The District Court

I. The congressional purpose of the Airline Deregulation act is to remove the economic dealings of the air carriers from the control of the state. Further guidance of the intention of Congress is found in policy declaration 49 USCS 40101. None of the documents that clarify the intention of congress shows a clear intent to pre-empt state anti-discrimination claims. In deciding in favour of Brianair, the District Court ruling seemed oblivious of the fact that Congress does not intend to hinder the state's efforts to combat discrimination.

Relevant case law on this area shows this. In Aloha8, it was stated that state laws "prohibiting employment discrimination based on race, colour or sex are not pre-empted by the ADA. " It is maintained that discrimination based on single-parenthood is no different from the above classifications. The Humber State law on Human rights should therefore not be pre-empted. II. In Rowe9, the Supreme Court held that the ADA pre-empted only state law that had a "significant and adverse 'impact' in respect to the federal Act's ability to achieve its pre-emption related objectives.

" It can be seen that the Airline Deregulation Act contains an express pre-emption not a field pre-emption clause. It does not intend to place a blanket restriction on any foray of state law into the airline industry in all cases as Brianair argues. Section 1305 shows this pre-emption clause is not activated if state law does not significantly affect the 'prices, routes and services'. In this case, the "reasonable accommodation" required statute does not significantly affect the economic aspects of Brianair's business. This submission is made on two grounds:

* The claim that the Ms Roberts' "potential for future absence" is capable of having a significant effect on Brianair's rates routes and services is inconsistent with private industry reality of employee absences. * The first event, which is the only one that could potentially affect prices, routes and services, is a result of Brianair's business choices and not Ms Roberts. III. The Supreme Court has not offered any further clarification on pre-emption in the ADA since the case of Wolens10. Brianair claims that the two actions of Ms Roberts and her potential for absence 'directly affect its services'.

The Supreme Court has not found it necessary to define the term "services" as used in the ADA. The District Judge, in deciding the case based solely on the Morales case misconstrued the application of the word. ARGUMENT I. State Law on Employment Discrimination Fall Outside the Scope of the ADA. In analyzing the pre-emptive effect of any federal statutory scheme, the ultimate touchstone is the intention of Congress. Historically, as seen in Cipollone v Ligget Group Inc, there has been a presumption against pre-emption of state-law by Congress.

For a Federal Act to supersede state-law, Congress is expected to show "clear and manifest" proof of its intent to do so. None of the attempts by the Supreme Court to clarify the restrictions of Section 1305(a)(1) has involved any employee discrimination case. However, applying principle of presumption against pre-emption to the Airline Deregulation Act, it is impossible to point out any proof of an intention of Congress to pre-empt Humber State human right law. Therefore, it is submitted that employment discrimination falls within the policing powers of the states.

In the Pre-ADA Supreme Court case of Colorado Commission V Continental11, the court considered whether or not a Colorado state-law concerning racial discrimination was pre-empted. It was argued that the state-law placed an unnecessary burden on inter-state commerce. In ruling against Continental, the court pointed out that the enforcement of laws against racial discrimination was traditionally within the police powers of the state. More importantly, the court advocated a case-by-case approach to judging issues concerning employee discrimination under state powers.

As stated by Judge Simpson, according to Erie R. Co v Tompkins12, this court is burdened with the duty to adhere to the decisions in case law articulated by state courts. An analysis of case law outside the Supreme Court can however provide further justification of the application of this principle. In Branche13, a similar case involving a terminated employment due to the application of a state whistle-blower statute, it was stated that "employment standards fall squarely within the traditional police powers of the states, and as such should not be disturbed lightly"14.

Case law from the circuit courts further support the standpoint that employment standards, especially in the cases of discrimination, bear only a tenuos relation to the goals of Congress as stated in the ADA15. In the Ninth Circuit case of Aloha Islandair16, it was held that a claim based solely on a Hawaiian state-law governing employment discrimination based on physical disabilities was not pre-empted.

