Auxiliary Aids and Services

Seyfarth Synopsis:  A Missouri federal judge orders a theatre to provide, upon request, captioning services for the deaf for all theatrical performances.

A federal judge in Missouri recently ordered a 4500-seat indoor theatre to provide open or closed captioning for all theatrical performances upon request with two weeks’ notice, in a lawsuit brought by deaf patrons and advocacy organizations.

The Fabulous Fox Theatre in St. Louis, Missouri initially offered no captioning services of any kind for its theatre productions. After the plaintiffs filed their lawsuit, the theater agreed to provide captioning on a handheld device for one prescheduled Broadway-style performance per production (usually on a Saturday matinee), if it receives a request for captioning two weeks before the show. The theatre provided stands for the devices only at designated accessible seats because the fire marshal considered them to be a fire hazard. The plaintiffs maintained that captioning should be available for all shows, and that the theatre should provide stands for the handheld devices at all seats, not just accessible seats. They also sought an injunction requiring the theatre to (a) publicize the availability of captioning; (b) provide a means to request captioning; and (c) provide a method for people to purchase tickets by non-telephonic means, including e-mail.

The judge agreed with the plaintiffs on every issue but one. The judge held that providing captioning for only one show per Broadway-style production denied plaintiffs the equal opportunity to participate in the theatre’s performances because it limited their ability to choose from a number of different performances that were available to non-disabled patrons. The court also found that the theatre had failed to meet its obligation to provide auxiliary aids and services to ensure effective communication with the plaintiff. The theatre did not attempt to argue that providing captioning for all performances upon request would be an undue burden or fundamental alteration of its performances. Accordingly, the court ordered the theatre to provide captioning for all theatrical performances upon request with two weeks’ notice. The court also – with no discussion – ordered the theatre to publicize the availability of captioning, provide a means to request captioning, and provide a method of buying tickets through non-telephonic means, including e-mail. The court did not require the theatre to provide stands for the captioning devices at non-accessible seats, due to fire safety concerns.

The decision serves as a reminder that Title III of the ADA requires public accommodations to provide auxiliary aids and services to individuals with disabilities to ensure effective communication with them, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services provided. Organizers of events that are open to the public should keep this in mind and have a plan for ensuring effective communication for participants and spectators with different types of disabilities, as there have been a number of lawsuits filed in the past several years over the lack of captioning for live events.

Edited by Kristina Launey.

Seyfarth Synopsis: Fighting a web accessibility lawsuit could invite DOJ’s intervention, as did a Florida retailer’s recent Motion for Judgment on the Pleadings.

Fighting a website accessibility lawsuit is very tempting to many frustrated businesses, but can be a risky decision. One such risk – Department of Justice intervention in the lawsuit – came to fruition for one such business on Monday in Gil v. Winn Dixie, when the DOJ filed a Statement of Interest in the case pending in the Southern District of Florida.

In the lawsuit, Gil alleged that he attempted to access the goods and services available on the Winn-Dixie website, but was unable to do so using his screen reader technology or any other technology provided on the Winn-Dixie website. Accordingly, he claimed the website is inaccessible in violation of Title III of the Americans with Disabilities Act.

Triggering the DOJ’s somewhat unexpected involvement in this prolific plaintiff’s (by our count, as of October 20, 2016, Gil’s attorney had filed 43% of the 244 federal website accessibility cases filed this year) lawsuit was Winn-Dixie filing a Motion for Judgment on the Pleadings.  The DOJ states that Winn-Dixie admitted in the Motion that, through its website, patrons can order prescription refills to be picked up at the store pharmacy; search for nearby stores; and gather information on store hours, products, and services. Winn-Dixie argued that it has “no obligation under the ADA to ensure that Mr. Gil and other blind patrons can access these and other services and advantages offered through its website” because under the Eleventh Circuit law, only physical locations are subject to Title III of the ADA. The DOJ could not stand by and let this position go unchallenged:

“Because Winn-Dixie Stores’ argument cannot be squared with the plain language of the statute, the regulations, or with federal case law addressing this issue, the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden.”

DOJ’s authority is the ADA’s requirement that public accommodations provide auxiliary aids and services – including accessible electronic information technology – at no extra charge to ensure effective communication with individuals with disabilities, unless it would result in a fundamental alteration or undue burden.

In response to Winn-Dixie’s position that Title III applies only to its physical location. DOJ cited the language of the ADA which says that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  DOJ also argued Title III’s application to the website at issue is consistent with every other court decision to have addressed the coverage of websites with a nexus to brick and mortar locations. DOJ went on to state its view that even websites with no nexus to a brick and mortar location are also covered under Title III of the ADA – a position that has been explicitly rejected by the Ninth Circuit.

Coming on the heels of the DOJ’s intervention in the MIT and Harvard cases, and one retailer’s loss on summary judgment when fighting a web accessibility lawsuit in Colorado Bags N’ Baggage, this case demonstrates that litigating a website accessibility case has broader implications than just winning or losing on the merits.  Few businesses want the DOJ inquiring into their ADA Title III compliance practices, of which websites are only a part.

