HULL, Circuit Judge:
This is a consolidated appeal of 30 separate lawsuits. Most plaintiffs-appellants are individuals with severe autism. Defendant-appellee is Walt Disney Parks and Resorts US, Inc. ("Disney"), a division of The Walt Disney Company.
In separate lawsuits, plaintiffs filed claims alleging that Disney, at six of its theme parks, fails to accommodate their disabilities, in violation of Title III of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12182. Plaintiffs allege that their severe disabilities include an inability to comprehend the concept of time, defer gratification, and wait for rides, as well as strict adherence to a pre-set routine of rides in a specific order. Plaintiffs
Disney responds that it accommodates plaintiffs' disabilities because its current Disability Access Service ("DAS") program allows cognitively disabled guests like the plaintiffs (1) to enter immediately all rides with waits of less than 15 minutes, which is most rides, (2) to schedule appointment times for rides with longer waits, and (3) to never have to stand in a physical line for any ride. In each case, the district court granted Disney summary judgment and concluded that the DAS program already accommodates plaintiffs' disabilities and that revising the DAS program is not necessary for plaintiffs to have equal access and enjoyment of Disney's parks. Our opinion is organized as follows.
I. DISNEY THEME PARKS....1274
A. General Background....1274
B. FastPass System....1275
C. Re-admission Passes....1276
D. Disability Access Service Program (DAS)....1276
E. Individualized Accommodations....1278
F. Advance Planning....1279
II. AUTISM AS A DISABILITY....1279
III. PLAINTIFFS' EVIDENCE....1281
A. Testimony of Plaintiffs' Parents....1281
B. Day-in-the-Park Narratives for Plaintiffs A.L., A.B., S.M., and J.M.....1283
C. Expert Dr. Joette James....1284
D. Scientific Studies....1285
IV. DISNEY'S EVIDENCE....1286
A. Expert Dr. Jill Kelderman....1286
B. Expert Dr. Jack Spector....1287
V. PROCEDURAL HISTORY....1288
VI. STANDARD OF REVIEW....1289
VII. DISCUSSION....1289
A. Title III of the ADA....1289
B. Definition of Disability....1290
C. Blanket Policy....1290
D. Claims Based on § 12182(b)(2)(A)(ii)....1292
E. Necessary Modifications....1293
F. Analysis of "Necessary"....1296
G. Reasonableness and Fundamental Alteration....1298
H. Intentional Discrimination Cause of Action....1299
VIII. CONCLUSION....1300
To evaluate plaintiffs' claims that Disney's DAS program does not adequately accommodate their disabilities, we discuss Disney's parks, its pass system for accessing rides, and how the DAS program works in that context.
Disney's six theme parks at issue include Disneyland and Disney California Adventure, both located in California; and the Magic Kingdom, Epcot, Disney's Hollywood Studios, and Disney's Animal Kingdom, which are all part of the Walt Disney World Resort in Florida.
These parks are popular vacation destinations. In 2017, the Magic Kingdom in Florida received over 20 million guests. This works out to an average of almost 55,000 visitors per day, every day of the year. The same year, Disney California Adventure, the least visited of Disney's parks in the United States, received over 9.5 million visitors or around 26,000 per day.
The parks offer activities with no lines or short lines, including parades, shows, concerts, characters, stores, and restaurants. Many rides also have no wait times. A guest can walk up and get on many rides within 5 to 10 minutes. Some popular rides, however, have wait times from 10 to 30 minutes. The newest or most popular rides may involve wait times ranging from 30 to 90 minutes or more.
To reduce wait times, Disney introduced a mobile app, called "My Disney Experience." The app contains a map of the park and shows the location of each ride by name. Using the map, a guest can see what rides are available and the location of each ride in relation to the guest's current location. The map shows in "real time" the wait time, if any, for every ride.
Wait times for rides depend on a number of factors, including: the popularity of the ride; the day of the week; the time of day; the time of year; the weather conditions; whether the ride is running at less than full capacity; whether a nearby ride experienced an unexpected shutdown; and whether a nearby parade ended recently. When guests wait for rides, they do so in one of two lines: (1) the Stand-By line; or (2) the FastPass line.
The Stand-By line operates this way. A guest joins the line at the end and moves up to the front as the people ahead board the ride. If a ride has a 60-minute wait, the guest waits physically in the Stand-By line for 60 minutes. Anyone wishing to board the ride with the guest must also wait physically in the Stand-By line. A guest cannot hold a place in line for his group.
To reduce wait times, Disney developed the FastPass system, which allows guests to enter immediately at least three rides and avoid Stand-By lines. All guests have access to the FastPass system, which has evolved over the years.
Disney's present version of FastPass is the FastPass+ system. With FastPass+, a guest can make advance reservations for up to three rides for each day of his visit. A guest might reserve one ride at 10:00 a.m., one at 1:30 p.m., and one at 4:00 p.m. At each of those reserved times — or within an "arrival window" around the reserved time — the guest can go to the ride and board through the express FastPass line, which typically involves a wait of no more than 5 to 10 minutes. This eliminates the need to stand physically in a line for those three rides.
FastPass+ reservations are available on a first-come, first-served basis. FastPass+ reservation times are part of each ride's capacity inventory. Once capacity is reached for the ride, no more FastPass+
The FastPass+ system has another valuable benefit. After the guest has used his three advance FastPass+ reservations each day, the guest while in the park can make another FastPass+ selection, depending on availability. The guest can make this fourth reservation at the rides, at in-park kiosks, or on Disney's mobile app. After using his three advance FastPass+ reservations, the guest may hold only one subsequent reservation at a time. The guest must use that fourth reservation before the guest makes a fifth.
Guests in the park who did not make advance reservations can still use the FastPass+ system and make reservations at rides, kiosks, or on the mobile app. However, for the most popular rides, the FastPass reservations for a given day may already be taken by the time the day begins.
Disney's staff also issues a limited number of instant access passes, known as readmission passes or Re-ad Passes. A Read Pass allows a guest to access immediately a ride by going to the short FastPass line. A Re-ad Pass is good for one person and one use only. Disney's park employees, known as "cast members," can issue Re-ad Passes at Guest Relations or out in the park.
