Ladies and gentlemen thank you for standing by and welcome to the ADA teleconference series. At this time all participants are in a listen only mode until the question-and-answer session and those instructions will follow at that time. If you would like to ask a question, if you would like operator assistance at any time you may press star on your touch tone telephone and I will turn over to our host, Robin Jones.
Welcome everyone and thank you for joining us for the ADA Audio Conference Series. This is a program that is brought to you as a collaborative effort of the ADA National Network and the Great Lakes ADA Center. We are glad that you are able to join us today. We have people who are on the phone today using a variety of different methods so some people will be on the telephone. Again, when time for Question and Answer, as indicated earlier, we will take your questions and feed them in to the speakers. On the webinar platform, you can ask your questions through the chat area. We have some people also using both technologies and captioning is available. So if you are needing of captioning, use the CC icon in the top left-hand corner of the webinar platform.
So welcome to our session today of “Hot Legal Topics in Accessible Transportation,” our presenters today are Barry Taylor and Rachel Weisberg. They are with Equip for Equality which is the Protection Advocacy Agency for the State of Illinois. Their biographical information was available on website, so I will not take time to read that directly to you today and I am going to get going with this session and I am going to hand it over at this time to Barry Taylor. So Barry, go ahead.
Thanks, Robin and welcome everybody, it is great to be here again. Today, we are talking about Hot Legal Topics and Accessible Transportation. When Congress passed the ADA, they found that transportation is the lunch pen which enables people with disabilities to integrated or mainstreamed in to society. So really, key component of the ADA and I wanted to make sure everyone was aware. Today's training is not a transportation 101. Instead, we’re going to be focusing on recent legal developments open with the courts as well as in the regulations that effect people with disabilities with respect to accessible transportation and we’ll be going through that and then available for questions on those issues once we get through those slides.
So today we are going to be focusing on four major areas. First, I am going to start and talk about some new developments with respect to air transportation, particularly under the Air Carrier Access Act and then Rachel is going to be talking about recent developments with respect to ride sharing like Uber and Lyft as well as taxi litigation. Then we are going to shift back to me to talk about some recent developments in public transportation. Rachel will then talk about some recent developments in private transportation and then we’ll open up for questions for the remainder of the session.
So the first issue we are going to be talking about are the air transportation, particularly the Air Carrier Access Act. And as everyone probably knows the Air Carrier Access Act was enacted in 1986. It was an amendment to the Federal Aviation Act and this was added to the Federal Aviation Act after airlines were found not to be covered by Section 504 of the Rehab Act and you might remember, too, in 1990 when the ADA was passed, it explicitly says that the ADA does not cover airlines.
So the question that we have today to talk about first is: is there a private right of action under the Air Carrier Access Act? In other words, can a private citizen bring suit under the Air Carrier Access Act? There’s no specific language in the Air Carrier Access Act about a private right of action and so it is a little bit unclear. Initially, the court had interpreted the ACAA to have what's called implied cause of action, which means that even though it is not actually in the statute, people could—individual private citizens could bring complaints in court under the law, and we’ve got a couple citations of early cases that held that provision. However in 2001 the Supreme Court decided a case called Alexander vs Sandoval and it was looking at what do you do when a statute doesn't explicitly say you have a private cause of action? Can you imply a private right of action? And that case wasn’t about the Air Carrier Access Act or even about disability; it was really, kind of a guide post as to what to do when you have these sort of situations and the bottom line for our purposes today is that it is very difficult to bring a case—a private case—unless there is an explicit cause of action within the statute as opposed to implied cause of action that had been used before. And since then, we’ve seen that courts consistently found there is no private cause of action under the Air Carrier Access Act and we have three examples of cases over the last number of years; the Lopez, Boswell, and Love case. So if there is no private cause of action, which is generally what’s accepted today, the main enforcement that mechanism under the Air Carrier Access Act is going to be filing a complaint with the Department of Transportation and we are going to give you a link in the later side on how you can file a complaint with the Department of Transportation.
So we wanted to talk about what do you do when you bring a cause of action an individual cause of action? Is there any way to utilize the Air Carrier Access Act? In the Gilstrap case, a fairly recent case, which provides some interesting information for private litigants. It is involving a woman who had osteoarthritis and she had asked for a wheelchair to assist her at the airport—she had asked United Air Lines’ assistance. And she alleged that United did not provide her with the assistance she requested. First, she said the employees were very rude and people yelled at her, said they didn’t believe she actually needed a wheelchair, told her she should just stand and there were significant delays in providing her a wheelchair when they finally decided to do so. So she filed suit in federal court, but she didn't file under the Air Carrier Access Act. Instead, she filed claims under state tort law and negligence claims, as well as the ADA. And even though she didn't make an explicit claim under the Air Carrier Access Act to establish standards for violations of the state tort claims for negligence. And we have a citation here on what the regulations say under the Air Carrier Access Act and it talks about how air carriers have to provide assistance in transporting passengers with disabilities through the terminal and that sort of thing. She wanted to utilize the fact that this was out there even though she wasn't bringing a claim under the Air Carrier Access Act itself. So the case made it up to the 9th Circuit Court of Appeals and the court declined to decide whether or not there is a private cause of action under the Air Carrier Access Act because she hadn’t raised it. So they avoided that issue. And then the question was, well can't she proceed with her tort law claims trying to use the standard from the Air Carrier Access Act and the court said yes. It said even though there is not necessarily a private cause of action under the Air Carrier Access Act, the standards under the act itself and the regulations can be the basis for a state tort law claim and that the Air Carrier Access Act does establish a standard of care owed to a person with a disability. Like the standards I talked about before regarding airlines to provide passengers with disabilities wheelchairs and that sort of thing. So it allowed the court tort claim to proceed using the standard from the Air Carrier Access Act even though that actually wasn't part of the case of the act itself. And then they moved onto the ADA and they affirmed sort of what I think has been fairly clear, especially within the ADA is that you can't bring a case against an airline under the ADA. It is not considered a public accommodation under Title III of the ADA. So she was only allowed to proceed under the state law claims using the standard under the Air Carrier Access Act. Following this decision, the case was remanded back to the trial court and ultimately was settled. So since private citizens are likely unable to have a direct cause of action for the Air Carrier Access Act, it is important to look what the DOT—the Department of Transportation—has done to try to enforce the Air Carrier Access Act and we have a good example of a recent effort by the Department of Transportation. Again, United Airlines is the entity that they were looking at. There were a number of complaints that were filed with the Department of Transportation regarding United to do a variety of things, providing prompts and adequate assistance on and off planes, providing assistance moving through terminals and they listed a number of different cities where these were problems, and then also, problem of returning wheelchairs or other mobility aids promptly to the passenger with a disability in the same condition. There were also concerns about people staying on the Tarmac too long, although that really wasn't a disability related claim.
