About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Wednesday, May 21, 2014

Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary?


Click here to read Here & Now (Prologue): The Question of Autism In Amusement Parks Under the ADA
Click here for Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?
Click here for Here & Now (Pt. 3):  Isn't Standing In Line An Essential Rule Of The Park ... Even For Autistic Guests?




Is it really necessary for autistic guests to have immediate access to rides?  It’s a question that really has two meanings depending upon your point of view.   From a lay-person’s perspective, the question of necessity is a loaded one, potentially involving overtones of insensitivity or intolerance.  To even question necessity is itself socially taboo.  After all, who are we, as guests without disabilities and their consequent life challenges, to question whether an autistic person or his family really “needs” something that will, regardless of literal necessity, make lives easier and a day in the park more pleasant?  Given the challenges inherent in being the parent of an autistic child, who would be so callous as to deny, or even question, an additional convenience during a day in the park?


But from a legal perspective, the question of necessity is neither insensitive nor intolerant.  Indeed, not only is it a legitimate inquiry, it is an essential one with respect to the Americans With Disabilities Act.  As relevant to this discussion, the ADA requires amusement parks to make

reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the [park] can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
42 U.S.C.A. § 12182(b)(2)(A)(i).  See that?  From the perspective of ADA compliance, the question of necessity is one that simply must be addressed.  A park has no legal obligation to make any modification to its policies or procedures, including allowing immediate ride boarding to autistic guests, when that modification is not necessary, in the legal sense, to the service the park offers. But what does that mean?

Under the ADA, “necessity” does not have its ordinary meaning.  The American Heritage College Dictionary defines “necessary” as “absolutely essential” or “needed to achieve a certain result or effect; requisite.”  But the ADA does not use the term the same way.  For example, in a case involving Segway usage at Disneyland (a case I’ve written about before), the Ninth Circuit Court of Appeals found that under a dictionary definition of “necessary”

the ADA would require very few accommodations indeed. After all, a paraplegic can enter a courthouse by dragging himself up the front steps, so lifts and ramps would not be “necessary” under [this] reading of the term. And no facility would be required to provide wheelchair-accessible doors or bathrooms, because disabled individuals could be carried in litters or on the backs of their friends. That's not the world we live in[.] … The ADA guarantees the disabled more than mere access to public facilities; it guarantees them “full and equal enjoyment. … Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience. 
Baughman v. Walt Disney World Co., 685 F.3d 1131, 1134-35 (9th Cir. 2012).  

Those accommodations that are required to provide a “like experience” are, in the view of the Ninth Circuit, “necessary” under the law.  So, the question here is not whether it is literally “absolutely essential” for an autistic guest to have immediate boarding on amusements rides – it is most assuredly not since an autistic guest generally has the attributes needed to physically traverse the queue.  The question is whether an autistic guest can have a “like experience” as other guests on a ride if required to wait to board (regardless of where the guest waits). 

Unfortunately, given the wide variation in levels of autism found on the spectrum,  I don’t think there is a definitive answer to this question.  But I think there are legitimate questions to consider, not the least of which is this one that I have been struggling with for several months now: 

Why is it necessary for autistic guests to skip the line at an amusement park, but almost nowhere else? 

The argument in favor of the necessity of immediate boarding typically goes something like this (from the Complaint filed in the recent Walt Disney litigation):

The disabled Plaintiffs, like other persons with cognitive impairments, are mentally and physically incapable of traveling across a park to the site of an attraction only to be told to come back later.  Explaining the disruption would be as impracticable as re-programming a computer in the middle of its computation, or placing food in front of someone with no sense of present versus future tense and telling them not to eat it now but to wait until later.  Invariably, this experience will induce meltdowns in the large majority of persons with cognitive impairment, including the disabled Plaintiffs.

Assuming that everything in this argument is accurate, why don’t we routinely hear complaints from autistic families about waiting in line in other places like restaurants, retail stores, or the airport? I asked a group of fellow ADA lawyers and consultants whether they had ever heard of autistic individuals requesting to skip the line to get the next available table at a busy restaurant, or to jump the line during holiday shopping season at the mall.  No one ever had.  I’ve searched online for any lawsuits or media reports of claims of unlawful discrimination, similar to those raised in the amusement park context, arising from long security lines at airports or in any other context.  Except in one circumstance involving a cruise ship (which I will discuss more in my next piece), I haven’t found anything.  This issue seems peculiarly reserved to amusement parks almost exclusively.  So, why is it that an autistic guest can have a "like experience" at the airport, a restaurant, or in a retail store despite waiting in line, but cannot have a "like experience" at an amusement park unless on-demand immediate access is allowed? 



