The Tools of Self-Advocacy for Airline Passengers with Disabilities

by Parnell Diggs

From the Editor: Parnell Diggs is the director of government affairs for the National Federation of the Blind, a former president of the NFB of South Carolina, and the previous owner of a law firm in that state which bore his name. One of his talents is translating the technicalities of the law into prose that laypeople can understand. Here is what he says about the letter of the law:

The general rule is simple enough: carriers are admonished that “You must not discriminate against any qualified individual with a disability, by reason of such disability, in the provision of air transportation” (14 CFR 382.11). But the pleasantries very often deteriorate from there, as many people with disabilities (including those who are blind) have experienced while flying the not-so-friendly skies.

The stories are all-too-familiar for members of the National Federation of the Blind who travel to the convention, Washington Seminar, or on other Federation business throughout the year. The purpose of this article is to flag some of the regulations passengers can cite en route to the Orlando national convention, for example, if confronted with an awkward situation at the airport or during flight.

Where appropriate, I will also give you citations to the Code of Federal Regulations, which will make your self-advocacy more effective and hopefully improve the flying experience. In this case, the origin of most of the regulations cited in this article are promulgated in the implementing regulations adopted by the United States Department of Transportation, pursuant to the Air Carrier Access Act of 1986, which protects passengers with disabilities from discrimination in various aspects of air travel.

The Complaints Resolution Officer (CRO)

Every air carrier that operates an aircraft with nineteen or more seats must designate a complaints resolution officer. “In any situation in which any person complains or raises a concern with your personnel about discrimination, accommodations, or services with respect to passengers with a disability, and your personnel do not immediately resolve the issue to the customer's satisfaction or provide a requested accommodation, your personnel must immediately inform the passenger of the right to contact a CRO and then contact a CRO on the passenger's behalf or provide the passenger a means to do so… Your personnel must provide this information to the passenger in a format he or she can use” (14 CFR 382.151(c)(1)).

The CRO must be available at the airport at all times that a US carrier is operating flights at that airport; for foreign carriers, the CRO must be available at the airport for all flights beginning or terminating at that airport.

The CRO is intended to be a powerful individual with authority to make dispositive decisions for the carrier of all complaints and even overrule decisions made by other airline officials except where the “pilot-in-command of an aircraft” makes a decision based on safety. But, short of a safety decision made by a “pilot-in-command of an aircraft,” the CRO can address your issue.

Website Accessibility

As of December 12, 2016, airlines that operate at least one aircraft with a seating capacity of more than sixty passengers and own or control a website must insure that the public-facing pages on its primary website are accessible using World Wide Web Consortium (W3C) Recommendation (11 December 2008, Website Content Accessibility Guidelines (WCAG) 2.0 for Level AA standards).

This means that, whether you are booking a flight, changing a reservation, purchasing additional services, or dealing with frequent flyer programs, the Department of Transportation requires that those activities and services must be available to disabled passengers if they are made available to the general public online.

The Airport

Entities which contract with airlines are also bound by the Air Carrier Access Act implementing regulations. (e.g., those who provide gate-to-gate assistance for passengers needing to make connections or for passengers arriving at the airport or departing after reaching their destination.) Contract personnel are also subject to CRO authority.

The Aircraft

Quoting the regulations, “You must not require a qualified individual with a disability to accept special services (including, but not limited to, preboarding) that the individual does not request” (14 CFR 382.11(2)). The airlines are required to offer preboarding, and some personnel take this obligation very seriously, but a blind passenger who does not want to preboard cannot be compelled to do so.

Under the regulations, airlines may offer an extra safety briefing to blind passengers, but blind passengers are not required to accept it. According to 14 CFR 382.115(b), “You may offer an individual briefing to any other passenger, but you may not require an individual to have such a briefing except as provided in paragraph (a) [referring to the general passenger briefing] of this section.”

