Disney Asks Court to Dismiss Autism/DAS Lawsuit

| November 2, 2015 | 25 Replies

About a year and a half ago, I wrote a blog post about a then-newly filed multi-plaintiff lawsuit alleging Walt Disney World discriminated against guests who have emotional or cognitive disabilities where parents of autistic children sued Disney under the Americans with Disabilities Act (“ADA”) because Disney changed from the “Guest Assistance Card” (“GAC”) to the “Disability Access System” (“DAS”).

I’ve written about the lawsuit several other times.  Since my last posts on the case, the federal court in Los Angeles transferred the entire lawsuit to Orlando.  The federal judge in Orlando then required each family to file a separate lawsuit and later dismissed their state law claims. (She allowed these to be refiled in other courts but we can forget about this for now).  After discovery and several related disputes, Walt Disney World has asked the court to rule that one set of plaintiffs’ (referred to below by the initials “A.L.” as publicly, children may anonymously participate in litigation) evidence is insufficient as a matter of law.

Fundamentally, of course, the lawsuit is about having to wait in line for an attraction.  The plaintiffs claim DAS doesn’t help them and want the court to order Disney to provide them with the access they had when Disney accommodated them using GAC. Disney disputes this – saying DAS works for many guests including those with autism – arguing that the plaintiffs are not seeking a policy modification caused by their disability but one “born of preference or choice, not of medical necessity.”

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Disney’s brief makes several points.  I won’t go into each.  Disney’s brief summarizes its arguments:

plaintiffs sued under a statute whose purpose is to ensure access to public accommodations for persons with disabilities — but plaintiffs were never excluded from or denied access to anything during their visit to the Walt Disney World Resort (“WDW”). In fact, under Disney’s Disability Access Service (“DAS”), which allows guests with autism and other cognitive disabilities to hold a place in line for rides without standing in the actual line — thereby giving them time to go to other attractions while they wait virtually — plaintiff A.L. and his family had the opportunity to experience all the same or even more rides and attractions than the majority of other guests and with much less wait time.

Even though their claim is couched in the language of equal access under the Americans with Disabilities Act (“ADA”), it is clear that what plaintiffs really want is for Disney to accommodate A.L’s specific, immediate, and unpredictable personal preference for instant and unrestricted access to the rides of his choice — regardless of how popular the rides are or how long other guests (including others with disabilities) have to wait in line. The ADA requires no such thing, either to favor a particular person or to disadvantage other patrons.

There is no evidence that A.L. was prevented· from accessing the rides at WDW or that the relief sought is necessary to afford access to A.L., the required elements of a claim under the reasonable modification provision of Title III of the ADA. To the contrary, with his DAS card and other ride passes given to A.L. on the day of his visit, he could have experienced his preferred rides at the Magic Kingdom, in whatever order he chose and with little or no waiting. Instead, his mother, plaintiffD.L., rejected the DAS system out of hand and took her son on only one ride [the Jungle Cruise] before “redirecting” him to a show, a parade, and other attractions. Turning the facts on their head, this lawsuit alleges that plaintiffs were discriminatorily denied access to the very rides they chose not to go on.

What plaintiffs are actually seeking to achieve is not “access” — which they already had — but rather fulfillment of their subjective desire to follow a particularized routine of experiencing all their favorite rides in a precise order of their choosing, without having to wait anywhere at any time. Their very subjective and personal routine, which may reflect nothing more than what they did in the past, is not based on a medical need or inherent attribute of autism, as plaintiffs assert. Courts have consistently ruled that plaintiffs are not entitled to the precise and self-defined accommodation of their choice. Disney is not obligated to operate its parks so as to guarantee that each of A.L’s preferences is fulfilled and at the expense of equal treatment of everyone else.

Even if plaintiffs could make a persuasive showing that Disney has to throw out DAS to afford access to A.L., plaintiffs would still have to show their request is “reasonable.” They demand that Disney adopt a version of the prior Guest Assistance Card (“GAC”) system — a system never required under the ADA — which fraud and abuse was making impossible to sustain. Plaintiffs cannot prove that reverting to the disruptive and unworkable GAC is a “reasonable” accommodation.

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Disney’s evidence suggests that Disney did away with GAC because it was being abused and it was not working as designed.  One of Disney’s witnesses (Director of Park Operations) explained that GAC was designed to work in six “tiers”, but “it had essentially become everyone at the top level because of increased awareness, because of social media” and because Disney cannot ask a guest to prove that the guest has a disability which necessitated top tier access.  The same witness explained Disney knew of “exaggeration and fabrication of need and we even saw some blatant fraud,” the latter coming “from guests just fabricating their needs to get the pass for themselves if you were willing to just go and ask for a pass for yourself.”

