Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

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64 intentional infliction of emotional distress, failure to train, and violations of the ADA and the Rehabilita- tion Act.960 The plaintiff ’s disability, which impaired her ability to walk and to speak, required her to use a power wheelchair.961 After Stephens had boarded a bus, she did not comply with the operator’s request to “power-off” her wheelchair. Later, a supervisor arrived and secured the wheelchair to the bus with- out having to power it off.962 First, the court observed that “[t]o state a claim for intentional infliction of emotional distress, a plaintiff must plead “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a sub- stantial probability of causing, severe emotional dis- tress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.”963 However, because the plaintiff did not allege any facts showing that the operator’s conduct was “‘extreme and outrageous,’” Stephens failed to plead a sufficient claim for intentional infliction of emo- tion distress.964 Second, the plaintiff failed to succeed on her claim for failure to train, in part, because she did not allege that the transit defendants owed a specific duty to her.965 Third, the plaintiff failed to plead adequately that the defendants denied her the benefits of a ser- vice or otherwise discriminated against her because of her disability.966 The court ruled that, although the bus operator may have been rude or insensitive, “‘legislation such as the ADA cannot regulate indi- viduals’ conduct so as to ensure that they will never be rude or insensitive to persons with disabilities.’”967 The plaintiff ’s case did not involve a pattern of repeated conduct.968 XIV. SUMMARY AND CONCLUSIONS The ADA sought to eliminate discrimination against individuals with disabilities. Part II of this digest provides an overview of the history, purposes, and five titles of the ADA. However, as analyzed in Part III of this digest, in 2008, Congress enacted the ADAAA to reject certain Supreme Court decisions that had narrowed the intended breadth of the ADA, as well as make key 960 Id. at 273. 961 Id. 962 Id. 963 Id. at 274 (citation omitted). 964 Id. (citation omitted). 965 Id. at 276. 966 Id. at 277. 967 Id. at 278 (citations omitted). 968 Id. XIII. LIABILITY OF TRANSIT AGENCIES IN TORT FOR CLAIMS BY INDIVIDUALS WITH DISABILITIES In addition to potential liability under the provi- sions of the ADA, there is some scholarly and judi- cial authority for the proposition that public entities may be held liable in tort for violations of the ADA.953 There is also some judicial authority to the contrary.954 Five transit agencies responding to the survey in the past 5 years have had cases by individuals with disabilities based on their state’s common law of tort liability.955 One commentator argues there are at least three situations in which a tort claim may suc- ceed when an ADA claim would fail: (1) the defendant’s conduct is considered insufficiently severe or pervasive under a standard borrowed from Title VII to establish a hostile environment claim under the ADA; (2) the plaintiff does not pass the test of whether he or she is a person with a disability under the ADA; and (3) the causal link between the disability and the discrimination is insufficient.956 Plaintiffs may sue in tort, for example, “when a facility is designed in such a way that it creates a danger to an individual with a mobility impair- ment and that person is harmed”957 or when an individual with a disability is harmed emotionally because of the inability to use a facility’s features, such as a restroom. In such cases, a plaintiff may bring an action at common law for negligence and/ or for negligent or intentional infliction of emo- tional distress.958 In Stephens v. Shuttle Associates, L.L.C.,959 a bus rider sued the defendants, including two transit authorities and a bus operator, inter alia, for (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.’”) (citation omitted)). 953 Laura Rothstein, Disability Discrimination Stat- utes or Tort Law: Which Provides the Best Means to Ensure an Accessible Environment? 75 oHio st. L. J. 1263, 1266- 67 (2014) [hereinafter Rothstein]. 954 Williams v. Chicago Transit Auth., No. 16 C 9072, 2017 U.S. Dist. LEXIS 166191, *10 (N.D. Ill. Sept. 30, 2017). The court stated that “‘[i]solated acts of negligence by a city employee,’ assuming that the alleged acts were in fact negligent, ‘do not come within the ambit of discrimi- nation against disabled persons proscribed by the ADA.’” Id. (citation omitted). 955 See Appendix C, Summary of Transit Agencies’ Responses to Question 26. 956 Mark C. Weber, The Common Law of Disability Dis- crimination, 2012 utaH L. Rev. 429, 467 (2012). 957 Rothstein, supra note 953, at 1279. 958 Id. at 1283. 959 547 F. Supp. 2d 269 (S.D.N.Y. 2008).