There was a significant rise in the number of disability related complaints from consumers in 2014 and that prompted the investigation and ultimately the agreement that DOT reached between United Airlines in January of this year. They entered in to a consent decree, finding a number of violations of the Air Carrier Access Act and ultimately they agreed upon a 2 million dollar fine to be paid for by United and also an agreement that United will cease and desist from this similar conduct. You’ve got a cite to the press release that gives you a little more detail, but one thing I wanted to point out that’s interesting is you the is part of the fine, the 2 million dollar fine, is going to be used to develop technology that assists passengers with disabilities who want to make requests for wheelchairs and other disability-related assistance at the airport using a United Airlines mobile app. And so they are going to use part of that 2 million dollars to change their app to now have provisions on the app for making requests for assistance while you’re at the airport, which I think is a great change.
Department of Transportation also recently updated its regulations to address issue of website accessibility and airline. This was something that they put in place effective in 2013, at the end of the year, and basically the agreement is that—or the regulations require all airlines within two years, which would have been December of 2015 to modify their website pages with core travel information to make sure they are accessible and then by December 12th of 2016 all their Web pages have to be accessible. So sort of a phase in of accessibility with the core pages being accessible by 12/15 and all pages by 12/16 and they specified that the Web Content Accessibility Guidelines are the proper standard to use and they make clear that this applies to US Airlines, but also to foreign airlines as long as the foreign airline has a website to market to air transport to the United States. They also say that ticket agents must disclose and offer web-based discount fares to customers who are unable to use websites due to their disability. And then also once websites are accessible, the airlines still must offer equivalent services to passengers which are those who are unable to use websites, so there is equal service for people who use and don't use websites. We have got a link at the bottom of this slide for more details about this agreement. I also wanted to mention in addition to the website accessibility, this agreement—or this regulation also addressed airport Kiosks which many people use to check-in at airports. And those have to be accessible; 25% of them have to be accessible by the year 2022. So that's a longer term requirement but that's something that we will be seeing more of over the next few years.
The Department of Transportation has also issued what's called a notice of intent and this means they are looking at possibly issuing rules on a variety of issues and the issues they’ve identified at the end of 2015 are accessibility of inflight entertainment, supplemental medical oxygen, service animals, accessible lavatories on single aisle aircraft, feeding accommodations, and carrier reporting of disability service requests. And what this notice of intent says is that a committee will conduct interviews and investigations on these various issues and give DOT report with findings and recommendations and then DOT will use that to decide whether to proceed with rule making on one or more of these issues. So this is more of a heads up that DOT is looking at some of these issues as possible new rules but in sort of investigation stage at this point. So stay tuned.
Speaking about accessible inflight entertainment which is one of those issues that DOT is looking at there has been agreement that has been reached on this issue recently that may pave the way for some new regulations and that is the issue of accessible inflight entertainment with respect to a company called GoGo which provides entertainment and TVs and movies when people are flying. And this is an agreement that was reached with the National Association of the Deaf. They were represented by the Disability Rights Education & Defense Fund as well as the Civil Rights and Education Enforcement Center, two disability legal advocacy groups. And basically what they got GoGo to agree was to make that all inflight entertainment is accessible to people who are deaf and hard-of-hearing and they are going to be adding technology for customers, for those closed captioned on the content that GoGo already has and then as GoGo begins sourcing new content, they will be adding closed captions with the goal of replacing all their existing source content with caption by June 30th of 2017. That will be a big change for passengers who are deaf and hard-of-hearing to have more accessibility and the agreement and more details about that can be found at the link at the bottom of this slide.
We also wanted to talk a little bit about service animals, emotional support animals on plane because it is different than what we are used to under the ADA and the Department of Justice rules. As you might remember the Department of Justice really focuses on service animals and not emotional support animals and the Air Carrier Access Act is a bit broader and covers those service animals and emotional support animals. The tricky part is that permissible questions and documentation really depends on what type of animal, is it a service animal or emotional support animal. So let me just go through sort of the differences here. If it is a service animal, the first thing you have to figure out is if the individual has an obvious disability and has one of the three categories: the animal is wearing a harness, tag, vest or backpack, the person provides I.D. cards or other written documentation, or the person provides what’s called Credible Verbal Assurances that the animal is a service animal. And generally, what airlines should do is go to that third point first; see if the persona can provide credible verbal assurance about the animal being a service animal and you should only go to documentation if the verbal assurances aren’t credible. And then, if that all makes sense to the airline, they should permit the animal to accompany the person on the plane. However, if an uncertainty still arises after going through that line of question and review, airlines are permitted to ask a few questions. And the three that they are allowed to ask are listed here. First, what tasks or functions does your animal perform for you? What has the animal been trained to do for you and what do you describe how the animal performs for you or functions for you? That’s very parallel to what the Department of Justice requires or allows for inquiries with respect to service animals.
However if it is an emotional support animal it is a little bit different. For emotional support animals, or psychiatric service animals, Airlines are allowed to request more specific documentation and they are allowed to ask for it in 48 hours in advance of flight to substantiate the need for an emotional service or psychiatric service animal. The documentation doesn't have to state the person's diagnosis but it has to be current, it has to be on the letter head of a licensed mental health professional and it has to state that the animal is needed as accommodation for air travel or for activity at individual's destination. Those are the things that documentation must provide in order to allow an emotional support animal. The other thing I just wanted to mention, there are some provisions that talk about some other practical components, like the animal can't obstruct or aisle or other area needed for emergency evacuation. If you can’t accommodate the animal at the location of the seat where the person with a disability is, the Airline is supposed to offer to switch to an alternative location. And also that you can—airlines can deny a service animal in the cabin if they can—if there is a concern that the animal is a direct threat, meaning a significant risk of substantial harm or somehow causes significant disruption in cabin service. The inconvenience of other passengers isn’t enough but if there’s a significant disruption in cabin service that can be a basis for a denial of an animal on the plane.
And then I just wanted to mention another case it is not an Air Carrier Access Act but it involves air travel and I will do that to finish up and then turn over to Rachel and this is the Ruskai case involving a claim against the Transportation Security Administration, people who check security at airlines. And in this case the plaintiff had a metallic joint replacement and under TSA's security procedures, when she sets off the walk through metal detector, because she has the metallic joint replacement, she has to undergo a standard pat down when there is no advanced imaging technology standard and she is concerned about the standard pat down because it meant that people would be touching her breasts and groin area and she found it very intrusive. She tried to get TSA to change these protocols and they wouldn’t, so finally she filed suit under of the Fourth Amendment saying no unreasonable search and seizure and Section 504 of the Rehab Act. And with respect to Rehab Act she had argued that it was relevant because the TSA security measures have a disparate impact on people with disabilities. More people with disabilities are going to set off the metal detector than the average person. More people with disabilities are going to set off a metal detector than the average person. And so what she requested that the TSA conduct only metal search using a hand-held metal detector. So she sets it off going through the walk-through metal detector and should use a metal hand-held detector and not do the pat down. Because the pat down is too find nonmetallic weapons and since she will be setting off because she has allegedly metallic weapons they shouldn't do the hand pat down but instead hand-held metal detector. And the court found for TSA, they found—well first of all that the Fourth Amendment claim was not good because they looked at public interest and thorough searches and security versus the privacy concern and found when balancing that out that the security interest trumped the privacy concerns and then they also found that with respect to Section 504 she really wasn't denied meaningful access until a program like you would normally be required to show under Title II or Section 504 and even if they were to change the screening program just for her situation, would be considered a fundamental alteration to the TSA security program that they don't have to do and it would change the standard operating procedure across the country that would result in confusion and inconsistency. So they thought the request for the modification was not reasonable under 504 and the bottom line was that extraordinary safety concerns that the TSA has to address is sufficient to refuse some sort of change and therefore was not a violation of Section 504.