In coming to this conclusion, the court stated: "we see no congressional purpose that would be served by denying to FAA-certified pilots, in the name of pre-emption, the protection of Hawaii's law from employment discrimination based on physical disability"17. The reasoning applied by the court was an extension of the Colorado Commission case. The court added disability discrimination laws to the areas excluded from pre-emption which already included laws prohibiting employment discrimination based on race, colour, religion, or sex18.

We submit that this priciple should be applied to the case at hand. Ms Roberts, by being discriminated against for her status as a single mother finds herself in a similar situation to the victims of discrimination in the other cases. In the Colorado Court of Appeal case of Belgard v United Airlines,19 the Court was faced with the task of determining whether or not a law relating to handicap discrimination was sufficiently related to the airline 'prices, routes and services'. In ruling that it was, the Court stated that "any law…

that restricts an airline's selection of employees, based on their physical characteristics must necessarily have a connection with… the services to be rendered by that airline". 20 It can be deduced from this ruling that the physical handicap as seen in this case is related to the services rendered by the airline. The on-the-job performance of these employees could be affected and could be significant in the commercial aspects of the operation of United Airlines. The facts of this case are however different from the one in question here.

The on-the-job performance of Ms Roberts is unaffected by her status as a single-mother. The defendants also stated that her perfomance, in spite of the two incidents remained "satisfactory". The extensive support of case law available in the cases listed above show that employment standards remain under state policing powers in the eye of the court. For example, in the racial discrimination context, courts generally agree that neither air safety nor market efficiency is appreciably diminished by the operation of state laws forbidding racial discrimination.

The maximum reliance on the powers of competition and the free market is not in any way affected by a decision to follow the principle applied in cases like Aloha and Branche. The purpose of the Airline Deregulation Act is not deflected by that conclusion. The case of Ms Roberts conforms to this line of cases and it is submitted that the ruling for pre-emption should be reversed on this basis. It is therefore submitted that based on the judgements listed above and the basic tenets of federalism in the United States, the decision of the District Court should be reversed. II.

Provision on "Reasonable Accommodation" is Tenuously Related to Brianair's Rates, Routes or Services. Applying Rowe21, the ADA pre-empted only state law that had a "significant and adverse 'impact' in respect to the federal Act's ability to achieve its pre-emption related objectives. " Morales however excused from pre-emption action any state-law that affects air fares in "too tenuous, remote or peripheral a manner". In Morales, the reason for pre-empting state-law's control of advertising was given to be that it would "have the forbidden significant [economic] effect upon" economic aspects of the air carriers.

It is submitted that the requirements of reasonable accommodation of Ms Roberts' status as provided by the Humber statue will only be tenuously related to "price routes and services" as expressed in Section 1305(a)(1). Brianair's claim is based on the argument that the "potential for absence from work and her lack of employment flexibility" directly affects its services and potentially its choice of routes. The District Court in its decision applied this, stating that the company has a right to terminate her employment if her performance "significantly and adversely affects the company's ability to operate".

Despite the fact that Ms Roberts' put in a performance which was adjudged to be "satisfactory" in Brianair's opinion, it still sought to dismiss her based on two incidents. Considering this fact, the reasonable accommodations being requested by Ms Roberts only represent a minimum allowance expected by the staff of most companies, including its competitors. In the second incident, Ms Roberts asked to be excused from work before a flight tour because her childminder cancelled. Work absences are a reality common to most industries. According to the U.

S Bureau of Labor Statistics, paid sick leaves was available to 61% of workers in the private industry. 22Also, about 3. 5% of workers in the private industry were reported absent due to illness in April 200823. It can therefore be gathered from these statistics that the occurrences of absences are to be expected in every industry. It is expected of every airline and indeed every work place to make accommodations for such cases. It is submitted that Ms Roberts' condition that resulted in her missing one shift is at par with the risk of other employees taking absences due to illness.

Applying this logic, it is further submitted that the state-law and the reasonable accommodations which it proposes does not inhibit Brianair's ability to compete with other companies in the same industry. Brianair puts forward the argument that its size makes it difficult for it to provide reasonable accommodations for Ms Roberts whilst progressing towards its goal of expanding to other states. This point is invalid. In one of the two incidents case Ms Roberts refused to work beyond her contractual hours.