A Re-ad Pass has benefits over a FastPass reservation. A guest can use a Re-ad Pass at any time and for any ride, whereas a FastPass reservation is for a specific ride at a set time and must be used within an hour of that time. To illustrate, if a guest has two Re-ad Passes, the guest can access the same ride twice, even if it is the most popular ride with a long Stand-By wait time.
A guest cannot purchase or reserve a Re-ad Pass. Disabled guests can request Re-ad Passes at Guest Relations, but the staff has discretion whether to grant them.
Disney's primary accommodations for guests with cognitive disabilities, including autism, involve the DAS program, where Disney issues a special access card to disabled guests (the "DAS Card"). Disney introduced the DAS program on October 9, 2013. Disney's website has a 23-page resource guide, entitled "Guests with Cognitive Disabilities including Autism Spectrum Disorder (ASD)" (the "Guide"). As to the DAS program, its website also includes a 2-page "Fact Sheet" and a Frequently Asked Questions ("FAQs") section. The DAS program is designed for guests who are unable to tolerate extended waits at rides due to their cognitive disabilities.
DAS Cards are obtained at Guest Relations, which is typically located near the main entrance of a park. Disney does not require disabled guests or their parents to present any medical information or proof
The DAS Card provides significant benefits. The DAS Card allows a disabled guest to obtain scheduled times for all rides, so that he never has to stand physically in a line for any ride at any time. After the DAS program was introduced, all plaintiffs ultimately visited a Disney park and received a DAS Card.
The way the DAS program works is this. A guest holding a DAS Card can obtain a "return time," also known as an "appointment time," to visit the rides in the park. DAS "return times" are available either at the individual rides or at kiosks throughout the park. The disabled guest does not personally need to be present to obtain a "return time"; anyone in the guest's group can do so. However, the DAS Cardholder must be present to board the ride and "redeem" the return time. When the disabled guest and his group arrive at that "return time," they board the ride through the short FastPass line, with very little to no wait.
Once the "return time" is obtained for a ride, the guest and his entire group are not required to wait in the physical Stand-By line for that ride. The disabled guest and his group can use that interval time, which is unavailable to nondisabled guests, to enjoy the many other activities of the park. Those activities include parades, concerts, characters, shows, restaurants, stores, attractions, and even rides with no wait at all.
For example, at 10:00 a.m. a disabled guest and his group could obtain a return time of 11:30 a.m. for the most popular ride that has long wait times, and then, between 10:00 a.m. and 11:30 a.m., they could visit rides or attractions that have no wait or could use one of their three FastPass+ reservations to access a ride with a wait. Kiosks in the park, as well as Disney's mobile app, tell guests what other rides currently have no wait at all or the amount of the wait time if there is one.
The disabled guest and his group may hold only one DAS Card "return time" at a time. Once they go on the ride, they can schedule another "return time" at the ride or a kiosk. While the guest can have only one return time at a time, DAS Card entitlements never run out for the day and can always be requested.
The DAS Card works on the same principle as the FastPass system but has more benefits. First, although a disabled guest with a DAS Card (like any guest) can still make three FastPass+ reservations in advance, the DAS Cardholder does not need to wait until his three FastPass+ appointments are used before obtaining an additional "return time." Rather, the DAS Cardholder can begin making appointments with his DAS Card as soon as he arrives at the park in the morning, including when he initially obtains his DAS Card at Guest Relations. Thus, every DAS Cardholder enters a Disney park with four opportunities to enter the FastPass line for different rides: the three advance reservations through FastPass+ and the first DAS Card "return time."
Second, with a DAS Card, a disabled guest's appointment time is good until the end of the day. The guest is not obliged to board the ride at a particular time or even within an arrival window. Instead, the DAS guest may return to the ride at any point after the scheduled return time and still board immediately.
By contrast, nondisabled guests who wish to ride the same popular ride — except those who used one of their three FastPass+ reservations — must wait in the physical Stand-By line.
In sum, the DAS Card undisputedly does three things: (1) it eliminates the need for a disabled guest to wait in a physical line, even for popular rides with long waits; (2) it provides a disabled guest with immediate access to rides that have a wait of 15 minutes or less; and (3) if a DAS Cardholder wishes, it provides access to more rides in a day than are available to a guest without a DAS Card.
When first introduced, a DAS Card was a physical card, but now it is loaded onto the guest's electronic ticket. Every member of the group is electronically associated with the DAS Cardholder.
Disney also offers more individualized accommodations to guests who obtain a DAS Card. In its Guide, Disney acknowledges that some cognitively disabled guests may need more individualized accommodation, stating:
(emphasis added). The Guide directs guests to inquire about additional accommodations at Guest Relations, explaining: "To learn more about the Disability Access Service Card as well as additional accommodations available based on individual service needs, visit the Guest Relations lobby location near the entrance at any of the four Theme Parks."
Disney's public FAQs include: "What will Disney Parks do if a Guest is concerned the DAS Card doesn't meet their needs?" The FAQ's respond that guests should go to Guest Relations to discuss special accommodations if they are concerned the DAS Card does not meet their needs.
A Disney operations manager described other accommodations based on needs as: (1) planning an itinerary through an in-person meeting at Guest Relations; (2) writing in the first attraction to be visited on the DAS card; (3) issuing attraction Read Passes; and (4) thoroughly explaining the FastPass+ system. When helping plan an itinerary, a Guest Relations cast member takes into account the guest's plans, the weather, and "the environment of the day," given that certain days and times are busier than others.
In addition to the DAS Card, some plaintiffs requested and received Re-ad Passes, which provide immediate access to a ride. Some requested Re-ad Passes but did not receive as many as they wanted. Some plaintiffs received Re-ad Passes during some visits but not during other visits.