And in this last slide we have some resources for the DOT, some different ones, including a new one for guide for air travel for developmental disabilities, how you can file a complaint with DOT, there is a DOT hotline, we got the link here. There is also a number you can call which is 1-800-778-4838. You can file a complaint online or over the phone. And then also wanted people to realize that each airline has what is called a complaint resolution official at the airport or by telephone if you have a disability related complaint at the airport you can ask for a complaint resolution official to assist you. And with that I am going to turn it over to Rachel to talk about ride sharing and taxi litigation.
Thanks Barry and hi. Good afternoon to everyone. So ride sharing and taxi litigation are two of these issues that have been getting a lot of discussion, especially ride sharing. And one of the reasons why is just the way that ride sharing companies have really completely changed the face of the private transportation industry in the last couple of years and there has been this huge emergence of businesses and I am going to be calling the ride sharing businesses, they have a whole host of different names. These are the companies like Uber, Lyft, side car that are the ride sharing businesses. So just to give everyone a sense of how large these companies are, and what they are doing, Uber was launched in 2009 and since then it has grown really rapidly. The last year I saw it was is worth 62.5 billion dollars and Lyft is smaller than that and launched for recently in 2012 but still worth an estimated 2.5 billion dollars. These large companies that are changing the face of technology. So for those who are less familiar, the way that these companies operate is that by using an app a mobile app on someone's telephone passengers are able to connect with drivers in their area. And I'm sure most people have seen this issues on the news and other places that there has been a ton of complaints against these companies from passengers with disabilities alleging that drivers and the companies themselves are discriminating against them. So one of the legal issues that we want that to talk about today is something we see often when there is this new type of emerging industry and that is while does the ADA even apply and if so, what provisions apply and if so, what are those requirements. We have got some good news age some bad news for you. Starting with bad new there is no clear answer. You are not going to walk out of this training today knowing exactly 100% where the law is and that's because we are still really new and these cases are just being decided. The good news is that there has been a couple of cases and they have provided some guidance about what the ADA says with respect to these ride sharing companies.
So looking at one of the first cases that was filed and that's the case called Ramos versus Uber Technologies and this was brought by three individuals who have mobility disabilities and they brought claims against Uber and Lyft. They have said that these companies are violating the ADA, specifically violating Title III of the ADA in a number of ways. They don't have vehicle for hire services. They don't have accessible—wheelchair accessible vans to serve people who use wheelchairs and the allegations are also that drivers are simply denying services to people with disabilities. So maybe someone who uses a wheelchair who is able to transfer who needs assistance putting their wheelchair in the trunk of the car and other allegation that these companies are providing no training about serving customers with disabilities and no mechanism to even connect individuals who use wheelchairs with drivers who may have accessible vehicles. So the plaintiff in this case brought claims under a specific section of Title III and stay with me. I am going to explain this and that claim is under section 128184 and this is a part of the ADA that's specific specified transportation services. So we will be able to talk—we will talk a little bit more about what that is. But so what happened in this case is that Uber and Lyft filed a motion to dismiss. Before doing so, just flush out a little bit of this Title III background for you. So Title III, of course, prohibits discrimination for people with disabilities and the thing that we always think about or at least I know I think about when I think of Title III is the prohibition on discrimination for places for public accommodation. These are our typical businesses that we try places of public accommodation under the ADA is under specific requirements 12182 part of the statute but there is a separate part of Title III that is specific to private business providing certain services and this includes these service. It is under Title III but it is a separate section of Title III and the Department of Transportation has promulgated specific regulations for this separate section of Title III which has some overlap to the traditional places of public accommodation provisions, some incorporation of those provisions, but ultimately there are two separate sections. So with that background I want to walk through a few of the arguments that these ride sharing companies have been making. So first Uber said fine, okay, well, we are not covered because Title III only applies to places of public accommodation. And the Lyft had a similar argument they said even if Lyft is—even if—to get coverage under the specified public transportation service, plaintiffs have to say that Lyft is first a place of public accommodation. So in other words, it was a prerequisite for coverage and specified transportation service. And the court said no, no, no, no. Basically kind of explained what I had just explained earlier about the background and said look, Title III applies—there is two different sections. It is going to apply to both places of public accommodation and specified transportation services. These is two separate sections. You can qualify under both or one or neither but there is no prerequisite. No you have to qualify for one to qualify for another. So then Uber and Lyft decided to come up with another argument. We are not specified public transportation services. You want to know why? We don't provide transportation. We are a technology company. What we do is we connect users through our mobile based ride sharing platform. We don't own vehicles. All we are doing is connecting people with one another. So we are not a specified public transportation service. And this is the argument that we keep hearing these transportation companies say. While the good news for people with disabilities and advocates is that the court said, no so fast. If you look at the type of service being offered these ride sharing companies are plausibly subjected to the specified public transportation section. So we are not saying absolutely yes. But we are definitely saying not absolutely no. And in making that finding the court said the ADA often applies to situations that were not expressly anticipated. And so we are not going to dismiss the case on any basis. So that was an exciting finding for people with disabilities. They next argued, even if we are subject to the specify #d public transportation service some of the specific provisions required don't apply to us. For instance, there is a specific Department of Transportation regulation that you are going to hear us talk about today that requires training of personnel. So Lyft and Uber argued we don't have personnel. We have drivers. They are just people who we connect through our mobile app. They are not our personnel. They are not our employees and the court said well, maybe, maybe not. But that's not an issue that we can decide today under a motion to dismiss. So it is something that's going have to be decided further in the future.
And then finally Uber argue #d well, we have no ability to require our drivers to modify their personal vehicles or control conditions. There is nothing that we can do force anybody to comply. We have no control over this. Again all we are is a technology company. All we are is a mobile app that helps connect people. And this was an exciting part of the opinion because the court really disagreed with that. They called Uber's argument disingenuous to argue that it had to control over drivers. By very curbs there is some control over the drivers. And it is evidence Uber said these—I'm sorry the court said that Uber requires drivers to have a license, it requires drivers to have car insurance, a clean record and a four-door vehicle. Yes, this is not the most detailed level of control but there are some controls that are in place. And the court also said that it is—it is definitely plausible that Uber will be able to modify its application to at least connect riders with individuals who needed a specific type of drivers who had a specific type of vehicle. So what typically happens after a motion to dismiss is that you get in to more substantive discovery, more substantive briefing and some of these open questions are ultimately answered. It is not going to happen here because after the decision the case was settled under confidential terms some this particular litigation is over but it did answer those couple of questions for us. But it also remains—there is some questions that remains. Even if a company is subject to the ADA what's going to be the actual requirement for accessible vehicles. Is there a requirement to acquire an accessible fleet, just to connect riders with drivers and these are the types of challenges that we are bound to see moving forward. Are really important issues for people with disabilities?