65 the health or safety of other individuals in the workplace. Part V of this digest discusses Title II of the ADA. Title II applies to almost all providers of transporta- tion service, regardless of whether they are public or private and regardless of whether they receive fed- eral financial assistance. As provided in § 12132 of the ADA, a qualified individual with a disability shall not, because of a disability, be excluded from participation in or be denied the benefits of the ser- vices, programs, or activities of a public entity, or be subjected to discrimination by any such entity. The DOT regulations in part 37 implement Titles II and III of the ADA. Compliance with 49 C.F.R. part 37 and Section 504 of the Rehabilitation Act is a con- dition to receiving federal financial assistance. How- ever, part 37 of the regulations applies to the following entities, regardless of whether they receive federal financial assistance: any public entity that provides designated public transportation or intercity or com- muter rail transportation; any private entity that provides public transportation; and any private entity that that operates a fixed route or demand responsive system but that is not primarily engaged in the business of transporting people. Contractors and subcontractors usually are subject to the same obligations as the public transit agencies with whom they contract. As the FTA states, “[a]lmost all types of transportation providers are obligated to comply with Federal nondiscrimination regulations in one form or another.”970 Under parts 37 and 38 of the regulations, an entity must ensure that vehicle operators and other personnel make use of accessibility-related equip- ment or features, which must be in good working order, such as lifts and ramps, lighting, mobility aid, securement areas and systems, public address and other communications equipment, seat belts and shoulder harnesses, if required, and signage. For facilities, accessibility features include accessible paths to and within facilities, communications equipment, elevators, fare vending equipment, gates, platforms, handrails, ramps, and signage. Public entities must make reasonable modifica- tions of policies, practices, or procedures when the modifications are necessary to avoid discrimination against individuals with a disability. A provider of transportation services may deny a requested modifi- cation when the requested modification would funda- mentally alter the provider’s services; it would create a direct threat to the health or safety of others; or the modification is not necessary for a passenger to be able to use the entity’s services, programs, or activi- ties fully for their intended purpose. FTA recipients 970 FTA Circular, Ch. 1.4, p. 1-8. changes to the ADA, such as amending the defini- tion of the term disability and adding a list of major life activities for which an impairment shall be con- sidered a disability. Part IV discusses Title I of the ADA and discrimi- nation in employment against individuals with dis- abilities. Since the ADAAA, an individual meets the “being regarded as” prong of the definition of the term disability when the individual establishes that he or she has been subjected to an action prohibited by the ADA “because of an actual or perceived physi- cal or mental impairment whether or not the impair- ment limits or is perceived to limit a major life activity.”969 Under the ADA, a qualified individual is one who, with or without reasonable accommodation, is able to perform the essential functions of a job that the individual holds or seeks. An entity subject to the ADA may not discriminate against a qualified indi- vidual on the basis of a disability in the entity’s application procedures for a job; in the hiring, advancement, or discharge of employees; employee compensation; job training; or other terms, condi- tions, and privileges of employment. Claims arising under Title I have involved indi- viduals with disabilities as applicants for employ- ment or as employees and the meaning of the term disability, what constitutes a qualified disability, when an employer must make a reasonable accom- modation for an applicant or an employee with a dis- ability, how employers may respond to an employee’s use of illegal drugs, how employers may deal with employees who use or are under the influence of alcohol in the workplace, and when an employer may make medical inquiries or require medical exams or drug tests. To establish a violation of Title I of the ADA, an applicant or employee has to demonstrate that he or she is an individual with a disability within the meaning of the ADA, that the employer had notice of the person’s disability, that the applicant or employee could perform the essential functions of the employ- ment position with a reasonable accommodation, and that the employer refused to provide such an accommodation. In its defense, a transit agency may show, inter alia, that its use of qualification stan- dards, tests, or selection criteria are job related and consistent with business necessity; that qualifica- tion standards, tests, or selection criteria are not being used to screen out or deny a job or a benefit to an individual with a disability; and that job perfor- mance cannot be accomplished by a reasonable accommodation. A transit agency may deny employ- ment to an individual who poses a direct threat to 969 42 U.S.C. § 12102(3)(A) (2018).

