Braille Monitor                                                                                July 1986

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Congress Takes a Hand in the Airline Discrimination Cases

The National Federation of the Blind and its friends have been talking to the members of Congress about the treatment which the blind are receiving from the airlines, and things are beginning to happen. One must read between the lines of the technicalities and bureaucratic language, but it is clear that the machinery of the federal government (though it may creek and groan as it begins to move) is gearing up for action. Perhaps the Department of Transportation, acting through the FAA, will prohibit airlines from discriminating against the blind. Perhaps Congressional oversight hearings will be required. Perhaps the House or Senate Appropriations Committee will find it necessary to condition appropriations upon responsive behavior by the Department of Transportation. Whatever it takes, we intend to solve the problem--and we are making progress. When the chairman and the ranking member of the House Subcommittee on Aviation write a letter to the Department of Transportation, it is certain to get attention. When this is followed by a letter from almost half of the United States Senate, the situation cannot be ignored or swept under the rug. Congress is taking a look; the Executive Branch of government is taking a look; and some of the airlines are also taking a look. Individual congressmen and senators are calling for oversight hearings:

Committee on Public Works and Transportation
U.S. House of Representatives
Washington, D.C.
February 18, 1986

The Honorable Elizabeth Dole
Secretary of Transportation
Washington, D.C.

Dear Elizabeth:

In recent months we and many of our Congressional colleagues have received allegations that airlines are discriminating against blind passengers. The practices cited include requiring that blind persons be pre-boarded, even if they do not wish to do so; requiring blind presons to receive a special briefing and to answer questions to show that they understand the briefing; requiring that blind persons be seated next to persons of the same sex; requiring blind persons to sit on blankets; and statements by flight attendants to blind passengers that in the event of an emergency blind persons may not leave the aircraft until all other persons have left the aircraft. These and other practices are described in the attached letter and materials from Mr. James Gashel of the National Federation of the Blind.

We find these allegations very disturbing. Many of the practices described in Mr. Gashel's materials appear to be unrelated to safety concerns and show an insensitivity to the needs and capabilities of blind passengers.

At this time, we would like to receive a report from you on how existing DOT/FAA regulations deal with airline practices which discriminate against the blind, and on what steps you have taken or plan to take to enforce these regulations. On the basis of this report we may want to hold oversight hearings to consider whether further rulemaking or enforcement is needed.

First, with respect to the question of whether current regulations prohibit practices which discriminate against the blind, we find the current regulatory situation confusing. Both DOT and FAA have regulations dealing with the issue, and the relationship between these regulations is not clear.

DOT has regulations, which it inherited from the Civil Aeronautics Board after CAB sunset, which deal with transportation of the handicapped. Under 14 CFR Section 382.5, an air carrier may not, on the basis of a handicap, provide a person with air transportation or related services that are separate or different from the services provided to others unless the difference "is reasonably necessary to provide the person with access to air transportation or related services or is requested by the person." The regulation further provides that a request to a handicapped person by airline personnel will be considered unreasonable if it is "neither safety related nor necessary for the provision of air transportation." These regulations appear to us to prohibit an airline from adopting special procedures for the blind unless these procedures are required on safety grounds. (Footnote 1) We would like to know whether you agree with our interpretation of section 382.5.

The FAA also has a regulation on this subject. In 14 CFR Section 121.586, FAA provides that an airline may not refuse transportation to a passenger who needs assistance in the event of an emergency, unless the airline has established procedures for carrying such passengers and filed the procedures with FAA. It is not clear to us whether this regulation is intended to give the airlines freedom to adopt any procedures they choose or whether the regulation is intended to limit the airlines to procedures which are reasonably necessary in the interest of safety. We would assume that it would be beyond FAA's jurisdiction to authorize the airlines to adopt any procedures which are not required on safety grounds.

It is also unclear to us whether this regulation in any way affects the scope of the DOT regulation discussed above. For example, does the fact that a procedure has been filed with FAA preclude DOT from finding that the procedure violates the DOT rule against discriminatory practices? Does FAA review the airline procedures to decide whether they are required by safety and bring non-safety related requirements to DOT's attention? If not, how would DOT determine whether a particular procedure is a safety requirement?

We would appreciate your report on the problem of discrimination against the blind. This report should include your responses to the questions raised above, your comments on the following issues, and your comments on other issues you consider relevant.

