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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Sunday, February 22, 2015

Do Height Requirements On Rides Violate The ADA?



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?      

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