Does the ADA require immediate, on-demand boarding for guests with cognitive disabilities such as autism? It is among the questions most frequently asked of me and one for which there has been no judicial guidance … until now. Late last week, the United States District Court for the Middle District of Florida issued a first-of-its-kind ruling on the issue in a case called A.L. v. Walt Disney Parks and Resorts U.S., Inc. In the decision, Judge Anne Conway ruled in Disney’s favor essentially finding that immediate, on-demand boarding was not “necessary,” as that term is used in the ADA, and thus that Disney was not obligated to provide it to autistic guests. While there may be a couple of small areas in the court’s analysis that some could quibble with, on the whole the decision is well-reasoned, reasonable, and practical. But what does it mean in the broader context? What affect, if any, will this case have on future cases in the industry? Those are the questions that I think warrant a little discussion – and thus have drawn me back to blogging after an extended absence (which I hope you can all forgive).
To understand how I view this case’s future legacy, it is important to understand the facts at issue, the court’s analysis, and, perhaps most importantly, what it did not say. A.L. was a challenge to Disney’s adoption of its “Disability Access Service” (“DAS”) policy in 2013. As you may recall, this policy ended Disney’s long standing “Guest Assistance Card” (“GAC”) policy, which generally permitted immediate, on-demand boarding at any ride or attraction for any disabled guest and their party, and substituted a system whereby guests with cognitive disabilities, such as autism, had to obtain a DAS card which allowed them to obtain appointment times for rides and attractions. The appointment times corresponded to the posted wait time for each attraction minus ten minutes. The DAS policy also provides flexibility for Guest Relations personnel to tailor accommodations for a particular guest. In the A.L. case, it appears (although it is not explicitly stated) that this is precisely what happened as A.L. was not only given a DAS card and appointment times, but also 24 “readmission passes” allowing his entire party of six immediate, on-demand access to four rides (or, presumably, more depending on how the passes were used) without an appointment.
A.L. sued Disney seeking to compel a return to the GAC system, essentially arguing that immediate, on-demand boarding was necessary and reasonable because A.L.’s disability required a regimented and inflexible schedule that, if interrupted, would result in a “meltdown.” The court, however, disagreed. While noting that the ADA only required Disney to provide accommodations that were “necessary,” “reasonable,” and which did not “fundamentally alter” the nature of the park experience, the Court focused on necessity without reaching the remaining two questions. The Court’s analysis found that reverting to the GAC policy was not “necessary” for several independent reasons:
- The DAS system afforded disabled guests “a like experience” as nondisabled guests. As I have previously noted, the necessity prong of the ADA inquiry asks whether a requested accommodation affords a “like experience” to the guest. Here, the court found that, in fact, the DAS system provided not only a “like experience,” but a better experience than most guests receive. As the court noted, “nondisabled guests visit the Magic Kingdom for rides and attractions that most of them have to wait more than an hour to experience. Comparing this Plaintiff’s experience, DAS and readmission passes allow him access to those same rides in a fraction of the time … DAS and readmission passes afford Plaintiff a similar, or better, experience as those not needing them.”
- The court rejected Plaintiff’s argument that the ADA required Disney to accommodate A.L.’s preference for visiting attractions in a particular order and, in any event, found that A.L’s claim that he had to visit attractions on a regimented schedule was not credible as he had deviated from his preferred schedule at least three times during his last visit to the park.
- In terms of A.L.’s tolerance for waiting, the GAC system would not have provided anything that the DAS policy, with readmission passes, did not. The facts of the case showed that A.L. was capable of waiting for up to 10 minutes for an attraction. Given the crowd levels and wait times in the park on the day of his last visit, he could have experienced all of his preferred attractions using his DAS card and readmission passes without waiting longer than 10 minutes.
- The court questioned the necessity of on-demand boarding for A.L. in the first place, noting that while A.L. alleged that he was unable to wait more than 10 minutes, he was able to “defer gratification” during long car rides and airplane trips lasting several hours.
- Finally, the court noted that the reverting to the GAC program was not necessary precisely because Disney had already adopted an accommodation that addressed A.L.’s needs, namely the DAS policy.
Good Decision, But What Does It Mean For The Future?
The A.L. decision is undoubtedly a good one for the industry and helps clarify, to some degree, the obligations of amusement parks to accommodate guests with cognitive disabilities such as autism. It cannot be said, however, that the decision gives carte blanche for an amusement park to adopt an appointment-based access policy without fear of violating the ADA. Rather, the A.L. decision highlights the importance of flexibility in disability access policies and, unfortunately, leaves a number of questions unanswered – questions that could (and almost certainly will) arise in future cases.
A key component of the court’s ruling that is easy to overlook is the reliance it places on the so-called “readmission passes.” The court describes the appointment based system under the DAS policy, and that is without doubt the policy that the industry is watching most closely, but in every point of its legal analysis it also mentions the readmission passes. It is clear that these passes, which provided a limited amount of immediate, on-demand boarding, were important to Judge Conway. For example, the court made a point of stating that between the DAS appointment times and the readmission passes, A.L. could have experienced all of the attractions that he wanted to experience without having to wait more than 10 minutes. The court likewise noted that between the DAS card and the readmission passes, A.L. got a like experience, indeed a better experience, than nondisabled guests who frequently had to wait for an hour or longer for an attraction.
So what if there had been no readmission passes offered? What if the case simply went before the court solely on the basis of the DAS appointment-based policy? Would the case have come out the same way? There really is no way to tell from the court’s analysis, but it is reasonably debatable. The court’s consistent mention of the readmission passes suggests that these were important components of the accommodation that Disney offered. The readmission passes allowed a mechanism for guests to avoid the occasional long wait and gain immediate, on-demand access – to in essence fill a few gaps created by the appointment based system. Whether the decision would have come out the same way in the absence of the readmission passes is not at all clear. This is an element of the case to which other parks should pay attention and which counsels in favor of similarly flexible approaches to access for other parks in the future.
The other important takeaway from the A.L. decision is not in what it said, but in what it did not. As noted above, because the court found that A.L. could not prove that his requested accommodation was necessary, the court did not address the remaining two elements of the case – whether the requested accommodation was reasonable and whether it fundamentally altered the park experience. Thus, while the decision gives some much-needed guidance on the first element, we continue to have little, if any, guidance on the remaining elements. This is important because the A.L. decision turns largely (but not totally) on factual issues unique to the case that may not exist in other cases. For example, a significant portion of the court’s analysis focused on A.L.’s ability to wait up to 10 minutes for a ride and his demonstrated ability to wait in a car or on an airplane for long periods of time while travelling. These are facts that may not be present in a future case. If they aren’t (or if a future court simply disagrees with Judge Conway’s reasoning), it is conceivable that a future court may find its way past the first element of the inquiry and be forced to address the remaining two. If and when that happens, A.L. will be of no help and we will, once again, be writing on relatively blank slate.
So, yes, the A.L. decision is undoubtedly a good decision and one that provides some important guidance in an area that is simultaneously highly controversial in the industry and virtually ignored in the case law. But, it must be read for what it is and in light of the facts involved. Reading it too broadly, as a rubber stamp of approval for any and all appointment-based disability policies, would be a mistake. One that the industry should be careful not to make.