While Disney offers assistance, its Guide also recommends that families with a cognitively disabled guest plan their visits in advance. The Guide suggests that families (1) purchase their tickets in advance to avoid the possibility of waiting in line at ticket locations, (2) create or review a visual schedule or timeline of the day, (3) go over the timeline to help the disabled guest learn the routine, (4) study maps of the theme parks, (5) watch videos describing different rides, so they know what to expect, and (6) practice waiting in line. The Guide also provides guests with a list of every ride in each theme park and indicates which rides include scents or smells, flashing lights, loud noises, periods of darkness, bumps, a fast pace, elevation off the ground, wetness, or an element of surprise.
The Guide suggests that a family with a disabled guest may wish to bring these items on their visit: ear plugs or headphones to protect against loud noises; a favorite device or activity that might distract and keep a disabled guest occupied during any periods of waiting; reinforcers for good behavior; a calming sensory toy to protect against over stimulation; and a bracelet or nametag with contact information.
Having outlined Disney's current pass system and cognitive disability program, we examine the evidence about plaintiffs' severe disabilities and why plaintiffs claim Disney's DAS program does not adequately accommodate them.
All but 4 of the 36 plaintiffs-appellants are on the autism spectrum. Some plaintiffs identify autism as their only disability, whereas many plaintiffs experience other disabilities in addition to autism. These other conditions include Down syndrome, attention deficit hyperactivity disorder, verbal apraxia, oppositional defiant disorder, obsessive compulsive disorder, Hirschsprung's disease, atresia, megacephaly, hydrocephalus, cranial cysts, cerebral palsy, sensory disorder, and/or bipolar disorder, among others. Because plaintiffs' evidence and briefs focus on their autism-related impairments, we do too.
Plaintiffs divide the varying degrees of autism into three main groups: high functioning, mild or moderate, and severe. Disney has not tried to claim that some plaintiffs' autism or other cognitive disabilities are more severe than others. Rather, for purposes of summary judgment, Disney accepts that all plaintiffs have
Given their severe disabilities, plaintiffs contend that: (1) although the DAS Card eliminates waiting in a physical line, plaintiffs still must endure a "virtual" wait to go on their rides of choice; (2) plaintiffs cannot comprehend time, defer gratification, and wait virtually for rides; (3) plaintiffs must visit rides in a pre-set order, including repeat turns on the same ride; and (4) Disney must provide them a pass to all rides that guarantees a maximum 10 to 15 minute wait, including repeat turns on the same ride. In response, Disney claims
The critical evidentiary debate in this case is over two behavioral challenges that plaintiffs claim arise from their severe autism: (1) the inability to wait; and (2) adherence to the same routine. We first discuss some general medical and behavioral facts about autism that are not in dispute. We then examine the conflicting evidence about these two behavioral challenges at issue.
Generally, autism spectrum disorder ("ASD") and autism are terms for a group of complex disorders of brain development. The spectrum of disorders encompassed by these terms is very broad; individuals with autism may be mildly affected or may be profoundly disabled. Autism is characterized by difficulties in social interaction, verbal and nonverbal communication, learning, and repetitive behaviors. The disorder can be associated with intellectual disability, difficulties in motor coordination and attention, and physical health issues.
Both parties cite the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"), which sets forth the diagnostic criteria of autism, including these deficits:
Am. Psychiatric Ass'n,
Id.
Autism is also understood as a brain-based disorder. Research suggests that functional areas within the brains of people with autism are not as well-coordinated as those within normally developing brains. Research has identified other biological or structural differences between the brains of people with autism and normally developing brains, "especially related to volumes of gray matter versus white matter, and regional variations in structures such as the corpus callosum, limbic system, cerebellum, basal ganglia, thalamus, and frontal lobes." One study found that "there is
Under the above section discussing "insistence on sameness" and "adherence to routines," the DSM-5 provides examples of behaviors including "extreme distress at small changes, difficulties with transitions, rigid thinking patterns, greeting rituals, need to take same route or eat same food every day."
This much the parties agree on. Against this background, we review plaintiffs' evidence about the two claimed behavioral challenges of autism at issue.
Plaintiffs submitted this lay evidence through their parents' depositions and affidavits about the specifics of their disabilities.
Plaintiffs' parents similarly aver that their child has (1) an inability to wait and delay gratification, and (2) a required adherence to routine.
According to their evidence, plaintiffs cannot comprehend the concept of time and are unable to wait and delay gratification for more than 10 to 15 minutes. For plaintiffs, waiting at all to go on a ride is simply doing nothing in the present, not anticipating something which will occur in the future. It is not a matter of learning; it is the nature of the neurological disability that makes waiting an impossibility.
Nearly all parents attested that their child has great difficulty waiting. Most parents used phrases such as "inability to wait," "no ability to understand a concept such as waiting," "unable to wait for long periods of time," or "impossible ... to wait for long periods of time, even if the wait is not standing in a line." Several parents further attested that their children are "unable to understand the concept of time to any extent comparable to non-disabled persons," and/or that their children "[do]
Nearly all parents also testified that riding in a car, for any period of time, is not comparable to waiting for an attraction at an amusement park. Some parents explained that "riding in a car is itself an activity; it is not idly waiting for a different activity." In a few cases, a plaintiff's parent testified that the plaintiff enjoys riding in a car as an activity in and of itself. Most often, the parents attested that for their autistic child, a car is a more tolerable environment than an amusement park. A car is a "calm and controllable" environment, in which a person with autism can take a nap, use an "iPad," watch movies, listen to music, read books, and enjoy other distractions. In a car, "[t]he temperature, smell, noise level, amount of light, number of people and exposure to textures can be manipulated to meet the needs of the person with autism by the parent." Riding in a car "involves motion and movement," which can be soothing for a person with autism. This stands in contrast to an amusement park, which involves "stimuli of all kinds" and noise levels that "can't be controlled."
As to adherence to routine, most parents testified that their children rely on an expected, pre-set order of events and have difficulty when that order is disrupted. Some plaintiffs live near and have visited a Disney park 10, 15, or 20 times or more. One parent described her son as being "incapable of deviating from consistency, order and routine" when visiting a Disney park. Another parent testified that her son has "an innate sense of the order or sequence in which we will travel and experience the attractions," and that "[i]f that order is disrupted, he becomes immediately emotionally unstable." Other parents testified similarly, stating that a plaintiff "has a specific list and an order of the rides he must go on," or that a plaintiff has a "need to do things in a certain sequence" that would be "completely disrupt[ed]" by the DAS program.
