Monday, August 8, 2011

See No Evil, Hear No Evil, Speak No Evil -- And, Do No Evil

Recently argued in court: The travel rights of blind airline passengers.

Whether blind airline passengers have the right to sue an airline under state law for failing to make website and airport kiosks accessible was the subject of a legal opinion issued last week by a federal trial court in California.

They do not, as a matter of law under the doctrine of "field preemption."

Some background:

In 2010, several visually impaired airline passengers claimed that their civil rights under California law were violated when their airline could make—but failed to make—its website accessible to them and others who use screen readers and other assistive technology (e.g., screen-reading software that converts visual information into speech or a Braille display).  The passengers also alleged that accessible airport kiosks, offering speech output and tactile or otherwise accessible keypads, were available on the market, but that their carrier had not installed any such kiosks at airports.  See Foley v. JetBlue Airways, Corp., 2011 WL 3359730 (N.D. Cal. Aug. 3, 2011).  See also National Federation of the Blind v. United Airlines, 2011 WL 1544524 (N.D. Cal. Apr. 25, 2011).

 Certainly the passengers had rights under California law, including laws that protect their civil rights and prevent discrimination against disabled persons, not to mention consumer protection rights. What was murkier was whether those state laws could coincide with federal aviation law concerning website and kiosk availability for the visually impaired.

Since 1978, airlines have been "deregulated" economically, meaning no state in America (i.e., California) is allowed to enact or enforce any law or regulation that relates to the price, route or service of an airline.   If a state were to enact such a law, it would be "preempted" or trumped by the federal law.

Potentially more complicated is the situation where both a state and Congress have laws in the same field.  That was the case here because, in 1986, Congress enacted the Air Carrier Access Act ("ACAA"), which prohibits discrimination against disabled people in air travel.  The ACAA states: “In providing air transportation, an air carrier ... may not discriminate against an ... individual [that] has a physical or mental impairment."  The ACAA is implemented through federal regulations promulgated by the United States Department of Transportation ("DOT").

One such regulation specifically address the issue of automated kiosks:

As a carrier, if your automated kiosks in airport terminals cannot readily be used by a passenger with a disability for such functions as ticketing and obtaining boarding passes that the kiosks make available to other passengers, you must provide equivalent service to the passenger (e.g., by assistance from your personnel in using the kiosk or allowing the passenger to come to the front of the line at the check-in counter).

This regulation effectively states that as long as disabled passengers are accorded equivalent service, they need not be given identical access to ticketing kiosks.

In other words, the ACAA regulations provide specific solutions to non-accessibility issues: under current regulations, if an airline's website is not accessible to the visually impaired, the airline may not charge a fee to a passenger who must make a reservation by alternate means; if an airline's website provides discounts to passengers who book travel online, that discount must be made available to passengers who are unable to use the website; if an airline's kiosks are not accessible to the visually impaired, the airline must provide an equivalent service to visually impaired passengers, such as providing assistance in using the kiosk or allowing the passenger to come to the front of the check-in line.  These express alternatives illustrate that the DOT regulations authorize non-accessible websites and kiosks so long as other measures are taken to accommodate visually impaired passengers.

Given these detailed and pervasive regulations, the DOT regulations occupy the field of disability non-discrimination in air travel and preempt state law as applied to the accessibility of air carrier websites and kiosks.

This is not the end of this story. In fact, the regulations at issue are "interim measures" and, until September 7, 2011, the DOT is expected to receive further comments from the public regarding a final rule regarding website and check-in kiosk accessibility.  Whether the final regulations will stay the same (in respect of concerns about airline cost and technical feasibility) or be amended to require an important accommodation for the visually impaired is an open issue.

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