Disney wins First DAS ADA Discrimination Lawsuit

jcb

always emerging from hibernation
Joined
Apr 28, 2007
At 2:03 pm today, the federal district court in Orlando issued its 51 page memorandum decision in the first of the lawsuits challenging Disney's adoption of DAS.

I've not read all the pages, yet (I have real work to do, sorry). The conclusion states:

Based on the foregoing, the Court concludes that A.L.’s proposed modification of ten readmission passes or unlimited access to the FastPass lines is not “necessary” to accommodate A.L.’s preference to follow a route or a pre-set list of rides and the modification is not reasonable. Moreover, requiring the modification, based on the history of the former system, would lead to fraud and overuse, lengthen the wait times significantly for nondisabled guests, and fundamentally alter Disney’s business model.​

I'll review it later tonight and update this thread with some thoughts.

I'll upload the decision shortly.
 


jcb

always emerging from hibernation
Joined
Apr 28, 2007
Here are some interesting statistics the court sited regarding the reason Disney did away with the "GAC" (Guest assistance card):

As Disney experienced with the GAC system, when a popular new ride at Disneyland opened, it drove a 40% increase in demand for GAC passes. When 3% of the guests admitted with GAC passes use a disproportionate 30% of a popular ride’s capacity, the system is not working the way it was designed and it is certainly working to the disadvantage of the non-GAC holding guests.​
 
  • OKW Lover

    Retired and living 2 miles from The Castle.
    DIS Lifetime Sponsor
    Joined
    Apr 29, 2004
    First a disclaimer: I am not a lawyer, nor do I play one on the internet.

    Having read the order now, I find some points interesting:
    1. It seems like a fairly narrow order applying specifically to this plaintiff and rests heavily on the facts of plaintiff's attempt to go to MVMCP one night.
    2. Disney made a convincing argument that the new system is necessary to remedy the abuses that sprung up under the old system.
    3. The new system is different than the old system which will result in different impacts for some
    4. There are options that the plaintiff was made aware of that would have mitigated they wait time issue but that they chose to ignore.
    Still, I'm a bit sad for the plaintiff who will have great difficulty adjusting to the new reality.
     

    WebmasterDoc

    Administrator
    Administrator
    Joined
    Aug 14, 1998
    It looks like the plaintiff is also responsible for Disney's legal fees - is that usual?
     
  • jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    It looks like the plaintiff is also responsible for Disney's legal fees - is that usual?
    It would be unusual but if you are referring to the statement that says Disney "shall recover its costs of action", that isn't an award of attorney fees. "Costs" in federal court are a term of art and refers to very specific out of pocket expenses (more on this shortly) but does not include attorney fees.

    The kind of expenses that can be sought are: shown on this form: https://www.uscourts.gov/sites/default/files/ao133.pdf Probably the largest out of pocket expense in these kind of cases are the deposition costs, e.g., court reporter fees. It is not unusual for these to be at least several thousand dollars
     

    WebmasterDoc

    Administrator
    Administrator
    Joined
    Aug 14, 1998
    It would be unusual but if you are referring to the statement that says Disney "shall recover its costs of action", that isn't an award of attorney fees. "Costs" in federal court are a term of art and refers to very specific out of pocket expenses (more on this shortly) but does not include attorney fees.

    The kind of expenses that can be sought are: shown on this form: https://www.uscourts.gov/sites/default/files/ao133.pdf Probably the largest out of pocket expense in these kind of cases are the deposition costs, e.g., court reporter fees. It is not unusual for these to be at least several thousand dollars
    Ahh - that makes more sense. Thanks for the definition ! :)
     

    Lilsia

    DIS Veteran
    Joined
    Feb 17, 2018
    Well, I read the whole thing. The amount of times that the plaintiff made life harder on themselves is remarkable. It very much looks like she is not willing to do anything to help her child out and work with the DAS system. Very sad.
     

    Disneyfan754321

    DIS Veteran
    Joined
    Feb 19, 2019
    Well, I read the whole thing. The amount of times that the plaintiff made life harder on themselves is remarkable. It very much looks like she is not willing to do anything to help her child out and work with the DAS system. Very sad.
    Wow that was a read..
    It really seems that she is the one having the fit cause shes not getting her way. She doesnt like waiting. She doesnt like change.
     
