CARRIERS’ Responsibilities to the Disabled—The Ninth Circuit Establishes Criteria for Federal Preemption Under the ACAA to Give Discrimination Victim Her Day in Court

Kelsey M. Taylor

I. Introduction In Gilstrap v. United Air Lines, Inc., the Ninth Circuit saved a discrimination victim’s suit from dismissal when it held that state-law tort claims against an air carrier were not preempted by federal law. The panel did agree with the lower court that an airline terminal is not a “place of public accommodation” governed by the Americans with Disabilities Act (ADA). Nevertheless, the court concluded that the plaintiff could sustain her action against the airline under state law for injuries she allegedly received due to the carrier’s violations of the Airline Carrier Access Act (ACAA)—despite the fact that the ACAA itself does not provide for a private right of action. II. Background: ADA v. ACAA In 1990, Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Title III of the ADA specifically prohibits discrimination in “public accommodations,” i.e., publicly accessible yet privately owned businesses. Examples of these “public accommodations” include “terminal[s], depot[s], or other station[s] used for specified public transportation.” Notably, however, transportation by aircraft is expressly excluded from the definition of “public transportation,” and therefore, the ADA does not apply to airline terminals. The likely reason for this exclusion is that, four years earlier, Congress prohibited discriminatory conduct by air carriers against individuals with disabilities in an amendment to the Federal Aviation Act (FAA): the ACAA of 1986. Pursuant to authorizations granted under the ACAA, the Department of Transportation (DOT) set forth express