LAWYERS REPRESENTING A proposed national class of disabled drivers navigated a class action lawsuit against the Hertz Corporation rental car company into federal court in San Francisco last week.
They knew the way because they had driven the same route 28 years before.
The suit filed Thursday alleges that under the Americans with Disabilities Act, Hertz was required to make “hand controls” available on all of their rental cars, not simply on a handful of models. Hand controls allow drivers to accelerate and brake with one hand so the other hand can use a “spinner knob” for steering. Hand controls are frequently used by drivers who have disabilities that prevent them from controlling a vehicle with their feet and legs.
The lawsuit was brought by lawyers with Disability Rights Advocates, a national nonprofit advocacy group with offices in California and New York. They knew the route to the courthouse because on Oct. 25, 1996, they filed a national class action against Hertz that, among other things, challenged a lack of available hand controls on rental cars.
In May 2000, after a few years of litigation in federal court in San Francisco, they procured a settlement that required Hertz to install “removable or temporary hand controls, without any extra charge, on all vehicle models for which they can safely be operated and which will not require permanent alterations to the vehicle.”
“[T]here is often no option to reserve a minivan, truck, or sedan with hand controls, meaning that the only vehicle actually available to Plaintiffs and other people with disabilities is some type of SUV.”
Court filing
The settlement went on to say that Hertz wouldn’t require customers to give more than eight hours of advance notice of a need for the controls at major airport locations, and no more than 24 hours at other places.
The settlement included an apparently negotiated press release (it was attached as an exhibit to the settlement agreement) that quoted a DRA spokesperson saying, “As more and more people with disabilities are traveling for work and leisure, the need to ensure full and equal access to rental vehicles has increased dramatically. The agreement … represents an important step in making travel more effective and dignified for men and women with disabilities.”
The release continued, now quoting a Hertz spokesperson, “The settlement reaffirms Hertz’ historic commitment to serving the disability community and its industry leadership position in doing so.”
‘We’re kind of back here again’
But there was a catch in the settlement agreement. Hertz was only committed for two years.
Flash forward to 2024. Meredith Weaver, a DRA senior staff attorney, said “Unfortunately, in the intervening time, Hertz has reverted to discriminatory conduct and we’re kind of back here again.”
A look at Hertz’s website on Thursday found a section captioned “Car Rental Services for People with Disabilities” that said “At most U.S. Locations, cars equipped with hand controls are available at no extra charge. Reservations for cars equipped with hand controls can be automatically confirmed with as little as 8 hours notice at major airport locations, and as little as 24 hours notice at other major locations.*”
The asterisk indicated a footnote and that is where the problem lay.
The footnote says that “While Hertz is able to provide hand controls on certain vehicles within our fleet, due to customer safety concerns and vehicle availability considerations, we cannot provide adaptive driving devices on every model or confirm a particular make or model for a reservation.”
While the footnote is set out in smaller type and in bland and neutral words, the complaint alleges that what has happened is that Hertz has “drastically reduc[ed] the models and types of cars that may be reserved with hand controls, and adopt[ed] a new policy or practice of not placing hand controls in certain categories of vehicle at all.”
The only vehicle models available with hand controls, the complaint alleges, are two Kia sedans, one Kia minivan, a Chevrolet Silverado 1500 pickup truck and several different SUVs.
“This means that Hertz openly excludes people who need hand controls from renting electric vehicles, convertibles, luxury sedans, and a variety of other vehicle categories that are available to the company’s nondisabled customers,” the complaint says.
The complaint goes on to say that even the list of offered options is misleading because “there is often no option to reserve a minivan, truck, or sedan with hand controls, meaning that the only vehicle actually available to Plaintiffs and other people with disabilities is some type of SUV. This is particularly ironic because the height of most SUVs makes them difficult or impossible for people who use wheelchairs to get into without help, meaning that they are not a realistic option for many people who need hand controls.”
Availability isn’t the only issue.
“It is not uncommon for the cheapest car that Hertz will provide hand controls on to cost much more (over $100 more) than the cheapest car nondisabled customers can reserve for the same dates,” the complaint alleges.
Hundreds of thousands potentially affected
The complaint says that DRA filed the lawsuit only after unsuccessfully attempting to convince Hertz to revise its policies and practices to expand availability and eliminate the other barriers to equal accessibility to the goods and services that non-disabled customers receive.
The plaintiffs do not provide an exact estimate of the number of people they would represent if the proposed class action is certified by the court, but note that according to a November 2018 report from the U.S. Census Bureau, 5.5 million Americans (2.3 percent of the population) have mobility issues that require use of a wheelchair. If California has the same percentage, the plaintiffs estimate the in-state number to be 800,000.
The ADA prohibits “discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of places of public accommodation.”
Car rental locations are places of public accommodation and Hertz cannot, the complaint contends, deny people with disabilities “the full and equal enjoyment of its goods and services that Title III requires.”
A request for comment on the lawsuit was not acknowledged by Hertz and the company has not yet filed a response with the court, but defendants often defend such cases by invoking the argument that compliance with the law would constitute an “undue burden” for the company or require a “fundamental alteration” of the goods, services, facilities, privileges, advantages, or accommodations it offers to the public.
Weaver didn’t think that those defenses would be worth much here, since “our position is that it will be neither of those things. Hand controls are easy to secure. And certainly, in the scheme of things for Hertz as a business, they would not pose an undue financial burden.”
Weaver said, “the general public might not … think that it is possible for [people with these disabilities] to drive, but it really is. All it takes is accommodations that exist already and have existed for a very long time, and are relatively easy to install. We think it’s pretty simple.”