66 readily accessible to and usable by individuals with disabilities, including those who use wheelchairs. With some exceptions, key stations have to comply with DOT Standards to the same extent as other new or altered stations. Part VII of this digest discusses the ADA require- ments for fixed route service. Under § 12142(a) of the ADA, a public entity is discriminating against individuals with a disability when the public entity purchases or leases a new bus, a new rapid rail vehi- cle, a new light rail vehicle, or any other new vehicle to be used on such system if the vehicle is not readily accessible to and usable by individuals with disabili- ties, including those who use wheelchairs. The ADA’s accessibility requirements apply to purchases or leases of used or remanufactured vehicles. The ADA applies also to private entities who have con- tracts or other arrangements with public entities. New rapid rail cars and light rail vehicles must be accessible; remanufactured rapid or light rail vehi- cles must be made accessible to the maximum extent feasible. Notably, as of 2013, according to the FTA Circular, nearly 100% of transit buses and rapid rail cars and 87% of commuter rail and light rail cars were accessible. Chapter 5 of the FTA Circular discusses the equivalent facilitation process for transportation vehicles and transportation facilities, a process that may permit departures from the specifications in 49 C.F.R. part 38 for vehicles and the DOT Standards for facilities and allow the use of alternative designs or technologies that provide equal or greater acces- sibility. That is, innovations must provide equal or greater accessibility in comparison to the specific technical and scoping requirements in the regula- tions. A party requesting equivalent facilitation must submit, inter alia, documentation of public participation when the party was developing an alternative method of compliance with the ADA. As discussed in Part VIII of this digest, because some individuals with disabilities are unable to use a fixed route system, Congress created a safety net in the form of complementary paratransit service. Pursuant to the ADA, transit agencies must provide individuals with disabilities with transportation service on the same basis as other individuals who use fixed route systems. The paratransit obligations do not apply to commuter bus, commuter rail, or intercity rail systems. An individual with a disability is eligible for para- transit service if the individual is unable, because of a physical or mental impairment (including a vision impairment), and without the assistance of another individual (except the operator of a wheelchair lift or other boarding assistance device), to board, ride, may deny a request for a modification when the requested modification would create an undue finan- cial or administrative burden. To make a claim against a transit agency for a violation of Title II, a plaintiff must show that he or she is a qualified individual with a disability; that the plaintiff was either excluded from or otherwise denied the benefits of the agency’s services, pro- grams, or activities, or was otherwise discriminated against by the agency; and that the exclusion, denial of benefits, or discrimination was because of the plaintiff ’s disability. Part VI of this digest addresses how transporta- tion facilities must comply with the accessibility requirements in Title II. A transit agency must oper- ate or conduct a designated public transportation program or activity in an existing facility so that, when viewed in its entirety, the program or activity is readily accessible to and usable by individuals with disabilities. Transit agencies must comply with DOT Stan- dards when constructing new facilities or altering existing ones so that they are readily accessible to individuals with disabilities, including those who use wheelchairs. Section 12146 of the ADA states that it is discriminatory for a public entity to con- struct a new facility to be used to provide designated public transportation services unless the facility is readily accessible to and usable by individuals with disabilities, including individuals who use wheel- chairs. A transportation facility is considered to be readily accessible when it meets the requirements of part 37 and appendices B and D to 36 C.F.R. part 1191 that apply to buildings and facilities subject to the ADA, as modified by appendix A to part 37. The ADA applies also to alterations of existing facilities that affect a facility’s usability by persons with dis- abilities, including those who use wheelchairs. Section 12162(e) of the ADA applies to new and existing stations for use