Some parents attested to their children's reliance on predictability and routine without explicitly tying it to a theme park experience. Examples of such statements include: a plaintiff "follows routines and very structured schedules in nearly every activity and aspect of his life, and becomes very unstable when unexpected events or stimuli occur"; a plaintiff "does not handle transition or changes to his routine"; a plaintiff "is very focused on routine" and any change "can trigger his behaviors"; or a plaintiff "is very rigid in his schedule and routines."
Parents also testified about what happens when their autistic child has to wait to get on a ride or is not able to get on the rides in the same routine order developed from prior visits. When this happens, each plaintiff is vulnerable to a "meltdown." What constitutes a meltdown is somewhat different for each plaintiff.
For many plaintiffs, meltdowns include self-harming behavior. According to their parents' testimony, one plaintiff "hits herself, drops to the floor and screams in terror," another plaintiff "might smack/slug his face, and or go to the ground and bang his head on the ground," and a third plaintiff "can be self abusive, including scratching her own face, hitting her head on the ground, jumping in the air and landing on her knees, biting herself ... pulling off her own finger and toe nails, and scratching and picking at open sores to make them bleed." Along with self-harm, some plaintiffs exhibit aggressive behavior that risks harming others: one plaintiff "can hit and kick any object around him"; another "starts to scream and physically grab those around him."
The effect and severity of a meltdown also can vary because plaintiffs are individuals of different ages and sizes. Some plaintiffs are young children. By contrast, plaintiff M.A.C., age 20, is 5'10" tall and 250 pounds, and plaintiff A.L., age 22, is 6'6" tall and weighs "over 300 pounds." Plaintiffs who are younger and smaller may be more safely contained and controlled during a meltdown. Although the nature and severity of the meltdown may vary, plaintiffs' evidence, as a whole and in the light most favorable to plaintiffs, is that their child needs a maximum wait time of 10 to 15 minutes at all rides to avoid a meltdown and having to leave the theme park.
In this regard, the testimony and affidavits of each plaintiff's parents discuss in great detail what happened when they visited a Disney park. We give a few examples of an individual plaintiff's experience with the DAS Card.
Plaintiff A.L. is a 22-year-old man with autism.
A.L. typically visited Epcot or the Magic Kingdom. At Epcot, A.L. would ride Test Track, Mission Space, Spaceship Earth, the Seas with Nemo and Friends, Soarin', and Journey Into Imagination. At the Magic Kingdom, A.L.'s "normal pattern" was to go on 19 rides in order, but sometimes he would skip a ride. His mother explained, "It's always the same route. It doesn't mean that he hits every single ride, but it is always the same route."
On December 19, 2013, A.L.'s family made their first visit to the Magic Kingdom since the introduction of the DAS Card. They arrived at 4:38 p.m. The family, a group of six, went to Guest Relations, where they received a DAS Card and 24 Re-ad Passes, or 4 per person in the group. A cast member went over a map of the park and offered to help plan a route.
The family then entered the park. The first ride A.L. wanted to ride that day was Jungle Cruise. A.L.'s mother used the group's DAS Card at Jungle Cruise, and received a "return time" of 45 minutes later at Jungle Cruise. A.L.'s mother "knew that [A.L.] immediately needed, wanted to go on the Jungle Cruise," so instead the family members each used one of their Re-ad Passes to board the ride immediately. The family determined that with only three Re-ad Passes remaining per person, it would not be possible to visit all of A.L.'s regular rides in order without some waiting, and that they would need to
Plaintiff A.B. is a six-year-old boy with autism. He lives not far from Disney World in Florida. After the DAS Card was introduced, A.B. visited Disney in October 2013 and received a DAS Card but no Re-ad Passes.
The family used their DAS Card to obtain a return time at A.B.'s favorite ride, where the wait time was 1 hour and 15 minutes. The family got lunch during the wait, then returned and went on the ride. A.B. wanted to ride it again, so the family obtained a second return time and, when the time came, went on the ride again. Faced with waiting a third time before going on the same ride again, A.B. had a meltdown. A.B. had two subsequent meltdowns during his October 2013 visit, causing the family to cut the visit short.
The family returned to Disney World in December 2013, and again in 2015 and 2016. On their recent visits, the family used their DAS Card to obtain return times and used the FastPass+ system to make advance reservations for rides. On at least one subsequent trip, the family received Re-ad Passes. Nevertheless, the family had dissatisfying experiences at the parks due to A.B.'s meltdowns.
Plaintiff S.M. is a six-year-old boy with autism, sensory processing disorders, sensory integration, apraxia, and attention deficit hyperactivity disorder. His sister, plaintiff J.M., is a seven-year-old with verbal apraxia, oppositional defiant disorder, and severe attention deficit hyperactivity disorder. The family lives in Ohio.
S.M.'s mother testified that "[a]s a result of his autism, S.M. does not handle transition or changes to his routine." S.M. can manage short waits of 10 to 15 minutes, but longer waits can require some kind of external distraction, such as an "iPad." S.M.'s sister J.M. is able to wait, but she has anxiety and social issues waiting in lines with many other people.
In December 2013, the family visited the Magic Kingdom, where they obtained a DAS Card and received Re-ad Passes. The family used the DAS Card in conjunction with FastPass+ and Re-ad Passes. One of J.M. and S.M.'s older siblings had to run from ride to ride to get return times. The mother testified:
Even with the DAS Card and Re-ad Passes, J.M. and S.M. were not able to experience the park in a sequence that was tolerable for them.
The record contains similar day-in-the-park narratives from all 36 plaintiffs.
Plaintiffs also submitted an expert's report and medical studies about the characteristics of autism.
