Well, it has now been just over two years since my last
entry on The Legal Roller Coaster. Much
has happened since then, and I’ll tell you about a lot of it very soon, but
suffice it to say that it has never been my intention that The Legal Roller
Coaster would be shelved permanently. A
brief (or not so brief, depending on your perspective) hiatus was, however,
required. Nonetheless, I’m pleased to
say that I’m back and that there will be some changes (for the better) coming
soon. But in the meantime, a new
long-awaited decision has been issued that makes now the best time in two years
to return to the blogosphere.
In mid-August, the 11th Circuit Court of Appeals
issued its ruling in A.L. v. Walt Disney
Parks and Resorts US, Inc.. A copy
of the decision can be found here
in case you are interested in reading it.
I wrote about this case before on a number of occasions (and I encourage
you to read at least this
piece before you read the rest of this one as it contains a much more
fulsome explanation of the lower court ruling than I’m going to provide here),
and I’ve been waiting for quite some time for the Court of Appeals’
ruling. And now, having read it, I
regret that I’m not sure its much help to the industry. Why? Let’s
get into it.
What is this case about?
The case presents the question: Does the Americans With Disabilities Act
require amusement parks to allow guests with cognitive disabilities, such as autism, to have unfettered,
on-demand access to rides and attractions?
The decision is actually the culmination of thirty separate
lawsuits against Walt Disney Parks and Resorts, each alleging identical
facts. The Plaintiffs are individuals
with severe autism who allege that they are incapable of waiting for Disney’s
attractions without experiencing a meltdown – a situation which can result in
uncomfortable, embarrassing, and potentially dangerous outcomes for the
autistic guest, family members or other guests.
In an attempt to accommodate these plaintiffs, and others
similarly situated, Disney adopted the Disability Access Service program. The DAS program allows guests who cannot wait
in lines to make an appointment for a ride.
Appointment times mirror the length of the line (with no appointment
needed for rides with less than a 15-minute wait). When the appointed time arrives, the autistic
guest and his / her party can board the ride through the FastPass+ boarding
queue with a minimal wait. Once the ride
is over, another appointment may be given – again based on the length of the
line at the next attraction. In between
appointments, DAS guests are welcome to visit any other ride, shop, eat, watch
a parade or show, or do anything else they would like in the park. There is no limit to the number of
appointments that a guest may receive and these appointments are in addition to
the three FastPass+ reservations that all Disney guests receive.
The Plaintiffs contended that the DAS policy did not satisfy
the ADA’s requirement for “reasonable” and “necessary” modification of policies
and procedures because it still required them to wait – just not in the
queue. They, instead, requested that the
park allow them immediate, unlimited, and on-demand access to all rides and attractions. When Disney said no, they sued.
Disney Wins … At First
The first decision rendered in these cases issued from Federal
District Court in Florida in May 2016. Disney prevailed in that case. In reaching its
decision, the Court correctly found that that the Plaintiffs could only prevail
if they proved two things first:
1).
That their requested accommodation (i.e. immediate, on-demand access to
all rides and attractions at all Disney parks) was “necessary” to afford them a
“like experience” in the park as compared to nondisabled guests; and
2).
That their requested accommodation was reasonable.
Even if the Plaintiffs were able to prove both of those things,
Disney could still prevail, however, if it could show that the requested
accommodation “fundamentally altered” the nature of the service Disney
provided.
With these three requirements in mind, the District Court
decided not to focus on the reasonableness of the requested accommodation or
whether it fundamentally altered Disney’s services, and instead focused
exclusively on whether on-demand ride access was necessary. The Court found it was not because the DAS
system, in combination with “readmission passes” (a pass that provided immediate
access to a limited number of rides), afforded the Plaintiffs an equal or
better experience compared to nondisabled guests. The Court also credited evidence that the
Plaintiffs generally travelled long distances to get to Disney’s parks, either
by car or plane, and were capable of waiting in those environments without
having a meltdown – undercutting, in the District Court’s view, the claim that
they could not wait between ride appointments.
In the 29 other cases that followed, the District Court issued nearly
identical rulings. The Plaintiffs
appealed.
A Reversal On Appeal
The appeal was brought before the 11th Circuit
Court of Appeals, which has jurisdiction over federal courts in Florida, Alabama,
and Georgia. The Court’s opinion looked
primarily at two issues. First, whether
the DAS policy was an impermissible “blanket policy” implemented without regard
to the individual need of each Plaintiff (or other guests for that matter). Second, whether the District Court was correct
in holding that the Plaintiffs’ requested accommodation – on-demand immediate
access to rides and attractions - was not necessary to give autistic guests a “like
experience” compared to nondisabled guests.
