DISCRIMINATION COMPLAINTS UNDER THE AIR CARRIER ACCESS ACT

 

Discrimination by air carriers in areas other than employment is not directly covered by the Americans with Disabilities Act (ADA), but rather by the Air Carrier Access Act (ACAA).  The Air Carrier Access Act of 1986 (ACAA; 49 USC 41705) is the federal law that protects people with disabilities from discriminatory practices by commercial airlines (carrier).  The regulations are 14 CFR Part 382 which specify that the public accommodations must comply with Title III of the ADA.  The term “handicapped” is used in the statute and the regulations use the term “disabled” rather than handicapped.

 

The scope of the ACAA extends beyond the aircraft to encompass all terminal facilities and services.  14 CFR § 382.23 is the specific ACAA regulation that applies to an air carrier’s airport facilities.

 

14 C.F.R. § 382.23   Airport facilities.

 

(a) This section applies to all terminal facilities and services owned, leased or operated on any basis by an air carrier at a commercial service airport, including parking and ground transportation facilities.

 

(b) Air carriers shall ensure that the terminal facilities and services subject to this section shall be readily accessible and usable by individuals with disabilities, including individuals who use wheelchairs.  Air carriers shall be deemed to comply with this Air Carrier Access Act obligation if they meet requirements applying to places of public accommodation under Department of Justice (DOJ) regulations implementing Title III of the Americans with Disabilities Act (ADA).

 

Therefore all facilities and services owned, leased or operated on any basis by an air carrier must comply with Title III of the ADA despite the fact that the ACAA predates the ADA.

 

The Office of the Secretary, Consumer Affairs Division, ensures access to airports and airlines by people with disabilities. This assurance is provided under the ACAA, which predates the ADA but has the same intent. The division monitors airlines' compliance with the act, and it receives and investigates any complaints about access from the public.

 

Each carrier must make a Complaints Resolution Officer (CRO) available at each airport served by the carrier.  The CRO must provide a complainant with a statement concerning the disposition of an alleged violation within 10 calendar days of the complaint.

 

14 C.F.R. § 382.65   Compliance procedures.

 

(a) Each carrier providing scheduled service shall establish and implement a complaint resolution mechanism, including designating one or more complaints resolution official(s) (CRO) to be available at each airport which the carrier serves.

 

(1) The carrier shall make a CRO available to any person who complains of alleged violations of this part during all times the carrier is operating at the airport.

 

(4) Each CRO shall have the authority to make dispositive resolution of complaints on behalf of the carrier.

 

(5) When a complaint is made to a CRO, the CRO shall promptly take dispositive action as follows:

 

(i) If the complaint is made to a CRO before the action or proposed action of carrier personnel has resulted in a violation of a provision of this part, the CRO shall take or direct other carrier personnel to take action, as necessary, to ensure compliance with this part. Provided, That the CRO is not required to be given authority to countermand a decision of the pilot-in-command of an aircraft based on safety.

 

(ii) If an alleged violation of a provision of this part has already occurred, and the CRO agrees that a violation has occurred, the CRO shall provide to the complainant a written statement setting forth a summary of the facts and what steps, if any, the carrier proposes to take in response to the violation.

 

(iii) If the CRO determines that the carrier's action does not violate a provision of this part, the CRO shall provide to the complainant a written statement including a summary of the facts and the reasons, under this part, for the determination.

 

(iv) The statements required to be provided in paragraph (a)(5) of this section shall inform the complainant of his or her right to pursue DOT enforcement action under this section. This statement shall be provided in person to the complainant at the airport if possible; otherwise, it shall be forwarded to the complainant within 10 calendar days of the complaint.

 

A person can obtain assistance from the Department of Transportation, Office of Consumer Affairs.

 

(c) Any person believing that a carrier has violated any provision of this part may contact the following office for assistance: Department of Transportation, Office of Consumer Affairs, 400 7th Street, SW., Washington, DC 20590, (202) 366–2220.

 

Provisions are also available for any person to file a formal complaint.

 

(d) Any person believing that a carrier has violated any provision of this part may file a formal complaint under the applicable procedures of 14 CFR part 302.

 

49 USC § 41110 provides authorization for the Secretary of Transportation to suspend or revoke the air carrier certificate.  Any person can petition the Secretary of Transportation to revoke an air carrier certificate and intentional failure to comply with Title III of the ADA is grounds to have an air carrier certificate revoked.  The appropriate test for intentional discrimination under the ADA is the deliberate indifference standard.  Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely and a failure to act upon the likelihood.  Deliberate indifference requires both some form of notice and the opportunity to conform to statutory dictates.

 

The procedure to file a petition to revoke an air carrier certificate is given in 14 CFR part 302 which is available at: http://www.gpo.gov/nara/cfr/waisidx_03/14cfr302_03.html and also at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title14/14cfr302_main_02.tpl .

 

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu

 

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