The second big ride sharing case is not about wheelchair accessible vehicles but is instead focused on the issue of transporting service animals. So this is a case brut the by national Fed ration of blind in California and was a case brought against Uber. And here the allegations for that Uber was refusing to transport individuals who had service animals and a couple of examples of allegations were that the—is that when some individuals and passengers were trying to use a Uber the driver would shout things like no dogs and would absolutely refuse to accept passengers with service animals. The plaintiff brought a claim. The section specifically about places of puck lick accommodation and specified public transportation services. It happened in this case and I don't know if it was a direct result of the Ramos decision or if it was a result of the Department of Justice statement of interest that we will talk about, but ultimately Uber filed a motion to dismiss and it didn't really touch the specified public transportation service argument. All it did was it said it is not a place of public accommodation under the ADA and case law in the 9th circuit finding that places of public accommodation have to be physical places. A lot of the cases that we see about website access, questioning whether or not something that's not—has a physical (inaudible) can be a place of public accommodation.
While what happened in this case is that the court denied the motion to dismiss. So the court said that the plaintiff's claim was able to proceed. And so the court reasoned that there are these 12 different categories of place of public accommodation and Uber is going to be a place of public accommodation because it calls within this one category called travel service. The ADA doesn't define travel service but if we look at other courts across the country, there has been a lot of discussion about what a travel service means and discussion about how a travel service doesn't necessarily have to require a physical structure to qualify the place of public accommodation. The court went a little bit further to say there is absolutely no binding law out there is that Uber is precluded from regulation as a travel service. Based on all of that rationale Uber again using this lawyer language, plausibly qualifies as a place of public accommodation and so we have again this finding from a court saying yes, it is very possible that Uber is a place of public accommodation. So it is going to be subject to that specific part of Title III that governs places of public accommodation under the ADA. The update in this case is that the parties are currently in settlement discussions and so this will be an interesting one to find out what ultimately—what ultimately happens but it seems from the docket there they may be close to reaching a settlement so news on this case should be coming forward pretty soon.
It is always helpful especially in these areas of emerging industries to know what the Department of Justice thinks on any particular issue. And we have a glimpse in to DOJ's position because they filed a statement of interest. It is something that the Department of Justice can file when they have an interest in a case. It is usually when they want to clarify a specific legal issue and say we as the administrative agency that is charged with enforcing the law, want to explain a particular legal issue. So that's what they did in this—in the NFB versus Uber case. What the DOJ said is pretty consistent what we have seen in these cases. So what DOJ said is that an entity can absolutely fall within both transportation service provider provision and even if they are not a place of public accommodation. And so the DOJ clarified that if you look at the language of the specified transportation provider of Title III that it is really broadly defined. It is going to be defined as taxis and other demands response of transportation services which they are going to include these things like Uber and Lyft and they also say that the Department of Transportation regs are broadly defining what it means to operate a service. And so, you know, they didn't really offer an opinion about whether Uber is or is not a place of public accommodation but they wanted to clarify that these different provisions are distinct and that the specified public transportation provisions are very broad and could certainly include these ride sharing companies.
So in addition to bringing challenges under the ADA, some state and local governments are looking to ensure accessibility of ride sharing that works through legislation. So a quick disclaimer that this is certainly not everything about, you know, what's happening in the country but just kind of a quick snapshot of a few different initiatives that various state and local governments are pursuing. So we wanted to highlight three. One is a bill that was introduced in Georgia and this bill has specific requirements for the minimum number of wheelchair accessible vehicles. And that would apply, of course, to the transportation network providers. Here in Chicago there was recently a bill that was an ordinal that was introduce last month. So we already have an ordinance saying that—saying that if you have—that you have to be able to basically connect or you have to be able to provide some sort of wheelchair accessible transportation if you are a taxi cab and right now there is some ways to connect transportation providers with accessible taxi cabs. Proposed language is going to require a minimum of 5% of total vehicles for hire through the digital platform at Uber or Lyft offer to be wheelchair accessible vehicles. So that's going to be, you know, if this ordinance passes it would be a huge change in the way that these companies operate in Chicago.
Also says that the services offered by these transportation network providers have be equal in terms of pricing and response time. It is not enough to offer the service. And finally there is also an ordinance in Austin, Texas and it approached the situation in a slightly different way. They created a fund of ten cents per ride to support passengers who need wheelchair accessible vehicles. And they have get other things like conducting outreach events to make sure that publicize the need for these vehicles and accessible service indicators on the app to make sure there is a way to connect folks who would like to use wheelchair accessible vehicles with the vehicle themselves and they, too, like the Chicago ordinance are prohibiting on the higher fare. So again thee expect to see more of this type of legislation moving forward but just wanted to remind both that in addition to the federal litigation that's going on there is certainly legislative initiatives.
Another hot topic is the question of accessible taxi cabs and what are the obligations of government licensing entity? And the top case on this issue is one from a few years ago out of New York City. This is a case called Noel versus New York City Taxi and Limousine Commission. New York City licenses and regulates its taxi cabs even though taxi cabs themselves are a private industry and the law in New York estimates the number of yellow cabs. And really there is only at the time of this case was filed there was a very limited number of accessible cabs. I think the numbers were that 98.2% of the cabs were inaccessible which, of course, is a huge number. And so if you look at how that impacts people with disabilities the chances of handle any cab in Manhattan in ten minutes was 87%. The chances of hailing an accessible cab is way, way less. The plaintiff brought a lawsuit instead of challenging the taxi cab industry themselves they filed a lawsuit against New York City saying that the city is failing to give meaningful access to people with disabilities in violating Title II in the way that they were licensing and regulating—licensing the industry. Well, we thought this case was going to be good news for people with disabilities because at the initial level the district court found for the plaintiff and they grant partial summary judgment and the court had made a couple of findings say that yes, New York City was a public entity carrying out this public regulatory function and they can't discriminate. And here it is clear that people with disabilities were not getting meaningful access to the taxi cab industry. However the New York City appealed and the decision was vacated by the second circuit. The New York City industry is a private industry. It is not a city program and yes, there are certain restrictions on how a public entity can administer a license and certification program but that's not really what was happening here. So the court explained that if New York City was denying a taxi license to somebody with a disability, then yes, that would be a tie tell 2 violation. Here the issue is what access are the consumers of the licensing product getting and that's the court found was outside the scope of what Title II was requiring.
