Deaf-Blind Woman Wins Lawsuit Against Continental Airlines
by Douglas Parker

From the Editor: The National Federation of the Blind was instrumental in persuading Congress to pass the Air Carrier Access Act in the mid-eighties. Although the regulations finally promulgated by the U.S. Department of Transportation were not all that we and members of Congress had intended them to be, the act has provided protections for disabled people in the years since its passage. The following article was written by one of the attorneys who argued a recent case in which the right of a deaf-blind woman to travel independently was upheld by a jury. It is good to know that this law we fought to pass is doing some good and that airlines are being forced to learn again the lesson that they cannot make up rules concerning the disabled just because they find it convenient not to deal with us. Here is what Mr. Parker wrote:

Winnie Tunison, a Silver Spring, Maryland, resident who is deaf-blind, recently won an important victory in a lawsuit against Continental Airlines. The lawsuit was filed under the Air Carrier Access Act (49 U.S.C. Section 41705) (the ACAA); it establishes an important civil rights precedent for persons with disabilities.

Mrs. Tunison, a recent grandmother and communications major at Gallaudet University in Washington, is an experienced airline passenger who has frequently traveled alone. She is fluent in English and ASL and reads Braille. In August of 1996 she flew alone from Washington, D.C., to Newark, New Jersey, on Continental Airlines en route to visit her daughter in Providence, Rhode Island. At Newark she was met by an airline employee who knew some sign language and who assisted her in getting to the gate for her connecting flight. There was no suggestion that she needed to have an attendant or have anyone else accompany her during the flight. Once she boarded her connecting flight, however, she was approached by an airline employee and told that the airline's policy prohibited her from flying unattended. The airline wanted her to get off the plane and wait at Newark until she could get someone to fly with her. After an hour's delay, and over Mrs. Tunison's protests, the airline found an off-duty flight attendant to sit with her (but not communicate with her) for the duration of the flight.

When she got to Providence, she called the airline and was told that she would not have to have an attendant when she flew back to Washington. After a two-week visit in Providence, however, Mrs. Tunison went to the airport for her return flight, only to be told that an airline attendant must travel with her on the flight back to Washington. The airline also told her that in the future she would have to have an attendant and that she would not be able to fly alone.

Upon returning home, she sent a letter to the airline discussing the legal regulations that the airlines must follow and asking the airline to clarify its policies. When she received no response to that letter, she filed a lawsuit in federal court in Washington.

The lawsuit raised an important question about the rights of deaf-blind persons, and persons with disabilities generally, under the Air Carrier Access Act. Under the ACAA regulations adopted by the U.S. Department of Transportation in 1990, an airline can require a person with a disability to travel with an attendant only under certain narrow circumstances. Specifically the regulations (14 Code of Federal Regulations (CFR) Section 382.35) permit an airline to require a passenger with both "severe hearing and severe vision impairments" to travel with an attendant only if the passenger "cannot establish some means of communication with carrier personnel, adequate to permit transmission of the safety briefing" required by Federal Aviation Administration (FAA) rules. If the airline and the passenger disagree over the need for an attendant, the airline must pay for the attendant.

After the case was filed, Continental Airlines took the position that, even if a deaf-blind person can communicate well enough to understand the initial FAA-required safety briefing, the crew can still find that they might have difficulty communicating in an emergency and can therefore require an attendant. In short, the airline said that it could ignore the specific requirements of the regulations wherever it was concerned about a passenger's safety in the event of an evacuation.

Mrs. Tunison's attorneys argued that the airline's position flew in the face of the very carefully drafted regulations concerning attendants and would expose deaf-blind persons to arbitrary and irrational treatment. They were also concerned that, if an airline can apply a generalized concern about safety to undercut a provision as specific as Section 382.35, it might be able to do so in interpreting other provisions as well. If the airline had prevailed on this point, many of the protections built into the ACAA regulations would unravel.

The case was tried before a jury in federal court in Washington, D.C., last November. After a four-day trial the jury found that the airline had violated the ACAA regulations. Consistent with instructions on the applicable law provided by the judge, the jury upheld Mrs. Tunison's position that an airline cannot ignore the specific language of the regulations and substitute its own speculation about what might be safe. Her position was reinforced by the U.S. Department of Transportation itself, which agreed with her interpretation of the regulations and began an inquiry into Continental's policies. As a result of that inquiry, we understand Continental has now revised its training materials and staff manuals.

While the jury did not award Mrs. Tunison any monetary damages, the case established an important point of law: airlines must comply with the ACAA regulations and cannot substitute their own judgments about safety for the requirements imposed by the government regulations. The case also showed that deaf-blind people have important rights when they travel, that they do not have to accept demeaning treatment from airlines, and that they can use the federal courts to enforce their civil rights.

For further information about this case or about the Air

Carrier Access Act, contact Mrs. Tunison's attorneys, Sunil

Mansukhani and Douglas L. Parker, at the Institute for Public

Representation, Georgetown University Law Center, 600 New Jersey

Avenue, N.W., Washington, D.C. 20001, (202)662-9535, voice, and

(202)662-9538, TTY, or by e-mail at <parker@law.georgetown.edu>