Decision No. 79-AT-A-2021

August 12, 2021

APPLICATION by Bruce Kruger (applicant) against American Airlines Inc. (American Airlines) pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding his accessibility-related needs.

Case number: 
19-50076

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against American Airlines pursuant to subsection 172(1) of the CTA regarding the difficulties that he experienced with respect to seating assignment and pre-boarding for round‑trip flights between Toronto, Ontario, and Houston, Texas, USA.

[2] The applicant seeks the following remedies:

  1. an order that requires American Airlines to update its computer system to ensure the proper transmittal of disability-related needs to its personnel;
  2. an order that requires American Airlines to provide necessary training to its personnel so that they are fully aware of the Canadian human rights requirement as it relates to accommodating disability-related needs; and
  3. that he never has to justify a request for pre-boarding in front of other passengers.

[3] On July 2, 2020, the Agency issued Decision No. LET-AT-A-40-2020 (Decision) in which it found that the applicant is a person with a disability and that he encountered obstacles to his mobility. In this decision, the Agency will address the issue of whether American Airlines can remove the obstacles to the applicant’s mobility without experiencing undue hardship.

[4] For the reasons set out below, the Agency finds that the obstacles to the applicant’s mobility are undue within the meaning of subsection 172(1) of the CTA and orders corrective measures pursuant to subsection 172(3) of the CTA, as applicable at the time of the incident.

BACKGROUND

[5] On May 29, 2019, the applicant purchased round-trip tickets to travel from Toronto to Houston via Charlotte, North Carolina, USA, departing on June 13, 2019, and returning on June 19, 2019. After making his reservation, the applicant contacted American Airlines and advised American Airlines’ Special Assistance Coordinators (SAC) that he required pre-boarding and specific seating due to his medical condition, which is chronic post‑traumatic stress disorder. The SAC agent assigned him a window seat in the last row of the aircraft with a bulkhead behind him for his four flights and advised him to ask for pre-boarding at the terminals.

[6] However, for both outbound flights, the applicant had to explain in front of other passengers the reason why he needed pre-boarding, which caused embarrassment; and for his inbound flights, the applicant was re-assigned a seat that did not meet his disability‑related needs after a change of aircraft, although the applicant had previously confirmed his seat assignment with the SAC.

[7] In the Decision, the Agency found that:

  • the applicant is a person with a disability;
  • the applicant encountered the following two obstacles to his mobility:
    • when he had to explain the medical condition causing the need for pre‑boarding after gate agents questioned him, and
    • following the re-assignment of seats that did not meet his disability-related needs;
  • three of the six remedies (compensation for pain and suffering, full refund of the costs of his return tickets, and submission of his application to the Canadian government) sought by the applicant would not be considered as those remedies are not within the Agency’s power to grant.

[8] The Agency then provided American Airlines with the opportunity to either:

  • Explain, taking into account any proposals from the applicant, how it proposes to remove the obstacles; or
  • demonstrate, on a balance of probabilities, that it cannot remove the obstacles without experiencing undue hardship.

[9] American Airlines filed its answer to the Decision on July 23, 2020. The applicant filed a reply on July 27, 2020.

[10] On February 22, 2021, the Agency issued Decision No. LET-AT-A-12-2021 (interrogatory) in which it required additional information from American Airlines on how it intends to address, through the policies and procedures it proposed in its submission dated July 23, 2020, the communication of accessibility-related information to flight attendants on‑board the aircraft to prevent the reassignment after boarding of the seats of passengers who were assigned specific seats to accommodate a disability. American Airlines filed its response to the interrogatory on March 1, 2021. The applicant filed a reply on March 2, 2021.

THE LAW

[11] The application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the application, read as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[12] As outlined in the Agency’s opening pleadings letter, the Agency determines whether there is an undue obstacle to the mobility of a person with a disability using a two-part approach. The first part in this application is to consider whether the applicant is a person with a disability and, if so, whether the applicant encountered an obstacle. The Agency dealt with the first part in the Decision.

[13] As was done in this case, once it is determined that the applicant encountered an obstacle, the Agency, in the second part, then provides the respondent with an opportunity to either:

  • explain, taking into account any proposals from the applicant, how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
  • demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[14] The Agency will now address the second part.

CAN AMERICAN AIRLINES REMOVE THE OBSTACLES TO THE APPLICANT’S MOBILITY WITHOUT EXPERIENCING UNDUE HARDSHIP?