And another—the second circuit had also distinguished some other cases finding other state entities to be more involved in the regulation and licensing of certain products. For instance, there was a number of cases saying that lottery commissions have to require each of their retailers to be accessible and the court found this to be different and the reason why is that with a lot of cases the lottery commissions are actually furnishing a state program as opposed to here it is more of a straight clear licensing as opposed to administering a public transportation service. And the second circuit also said look, if you look at Title III there is exemption for taxi providers for purchasing accessible vehicles. We kind of looked at this case in trying to go in a roundabout way to assure something that wasn't required under Title III. What happened next and there is was in the second circuit decision a footnote saying that the plaintiff might have more force if they were able to—if they were able to allege that New York City had failed to include an accessible model on its list of possible vehicles for taxi cab drivers. And the plaintiff had suggested that that was something that might happen because New York City was coming up with this program called taxi for tomorrow where there was going to be one universal taxi cab vehicle. So surprise-surprise what happens next, the plaintiff sought to amend their complaint and the court allowed them to do so. New York City was planning to select a particular vehicle as exclusive cab vehicle for the next decade and that vehicle was not accessible to individuals who use wheelchairs. So after that the parties quickly announced the settlement agreement and it was an exciting settlement agreement. Required a phase in of accessible wheelchair cabs but by 2020 there is supposed to bed 50% accessible cabs which again is an exciting progress made in New York City. So we wanted to talk about two other cases in settlements with respect to cabs. The first is a Department of Justice agreement and here we have an individual Mr. Bernie who is a blind individual uses a service animal. And he alleged the Department of Justice that he was denied taxi cab access and the cab driver admitted that she did exclude this individual but she claims she didn't know he was blind and that she didn't know that the dog that was with him was a service animal. Well, the Department of Justice got involved and they reached an agreement. And it looks like a lot of the agreements that we see from the Department of Justice, there is a change of policy, and so this cab driver was required to have a service animal policy that welcomed all passengers prohibited her from requiring folks to pay a surcharge even if she already had a surcharge for transportation of a pet. Of course, because service animals are not pets and required her to undergo some training and pay some monetary relief, $1,000 to the complainant and a $1,000 to the United States as a civil penalty. We have a link on the bottom of this slide to both this particular agreement and also to another taxi cab agreement. Finally we wanted to flag a pending case that we think the case of interest for everyone to kind of keep an eye out for and this is a case called Stokes versus Total Transit Inc. Or TTI. In this case there was a class action that was brought by against one of the largest cab companies in Arizona. And the reason this case was brought was that TTI was imposing a $10 surcharge for trips using a van. This $10 surcharge applied regardless of whether the van had a lift or ramp. And it an I plied regardless of whether the customer required a lift or ramp and the surcharge wasn't necessarily applied if the customer haled the cab but still had an adverse impact on people with disabilities because it is disproportionately difficult to hail a cab that doesn't have the accessibility features. So when asked to explain why we have this surcharge, TTI said that there is a couple of different reasons. One, is that it had to basically compensate drivers for the additional fuel and efficiency of vans. But the vans also was a disability related reason. There was additional time required to carry a wheelchair. So some of that claims that the plaintiff are raising in this case, is that TTI violating the specified public transportation provision of Title III because they are purchasing new vans that are not accessible which is plainly in violation of the requirements. The plaintiffs are also arguing that they are charging this additional fee which is amounting to a surcharge for passengers with disabilities and even if they are going to charge that $10 fee under the ADA, they should be modifying that policy to make sure that people with disabilities are able to access the transportation services in an equitable way. There’s also an allegation that this $10 is establishing eligibility criteria that is screening out people with disabilities and there is also a retaliation component. After this company was threatening to stop its service for all vans if there was going to be a challenge about this $10 charge. And so the plaintiff included the retaliation case as well. This case is also currently in discovery. But it is an exciting case moving forward and one that we encourage folks interested in these issues to keep an eye out for. I am going to turn the presentation back to Barry to talk about public transportation.
Thanks Rachel. So the next few slides are going to be talking about some odds and ends of cases that fall in to the broader category of public transportation. The first one is not an Air Carrier Access Act case by deals with airlines but instead with the actual airport accessibility which is covered by Title II or III depending on the state or local government airport. This was the case in under Title II in Michigan and what happens here was the airport was going to relocate its drop-off pickup location for buses from an accessible area that where arrivals to ground transportation center. Who people with disabilities challenged this under Title II of the ADA and a settlement was reached to make the ground transportation center more accessible for folks. But what is really interesting about this is what happened next. And that is after the case was filed a couple of the bus entities that had assisted the plaintiffs and filed affidavits supporting their concerns about accessibility they felt like they were retaliated for doing this and they filed their own suit under the ADA. So you might remember Title V of the ADA contains a retaliation provision and the cause of action for individuals who oppose act or practice made unlawful by the ADA. So the classic example is say an employee files a charge with the EEOC and then they are filed for exercising their ADA rights. That's a retaliation claim and that's separate from the underlying ADA claim that you would make originally on discrimination. The case law is clear you don't have to show you are person with a disability to bring a retaliation claim. You have to be an individual. Because it talks about individuals as opposed to people with disabilities. But in this case the question is what constitutes an individual, can an entity like a bus company bring a retaliation claim. And so that was the issue before the court. And basically the court said no. Even though it appears that there was evidence that the airport did retaliate against these bus companies, there is no ADA claim because the plaintiffs them he’s are not individuals protected from the retaliation. Even though they were retailed against for helping people with disabilities in their discrimination claim, the bus companies did not have a right to bring suit. The next case we want to talk about is a case that was resolved through what are called structured negotiations where litigation is not filed. This was a case that was brought or agreement that was reached down in Houston with respect to the Houston transit agency and their accessibility online accessibility. There were two riders who were blind and they were represented by Lainey Feingold and what they did was this individuals and two legal advocates brought to Houston my attention they had accessibility problems and they said okay we will work with you to resolve this Amy cable. What Houston has agreed to do ensure website and mobile app complies with the web content accessibility guidelines they were supposed to have done that by the end of last year and agreed that their materials that they provide are available in alternate format like in Braille and they said that if captions are used, there will be alternate security measure. Hopefully folks know what captions. That's when you are online and you have to type in some sort of code. It is basically trying to keep hackers and computerized entities from going through websites and checking to make sure you are human but when you have to type in these codes if you are a person with a visual impairment it is not accessible. So there is buttons that you can place on these captions that will allow you to hear the instructions audibly and then you can enter the code appropriately. So that has to be added to their site. Also there are PDF documents and electronic forms made accessible and develop a website policy and identify a web accessibility coordinator. Really a complete overhaul of the electronic information by the Houston transit agency which is really exciting and if you want more details there is a link to the agreement at the bottom of this slide. We also wanted to point out sort of another way that transportation can be addressed and this is an investigation by the Department of Justice which has oversight of Title II including the transportation provisions of Title II and this is a letter of finding. Meaning that the Department of Justice is authorized to investigate and requests that an entity take corrective action and they do this before often before filing suit son this is what happened when they did an investigation of the Virgin Islands public transportation system and you will see a link on the top of this page to the actual letter of finding. What it does is highlights a lot of the different issues that arise in public transportation under Title II. Title II U under Title II in the Virgin Islands were the fixed route system and you know obviously it is a much smaller system but only half of the buses on St. Thomas had operable