(1) Do the DOT or FAA regulations described above, or any other DOT/FAA regulations, prohibit the airlines from adopting procedures which treat blind passengers differently from other passengers if there is no safety justification for the differing treatment? (Footnote 2) If so, do these rules prohibit the specific practices discussed in the first paragraph of this letter?

(2) If there are DOT or FAA regulations prohibiting discriminatory practices against blind passengers, what procedures are available for enforcing these regulations? Have DOT or FAA received any complaints that the regulations are being violated? What actions were taken in response to these complaints (including the current enforcement ease against Southwest Airlines) ? Have DOT or FAA taken any action on their own initiative to enforce any applicable regulations?

(3) Does DOT or FAA have any plans to amend their regulations or to undertake an expanded enforcement program to deal with discrimination against the blind? Thank you for your cooperation.

Sincerely,

Norman Y. Mineta, Chairman
Subcommittee on Aviation

John Paul Hammerschmidt
Ranking Minority Member
Subcommittee on Aviation

FOOTNOTES:

1. Or are required because of needs of a person for extraordinary special assistance during a flight. This does not appear to be involved in the situations described in Mr. Gashel's letter. 2. We are aware that there are specific regulations prohibiting various discriminatory practices by subsidized airlines, but that DOT's position is that these requirements only apply to airlines receiving subsidies for essential air services. Litigation is now in process to determine whether these requirements should be extended to all airlines. For purposes of this letter, we are primarily interested in the regulations applying to airlines which do not receive direct subsidies.

The Secretary of Transportation
Washington, D.C.
May 13, 1986

The Honorable Norman Y. Mineta
Chairman, Subcommittee on Aviation
Committee on Public Works and Transportation
House of Representatives
Washington, D.C.

Dear Norm:

Thank you for your letter concerning allegations that airlines are discriminating against blind passengers. Specifically, you inquired about how the Department of Transportation (DOT) and the Federal Aviation Administration (FAA) regulations affect airlines' treatment of blind persons.

The first regulation in question is 14 CFR 121.586. This rule provides that an airline may not refuse transportation to a person on the basis that the person may need assistance to move expeditiously to an emergency exit unless the airline has adopted procedures for carrying such persons and the person (1) cannot be carried in accordance with the airline's procedures, or (2) fails to comply with reasonable notice requirements in the procedures. The airline must file these procedures with the appropriate FAA district office.

The FAA does not approve the airline's procedures. When airlines file their procedures with the FAA, the FAA's practice has been to review them solely to ensure that they do not create safety problems. The FAA directs the airline to change the procedures only if they impair safety.

I am concerned by the apparent misunderstanding of this process expressed by airline personnel in a number of the situations described in the correspondence, which you enclosed with your letter, from James Gashel of the National Federation of the Blind. The airline procedures are not Federal regulations. By virtue of being filed with the FAA, company policies are not clothed with the authority of Federal law or regulation. They are simply company policies.

As you point out, 14 CFR Part 382 prohibits discrimination by airlines on the basis of handicap. Section 382.5 applies this prohibition to all airlines, regardless of whether they receive Federal financial assistance. More detailed regulations apply to airlines that receive such assistance, and we are considering whether more specific regulations should be applied to all airlines.

Specifically, section 382.5(b) prohibits an airline from providing, to a "qualified" handicapped person, services that are "separate or different from those provided to others, unless that action is reasonably necessary to provide the person with access to air transportation...." Section 382.3(c)(3) provides that a qualified handicapped person is one who is "willing and able to comply with reasonable requests of airline personnel..." Section 382.3(c)(3)(i) further provides that such a request is not reasonable if "it is neither safety-related nor necessary for the provision of air transportation."

We view Part 382 as prohibiting airlines from affording separate or different services to blind persons who are qualified handicapped persons. The Department would, therefore, regard as inconsistent with Part 382 an airline practice that afforded, to blind passengers, separate or different services that could not be regarded as being based on a reasonable expectation that the safety of the flight and the people on it would be jeopardized. The Department would also regard as inconsistent with Part 382 insistence by an airline that blind passengers comply with requests to accept separate or different services that are neither safety-related nor necessary for the provision of air transportation.