in intercity or commuter rail transportation. For example, it is a violation of the ADA if a new station is constructed for use in intercity or commuter rail transportation that is not readily accessible to and usable by individuals with a disability, including those who use wheelchairs. As for existing intercity and commuter rail stations, the stations must be made accessible to and usable by persons with disabilities. When altering intercity or commuter rail stations, they must be altered to the maximum extent feasible so that the altered portions of the stations are readily accessible to and usable by individuals with disabilities. Under Title II of the ADA, a public entity provid- ing designated public transportation must make key stations in rapid rail and light rail systems

67 II of the ADA likewise is enforceable by a private right of action by individuals with disabilities who allege discrimination that violates Title II. It has been held that an action may not be predicated on a regulation that imposes an obligation that is not found in the “plain language” of the ADA. As discussed in Part XI of this digest, Title III prohibits discrimination by places of public accom- modation against individuals with disabilities. Sec- tion 12182(a) of the ADA mandates that no individual shall be discriminated against on the basis of a dis- ability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accom- modations of any place of public accommodation by any person who owns, leases (or leases to), or oper- ates a place of public accommodation. The term pub- lic accommodation includes a terminal, depot, or other station used for specified public transporta- tion. Private entities operating a fixed route system, a demand responsive system, or over-the-road buses are subject to Title III. As analyzed in Part XII, scholars have analyzed the relationship between the ADA and the Civil Rights laws, including whether disparate impact and disparate treatment claims are cognizable under the ADA. Disparate impact occurs when an action that is neutral on its face results in discrimi- natory effects on or consequences for individuals, whereas disparate treatment is the intentional, non-neutral discriminatory treatment of individu- als. There is some judicial authority for the proposi- tion that Title II of the ADA incorporates disparate impact theory as a basis for recovery. Likewise, some courts have stated that claims for disparate impact are cognizable under Title III of the ADA. Finally, as discussed in Part XIII, there is some scholarly and judicial authority for the proposition that an individual with a disability may bring an action for negligence for a violation of the ADA. or disembark from any vehicle on a system that is readily accessible to and usable by individuals with disabilities. Individuals are eligible for paratransit service who have intellectual or cognitive disabili- ties that prevent them from navigating a fixed route system. Individuals with a temporary or episodic disability may be protected by the ADA from dis- crimination. Under 42 U.S.C. § 12102(4)(D), an impairment that is episodic or in remission is a dis- ability if it would substantially limit a major life activity when active. Part IX of this digest discusses demand respon- sive service. When public entities operate demand responsive systems and purchase or lease new buses or other new vehicles, they must ensure that the vehicles are readily accessible to and usable by indi- viduals with disabilities, including those who use wheelchairs. The level of service for individuals with a disability must be “equivalent” to the level of ser- vice provided to individuals without disabilities when the service is viewed in its entirety. Part X of this digest discusses administrative and judicial enforcement of Title II. The FTA is respon- sible for ensuring that grantees of federal financial assistance are not discriminating against individu- als with disabilities. If there is a violation that is not resolved voluntarily, the DOT or the FTA may sus- pend or terminate federal financial assistance or refer the matter to the Justice Department. FTA also conducts triennial reviews of recipients of fed- eral funding pursuant to 49 U.S.C. § 5307(f)(2) and (3) and monitors transit agencies’ compliance with the ADA. As for judicial enforcement, § 12133 of Title II incorporates the remedies, procedures, and rights in Section 505 of the Rehabilitation Act, which, in turn, are the same remedies, procedures, and rights pro- vided in Title VI of the 1964 Civil Rights Act. Because it has been held that there is an implied right of action in the Civil Rights Act’s Title VI, Title