Edited by Minh Vu.

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 applies to state and local government entities under Title II of the ADA, private schools have very similar obligations under Title III of the ADA. Thus, the Guidance is useful for all educators and administrators of both public and private schools.  Below are some highlights from the Guidance.    

  • Effective communication must be provided to any member of the public who seeks out the school’s services, programs, or activities (e.g., for parent-teacher conferences, open houses, performances).  In addition, the effective communication obligation is not limited to the classroom, but extends to all of a student’s school related communications, including school sponsored extracurricular activities. 
  • A case-by-case analysis must be made in determining an appropriate auxiliary aid or service.  Schools must consider “the communication used by the student, the nature, length, and complexity of the communication, and the context in which the communication is taking place.” 
  • Any interpreter must be “qualified,” meaning able to interpret both receptively and expressively.  Schools cannot rely on staff who are not “qualified” interpreters, nor on students to provide their own interpreter (unless the student makes such a request or in specified emergency situations). 
  • Schools must give “primary consideration” to the student’s requested auxiliary aid or service, and are “strongly advised” to make clear in discussions with the student/parent that the school will bear the complete cost.  “Primary consideration” means that the school must honor the student’s request, unless the school can “prove that an alternative auxiliary aid provides communication as effective as that provided to students without disabilities.”  This is one instance where the rules for public vs. private schools are different.  Under the ADA Title III regulations that apply to private schools, the school is only required to consult with the individual requesting the service about his or her preferred method of communication but “the ultimate decision as to what measures to take rests with the public accommodation.”
  • To the extent a school believes that the provision of a particular auxiliary aid or service would “fundamentally alter the nature of the service, program, or activity” or result in “undue financial and administrative burden,” it is the school’s burden to establish such defenses.  The school must explain its reasoning in writing to the student and must still provide an alternative auxiliary aid or service that ensures effective communication to the maximum extent possible.  The Guidance expressly cautions that “[c]ompliance  . . . would, in most cases, not result in undue financial and administrative burdens.” 
  • Auxiliary aids and services must be provided in “accessible formats, in a timely manner (“as soon as possible”), and in such a way to protect the privacy and independence of the student.”  Schools are “strongly advise[d]” to keep students/parents informed of the status of any request or delay in compliance. 

Edited by Minh N. Vu and Kristina Launey

By John W. Egan

On Friday of last week—the day before the ADA’s twenty-fourth anniversary—the Department of Justice (DOJ) announced a proposed rule that would require movie theaters with digital screens (and possibly those with only analog screens) to show movies with closed captioning and audio descriptions (if available), and to purchase equipment that would allow the transmission of such information to moviegoers with hearing or sight disabilities.  The regulations would also require theaters to inform the public about the availability of such captioning and audio descriptions in its advertisements and other communications about the movies they show.

The regulations implementing Title III of the Americans with Disabilities Act (ADA) already require that public accommodations, including movie theaters, provide auxiliary aids and services to ensure effective communication with persons with visual and auditory impairments.  The proposed rule would require that movie theaters provide specific equipment and accommodations to patrons who are blind or have low vision, as well as patrons with auditory impairments.  DOJ estimates that complying with these proposed requirements would cost the industry between $138.1 and $275.7 million and that a substantial number of small businesses will experience “a significant economic impact.”

The major provisions are discussed below.

Continue Reading Summer Blockbuster: Justice Department Issues Proposed Rule That Would Require Movie Theaters Nationwide to Provide Captioning and Audio Description Listening Devices

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: Continue Reading New Justice Guidance Reminds Businesses They Are Responsible for Ensuring Their Communications With People with Disabilities Are Effective

By Minh Vu and Paul Kehoe

Since we reported that the Department of Justice (“DOJ”) issued its proposed regulations last month concerning the definition of a “disability” under Titles II (applicable to state and local governments) and III (applicable to public accommodations) of the Americans with Disabilities Act (ADA), we have received a number of inquiries about the regulations’ impact and whether clients need to take any action.  We share here our initial thoughts.

Background and Key Provisions.  The proposed regulations implement the ADA Amendments Act of 2008 (ADAAA) which amended the Americans with Disabilities Act of 1990 (ADA).  Congress passed the ADAAA in response to several court decisions, including from the Supreme Court, that narrowly interpreted the definition of “disability.”   The point of the ADAAA, according to the DOJ, was to “mak[e] it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.”

In March 2011, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulations to implement the ADAAA’s requirements for Title I of the ADA, which prohibits disability discrimination by employers.  These DOJ proposed regulations will implement ADAAA requirements for Titles II and III of the ADA, which prohibit discrimination in state and local programs and by public accommodations, respectively.  DOJ’s proposed regulations closely track the statutory requirements of the ADAAA and the EEOC’s final regulations.

The ADAAA did not change the ADA’s definition of disability, which continues to be: Continue Reading More People Will Be Individuals With a "Disability" Under Proposed Justice Department Regulations