Civil Rights For Air Travelers With Disabilities

Recommendations Issued For The Department of Transportation

A recent National Council on Disability (NCD) study finds that the Air Carrier Access Act of 1986 (ACAA) does not emphasize traditional investigation and prosecution of complaints similar to other federal civil rights enforcement agencies. Accordingly, the National Council on Disability (NCD) believes that Department of Transportation's (DOT)  approach is critically lacking in the key areas of compliance monitoring, complaint handling, and leadership.

The problems of ACAA enforcement arise from inadequacies not only in DOT's enforcement mechanism but also in the law itself. Unlike some other civil rights laws, the ACAA does not establish a private right of action and contains no provisions for attorneys' fees and damages. Neither does the law extend the nondiscrimination mandate to foreign air carriers operating in the United States, including code-sharing partners of domestic airlines. The law's general language invites contradictory interpretations. In lieu of an adequate budget and specific enforcement provisions in the law, DOT has adopted a minimalist approach that has delayed full compliance and consistent implementation across the industry.

Key Findings

The key findings indicate that ACAA implementation and enforcement efforts over the past 12 years have been so lacking in several essential areas as to constitute non-enforcement. A significant part of the problem is an extreme lack of resources that has affected DOT's capacity to develop and maintain a credible enforcement program or to adequately support ACAA implementation.

•DOT's budget and staff for ACAA enforcement are drastically inadequate.

•Congress has steadily cut the budget of the Office of the Secretary within DOT. As a result, the staff required for a credible ACAA enforcement program is simply not there.

•Most informal ACAA complaints are not individually investigated as are discrimination complaints filed with other federal agencies.

•DOT enforcement of ACAA is not within the purview of a civil rights office.

•The vast majority of complaints are not individually investigated, like discrimination complaints filed with most other federal agencies.

•DOT has taken little initiative to educate the public in general, and people with disabilities in particular, about their rights under the law.

•Most of the ACAA public information materials provided were sparse, giving only a general overview of ACAA provisions.

•DOT's informal complaint-handling system functions primarily to track, not investigate, complaints.

•DOT rarely evaluates the ACAA complaints passengers send directly to airlines.  By DOT's own account, an airline receives about 100 ACAA complaints for every 1 DOT receives.

•The ACAA provides no private remedy for individuals alleging civil rights violations.

•DOT's ACAA compliance monitoring is infrequent, inconsistent, and largely ineffective.  Researchers were told that DOT typically does not review ACAA training programs or records, the complaint handling process, or complaint records when conducting routine on-site reviews with airlines.

•DOT has not satisfactorily addressed significant gaps in the application of ACAA.  Foreign air carriers operating in the United States are presently not bound either by the ACAA or by U.S. aviation safety laws and regulations.

Key Recommendations from the Report

The NCD study concluded the following: if ACAA enforcement is to become effective the Dept. of Transportation must:

· Establish a discrete unit for ACAA civil rights enforcement that is independent of the Consumer Protection Division, within either the Departmental Office on Civil Rights or the Office of General Counsel.

· Request that Congress appropriate the funds necessary for adequate staff and resources to effectively run an enforcement office, including a line item for an aggressive public education initiative.

· Develop and carry out strategic ACAA education campaigns geared to persons with disabilities and to the general public.

· As for other civil rights laws, any ACAA complaint alleging a prima facie violation, including an informal complaint, should have standing. DOT should investigate all prima facie violations to determine whether a violation has likely occurred and take appropriate corrective action.

· Expand enforcement action for ACAA complaints to allow remedies for individual plaintiffs. Administrative action was never intended as a means for redressing individual civil rights complaints.

· Redesign DOT's database dedicated to complaint processing and maintain the data necessary for an accurate picture of ACAA compliance.

· Require air carriers to submit to DOT at regular intervals their ACAA complaint data in a format that tracks and compares the numbers and types of complaints.

· Undertake more extensive investigation and analyses of the causes of ACAA noncompliance among air carriers and airports.

· Expand compliance monitoring and enforcement activities and commit more resources (both staff and funds) to them.

· Provide more training and targeted technical assistance to the aviation industry in all aspects of ACAA implementation and compliance.

· Exercise leadership in facilitating resolution of the remaining technical issues impeding ACAA compliance as well as ongoing disagreements concerning appropriate accommodations.

The weaknesses of ACAA and DOT's current enforcement mechanism make an effective private right of action especially important. DOT's efforts to create the necessary incentives for ACAA compliance have been grossly inadequate. If ACAA's nondiscrimination mandate is to be realized, the disability community will have to use private right of action to create effective incentives.

For this reason, a private right of action must be made more accessible through the same statutory right to attorneys' fees and damages as plaintiffs under Title VII and the Americans with Disabilities Act. Such statutory rights have a common goal: to minimize the cost of litigation to plaintiffs and maximize the incentive of potential defendants to stop discriminatory policies and practices.