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One other witness explained that a cast member working at City Hall came to him “very upset” because the cast member watched “a teenage boy walk out . . . holding up the GAC card to his friends at the bottom of the stairs, they high-fives them [sic] and then just kind of skipped off as if they just succeeded in getting a GAC card even though they probably didn’t deserve it.”

Disney was also seeing unexpired GACs being sold on eBay and Craigslist and counterfeit GAC cards being provided to guests who bought theme park tickets from less than entirely reputable ticket sellers on highway 192. Disney was also aware of publicity about annual pass holders acting as paid tour guides by using their GAC cards to provide immediate access to attractions.  Disney provided anecdotal evidence to support the publicity, recounting that on December 28, 2012, a guest in the FastPass queue at Expedition Everest said he needed to catch up with his paid “tour guide” only to learn that the “tour guide” was using his GAC card to give “paid tours of Disney with access to FastPass.”  It was the “second guest in a month” Disney caught using “a GAC card as a paid tour guide.”

Ultimately, Disney’s goal in developing DAS “was equal access”, though as Disney describes it, DAS now offers greater access than FastPass+ in two respects.  First, DAS permits a holder to return to the attraction any time after the initial return time while FastPass+ return end times are now being enforced.  Second, DAS does not limit to three attractions that may be accessed (though even here, FastPass+ users may be awarded additional FastPasses if all have been used).  Finally, Disney believes DAS is less subject to being as abused because it has “put some limits in place as it pertains to transferability” because DAS passes include a photo id requirement and the pass cannot be sold on the “street corner” (especially now that it is linked to a MagicBand or theme park ticket).

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Disney argues the lawsuit should be dismissed because “[i]t is not reasonable for any guest to expect immediate access to all of their favorite rides at one of the world’s most popular theme parks, including rides that most guests may have to wait more than an hour to experience.”  As expected, Disney argues that the change the plaintiffs want – a return to GAC or at least to an “instant and unrestricted access” to attractions – amounts to giving the plaintiff more than non-disabled guests receive.  As Disney says, “nearly every family visiting WDW would probably prefer to go on any ride they want, as soon as they want, for as many times as they want, and in any order they want.”  Even so, DAS “provides more than equal access to such guests overall “because they can experience the most popular attractions faster and, if they desire, in greater number than what [redacted]* of guests [i.e., non-DAS guests] at Walt Disney World can do without DAS.”

Disney also explains that a return to GAC – with its “large-scale fraud and abuse” – would “adversely impact the ride opportunities for the vast majority of guests and thereby fundamentally alter the services provided” by causing longer attraction wait times for other guests.  The “excessive use of GAC fundamentally altered the company’s ability to deliver attraction experiences to [redacted]* guests, as GAC cardholders were “consuming so much of [Disney’s] preferred attraction capacity.”

The plaintiffs have also asked the court to rule in their favor as a matter or law.  So far as I have found, the plaintiffs have not publicly filed a brief in support of their motion.  Their motion argues Disney violated the ADA by not individually assessing “A.L’s” needs, that DAS is a “one-size fits all” program that violates the ADA ( (Disney denies these assertions) and asks the court to order Disney to “permit him access to Disney’s rides and attractions through Disney’s Fastpass lines.”  Without seeing their brief, it is hard for me to say exactly what the plaintiffs want. Their demand to be provided with access through “FastPass lines” is curious since that is  exactly what Disney says it is doing.

Further, as the FAQ in the DISabilities forum of discards.com shows, DAS has been linked to guest MagicBands since April 30, 2015.  Thus, cast members may “authorize DAS for guests and provide attraction return times by loading the information into their electronic tickets” so that “[o]nce the return time arrives and the DAS return time is redeemed, a guest may then obtain another return time for the same attraction or for any other attraction.”  Because DAS users may also take full advantage of FastPass+ before arriving, Disney argues that “[c]ombined with the FastPass system, this gives DAS guests the opportunity to experience a very high number of attractions in a single day — far more than most guests could without DAS.”

