By Jeffrey J. Beaton
I’d like to tell you that I recently rolled into a federal court looking to right the wrongs of discrimination armed only with a briefcase, a paralegal, and a shiny new wheelchair. I’d like to tell you that my opening statement drew applause from the courtroom. I’d like to tell you that the defense table shook under the sheer weight of my oratory. I’d like to tell you the judge leaned back approvingly, smiled at me, then gave the defense a look that said, “Your turn … let’s hear the arguments and evidence to top that.” I’d like to tell you that we left the courthouse with my client’s head held high and her pocketbook filled with the rewards of my persuasive labors. I’d like to tell you that, but it wouldn’t be true. No, the truth lies elsewhere — somewhere between righting a wrong and living with attitudes that cannot be made right.
My client had engaged me to look into alleged discriminatory treatment. She related her story of how an airline had removed her unceremoniously from a plane on the pretense that she would be unable to exit in the event of an emergency. (Imagine the airline captain hustling my client off the plane while other passengers stared, pointed, and whispered to each other about the poor crippled woman.) Her ticket promised a trip from Barcelona to New York City on an airline headquartered in the United States. No question that the airline was subject to U.S. law concerning discrimination. No question that my client had been allowed to remain on other trans-Atlantic flights. No question that my client could have been allowed to remain on that flight. The question remains: Did the airline discriminate on the basis of disability?
The answer lies somewhere between what’s in the heart and what’s in the head. If the answer is found in the head, then the wording of the statute clearly says that a passenger must be able to exit the plane in the event of an emergency. The passenger may have the assistance of an aide, but may not rely on the airline to provide the assistance. My client is an elderly woman who requires the assistance of an aide to exit the airplane. But her traveling companion appeared unable to assist her. Which begs the question: Which passenger can be counted on to exit in an emergency? If we let our hearts help our heads consider the question, we are motivated to consider the full spirit of the legislation. The very word emergency implies a lack of certainty. Any nondisabled traveler can acquire instant disability in an emergency. People get injured, people panic. Who’s to say that my client herself, a retired physician, might not prove helpful?
The flight attendant listened impatiently to my client’s heartfelt argument that she had traveled on numerous airlines across Europe and the United States. The flight attendant, feeling stuck between the hard spot of my client’s argument and the rock of her discomfort with disability, sought higher authority. After several minutes, the plane’s captain sauntered down the aisle. He explained the airline’s position. My client was deemed unable to exit in an emergency even with the aid of her traveling companion. She would simply have to exit the plane. Immediately, if you please.
Perhaps you’ve been subjected to discrimination. Perhaps your claim of legal right left you feeling like a whining child invoking entitlement. Why should the duty shift to the disabled to threaten legal action? What happened to the old adage, the customer is always right? Why should the onus be on us to file suit for equal treatment? What ever happened to the golden rule of treating others as you would be treated?
I hope that the actions of an individual discriminator don’t reflect the attitude of the community as a whole. We daily face little hurdles that we have simply learned to overcome — a curb cut that isn’t level or a counter top that isn’t at wheelchair height. There is never a store employee around when you need to reach the can of corn on the market’s top shelf.
I know I’m painting with broad strokes here. I realize that each of us has felt the benefits of the ADA. The need isn’t for more law, the need is for the spirit of the law to be enforced by the judges who interpret it and by the industries the law governs. Individuals are often willing to hold a door, hit an elevator button, or see to our comfort in wheelchairs and walkers. Slowly social attitudes are changing. Too slowly. The ADA was passed in 1990. And more than two decades later attitudes have not changed enough to help my client fly from Barcelona to New York.
Perhaps each of us needs to bitch and moan a bit louder and a bit longer to effect change.
Jeff Beaton lives in Virginia Beach, Va., where he has been practicing law and mediation since 1984. In his free time he enjoys painting, gardening and writing for various publications.