With regard to the first question, the Court upheld the
ruling of the District Court that this was not necessarily an unlawful blanket or
“one size fits all” policy. The Court found
that, while blanket policies were not usually permissible because they may deny
accommodations to a group that should have them, they are fine if they are
geared to the most severe disability. The Court credited Disney’s argument that it
has chosen to assume that all autistic guests are equally severely disabled
rather than try to individually assess each guest – which would be quite burdensome
given the tens of thousands of guests in each Disney park every day. The logic goes that if Disney’s DAS program
is sufficient to accommodate the needs of the most severely disabled guests in
the park, it will necessarily be sufficient to accommodate those less severely
disabled guests as well. The question,
then, was not whether the DAS policy was an impermissible blanket policy, but
whether it actually accommodated the most severely disabled guests such that a
blanket policy was legally acceptable.
The Court of Appeals parted ways with the District Court,
though, when it came to the question of whether immediate, on-demand ride
access was necessary to accommodate the needs of the Plaintiffs. Here, the Court found that the DAS policy might,
but might not, be an insufficient accommodation because it did not address the alleged
need of the Plaintiffs to avoid waiting at all.
The Court found that the Plaintiffs had presented evidence that the issue
for the Plaintiffs was not the inability to wait in line, but the inability to
wait anywhere.
“The
claimed disability is waiting at all.
Disney’s DAS program accommodates the need to avoid physical lines, but
not the need to avoid waits. It
addresses the geographic burden but not the temporal one. Plaintiffs must still wait.”
Recognizing that there was conflicting evidence as to the
extent of the impairments at issue – i.e. whether the Plaintiffs “are able to
transition to other activities without meltdown or other behavioral challenges
when they cannot access rides in their already-fixed routine order or cannot access
the same ride repeatedly” – the Court held that this question had to be
resolved by the District Court. It thus
remanded the cases, all of them, to the
District Court for trial.
So Where Does This Leave The Industry?

A ruling affirming the District Court would have been a
virtual blessing for other policies adopted by other park operators using
similar appointment-based systems. Such
a ruling would have strongly indicated that these policies complied with the
ADA and would have dissuaded future lawsuits challenging those policies. But … that’s not what happened.
Instead, the Court’s ruling puts all three questions –
necessity, reasonableness, and fundamental alteration – back on the table for
this case and future cases. The Court,
not necessarily inappropriately, suggests that the lawfulness of the policy
must be decided on a case-by-case basis that considers the specific needs of
each disabled guest in the park. It is therefore
conceivable that some of the thirty plaintiffs will ultimately be found
entitled to immediate, on-demand ride access and others won’t be. And while there is an academic appeal to this
kind of individualized application of the ADA, it does not lend itself well to
administering a policy in light of the huge volume of business that is
conducted at an amusement park every day.
Disney’s DAS policy, like similar policies all over the
industry, are designed to accommodate the needs of disabled guests while also
being administratively manageable given the number of guests and the relative
lack of expertise of the typical Guest Relations or Park Operations staff
member. If, as the Court suggests, the
DAS policy may not pass muster as a blanket policy because it does not actually
address the needs of the most severely disabled guests, then the Court’s ruling
implicitly suggests that individualized assessment of every disabled guest
would, in fact, be necessary to satisfy the ADA. Unfortunately, as a practical matter, that is
a very burdensome undertaking and one fraught with potential error given the
typical expertise of the park employee doing the assessment.
For that reason, I do not believe that this case will
ultimately be decided on either the necessity or the reasonableness prongs of
the ADA. Those are the prongs that turn
most on the individual assessment of the plaintiff – something that will, by
definition, change in every case. Instead,
I think the real battle ground for the DAS policy will be whether on-demand,
immediate boarding access “fundamentally alters” the services that Disney is
providing. Because the “fundamental
alteration” prong does not focus on the guest at issue, but on the requested
accommodation – something that does not necessarily change from case to case - a
ruling on “fundamental alteration” would provide much needed guidance to the
parties and the industry on how to move forward in a truly manageable fashion.
As for the merits of such an argument, I continue to believe
– as
I’ve previously explained in some detail – that there are good arguments
that avoiding all lines does, in fact, fundamentally alter the nature of the
services offered by a theme park. I won’t
rehash my previous analysis of this point in great detail, but I think there
are strong arguments that a guest that never has to wait in line, can ride
anything he / she wants, anytime he / she wants, and as many times as he/she
wants is going to have a fundamentally different experience in the park as
compared to a guest who spends, conservatively, half the time in the park
standing in a line. I also think that,
from an economic standpoint, this brand of access would force the business to
give away its product at a much lower price on a per-attraction basis. Whether Disney proffers similar arguments, or
others, I think it is likely that this will be the place where this decision
will ultimately center.