  • Lilsia

    DIS Veteran
    Joined
    Feb 17, 2018
    Wow that was a read..
    It really seems that she is the one having the fit cause shes not getting her way. She doesnt like waiting. She doesnt like change.
    Yeah, she is the head of an autism group in Florida. I would not want her to represent my child. She seems to be very selfish and does not seem to have the best interest of autistic kids in mind. It seems more like a "I want to skip all lines" then what is best for her kid.
     

    Disneyfan754321

    DIS Veteran
    Joined
    Feb 19, 2019
    Yeah, she is the head of an autism group in Florida. I would not want her to represent my child. She seems to be very selfish and does not seem to have the best interest of autistic kids in mind. It seems more like a "I want to skip all lines" then what is best for her kid.
    You couldn't say it better. She is the mom thats "my son has special needs" when most of us are pushing our kid to be main streamed.
    Are you familiar with the special needs classes at the schools? Those kids are super smart most will do anything for the teacher and not there parents.
    They know what they will get away with.

    My fave is in the first part talking about how he can wait 15 mins or car rides sometimes hours..
    Sounds like she needs the same things we all use for kids tablet games, small toys etc.
     

    DisLiss

    DIS Veteran
    Joined
    May 2, 2018
    The old system was simply impossible to keep using since Disney had no way of stopping the abuse of the system. I'm glad that the courts recognized that. Sometimes the law (not requiring proof of need) and the help you want to extend to your guests don't work together, and this was one of those times.

    It's unfortunate, but it's certainly not Disney's fault.
     

    DisLiss

    DIS Veteran
    Joined
    May 2, 2018
    My fave is in the first part talking about how he can wait 15 mins or car rides sometimes hours..
    Sounds like she needs the same things we all use for kids tablet games, small toys etc.
    I noticed that it was stated that he can watch a Broadway play. Which makes me wonder if it might help to have recordings...either just the music, or videos of some of the plays he likes on a device for him to watch/listen to while in line.

    But my overall feeling is that even if that would help, his mother isn't looking for suggestions on how to make the new system work better for them. She simply believes that they can only possibly get any enjoyment from the park using the old system. 😕
     

    SueM in MN

    combining the teacups with a roller coaster
    Moderator
    Joined
    Aug 23, 1999
    Quite an interesting read. A lot of it was in the testimony I had read previously about the case - I knew the mom had not tried any of the suggestions before going to the park. But, there was a lot of other interesting information.

    I do know that some of the people who were part of the lawsuits specifically went to a park the day that DAS was rolled out so that they could say it would not work.
    Most people with disabilities specifically chose NOT to go in the first days/weeks because they knew the rollout would probably be a bit of a learning curve for the CMs.
    Many also appeared to not have even tried using the Fastpass system or looking for attractions with short waits.
     
    Last edited:

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    I finally had a chance to read the decision in its entirety without falling asleep more than once. I have a few thoughts about where this decision leaves the lawsuits by other guests with Autism spectrum disorder ("plaintiffs"). I'm not going to spend my Saturday researching the tortured history of this six-year old lawsuit so I'll be a little less precise than normal. (Don't @ me; deal with it. :))

    As filed in early April 2014, the complaint included 15 different families. They alleged a variety of claims, state and federal, based on Florida and California law. The families filed the lawsuit in California but a number of the families only alleged ADA violations at Walt Disney World. The lawsuit wasn't filed as a "class action" (this is a term of art) but sought to "join" (another term of art) all the families claims into one lawsuit. It grew with additional families.

    Disney moved to transfer the WDW claims to Florida arguing that "24 of the 26 plaintiffs (including the lead plaintiff A.L.) who brought this case in California only complain of experiences in Florida." The California court agreed and sent the families to Florida. (https://www.wdwinfo.com/news/General_Disney_News/Disability_access_lawsuit_against_Disney_transferred_from_California_to_Florida.htm)

    Once in Florida, the plaintiffs tried to add 30 more families prompting Judge Conway to rule that trying 44 lawsuits with multiple claims at one time was unmanageable so she "severed" the families' claims into 44 separate lawsuits. Some of these were later voluntarily dismissed. Judge Conway refused to try any California claims in Florida and dismissed those (they were refiled in California).

