Public Accommodation

Airline Responsibility to Accommodate Passengers with Disabilities Beyond the Aisle

July 20, 2021 | Smith Eibeler LLC

As domestic travel numbers rise and airports are once again filled with travelers, airlines continue to struggle to comply with accommodations for travelers with disabilities. Most recently, a viral social media video by Bri Scalesse, who is wheelchair-bound, shows her horror and distraught emotion when informed that Delta Airlines severely damaged her wheelchair during the course of her flight from Minneapolis to Newark, NJ. Unfortunately, this isn’t an uncommon occurrence. In 2018, 36,930 disability-related complaints were made to airlines. Airlines were reported to have lost or broken 10,548 wheelchairs or scooters in 2019, more than 1 out of every 100 they handle.

Under the Americans with Disabilities Act of 1990 (“ADA”), discrimination against people with disabilities in “public accommodations” is forbidden, including but not limited to an express list of the private entities that are considered public accommodations. The list includes all terminals, depots, or other stations used specifically for public transportation, like bus, rail, and ferry stations. Notably, the list specifically excludes aircraft stations. Individuals with disabilities are often subject to discrimination when flying, met with unnecessary barriers limiting their ability to travel comfortably. While trains, buses, and other forms of transportation are forced to comply with the Americans with Disabilities Act and create accommodations, planes have been specifically exempt from the ADA. This is contrary to New Jersey’s statutory discriminatory act, the Law Against Discrimination. The recent April 2021 judicial decision from Wright-Phillips v. United Airlines made clear that public places of accommodation for disability discrimination protections under the Law Against Discrimination to include airport terminals, gates, and planes. The court ruled that “the United flight represented a place of public accommodation… [and] because the statute extends to “terminals thereof,” the United gate at Newark Airport was a place of public accommodation, too. Liability under the NJLAD, however, applies to people, not places.”

Under a federal scope, airplanes still fall under the Air Carrier Access Act (“ACAA”), which was passed four years prior to the ADA. The ACAA applies to all flights to, from, or within the United States. The ACAA prohibits airlines from discriminating against an otherwise qualified individual because the individual has a physical or mental impairment that substantially limits one or more major life activities. Physical impairments are defined as any condition relating to neurological, cardiovascular, or special sense organs, which affect major life activities consisting of manual tasks, physical health functions like breathing, speaking, or walking, and physical impairments.

Manchester HS Basketball Star Exercises First Amendment Rights In Response to BOE’s Attempt to Silence Her

February 11, 2021 | Smith Eibeler LLC

In Manchester, a township in Ocean County, New Jersey where 92% of its approximately 43,000 residents are white, a star high school basketball player’s attempt to speak out against issues of race discrimination and inequity was shut down by the Board of Education. At the most recent Board meeting, star basketball player Destiny Adams, presented a thoughtful speech to the Board to persuade them that the girls basketball team should be permitted to wear Black Lives Matter sweatshirts during the pregame warmup to their first game of the season, which took place Tuesday, January 26. Destiny was supported at the meeting by her mother, an attorney, and her father, the principal of Manchester High School, both of whom also spoke. Without discussing her proposal among the members of the Board or taking an official vote on it, the Board denied her request, stating that warmup gear may only display the school’s name.

In speaking to news media, Destiny said of the Board’s decision, “They told me no, but that can’t really silence me, so we needed to find a way around it”. In fact, Destiny and most of her teammates wore Black Lives Matter sweatshirts prior to their season opener last night against Jackson Liberty High School despite the Board’s ruling. Destiny and another teammate also wore socks that said Black Lives Matter, while another player wrote Black Lives Matter on her sneakers.

According to the New Jersey State Interscholastic Athletic Association, what players wear during pregame warmups is determined at the school’s discretion. From a legal standpoint, the question is how to balance public school students’ First Amendment right to freedom of expression with a school’s right to ensure the school environment is not disrupted and the rights of one student do not infringe on the rights of another.

Court Affirms Verdict of Transgender Person Harassed by Jersey City Police Department

May 14, 2020 | Smith Eibeler LLC

Most people are aware that the state and federal law can provide legal protection against sexual harassment and other discriminatory conduct to employees in the workplace. No job-related action, from recruitment and interviewing to compensation or discharge can be intentionally influenced or biased by an employee’s protected class, such as sex, gender, race, disability and others protected classes. But what if the individual is discriminated or harassed outside the employment? Will the law provide any protection to an individual who is subjected to sexual harassment or other forms of discrimination in places outside the employment, such as government building, campaign organizations or within a police department? The Appellate Division has issued a decision providing further guidance in situations in which a person is subjected to non-employment related discrimination in a case entitled Holmes v. Jersey City Police Department.

The case involves a transgender man, who was arrested for shoplifting and brought to the Jersey City Police Department for processing. The individual, Mr. Holmes, presented his valid driver’s license indicating his gender as male at the time of the arrest. After fingerprinting revealed Holmes’ former name and gender, the officers used offensive and demeaning language to verbally harass Mr. Holmes for the duration of his time at the police station. The officers also moved Mr. Holmes from a male holding cell to a female holding cell despite Mr. Holmes’ identification as male.

The New Jersey Law Against Discrimination prohibits gender-based discrimination and sexual harassment in a place of public accommodation. A place of public accommodation is any place that is open to the public, including schools, businesses, restaurants, government buildings and healthcare facilities. Public place accommodation violations include the use of offensive language, the display of demeaning images such as pornography or inappropriate drawings, as well as unwanted touching and other forms of physical harassment. This harassment can be unlawful regardless of whether it’s performed by an employee of the public place or another patron. Places of public accommodation have legal obligations to ensure that they have policies and procedures in place to prevent and stops the harassment once it knows about it or should have known about it, and it may not retaliate against the individual who was harassed or complained about harassment.

New York Becomes Latest State to Exempt Breastfeeding Moms from Jury Duty: Will New Jersey Follow?

November 13, 2019 | Smith Eibeler LLC

Another state has enacted a law to accommodate breastfeeding mothers called to jury duty. Last month, Governor Andrew Cuomo signed new legislation providing jury duty exemptions for breastfeeding mothers into New York law. New York joins seventeen other states and Puerto Rico who have enacted similar legislation to provide breastfeeding mothers necessary accommodations if called to jury duty. While New Jersey has amended the state’s anti-discrimination law in recent years to include pregnancy as a protected class and to require employers to provide breastfeeding accommodations in the workplace, there is currently is no specific law in place that exempts breastfeeding mother from jury duty. Whether New Jersey will soon follow New York’s lead remains to be seen.

Under the recent New York law, breastfeeding mothers may file an exemption from serving jury duty for two years, requiring only a doctor’s note affirming that they are currently breastfeeding at the time the exemption is filed. During the signing, Governor Cuomo noted, “While jury service is a critically important civic duty, we also know new moms oftentimes juggle countless responsibilities and navigate enormous adjustments in the early stages of their child’s life,” and that “This commonsense measure takes that reality into account by providing new moms the flexibility and option to postpone jury service while they care for a newborn.”

New York has followed the national trend in enacting similar laws to deal with the issue facing many new mothers in attempting to fulfill their civic duty while also needing to care for their newborn. In March 2017, a breastfeeding woman in Minnesota took to Facebook to share her horrific experience when having to serve on a jury while breastfeeding. As she stated in her Facebook post, Amanda Chandler was granted only two breaks to breastfeed by the clerk and judge and needed to do so in a bathroom. Ms. Chandler stated, “[s]eems pretty ironic that the very place which is supposed to uphold and enforce the laws would not follow or adhere to them.”