lifts. They said they were waiting for parts for months and the regulations say you have to repair wheelchair lifts promptly when they are out of an order and that was not happening and the regulations talking about swapping in vehicles when you don't have the parts available and this wasn't happening either and they have also found that the Virgin Islands was failing to regularly and frequently perform maintenance checks. They are supposed to check the lifts before the bus goes out and at the end of the day when it comes back to the bus barn and that wasn't happening on a regular basis. Other issues, you might remember that the ADA requires that transportation entities call out stops for people with visual impairments and what—the Virgin Islands was doing they were only calling out stops on request rather than calling out each stop. That was a violation, you shall call out the stop and not upon request and they found by having this sort of upon request component it discouraged riders from using a fixed bought section and they interview—they were no long going to use bus lines and the securement devices which were required were not in place. Buses over 22 feet are to have at least two securement devices and none of the five buses on a particular island didn't have one. A person with a wheel chair would try to board they said we cannot let you board because we don't have enough securement. They also have problems with their paratransit service as well. The paratransit provisions say that regulations say that you are supposed to meet 100% demand for next day ride and this was not happening. And in fact, they showed that the demand was increasing for paratransit but the budget was decreasing and the Virgin Islands was failing to supplement this increased demand and they were stagnant despite the increased demand and also inappropriately charging more than double for paratransit. You are allowed to charge double the main line fare and they were charging $2 which is more than twice and they found that the paratransit pickups were frequently untimely, especially 30 minutes before or after and they were late 22% of the time. They found that the paratransit in the Virgin Islands was indirectly implementing the provisions on companion riders. They allow to have someone companion and one person care attendant and they would only permit companions if space was available and also restricting kids under certain ages which is not permissible under the ADA. They also had very—restrictive reservation policies, the regulars are very clear that the service hours are supposed to be comparable to normal service hours. They had shortened the service hours. The regular transportation service was open until 5 o'clock and they didn't let people make reservation for Monday rides because Sundays they were closed. People couldn't get a ride on Monday at all. They also found that the Virgin Islands was failing to train personnel not only on the equipment but also with respect to how they interact with people with disabilities and being respectful and courteous which is laid out in the regulations as well. So this letter of finding lays out these different violations and plan of corrections to address all of them and no suit has been filed by the Department of Justice. So presumably the Virgin Islands is working to address those plans and requests for corrections. You might remember in previous trainings we have done we have talked about when you are standing to bring suit, when you are bringing standing under the ADA you have to show that there is going to be some sort of likelihood of future injury and we often see this when people are accessing certain businesses and they have to provide are going to come back to that place. This is applying that same concept to transportation with respect to Amtrak. The plaintiff in this case used a wheelchair, she can't stand or walk for more than three to five minutes and she was riding Amtrak from Florida to New York and she had made plans tore Amtrak to meet her with a wheelchair attendant and that person was not present. So she filed a suit under Section 504. And the court dismissed the case originally saying she had no standing because she hadn't displayed an intent to return to Amtrak. Well, this got appealed up to the second circuit and they found in favor of the plaintiff and said she is intending to patronize Amtrak again. The complaint stated her desire to use Amtrak for her own pleasure and be a tester. Unlike the restaurant cases or store cases where you have lots of choices there is only one national railway system. If she wants to travel by train to different states Amtrak is the only way that she is going to. And she gave evidence that she had used Amtrak in the past and lived in the city with an Amtrak station and that for inner city travel that is what only option was Amtrak. So the court found it was reasonable infer that the plaintiff intended to use Amtrak again if the violations she—she did meet the standing requirement and could go forward with the ADA case. One of the plaintiff's being our sister agency in Maryland and this is Freeman versus Smith. One was that the eligibility criteria was being inappropriately addressed. So, for instance, they were failing to assess comprehensively and accurately what—why somebody would need to use paratransit as opposed to fixed route and they were saying if you use fixed route some time then you weren't eligible for paratransit and sometimes people can use fixed route and because of the nature of the disability they have can't at other times and they were failing to state with specify the reasons for denying that eligibility. Mr. Freeman who end stage renal failure and they gave an example that he was can assessed for paratransit and during his assessment his blood pressure skyrocketed. He had used public transportation fixed route in the past. Therefore he won't eligible for paratransit and this was bizarre because they had found him eligible for paratransit in the past and nothing in really changed some there was no basis for finding him ineligible. So that was the basis for the suit. There was also concerns about the scheduling of paratransit ride and that they were consistently putting capacity constraints. People can’t get through to make their paratransit reservations. Maryland had been promising to fix their telephone call reservations. They had evidence even that 95% of people who called during the busiest hour got a busy signal and when you called generally 57% of people were getting busy signals. It was very frustrating for Maryland riders and this case was brought to address that issue as well as the eligibility issue. The status is that Maryland the plaintiffs here had filed a motion to preliminary unijunction to get the court that the Maryland transit authority needs to change is practices but the party started engaging in settlement negotiations. And the judge dismissed that motion without prejudicing and you can refile it and the settlement negotiations must be continued because nothing further has happened in the case. Last thing I wanted to bring up are a couple of changes with respect to Department of Transportation policy issues. One is that the federal transit authority has issued a circular. It is a really long document, but we wanted to point it out because it goes through a lot of different things on how to comply with disability laws. Transit entities that are having problems should refer to because it is very detailed and specific on different components of transportation. There is a whole section on training, talking about how to train people on consistently and reliably operating accessibility features and how to provide appropriate assistance to people with disabilities and treat them with respect. It goes over technical tasks as well as the human relations components about retraining and getting refresher training for both on existing issues and new accessible features. I would encourage folks if you want transit as well as advocates for people with disabilities to check this circular out. It lays out practical guidance on how to address a variety of issues. The other think that has happened in 2015 the Department of Transportation has resolved an issue that has been an uncertain issue within the courts. You might remember that under Title II is divided in to two parts. State and local governments as well as transportation. And under the state and local government provisions the Department of Justice has aisles been clear that state and local governments are required to provide reasonable modifications to programs and services. What was unclear though what about the other part of Title II, the transportation provision. Is there a reasonable modification requirement for that as well and many argued that the transportation modifications are specific and detail #d. And doesn't specifically reference a reasonable modification component. So transit agencies were seeing as long as we comply with what's laid out in the statute and regulations we don't have to provide reasonable modifications and there has been litigation trying to resolve this issue and the courts have gone different ways. Probably the most famous case is the case out of Texas versus Dallas area rapid transit and in that case the plaintiff was a paratransit user and wanted to be pick them up in the alley behind the house because of the front of the house being very inaccessible and slope was very difficult for the person to navigate and because the regulations say that your transit providers are supposed to pick up in the front of the house, they said we are not going to modify our policy and pick you up behind because we are complying with regulations. And the court the circuit said there is no reason bill modification provision under that part of the Title II. And so the Supreme Court denied to hear that case. Finally the Department of Transportation has clarified that and issued this new rule that makes clear that reason bill modifications are required under Title II provisions for transportation and you have a link to that. Now we I think we have a much clearer guideline from the federal transit agency that enforces this provision of the ADA that reasonable modifications are required to be provided by transit entities that I will turn it back over to Rachel to give the final session on private transportation and we will open it up for questions.
