Braille Monitor                                                                           December 1986

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Congress Passes an Airline Bill:
Discrimination May Be Coming to an End

by Marc Maurer

Members of Congress in increasing numbers have been joining our battle to end discrimination against the blind on commercial airlines. This is shown by letters from key Congressmen and Senators to the Department of Transportation. The Federal Register notice which we reprinted in the October issue of the Braille Monitor takes note of the high volume of correspondence from Congress to the Department of Transportation on behalf of the blind. So the government, slow to respond as it may be, is finally waking up to the fact that airlines are discriminating against the blind. Getting the government's attention is one thing, of course--but finding a lasting solution is something else entirely. However, that long desired solution may soon be at hand as the result of a bill recently passed by Congress and signed by President Reagan on October 3, 1986. The new law (Public Law 99-435) states: "No air carrier may discriminate against any otherwise qualified handicapped individual, by reason of such handicap, in the provision of air travel."

This is an important new declaration of federal policy, which we can now use in our battle to be treated as equals by the airlines. But like most laws, the policy declaration alone does not answer all of the questions. Congress was clearly concerned that discrimination is occurring on the airlines. Also, there was no Federal law on the books adequate to prohibit the discriminatory acts. In June the Supreme Court said that Section 504 of the Rehabilitation Act of 1973 (a general prohibition of discrimination against the handicapped by federally assisted programs) does not apply to most airlines.

Regulations to carry out Public Law 99-435 will now be made by the Department of Transportation. The new regulation may clarify to some extent which acts are discriminatory and which are not. But don't count on firm answers from the regulations either. Only as we use the new law by applying it in particular circumstances--then (and only then) will we truly know that an end to discrimination against the blind by the airlines is at hand.

The official statements made by Senators and Congressmen as they debated and passed the legislation will be looked to both by the Department of Transportation and by the courts. Laws are interpreted by reading the Congressional intent whenever Congress has made its wishes known. In this case we, too, must understand what Congress expects from the airlines and from the federal regulators. Therefore, we are reprinting here several relevant excerpts from the Congressional Record. In the first discussion Senator Howard Metzenbaum (Democrat from Ohio) and Senator Dole (Republican from Kansas and Senate majority leader) take note of the discriminatory procedures which some airlines have engaged in under existing Federal Aviation Regulations. Senator Dole was the chief sponsor of the airline bill. For this reason it is highly significant that he responded to Senator Metzenbaum unequivocally in saying that airline procedures must conform to the legal mandate of nondiscrimination. Further, Senator Dole stated that the Federal Aviation Administration (not the airlines individually) will decide which procedures are (or are not) required for safety. In this connection it should be noted that the current safety regulations of the FAA have no limits on the seating of blind passengers. That is something which the airlines have sought to enforce on their own.

Under the new policy of nondiscrimination, will the FAA be willing to enforce the airlines' seating limitations? That will be one of the more challenging issues to be resolved. But it will be resolved. We are now closer to victory than we have ever been, backed by a new law that decrees that the airlines must have a nondiscrimination policy by the airlines. Here is what Senator Metzenbaum and Senator Dole said about what they intend the new law to do:

In the Senate of the United States
August 15, 1986

Mr. Metzenbaum. Mr. President, in order that the intent of S. 2703, the Air Carrier Access Act, may be clarified, I wish to make an inquiry of the distinguished majority leader.

Mr. Dole. Mr. President, I would be happy to respond to the Senator's questions.

Mr. Metzenbaum. Mr. President, as the distinguished majority leader knows, we are all very concerned that the Department of Transportation implement this legislation, upon its enactment, in an effective and timely manner. Toward that end, I understand that commercial airlines have already designed procedures intended to provide for the safe carriage of handicapped passengers and that these procedures are placed on file with the Federal Aviation Administration pursuant to a Federal Aviation regulation (14 CFR Sec. 121.586).

Mr. Dole. I am aware that these procedures to which the distinguished Senator refers have been developed by some of the airlines. I believe also that there have been regulations promulgated by the Federal Aviation Administration and its predecessor agency, the CAB. These regulations have been under development since 1977. They deal primarily with safety. However, since the Supreme Court decision in the "Paralyzed Veterans" case in June, the regulations affect only those few small airlines receiving direct Federal financial assistance.

Mr. Metzenbaum. The Senator is correct. The regulation I referred to was promulgated in 1977 and intended originally to provide access to air carriers for anyone who is handicapped. But the procedures left to each airline are not working. Incidents of discrimination continue in what appears to me to be an ever increasing pattern. In fact, the procedures themselves may actually be discriminatory in many instances.

A letter from the Secretary of Transportation received by me in July, 1986, a copy of which I believe was also sent to the majority leader, indicates that the Department does not evaluate the airline procedures for potentially discriminatory requirements, absent a specific complaint by a handicapped passenger. The only check made on the procedures by the Federal Aviation Administration is to determine that the procedures themselves do not pose safety problems.

If we are going to tackle successfully this problem of discrimination against the handicapped on airlines, we are going to have to be sure that the procedures that each airline places on file with the FAA do not contain discriminatory requirements.