1. Pre-boarding

POSITIONS OF THE PARTIES

American Airlines

[15] In its answer to the application, American Airlines claims that legal prohibitions prevented it from creating records related to a passenger’s disability or health condition. In the Decision, the Agency held that, to the extent that American Airlines intends to rely on any

US regulatory or statutory obligations, it should provide section-specific references and, where applicable, any relevant jurisprudence. In its answer to the Decision, American Airlines did not refer to any US legislation, regulations or jurisprudence.

[16] American Airlines confirms that its procedure for pre-boarding includes pre-boarding announcements. More specifically, it explains that before the first group under its “Group Boarding” process is boarded, a gate agent will make a pre-boarding announcement inviting anyone requiring special assistance or additional time to board to report at the gate at that time. American Airlines adds that pursuant to its policy, passengers requesting pre-boarding should not be questioned about the reasons underlying their request.

[17] American Airlines states that it accepts the Agency’s finding in the Decision that, on a balance of probabilities, this policy was not followed in the applicant’s case. American Airlines submits that it identified the agents who were in contact with the applicant on the days he travelled, informed them of his complaint, and reminded them that there is a prohibition against asking passengers the reasons for their pre-boarding request. American Airlines also adds that it will communicate once more with the agents who were involved in the incidents to advise them of the Agency’s finding with respect to pre‑boarding and to reiterate its policy against questioning passengers who self-identify as requiring pre-boarding.

[18] American Airlines submits that its policies and procedures with respect to pre-boarding, on the condition that they are properly followed, are in compliance with and possibly go beyond the requirements of section 34 of the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 (ATPDR) relating to priority boarding.

[19] In addition, American Airlines proposes to issue an internal memorandum to all frontline employees to reiterate that some disabilities are not visible and to remind them of its policy prohibiting the questioning of any passengers about their reasons for requesting pre-boarding. American Airlines indicates that the initial and annual training sessions its frontline employees receive already address non-visible disabilities but, claims that issuing a memorandum would emphasize the importance of recognizing that not all disabilities are visible.

[20] In response to the applicant’s request that American Airlines provide training related to Canadian requirements to accommodate persons with disabilities, American Airlines asserts that all its airport and gate agents, reservations agents, flight attendants and management employees undergo annual training relating to the accommodation of persons with disabilities. It submits that this training includes specific instructions on the requirements of the ATPDR, in addition to those of the US Americans with Disabilities Act and the European Union’s regulation concerning the rights of disabled persons when travelling by air.

[21] American Airlines does not address the applicant’s suggestion that it use a * (star) on its boarding pass to indicate that the passenger needs pre-boarding.

The applicant

[22] The applicant submits that American Airlines’ comments do not reflect any modification of substance since the previous incidents he experienced, all of which he claims were created because of improper communication.

[23] The applicant suggests that the addition of a designation, such as a * (star), on the boarding passes to indicate that the passenger’s pre-boarding request was approved would alleviate these problems. The applicant argues that it is time for the Agency to order American Airlines to move forward with computerized notifications and boarding passes that clearly show that pre-boarding has been approved.

[24] As for training, the applicant does not consider letters to employees from corporate offices to be a valuable training tool.

Analysis and determinations

[25] The onus is on the respondent to demonstrate how it proposes to remove the obstacles identified by the Agency or to demonstrate that it cannot remove the obstacles without experiencing undue hardship.

[26] American Airlines does not take the position that it would experience undue hardship in removing the obstacle encountered by the applicant when he had to explain the medical condition causing the need for pre-boarding after gate agents questioned him. Rather, it proposes measures relating to the remedies sought by the applicant.

[27] Accordingly, the Agency finds that the applicant encountered an undue obstacle to his mobility within the meaning of subsection 172(1) of the CTA when he had to explain the medical condition underlying his need for pre-boarding after gate agents questioned him.

[28] American Airlines’ policies and procedures provide that the gate agent will make a pre‑boarding announcement inviting anyone requiring additional time or special assistance to board at that time. According to American Airlines’ policies and procedures, any passenger who self‑identifies as a person with a disability or simply as a passenger requiring pre-boarding will be allowed to do so without explanation. It appears that this practice, if applied as described, would prevent recurrence of the situation faced by the applicant.

[29] In addition, American Airlines indicates that the agents involved in the incident were reminded of American Airlines’ pre-boarding policy and that it proposes to issue a bulletin to all frontline employees to remind them of this policy. American Airlines also updated its training on disability‑related matters, including non-visible disabilities, for all airport and gate agents, reservations agents, flight attendants and management employees in light of the requirements of the ATPDR.