By contrast, Dr. James indicated that individuals with autism, like plaintiffs, demonstrate "global deficits in executive functioning, both in terms of behavioral regulation (i.e. impulse control, emotional control, flexibility), and in terms of metacognitive skills (i.e. initiation, independent planning/organization, working memory, and self-monitoring)." Dr. James explained that "[i]ndividuals with poor executive control typically have difficulty regulating their emotions, controlling impulses, using good judgment, sustaining attention, making sound decisions, initiating appropriate courses of action, and flexibly changing course when receiving feedback that current plans of action and behavior are not working."
In persons with autism, the need for "sameness and consistency ... often leads to high levels of anxiety when there are even minor changes in their routines." Dr. James cited a study of school-age children, which found that individuals with autism "struggled particularly with shifting-that is, the capacity to move freely from one situation, activity, or aspect of a problem to another as the situation demands, to transition, and solve problems flexibly."
Dr. James considered the example of the lead plaintiff in this case, A.L., whom she characterized as both severely disabled and having symptoms and behaviors like many individuals with severe autism. Dr. James opined that, "[l]ike many individuals with ASD, A.L. demonstrates significant executive dysfunction, and problems with emotional/behavioral regulation, flexibility, working memory, and language." In particular, Dr. James opined that: (1) "characteristic of individuals with ASD, A.L. also experiences significant difficulty with flexibility and anxiety"; and (2) "while [A.L.] can tell time, he does not comprehend the concept of time, nor is he able to `hold onto' the idea of time in such a way as to accurately judge its passage," which "significantly affects A.L.'s ability to wait." Dr. James noted that A.L. has a "high level of rigidity" and a "biologically driven need for consistency and sameness," which results in his having a "nearly inflexible order in which he approaches the rides and attractions at Disney."
Dr. James also testified that for a person with autism, a routine or prescribed order is "more than [a] preference," and is "a biologically driven mechanism." Any deviation from the expected order can lead to a "behavioral meltdown" or "some kind of outburst," even if plaintiffs never need to wait in a physical line for a ride, and even if plaintiffs always have some alternate activity or ride in the park available.
As to routine and sameness, one study, cited by plaintiffs, notes that "[c]hildren with ASDs may protest vigorously when forced to transition from an activity or topic of interest or when a usual routine is changed." Chris Plauché Johnson & Scott M. Myers,
As to the inability to defer gratification, plaintiffs cite a study which found that children at the high functioning end of the autism spectrum demonstrated a reduced ability to exercise "effortful control" and delay gratification. Susan Faja & Geraldine Dawson,
The investigators found that, compared with typically developing children, the rate of children with autism who passed the test by delaying gratification for the entire 15 minutes was lower.
Disney's evidence directly contradicts plaintiffs' evidence about these two behavioral challenges. Disney submitted expert reports from Dr. Jill Kelderman, Ph.D., a pediatric neuropsychologist, and Dr. Jack Spector, Ph.D., a clinical neuropsychologist.
As to autism generally, Dr. Kelderman acknowledged that individuals with autism spectrum disorder can evince "[r]igidity, which can include insistence on sameness or nonfunctional routines ... to varying degrees." Dr. Kelderman opined, however, that these and other behaviors can be managed, stating: "Behavior modification strategies are helpful in reducing and accommodating symptoms of ASD"; and "[s]elf-control in young children with ASD can be increased by gradually exposing the child to progressive delays, when given the choice to engage in an intervening activity during that delay" (internal citations omitted).
Dr. Kelderman explained that "[i]ntroducing alternative behaviors (a technical term for distraction technique) is helpful not only for individuals with disabilities, but their typically developing peers." For example, "providing a card game, movie,
Dr. Kelderman testified that an inability to wait for long periods of time or understand the concept of the passage of time is "not part of the diagnostic criteria" for ASD, is not a central component of ASD, is not a frequently occurring symptom of ASD, and is not a common problem of ASD. Dr. Kelderman stated that there is no body of research outlining the inability of people with autism to (1) "browse" or to (2) "impulsively enjoy substitute experiences."
However, Dr. Kelderman acknowledged that individuals with autism can have more difficulty with waiting than do people without autism, "because it is anxiety-provoking." Dr. Kelderman explained that this anxiety "manifests particularly in social situations, lots of commotion, loud environments, novel environments where they're not sure what's going to happen next. These types of things — many individuals with ASD are more prone to experience anxiety in these events."
As to the Disney experience, Dr. Kelderman's report pointed to Disney's Guide, which advised that "[p]arents are strongly encouraged to prepare ahead of time" for their visits. Dr. Kelderman opined that the families' "expectation that any child with ASD should have immediate, unfettered access to the rides and attractions of their choice at Walt Disney World is not a requirement of the disability; rather, it is a preference or expectation that children with ASD and their families have when visiting the parks."
Dr. Kelderman observed that "[w]aiting is an inherent, unavoidable aspect of our culture and it is part of the daily life of children with and without ASD." Dr. Kelderman opined that "children with ASD are not incapable of waiting or unable to delay gratification," and that a preference to visit attractions in a particular order "is neither a requirement nor an inherent characteristic of ASD."
Dr. Kelderman explained her opinion as follows: (1) that "[b]y eliminating the wait time in some instances and decreasing it in others, individuals with ASD spend minimal amounts of time standing in a line under DAS"; and (2) that "[a]s a result, providing a virtual wait allows individuals with disabilities more access to park experiences, as it frees up hours of time that would otherwise be spent standing in line." Dr. Kelderman concluded that, given the accommodations under the DAS Card, which are available to individuals with autism, "providing repeated, near-immediate entry to rides and attractions ... is not necessary to afford access to Disney's theme parks."
Disney's second expert, Dr. Spector, was retained to review and opine on the expert report of plaintiffs' expert, Dr. James. Dr. Spector disagreed with Dr. James's opinion. Dr. Spector noted that "[c]hildren, developmentally disabled or not, typically do not handle delays and waits" as well as adults do, and "may have little experience with having to wait in line as much as is required on a typical day at a Disney theme park."
Dr. Spector opined that the inherent challenges of taking any child to a Disney theme park make it difficult to attribute any particular negative experience to autism. Dr. Spector explained: "While there may be times when a particular child's
In Dr. Spector's opinion, Dr. James's "flawed causation analysis fail[ed] to address any of a number of different causes" — including the particular child's expectations, skills, adaptability, health, fatigue, and resilience on a given day — that could contribute to a behavioral "meltdown" at a Disney theme park.