The fact that an airline's procedures have been filed with the FAA under 14 CFR 121.585 does not preclude DOT from finding that a provision of those procedures violates Part 382. In the event of a complaint that an airline has violated Part 382, the Department would determine whether the practice complained of was inconsistent with the regulation. In determining how to proceed on such a complaint, the Department would consider the safety justification for the challenged procedure.

The Department followed this course in bringing the pending enforcement case against Southwest Airlines. In deciding to proceed with this case, the Department's enforcement staff determined, in effect, that Southwest did not have a sufficient safety-related basis for adopting an across-the-board policy of prohibiting all deaf/blind persons from traveling without an attendant. Southwest has contested this determination, and the case was heard by an Administrative Law Judge on April 10-17.

Since January 1985, when the Department assumed responsibility for implementing Part 382, the Department has received only one other formal complaint of discrimination concerning a blind passenger. In that case, a blind passenger alleged that a carrier discriminated against him by refusing to board him on the basis that he would not give his name so that airline personnel could fill out a "passenger assistance form." This complaint is pending; our staff is awaiting a reply from the carrier. We have also received eight letters or phone calls concerning problems blind persons have had with airlines (including your letter and its enclosures).

The Department will continue to consider airline procedures affecting blind passengers on a case-by-case basis in response to complaints. Following the Supreme Court's decision in the U.S. Department of Transportation v. Paralyzed Veterans of America case (argued before the Court on March 26), we will consider what, if any, further rulemaking action concerning Part 382 is appropriate. At this time, we do not believe it would be appropriate to provide what, in effect, would be advisory opinions on the consistency of certain classes of airline practices (such as those mentioned in Mr. Gashel's letter and its attachments) with Part 382. An identical letter has been sent to Representative John Paul Hammerschmidt. I hope this information is helpful.

Sincerely,

Elizabeth Hanford Dole

United States Senate
Washington, D.C.
May 22, 1986

The Honorable Elizabeth Dole
Secretary
Department of Transportation Washington, D.C.

Dear Secretary Dole:

We are writing to express our concern about reports of discrimination against blind air travelers by commercial airlines.

It has been brought to our attention that the airlines' policies regarding treatment of blind passengers vary greatly, and there are reports that some airlines subject blind individuals to humiliating treatment. For example, in some cases blind people have been told that they must sit on blankets or be seated next to people of the same sex. Other instances of discrimination include reports that some airlines single out blind passengers and force them to attend a special briefing and to answer questions about it. On other occasions, blind air travelers have been forced to preboard even if they don't want to and have been told that in an emergency they will have to wait until the end of the evacuation line.

We are informed that these are not isolated incidents but instead reveal a systematic pattern of abuse. These practices do not appear to enhance airline safety and are an affront to the capabilities and dignity of blind people.

We are writing to request that DOT investigate this issue and, if necessary, revise current regulations. We further request your response to the enclosed questions which were drafted by the National Federation of the Blind. Thank you for your attention to this matter.

Sincerely,

Charles E. Grassley, U.S. Senator
Carl Levin, U.S. Senator
Paul Trible, U.S. Senator
Paul Simon, U.S. Senator
Gordon Humphrey, U.S. Senator
Arlen Specter, U.S. Senator
Bill Bradley, U.S. Senator
Patrick Leahy, U.S. Senator
Quentin Burdick, U.S. Senator
Sam Nunn, U.S. Senator
Howell Heflin, U.S. Senator
Christopher Dodd, U.S. Senator
George Mitchell, U.S. Senator
David Pryor, U.S. Senator
Paula Hawkins, U.S. Senator
John Heinz, U.S. Senator
John Rockefeller, U.S. Senator
Dennis DeConcini, U.S. Senator
Mark Hatfield, U.S. Senator
Howard Metzenbaum, U.S. Senator
Tom Harkin, U.S. Senator
Robert Dole, U.S. Senator
Don Nickles, U.S. Senator
Alan Cranston, U.S. Senator
William Cohen, U.S. Senator
Dale Bumpers, U.S. Senator
David Durenberger, U.S. Senator
David Boren, U.S. Senator
Jeremiah Denton, U.S. Senator
Paul Sarbanes, U.S. Senator
John Stennis, U.S. Senator
Pete Wilson, U.S. Senator
James McClure, U.S. Senator
Warren Rudman, U.S. Senator
Ernest Hollings, U.S. Senator
Frank Murkowski, U.S. Senator
Steven Symms, U.S. Senator
Jeff Bingaman, U.S. Senator
Strom Thurmond, U.S. Senator
William Proxmire, U.S. Senator
Lawton Chiles, U.S. Senator
Charles Mathias, U.S. Senator
Larry Pressler, U.S. Senator
Bob Packwood, U.S. Senator