In this case, Brianair and not Ms Roberts should take responsibility for the consequences. To punish her for a refusal to take up hours outside her contractual agreement is unreasonable. The underlying goal of the ADA is reliance on the competitive market. The competitive model takes priority irrespective of whether or not small businesses can survive. Brianair cannot claim that it deserves special treatment by the ADA simply because of its size. The protection of small-sized companies is not the goal of the ADA.

To buttress this assertion, we have to look at the overall aim of the act itself. The overarching purpose of the ADA is to "encourage, develop, and attain an air transportation system which relies on competitive market forces to determine the quality, variety and price of air services… ". Neither of these two incidents show a direct effect on the "price, routes and services" of Brianair. While it might have suffered a delay and an extra-cost on wages for one shift, the claim that Ms Roberts' actions could significantly affect its business dealings crumbles under its own weight.

Both incidents are consequesnces of its own business strategies as a small company. Even at that, the consequences are only pheripheral to its decision on its rates, routes and services. The district judge erred in making the decision of Brianair to dismiss Ms Roberts based on the likelihood of an incident like this occuring in the future. In deciding this, she ignored the fact that many other unpredictable incidents fall into the category of events of eaqual or greater magnitude which could affect its future operations. These could include staff strike actions and absences due to illnesses.

It is erroneous to postulate that a state law which aims to protect employees from dismissal for absences, which are as in this case similar to absences due to illness and injury, is pre-empted. We can therefore follow that rationale in concluding that the claim here should be found not to be pre-empted. The District Court Misconstrued the Definition of the Term "Services". The scope of pre-emption under Section 1305(a)(1) depends on the interpretation of the phrase "relating to the rates, routes or service. " Morales defined "relating to" as "having a connection with, or reference to airline rates routes and services".

Although Morales and Wolens provide guidance in determining the scope of the wording of the section, they do not go beyond providing its basic framework. The case of Brianair is relies heavily on its belief that its services to its customers was affected by the actions of Ms Roberts. The Supreme Court in the recent case of DiFiore v. American Airlines24, declined an opportunity to change the definition that has been applied in the different circuits. It can therefore be derived from this that the Supreme Court sees no reason to overrule any of the principles already applied in lower courts.

The apt definition of the term "services" relating to this case therefore lies in the case law from these lower courts. In the Ninth Circuit case, Duncan v Northwest Airlines25, the definitions of rates, routes and services were examined. It was noted that the term "rates" indicates issues relating to pricing, "routes" implied choices of courses of travel. By juxtaposing the term "services" to the use of "rates" and "routes" in Section 1305, the court found it to refer to "such things as the frequency and scheduling of transportation and to the selection of markets to or from which transportation is provided".

This is a wide construal of the term 'services'. In further examination of the term "services", it should be noted that the facts of the Duncan case also involved an incident with a flight attendant. With respect to that, the court stated that the term, as used by Congress does not include provision of "in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities". 26 Another case that lends credence to this is Charas27.

In ruling that tortuous claims were exempted from pre-emption, the court highlighted that the purpose of the ADA was to concern its economic effects. "The court stated Like "rates" and "routes," Congress used "service" in S 1305(a)(1) in the public utility sense — i. e. , the provision of air transportation to and from various markets at various times. In that context, "service" does not refer to the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions.

" It is visible that the appropriate definition of "services" used in Charas is appropriate as it best takes into context the principle of the legislative documents needed to understand congressional purpose. It can be seen by examining the case of Charas in the context of other pieces of legislative importance show that the correct decision was applied in this case. In the second House Conference report relating to the ADA, an amendment which refers to "service" [*518] in terms of "fares and airline transportation originating from a certain point and ending at an ultimate destination" was accepted.

28In Rivera v Delta Airlines29 it was pointed out that nowhere in the legislative history of the ADA has the word "services" been used to describe flight -attendants or indeed any relation to dispersal of food and drink. The District Court in this case applied a definition of "services" which is inconsistent with the statutory intention as shown in similar cases. Ms Robert is just a flight-attendant; she has no direct relation to the economic operations of Brianair. Even though the flight was disrupted in the first case, it is impossible to argue that prevented Brianair from "providing air transport at various times".