Mr. Dole. May I say to the distinguished Senator from Ohio that I agree entirely with the sentiment he is expressing. I understand that a safety review of each airline's procedures is already made by the FAA. Our intent in S. 2703 is that so long as the procedures of each airline are safe as determined by the FAA, there should be no restrictions placed upon air travel by handicapped persons. Any restrictions that the procedures may impose must be only for safety reasons found necessary by the FAA. Beyond this, the Secretary of Transportation should review each airline's procedures in light of the regulations to be promulgated pursuant to S. 2703 to ensure that the procedures of each airline do not contain discriminatory requirements. This review will be essential in my judgment for the uniform, timely, and effective implementation of this bill's nondiscrimination policy.

Mr. Metzenbaum. Mr. President, I thank the distinguished majority leader for clarification of this point. Since the airlines already file procedures with the FAA, it just makes good sense that S. 2703 should require a review in order to bring the procedures into conformity with the nondiscrimination policy. I understand that this is the intent of the legislation.

Mr. Dole. Mr. President, the Senator's understanding is correct.

Mr. Metzenbaum. I thank the Senator.

The next speaker to join the discussion was Senator Charles Grassley (Republican from Iowa). He raised a point which is dear to the hearts of the blind, and the message must be heard by the regulation writers at the Department of Transportation. The discussion points up the fact that all disabilities are not the same. Many people, such as the blind (as Senator Grassley states), are not limited in their ability to use the airlines. Senator Dole agreed and explained further his intent that "abilities, not disabilities, " are to be emphasized by the nondiscrimination policy. As far as the blind are concerned, we are not going to be regimented into an overly simplified and single-minded mold, labeled "the handicapped." It is clear that the Senate majority Leader (the sponsor of the bill) agrees. Here is the discussion:

In the Senate of the United States
August 15, 1986

Mr. Grassley. Mr. President, I, too, rise in support of S. 2703, and I commend the Senator from Kansas, the distinguished majority leader, for bringing this legislation to the floor without delay. May I simply make one brief inquiry of the Senator?

Mr. Dole. Mr. President, I thank the Senator from Iowa, and I would be most pleased to respond to his inquiry.

Mr. Grassley. Mr. President, I am struck by the fact that S. 2703 contains a very broad definition of "handicapped person" fashioned, I believe, after the Rehabilitation Act of 1973. That seems appropriate to ensure that anyone who may be subjected to discrimination based on handicap will be afforded the protection of Federal regulations and this act.

However, each disability is not equally limiting, and different disabilities impose different limitations under different circumstances. Many disabilities impose no limitation or handicap whatsoever on an individual in air travel. Constituents of mine who are blind have made this point repeatedly--and I think legitimately--in their dealings with the airlines. Is it the intent of the Senator's bill to take these differences among disabilities into account, especially as the regulations are developed by the Secretary of Transportation? My concern is that discrimination against the handicapped often may arise by treating everyone who is handicapped alike, regardless of the nature or extent of the disability.

Mr. Dole. Given the general language of S. 2703, the distinguished Iowa Senator's concern is very important and appreciated. It is not our intent to regiment the treatment of the handicapped under identical procedures that apply necessarily in the same manner to everyone. Rather than focusing our attention on disabilities, we should be thinking in terms of abilities. Many individuals--including those mentioned by the Senator and others--may be able to use air transportation in precisely the same manner as all other travelers who are not handicapped. Others may need assistance. Everyone must be served in air transportation in a manner appropriate to their abilities. That is the intent of the nondiscrimination policy of S. 2703.

Mr. Grassley. Mr. President, I thank the Senator from Kansas for his clarification.

On September 18 members of the House of Representatives got their opportunity to speak on and vote for the bill to prohibit discrimination by airlines. Representative Norman Y. Mineta is chairman of the Aviation Subcommittee in the House. He, too, has been sensitized to the need to overhaul airline procedures that discriminate. Further, Mr. Mineta is not in favor of treating all of the handicapped alike. Here is an excerpt from Mr. Mineta's statement:

In the House of Representatives
September 1, 1986

Mr. Mineta. ...The bill now before us, S. 2703, will help ensure that airlines do not discriminate against handicapped passengers.

During the past year I had a number of meetings with representatives of handicapped groups and I have been concerned with the special difficulties which handicapped persons sometimes face when they travel. One cause of these difficulties appears to be that there is considerable confusion among airlines and their employees about the obligations of an airline to furnish the same air transportation services to the handicapped as are furnished to other passengers. The confusion has been increased by a recent Supreme Court decision which ruled that nonsubsidized airlines are not subject to the requirements of section 504 of the Rehabilitation Act of 1973 prohibiting discrimination against the handicapped.

The bill now before us, S. 2703, will make it clear that airlines may not discriminate against handicapped persons. The bill requires the Secretary of Transportation to enact regulations to ensure that handicapped passengers are treated fairly and are not subject to discrimination.

In addition, we expect the Secretary of Transportation to review the procedures for transporting the handicapped which the airlines have filed with the Federal Aviation Administration. The review will ensure that airline procedures do not discriminate and impose only those restrictions necessary for safety.

In carrying out its responsibilities DOT should bear in mind that all disabilities are not equally limiting and that many handicapped individuals are able to use air transportation in precisely the same manner as travelers who are not handicapped. DOT should ensure that handicapped persons will receive air transportation services geared to their capabilities.

These statements from congressional leaders make it clear that a new day, filled with hope and promise, has dawned for the blind in their battle for equality in air travel. It will largely be up to us (to us who are blind) to use the new law in ways which will put an end to discrimination by the airlines once and for all. Congress has declared the national policy--that there must be an end to discrimination by the airlines. Now we must make it all come true.