Deaf-Blind Woman Wins

Deaf-Blind Woman Wins

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

<[email protected]>