Thanks Barry. So moving on to private transportation, the first consent decree that we want to talk about is this really news worthy and recent agreement between the United States Department of Justice and Greyhound. This has been getting a lot of press because of the—the pretty significant monetary relief and systemic changes but I am getting a Lil ahead of myself. Department of Justice had alleged that Greyhound had violated Title III of the ADA by failing to provide full and equal enjoyment of a transportation services. So on the highlight a few of the examples of violations that DOJ had specified. DOJ said that Greyhound was not main training its accessible features. It was failing to provide passengers with disabilities assistance in boarding and also exiting at rest stops. And it was not enabling people with disabilities to be able to make reservation online for accessible buses. So what happened is that—that I reached this comprehensive settlement agreement and first start with the monetary relief. There is $300,000 compensation that's being provided already to passengers to the Department of Justice has already identified. But there is also a claims administer and what that claims administer going to do is go to be evaluating complaints filed by other impacted people and the idea is that this fund is going to compensate an uncapped number of people who have experienced discrimination within the last three years and the fund itself is uncapped. And so what that means for you or for anyone that you know who has a disability that's had negative experience with Greyhound that's violated the law is that you want to go on to the site, the claims administer site and submit your claim for relief under this agreement. In addition to that monetary relief that's both already identified and unidentified passengers, Greyhound is paying the $75,000 fine to the government. And I can't say for certain but I suspect that this is one of the highest settlements that Department of Justice has ever reached with respect to an ADA violation. So in addition to that monetary relief the agreement is also calling for really substantial systemic reforms. Because of the disagreement Greyhound is agreeing to basically remedy a lot of the complaints that I had just outlined. They are going to maintain their accessibility features and make sure they are in operative condition, specifically their lifts and other securement devices. S another hugely important change they are going to change the reservation system to make sure it is equivalent for people with disabilities. Now people with disabilities will be able to go on the online system and be able to check if they are traveling in a wheelchair or travelling with a service animal or if they need another sort of accommodation under the ADA. And, of course, now in our world of doing everything online this is a great change, really important change for equitable service for people with disabilities. Greyhound is also going to make sure that they are assisting people who need assistance with the use of different securements and devices, including assistance and boarding and de-boarding both at the initial stop and final stop and at rest stops. And, of course, they are not going to require people schedule trips, you know, reschedule trips because they are not getting accessible service. And as we see in a lot of these agreements Greyhound is going to hire an ADA complaint manager. That's a great way to really make sure that change is being effectuated is going to be one point person, complaints questions can all go to one person who is charged with knowing this information and you find that to be a successful way to make sure that compliance is realized. Couple other requirements, there is going to be a training for all employees and contractors on the ADA. And in addition to this ADA training it is—this is going to be a technical training about the proper operation accessibility features. When staff is trained to assist people with disabilities they know what they are doing and they are providing that—the assistance in a safe and respectful way. Greyhound is going to report every three months on its compliance efforts and going to create a system where people with disabilities are able to file complaints through its online booking system to make sure that there is a way to monitor how things are going. On the bottom of the slide 57 we are got two links. One is to the consent decree and two is to the claims administer site and this site is up. It is live and folks need to submit their claims I believe before November. So if that's something that has impacted you or someone that you know we encourage you to check it out. Most cases that we talked about today have really been about transportation companies themselves. But, of course, there are more traditional places of public accommodation that offer transportation services as one of their services. And that's exactly what has happened in this case. This is a case that was brought against a hotel as we all know hotels offer hospitality and a lot of times they offer transportation and that's what was happening here. This hotel is a nationwide change and had 127 hotels and 42 of them provided transportation services to their guesses. The ADA and Department of Transportation regulations do have accessibility requirements in that circumstance. The regs say that the hotels have to either purchase accessible vehicles or provide equivalent services and what the specific requirements are vary based on the size of the vehicle, when the vehicle has been acquired and whether it is on demand versus responsive system. While what happened here is that after this lawsuit was filed the parties reached a class settlement agreement and in the settlement agreement the hotel agreed to one, comply with those Department of Transportation regulations, they also agreed that they are going to provide accurate information to hotel guests which we all know is so important when someone calls and asks about the current state of accessibility, it is crucial to be able to relay accurate information and finally they agreed to provide an equivalent accessible transportation service and more than that it actually defines what equivalent is and it takes the definition pretty much from the Department of Transportation regulations which says that this equivalent service has to be again the same with respect to schedules response times, fares, geographic service areas, hours, days of services availability, reservation capable among other things. If we are going to provide this separate service it has to be equivalent. Because of class settlement one thing that happens unlike an individual settlement is that the plaintiffs and—both parties have to submit the class settlement to the court for approval. And so what's nice about that is that we sometimes with a settlement don't get the judge's perspective but in class settlements many times courts will write an opinion evaluating the fairness of the settlement. We have that opinion here and what happened the court granted preliminary approval to this class action settlement in addition to certifying the settlement class. One thing that the court did was talked about the agreement was fair, finding it to be fair but the other thing that was really interesting in this case is something that's kind of following along with what Barry had said earlier with respect to standing, you see an lot of ADA cases issue of whether plaintiffs have the ability to pursue an ADA case, about whether they are going to plan to return. And then a secondary issue what happens if the person wants to return, but one of the reasons they want to return is because they want to test ADA accessibility. In other words, they are a tester, an ADA tester and there has been pretty good case law out there about testers having standing and this case really provided additional support for that proposition and said that testers have standing to pursue injunctive relief and they are agreeing on a couple of other circuits and that issue. And plaintiffs are not going to lose standing because of their motive in patronizing a place is to test for compliance. And here the plaintiffs had standing because they testified that they would go back to these hotels if this was equivalent accessible transportation. So a great decision and we wanted to know there was kind of a second case, against Ashford Hospitality the site of here below, they brought a very similar case on a very similar issue and reached a very similar result and the court also approved that settlement and discussed the standing issues as well. Next thing we wanted to highlight three more Department of Justice settlement agreements about private transportation. I am going to speed through these quickly so we can have a little bit of time for questions. First is against this auto buses but this settlement agreement was an exciting one because it was entered by the Department of Justice with the private transportation bus company and some of the allegations were the same things that we have been talking about. Failure to perform maintenance checks and provide accessible service and if there was a lift equipped bus and provide training and file these reports. As a result of the settlement this bus company is agreeing to do all those changes. They are going to have an ADA training and ensure that their lifts are properly maintained and they are going to file the ADA compliance reports with the Department of Transportation. We also wanted to flag this Department of Justice settlement with Super Shuttle and this was about accessibility for service animals and kind of an interesting twist on surcharges. So in this case the complainant had both specific type of Super Shuttle where she was going to share with some colleagues and share with others. It was a cheaper type of service. It was only $91 but as soon as the Super Shuttle employee saw that she had a service animal they required her to have a more expensive type of trip. They said that they needed to have this exclusive trip, not with others because no one would want to travel with service animal. That's what they said and what's interest something that Super Shuttle actually did have a policy about service animals but clearly there was lack of training and that policy was not followed in this case which ultimately led DOJ to conclude this was this violation and unnecessary surcharge. Even though the surcharge wasn't what we typically think, that you have to pay an additional cost. It was more of you have to actually pay for more expensive service. So they found that to be a surcharge as well. And so a lot of these issue there was agreement where Super Shuttle is going to amend their service animal policy and they are going to clarify that they can be no additional surcharges. And that policy is distributed to all employees and all franchises going to be a service animal welcome sign a very clear location, each guest center which resigned to be a really effective way to educate and going to be training for all personnel and there was a monetary payment to the complainant. We are holding to the links and to the policy service animal welcome sign. We find the Department of Justice agreements are a great starting point for companies to come up with their own policies. So links to that are on the slide of 2. 