Braille Monitor                                                                           December 1986

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Department of Transportation Refuses to Enforce the Law

Any blind person who has been the victim of discrimination by an airline may file a complaint with DOT (the federal Department of Transportation). That is the case now, and it was the case even before the passage of Public Law 99-435, which prohibits discrimination against "the handicapped" on all airlines. The Secretary of Transportation (Elizabeth Dole) and other top officials of her department have repeatedly said in public statements and in writing that they will promptly investigate all complaints and take action to enforce the law. This, too, is not new. However, when the government says it will "promptly investigate" any complaint of discrimination and "take action to enforce existing laws," the expression and the reality may, to say the least, be divergent.

On March 19, 1986, Marc Maurer was manhandled by United Airlines' personnel and carried from an airplane. He was sitting in an overwing exit-row seat to which he had been assigned. On May 19, 1986, Mary Ellen Reihing was denied air transportation because she was seated in an emergency overwing exit-row seat to which she had been assigned on a Piedmont commuter flight. When Miss Reihing refused to leave her seat, the flight was cancelled and the plane taken to the hangar, where it was parked with Miss Reihing still aboard. On June 26, 1986, Barbara Pierce was arrested and removed from a Trans World Airlines flight by St. Louis, Missouri, airport police for occupying her assigned seat in an emergency overwing exit-row. All charges were dropped when the police found that Mrs. Pierce had (contrary to statements by airline personnel) not violated any law.

Each of these incidents became the subject of a specific complaint filed (with NFB's help) with DOT's Office of Consumer Affairs. The complaints were handled by the Office of the Assistant General Counsel for Aviation Enforcement and Proceedings. This was a critical test of the good faith and integrity of the Federal Aviation Administration and the Department of Transportation. Would DOT actually enforce a nondiscrimination policy? Would the airlines be ordered to remove their exit-row seating limitations? Would the airlines be found in violation of the law? Can the blind be forced to move from emergency overwing exit-row seats, seats to which they have been assigned by the airlines? These questions were the essence of the complaints presented to DOT for decision and action.

There should have been no delay and no problem in DOT's answers. The blind persons involved were subjected to treatment which was different from that accorded to non-blind air travelers. Each of the blind passengers was able to comply with reasonable, safety-related requests of airline personnel. There was no safety necessity for their removal from emergency exit-row seats, seats to which the airlines themselves had assigned them. Restrictions on seating of blind passengers are not called for as a matter of safety regulation by the Federal Aviation Administration. Therefore, the airlines discriminated against each of the blind individuals in question.

Under date of September 29, 1986, DOT's Assistant General Counsel for Aviation Enforcement and Proceedings issued his decision in a combined response to the three complaints. The airlines did not discriminate, he said. This decision by DOT's assistant counsel is, of course, not the end of the matter. It is only the beginning.

Always in the past the airlines (when they have been asked about their rules) have contented themselves with vague generalities, shadow-boxing, and ducking. Now, at long last, they have been forced into the open. They have had to explain in writing why they think the exit-row seating limitations for blind people are justified. The answers are almost more astonishing and unbelievable than the policies and the practices.

Here is what United Airlines said in part: "On April 8, 1986, United flight #732 landed at O'Hare International Airport and suffered a collapsed left landing gear. Because the Captain saw a fuel leak from the left engine of the B737 aircraft, an evacuation of the passengers from the right side of the aircraft was executed. Had the Captain not been able to see the fuel leak, a passenger exiting over the wing could have seen it and advised the crew and passengers not to exit over the left wing. The policy of not seating blind passengers in emergency exit rows is plainly intended to maximize the opportunities of a safe evacuation through removal of the exit window and assessment of an available over-the-wing escape path."

Is this argument reasonable? Would the average passenger (one who might have consumed several drinks) really stop in an emergency evacuation, make a cool assessment, report the matter back to appropriate personnel inside the plane, and cause a change in the pattern of evacuation? In the rush of passengers to evacuate the plane, how would a passenger fare who tried to buck the tide and re-enter the plane to find the appropriate person to whom to report? Would such a passenger be more likely to be heeded or trampled? It is reminiscent of the days when blacks were told that they must use separate drinking fountains for the safety of the public and barbers did not know how to cut their hair.

