Disney’s response to the lawsuit alleging Disney’s Disability Access Service (DAS) discriminates against individuals who have some degree of cognitive impairments essentially asserts that the lawsuit has no merit and should be dismissed. But to be honest, the response is mostly boring, though that isn’t a bad thing, legally.
Civil lawsuits typically start with the filing of a complaint. The party sued has several choices if it chooses to respond. The most popular choices are to ask the court to dismiss the lawsuit or file what is called an “answer” to the lawsuit. Disney has not asked the court to dismiss the lawsuit outright; instead, it chose to file an answer. This is what happens in most lawsuits.
Disney’s answer is unsensational. While complaints alleging discrimination often include sensational allegations, as this one does, few sensational answers are filed. An answer simply needs to respond to the allegations in the complaint and set out any “affirmative defenses” (more on this, shortly). Formally, the answer need only admit, deny or say there isn’t sufficient information to respond to the allegations in the complaint. The answer does not need to “set the record straight.” This isn’t a hard rule. In fact, when I prepare an answer, I often try to include a paragraph which explains my client’s position. But this is contrary to what is drummed into lawyers by law schools (or so I recall), and it’s not surprising that Disney’s lawyers did little more than admit or deny the allegations.
But “little” isn’t nothing and Disney’s answer demonstrates it isn’t rolling over. For example, I mentioned the affirmative defenses. Disney’s answer includes over thirty affirmative defenses, a good number, even for a complaint spanning over 175 pages. Technically, these are allegations the defendant intends to prove which will defeat the claims in the complaint. (One example of an affirmative defense is the argument that the lawsuit was not timely filed.) In practice, however, “affirmative defenses” include a lot of unnecessary allegations because lawyers find security in redundancy.
Not surprisingly, Disney asserts that its “conduct was legally permissible.” Nor is it surprising that Disney argues that the “claims are barred to the extent that Disney was not required under federal or state law to provide unlimited, repeated, immediate access to its rides and attractions as the only available accommodation for purposes of reasonably accommodating Plaintiffs’ alleged disability.” Elsewhere, Disney denied DAS was “in any way deficient” because it does not authorize “repeating the ride over and over again without waiting.”
Of more interest is the assertion that Disney “accommodated Plaintiffs’ alleged disability by providing services via alternative methods other than those demanded by Plaintiffs.” The latter point reflects the doctrine that the ADA requires Disney to make “reasonable modifications” to its normal practices but a modification can be reasonable even if the change isn’t what the plaintiff wants. In essence, Disney is saying DAS is a reasonable modification to Disney’s existing practices while the parents who filed the lawsuit are saying it may be a modification but it isn’t reasonable for their children. But as I have said, it isn’t clear to me what the parents want Disney to do except provide them with “prompt” access to the attractions.
I’m going to diverge from Disney’s answer for a moment. In my first blog post about the lawsuit, I remarked that the “complaint incongruously states that the plaintiffs are not looking for “priority” access but, in the same sentence, says the plaintiffs “have a special need for near-immediate access.” Oddly, the assertion that the parents want “near-immediate access” has now been dropped in a newly refiled complaint. It’s complicated, but essentially, the court dismissed the first complaint because its rules prohibit a lawsuit from being filed electronically when the lawsuit is being filed by parents on behalf of their children. (Under California law, I think, the courts appoint a guardian before a lawsuit can be filed by a minor. So, the parents refiled the complaint with a slew of petitions asking the court to appoint the parents as guardians.) The refiled complaint is largely the same as the original complaint but it omits the “near-immediate access” assertion. It asserts (as did the original complaint) that the parents “have never sought either immediate access or ‘priority’ access.” The refiled complaint again criticizes Disney for saying the DAS card does not provide “immediate” access but the tact it adopts is to say the parents want MagicBands which will provide them with “prompt access to all rides, or to specific rides.”
Disney’s answer makes a few other points, albeit rather subtly. Disney asserts that “reasonable use of Disney’s procedures would have prevented the harm that Plaintiffs allegedly suffered.” This seems to be a response to the numerous allegations in the complaint that “Disney no longer provided individualized attention to persons with cognitive impairments” and that “Disney expressly trained its Guest Relations employees not to acknowledge any individual special needs and not to provide any individualized accommodations. As the DAS card provides on its cover, no matter what the special need, the ‘accommodation’ is the same.” Disney seems to be sensitive to these kind of allegations because a recurring theme in its answer is that Disney “works individually with guests with disabilities to provide assistance that is responsive to their circumstances, and specifically denies the implication that the DAS system changed that fact.” Disney also denied “any implication that cast members do not work with guests individually to assess their request for assistance.”
I was rather interested to see how Disney would respond to the sensational allegation that Disney was influencing the news media to create adverse publicity about “rented invalids” so it could roll out DAS and get rid Guest Assistance Cards (GAC). Disney’s answer, however, didn’t say much more than that the “GAC program resulted in abuse and fraudulent misuse which was widespread and continuing” and deny without comment the allegations about the publicity over abuse of GACs.
Disney’s answer won’t trigger any action by the court (other than to schedule future hearings). An answer essentially serves to focus the issues that are in dispute. A trial date will be set but it is too early to say when this might be.
I have to say that it is a little hard for me to define the exact dispute here. Clearly, the parents do not like DAS, alleging that Disney imposed DAS on them without considering their individual needs. They also, clearly, want GAC back, at least GAC as it was apparently applied to them. Disney, on the other hand, goes to some length to deny DAS changed Disney’s practice of working “individually with guests with disabilities to provide assistance that is responsive to their circumstances” and given the strong statements about GAC abuse, it doesn’t seem as if Disney is going to return to that program willingly.
I can’t help but think that, if the parties could get past the sensationalized allegations and hurt feelings caused when Disney implemented DAS, they might come to an understanding that could resolve the parent’s concerns. Disney says it has no obligation to provide “unlimited, repeated, immediate access to its rides and attractions” (and I doubt a court would order Disney to do so) but it isn’t clear this is what the parents wants. After all, there is no dispute that Disney has a long history of “admirably accommodating” (as the parents allege) guests with cognitive impairments.