Overview of the Air Carrier Access Act (ACAA)
Released: 2009-05-19T00:00:00

Background

Congress passed the Air Carrier Access Act (ACAA) in 1986, with several goals. First, Congress intended to address the "unique difficulties" faced by individuals with disabilities, who often had no way to predict the extent of a given airline or flight crew's accommodation. Second, Congress intended the ACAA to overrule a Supreme Court case, Department of Transportation v. Paralyzed Veterans of America (PVA) , in which the Court held that certain nondiscrimination regulations then in effect could not be enforced against commercial airlines. Finally, Congress also intended to balance protecting individuals with disabilities from discrimination, on one hand, and the need to ensure general passenger safety, on the other.

The inquiry regarding the extent of protections under the ACAA is timely given public concern in 2007 about a man infected with XDR-TB who traveled on several passenger airplanes before he was placed in isolation and public concern in 2009 about the influenza A(H1N1) outbreak. This report discusses ACAA requirements and regulations, including regulations regarding airplane passengers with communicable diseases. It will also briefly discuss S. 2554 , 110 th Congress, and H.R. 5129 , 110 th Congress, which proposed to amend the ACAA to provide aggrieved individuals with a private right of action, attorneys' fees, expert fees, and the costs of the action.

The Nondiscrimination Requirement and Exceptions

The ACAA prohibits discrimination by air carriers against "otherwise qualified individual[s]" on the basis of disability. The statutory language regarding the scope of "disability" was the same under the ACAA as under the Americans with Disabilities Act (ADA) prior to the enactment of the Americans with Disabilities Amendment Act on September 25, 2008. Specifically, a person is an "individual with a disability" under the ACAA if the individual (1) "has a physical or mental impairment that substantially limits one or more major life activities," (2) "has a record of such an impairment," or (3) "is regarded as having such an impairment." Under the regulations, such individuals are "qualified" individuals with disabilities if they (1) take steps to avail themselves of services offered by air carriers, (2) make good faith efforts to obtain tickets for air transportation, or (3) purchase or possess valid tickets for air transportation and meet reasonable contracts of carriage. Prior to enactment of the ADA Amendments Act, courts typically found that individuals met this "qualified" requirement if they also satisfied the "individual with a disability" requirement.

The ACAA's statutory language is brief, leaving implementation to the Department of Transportation (DOT). The department originally promulgated regulations to implement the ACAA on March 6, 1990. Under the regulatory framework, air carriers violate the ACAA's nondiscrimination provision if they discriminate against an individual with a disability, "by reason of such disability, in the provision of air transportation."

Additionally, air carriers may not require passengers to accept special services. DOT's goal for this provision was to ensure that individuals with disabilities are not treated differently than other passengers. In Deterra v. America West Airlines , a federal district court noted that asking a person utilizing a wheelchair to advance to the front of a ticket line when he had not requested special service could constitute discriminatory conduct under the regulations.

Exceptions

The regulations provide two major exceptions to the general nondiscrimination requirement. First, carriers may refuse to serve individuals with disabilities "on the basis of safety." Second, carriers may refuse to serve individuals with disabilities when doing so would violate "FAA [Federal Aviation Administration] or TSA [Transportation Security Administration] requirements or applicable requirements of a foreign government." If a carrier denies service to an individual with a disability under either of these exceptions, it must specify its reason in writing.

Impacted Air Carriers

The ACAA impacts nearly all air carriers that transport passengers. Air carriers are defined as "U.S. ... or foreign citizen[s] ... [that undertake], directly or indirectly, or by a lease or any other arrangement, to engage in air transportation." It is clear from the ACAA's legislative history that the ACAA applies to both government and commercial air carriers. Additionally, in Bower v. FedEx , the Sixth Circuit held that the ACAA applied to a company that routinely allowed employees to ride as passengers in its cargo planes.

The original version of the ACCA exempted foreign air carriers. However, in 2000, Congress passed a law amending the ACAA such that it now applies to foreign air carriers. On May 13, 2008, the regulations were revised to include foreign air carriers, and the new provisions went into effect on May 13, 2009. Foreign air carriers now are required to comply with the ACAA for flights "that begin or end at a U.S. airport."

Application in the Context of Communicable Diseases

The ACAA contains no statutory reference to communicable diseases, but the regulatory text specifically addresses them. Additionally, the regulatory definition of "individual with a disability" appears to include individuals with communicable diseases. Similarly, courts generally accept communicable diseases as falling within the scope of "disability" under the ADA if the diseases meet the same parameters that other physical or mental impairments must satisfy. Although no federal court has reached the issue, it follows that courts would likely reach similar conclusions under the ACAA.

The regulations prohibit various actions by carriers against individuals with communicable diseases. Namely, a carrier may not "(1) [r]efuse to provide transportation to the passenger; (2) [d]elay the passenger's transportation ... ; (3) [i]mpose on the passenger any condition, restriction, or requirement not imposed on other passengers; or (4) [r]equire the passenger to provide a medical certificate." However, an exception applies when "the passenger's condition poses a direct threat." The regulations define "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services."

Carriers have discretion in determining whether a given passenger poses a "direct threat." The carrier must make an "individualized assessment, based on reasonable judgment ... to ascertain: (i) [t]he nature, duration, and severity of the risk; (ii) [t]he probability that the potential harm to the health and safety of others will actually occur; and (iii) [w]hether reasonable modifications of policies, practices, or procedures will mitigate the risk." However, note that within the scope of their discretion, carriers must choose the "least restrictive response" from the passenger's point of view. For example, a carrier should not "refuse transportation to the passenger if ... [it] can protect the health and safety of others by means short of a refusal."

