Effective Communication

By Minh N. Vu, Julia Sarnoff, Kristina Launey

Seyfarth synopsis: California Court of Appeal affirms ruling that inaccessible restaurant website violated the Unruh Act and orders that restaurant website comply with WCAG 2.0 Level AA.

Before September 3, 2019, there were four substantive California state trial court decisions in website accessibility cases, and

By Eden Anderson

Last month, the U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) issued a joint guidance Under Title II of ADA (the “Guidance”) explaining the obligation of public schools to provide “auxiliary aids and services” to ensure effective communication with students with hearing, vision, or speech disabilities. Although this Guidance

By Eden Anderson

As we have previously noted, 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 disabilities.  The “nature, length, complexity, and context of the communication” at issue and the individual’s “normal method of communication” must be

By Eden Anderson

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:
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By Chris Palamountain

The U.S. Department of Justice (DOJ) announced in early April 2013 that it has reached five settlements in the past four months with health care providers (a hospital, 2 rehabilitation centers, an ear nose and throat practice, and a sports medicine center) concerning access to services for persons who are deaf.  The

By Kristina M. Launey

As noted during our Healthcare webinar last week, the accessibility of drug labels accessible is on the Administration’s agenda.  Yesterday the Access Board announced that the stakeholder working group it organized to develop best practices for making drug labels accessible will hold its first public meeting January 10 and 11 in