A couple of weeks ago, I had the privilege of spending a
couple days with a highly talented group of amusement professionals at the iROC
Safety School in Las Vegas. This is the
second year that I have been invited to speak at the event, and it is quickly
becoming a highlight of the year. The
topic of both this year’s and last year’s presentations was the Americans With
Disabilities Act which, as faithful readers of this blog know, is a particular
passion of mine. After a 90 minute
seminar on ride access last year, much of the Q&A session revolved around
the issue of autism which, coupled with the filing of the lawsuit against
Disney, prompted me to take a closer look at the issue in the “Here & Now”
series. This year, I came to iROC ready
to go on the issue of autism, but interestingly a new issue reared its head
that I hadn’t thought a whole lot about before: The question of height
requirements and, specifically, whether enforcing a height requirement against
a guest with a disability violates the ADA.
So, as with the autism issue last year, I thought this deserved a little
more thought and some attention here.
Imagine a roller coaster at Happy Funland Amusement Park
with a 48 inch height requirement. The coaster
is a relatively standard woodie with ratcheting lap bars and seat belts for
restraint devices. A guest approaches
without legs and would like to ride. He
does not have prosthetics, and, because he lacks lower extremities, he does not
measure 48 inches tall. Setting aside
the question of whether the ride has legitimate safety requirements that
preclude this guest from riding due to his disability, can the operator deny
this guest entrance based solely on the height requirement for the ride – a generally
applicable safety rule that applies to every guest in the park regardless of
disability.
Well, for starters, I feel compelled to note that I’m not
aware of any case to have ever raised this issue. So, we are operating in a bit of a vacuum
here. That said, the issue of height
requirements is not completely foreign to the Americans With Disabilities
Act. Indeed, the regulations
specifically mention height requirements as an enforceable policy that can be lawfully
enforced with respect to a disabled guest.
The Department of Justice’s commentary on the ADA regulations makes
clear:
A public accommodation may … impose neutral rules and
criteria that screen out, or tend to screen out, individuals with disabilities,
if the criteria are necessary for the safe operation of the public
accommodation. Examples of safety qualifications that would be justifiable in
appropriate circumstances would include height requirements for certain
amusement park rides[.]
So, that’s it, right?
Height requirements do not violate the ADA. Easy, huh?
Well, no. The key phrase in this
comment is “in appropriate circumstances.” So what are the appropriate circumstances?
Well, a good starting point for figuring that out, in my
opinion, is to go back to first principles under the ADA and, specifically, to
consider two brands of prohibited discrimination. The ADA prohibits unnecessary eligibility
requirements and failure to make reasonable modifications to policies
and procedures. As to the question of
whether a generally applicable height requirement violates the ADA, I think it
best (and most interesting) to focus primarily on the latter of these two,
particularly since the commentary quoted above seems to acknowledge the
likelihood that a height requirement is the kind of “neutral rule” that could
be a legitimate safety requirement. So,
let’s assume it is. The question is
whether this is a policy that must be reasonably modified to accommodate a
guest with a disability.
Height Requirements Based on Physical Dimensions
This is where things can get a little sticky, and some
knowledge of the operation of the ride’s safety features is necessary. It is no secret in the industry that not all
height requirements are created equal.
Generally, height requirements fall into two categories: those that are truly based on physical
dimensions and those that operate as a proxy for the age and expected maturity
of the rider.
Looking at the first of these categories, these height
requirements are likely not modifiable.
Height requirements of this sort exist because the safety devices on the
ride are designed to reasonably restrain individuals with certain minimum (and sometimes
maximum) physical dimensions. A guest
that does not meet those dimensions will not be restrained properly within the
ride and therefore no reasonable modification of this policy is possible
without fundamentally altering the ride experience (i.e. the guest would be in
danger of falling out). Thus, in these
circumstances, the height requirement is simply a generally applicable, and not
reasonably modifiable, policy that likely does not violate the ADA, even when
applied with respect to a disabled guest such as our friend visiting Happy
Funland’s coaster above.
But this is not an absolute rule, of course. For example, even some height requirements
based on physical dimensions might be reasonably modifiable. For example, a ride with an over-the-shoulder
harness might have a height requirement based on the expected physical
dimensions of the upper torso. Realizing
that there is no reasonably easy way to measure every guest’s upper torso, the
height requirement may be set according to average body proportions. Under those circumstances, a guest that has a
fully developed torso that falls within the range that can be safely accommodated
on the ride might still be able to ride safely even without legs and, thus, without
reaching the height requirement.
Height Requirements Based On Expected Maturity
The question of modification becomes more pronounced with
respect to the second kind of height requirements – those based on age and
maturity. Certain rides, frequently
those without active restraint devices, have height requirements based on the
expected maturity of a guest of that height.
These height requirements are intended to ensure that riders are mature
enough to understand the safety instructions given by operators and to
understand the risk inherent with certain behaviors on the ride, such as
standing up or trying to exit the ride vehicle while in motion. Realizing the impossibility of enforcing an
age requirement (since there is no way to reasonably check someone’s age), some
manufacturers impose height requirements designed to correspond to a guest’s
age. So, for example, a manufacturer may
believe that riders should be at least 12 years old to safely ride without
endangering himself or others and, thus, after consulting human growth data
indicating that the average 12 year old is at least 48 inches tall (and, to be
clear, I’m making these numbers up for illustrative purposes), imposes a 48
inch height requirement as a stand-in for the expected maturity level of the
rider. As to this kind of height
requirement, there may be room for modification since the issue is not the
operation and function of safety restraint devices, but rather the maturity and
expected behavior of the guest. In those
situations, an adult guest that does not reach the height requirement due to a
disability may, in fact, be able to safely ride – i.e. the policy can be
reasonably modified - due to his maturity level.
The real trick, therefore, becomes knowing what height
requirements can be reasonably modified and which cannot. And to know that requires an understanding of
the ride and the basis for the manufacturer’s height requirements far greater
than the average front-line ride operator has.
Thus, to be clear, I do not believe it is a good idea to empower ride
operators with the authority to bend the height requirement themselves. Discussions about whether the height policy
should be modified should be undertaken by someone in supervision or management
at the park with a much higher level of knowledge about the ride than the ride
operator. It also is probably not best
practice to consider this question for the first time when confronted with an
upset guest. Instead, the question of
modification of height requirements should be thoughtfully considered as part
of a park’s overall disability access plan so that management is ready to deal
with the question consistently when it arises.
So, there you have it.
Do height requirements violate the ADA?
In the words of every lawyer I know: “Maybe.”
But hopefully, I’ve helped put a little meat on that answer. Thanks to the inquisitive minds at iROC for
putting this question in my brain.
Anyone care to take bets on what next year’s topic will be?
nice
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