Accessibility Requirements for Qualified Individuals

The Department of Transportation regulations require most air carriers to take specific actions in order to fulfill the ACAA's broad nondiscrimination requirement. Note that these requirements are minimum standards only.

Aircraft Accessibility

Aircraft must conform to multiple accessibility requirements under the regulations. First, "aircraft with 30 or more passenger seats on which passenger aisle seats have armrests" must be "equipped with movable aisle armrests on at least one-half of the aisle seats in rows in which passengers with mobility impairments are permitted to sit under FAA or applicable foreign government safety rules." Second, each aircraft with 100 or more passenger seats must offer priority space in its cabin for storing at least one folding wheelchair. Third, aircraft with "more than one aisle in which lavatories are provided shall include at least one accessible lavatory." Finally, aircraft with more than 60 passenger seats providing one or more accessible lavatories must provide an "on-board wheelchair" for passengers' use.

Attendants, Equipment, and Service Animals

Generally, air carriers may not require that an individual with a disability travel with an attendant. However, a carrier may require that an individual travel with an attendant if one of the following applies and the carrier determines that an attendant's assistance is "essential for safety": (1) the passenger will travel in a stretcher or incubator; (2) the passenger is unable to comprehend or respond appropriately to safety instructions; (3) the passenger has a "mobility impairment so severe that the person is unable to physically assist in his or her own evacuation of the aircraft"; or (4) the passenger has both severe hearing and vision impairments and "cannot establish some means of communication with carrier personnel."

Air carriers must allow individuals with disabilities to travel with service animals. In addition, carriers must "permit the service animal to accompany the passenger with a disability at any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation." Also, carriers must accept service animal identification cards, tags, and even "credible verbal assurances" from qualified individuals as proof that a given animal is a "service animal."

Similarly, airlines must allow qualified individuals with disabilities to bring ventilator or respirator equipment into the airplane cabin and use those devices during flights "operated on aircraft originally designed to have a maximum passenger capacity of more than 19 seats." Additionally, airlines must permit qualified individuals to stow assistive devices "in designated priority storage areas or in overhead compartments or under seats," including "(1) [m]anual wheelchairs ... ; (2) [o]ther mobility aides, such as canes ... , crutches, and walkers; and (3) [o]ther assistive devices for stowage or use within the cabin." These devices must be "consistent with FAA, PHMSA [Pipeline and Hazardous Materials Safety Administration], TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items," and a carrier "must not count assistive devices ... toward a limit on carry-on baggage."

Seat Assignments, Boarding and Deplaning Assistance, and Advance Notice

The regulations require all carriers to assist individuals with disabilities with boarding and deplaning if either the individual has requested such service or the carrier has offered such service and the individual agreed to receive it. Also, carriers may not require individuals with disabilities to sit in particular seats or refuse to seat them in any seat on the basis of disability. However, a narrow exception applies when refusing to accommodate a passenger in a particular seat is necessary in order for the carrier to comply "with FAA or applicable foreign government safety requirements."

Carriers generally may not require individuals with disabilities to provide advance notice of the fact that they are flying. However, various exceptions apply. Specifically, a carrier may require up to 48 hours of advance notice of a passenger's disability if that passenger plans to carry or utilize certain equipment on the flight or seeks certain accommodations enumerated in the regulations.

Security Screening

The regulations require that individuals with disabilities be required to undergo no more security screening procedures than individuals without disabilities. Likewise, security personnel must conduct screening of individuals with disabilities in the same manner in which they conduct screening of individuals without disabilities. However, they may examine an assistive device that might, "in their judgment," conceal a weapon or other prohibited item.

Enforcement

In the most recent cases, two federal circuits have held that private individuals have no ability to sue airlines for discrimination under the ACAA. Instead, those courts have suggested that the ACAA merely gives individuals the ability to complain to the Department of Transportation (DOT) and then to file petitions for review with federal circuit courts if DOT fails to investigate individual complaints. These holdings limit individuals' ability to enforce the ACAA through the federal courts. Instead, individuals often must rely on DOT to enforce complaints against air carriers. Furthermore, some experts have argued that DOT's enforcement ability is relatively weak, in part because it handles enforcement through its enforcement office rather than through its office of civil rights. DOT has indicated that it has investigated numerous ACAA complaints, sometimes seeking millions of dollars in civil penalties as a result of ACAA violations.

Legislation

The Civil Rights Act of 2008, S. 2554 and H.R. 5129 , was introduced in the 110 th Congress and proposed, in part, to amend the ACAA to provide for a private right of action. As noted previously, judicial decisions under the act have held that individuals have no ability to sue the airlines individually but must rely on the DOT to enforce complaints. The bills indicated that Congress disagreed with the judicial interpretations and noted that "[t]he absence of a private right of action leaves enforcement of the ACAA solely in the hands of the Department of Transportation, which is overburdened and lacks the resources to investigate, prosecute violators for, and remediate all of the violations of the rights of travelers who are individuals with disabilities." Although both S. 2554 and H.R. 5129 were referred to committee, the 110 th Congress did not enact this legislation.

As of the date of this report, the 111 th Congress has not introduced any similar legislation.