62. And then the final DOJ agreement that we wanted to reference was a case with DC trails. And here it is kind more of the same but here they actually skip—they found a lot of the same problems that they were finding. The fleet was accessible and inaccessible buses were being used and no training how to use these—the different types of securement devices and so there was an agreement where we see this compliance with all the Department of Transportation regulations. Only going to be using wheelchair accessible coaches for fixed services and that's whether it is operating it or operating under our contract. And there used to be—this is kind of an interesting. There used to be worded materials from this company says that passengers needed to provide advanced notice. The Department of Justice agreement said to this company you need to go through and remove all of those written materials and have new written materials to make sure that the passengers know the current state of accessibility of your company so there is no advanced notice requirement required. And there is also training requirements again to make sure that people are aware of what the ADA requirement is and how to comply with these requirements. And then finally we just have a case to watch which is kind of an interesting interplay between the typical public accommodation world and places of transportation. And this is a case brought by our sister agency out in Ohio. Here there was a mall and for 30 years the mall actually allowed the local transportation company to operate a bus company. 13 years ago in 2003 the mall changed its policies with respect to public transportation. And they moved the bus stop all the way to the back of the parking lot and so this was really problematic for people with disabilities because they were forced to navigate through this parking lot that was over two football fields. This complaint was brought by individuals are mobile and visual disabilities seeking to move the bus stop closer to the mall's entrance. So the current status that the defendants have filed a motion to dismiss which is currently pending and another case to keep your eye out for. So with that I will turn the floor back to the operator or Robin to help us with some questions.
Ladies and gentlemen, if you have any questions at this time please press star and 1 key on your touch tone telephone.
Thank you. One here is if someone with a disability using a paratransit is further than three-quarters file from the fixed route does the transit agency have to track or report on timelines of their pickup or drop-off?
I don't know the answer to that off the top of my head as far as the tracking. We will have to look for and follow up with you.
Operator can you give instructions for asking question again. Are there any questions from the telephone?
As reminder, question on the phone line, please press the star and No. 1 key on your touch tone telephone.
While we are waiting, here on slide 19 you stated that there are three questions that can be asked for a service dog owner. This person was taught that there are only two lawful. I didn't think you could ask them to perform those tasks on command. Could you please clarify?
What is maybe a little confusing, what we are talking about is what DOT has put out as opposed to what DOJ has put out. This is what DOT has put out with respect to service animals and people on the—on planes. They are not actually required to show how they would do it. Instead it is describing how the animal performs the task or function. To look back at the questions it talks about the functions they perform for you, have they been individually trained and describe how they perform that function. It is not a demonstration or a description.
Any questions from the telephone?
OPEARTOR: We are showing no questions.
What about the issue of parking, shuttles from parking lots in airports. This person says I cannot ever recall seeing one that was wheelchair accessible.
Rachel can chime in here as well, she knows parking than I do, is that there is certainly parking accessibility requirements for entities that have public parking including airport shuttles or airports themselves. They would have the same requirements under the ADA that other that have parking would have.
Yes. That's true. That's a Title II—I mean Title III issue in general for transportation services. This is an individual who stating that they sorry they should have given you a heads up about something that DOT has issued a notice early this month stating that they will convening a negotiating rule making committee on three issues. Accessible rest rooms in single aircraft and inflight entertainment and three whether amend regulations, medical verification and whether the verification should be required for psychiatric service dogs as well as additional discussion of service animals and emotional support animals and psychiatric service dogs. There appears there is some additional discussion going on. This a negotiated rule making committee that has been convened or they put notice out that they are going to be considering these issues.
We talked about that when we talked about the notice of intent that was published in December and we listed the ones that we saw which were six different categories which included some of the ones the poster had mentioned and what our understanding is that was published in December of 2015. People could submit comments through January 6—December 7th of 2015, people could submit comments to January 6th, 2016 and then this committee is conducting the interviews and investigation and it is going to be providing recommendations to DOT. The six that we had identified were accessibility of inflight entertainment and supplemental medical oxygen, service animals and access lavatories on single aisle aircraft and feeding accommodation and carrier reporting of disability requests and there may be more that have come out since we looked at the notice from December.
It is probably an ongoing issue for sure and this is a question a little bit off. We are at the end of the hour here but can you discuss in more detail appropriate inquiries in to the reasonableness of emotional support animals in the context of requests made by DOT versus reasonable accommodation in workplace. Is there any case law in emotional animals in—when you start talking about emotional animals in any context?
Sometimes people get confused and think the ADA would only apply to additional service animals and that is in the Department of Justice guidelines on those issues. Employment may be different. And there may be different provisions and we don't have specific rules from the EEOC with respect to accommodating people in the workplace and accommodations of emotional support animals versus the sort of traditional service animals that the Department of Justice has defined. I think the main issue here is kind of like any other reasonable accommodation request, so for any reasonable accommodation request, including bringing in emotional support animal, the request has to be something is that you are allowed to ask both to confirm the disability as well as to confirm the need for accommodation and any link between the accommodation and the disability if it is not readily apparent. So employers are entitled to get information about the disability and reasonable accommodation requests which would be I would think confirmation of the person's psychiatric disability and also confirmation that emotional support animal would address the issue in the workplace that they are having a hard time dealing with. So if it is stress or attendance and the emotional support animal would help, they would need some sort of professional to make that link for them and any information that the employer gets has to be kept confidential just like on other parts of reasonable accommodation under the ADA.
Great. Thank you. And so we are at the bottom of hour. I know this is very information packed session with lots of detail as this is obviously a complex topic and we are glad that people were interested in it. We identified this topic as something that hadn't been covered a lot in a lot of different areas and we were hopeful this would meet people's needs and obviously by the interest in the questions that were submitted, it does. So thank you very much. I want to thank Rachel and Barry for providing their time and expertise on this particular topic and to all of you as well. So at this time, again we are done with the session. We do not have our next session established for May. We have had some scheduling conflicts. We will announce it, watch the website, watch the e-mail announcements, etc., as to what the May session is. We do already have a June session set. Again you can go to www.ada-audio.org and look at this schedule as it is being developed for the remaining upcoming months. Again thank you everyone for your participation. And this concludes today's session. Individuals on the phone can hang up and individuals on the website platform can just go ahead and disconnect at this time.