[30] The Agency recognizes the applicant’s concern that without the use of an automated system that adds a designation on boarding passes or another measure similar to what was ordered by the Agency in Decision No. 345-AT-A-2016 (Kruger v Air Canada), the problem will not be rectified. However, each application is decided on a case-by-case basis, and in the present case, the Agency finds that the measures proposed by American Airlines, which include the enforcement of the policy and procedures already in place, as well as American Airlines’ ongoing effort to train its staff, are appropriate and address the obstacle faced by the applicant while pre-boarding given that they will allow the applicant to pre-board without being questioned about the reasons underlying his request.

[31] Therefore, in this case, the Agency finds that American Airlines demonstrated that the measures it committed to implementing regarding pre-boarding, which include the issuance of a bulletin to all its frontline employees to enforce the proper application of the policy and procedures already in place, along with its ongoing effort to train its staff on disability‑related matters and non-visible disabilities, will ensure a consistent application of its policy and procedures related to pre-boarding. Therefore, the Agency is satisfied that these measures will prevent recurrence of the situation faced by the applicant when the gate agents questioned him on his pre-boarding request.

[32] Finally, with respect to collection of information about the passengers’ health or medical information, it appears that American Airlines’ policy will not require collection of such information as its policy provides that any passenger requiring pre-boarding will be allowed to do so without being questioned. Therefore, the Agency finds that it is no longer necessary to address this issue.

2. Seat assignment

POSITION OF THE PARTIES

American Airlines

[33] American Airlines asserts that its policies and procedures allow passengers with disabilities to reserve the specific seat required in advance, and recognizes that the applicant’s complaint and the Agency’s findings were based on changes made after the applicant reserved the seat he required.

[34] American Airlines proposes to address the needs of the applicant and passengers with similar accommodation requirements by designing and implementing a policy whereby:

- Passengers with specific seat requirements may contact the SAC desk which will document requests for specific seat requirements with a Special Service Remark (SSR) in the passenger’s Personal Name Record (PNR) [seat requirement SSR]. American Airlines will use the same SSR that is used for passengers who purchase a premium economy or main cabin extra seat and this will notify the flight attendant that the passenger should not be removed from their assigned seat and will not disclose any private, personal, or medical information;

- Where an aircraft type change occurs, American Airlines will conduct a manual search of the PNRs of passengers booked on the affected flight to verify whether any contain a seat requirement SSR;

- When an aircraft type change occurs more than 24 hours prior to departure and a seat requirement SSR is identified through the manual search, reservations agents will contact the affected passenger to make arrangements to meet the passenger’s seat assignment needs;

- When an aircraft type change occurs within 24 hours of departure and a seat requirement SSR is identified through the manual search, the automated process will reassign seats, but airport agents will manually reassign seats to accommodate the seat assignment requirements prior to boarding, if necessary. In this situation, the gate agents will make several announcements requesting that affected passengers approach the gate agent to obtain their new seat assignment that meets their requirements, and will ensure that the passenger is not required to provide any explanation or to disclose any personal information related to the need for a specific seat at the gate.

[35] American Airlines adds that the implementation of the manual seat requirement SSR policy will allow agents at its Operations Centre to ensure that a passenger who requires a specific seat will not have that seat reassigned to accommodate other passengers without similar needs, as in the case of families who would prefer, but do not need, to be seated together.

[36] Additionally, American Airlines states that to ensure the communication of accessibility‑related information to flight attendants on-board the aircraft to prevent the reassignment of passengers’ seats after boarding, all its flight attendants use company provided portable electronic devices. These devices ensure the communication of information about the flight, including details about passengers such as frequent flier program status, class of service, extra services paid for, and SSR. American Airlines indicates that the lead flight attendant is also provided this information in printed form should the electronic device be unavailable.

[37] Finally, American Airlines invites the applicant to contact its Abilities Employee Business Resource Group to discuss ways to ensure American Airlines’ policies and procedures meet his needs and the needs of passengers with similar disability-related needs.

The applicant

[38] The applicant does not believe that the policy proposed by American Airlines will result in any reasonable change. The applicant questions how the use of a general SSR remark will prevent improper seating reassignments. The applicant submits that the SSR does not explain any medical needs to those who receive the information. The applicant claims that American Airlines confirmed this when it stated in its answer that passengers with disability‑related needs are simply given an SSR code that is the same as those who purchase premium economy or main cabin extra seating.

