Air Carrier Access Act Technical Assistance Manual (2005)

Chapter 2: Learning the Basics about the Law Protecting Air Travelers with Disabilities

• What does the Air Carrier Access Act (ACAA) say? The ACAA prohibits U.S. and foreign air carriers from discriminating against an air traveler with a disability on the basis of such disability (49 U.S.C. 41705).

• What is 14 CFR Part 382 (part 382)? Part 382 is a detailed set of rules that define air carriers’ responsibilities under the ACAA and ensures that individuals with disabilities will be treated without discrimination consistent with the safe carriage of all passengers.

• Who has to follow part 382? The following organizations and individuals must comply with part 382: (1) air carriers and their employees (e.g., ticket and gate agents, flight attendants, baggage handlers, pilots, etc.); (2) authorized agents of an air carrier (e.g., travel agents); (3) organizations and their employees that have business arrangements with air carriers to provide disability-related services (e.g., wheelchair service, baggage handling, etc.); and (4) indirect air carriers and their employees (e.g., tour operators) that provide facilities, services, or other accommodations to passengers with disabilities.

• Who is protected by part 382? Part 382 protects three categories of individuals with disabilities: (1) individuals who have a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities; (2) individuals who have a record of such impairment; and (3) individuals who are regarded as having such an impairment, whether they have the impairment or not.

• What is a physical or mental impairment?

  Physical impairments include (1) physiological disorders or conditions; (2) cosmetic disfigurements; or (3) anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

  Examples of physical impairments include orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV disease, drug addition, and alcoholism.

  Mental impairments include mental or psychological disorders, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Physical characteristics such as the color of one’s eyes, hair, or skin, baldness, and left-handedness do not constitute physical impairments. Similarly, neither age nor obesity alone constitutes a physical impairment. Disadvantages due to cultural or economic factors are not covered by part 382. Moreover, the definition of “physical or mental impairment” does not include personality traits such as poor judgment or a quick temper, where these are not symptoms of a mental or psychological disorder.

• What is a substantial limitation on major life activities? To qualify as a “disability” under part 382 a condition or disease must substantially limit a major life activity. Major life activities include, but are not limited to, activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

• When does an impairment “substantially limit” a major life activity? There is no absolute standard for determining when an impairment is a substantial limitation. Some impairments obviously limit the ability of an individual to engage in a major life activity.

  Example 1: A person who is deaf is substantially limited in the major life activity of hearing.

  Example 2: A person with traumatic brain injury may be substantially limited in the major life activities of: (a) caring for himself or herself; and (b) working, because of memory deficiency, confusion, contextual difficulties, and the inability to reason appropriately.

  Example 3: An individual who is paraplegic may be substantially limited in the major life activity of walking.

• Are temporary mental or physical impairments covered by part 382? Yes.

  Example: While on a skiing trip, Jane breaks her leg and is placed in a cast that keeps her from bending her leg and walking without the use of crutches. Jane will eventually recover the full use of her leg, but in the meantime she is substantially limited in the major life activity of walking. Because Jane’s broken leg will substantially limit a major life activity for a time, Jane would be considered to have a disability covered by part 382 during that time. You would be required to provide her certain services and equipment under part 382 if requested (e.g., enplaning and deplaning assistance, connecting wheelchair assistance, seating with additional leg room in the same class of service to the extent required by part 382, safe stowage of her crutches in the aircraft cabin in close proximity to the passenger).

• Who is a person with a “record of” a disability under part 382? Part 382 protects individuals from discrimination who have a “record of” (history of) a physical or mental impairment that substantially limits a major life activity or who have been classified, or misclassified, as having such an impairment. Therefore, individuals who do not have an actual current impairment that substantially limits a major life activity would still be protected under part 382 based upon a past diagnosis (or a misdiagnosis) of an impairment that substantially limits a major life activity. Individuals with a history of cancer or epilepsy are examples of people with a record of impairment.

  Example: Adam, a passenger who has had severe epileptic seizures in the past that rendered him unable to work, is denied transportation by airline personnel because of their concern that he may have a seizure on board the aircraft. This denial of transportation would be unlawful if based solely on the fact that Adam has had seizures in the past, because epilepsy may be controlled by medication. Airline personnel can lawfully deny transport to Adam only if they reasonably believe, based on the information available, that his seizure disorder poses a real safety risk to him or direct threat to other passengers.

• When is a person “regarded as” having a disability? Part 382 also protects an individual who is “regarded as” having a physical or mental impairment that substantially limits a major life activity, whether or not that person actually has an impairment. People can be “regarded as” disabled if: (1) their non-limiting or slightly limiting impairments are viewed by others as substantially limiting; (2) they have no impairments but are viewed by others as having a substantially limiting impairment; or (3) their impairments become substantially limiting because of the attitudes of other people.

