Q: Does the Supreme Courts early
June decision requiring foreign cruise lines to comply with the
Americans with Disabilities Act (ADA) have any application to tour
operators? Our company sells packaged tours using operators that
dont accommodate disabled clients. Could we get into trouble if we
continue refusing to sell these packages to disabled clients?
From time to time, we
also organize our own escorted tours for elderly Americans, but we
turn away all disabled clients because our European ground operator
claims that it cant accommodate them. Now, we cant help but wonder:
Are we acting legally?
A:
These are very difficult legal questions, as the ADA is a rather
vague law. As a result, a skilled advocate actually could argue
either side of this complicated issue.
However, I have never
been one to shy away from expressing my legal opinions, so here
goes.
The Supreme Court
held that the ADAs clauses outlawing discrimination in services and
prices apply to any companies that operate in U.S. territory,
including U.S. territorial waters.
It certainly sounds
like travel agencies and tour operators might be subject to similar
laws, as they offer services that can discriminate against the
handicapped.
However, the
difference between a cruise line and a travel agency or tour
operator is that the latter do not own, lease or operate any
specific travel service, such as a cruise ship, airplane or
hotel.
The laws basic
prohibition is that 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 a means of
transportation, such as a cruise line, hotel or an
attraction.
As a result, when it
comes to complying with the ADA, travel agencies and tour operators
are not legally responsible for suppliers failures to accommodate
the disabled.
Nevertheless, some
federal courts have taken a somewhat broader view on the matter.
Those courts hold that service providers with offices that
accommodate the public have a duty to work with suppliers to
arrange accommodations for disabled travelers upon
request.
One legal authority
goes so far as to say that the agency must work with the
nonaccommodating suppliers to get them to try to alter their
services.
However, even if a
travel agency had such a duty, it would apply only to suppliers
that own or operate places of public accommodation located in, or
moving to or from, the U.S.
If the place of
public accommodation remains abroad, the ADA would not apply to
either you or the supplier.
Mark Pestronk is
a Fairfax, Va.-based attorney specializing in travel law. He
answers your questions in the TravelWeekly.com Legal Ease forum. To contact Pestronk
directly, e-mail him at [email protected].