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ADA Blog

 

ADA Blog #123

Segway Dilemma

Have you noticed that more people are using Segways? Many cities use these energy-efficient two wheeled self-balancing personal electric devices as transportation for indoor, sidewalk, and cross-terrain use. They permit police officers and security guards an energy-efficient way to cover more ground more quickly in crime-prone areas. Many cities offer tours via Segways, as a fun & efficient way to tour a city. People are also using them as an electric eco-friendly alternative for many of the short journeys that are typically made by car. A green form of energy for sure.

For someone without a disability, it’s a fun way to travel. For someone with a disability, it might be the ONLY way to participate in a city tour or enjoy a large venue, such as Disney.

In 2009, as the result of an ADA lawsuit, Disney banned the use of Segways® (and other two-wheeled devices) at Disney resorts, but under a "provisional class settlement agreement" Disney agreed to make a total of 15 Disney-owned four-wheeled electric stand-up vehicles (“ESVs”) available for rent at Disney resorts in Florida and California by persons with disabilities who require use of a stand-up mobility device at the same rental rate as other Disney-owned sit-down “electric convenience vehicles” (e.g., electric scooters).

This decision is now being challenged. Although the U.S. Department of Justice, rarely objects to the voluntary settlement of ADA claims between private litigants, it feels compelled to get involved, challenging the fairness of this settlement.

Although the facts and arguments being made in this case are extremely complex, what is clear is this: blanket policies are problematic under the ADA, and Disney's blanket ban of Segways on their properties is what is being challenged. Under Title III of the ADA, places of public accommodation, like Disney, must modify policies unless doing so would fundamentally alter their operations or result in legitimate safety concerns.

The original case was brought by a woman, who has limb girdle muscular dystrophy. Her condition makes it difficult for her to walk or rise from a seated position. She wanted to celebrate her daughter’s 8th birthday at Disneyland, and asked the theme park if she could use a Segway. Using a wheelchair or scooter were inadequate alternatives. Disney refused.

Of the many complicated issues addressed in this case, I have identified four that I believe are worthy of further consideration.

1. Has Disney done due diligence in proving that Segways are unsafe in ALL its facilities at ALL times? It does allow motorized scooters and wheelchairs. At the Disneyland Resort in Anaheim, employees use Segways behind the scenes for their jobs, but the devices are forbidden in public areas.

2. As new devices become available, should policies consider using or adapting them to help guests with disabilities have an experience more akin to that of people without disabilities? "Technological advances didn't end with the powered wheelchair," wrote the Chief Judge.

3. Did Disney misinterpret the ADA to require that an accommodation must be “necessary” as in “at least arguably indispensable or essential”? The court said Disney put too much emphasis on one word, “necessary.” The ADA does not simply look to whether an accommodation is “necessary” but to whether the accommodation permits the “full and equal enjoyment” experienced by non-disabled guests. A theme park “must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide guests with disabilities with a like experience,” the court said.

4. Is the Department of Justice’s recently promulgated regulation governing the use of Segways and other personal mobility devices in public accommodations a reasonable interpretation of Title III of the ADA (42 U.S.C. 12182), and, therefore, entitled to deference? Disney parks have been recognized for providing accessibility and award-winning services to guests with disabilities. They feel they have already evaluated safety factors, including speed and maneuverability, in making its policy to ban guest use of two-wheeled vehicles like Segways due to the safety risks they present in their unique theme park environments.

The only thing that I can determine at this point is that we have not heard the last of the Disney Segway lawsuit adventure.

Please note: The EEOC has not promulgated a regulation like 28 C.F.R. 36.311 to implement its employment provisions (Title I), and has not officially addressed whether an employer would have an obligation to permit an employee’s use of his own Segway or other such devices in the workplace as a reasonable. But what the EEOC requires in the employment context is irrelevant here. This is a Title III case involving public accommodations.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.