While I believe Disney’s arguments have significant merit, it is too early to say that the court will definitely rule in its favor.  It would be unfair to make a decision based solely on reading Disney’s brief and supporting evidence especially given that important aspects of Disney’s evidence (including, notably, how well DAS works and the likely impact of abuses should it be required to return to GAC) are not public.  The plaintiffs have a right to respond to Disney’s arguments and, while their position seems to be clear enough, they will have the right to try to persuade the court that (1) DAS does not work for them and (2) it would not be unreasonable to force Disney to make changes to DAS for them (and all other guests who have similar disabilities).  Even if the court rejects Disney’s motion, however, it should have the benefit of narrowing the issues of trial and in forcing the plaintiffs to say exactly what it is they want Disney to do for them.  With the trial set to begin March 1, 2016, a ruling is likely to be issued sometime early next year.

*Disney’s brief (and supporting documentation) keeps specific attraction wait times (including historic average wait times) and other information confidential.  It also keeps confidential many facts about the development and implementation of DAS (including, as the “redacted” passages indicate, precise information about the extent to which the abuse of GAC might have been causing longer wait times for other guests). In fact, Disney lodged its brief and filings with the court over two weeks ago but asked the court to keep all of its filings out of the public view.  (The plaintiffs did the same thing).  The court rejected these requests, requiring Disney (and the plaintiffs) to file public versions of the briefs and supporting documents but permitted them to redact specific confidential information.



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  • Chris

    Actually, there are ways that Disney could improve the existing system that would make it easier on those with cognitive disabilities, as well as those with mobility disabilities that also have additional disabilities that need a DAS while at the same time ensuring appropriate wait times. I think the key here is the defendants need to show the case that the current system causes them to have longer wait times than those that don’t need the DAS and as a result is not equal access. Additionally, they can prove that those who don’t need a DAS don’t have to go up to the attraction to get a wait time, then leave and come back, something that can cause an issue for those with cognitive disabilities.

    One option would be to put the wait times after riding the attractions, so you go up to Attraction A and yes, you would get right on, but if it had say a 60 minute wait, you would have to wait 60 minutes, plus the length of the attraction from the time you entered the queue until you could use the DAS again.

    Now where Disney can really get into trouble (at least in California) is the linking of the DAS to the ticket. In California there are privacy laws that this definitely violates, as it can be used to track the movements of the ticket holder and in many cases link it to them and those in their party.

    The reason Disney can get around this for FP is because there is the alternative to use the Stand By queue, which is an alternative that doesn’t work for those that need a DAS.

    And one more place where Disney can see trouble is how many of the CMs are stating that the DAS is only for those with cognitive disabilities, which is not at all what the policy is supposed to be and flies in the face of the ADA.

    • rolyatmjbd

      In most cases, people using the DAS aren’t waiting longer, so I don’t see that being a valid complaint. Also, the person with the disability doesn’t have to be present to get a return time, so that’s out too.
      As for the longer wait for wheelchair accessible rides, yes, those may often be longer, but there isn’t really any way to get around that and maintain safety on the rides.

    • American GunNut

      The Plaintiffs simply don’t want any wait. It is pure greed, hiding behind a disability that a large percentage is faked.

  • nurse jackie

    What people need to understand about the child we take to WDW who has ASD is that it’s not only about the time spent waiting in a queue it’s about being enclosed in the queue with lots of people around them that can be distressing. We do not abuse the system, we use it to make the trip more comfortable for him, and to those who say ‘why take him in the first place?’, well he has the right to experience Disney just like any other kid, but he just needs a little help to do so. If you are in the dark about ASD then google it and educate yourself to how they see the world and how difficult life can be for them, then maybe people will be a little more tolerant to them and their families.

    • rolyatmjbd

      But you’re not waiting in the queue with DAS, so I guess I don’t see the problem.

      • nurse jackie

        There are only a handful of rides where you don’t have to queue with the DAS. Nearly all the rides make you join the Fastpass queue instead of the standby line, so yes we still have to queue, but just not for as long. Luckily for us WDW treats our stroller as a wheelchair so it can be taken to the carriage/boat/etc of the rides to give him some security and distance between people, although even this is not always possible.

        • rolyatmjbd

          Ah, got it. I don’t really see any way around being in a line for at least a few minutes. Allowing people to come back through the exits will result in the DAS turning into the GAC.

        • Debbie Kessel

          people don’t view autism as a disability…. it’s sad he can get more help being in a chair that makes him “look” disabled.

          • Ronald Raven

            Imagine the soldiers with PTSD, big burly men asking for accommodations bc they can’t handle the anxiety of lines of people of the noises.

