How is Disney’s program clearly violating the ADA?
In the simplest terms possible, the ADA requires entertainment venues to provide reasonable access.
Most of the US Disney theme parks were built prior to the passage of the ADA, so Disney has been required to make reasonable adjustments to their operations to accomodate guests with disabilities.
The first reasonable adjustment Disney made was the GAC. The GAC allowed for immediate access, and it was often abused. Because the GAC was abused, Disney had to make a change.
The second reasonable adjustment Disney made was with DAS. DAS allowed for guests to request return times and then use the LL, a queue with a typically shorter wait time, to acess the attraction. A
clear policy was enforced where guests with mobility issues were denied access to DAS. They were required to access the attraction using a wheelchair-accessible queue. In any cases where a queue was not wheelchair-accessible, the guest could go to a CM working the attraction and request a return time. When it was time to return, they would enter the attraction through the exit. If a guest had a disability that was not mobility related, the request for DAS was approved. No documentation was required, and the CMs issuing DAS rarely, if ever, denied a request. I am using the Disneyland policy here, so please update it for WDW if needed.
Now, the DAS program is being abused. The abuse is causing LL times to increase, which decreases the value for those who paid for access. I don't think anyone here denies that Disney needs to do something. The problem is that what they are doing is wrong.
Let's take a look at some examples of reasonable access before I provide my opinion on what Disney is doing wrong.
Reasonable access when it comes to parking is having designated, ADA-compliant parking spaces near an accessible entrance to a building or entertainment venue. Access to these spaces is determined by
medical professionals who issue documents that people with disabilities can take to their DMV to get a disabled placard or license plate.
Businesses provide disabled parking spaces, but they do not tell people with placards or special plates that they can't use the spaces because their disabilities don't meet their standards.
Airlines will let people with disabilities board first. We usually see them in wheelchairs, but the wheelchair is not required. All that's required is to ask a gate agent. They will mark your boarding pass and you will board in the first group, although it might be after first class if the airline has it. Airlines are not the judge and jury in deciding if your disability is "worthy". They provide equal access to anyone who asks.
Grocery stores will dim lighting and lower the volume of the music on some mornings. This is for people with sensory disabilities. Anyone can shop during these hours. The grocery store does not determine if you are disabled or not.
Concert venues and sporting events will often have accessible seating. No proof is required to access this seating. You might be asked to confirm that someone in your party requests ADA accomodations, but proof is never required.
The list goes on and on and on. Businesses offer equal access, but they don't question worthiness to use that access. The only slight exception would be for disabled parking. A law enforcement officer will want to see the placard or the special plate so they know that a vehicle is parked legally.
Now, back to Disney. Disney's solution to providing equal access to their attractions is to allow guests with DAS (non-mobility issues) to use their LL queues free of charge. This was a reasonable accomodation. The problem is that the abuse was negatively impacting the guests who paid for the service.
What Disney is doing wrong is making the determination that only certain non-mobility disabilities qualify for their reasonable accomodation.
Here is how the ADA defines a disability -
"A person with a disability is someone who:
has a physical or mental impairment that substantially limits one or more major life activities,
has a history or record of such an impairment (such as cancer that is in remission), or
is perceived by others as having such an impairment (such as a person who has scars from a severe burn).
If a person falls into any of these categories, the ADA protects them. Because the ADA is a law, and not a benefit program, you do not need to apply for coverage.
Examples of Disabilities
There is a wide variety of disabilities, and the ADA regulations do not list all of them. Some disabilities are visible and some are not. Some examples of disabilities include:
Cancer
Diabetes
Post-traumatic stress disorder
HIV
Autism
Cerebral palsy
Deafness or hearing loss
Blindness or low vision
Epilepsy
Mobility disabilities such as those requiring the use of a wheelchair, walker, or cane
Intellectual disabilities
Major depressive disorder
Traumatic brain injury"
What Disney is doing wrong is that they are telling people with disabilities that are clearly defined by the ADA that they don't qualify for Disney's reasonable accomodation (DAS) without offering anything reasonable as an alternative. Wearing a diaper is not a reasonable alternative. Wearing headphones is not a reasonable alternative. Practicing standing in line is not a reasonable alternative. Asking a CM for a return time at every attraction after explaining your disability is not a reasonable alternative.
Disney is wrong to make the assumption that autism is the only disability that needs DAS. This contradicts the statement that the ADA protects people with "physical or mental impairments that substantially limit one or more major life activities."
They are arbitrarily denying and approving guests' DAS requests with no clear policy, and we have no evidence whatsoever that the people making the approvals/denials have any medical training at all. What's worse is that I have seen posts where people have been told to try again because another cast member might make a different decision. That's absurd.
I know this next sentence is going to be really hard to accept, but here goes...
If a guest asks Disney for DAS for a non-mobility-related condition, Disney needs to provide it. Period. No exceptions.
Disney needs to deal with abuse using other methods. What they are doing now is cruel and heartless. Unfortunately, "cruel and heartless" is 100 percent on-brand for Disney nowadays.
The intersection of the ADA's application and the Air Carrier Access Act (ACAA) is a whole other discussion. It's best to stick to theme parks here