Having reviewed the evidence, we out-line the procedural history that led to the summary judgment motions.
These 30 lawsuits on appeal began as 44 separate lawsuits in the district court. Some of the 44 lawsuits were filed originally in the U.S. District Court for the Central District of California, and were transferred to the district court in Florida. Other lawsuits were filed originally in the district court in Florida. Plaintiff A.L.'s action was commenced in April 2014, approximately 6 months before the other 43 actions.
In all 44 lawsuits, the complaint contained one count under the ADA for each plaintiff, asserting that (1) they suffered from autism and/or cognitive disabilities, and (2) Disney's DAS Card violated the ADA because it did not allow plaintiffs to go on rides without waiting and in the order they wanted. Plaintiffs sought injunctions requiring Disney to modify the DAS Card to provide additional accommodations.
Discovery concluded in the A.L. action first, and Disney moved for summary judgment. In April 2016, the district court granted summary judgment for Disney in the A.L. case. A.L. appealed.
The other 43 cases proceeded several months behind the A.L. case. During the litigation, 6 of the plaintiff families voluntarily dismissed their claims, leaving 37 separate lawsuits. After Disney won summary judgment in the A.L. case, Disney moved for summary judgment in each of the other cases. In September 2016, the district court granted summary judgment for Disney in the 37 remaining cases.
The district court entered substantially the same summary judgment order in each case. The district court found that plaintiffs' sole ADA claim arose under § 12182(b)(2)(A)(ii) of Title III, and involved Disney's alleged failure to make necessary and reasonable modifications to its procedures to accommodate plaintiffs' disabilities. The district court determined that there were no issues of material fact and that plaintiffs had not made the required showing that their requested modifications were "necessary" to afford them "equal access" to the benefits of a Disney theme park.
The district court concluded that plaintiffs' requested additional modifications were unnecessary for three main reasons: (1) Disney provided plaintiffs an opportunity to gain a like benefit from its parks that is enjoyed by nondisabled individuals; (2) plaintiffs can all wait in a car or a plane to
Because plaintiff A.L. appealed first, his appeal was briefed separately. Twenty-nine of the other 37 families appealed. Those 29 appeals were consolidated for briefing in this Court.
We review a district court's grant of summary judgment
A nonmoving party seeking to establish that there is a dispute of fact must set forth specific facts showing that there is a genuine issue for trial.
In 1990, the ADA was enacted "to remedy widespread discrimination against disabled individuals" and to "provide clear, strong, consistent, enforceable standards" addressing that discrimination. 42 U.S.C. § 12101(b)(2);
Title III itself contains three parts: (1) a "General rule" in § 12182(a); (2) a list of "General prohibitions" in § 12182(b)(1);
Title III provides for only injunctive relief.
The first element of a Title III claim is that the plaintiff must have a disability. The statutory definition of "disability" is provided before the several Titles and applies to the ADA as a whole. 42 U.S.C. § 12102. Under the ADA, a person has a "disability" if he (A) has "a physical or mental impairment that substantially limits one or more major life activities," (B) has "a record of such an impairment," or (C) is "regarded as having such an impairment." 42 U.S.C. § 12102(1). The statute provides a non-exhaustive list of "major life activities" that includes "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A).
It is undisputed that each plaintiff suffers from severe autism and/or severe cognitive impairments, is significantly limited in numerous major life activities, and qualifies as an individual with a disability within the meaning of Title III of the ADA, 42 U.S.C. § 12182(a)-(b). The quarrel here is whether Disney, through its DAS program, provides its disabled plaintiff guests with an equal benefit and a like experience to that of its nondisabled guests.
As a threshold issue, plaintiffs claim Disney's DAS program is an impermissible "blanket" or "one size fits all" policy for all disabled persons with autism and/or cognitive impairments. Plaintiffs argue that Disney's giving a DAS Card to such disabled guests violates the ADA because Disney is not making the required individualized assessment. Plaintiffs contend that Disney must undertake an individualized inquiry to determine the specifics of each guest's disability and to implement modifications tailored to each plaintiff's needs.
The autism spectrum is broad and has a wide array of diagnostic traits, behaviors, and challenges. The effects of autism vary from person to person. In turn, the benefits of a modification that are "obtainable by children at one end of the [autism] spectrum will differ dramatically from
But this case is unique in two ways. First, Disney has not contested that all plaintiffs have severe autism and/or cognitive impairments. Rather, Disney claims its DAS Card is a full and complete accommodation for cognitively disabled guests, no matter how severe or mild their conditions. If Disney's DAS program accommodates the needs of the most severely impaired child on the autism spectrum, then Disney claims that its DAS program necessarily accommodates the needs of the less impaired autistic child.
Second, based on annual figures, Disney has about 55,000 visitors a day at Magic Kingdom and a minimum of 26,000 visitors a day at other parks.
Under the factual circumstances of this case, we conclude that Disney's generalized issuance of DAS Cards, in and of itself, does not violate the ADA. This is not a case where a plaintiff guest has been
That an across-the-board modification, where proven necessary, does not violate the ADA is illustrated by the fact that plaintiffs actually request a pass system with a uniform ingredient: a guaranteed maximum wait time of 10 to 15 minutes for all rides for all cognitively disabled plaintiffs at all times at all parks. Plaintiffs request this standardized pass to create a "predictable experience" for autistic children.
No case cited by plaintiffs stands for the proposition that the DAS Card is
It is also noteworthy that Disney's Guest Relations staff interact with parents of
At bottom, Disney's issuing a DAS Card to all cognitively disabled guests is not
As the district court correctly concluded, plaintiffs' discrimination claims are based on § 12182(b)(2)(A)(ii). Because this Court has not previously addressed a claim under § 12182(b)(2)(A)(ii), we review § 12182(b) to place that subsection in context.