    By this point, the only claims pending in Florida alleged a violation of Title III of the ADA and Judge Conway later dismissed that, ruling the families failed to present enough evidence to warrant a trial. ( https://www.wdwinfo.com/news-stories/federal-court-rules-for-disney-in-lead-dasautism-lawsuit/)

    The appeals court later reversed this dismissal in part (https://www.wdwinfo.com/news-stories/appeal-partially-successful-autism-lawsuits-against-disney-to-proceed/) and that decision naturally plays a central role in Judge Conway's recent decision (she can't ignore it, after all). One of the key rulings in the appeal was that the adoption of DAS did not violate the ADA. Disney's issuing a DAS Card to all cognitively disabled guests is not per se impermissible under Title III of the ADA." A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1292 (11th Cir. 2018). (https://www.disboards.com/threads/appeals-court-reverses-in-part-dismissal-of-ada-lawsuit-over-disability-access-service.3701176/)

    The court of appeals told Judge Conway to have a trial on whether the sought for modifications were "necessary." It did not rule one way or the other and it did not address whether the desired modifications were "reasonable" or would "fundamentally alter" the park experience, leaving this for Judge Conway to decide.

    At this point, Disney did something smart, they decided to try the case instead of filing more motions. Judge Conway set one of the cases (the "lead" plaintiff "A.L.") for trial in February 2020 and it lasted 2 or 3 days. (https://www.disboards.com/threads/wdw-litigation-update-march-9-2020-bedtime-for-the-bed-bugs-lawsuit.3754820/post-61154120 and https://www.disboards.com/threads/wdw-litigation-update-march-9-2020-bedtime-for-the-bed-bugs-lawsuit.3754820/)

    Judge Conway ruled for WDW on all three grounds. The "necessary' and "reasonable" rulings (which seem to me to be very closely related) are very much linked to this plaintiff's abilities. There are other rulings tied to "A.L.'s" specific case which could, in theory, lead to a different result. His lawyers didn't get the trail date on their expert's schedule, A.L.'s caregiver essentially gave up without really trying to see if DAS would work for him and Judge Conway's decision focused on what was necessary and reasonable to accommodate A.L.'s actual behavioral needs from his autism.

    (Let's get one issue out of the way, this ruling does not apply to or "bind" the other plaintiffs. They could, if they wanted, have their day in court.)

    Disney's expert categorized "A.L. as having a "moderate" condition. So, another plaintiff who has a more severe condition might, in theory, be able to prove they need more than DAS to have a "like experience" at WDW.

    In reality, if a guest has to much more of a severe condition, they may not be able to experience WDW at all. Further, the "reasonable" inquiry turned on A.L's demand for 10 readmission passes for A.L. and everyone in his party and Judge Conway said that was not reasonable because it would severely impact the remaining non-DAS users by significantly increasing wait times and potentially lead to the same fraud and abuse as GAC.

    A key part of this finding was that Department of Justice regulations do not permit Disney to ask guests for proof of their disability and if Disney gives one guest 10 readmission passes, it will end up having to do this for other guests who claim to have autism spectrum disorder (or a similar disorder that makes waiting in line difficult). I've expressed some skepticism of the DOJ rule. It makes no sense to me. In the employment context, Title I of the ADA permits employers' to request information about an employee's specific needs under certain situations so what sense does it make to prohibit businesses from doing so under Title III. Practically, of course, this would be nightmare because it would rely on cast members to discern in a matter of minutes what are often complex medical diagnoses (no slam on CM's is meant, I read a lot of medical records and they complex). But I digress.

    So, one of the other plaintiffs might be able to persuade Judge Conway that they didn't need 10 readmission passes but it would be "reasonable" for them to receive 6 to 8 readmission passes in addition to DAS. This, of course, is speculation. Disney would still present evidence that every readmission pass increases the standby wait time.

