Q: If my agency organizes a tour for a senior citizens group, do we have to arrange for or provide accommodations for disabled travelers such as wheelchair lifts onto a bus or disabled-friendly hotel rooms? If some participants are nearly deaf, do we have to provide a way for them to hear the tour guide? If not, can we refuse to take them on the trip? What if, instead of organizing the tour, we just sell an operator's existing package? Do we have to make arrangements with the operator to accommodate these travelers?
A: Unless you own or lease the means of transportation, place of lodging or other accommodations on the tour, you have no legal duty to accommodate disabled travelers during the trip or to arrange for them to be accommodated. However, as noted below, you need to assist them in a nondiscriminatory manner, and you cannot refuse to deal with them.
Under the Americans with Disabilities Act (ADA), "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation." The term "place of public accommodation" means a physical place or method of transportation.
So since you do not own or lease any physical space used in the tours, and since you do not own or lease any method of transportation, the ADA does not apply to your activities. Therefore, you are under no legal obligation to accommodate, or even arrange to accommodate, disabled travelers.
Of course, if you charter a bus in the U.S. as part of your tour, the ADA will apply both to your agency (as a charterer is a lessee) and the bus operator (as the lessor of a public accommodation). Both of you must ensure that there are reasonable modifications for disabled passengers, including ensuring use of a wheelchair-accessible bus.
On the other hand, if your bus operates entirely in a foreign country, the ADA does not apply, even if the tour originates in the U.S. The public accommodation itself must be at least partly in this country in order for the law to apply, which explains why cruise ships docking at a U.S. port are subject to the ADA but ships operating entirely abroad are not.
In addition, in one case, a federal court has held that travel agencies can be held liable under the ADA for failing to modify or adjust their own services (not just their physical offices) so as to meet the needs of the disabled customers. Specifically, the court stated that agencies must provide disabled clients with information and advice in a nondiscriminatory manner, which means that you must advise them as you would any other clients and cannot refuse to deal with them.
Finally, one expert recommends that tour operators and agencies always notify bus lines and other facilities and services to be used during the tour of any disabled passenger's request for accommodation and then follow up by making sure that the passenger will be accommodated as needed. Although you probably do all this already, it sounds like good advice for every operator and agency.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].