    • American GunNut

      You. Are. Not. Waiting. In. Line. Like. Everyone. Else! The people behind this repulsive lawsuit do not want to have to be responsible for entertaining their own child in between rides. It’s not enough that their children get to ride as many rides as every other kid, and do not have to stand in line to do so. No, they don’t think their child should have to wait for anything. Sickening. Equal access (more than equal) is afforded by Disney. What people like you are seeking is favoritism.

      • Shewanda Pugh

        Now you are reading minds. Here’s the thing. My child has a host of disabilities. In the last few years, I developed a number of disabilities. I have severe nerve damage and an inability to sweat. My child has sensory sensitivities and many of the other symptoms of autism. Even in a wheelchair, I am unable to sit up for hours at a time. Even with a pass, I’m unable to experience as much of the park as you…and I must spend more time in the city (book more day) just to have a comparable experience to you. My first day with the new pass had me spending half a day there and experiencing three attractions. You see, we get a return time that is identical to the current wait time. However, when the wait time is long (as is standard), I wind up wandering from place to place and still must wait in an extended line because there is little else to do but wait in long lines for attractions.
        Listen, those of us with disabilities are sorry that others abused the system. People abuse all systems though and in every case, whether it’s handicap parking, Social Security disability, etc it remains the duty of the benefactor to ensure their system isn’t being abused. Would you expect handicap parking to be discontinued? Or don’t you think fines are an acceptable alternative? Personally, I think Disney overreacted and instead of cleaning up their program decided it was cheaper to discontinue it.
        Also, I can’t understand where your anger is coming from. When I wasn’t disabled and had to wait in the standard line I never looked at the disabled people with fury. I’d take a long wait time any day over a healthy kid or a sturdy back and legs.
        Weird.

  • Mandy

    I have a physical disability coupled with anxiety. I’ve been sick almost my entire life. The old GAP was fantastic…for me and my children. But, if I look at it objectively,…Even I can admit that I began to depend on it and expect it. When it was changed, it made the park very difficult for me to enjoy. But, it was always my choice to go: a privilege, not a right. Disney was being scammed by too many people.
    I feel it’s critical to ask these plaintiffs if they demand special accommodations in grocery stores, restaurants, doctors offices, ER waiting rooms, the DMV, county fairs and the like? I suspect they don’t. I read these autism message boards and empathize with the pArents, truly. But, so many of the stories begin with, “we flew in from…” I often wonder if these same parents demanded a front of the line pass at the airport or the hotel or the rental car place? Did they scream or throw a fit because the plane was full of people in a confined space or took four hours? Even a car ride requires patience and kids learn delayed gratification – I.e., “if I sit in my seat, the car can go to a place I want to be at.” So, if you can keep your child calm, occupied, and content in the car, plane, airport, public toilet, store, movie theater,…why can’t you apply the same techniques to Disneyland?

    • Debbie Kessel

      I am not going to argue the way Disney plans to do things…..but many people do not understand autism….clearly. I would imagine many have never been in a car with an autistic person that is in complete meltdown because we turned in a direction they didn’t want to go. On a plane with an autistic person who is screaming and you don’t know why. Horrified and cant speak and tell us whats wrong. Are you scared, do your ears hurt, are you going to be sick? Their only recourse is to scream. It’s how they ask for help, now we need to figure out what it is they need help with. Most don’t go to a movie theater unless it is a special showing (accommodations for Autism) for people with autism.The sound is turned down and the lights dimmed. My grandson saw a special Autism showing of the BLUE MEN They made accommodations Go in a public bathroom with an autistic child who is petrified of the the toilet flushing. It literally painfully hurts their ears because being autistic can heighten sound immensely. So many places do make accommodations for people with autism, being 1 in 68 being autistic. It’s time to accommodate and not feel slighted. These people are not going anywhere and they can not be cured. Yes, some are higher functioning and can cope better. But for those like my grandson who has been obsessed with CARS since he was 2. There is no comprehension of wait time for him. He cant understand that concept. This is his neurological disability….he doesn’t have a wheelchair, walker, or crutches. His disability is not visible, except for when this neurological disorder takes over and he’s loses control of himself. Often people think they see a spoiled brat not getting his way. But if people took the time to look closely and not judge…they would see a very scared little boy who doesn’t understand himself what is happening. There is fear in his eyes. It is out of his control. It is his disability, his inability to cope or speak because of a neurological disorder. Do I think we as people need to make accommodations….yes.
      It’s called compassion.