  Example 1: John, an individual with a mild heart condition controlled by medication, is denied transportation because airline personnel believe that flying will cause John to have heart problems necessitating diversion of the aircraft during flight. John is not substantially limited in any major life activity by his condition. John has informed the air carrier personnel that his heart condition is controlled by medication and that for the past five years he has flown on a near weekly basis without incident. Even though John does not actually have an impairment that substantially limits a major life activity, he is protected by the provisions of part 382 because he is treated as though he does. The airline personnel’s refusal to provide transportation to John must be reasonable under the facts and circumstances presented. Arguably, excluding John from the flight was unreasonable because John had informed the airline employee that he was taking medication and that he had flown frequently in the recent past without incident. The reasonableness of the decision depends on John’s credibility and any additional information provided. Regardless of the reasonableness of the decision, the airline employee is legally required under section 382.31(e) to provide a written explanation to John within 10 calendar days setting forth the specific safety or other reason(s) for excluding John from the flight.

  Example 2: Karen, an individual born with a prominent facial disfigurement, has been refused transportation on the grounds that her presence has upset several passengers who have complained to gate agents about her appearance. Karen’s physical disfigurement becomes substantially limiting only as a result of the attitudes of others and she is protected by the provisions of part 382. Refusing to provide transportation to Karen would violate section 382.31 because you must not refuse to provide transportation to a qualified individual with a disability, such as Karen, solely because her appearance may offend or annoy other passengers. As in the example above, and regardless whether the decision to refuse transportation was correct, you must provide Karen with a written explanation of the specific basis for the refusal within 10 calendar days of the incident.

• How do I determine whether a person is an individual with a disability? Provide an opportunity for the passenger to self-identify by asking how you can best assist him or her.

• How do I assist a passenger with a disability? Ask the passenger how you can best assist him or her. A passenger with a disability has the most information about his or her abilities, limitations, level of familiarity with the airport and airline, and needs in connection with traveling by air.

• May I ask an individual what his or her disability is? Only to determine if a passenger is entitled to a particular seating accommodation pursuant to section 382.38. Generally, you may not make inquiries about an individual’s disability or the nature or severity of the disability. However, you may ask questions about an individual’s ability to perform specific air travel-related functions, such as enplaning, deplaning, walking through the airport, etc.

  Example 1: You may not ask a person, “What is your disability?” You may not ask, “Do you have diabetes?”

  Example 2: You may ask, “Can you walk from the gate area to your aircraft seat?” You may ask, “Are you able to transfer from the aisle chair over a fixed aisle seat armrest?” You may ask, “Can you walk from this gate to your connecting gate?” You may ask (by writing a note if necessary), “Do you need me to notify you if I make any announcements over the public address speaker?”

  Example 3: Susan asks for a bulkhead seat because the condition of her leg necessitates her need for greater legroom. You may ask, “Are you unable to bend your leg or is your leg fused or immobilized?” [Sec. 382.38]

• What are some of the requirements of part 382 that you should be aware of? Following are some of the principal requirements of part 382. It is important to note that the requirements of part 382 listed below are not meant to be exhaustive. Rather, it is a list of requirements governing situations that you are likely to encounter on a regular basis.

• You must not discriminate against qualified individuals with a disability. [Sec. 382.7(a)(1)] You must not require a passenger with a disability to accept special services (including, but not limited to, pre-boarding) not requested by the passenger. [Sec. 382.7(a)(2)] Instead, you may ask a passenger with a disability if he or she would like a particular service, facility, or other accommodation. In addition, you must not exclude a qualified individual with a disability from or deny the individual the benefit of any air transportation or related services that are available to other passengers. [Sec. 382.7(a)(3)] For example, if you choose to provide ground transportation and overnight accommodations to passengers because of a flight cancellation, you must ensure that the ground transportation to the hotel, and the hotel itself, are accessible to a passenger with a disability.