Here in part is what TWA said: "Ms. Judy Nichols, Ms. Pierce's secretary, submitted an affidavit which mentions that another passenger with a mobility handicap was seated next to an emergency exit and was not asked to move. As previously stated, TWA's regulations in this regard. . .are not directed toward handicapped individuals, but only to those passengers who would impede evacuation. A person with a mobility problem is fully able to read and obey the instructions for evacuation."

If the logic of this argument escapes you, all you need do is remember that it is airline logic. These are official statements provided to the Department of Transportation by airlines. Obviously they are filled with unfounded suppositions and false reasoning, but the airlines had to find some kind of argument to make. There is no more evidence that blind people are hazards in exit rows than there is that airline personnel are primarily concerned with safety. Witness the universal practice of serving an abundance of liquor to passengers in exit rows.

The correspondence reprinted in this article sets forth the situation in graphic detail. The lack of a rational basis for the exit-row limitations is obvious, and it is equally obvious that the superstitions and myths upon which these restrictions are based cannot withstand logical examination. Congress has now passed a new law which requires each procedure of an airline to be subjected to a nondiscrimination test. Restrictions that do not have a rational safety basis are not to be allowed in the future. The Federal Aviation Administration (not the airlines individually) will be required to say which procedures are necessary for safety and which are not. Under current federal regulations exit-row restrictions are not considered necessary for safety. It will no doubt be a matter of some debate as to whether that will continue to be the case. Meanwhile, the airline safety hoax is now completely in the open.

The ruling against the complaints of Marc Maurer, Mary Ellen Reihing, and Barbara Pierce is not particularly surprising or discouraging. It is simply an expression of present day airline thinking, backed by the bureaucrats at DOT. As is so often the case, this is not a dispute about facts to be settled by logic. The restrictions arise from prejudice. We have experience in dealing with prejudice. Other myths and superstitions have been overcome in our march toward freedom and equality. The airline battle is no different from the rest. Now that the airline safety hoax has been forced into the open and reduced to writing, we must meet and destroy it with the same determination we have shown in other such cases. This is the challenge we face, and it will require the combined best efforts of us all if the challenge is successfully to be met:

Washington, D.C.
September 29,1986

Mr. James Gashel
Director of Governmental Affairs
National Federation of the Blind
Baltimore, Maryland

RE: Complaints of Mr. Marc Maurer, Ms. Barbara Pierce, and Miss Mary Ellen Reihing

Dear Mr. Gashel:

This letter is in further response to your separate inquiries on behalf of the above individuals. Each of these persons was denied a seat in an overwing emergency exit-row of an aircraft because he or she is blind.

I have now received and reviewed responses from United Airlines regarding Mr. Maurer's complaint, Trans World Airlines regarding Ms. Pierce's complaint, and Jetstream International, of Piedmont's Commuter System, regarding Miss Reihing's complaint. A copy of each carrier's reply is enclosed for your information. For the reasons detailed below, none of the above complaints constitutes reasonable grounds for instituting an enforcement action against the respective carrier involved for a violation of Part 382 of the Department's regulations, 14 CFR Part 382.

In reviewing complaints alleging discrimination by airlines against handicapped persons, this office considers a number of factors before deciding whether to proceed with formal enforcement action. First, we attempt to determine whether the particular action taken by the airline affecting the handicapped person is required in the interest of safety. If it is, then we do not consider the action to be unlawful discrimination. In establishing whether a requirement exists, we look to the FAA for assistance. Where a Federal Aviation Regulation exists requiring a particular action or where the FAA requires a particular action as part of its approval or clearance process associated with airline manuals and procedures, we consider the action to be justified.