Section 12182(b)(1) contains "General prohibitions" against discrimination, including the "denial of the opportunity" for a disabled person "to participate in or benefit" from services or facilities. 42 U.S.C. § 12182(b)(1)(A)(i). Another "General prohibition" provides that it is discriminatory to afford a disabled person "the opportunity to participate in or benefit from" services or facilities "that [are] not equal to that afforded to other individuals."
Along with these general principles, § 12182(b)(2) provides for "Specific prohibitions," which are examples of actions or omissions that constitute such discrimination. One example is § 12182(b)(2)(A)(ii), which provides that discrimination includes a private entity's failure to make "reasonable modifications" to procedures that are "necessary" to afford the services and facilities of the private entity to the disabled, as follows:
42 U.S.C. § 12182(b)(2)(A)(ii) (emphasis added). The plaintiff bears the burden of proving not only that he is disabled but also that his requested modification is both "reasonable" and "necessary."
No ADA violation occurs, however, when the private entity demonstrates that the requested modifications would "fundamentally alter the nature of" its services and facilities. 42 U.S.C. § 12182(b)(2)(A)(ii);
The Supreme Court has explained that the statutory text of § 12182(b)(2)(A)(ii) "contemplates three inquiries" for determining whether a requested modification to a public accommodation's procedures is required.
Here, the district court ruled that the DAS program already provided plaintiffs with full and equal enjoyment of Disney's theme parks and that plaintiffs' requested additional modifications were not "necessary" under the ADA. The district court did not rule on the reasonableness or fundamental alteration inquiries. We therefore focus on the case law about "necessary" modifications and then analyze plaintiffs' impairments within that context.
In
Nevertheless, how the Supreme Court distinguished these terms is informative. The Supreme Court noted that use of a golf cart was a "reasonable modification" that was "necessary" if the plaintiff was to play in the PGA's tournaments.
Because an accommodation may be reasonable, but still not necessary, it is easy to see why the district court in this case concentrated on whether plaintiffs' requested modification was necessary. Yet hard questions are presented by the legal contours and factual complexity of what is "necessary" for these severely disabled plaintiffs.
As to the legal standard, two circuit courts after
The Ninth Circuit in
Subsequently, the Eighth Circuit in
Because it had "never determined the definition of `necessary' under Title III," the Eighth Circuit consulted and applied the standard under the Rehabilitation Act.
In doing so, the Eighth Circuit in
Although
The
With this background, we examine the district court's summary-judgment conclusion
We first agree with our sister circuits that public accommodations must start by considering how their facilities are used by nondisabled guests and then must take reasonable steps to provide disabled guests with a "like experience."
As to the first factor, we have described above in great detail how nondisabled guests access and use rides in Disney's parks. We conclude there is no material fact issue as to that process or part of the district court's analysis. All nondisabled guests must plan ahead in order to reserve FastPass+ times and can obtain only three FastPass+ reservations in advance. Nondisabled guests
As to the second factor, we must evaluate if the DAS program afforded the severely disabled plaintiffs a like experience and equal enjoyment. "Meaningful access" gives plaintiffs the opportunity to have something akin to or similar to the experience other people enjoy at Disney's parks.
Here, as shown above, disabled guests can obtain not only three advance Fast-Pass+ reservations but also a DAS Card "return time" for a fourth ride at Guest Relations at the beginning of the day. Then, after each subsequent DAS Card ride, disabled guests can obtain one more DAS Card "return time" for a popular ride, all without waiting in a physical line. The district court aptly observed that, compared to nondisabled guests, disabled guests with a DAS Card can "access those same rides in a fraction of the time" and without standing in line, which results in a "similar, or better, experience as those not needing accommodation." So far, so good in the district court's ruling.
Although the DAS Card is a significant benefit, we conclude that factual disputes still exist about behavioral features of plaintiffs' impairments that make it more difficult to evaluate whether the DAS program provides a like experience. Plaintiffs' evidence posits that waiting for rides in the over-stimulated environment of a theme park, even virtually with the DAS Card, is beyond the capacity of plaintiffs given the specific and severe nature of their disabilities. Plaintiffs' expert and lay evidence indicates that specific neurologically-based
Each parent filed a declaration detailing his or her child's disabilities and special needs, including the inability to endure temporal waits and disruptions of routine. According to plaintiffs' evidence, their children with severe autism cannot comprehend the concept of time, which is the fundamental aspect of understanding that waiting in the present will produce something positive in the future. The claimed disability is waiting at all. Disney's DAS program accommodates the need to avoid physical lines, but not the need to avoid waits. It addresses the geographic burden but not the temporal one. Plaintiffs still must wait.
We recognize the district court relied on the fact that plaintiffs have waited in cars or airplanes for many hours until they get to their travel destinations. Disney's evidence does show that all plaintiffs have taken trips by car or plane to reach theme parks, cruise ships, or other destinations, and that their parents have managed their autistic children waiting in a car or plane during significant travel time. Disney submits the gratification from these trips — reaching the desired destination — was delayed significantly and not instant. Disney argues that living in society requires waiting in cars, on planes, and in a myriad of other places, such as schools, medical offices, and restaurants. That view is supported by Disney's evidence.
Nonetheless, plaintiffs presented conflicting evidence as to this behavioral aspect of their disabilities. The testimony of plaintiffs' parents is that all environments are not identical, and managing a severely autistic child inside a car is materially different than in a chaotic theme park. According to plaintiffs' evidence, tolerance for travel by car or plane is not equivalent to tolerance for wait time in an amusement park. While plaintiffs' abilities to wait in a car or plane is relevant evidence, it is not dispositive as to whether, once inside a theme park with strong stimuli of all kinds, plaintiffs can wait virtually for their pre-set, routine rides. The DAS Card does allow disabled guests to avoid the crowded and constrained conditions that exist when standing in line for a ride. But Disney theme parks are high-commotion environments and plaintiffs must virtually wait therein.
In response, Disney's experts submit that, while plaintiffs wait virtually for a popular ride and their guaranteed "return time," they (even without comprehending any concept of time) are not idle and can enjoy other rides, parades, concerts, characters, restaurants, stores, and attractions, all of which have no wait. The record, however, creates factual issues about whether plaintiffs are able to transition to other activities without meltdowns or other behavioral challenges when they cannot access rides in their already-fixed routine orders or cannot access the same ride repeatedly.
