Disney Sued Over its Ride Access Policy for Disabled Park Patrons

Tweet

Walt Disney theme parks have been sued in response to disabled patrons’ experiences with Disney’s Disability Access Service Card system implemented in October 2013.  The suit has been brought by patrons of the park who have autism, and who experienced difficulties in using the Disability Access Service Card system (DAS).  These claims allege that DAS does not properly address the needs of children with autism and other developmental disabilities that are covered by the Americans with Disabilities Act (ADA).

The Disability Access Service Card system was changed in 2013 in an attempt to remedy the “abuse and exploitation” of their original policy.  The policy originally permitted disabled guests to skip the other patrons in line and advance to the front of the line to avoid longer wait times.  Disney stated that the policy was continuously abused and the abuses were growing to a large extent.

The policy, as it now reads, has moved to an electronic system where patrons will be able to sign up for a wait time through an app or on a website, rather than returning to the ride to sign up.

The new program still allows disabled patrons to avoid long lines, but instead of allowing them to simply skip, they are given a return time for each line based on current wait times of the ride.  To obtain the new Disability Access Service Card, a guest and their guardian will have their photo taken.  In order to not violate the policy, the disabled person must be one of those who board the ride at each designated return time.

Originally, disabled visitors would be required to go to the ride to sign up for a return time, and then return when their time arose.  This policy was highly controversial and was opposed by disabled patrons and their guardians in that it still required disabled patrons to wait a longer time to get on a ride, and potentially causing more issues with regard to the effects of the disability on having to wait for long periods of time.  The policy, as it now reads, has moved to an electronic system where patrons will be able to sign up for a wait time through an app or on a website, rather than returning to the ride to sign up.  The times available will still be based on the current wait time of the physical line at the ride.

The lawsuit was filed April 3, 2014, by a group of autistic children and their families against the theme park alleging that children with autism and other cognitive disabilities do not have the patience required to wait for a certain line, even if they are not waiting in the actual line itself.  The plaintiffs contend that children with autism typically suffer from and are in danger of emotional meltdowns due to waiting in lines, and can be extended if the individual is to return to the ride at their appointed time after having to go to the ride to sign up.

Disney defends and claims that the ADA only requires a public accommodation to provide an accommodation policy for disabled patrons.

The plaintiffs claim that the children are qualified disabled persons and Disney’s theme parks are public accommodations under the ADA that are required to accommodate disabled persons under the Act.  The plaintiffs allege that the ADA requires that when a disabled patron comes to the park, as a public accommodation, asks for a modification to its disability policy to accommodate that patron’s particular disability, the park must perform an individualized evaluation of the particular needs of that patron and the reasonableness of their requested modification.  The plaintiffs allege that in order to determine whether they need to modify their disability policy is something that Disney’s theme parks, or any other public accommodation, should be doing in order to comply with the ADA, and something that should be done on an individualized basis.

Disney, on the other hand, defends and claims that the ADA only requires a public accommodation to provide an accommodation policy for disabled patrons.  Disney claims that it is not required to do an individualized assessment of each disabled patron to determine whether a further accommodation is needed, but just that it is required to have a disability accommodation policy for disabled patrons.

Typically, ADA claims arise in the employment discrimination context where an employer has fired or not hired a worker because they are disabled in some manner.  However, the ADA prohibits the discrimination of disabled persons in “state and local government services, public accommodations, commercial facilities, and transportation.”

The ADA requires that companies and businesses provide accessibility for disabled persons and customers.  This means that a business is required to ensure that persons with disabilities are able to access their building.  This is primarily true for government buildings, hospitals, and other such buildings where people will likely have to enter at some point.  While all buildings are required to have disability access doors or ramps or other such accommodations, places where large groups of people are present at one time or places that are commonly frequented by a majority of people are the most at risk of suit for lack of accessibility.

The ADA requires that a public accommodation have policies, practices, and procedures in place to reasonably accommodate disabled patrons.

The ADA requires that a public accommodation have policies, practices, and procedures in place to reasonably accommodate disabled patrons.  The ADA does not require that a public accommodation have modifications to its policies or practices that would fundamentally alter the nature of the services it provides.  The ADA states that a public accommodation is not relieved of the duty to furnish an alternative auxiliary aid that would not result in a fundamental alteration to the services it provides if such an alternative is available and would not be a substantial burden.

In the ADA Title III Technical Assistance Manual, it states that a public accommodation may exclude a particular individual with a disability from their participation in an activity if it would result in a direct threat to the health or safety of others.  In this instance, the public accommodation must determine that the risk cannot be eliminated through a reasonable modification to the public accommodation’s policy.  In these instances of direct threat, an individual assessment must be conducted to determine the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether the reasonable modification to the policies will eliminate or mitigate the risk.

Additionally in the ADA Title III Technical Assistance Manual, there is a provision regarding reasonable modifications stating that a public accommodation must reasonably modify its policies to avoid discrimination.  If the public accommodation can show that a modification would fundamentally alter the nature of the services or privileges that the public accommodation provides, it is not required to make the modification.  It is also stated in this manual that a public accommodation is not required to provide disabled individuals with personal or individually prescribed auxiliary aids and services.

Having more information of other disabled persons’ experiences, not just those with autism, would be useful in determining the real issue. 

Is this yet another situation of the abuse of the policy by a small group of people that harms the larger group?  Or is this something more?  Is this more than just preventing a group of people from abusing the system, so that the system can be properly used for those whom the system and policy was developed to serve?  Or is this a situation where a business is attempting to avoid the requirements of the ADA for cost-saving purposes, or because the majority of patrons waiting in line have objected to allowing others with disabilities to skip to the front?

It is difficult to say at this point, without further information and more details from the officers of Disney or without hearing from more plaintiffs who have had similar experiences.  Having more information of other disabled persons’ experiences, not just those with autism, would be useful in determining the real issue.

Has Disney made special accommodations for disabled persons in wheelchairs or blind persons, for example, outside of just the current policy in place?  If the plaintiffs can prove that Disney has made individualized assessments of disabled persons and the reasonableness of their requests in other instances, this would be useful to prove that there may be something more than just not going outside of their already existing policy.

Regardless of which party’s argument the court aligns with, there is likely to be a deeper consideration of the ADA and its reasonable modification and reasonable accommodation standards.

There are multiple concerns with regard to this case.  One is how far are we going to go outside of providing a reasonable accommodation?  Another is, how far are we willing to let businesses push the limits of the ADA?  Whether Disney or the plaintiffs will prevail might hinge on these concerns.  The ADA mentions specifically individualized assessments and reasonable modifications to policies.  The individualized assessments come up when discussing safety threats to others.

Disney likely will continue to claim that they aren’t required to add a further reasonable modification to its policy, because their current DAS policy would already seem to be a reasonable modification to its waiting line policies and practices.  The plaintiffs will continue to argue that there is no one-size-fits-all policy, and as such, children with autism and other cognitive disabilities will not necessarily benefit from the same policy as someone with a physical disability.

This will likely cause the court to look deeper into the statute to determine whether the purpose of the law is to provide more than a reasonable accommodation for those with disabilities, or whether the reasonable accommodation standard will stand.  Additionally, the court will likely have to consider whether there needs to be more regulations within the law as to how to handle policies that may seem to be minimally satisfying the requirements of the law, and whether the court wants to require more of businesses/public accommodations.  Regardless of which party’s argument the court aligns with, there is likely to be a deeper consideration of the ADA and its reasonable modification and reasonable accommodation standards.