Second, if there is no express safety regulation requiring a particular airline action, we attempt to determine whether the action was justified. As part of that determination, we look to the primary motive of the airline in taking the action--that is, was the motive to improve safety or some other reason, such as operational convenience, or a lack of knowledge of, or sensitivity to, the abilities of handicapped persons. We also seek the advice of the FAA if the claimed reason for the action is safety.

Even if a carrier articulates a safety justification for its action, where that action deprives a handicapped passenger of adequate access under section 404 of the Federal Aviation Act, its action would violate Part 382. The duty to ensure safe travel has always been, and remains today, the highest priority of the Department. At the same time, it is our duty to ensure that all passengers, including the handicapped, have adequate access to air transportation. Where a carrier's voluntary action to improve the safety of its operations denies the handicapped adequate service, we have authority and will not hesitate to act. The facts of each case are of utmost importance in making these kinds of decisions.

Based on the information available to us, we have decided not to take any further action at this time with respect to the three complaints you have forwarded. In each case, the discrimination alleged concerned an airline's decision not to allow a blind person to sit in an overwing emergency exit-row. There is no specific FAA regulation allowing or prohibiting the seating of blind passengers in seats located in emergency exit-rows. However, the carrier policies in question are consistent with a safety recommendation contained in FAA Advisory Circular 12032, issued March 3, 1977, which at page 9, paragraph 9c, states:

"Ambulatory handicapped passengers should be seated in areas in which evacuation would normally occur through a floor-level, non-overwing exit." (Emphasis added)

The action taken by each of the carriers--asking the blind pasenger to move to a different row of seats--was consistent with the FAA recommendation and did not deny that passenger adequate service under existing regulations. [One thinks of the blacks who were required to sit at the back of the bus. Certainly they were not denied "adequate service." But back to the letter from the Assistant General Counsel.] Moreover, there is no evidence that the airlines took the actions they did for any reason other than to improve the safety of all the passengers on the airplane.

Whether Mr. Maurer, Ms. Pierce, or Miss Reihing have a civil cause of action and are due monetary relief for mental anguish, invasion of privacy, humiliation, or other costs requested in each of the complaints are matters properly pursued in another forum. The relief requested is beyond our authority.

Our decision with respect to the complaints you forwarded is based only on the current regulations and the information available to us now. The decision not to initiate an enforcement proceeding is that of this Office and does not reflect a decision of the Department with respect to any course of action in the future. As you are probably aware, the Department recently issued Notice 86-7 (51 FR 30078; August 22, 1986) which requests information from the public on airline practices and procedures affecting the travel of blind passengers. That notice specifically requests comments regarding the seating of blind persons in emergency exit rows, and on whether the Department should take regulatory action to ensure that blind persons are not denied the seating of their choice in this situation. You might wish to submit information to the Department to assist in its inquiry. A copy of Notice 86-7 is enclosed.

Please let me or Dayton Lehman of my staff know if you have any questions.

Sincerely,

Samuel Podberesky
Assistant General Counsel
Office of Aviation Enforcement and Proceedings

Baltimore,Maryland
October 15,1986

Mr. Samuel Podberesky
Assistant General Counsel
Office of Aviation Enforcement and Proceedings
Department of Transporation
Washington, D.C.

RE: Complaints of Marc Maurer, Barbara Pierce, and Mary Ellen Reihing

Dear Mr. Podberesky:

This is in response to your letter of September 29, 1986, announcing DOT's decision not to commence formal enforcement action in the above-captioned complaints. By this letter I am asking you to reconsider DOT's position on these complaints for the reasons set forth below.

Alternatively (should reconsideration be denied) please provide me with a statement that the decision not to commence enforcement with reference to each complaint is a "final agency action." If it is not a "final agency action," please advise me of any additional administrative remedies which we may be required to exhaust.

The basis for your conclusion that none of the airlines in question violated Part 382 appears to be that the "adequate air service " requirements were met in each case. But, of course, they were not. Each of the passengers was denied air transportation on the flight as scheduled. They were each detained through no fault of their own. Airline personnel in each case made the decision not to dispatch the flights as scheduled until their unreasonable demands were met by the blind persons or (under arrest) the blind persons were removed from the aircraft. Under the circumstances it is hard to imagine what the "adequate air service" standard really means. There was no air service as long as airline personnel held to their baseless and discriminatory demands.

