Courting Liability Leviathans: On Discrimination and Civil Rights

One cannot technically see through the telephone. Yet every once in awhile I get a call from an attorney whose zeal suggests his eyeballs are about to burst with excitement, or perhaps from greed. So it was when I was contacted awhile ago by an attorney who told me he had the next Rosa Parks case, and began blathering about a hundred million dollar settlement.

When I managed to calm him down, I discovered an intriguing situation where there were actually no physical damages. Yet the situation described bordered on a serious violation of the 1965 Civil Rights Act, and intrigued me enough to offer my services – which were engaged until this counsel’s hysteria was apparently overruled by cooler heads in his firm. Yet the defendant, an intercity motorcoach carrier, came perilously close to not only a major economic disaster, but a far larger public relations fiasco.

Stopping to discharge two passengers at a designated discharge point roughly a 10-minute drive from a regional terminal, at about 3:00 AM, while the driver was fetching their luggage from the bins, an elderly African American woman exited the stepwell, and no more than two paces from the bottom step, lit up a cigarette – hoping to grab a few drags before re-boarding. To her astonishment, after the driver handed the two alightees their luggage, he strode back to the stepwell, and the elderly woman immediately put out and crushed her cigarette and turned around to board. “Oh no you don’t,” shouted the driver. “You got off, so now you are gonna stay off.”

Unfortunately for the driver and luckily for the victim, three middle-aged White women and one’s daughter (one of the alighting passengers) whom they had just met to pick up, were incensed, picked up the nearly-stranded woman (nothing was open at the barely-illuminated, freezing drop-off point), and hustled her to the downtown bus terminal, ahead of the bus. By the time the poor driver pulled in, the three Caucasian women had found and cornered the station manager, and verbally tore him another you-know-what.

Cool Heads and Hot Seats

While I cautioned my counsel that while the court was likely to hold the driver and his employer liability for a glaring civil rights violation, it also seemed to me a case where the actual monetary damages might be severely limited – especially after the terminal manager apologized profusely to the near-strandee, and the driver was severely reprimanded. So cooler heads evidently prevailed at my counsel’s firm, and they eventually dropped the case. (I have no idea what discipline might have been meted out to the overzealous attorney.) At the same time, the driver’s conduct was patently excusable, totally unjustified, and reeked of old-fashioned racism. So the defendant came not only perilously close to facing a costly litigation ice bath, but perhaps weeks on the hot seat of the nations’ thousands’ of press and media outlets.

Even 45 years after the passage of what was historic legislation, we have become accustomed to multiple and regular civil rights violations, by the thousands, involving disabled passengers who are either killed, mutilated, stranded or humiliated daily – mostly on our fixed route and paratransit systems, whose management and drivers relentlessly and often deliberately violate provisions of the Americans with Disabilities Act. These cases – often involving multiple wheelchair tipovers of the same passengers – make little news, perhaps because these events occur so regularly, perhaps because the ADA is a mere 20 years old, perhaps because violations to this subclass of our population are considered less politically incorrect than racism, but mostly because the FTA has never once enforced a single ADA violation. Regardless, overt old fashioned civil rights violations are rarer, and the tale above illustrates how sensitive many of us can be about their occurrence. By comparison, one might at least fashion a lame excuse for failing to secure a wheelchair. But not permitting a harmless passenger to reenter a bus, and stranding her in freezing middle-of-the-night darkness, seems inexcusable, and harbors no remote defense for it in the courtroom.

Relative Harm and Floating Risk

Two hundred years ago, when many Americans owned slaves (slavery was actually outlawed, last, in Illinois, in 1989), most people would probably laugh about the rights we enjoy today. But these right have been codified into statutes and regulations, and curiously, violations of them often count more in the courtroom than do physical damages. So driver training should not begin and end with defensive driving. Just as few drivers are trained about inertial and centrifugal forces (witness the litany of wheelchair tipovers), few are likely trained about the importance of Federal regulations other than Hours-of-Service violations and the need to conduct pre-trip inspections.

It has become a cliché that those who fail to learn from history are doomed to repeat it. But this is certainly true about failing to acknowledge and obey statutes and regulations about which most judges and juries may be extremely oversensitive. So if you cannot rid yourself of racist drivers, or those who resent the hassles involved in dealing with disabled and elderly riders, perhaps you might buy them a punching bag or a piñata. But you definitely do not want them to act out their ignorance and other shortcomings by violating your passengers’ civil rights. If this abstract admonition is not sufficient, you should know that this author is currently engaged, on behalf of the victims, in three huge lawsuits against major transit agencies where the violation of a disabled passenger’s civil rights is dwarfing their mere multiple mutilations. Just imagine what these lawsuits will turn into should we discover that these transgressions were compounded by racism.

Publications: National Bus Trader.