Opening Statement by Marca Bristo, March 18, 1999 (Report on the Enforcement of Civil Rights for Air Travelers with Disabilities

OPENING STATEMENT
BY
MARCA BRISTO, CHAIRPERSON
NATIONAL COUNCIL ON DISABILITY

ON THE RELEASE OF ITS REPORT ON THE ENFORCEMENT OF CIVIL RIGHTS FOR AIR TRAVELERS WITH DISABILITIES

WASHINGTON, DC, MARCH 18, 1999

We want first of all to welcome all of you to this event marking the release of Enforcing the Civil Rights of Air Travelers with Disabilities: Recommendations for the Department of Transportation and Congress. It is the first in a series of four reports by the National Council on Disability (NCD) on federal enforcement of disability civil rights laws entitled "Unequal Protection Under Law."

Next year the United States will celebrate the 10th anniversary of the passage of the Americans with Disabilities Act and the 25th anniversary of the Individuals with Disabilities Education Act. These milestones present an opportunity to reinvigorate federal enforcement of disability civil rights laws so that more Americans with disabilities and their families can realize the dream of equal access to full participation in American society.

This report, like the others that will follow, is grounded in the real world experiences of people with disabilities who, in this case, have endured countless violations of their rights as air travelers under the Air Carrier Access Act (ACAA). Unfortunately, NCD has found that although things have improved since ACAA was passed in 1986, people with disabilities continue to encounter frequent, significant violations of their civil rights. The negative experiences of disabled travelers go beyond the typical hassles all air travelers encounter. When you are dropped or mishandled by poorly trained staff who treat you like an inconvenient piece of luggage, when you can't get critical information because it is not provided in an accessible format, you are left with the feeling that you don't count, that your dignity as human being has been violated.

Experiences like these are often the result of a failure to provide basic accommodations necessary for equal access. Deaf travelers continue to miss flights because flight and gate change information is announced at many airports only through auditory public address systems. The location of airport TTYs is often not marked, leaving the deaf air traveler to search the terminal, often when under time pressure. Children with disabilities traveling with companions whose assistance they rely on are sometimes denied seating next to those companions. Blind or visually impaired people are sometimes forced to sit in wheelchairs to obtain escort assistance. It goes on and on.

From my own personal experience, I have an unfortunate wealth of horror stories on which to draw to underscore the range and frequency of violations I and others encounter when we fly. I am reminded of the time when I was seven months pregnant and forced to sit in an aisle chair at the door of the airplane in the winter while the entire airplane shuttled passed me because they were unable to find someone to lift me onto the plane. Or the time when I asked the flight attendant to check on my wheelchair and learned from the pilot that it had been accidentally given to another passenger. Or the time when I was left on the plane for 45 minutes with the lights out because the staff had forgotten that I was still on the plane. When these kinds of things occur, you feel angry, humiliated, sometimes afraid, not in control, violated. The emotional damage is not easily forgotten or repaired. For some people with disabilities, flying is so unbearable that any alternative means of transportation will be used.

The ACAA enforcement study reports some of the facts explaining why, 12 years after the law was enacted, people with disabilities continue to experience so much discrimination. The causes are many and complex, but a lack of strong federal enforcement has been a big contributing factor. Some of the most serious deficiencies in enforcement include:

Severe understaffing and underfunding: The Department of Transportation's (DOT) budget and staff for ACAA enforcement are too small to be effective. Only one full-time equivalent (or less) is responsible for follow-up on informal ACAA complaints. The Assistant General Counsel's Office for Regulation and Enforcement has only two attorneys working part-time on formal ACAA complaints.
Inadequate public education efforts: The majority of people with disabilities who travel by air do not know about their rights under the law. A major public education effort is needed to inform the public about the legal rights of air travelers with disabilities, and how to obtain these rights.
Failure to investigate most complaints of discrimination on the basis of disability: Complaints of discrimination on the basis of disability sent to DOT are usually not investigated to determine whether discrimination actually occurred. Satisfactory recompense to the complainant for discrimination is usually at the sole discretion of the airline involved.
Insufficient monitoring of disability complaints received directly by airlines: DOT monitors the discrimination complaints it receives against each airline and meets regularly with the airline to discuss them. DOT does not, however, monitor the complaints received directly by airlines which are 36 to 100 times the number received by DOT annually.
Inadequate technical assistance and inconsistent monitoring of airline compliance: There is no formal technical assistance program designed to help airlines comply with regulatory requirements and solve implementation problems. When problems are found during compliance reviews, follow-up is not consistent to ensure airlines take corrective action.

Weaknesses in the law itself undermine ACAA enforcement:

Civil penalties are too small to be effective, where a formal complaint has resulted in a finding of discrimination. The current maximum civil penalty is $1,100 per discrimination offense. Since 1987, only about a dozen enforcement orders have been issued for amounts ranging from $1,000 to $40,000. The total amount levied in civil penalties for ACAA violations by all airlines since 1987 is less than $150,000.
Plaintiffs who bring a civil lawsuit and win are not entitled to reasonable attorney's fees under law, or even compensatory damages. When compensatory damages or even attorney's fees cannot be ensured, few plaintiffs with disabilities can afford to fight a lawsuit. As a result, very few suits have been brought despite the numerous and continuing violations.
Foreign air carriers operating in the U.S. market are not subject to the ACAA nondiscrimination requirements. Although prohibited from "unreasonable discrimination" under another provision of the Federal Aviation Act, the provision was not successfully applied to a disability discrimination claim against a foreign air carrier until September 1998.

Despite continuing and serious discrimination against air travelers with disabilities, the situation is not without hope. We have met with U.S. Department of Transportation Secretary Rodney Slater, and his staff, to discuss the findings of this report. We are encouraged by Secretary Slater's willingness to acknowledge that more needs to be done, and his commitment to take concrete action to bring about change. Likewise, we see it as a very positive step that the Administration has come forward to support efforts to strengthen protections against discrimination with a proposal to amend the Federal Aviation Act. The Department's leadership and commitment are essential to bringing about the collaboration among stakeholders necessary to eliminate all forms of discrimination toward air travelers on the basis of disability.

Administration action alone will not resolve the problems identified in this report. We are pleased that Congressional leaders have indicated a willingness on a bipartisan basis to strengthen the Air Carrier Access Act as part of the reauthorization of the Federal Aviation Act or in other legislation. I particularly want to acknowledge the leadership of Senators Snowe, Wyden, and McCain, who were successful in including strong language in the Senate markup of the Federal Aviation Act. I am hopeful that House leaders will likewise support strong language in their bill.

We release this report today with the strong hope that equal access to air transportation services for all people with disabilities will become a reality, and that a new era of cooperation in achieving this dream is upon us. Thank you all for coming.