Further, the "adequate air service" requirements of Section 404 of the Federal Aviation Act of 1958, Part 382, prohibits discrimination based on handicap. The concept of "adequate air service" therefore includes compliance with Part 382. However, the decision concludes that "adequate air service" was available and then fails even to consider or analyze the discriminatory conditions of seating which were imposed upon each blind passenger.

Yet, each blind passenger was unreasonably subjected to "separate or different" treatment. The net effect of the decision not to enforce Part 382 in these cases is to set aside Part 382, as though it never existed. The decision says in effect that, Part 382's requirements to the contrary notwithstanding, separate or different air transportation services for the blind are approved by DOT, as long as some form of "adequate air service" may be provided.

Under this standard of enforcement, Part 382 would not prohibit an airline from restricting blind persons to window seats in rows that are as far from emergency exits as possible. Some airlines have done this, attempting to justify the seating limitations by alleged safety reasons. Many airlines also insist that blind passengers wait submissively in their seats while others evacuate first in an emergency, regardless of where the blind passenger may be seated. Yet the Department's present enforcement standard would appear to permit airlines to direct the blind to wait during emergencies, as long as the stated reason is safety and "adequate air service" is provided despite the evacuation restrictions.

The decision not to enforce Part 382 is tantamount to a finding that the three blind passengers are not "qualified handicapped individuals. " Reliance on FAA's advisory circular (incidentally, not cited by any of the airlines in the responses to the complaints) appears to be the principal basis for the conclusion that the passengers are not "qualified handicapped individuals." But the advisory circular is not a safety regulation. As the decision correctly notes: "There is no specific FAA regulation allowing or prohibiting the seating of blind passengers in seats located in emergency exit rows."

It is a false and unsupportable presumption to hold that blind persons do not qualify to sit in emergency exit rows, while all sorts of non-blind persons with known and unknown limitations qualify for these seats. With respect to the blind subjects of these complaints, both the Department and the airlines would be hard put to prove in court that they are not as qualified as the non-blind members of any random group of occupants of emergency exit row seats.

Moreover, in the absence of a specific FAA regulation, the advisory circular should not in effect be accorded the status of a Federal regulation. In 1974, FAA actually proposed a regulation that included seating restrictions for blind passengers. The restrictions were rejected, however, in favor of having airlines develop their own procedures and file them with the FAA (See 14CFR Section 121.588). FAA does not disapprove airline procedures which do not impose seating restrictions on blind passengers. According to FAA officials, the airlines' procedures that do not have restrictions are accepted for filing, because they do not violate FAA's safety regulations. However, without a shred of evidence to support a decision which is contrary to FAA's "non-regulation" position, the decision in these cases sides with the airlines and against FAA's stated policy and actual practice.

As to the safety allegations of the airlines, the presumption should actually fall with the blind passengers, not with the airlines. According to the testimony of Mr. Maurer and Miss Reihing (see their affidavits), the airline officials involved in their cases disavowed safety concerns with respect to these particular blind people. It is noted, however, that United Airlines does raise the safety issue in its written response to Mr. Maurer's complaint.

By all indications, DOT has failed to insider the reasonableness (or rather the unreasonableness) of the three airlines' responses. As an example, we submit that the response from United is highly speculative and preposterous. Since the captain in a recent evacuation observed a fuel leak on the left-hand side of the aircraft, United reasons that a sighted passenger using the overwing exit on the left-hand side would have seen the leak and properly interpreted the danger of the situation. Then it also reasons that the sighted passenger could have reversed the evacuation then in progress so that all of the passengers would use the right hand exits only.