Are There Any Alternatives That Might Avoid Challenge?
So what if you, Mr. or Mrs. Park Operator, want to avoid the
fight and a lawsuit altogether, but don’t think it is fair to simply allow
unfettered access to rides and attractions?
Are there any alternatives that might pass legal scrutiny in light of
this opinion? While we don’t know
definitively, I think there could be some lessons lurking in the opinion that
might be helpful.
The first is to focus on what the Plaintiffs allege here
(and what future plaintiffs will almost certainly allege as well). There are two basic components: 1) They cannot wait for the rides they want
to ride. At all. Anywhere.
2) They have to go in a very specific sequence from ride-to-ride. This is, in the Court’s apparent view, the worst-case
scenario that a blanket policy should be tailored toward. Presumably, then, finding a way to satisfy
these needs, and thus accommodating the most severely disabled autistic guests,
would lawfully accommodate all other guests in an administratively manageable
way. So how could you do it?
I think planning may well be the key. I’m not talking about
planning by the families of disabled guests before they arrive. I’m talking about giving disabled guests the
ability to schedule their necessary sequence of rides for immediate boarding at
the beginning of the day at the park, but with a limit on the number of rides for
which immediate access is granted. And
what’s the limit? I think that (subject
to one caveat discussed below) is defined by the guest’s required
sequence. Let me put some more meat on
those bones.
If we accept that the most severely autistic guests have to
ride in a particular sequence, it follows that this sequence must have an
end. After the last ride in the
sequence, the next step is to leave the park.
That too must logically be part of the sequence. If it’s not, it frankly
calls the entire need for sequencing into question, doesn’t it?
So why not permit the guest to schedule, at the very
beginning of the day, his / her sequence in the park but nothing else. In other words, couldn’t a park simply allow
immediate access to the rides in the sequence but, once the sequence is over, immediate
access is over too? If the problem that
parks have is that some unscrupulous guests abuse the policy to get unlimited
ride access and to take unfair advantage over other guests, doesn’t this take
care of that concern? An autistic guest that
has to have immediate access to 10 rides in a specific order can get that
sequence – but nothing else. Once the
sequence is over, the guest is free to stay, but immediate, on-demand access is
over.
Now, I can already hear someone out there pointing out a
giant loophole in my suggestion. Erik,
you say, what’s to stop one of these unscrupulous people from simply creating a
sequence that takes the whole day to get through? What’s to stop abuse by guests who claim that
their autistic child must visit 38 rides in a row, every time, without stopping? I think there is an answer to that as
well: limit the sequence to the number
of rides (maybe plus an additional two or three) a nondisabled guest is
expected to ride each day. Parks know
that number for any given level of attendance.
Limiting the guest’s sequence to the lower of either the sequence itself
or the number of rides any other guest gets would seem to address the concerns
of all parties. Disabled guests would
get immediate access and would not have to go out of sequence. Parks could rest assured that abuse of the
policy would be limited since no one would get free run of the park all day and
all their guests would have a similar experience in the park. Everyone wins.
The bottom line from the Eleventh Circuit’s decision is that
parks that have an appointment-based admission policy should no longer feel
comfortable that they comply with the ADA.
Hopefully, round three of this case will bring some clarity, but in the
meantime, I recommend that parks give serious thought to whether their policies
truly address the “worst case” disability or whether they have sufficient flexibility
built into the policy to provide on-demand, immediate ride access for a particular
guest that might need it. I don’t think
we can, as an industry, argue any longer that on-demand, immediate ride access
simply is not necessary for any disabled guest.
This might sound a bit ablist, that's not my intent. I myself am autistic, I am high-functioning though. I feel though that it's not fair or reasonable to demand immediate and unlimited access to rides in the park. Disney is accommodating them by offering the DAS program, it more than takes care of the sensory needs of an autistic individual. Impatience and a desire to not wait is just that, a desire, not a need. And I feel a lot of these parents who are suing on the behalf of their autistic child are using their child's autism to be able to skip lines for themselves and are only concerned with getting the most "bang for their buck". Some however are simply just concerned with trying to make the day as perfect as possible for their child and completely disregard the fact that even children who aren't autistic are tired, overwhelmed and cranky by the end of a day at an amusement park.
ReplyDeleteThere's also the fact that parents are supposed to be teaching their children to be patient and wait their turn, a thing that those of us with autism struggle with, and an amusement park is a great place to teach them that kind of thing. Even if it means meltdowns.
Children born with autism can improve along a number of pathways but they will always have autism no matter how seemingly like others they may become.Autism Support
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