      • American GunNut

        Debbie, Disney has many visual attractions. And some people who visit Disney are blind. Don’t you think Disney should be forced to come up with a cure for blindness so that blind people have the same access as people who can see?!? Please join me in my lawsuit! Let’s force Disney to come up with a cure for blindness! People just don’t understand how unfair it is that THEIR kids get to go to Disney and see things, and Disney refuses to cure blindness so that blind kids can have access to the same thing!

        Oh, and deaf people, too, we’re going to start a lawsuit for that, too! Oh, and agoraphobics, why should they be forced to go into a crowded park??? Disney should have to empty the park out whenever an agoraphobic wants to go on rides, and keep the park empty for as long as the agoraphobic wants to ride.

        STOP INFLICTING THE PROBLEMS OF YOUR CHILD ONTO THE REST OF SOIECTY.

        • Shewanda Pugh

          You sound like a miserable person. I couldn’t even finish reading your post, it was so aggressive and belittling.

      • vee

        Very true. Most people are ignorant of the extreme conditions of autism. What you state is what I see daily as a teacher of students with ASD. I thank god everyday that my child is without a disability and I pray that the load of these families are lightened, because in truth, they ask for so little–just to be able to do some things typical families do. AS one of my 16 yr old student’s mom once told me, “I just want to have a conversation with my son someday.”

  • Samantha

    Disney is absolutely in the right. Too many people abuse the system and I’m sorry to say kids with disabilities already don’t have to wait that long with the program Disney still has in place for disabled people, and everyone else still has to wait in line for hours on end for those same rides. Disney is being as fair as they can. Sorry that you can’t run to the front of the line for every single ride and attraction and get away with it, it’s not Disneys fault at all. I mean God you couldn’t wait more than 15 minutes just get over it or don’t take your child to Disney it’s as simple as that. Disney accommodates enough, you really just need to blame the ones abusing the system and now live with the new rules you have to follow. This lawsuit is completely ridiculous and I hope it gets thrown out.

  • Ronald Raven

    There needs to be a step system for DAS. There are people with legitimate disabilities that can’t wait in line longer than a few minutes. DAS still requires 20-30 minute waits.

    I’m not sure why everyone gives a hoot about th disability system being abused. It’s a private amusement park not government benefits program. Does it really rustle you that much that 30% of the Old system were fakers? Get a life.

    Finally, the ADA is broken. There is legitimate issues being caused by wording in the law that is inviting misuse. From service dogs to accessibility requests.

    • American GunNut

      “I’m not sure why everyone gives a hoot about th disability system being abused. It’s a private amusement park not government benefits program.”

      So why the heck do these parents think that they’re children is “owed” access to any ride, at any time, at an instant?

    • vee

      Why didn’t Disney require photo id on the original pass? Why doesn’t Disney do what the federal parks do for their disability pass and require you show a physician’s letter or Social Security determination letter? It seems to me that Disney dropped the ball on this. There is no reason anyone should be getting this pass that is not disabled. Disney messed up and can do better.

  • LindaReynBiodieselVP

    Maybe WDW is not a place for the child. As some say, ADA is for ACCESS, not EXCESS. Allowing quick access cheats other waiting kids.

    • vee

      I am pretty sure WDW is a place for all children. Shame on you

  • American GunNut

    These parents of autistic children infuriate any logical person. They do not want equal access. They want Disney to be responsible for entertaining their child every minute the kid is in the park. They want their kid (and themselves, and all their family members) to be able to be on a ride every second of their visit. Hey, scumbags who filed this lawsuit: entertain your own damn kid for a few minutes of the day. Tens of thousands of other parents entertain their kids standing in an actual line for 90 minutes. You don’t have to stand in the line, and can find plenty to do. Lazy, greedy, scumbags.

    • vee

      Autism is not logical.

  • American GunNut

    Reading these comments is infuriating. “Waaaah, my kid has autism, waaaaahhhh, he should be able to do anything he wants, waaaaaahhhhh! 1 out of 68 kids waaaahhhhhh! Waaahhhhhh!” Well, what if my child is AGORAPHOBIC? Does that mean Disney should empty the park of all visitors if my child wants to “experience the same things as all other kids?” Just kick everyone out so that **MY** special little flower gets to experience the rides, just like everyone else gets to? OF COURSE NOT.

    Disney’s new system is MORE than fair enough. I wish these people would stop whining, and just stay home. They can’t be bothered to entertain their own children, or they think they are OWED something from everyone else. Listen up, greedy, inconsiderate people: EVERYONE has problems. Stop expecting everyone else to deal with YOURS.