In the first place, we have no evidence that the fuel leak could have been observed from the emergency exit or on top of the wing. If the fuel leak could not be seen from the overwing exit (or on top of the wing), it wouldn't matter if an evacuating passenger could see. The leak would have to be seen from another vantage point, such as the captain's, which it was. But even if the fuel leak could be seen by a sighted person in the emergency exit row, a blind passenger in the same row could easily be told of the danger. In fact, all of the passengers (presumably all of whom were sighted) were warned of the danger by the captain, and they responded accordingly. It would be enlightening to learn how many (if any) of the sighted passengers observed the danger on their own and understood what corrective action should be taken. Interesting as it may be, the United Airlines incident offers absolutely no proof that blind persons are hazards in emergency exit rows. There was not even a blind person in the exit row. Nor is there any showing that the sighted passengers saw the danger. Under the circumstances United's safety claim for the seating restriction applied to Mr. Maurer is utterly unreasonable and without foundation.

In a similar unreasonable fashion, TWA claims that, by virtue of her blindness, Barbara Pierce would be unable to comprehend or follow the directions for opening and clearing the exit in an emergency. But this assertion lacks any showing that comprehension and following of directions depend upon sight or the physical ability to read the printed instructions. As she testified in her affidavit, Mrs. Pierce had read the instructions for operating the emergency exit window. She had physically examined the apparatus. Her intelligence level, reading comprehension, and diversity of experience are all greater than normal. But according to TWA, blindness bars understanding and the following of directions.

Here is an example of TWA's reasoning that the DOT's decision apprarently approves of and accepts. "Ms. Judy Nichols, Ms. Pierce's secretary, submitted an affidavit which mentions that another passenger with a mobility handicap was seated next to an emergency exit and was not asked to move. As previsously stated, TWA's regulations in this regard. . .are not directed toward handicapped individuals, but only to those passengers who would impede evacuation. A person with a mobility problem is fully able to read and obey the instructions for evacuation."

So, reading, comprehension, and the ability to follow directions (all qualities which Barbara Pierce has in abundance) are the traits which make for a qualified emergency exit-row occupant. Shockingly it matters not that the man with a mobility impairment could not move quickly in comparison to passengers without mobility impairments (including Mrs. Pierce). His slower movements would predictably block other passengers in their scramble to reach the emergency exit. And once on the wing, could the man with a mobility impairment quickly descend to the ground and run from the plane as Mrs. Pierce could do? From the evidence, it is unlikely that the man with a mobility impairment could even support himself or walk without his crutches. He would not, of course, have access to his crutches in an emergency. Yet, this mobility impaired man with sight is acceptable in an exit-row while physically fit and agile Barbara Pierce is not.

Surely it is obvious that the exit-row exclusions that were exercised by airlines with respect to Mr. Maurer, Mrs. Pierce, and Miss Reihing were and are arbitrary, capricious, and discriminatory. The exclusions were applied to these individuals solely because they are blind and without regard to their individual abilities. So, too, other passengers with their disabilities (known and unknown) were seated in exit row seats on their flights. The restrictions in the case of these individuals are based on prejudice, not safety. The written rationale presented by each airline demonstrates that any claim to safety in these incidents is baseless. In light of the foregoing, a reconsideration of the complaints of Mr. Maurer, Mrs. Pierce, and Miss Reihing is certainly in order. If a procedure for filing or refiling these complaints is available or required to obtain a "final agency action," please advise and explain the procedure. Thank you for your attention to this response and our request for reconsideration.

Respectfully submitted,

James Gashel
Director of Governmental Affairs
National Federation of the Blind

P.S. Secretary Dole's letter, sent to nearly half of the members of the Senate in July, 1986, states that, "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." That policy appears to be in keeping with the intent of Part 382. However, the decision not to commence enforcement actions in these complaints disregards Secretary Dole's stated policy. The inconsistency is that "adequate air service" is enough for an airline to avoid being found in violation of Part 382, discriminatory actions of the airline notwithstanding. In case there is any confusion or doubt about the matter, it is our considered position that under the circumstances involved in each of these complaints, the restrictions on seating were not reasonably related to safety or necessary for the provision of air transportation. Accordingly, DOT should undertake enforcement in accordance with the policy that Secretary Dole has indicated.