ADVANCE NOTICE OF AIR TRAVEL FOR PERSONS WITH DISABILITIES

 

The Air Carrier Access Act (ACAA) is the federal statute that prohibits discrimination on the basis of disability by U.S. air carriers. The statute is 49 U.S.C. § 41705 and the regulations are 14 C.F.R. Part 382. The term “handicapped” is used in the statute and the regulations use the term “disabled” rather than handicapped.

 

14 C.F.R. § 382.33 is the specific ACAA regulation that governs the advance notice requirements that can be required by air carriers.

 

“14 C.F.R. § 382.33 Advance notice requirements (a) Except as provided in paragraph (b) of this section, a carrier shall not require a qualified individual with a disability to provide advance notice of his or her intention to travel or of his or her disability as a condition of receiving transportation or accommodations required by this part.”

 

“(b) A carrier may require up to 48 hours advance notice and one-hour advance check-in concerning a qualified individual with a disability who wishes to receive any of the following services, types of equipment, or accommodations:

(1) Medical oxygen for use on board the aircraft, if this service is available on the flight;   

(2) Carriage of an incubator, if this service is available on the flight;

(3) Hook-up for a respirator to the aircraft electrical power supply, if this service is available on the flight;

(4) Accommodation for a passenger who must travel in a stretcher, if this service is available on the flight;

(5) Transportation for an electric wheelchair on a flight scheduled to be made with an aircraft with fewer than 60 seats;

(6) Provision by the carrier of hazardous materials packaging for a battery for a

wheelchair or other assistance device;

(7) Accommodation for a group of ten or more qualified individuals with disabilities, who make reservations and travel as a group; and

(8) Provision of an on-board wheelchair on an aircraft that does not have an accessible lavatory.”

 

14 C.F.R. § 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.”

 

Moreover, in interpreting its own regulations requiring nondiscrimination in air travel, the Department of Transportation (DOT) stated:

 

 “Any party to a nondiscrimination statute like section 504 [of the Rehabilitation Act] or the ACAA may contract out its functions; it can never contract away its responsibility to ensure nondiscrimination.” See Nondiscrimination on the Basis of Handicap in Air Travel, Final rule. Federal Register / Vol. 55, No. 44 / Tuesday, March 6, 1990 / Rules and Regulations, 8008, 8019.

 

 “Under [14 C.F.R.] § 382.7, all discrimination by carriers via the actions of contractors is prohibited, regardless of the role played by contractors.” Id. at 8019.

 

But the Federal Aviation Administration (FAA) and the Department of Transportation (DOT) have approved a policy that violates the advice notice requirements of the ACAA by subjecting individuals whose disabilities are caused or exacerbated by second hand tobacco smoke to advance notice requirements at airports.

 

In response to a complaint against the Phoenix Sky Harbor International Airport, by Ms. Betty Campbell, a qualified individual with a breathing disability, the FAA and the DOT held that the airport was not required to make the airport usable and accessible to individuals with disabilities caused or exacerbated by second hand tobacco smoke. Instead, the FAA and the DOT held that individuals with disabilities caused or exacerbated by second hand tobacco smoke are only entitled to reasonable modifications on an individual basis.

 

In its Analysis and Conclusions, the FAA response to Ms. Campbell states:

 

 “Under current regulations, The Airport has a duty to accommodate individuals to avoid discrimination on the basis of disability. Phoenix Sky Harbor International Airport has taken several steps to accommodate individuals allergic or sensitive to environmental tobacco smoke. Specifically, Phoenix Sky Harbor International Airport has: 1) provided reasonable modifications to persons with disabilities on an as needed basis; 2) proactively addressed smoking concerns through its ‘Smoking Ordinance,’ which established a non-smoking policy for public use areas; 3) no-smoking restriction applies to all airline-boarding gates; smoking at the airport is allowed only in a few designated areas and bars; 5) further restricted the number of bars that can allow smoking; 6) added airport improvements in Terminals 3 and 4 estimated in excess of $800,000; 7) several ventilation systems were added in bars that permit smoking (thereby restricting second-hand smoke from being recirculated; 8) added glass walls and negative air pressure at bar entrances to keep smoke inside; 9) converted that bar nearest America West Airlines, Gate A9, from smoking to a non-smoking facility.” See DOT Complaint No. 98-405, Betty Campbell vs. Phoenix Sky Harbor International Airport, page 5.

 

Notice that, the FAA states in number 1, that the Airport has “provided reasonable modifications to persons with disabilities on an as needed basis.”

 

Also, in its Recommendations the FAA states, in pertinent part:

 

 “Recommendations are as follows:

 

1) The City/Airport should continue self-evaluation of existing policies by monitoring the air in the smoking rooms to ensure the best possible air quality in the Airport;

 

4) Respond to individual requests for accommodation;” Id. at 6.

 

The above quotes clearly acknowledge that the FAA and the DOT approved reasonable modifications for persons with disabilities on an as needed basis in violation of the advance notice requirements of the ACAA at the Phoenix Sky Harbor International Airport.

 

Now, let’s review a seminal case under the Americans with Disabilities Act (ADA).

 

In Tyler v. City of Manhattan, 857 F.Supp. 800 (D.Kan. 1994), the U.S. District for the District of Kansas reviewed the regulations for Title II of the ADA and the court held that:

 

 “A public entity that simply adopts a policy of responding to individual complaints has not gone far enough to affirmatively identify access problems with its services, policies, and practices, and proceed on its own to correct them, as required by the key language of 28 C.F.R. § 35.105(a). Id. at 805.

 

Under section 504 of the Rehabilitation Act, the Supreme Court has held that:

 

 “The balance struck in Davis [Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979)] requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.

 

The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.” See Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985).

 

Also, in Alexander v. Choate, the Supreme Court held that disparate impact discrimination is prohibited by section 504. In reaching this conclusion, the Supreme Court cited the regulations of 24 federal agencies that had reached the same conclusion. Id. at 295-97 and n.17.

 

The Department of Transportation is one of the agencies cited by the Supreme Court as having held that its regulations prohibit disparate impact discrimination and the specific regulation that was cited is 49 C.F.R. § 27.7(b)(4).

 

And there is no doubt that second hand tobacco smoke has a disparate impact on individuals with disabilities caused or exacerbated by second hand tobacco smoke. In Action on Smoking and Health v. C.A.B., 699 F.2d 1209 (D.C.Cir. 1983), the U.S. Court of Appeals for the District of Columbia held that:

 

 “Health hazards of passive smoking are presumably much greater for people with conditions such as emphysema than for normally healthy persons.” Id. at 1218 and 1218 n.55.

 

Furthermore, in Alexander v. Choate, the Supreme Court held that:

 

 “Section 504 seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance.” Id. at 304. (citing Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979)).

 

Therefore, the FAA/DOT policy of authorizing advance notice requirements at the Phoenix Sky Harbor International Airport and other airports in violation of 14 C.F.R. § 382.33 has a disparate impact on individuals with breathing disabilities caused or exacerbated by second hand tobacco smoke and it denies them equal access to the airports in violation of the “meaningful access” requirements of Alexander v. Choate.

 

View the actual letter from the City of Phoenix to Betty Campbell requiring advance notice in direct violation of 14 C.F.R. § 382.33 which also states that the airport will “consider” such a request from Ms. Campbell only if they determine that the request is “reasonable”.

 

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

 

DISCLAIMER: The content contained on this website has been prepared by GASP of Texas as a service to its readers and the Internet community and is not intended to constitute legal advice.  GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained on or linked to the Website.  Users of information from the Website or links do so at their own risk.

 

Download this page as a Microsoft Word document