Title III of the ADA requires that public accommodations provide, at their expense, “auxiliary aids and services” to ensure effective communication with persons with hearing, vision, or speech disabilities. But what does that really mean for a business? What is effective communication? The Department of Justice last month released its most recent guidance on this topic (the “Guidance”). DOJ’s previous guidance on the subject was issued in 2011 in a primer targeted for small businesses. Since the DOJ and state enforcement agencies have taken a keen interest in this subject, businesses should take a minute to review these two guides and make sure that they, and their employees, are meeting their obligations.
The “effective communication” obligation exists because people who have hearing, vision, or speech disabilities communicate differently from people without these disabilities. For example, a person who is blind is not going to be able to read a menu or legal documents. A person who is deaf is not going to be able to hear what a doctor says about his diagnosis. Thus, in most instances, these individuals will need appropriate “auxiliary aids and services” to ensure effective communication.
The Guidance explains that the key to effective communication is to consider the “nature, length, complexity, and context of the communication” and the person’s “normal method of communication.” In some contexts, effective communication may entail simply reading something to a blind individual (e.g., a menu so he or she can order in a restaurant ), or exchanging notes with a deaf individual (e.g., about a product for sale in a retail setting).
In other contexts where communication is extensive (e.g., educational or medical settings), ensuring effective communication can be complex and costly, and may require the provision of an interpreter or the acquisition and use of unfamiliar technology. As the Guidance explains, various technologies can be used to ensure effective communication, such as computer-assisted real-time transcription, video remote interpreting, and screen reader software. The public accommodation should consult with the individual—especially in these more complex situations —to determine an aid or service that will provide effective communication. If more than one aid or service would allow equally effective communication, the public accommodation is not required to provide the individual’s requested aid or service.
The Guidance notes that the public accommodation must provide the aid or service unless it can show that it would “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.” The standard for establishing this defense is quite high; the Guidance states it will be shown only in “rare” circumstances.
As important reminders, the Guidance also notes the following:
- auxiliary aids and services must also be provided to a companion with a communication disability even if they are not the direct recipient of the service or good being provided (e.g., a school must effectively communicate with a student’s parents);
- a public accommodations may require reasonable advance notice of a need for auxiliary aid or service, but still should honor “walk-in” requests to the extent possible; and
- a public accommodation cannot require a person with a communication disability to use a family member or friend as their interpreter unless there is an emergency involving an imminent threat to the safety or welfare of an individual or the public and no qualified interpreter is available.
Finally, the Guidance stresses the importance of training personnel to be prepared to respond to these issues. Written policies addressing effective communication are largely meaningless unless personnel are trained to understand what the policies mean and how to implement them in a real life situation.