• You must not refuse transportation to a passenger solely on the basis of a disability. [Sec. 382.31(a)]

• You must provide transportation to an individual with a disability who has an impairment that affects his or her appearance or results in involuntary behavior except under limited circumstances specified below. You must provide transportation to such individuals with disabilities even if the disability may offend, annoy, or inconvenience crewmembers or other passengers. [Sec. 382.31(b)] However, if the person’s disability results in involuntary behavior that would or might be inimical to the safety of the flight, then the person may properly be refused transportation. [Sec. 382.31(d)]

• You shall not limit the number of individuals with disabilities on a particular flight. [Sec. 382.31(c)]

If transportation of a passenger with a disability would endanger the safety of the aircraft or the health or safety of its passengers or violate an FAA safety regulation, you may refuse transportation to the individual with a disability. [Sec. 382.31(d)]

• You shall not require a passenger with a disability to travel with an attendant or to present a medical certificate, except in very limited circumstances. [Secs. 382.35(a) and 382.53(a)]

• You shall not exclude a passenger with a disability from any seat in an exit or other row solely on the basis of his or her disability except to comply with FAA safety rules. FAA safety rules establish criteria that must be met in order for a passenger to occupy a seat in the emergency exit rows. [14 CFR 121.585] If a passenger with a disability meets these FAA criteria, he or she must be allowed to sit in an emergency exit row. As with any other passenger, you must look at the individual passenger with a disability and reasonably assess whether he or she meets FAA criteria for exit-row seating. [Sec. 382.37(a)]

• You must provide timely enplaning, deplaning, and connecting assistance to passengers with disabilities requesting such assistance. As part of this duty, you must provide equipment (e.g., wheelchairs, electric carts, and aisle chairs) and personnel (e.g., individuals to propel wheelchairs and aisle chairs and individuals to assist passengers with disabilities in carrying and stowing their baggage). [Secs. 382.39(a)(1) and 382.39(b)(5)]

• You must allow a passenger with a disability to stow his or her cane or other assistive device inside the cabin of the aircraft close to his or her seat if it fits, consistent with FAA safety rules on carry-on items. [Sec. 382.41(c)]

• You must allow passengers to safely stow their wheelchairs or parts of wheelchairs (e.g., wheels, seats, etc.) in the overhead bin or under seats. [Sec. 382.41(e)(1)]

• You must ensure that there is space for at least one passenger with a disability to stow a folding wheelchair in the cabin of the aircraft if the aircraft has a designed seating capacity of 100 or more seats and the aircraft was ordered after April 5, 1990, or delivered after April 5, 1992. [Sec. 382.21(a)(2)]

• If there is a closet or other approved stowage area for passengers’ carry-on items of sufficient size to accommodate a folding, collapsible, or break-down wheelchair, the carrier must designate priority stowage space for at least one wheelchair in that area. A passenger with a disability who takes advantage of the offer of the opportunity to pre-board may stow his or her wheelchair in this area with priority over other carry-on items brought onto the aircraft by other passengers and flight crew enplaning at the same airport. A passenger with a disability who does not pre-board may use this space to stow his or her wheelchair on a first-come, first-served basis along with other passengers stowing their carry-on items. [Sec. 382.41(e)(2)]

• You must have a copy of Part 382 available at every airport you serve. Upon request by a passenger at the airport, you must make a copy available for review. [Sec. 382.45(d)]

• You must provide blind or visually-impaired passengers and passengers who are deaf, hard of hearing, or deaf-blind, timely access to the same information given to other passengers at the airport or on the airplane. This includes, but is not limited to, information concerning gate assignments, delayed flights, and safety. [Secs. 382.45(c) and 382.47]

• You must allow service animals to accompany passengers with disabilities in the cabin consistent with FAA safety requirements. You must allow the service animal to sit in close proximity to its user, as long as the service animal does not block the aisle or other emergency evacuation route in violation of FAA safety regulations. Often this will mean that the service animal will sit under the seat in front of the disabled passenger to avoid obstructing an aisle or other space. Some service animals are held by their users in their arms as an adult would hold a human infant (limited to infants under two years of age) of roughly the same size. [Sec. 382.55]

• You must make available a Complaints Resolution Official (CRO) at the airport – in person or by telephone or TTY -- to address disability-related complaints that arise during the travel process at all times when your flights are operating at that airport. You must provide a CRO to a passenger even if the passenger does not use the term “Complaints Resolution Official” or “CRO.” When a passenger with a disability uses words such as “supervisor,” “manager,” “boss,” or “disability expert” in connection with resolving a disability-related issue, you must provide a CRO. [Sec. 382.65]

• You must not charge for services that are required by part 382. This means, for example, you must not ask for a tip when providing wheelchair service to a passenger. You may, however, impose a reasonable charge for services not required by part 382, i.e., optional services. Examples of such optional services include medical oxygen for use on board an aircraft or stretcher service. [Sec. 382.57]

• When am I required to provide disability-related accommodations to an individual? You are required to provide such an accommodation when: (1) an individual with a disability or someone acting on his or her behalf, such as a travel companion, family member, or friend, requests an accommodation required by part 382; or (2) you offer such a required accommodation to a passenger with a disability and he or she accepts such accommodation.