time. For those of you who might be interested in the less emotional aspects of the lawsuit, I decided to put together the following.
The Americans with Disabilities Act (ADA) was passed in 1990 and strengthened in 2008. It passed with near-unanimous support from both Democrats and Republicans. The two parties might be partisan on most issues, but ADA is not one of them.
ADA protects those with physical
or mental disabilities from discrimination. ADA specifies that 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”.
ADA applies to private companies such as Disney that sell goods or services to the public. Amusement parks are specifically cited in ADA. By law, WDW must comply with ADA.
ADA requires Disney to take proactive steps to eliminate discrimination due to disability at its theme parks.
For those with mobility issues, Disney must build ramps, provide accessible buses, and alter hotel rooms. Disney must provide braille menus or alternatives for the blind. Disney must assist those with hearing disabilities. Disney has spent tens-of-millions of dollars in order to comply with this aspect of ADA.
Disney also must do something for those with mental disabilities, which is why it created the Disability Assistance Service (DAS). To be clear, Disney did not create DAS because it is being magnanimous. It created DAS because Disney is legally obligated to create something like it.
ADA has limitations. It uses terms such as “reasonable modifications” and “fundamentally alter” to define those limits. (I’ll explain these in a bit.) Above all, ADA places safety first. Safety trumps the rest of ADA. Companies sometimes try to stretch the definition of safety because they know if they win this argument, they’ll win the case.
Some ADA cases have made it to the U.S. Supreme Court. In a relatively well-known case, a PGA golfer with a physical disability wanted to use a golf cart during tournament play. The PGA fought him and lost.
One of the footnotes in this PGA v. Martin ruling outlines the basic legal principles the Courts consider when making an ADA ruling:
As we have noted, the statute contemplates three inquiries: whether the requested modification is "reasonable," whether it is "necessary" for the disabled individual, and whether it would "fundamentally alter the nature of" the competition.
For the plaintiffs in the Disney lawsuit to win their case, they must prevail on all 3 points.
Necessary Modification
The plaintiffs must show that what is being requested is a “necessary modification”.
This is where I believe the plaintiffs’ case is weakest.
A necessary modification means the modification is required in order to accommodate the disability. In most successful ADA lawsuits, the plaintiffs’ need for the modification was obvious. Often it was uncontested.
In the Disney lawsuit, neither side disputes that some modification is necessary. However, the two sides disagree on how much of a modification is needed.
Disney has offered the plaintiffs DAS, a fair modification. The plaintiffs claim that DAS is insufficient.
For this point, the plaintiffs need to show that the modifications they seek are necessary, which is made more difficult given Disney’s willingness to provide them with something that's fair.
Prior rulings suggest that it’s insufficient for the plaintiffs to get on the stand and claim, “I need this modification”. A statement of need is not proof of need, and the Courts generally have not showed much sympathy for this tactic. Usually, it requires corroborative evidence to support the claim. Autism is a well-established mental disability but getting on the stand and crying about “my child’s life challenges” is not going to win the case in court.
IMO, the plaintiffs need to present expert medical testimony to support their claim. If they don’t, then prior rulings suggest Disney will win.
Even if the plaintiffs present expert testimony, Disney can counter with its own experts. It could come down to a judge deciding whose testimony is more persuasive.
One thing to keep in mind is that Autism is a spectrum disorder. What works for one person with Autism might not work for another. Thus, today’s finding that Disney discriminated wasn’t because Disney failed to provide a modification; it was because DAS was a “blanket accommodation that did not take into account the nuances between various disabilities”.
Reasonable Modification
Prior rulings suggest that the Courts do not define a “reasonable modification” to be one that’s ‘fair’ or ‘equal’ to those without disabilities. The Courts don’t seem to be applying the “reasonable person” standard to this. Instead, the Courts have ruled that it’s perfectly acceptable to provide those with disabilities with preferential treatment,
if this preferential treatment is needed in order to accommodate the disability.
Taking this one step further, the Supreme Court ruled that an “accommodation is not reasonable if it imposes undue financial and administrative burdens”. Thus, it appears that the correct interpretation of an “unreasonable modification” is one that creates an excessive burden for the defendant (i.e. Disney).
Given Disney’s considerable financial resources, I don’t see how Disney wins this point.
Fundamental Alteration
Unlike the first two points, the burden of proving that something is a “fundamental alteration” is on the defendant (i.e. Disney).
Generally, the Courts have used a high standard when determining whether something is a fundamental alteration. An alteration does not make it a fundamental alteration. The use of the qualifier “fundamental” explains why the Courts have used this high standard.
Based on the reasoning applied in PGA v. Martin, it appears that if an entity has a way to easily modify its rules in order to accommodate a disability, then it does not rise to the standard of a fundamental alteration.
Disney already offers FP and FP+, which offer limited express line access to all Guests. Furthermore, front line supervisors have the authority to distribute additional complementary FP/FP+ for numerous reasons. Providing additional complementary FP/FP+ in order to accommodate a legally protected disability certainly would not seem to constitute a fundamental alteration.
As with "reasonable modification", don’t confuse “fundamental alteration” with ‘fair’. You and I might think it’s unfair for someone with a disability to receive preferential treatment. However, this does not fundamentally alter the nature of an attraction, especially since Disney already offers an express line for most attractions. The allotment of FP+ is a rule that Disney easily could modify to accommodate someone with a disability.
What would I consider to be a fundamental alteration?
IMO, requiring a roller coaster to operate at (for example) 5 MPH to accommodate a person’s disability would be a fundamental alteration. By its very nature, a roller coaster is fast and bumpy. Slowing it down to 5 MPH would be a fundamental alteration. It would alter its essence.
What does it mean?
According to today’s article, Disney “Argued that the complaints failed to prove that the Disability Access Service program hasn’t accommodated their disability”. I believe this is in response to the “necessary modification” inquiry. IMO, this is Disney’s best line of attack. I don't place much weight in the commission's finding since I suspect they were more sympathetic than the Courts might be.
The article doesn’t mention anything about “fundamental alteration” or “reasonable modification”. It would be interesting to learn if these points were raised at all to the commission.