    So, in theory, the necessary and reasonable holdings might change depending on the facts. What will likely sink the remaining plaintiffs is the ruling that the requested modification would "fundamentally alter" the Disney Park experience. While this was based on the impact of A.L.'s request for 10 readmission passes, Disney persuaded Judge Conway this would increase standby wait times, reduce Disney's return business and essentially return to the abuses of GAC. Again, in theory, a different case could lead to a different result but practically, that would be threading a small needle with a large thread.

    By the way, Judge Conway appropriately distinguished the Colonial Williamsburg decision she cited. I find the decision problematic but its problems likely stemmed from the park's decision not to put on evidence about the impact of permitting sack lunches in dining rooms.

    So, what happens next? Judge Conway will probably put down an order. She may set the next case for trial (though there are few in person trials right now) or she may schedule a conference (call) to discuss the remaining cases.

    You'll remember that Judge Conway awarded Disney's its costs. Disney might offer not to seek "costs" against the other families if they agree to dismiss the lawsuits. After losing (spectacularly) on all three grounds in the first lawsuit, the families' counsel has to be questioning how much more of a chance he has in the other lawsuits.

    I will ask one question. Where do I ride "Buzz Light year’s Midway Mania?"


    A.L. can appeal. Unlike the last appeal, this time, the appeals court would have to defer to Judge Conway's fact findings and it is highly unlikely to set those aside. If there are realistically successful issues to make on appeal, it is whether ADA Title III and the DOJ regulation prohibit Disney from obtaining specific information about a guest's disability and whether Disney would have had to apply A.L.'s sought-for accommodation to other guests (these are logically linked). I don't recall whether the plaintiffs preserved these issues for appeal. I also have to wonder why a disability advocate (remember she made comments about the trial on Facebook during the trial) would make arguments on appeal that are against the interests of anyone who has a disability.

    I doubt Judge Conway will wait on the result of an appeal before moving forward with the other lawsuits. So, it isn't over, even after six years, but the score on "Buzz Light year's Midway Mania" is approaching zero.
     

    OKW Lover

    Retired and living 2 miles from The Castle.
    DIS Lifetime Sponsor
    Joined
    Apr 29, 2004
    I appreciate your analysis @jcb !

    As I've stated above, I am not a lawyer. But I do wonder about the issue you raise your next to the last paragraph. It seems to me that since ADA & DOJ prevents Disney from asking about a guests specific disability then how does anybody go about providing a work around for a disability without falling into the trap that Disney proved about substantially altering the experience of others? Not just in the theme park area, but in real life like at work. Could a company argue that installing wheelchair ramps makes it difficult for others to access a building? Yes, an extreme example, but I'm trying to make a (far?) point.

    And no, I don't propose a different result in this case. I'm just wondering about some of the ramifications. Idle hands....
     

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    There are several examples in the decision. But first, let's talk about what companies like Disney can and cannot do. The decision stated: “A public accommodation shall not ask about the nature or extent of a person’s disability.” 28 C.F.R. § 36.302(c)(6)". The citation is to the DOJ ADA Title III regulations. As the court says, this regulation goes on to permit a company to make "two inquiries" designed to determine if a dog is a service animal ((1) “if the animal is required because of a disability and” (2) “what work or task the animal has been trained to perform").

    Beyond those inquiries, questions are forbidden, as explained more in this thread (about the service poodle lady's lawsuit). https://www.disboards.com/threads/service-poodles.3714395/. The heading for this subpart (chapter 36, section 302, subpart (c)) is "service animals." It starts with the mandate that a place must "modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability." So, the court is applying, as a generally applicable prohibition, a rule specific to inquires about service animals.

    There's a similar prohibition that applies to wheelchairs: A company "shall not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual’s disability." Section 36.311(c)(1).

    And if you sell tickets to single events (concerts, Broadway shows or movies), you must provide "wheelchair spaces and companion seats" but you "may not require proof of disability, including, for example, a doctor’s note, before selling tickets for accessible seating." Section 36.302(f).

    You could argue these prohibitions only apply to the specific inquiries so that if a guest wanted, say, 10 readmission passes for everyone in the guests party, Disney could demand they produce medical proof that 10 are "necessary." After all, no DOJ regulation specifically or generally prohibits requiring proof before providing a modification. Nor does Title III of the ADA.