Canes and Guide Dogs

14 CFR 121.589(g) In addition to the methods of stowage in paragraph (c) of this section, flexible travel canes carried by blind individuals may be stowed -

(1) Under any series of connected passenger seats in the same row, if the cane does not protrude into an aisle and if the cane is flat on the floor; or

(2) Between a nonemergency exit window seat and the fuselage, if the cane is flat on the floor; or

(3) Beneath any two nonemergency exit window seats, if the cane is flat on the floor; or

(4) In accordance with any other method approved by the Administrator.

Longtime Federation leader Patti Chang recently used this regulation to convince a flight attendant to allow Patti to store her cane at her seat, though she was first threatened with forced removal from the flight by federal marshals. Also, 14 CFR 382.121 requires carriers to permit passengers to bring “mobility aids, such as canes (including those used by persons with impaired vision)” into the aircraft cabin.

The final set of regulations in this article refers to guide dog users. Carriers have been making it increasingly difficult for guide dog users to travel in peace. Accordingly, the relevant regulations are being set forth below in their entirety as information for those who would like to learn and use them for future travel plans. These regulations can be found at 14 CFR 382.117 as follows:

(a) as a carrier, you must permit a service animal to accompany a passenger with a disability.

(1) You must not deny transportation to a service animal on the basis that its carriage may offend or annoy carrier personnel or persons traveling on the aircraft.

(2) On a flight segment scheduled to take 8 hours or more, you may, as a condition of permitting a service animal to travel in the cabin, require the passenger using the service animal to provide documentation that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight.

(b) You must permit the service animal to accompany the passenger with a disability at any seat in which the passenger sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation.

(c) If a service animal cannot be accommodated at the seat location of the passenger with a disability who is using the animal, you must offer the passenger the opportunity to move with the animal to another seat location, if present on the aircraft, where the animal can be accommodated.

(d) As evidence that an animal is a service animal, you must accept identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal.

(g) Whenever you decide not to accept an animal as a service animal, you must explain the reason for your decision to the passenger and document it in writing. A copy of the explanation must be provided to the passenger either at the airport, or within 10 calendar days of the incident.”

Enforcement

The regulations discussed herein would be meaningless without mechanisms to enforce them. One thing is certain: if you say nothing when you feel you have been a victim of discrimination, no action will be taken. Ideally, you should make a complaint to the CRO at the airport prior to takeoff or after landing. If you do this, the CRO will be required to act on your complaint immediately.

If the CRO agrees that your rights may potentially be violated, he/she has the authority to take action on behalf of the carrier to prevent a violation of the Air Carrier Access Act. Or, if the harm has already been done, the CRO is required to provide a statement summarizing the facts and setting forth the corrective actions the carrier intends to take.

If the CRO believes that no violation has occurred, he/she must provide a statement in writing summarizing the facts and the reasons for the determination. The statement must also inform the complainant of the right to pursue enforcement action with the Department of Transportation.

Whether the CRO takes favorable or unfavorable action on a complaint, the statement must be provided to the complainant at the airport if possible but within thirty days thereafter in any case. There is also a provision for filing a complaint directly with the Department of Transportation. This section is set forth verbatim as follows:

14 CFR 382.159

(a) Any person believing that a carrier has violated any provision of this part may seek assistance or file an informal complaint at the Department of Transportation no later than 6 months after the date of the incident by either:

(1) Going to the web site of the Department's Aviation Consumer Protection Division at http://airconsumer.ost.dot.gov and selecting “Air Travel Problems and Complaints,” or

(2) Writing to Department of Transportation, Aviation Consumer Protection Division (C-75), 1200 New Jersey Avenue, SE, Washington, DC 20590.

(b) Any person believing that a carrier has violated any provision of this part may also file a formal complaint under the applicable procedures of 14 CFR part 302 [The Department of Transportation general administrative review process].

(c) You must file a formal complaint under this part within six months of the incident on which the complaint is based in order to ensure the Department of Transportation will investigate the matter.

While this is by no means an exhaustive accounting of the applicable regulations concerning air travel for passengers with disabilities, these are the most common types of issues brought to our attention in the National Federation of the Blind Department of Advocacy and Policy. Familiarizing yourself with these regulations and discussing them civilly with airline personnel will give you the best chance of enjoying a positive traveling experience the next time you plan to board a flight.