QUESTIONS

(1) Please explain the relationship between DOT's regulations that prohibit discrimination against handicapped air travelers (14 CFR Part 382) and the FAA's regulation which provides authority for air carriers to refuse to transport handicapped individuals who may not be carried in accordance with an air carrier's procedures (14 CFR 121.586). It is not clear to us whether this latter regulation is intended to give the airlines freedom to adopt any procedures they choose or whether the regulation is intended to limit the airlines to procedures which are reasonably necessary in the interest of safety. We would assume that it would be beyond FAA's jurisdiction to authorize the airlines to adopt any procedures which are not required on safety grounds.

(2) Does the refusal to transport regulation in 14 CFR Section 121.586 affect the scope of the nondiscrimination regulation in 14 CFR Part 382? For example, does the fact that a procedure has been filed with FAA preclude DOT from finding that the procedure violates the DOT rule against discriminatory practices?

(3) Does FAA review the airline procedures to decide whether they are required by safety and bring nonsafety related requirements to DOT's attention? If not, how would DOT determine whether a particular procedure is a safety requirement?

(4) Do the procedures which air carriers file with the FAA, pursuant to 14 CFR Section 121.586, have the status of Federal Aviation Regulations? Does FAA enforce the procedures developed by the carriers?

(5) Do the DOT or FAA regulations described above, or any other DOT/FAA regulations, prohibit the airlines from adopting procedures which treat blind passengers differently from other passengers if there is no safety justification for the differing treatment? (Please respond specifically with respect to air carriers that do not receive direct Federal financial assistance.) If so, do these rules prohibit practices such as required preboarding of blind passengers, mandatory special briefings for the blind, restricted seating policies applied specifically to blind passengers, emergency instructions telling the blind to wait until others are allowed to reach the exits, and procedures requiring the blind to be seated next to other passengers of the same sex and to sit on blankets?

(6) If there are DOT or FAA regulations prohibiting discriminatory practices against blind passengers, what procedures are available for enforcing these regulations? Has DOT or FAA taken any action on their own initiative to enforce any applicable regulations?

(7) Does DOT or FAA have any plans to amend their regulations or to undertake an expanded enforcement program to deal with discrimination against the blind?

Congress of the United States
House of Representatives
Washington, D.C.
May 21, 1986

The Honorable James L. Oberstar
Chairman, Subcommittee on Investigations and Oversight
Washington, D.C.

Dear Mr. Chairman:

In February of this year, I wrote to you requesting that you hold hearings over discriminatory treatment of blind passengers by airlines. In March you responded that the Department of Transportation was examining this situation and a report was pending.

On May 19th there was another incident involving a blind woman at Youngstown Municipal Airport. The woman refused to move from an emergency row exit seat and the plane did not take off. Harassment of blind passengers sitting in emergency row exit seats is a serious problem that must be addressed. I am writing to again request that hearings be held on this issue. I would also be interested to know if the DOT report has been completed, and, if it has been completed, what the nature of the report was.

My major concern is that this latest incident underscores the fact that the policies of the airlines relative to the seating of blind passengers is highly discriminatory and without foundation. The Federal Aviation Administration has no regulations dealing with this situation, and has seen fit to leave such policy making decisions to the individual airlines. There is no empirical data that shows that blind people seating in an emergency row exit seat present any safety threat to the other passengers.

According to the National Federation of the Blind, there has never been an incident in which a blind person contributed to an injury on a plane or delayed an evacuation. All of the evidence indicates that blind people are able to handle themselves equally as well as sighted people. At the very least, the legitimate concerns of both the blind community and the airlines should be aired in a public forum, and those concerns should be addressed. Certainly, if discriminatory policies do exist, they must be eliminated.

I want you to know that your time and prompt consideration of this matter are greatly appreciated.

Respectfully,

James A. Traficant, Jr.
Member of Congress