    It is, however, rational to interpret the DOJ regulations to prohibit asking for "proof" or asking about the "nature or extent of a person's disability." Questions of this nature can be said to tend to exclude people with a disability. This is in keeping with the ADA's prohibition against imposing or applying "eligibility criteria that screen out or tend to screen out an individual with a disability." 42 U.S.C. 12182(b)(2)(A). So, you can ask, why do you need a DAS? You can't ask about the "nature or extent" of the disability that leads the person to request a DAS? A large department store found this out after the EEOC sued them for requiring detailed information (if memory serves me, the store wanted the actual "diagnosis") from an employee's doctor when the employee returned to work after being off sick. Some information is ok to request, too much, without justification (in the employment setting), is not.

    These also illustrate some of the obvious modifications (permitting a service animal and wheelchairs, along with accessible seating). The decision cited to a Supreme Court decision in Martin where the golfer wanted as a modification to be allowed to use a cart instead of walk the course. Walking the court said, is not integral to golf so modifying this rule did not fundamentally alter the experience. I always take a walking stick with me to WDW because walking on the hot hard pavement aggravates my right knee or left ankle (they usually alternate). Letting me walk around a theme park with what might otherwise be a deadly weapon is a form of a modification.

    You have, however, hit on one of the ADA's weaknesses. In most cases, the modification will be obvious and easy to do. The ADA and the DOJ regulations answer a lot of scenarios.

    It's when you get into the more unusual questions that the ADA fails to provide an answer and forces the parties to turn to litigation. Does Disney, for example, have to modify its policies to permit Segways? Does Disney have to permit guests who have a medical condition that causes them to involuntarily shout out swear words (called coprolalia) to ride small world or watch the fireworks from main street? The ADA does not provide answers short of litigation. At the same time, the more litigation, the more answers we have. But litigation is a terribly costly way to resolve civil disputes....

    Certain physical modifications such as wheel chair ramps (e.g. step free access) are mandatory. A business can't argue the wheel chair ramp is dangerous because it is required by federal law (let's assume it is). Now, let's say someone sues the business owner because the owner put in a mandatory wheel chair ramp. One thing the lawsuit cannot resolve is whether the ramp made the walkway defective. If federal law mandates something, states have no authority to overrule that, even in state tort lawsuits. The Supreme Court settled this a while back when it told employers they could not have policies prohibiting "potentially pregnant employees" from working around dangerous chemicals because that is sex discrimination. The employer can't be sued for permitting "potentially pregnant employees" from working with the chemicals (thought, like our business) it could be sued for failure to warn of the dangers, or for defects in the chemicals (or the ramp).

    Let's return to wheelchairs. As noted, the ADA requires Disney to permit guests to bring in and use "wheelchairs and manually-powered mobility aids." Disney must also permit "other power-driven mobility devices by individuals with mobility disabilities, unless the public accommodation can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements" and goes on to spell out what those safety requirements must consider (including the device and volume of pedestrian traffic). Section 36.311. Disney rationally interprets this to require it to permit most power driven devices that have 3 or more wheels (we'll call these "EVCs"). But let's suppose someone (a college football standout from a lowish ranked New York college who lost a year of competition because a wheelchair rammed into his leg while at WDW) sues Disney for permitting power driven wheelchairs.

    The athlete, in my view, can't sue because Disney permitted that "class" of EVCs. That's mandated by federal law. Is it consistent with the ADA if a state law requires Disney to effectively police guest operation of an EVC? In reality, most state laws don't go this far. As I'm sure I've addressed somewhere, Disney isn't automatically liable for every guest to guest incident. Now, if a CM were too see someone driving their EVC 25 mph down Main Street on Christmas Day and did nothing, that might be a different story.
     
    Last edited:





    Connect

    Disney News and Updates





    SUBSCRIBE TO OUR DAILY EMAIL
    Subscribe and never miss out on Disney News, Deals and Updates.











    du-sidebar-show-notes



    ORLANDO SHOW


    UNIVERSAL SHOW


    CONNECTING WITH WALT


    DREAMS SHOW


    DISNEYLAND SHOW


    Top