Perhaps it is because the anticipated ride experience itself creates an excitement in the autistic guest that is not there with respect to waiting to get through security at an airport or standing in line for stamps at the post office.  Perhaps it is because parents of autistic children simply avoid taking them to other places with long lines, knowing that their children cannot handle the wait.  Perhaps it is because the sheer length of lines at amusement parks dwarfs those in most other contexts.  Perhaps it is because of some other reason entirely.  Whatever the reason, I think this question presents a potentially serious problem for the plaintiffs in the Walt Disney litigation as it could undermine their argument that immediate access is necessary in the legal sense of the word.  Regardless of how loaded the question may be in the colloquial sense, as a legal matter I think it is a question that deserves thoughtful consideration now that this issue has come before the court.

2 comments:

  1. I believe one issue using the examples you discussed, that there is a qualitative difference in the lines at a restaurant, an airport or at a ride in Disney. A restaurant and airport both have areas capable of providing relief for the family...who are able to separate, leaving one person in line... so as if an individual who can in this context be understood to be a dependent adult often requiring special facilities and privacy to eat (possibly using a feeding tube or hand fed), privacy for assisting toileting)... most airports and restaurants do not have appropriate facilities... there are only infant size changing tables. Thus a stronger member of the family may find themselves changing a possibly taller or heavier individual on the floor of a bathroom on a changing pad. Given the number of disabled people who are drawn to Disney because of its accessibility there is often lines for many accessible facilities... I am uncertain as to whether changing areas are available.

    It is an uncomfortable reality for those with disabilities whether they are cognitively able or not... that if they require assistance in toileting there is a certain amount of urgency in this. The need for assistance, for a safe and appropriate place to receive it and the need for speedy access to an accessible washroom may simply be unaddressed. As many autistic individuals may be walking but still require assistance, their family members often meet résistance to there accessing disability related facilities. There is often an enforced but not discussed curfew for people with disabilities requiring assistance dressing etc. In my own city... it is understood that dependent adults requiring assistance must leave an activity early so as to be able to return home to be changed and readied for bed before 6:00 pm by which time the care-taker goes home to their own family.

    The lines at Disney are quantitatively different because there are fundamentally a different atmosphere with so many people of varying heights standing in close proximity moving and shifting around. A person with autism may be a wanderer... may require attention at the same time when another child does. Divided attention is very problematic in a large crowd and it has implications for safety... children and adults with disabilities are very vulnerable... many cannot speak and may not be able to identify themselves or family members, there only communication may be tears or screams ... or they may be unreasonably trusting and go with a stranger, get intrigued by something and not move with the family... should a family become separated it could be dangerous. It is difficult for a family of diverse heights to remain together... and there may be more than one autistic individual... perhaps even a group. Each may be a wanderer... going in a different direction...

    Those who are vulnerable find themselves disadvantaged in lines... there are expectations of speed...people go ahead or become upset if those with invisible disabilities violate social rules. For many with disabilities and their families, conflicting needs and priorities and issues such as fatigue may draw a family away. Some with autism have multiple disabilities... may be very vulnerable to weather conditions...to fatigue, they may also vulnerability for a seizure disorder.

    There are fundamental difference between a child or adult with a developmental disability and someone who has an adult onset condition that is not progressive, cognitive, painful or fatiguing. An adult is capable of making decisions in their own lives... is able to obtain assistance... is often able to wait. Persons with developmental disabilities may be in fragile health... unable to identify their needs... may only be able to communicate distress not that they are wet, cold, ill, hungry, in pain. There is a narrow window for families to go out together... if refused entry to a ride once they have stood in line... the time that they have spent in line cannot be taken back... it is not a matter of just one ride or line but several...

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  2. Actually parents of autistic children complain all the time about long lines in other places, and in at least one context you mentioned accomodation is offered. The TSA will provide an escort for autistic travelers and their families to help them through security, at times bypassing the long security line. Other lines like the post office or supermarket are generally of much shorter duration than amusement park lines, and autistic individuals often do avoid those lines. Also, your points about lines only take into account the behavioral and cognitive reasons an autistic individual might not be able to stand in line. However many people with autism struggle with invisible motor and muscular skeletal weakness which makes the physical act of standing in line painful. Many also have epilepsy or great sensory challenge with loud sounds and lights which may be increased near an entrance to a ride. A noise level that might be tolerable for the 5 minutes of a ride might lead to sensory overload or a seizure after a half an hour or longer wait.

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