Disney's argument here in Galvan was that 30% of the population is affected by anxiety. If park population on any given day represents general population, they would have to provide 30% of guests
DAS (on top of all other conditions), and that would fundamentally alter their operations. Plaintiff's lawyer
did not dispute this, and therefore his case failed on said grounds.
I think what people need to take from this here is that this ruling is essentially saying that if too many people have a condition, Disney doesn't have to accommodate it
with DAS any longer. They only need to accommodate in a
reasonable way that
doesn't fundamentally alter their park operations. That is an exception written into the ADA. They can then extrapolate on that, I imagine, to include anyone who actually needs an accommodation by saying "x amount of people have conditions that would currently fall under our DAS eligibility. That would equal x amount of DAS users in our parks per day, which would fundamentally alter our operations". I have a feeling this is the crux of why they literally named Autism in the release -- it's the disability one of the major cases was based upon.
I do think this assertion can (and will) be challenged. A few things to note here:
- Plaintiff's lawyer in Galvan never challenged the original assertion that it was fundamentally altering, nor offered their own experts.
-
Plaintiff's lawyer in A.L. V Disney never challenged the industrial engineering team's "study" on DAS impact, nor offered their own experts. This is akin to having a pharmaceutical company sponsor its own studies on its medications. Is that a study you trust is factual and unbiased? Of course not. And this "study" fails here for the same reasons.
What the industrial engineers came up with, as others have pointed out, was akin to people who do NOT NEED DAS using the DAS system. I would say this is "sampling bias" (drawing conclusions from a set of data that isn’t representative of the population you’re trying to understand.) Of course that would have been the conclusion - the way it's designed and can be used would allow for this, no study needed. The only study that would be actually representative of users with disabilities is one where the users...have disabilities. Because there's clear abuse of the system, even their data now with guest use is bias/inaccurate. They also did the study over only 3 days. if this was a scientific study it wouldn't pass peer review. This can absolutely be challenged with a more scientific and unbiased study with the proper pool of participants.
- They argued that giving x amount of people DAS would fundamentally alter their operations and have an "adverse effect on park operations". Note, this ruling was made on 11.27.19. They then introduced Genie+ on 10.19.21. As many have pointed out, DAS and Genie+ do not offer the exact same experience, but they don't have to for this point. As some like to keep pointing out "just use Genie+!" I think that is the point here. It certainly doesn't work for many, but it does work for some. And Disney is trying to push abusers to use it (which is fine, of course, as they should), but also those who would/should be accommodated under ADA via "reasonable and necessary" accommodations. T
hey argued it would fundamentally and negatively alter operations to accommodate x amount of people with DAS,
then they fairly quickly fundamentally altered their operations in a like or similar way, "adversely affecting park operations" -- yet charged for it. We of course don't have the numbers on how many Genie+ & LL's are sold in a day, but that can be obtained during discovery. We ARE privy to wait time data and can see increases in standby (this could be attributed to "revenge travel", but it'd have to be compared against park attendance each day.) They are now cutting back on DAS use and will likely say that is what is affecting wait times & operations, but I think, with Genie+, that will be a hard sell this time around. Further, in the ruling in A.L. V Disney, the judge states: "More importantly,
the DAS card is set up so A.L. would never have to physically wait in line more than 20 minutes." This was clearly an important aspect of DAS in their decision that it's a reasonable and proper accommodation, which is no longer the case. Long story short --
I feel there's a case to be made that Disney is attempting to charge for "reasonable and necessary" accommodations. At the very least, the introduction of Genie+ has made DAS a program that is no longer meeting the threshold of providing "an accommodation that provides autistic individuals with a "like experience" to the one nondisabled guests experience" (or other disabled individuals, for that matter). Hopefully a good lawyer who knows what they're doing and maybe a financially stable plaintiff will take it up, because litigation against Disney is neither cheap nor easy.
Can they win in court? Sure. But would they want to
possibly exclude so many people from the parks? I doubt it. Their own argument is that there are a ton of people with disabilities. That would hurt their bottom line. They're trying to thread the needle...not sure how well they're pulling that off.