[39] The applicant submits that agents are usually too engaged in quickly and efficiently moving people onto the aircraft and into seats during both the gating and seating process to search for a passenger’s SSR.

[40] The applicant submits that there is no need for American Airlines to collect and record passengers’ medical information, except as required by their Special Assistance Desk. He submits that the concerns about confidentiality regarding the implementation of the * (star) symbol are no different than people using “handicap signage” in a car. He adds that this signage signifies that the holder has disability-related needs, without divulging any medical information.

[41] The applicant asserts that based on American Airlines’ policies and procedures, no notification of a special need is provided to the agents at the boarding gate as the information regarding his disability appears to be simply placed “on file” as an SSR. Therefore, the applicant claims that unless an American Airlines agent searches for a passenger’s SSR, there is no way for them to be notified of the disability-related needs previously provided to the SAC.

Analysis and determinations

[42] American Airlines does not state that it would experience undue hardship in removing the obstacle encountered by the applicant when he was re-assigned a seat that did not meet his disability-related needs after a change of aircraft. Rather, it proposes to implement measures relating to the remedies sought by the applicant.

[43] Accordingly, the Agency finds that the applicant encountered an undue obstacle to his mobility within the meaning of subsection 172(1) of the CTA when he was re-assigned a seat that did not meet his disability-related needs.

[44] The Agency finds that American Airlines’ policy for the reassignment of seats more than 24 hours prior to departure is appropriate as American Airlines’ agents will contact passengers with a seat requirement SSR after conducting a manual search of the passengers’ PNRs to ensure that the seat reassignment still meets the passengers’ disability-related needs.

[45] The Agency also finds that American Airlines’ policy for reassignment of seat within 24 hours of the departure is appropriate. While, as a first step, the automated system will reassign seats, agents will afterwards manually reassign seats to accommodate passengers with a seat requirement SSR after conducting a manual search of the passengers’ PNRs. In addition, in case of a seat reassignment within 24 hours of departure, gate agents will make several announcements requesting any affected passenger to approach the gate agent to obtain their new seat assignment that meets their disability-related needs.

[46] Finally, all American Airlines’ flight attendants use company-provided portable electronic devices or printed documents to receive information about the flight, including details about passengers such as SSR, so they can ensure that any passenger identified with an SSR will not be removed from their assigned seat in case a reassignment of seat occurs after boarding.

[47] The Agency is satisfied that American Airlines’ proposed policy addresses the obstacle encountered by the applicant when he was re-assigned a seat that did not meet his disability-related needs, as this obstacle was originally caused by American Airlines’ lack of policy and procedures on proper re-assignment of seats for passengers with disabilities. As stated in the Decision, passengers should not be responsible for ensuring that the carrier complies with a disability-related accommodation request that has been properly filed with and accepted by the carrier.

[48] The Agency recognizes the applicant’s concern that American Airlines’ procedure provides for the use of an SSR that is also used in other situations, for example for passengers who purchase a premium economy or main cabin extra seat. However, this does not necessarily diminish the effectiveness of the code. In fact, if American Airlines ensures that all agents are aware that this code includes disability-related requests, and is used appropriately, it should achieve its primary purpose, that is, to efficiently and reliably identify passengers who require a specific seat that meets their disability‑related needs.

[49] In light of the above, the Agency finds that American Airlines demonstrated that the policy and procedures that it proposes to design and implement regarding seat assignments will prevent recurrence of the situation faced by the applicant when he was re-assigned a seat that did not meet his disability-related needs.

ORDER

[50] The Agency orders American Airlines to:

Ensure that American Airlines’ pre-boarding policy and procedures, or procedures offering an equal or better level of service, remain in place and are properly applied by its personnel, by November 8, 2021:

  • Issue an internal memorandum to all frontline employees to reiterate that some disabilities are not visible and to remind them of American Airlines’ policy prohibiting the questioning of passengers’ reasons for requesting pre‑boarding;
  • Implement and enforce the application of its proposed policy and procedures regarding seat assignments to ensure that passengers with disabilities are seated in a seat that meets their disability-related needs at all times; and
  • File a copy of the internal memorandum sent to all frontline employees and file a written copy of its implemented policy and procedures regarding seat assignments with the Agency’s Chief Compliance Officer.

Member(s)

J. Mark MacKeigan
Mary Tobin Oates
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