“It is not possible to be in favor of justice for some people and not be in favor of justice for all people.”
I saw this quote, attributed to Dr. Martin Luther King, Jr., featured in a blog post highlighting his legacy in the civil and disability rights movements. The quote got me thinking about the challenges to justice for people with disabilities, particularly in relation to the Air Carrier Access Act (ACAA).
The ACAA is largely regarded as civil rights legislation. I disagree, and believe that it is little more than a guideline for how travelers such as myself (a triple amputee and wheelchair user) should be treated.
Disability rights activists have long held that the ACAA does not go far enough. Its lack of a private right of action forces travelers with disabilities to rely on the Department of Transportation (DOT) to investigate potential violations and hold airlines accountable to the law. On the matter of enforcing the law, the DOT has failed – unequivocally. The rights and dignity of travelers requiring special assistance and accommodation are violated frequently, while the department remains silent.
A History of Discrimination in Air Travel
The discriminatory practices of airlines and their contracted agents have existed since the ACAA became law in 1986. The National Council on Disability (NCD), an independent federal agency focused on disability policy, released a report in 1999 investigating the DOT’s success (or lack thereof) in enforcing the ACAA. Taken from the attached cover letter:
“…air carriers and federal oversight officials must ensure that their right to travel with appropriate accommodations is taken seriously and honored. Unfortunately, NCD has found that although things have improved since ACAA was passed in 1986, people with disabilities continue to encounter frequent, significant violations of the statute and regulations. When they complain, they encounter an enforcement effort that is both inconsistent and limited in scope.”
This report, which was sent to President Bill Clinton and to leaders in both houses of Congress, exposed a pattern of significant disability service failures at airlines, and revealed a DOT that was either unwilling or unable to enforce the law. It is tragic that this report, released nearly 17 years ago, reads as though it were written yesterday. The realities of air travel for persons with disabilities have changed little over the past two decades.
The DOT’s Inaction
The DOT collects and investigates complaints regarding potential violations of the law via their online web form. I encourage my readers and all travelers with disabilities to file these complaints. Submissions are tracked in the monthly Air Travel Consumer Reports, which tally the number of complaints filed and violations charged for each carrier operating to, from and/or within the United States.
The agency has been afforded the ability to respond to violations with enforcement action against the offending air carrier, in the form of civil penalties and policy directives. If a passenger’s rights under the ACAA have been curtailed, the DOT can fine the airline $27,500 per violation. The fine amount is significant, and was set as such to deter airlines from violating the rights of the most vulnerable – travelers with disabilities.
How often does the DOT pursue action? Not often. In the past three years, only five penalties have been levied against airlines for violations of the ACAA. Typically, the DOT receives between 100-200 disability service complaints per month. With so many travelers uninformed about their rights and the applicable complaint procedures, this is only a small fraction of the violations that do occur. Complaints made directly to the airline are not included in this monthly account. Five actions after thousands of complaints – that is not enforcement.
Travelers with disabilities rightly expect the DOT to levy enforcement action when it is warranted. The department refuses to issue fines on a per-case basis, instead holding them until a major media story generates negative public opinion. In October, the story of a man forced to crawl off a United Airlines flight swept through the news media. Just this month, the DOT filed an enforcement order – their first since July 2014 – against United Airlines. The lesson is this: If you want the DOT to act on your behalf, in defense of your rights, you have to become a headline.
Congress must act.
Rules governing the ACAA were last updated in 2008, and the changes took effect in May 2009. The NCD’s 1999 report recommended the following amendments to the law, which have still not been established:
- a statutory private right of action;
- the award of plaintiffs’ attorney’s fees; and
- the award of compensatory and punitive damages to successful litigants.
Travelers with disabilities, myself included, have no way to ensure that air travel providers will honor the rights they have been guaranteed under the ACAA. Violations occur throughout the travel experience, from booking to baggage claim. Depending on the right that is violated, costs to the passenger may include disrupted travel, financial loss, pain and suffering, emotional distress, physical injury, an affront to personal dignity, or a combination of them all. The NCD’s report noted the varied nature of these service failures:
“…people who use wheelchairs continue to encounter regular problems, from not being given a bulkhead seat to being mishandled and occasionally dropped by poorly trained or insensitive staff. Flight crews continue to refuse to stow adaptive equipment such as walkers and folding wheelchairs in the aircraft cabin. Travelers with disabilities who are accompanied by able-bodied friends, colleagues, or relatives often find that airline personnel have a tendency to direct questions and instructions to their travel partners rather than address them directly. In short, air travelers with disabilities frequently find air travel unnecessarily humiliating and upsetting.”
These same issues occur today, perhaps in greater frequency, and are as much a violation of the ACAA now as they were in 1999. It is disheartening to know that the DOT, the agency wholly responsible for enforcement of the law, has failed to protect your rights and mine so miserably.
Congress must act to protect travelers with disabilities, by including the private right of action that was proposed by the NCD. The ability for travelers to seek damages for ACAA violations will disincentivize the airlines’ blatant disregard for the law. It is the only solution that makes sense after three decades of DOT inaction.
The ACAA is not a Civil Rights law.
What are Civil Rights? According to Wikipedia, they are a “class of rights that protect individuals’ freedom from infringement by governments, social organizations and private individuals, and which ensure one’s ability to participate in the civil and political life of the society and state without discrimination or repression.” These rights include, among other things, “the ensuring of peoples’ physical and mental integrity, life and safety; protection from discrimination on grounds such as race, gender, national origin, colour, sexual orientation, ethnicity, religion, or disability.”
I contend that a civil right does not and cannot exist where an individual can take no definitive action to enforce it before the law or protect against its violation.
The crux of the issue is this: The only venues within civil society where persons with disabilities cannot seek recourse before the law for discrimination on the basis of disability are on airplanes and in airports. A civil right is meant to be guaranteed. Numerous federal courts have ruled that Congress withheld a private right of action under the ACAA, reserving that right exclusively to the DOT.
Airlines have violated the rights afforded to me by the law, and I have been denied equal access to air travel. I have submitted complaints to the DOT, and the agency has affirmed the legitimacy of 100% of my claims. No action has been taken. Those same airlines continue to violate those very same rights, repeatedly and as if they are immune from the law. If my government will not stand up for me, and I cannot seek a redress for my own grievances before the court, what rights do I truly have?
By definition, civil rights are a class of protections that must be protected to have merit and value. If the air travel industry is permitted to ignore the ACAA without threat of challenge, the protections under the law cannot be classified as civil rights. To the travelers with disabilities who have been denied a voice, they are nothing but recommendations that are trampled on by the very airlines which they were meant to regulate.
I encourage the United States Congress to heed Dr. King’s warning, by recognizing that the right to justice cannot be provided only to some of us – it must be available to everyone.