In the light most favorable to plaintiffs, we conclude that genuine issues of material fact exist about these two aspects of
We recognize that Disney requests that we affirm on the alternative grounds that plaintiffs' requested modification — unlimited near — immediate access to all rides — is not reasonable and would fundamentally alter the park experience. Plaintiffs point out that the district court did not address those issues and should do so first. Undisputedly, this Court has the power to affirm a grant of summary judgment on any basis supported by the record.
Those two alternative grounds, however, involve complicated issues too. Here is but one of the parties' debates about the reasonableness and fundamental alteration inquiries that Disney asks us to resolve for the first time on appeal.
The parties contest the effect of plaintiffs' requested relief, which has evolved to this "single fix": an injunction requiring that Disney guarantee plaintiffs a maximum wait of 10 to 15 minutes for all rides. More specifically, plaintiffs ask this Court to implement this fix by ordering Disney to provide either: (1) a card offering automatic access to the FastPass lines for all rides at all times; or (2) between 6 and 10 guaranteed Re-ad Passes for the disabled guest and each person in the group. At oral argument, plaintiffs' counsel expressed a preference for unlimited access to the FastPass lines "for everyone's administrative burden" and because any number of Re-ad Passes would necessarily be limited.
In response, Disney argues that even if more than the DAS program is necessary, plaintiffs' proposed fix is unreasonable because it is the functional equivalent of Disney's previous system, which Disney avers was discontinued due to fraud and abuse. Prior to starting the DAS program in 2013, Disney offered a Guest Assistance Card (the "GAC"), which allowed disabled guests access to the FastPass line at every ride. Using a GAC, a disabled guest (and his group) could ride all rides whenever and as many times as he wanted, in any order, with very little waiting. As to the alleged abuse, Disney presented evidence that nondisabled guests would hire a "guide" who possessed a GAC, who then joined the guests' group and gave them the GAC benefit of FastPass access at all attractions. One Disney study showed that in 2013, approximately 3% of guests at Disney World were issued GACs, but GAC-holding guests accounted for 30% of riders on one popular ride. According to Disney, this fundamentally altered the park experience because GAC-holding guests rode a popular ride three or four times, while many nondisabled guests experienced a two-hour line or were not able to get on the ride at all.
This is but one example of knotty issues that must be sorted out before a court could decide whether plaintiffs' requested accommodation, if proven necessary, is reasonable, and if so, whether it would fundamentally alter the park experience. We thus conclude that the reasonable and fundamental alteration inquiries must be addressed by the district court in the first instance, and we leave it to the district court how best to approach those issues on remand and whether further record development is needed. Among other things, the district court will need to determine whether material issues of fact, if any, exist as to these two inquiries. Nothing herein expresses an opinion on that question.
We now turn to the district court's ruling that Count 1 of plaintiffs' complaints asserted only a cause of action for failure to make reasonable and necessary modifications under the ADA and did not contain a separate cause of action for intentional or disparate-impact discrimination under the ADA.
The factual allegations in each of the 30 complaints started out with 60-plus similar paragraphs of "Facts Common to All Claims" about Disney's theme parks and its DAS Card. Each complaint then had separate counts which set forth the causes of action. Every plaintiff asserted a single ADA claim as Count 1, which charged that Disney violated "42 U.S.C. §§ 12131,
Further, in every complaint, the ADA claim in Count 1 incorporated by reference all of the "Facts Common to All Claims" and added additional factual allegations about each plaintiff's individual experience with the DAS Card and the alleged failure of the DAS Card to address that particular plaintiff's autism and/or cognitive disabilities. As relief, the ADA claim in each Count 1 requested that the district court enter an injunction prohibiting Disney from further discrimination and requiring Disney "to reasonably modify its policies, practices, and procedures to afford Plaintiff with an opportunity to experience Disney's goods, services, facilities, privileges, advantages, and accommodations."
We agree with the district court that plaintiffs' complaints contained a cause of action for failure to make reasonable and necessary modifications under the ADA but not a cause of action for intentional or disparate-impact discrimination. On appeal, plaintiffs' briefs primarily argue that the district court erred in its alternative ruling by reaching the merits and holding that even if plaintiffs properly had raised intentional or disparate-impact discrimination claims in their complaints, they did not make out a prima facie case. Plaintiffs challenge the district court's merits ruling that (1) plaintiffs' evidence did not show
Even if their complaints state no cause of action for intentional or disparate-impact discrimination, plaintiffs stress they still wish to introduce evidence at the bench trial relating to Disney's discriminatory intent when it enacted the DAS Card, in order to show that Disney never intended the DAS Card to be an adequate accommodation for guests with autism and/or cognitive disabilities. Plaintiffs also argue that their evidence of Disney's intent is relevant to and supports their state law claims alleging California Unruh Act violations and intentional torts. Of course, nothing in this opinion addresses, or prevents plaintiffs on remand from presenting, intent evidence at trial that is admissible under the Federal Rules of Evidence. That issue is premature because evidentiary matters at trial are for the district court to decide in the first instance.
For all of the above reasons, we (1) affirm the district court's entry of summary judgment for Disney as to plaintiffs' claims of intentional and disparate-impact discrimination under the ADA, (2) reverse the district court's ruling as to plaintiffs' standing, (3) vacate the district court's entry of summary judgment for Disney as to the necessary-modification inquiry under § 12182(b)(2)(A)(ii) of the ADA, and remand for further proceedings consistent with this opinion.
As to the nine plaintiffs with California Unruh Act claims, the district court concluded that Unruh Act liability is coextensive with ADA liability. Because summary judgment was granted on the ADA claims, the district court granted summary judgment on the Unruh Act claims. On appeal, plaintiffs argue that the district court erred as to their Unruh Act claims. Because we reverse as to the ADA claims, we reverse as to the Unruh Act claims and remand them for consideration by the district court in the first instance. We do not address the type of relief available under those Unruh Act claims.
