by John Waldo, ALDA General Counsel
Federal and state disability laws require most businesses and government entities to provide effective communication for those of us with hearing loss. But the laws say very little about how to go about doing so, nor do they even try to define things like the line between effective and ineffective communication. As a result, our rights in many situations depend on what the courts say they are.
I’ve reported in the past about what the courts have done for or to us during the past year, so to keep the length of this piece somewhat manageable, I’ll link to those reports. Then I’ll look at what might lie ahead.
Deafness Reaches the Supreme Court — In November, the U.S. Supreme Court heard oral argument in the first case involving deafness: Cummings v. Premier Rehabilitation. A woman in Texas wanted to patronize a specific rehabilitation center, but the center refused to provide interpreters, leading to a lawsuit. The obligation was clear, and the violation flagrant. But the woman still lost because of holes in the federal law. Here’s a more detailed description of that case.
The question before the Supreme Court was whether the federal law requiring businesses that accept federal funds to be accessible allows plaintiffs to recover for emotional distress. The plaintiff and the Department of Justice argued that this type of damages has always been allowed in discrimination cases, and that the facility should have known it could happen. The business argued that because emotional distress is such an ill-defined concept, allowing those damages could subject businesses to ruinous awards. The plaintiffs responded that those ruinous judgments almost never happen, and that courts are well-equipped to adjust the size of any award that is totally out of line. (ALDA joined an amicus brief on the side of the plaintiff).
This issue is particularly important to people who might be injured or become sick while traveling. We’d hope that the hospital would provide interpreters, CART or some other method of communicating with us. What we don’t want is for the hospital to know that it could flatly refuse to do those things and completely get away with it. The money damages may not be all that significant, but the deterrent effect is critical.
We expect a Supreme Court decision sometime this Spring. I thought the oral argument went pretty well — it helps to have the federal government on your side.
Accessibility of Websites — Another case I reported on previously involves the accessibility of websites. When the ADA was passed in 1990, the internet scarcely existed, and the ADA was aimed at places of public accommodation. Today, of course, the online world is hugely important in a myriad of ways, and while that is especially true during the COVID era, there’s no reason to think that once people get used to interacting, shopping, working and learning from the comfort of home, they will give that up. So the question of how the ADA applies to websites, which has been festering for some time, has become increasingly urgent.
Federal courts have reached different conclusions about that question. The most frequent approach has been to say that although the ADA may deal with places, it requires those places to make all of their services available, which means that if there is any brick-and-mortar business open to the public, it must also make its website accessible.
We got a wakeup call of sorts last Spring when a federal appeals court, covering Florida, Georgia and much of the South said in a case called Gil v. Winn-Dixie that the grocery chain’s website wasn’t covered by the ADA. The plaintiff asked the court to reconsider, and while the court was thinking about that, the defendant made its website accessible. That being the case, the court dismissed the case.
That was a welcome development, because had the Winn-Dixie decision become final it would create the kind of division among different courts that invites the Supreme Court to step in. We’d like to see the website issue resolved once and for all, but for a number of reasons, the Supreme Court would be our least-favorite decider.
Online Education — I’d previously reported on one specific website issue, namely, online delivery of continuing-education courses, which many occupations require as a condition of maintaining one’s license. On behalf of some deaf and hard of hearing attorneys, I’d filed lawsuits against five providers that ignored letters requesting captioning for online continuing-education courses. We did not claim that the websites were themselves places of public accommodation, or even that the providers were such places. Rather, we brought those cases under a separate provision of the ADA that requires anyone that offers courses related to licensing to make those courses accessible.
I’m pleased to report that three of those providers have settled by providing captioning either for all courses or upon request, and a fourth provider has indeed added captions although we continue to dicker over the precise terms of a settlement agreement. One Florida-based provider did decide to fight. It argued that if websites aren’t places covered by the ADA, which the Winn-Dixie case said at the time, then it had no accessibility obligations. It asked the court to throw out the case, and for good measure, asked that sanctions be imposed against me for bringing a case I should have known had no merit.
We successfully opposed that effort. With an enormously helpful assist from Trevor Finneman, the court rejected the motion to dismiss the case and the motion for sanctions. We’re now asking the court to make an affirmative ruling in our favor. With the whole question of ADA’s applicability to websites unsettled, we’d like to at least nail down requirements about online education.
Movie Captioning — Since 2017, movie theaters have been required to provide individual devices that let us view captions — the dialogue and sometimes other aural information in written form. Those federal regulations were the culmination of years of litigation in which ALDA played an important role.
While caption-viewing devices are a huge step forward, many D/deaf and hard of hearing movie-goers remain disappointed. They complain that the devices frequently fail, that they can be cumbersome and annoying, and that they unfairly stigmatize the users. What many of our fellow D/deaf folks have wanted is open captioning, with the captions displayed on the screen like foreign-movie subtitles, meaning we could walk into the theater, take any seat and enjoy the movie just like anyone else.
Federal law doesn’t help us here, because while the ADA requires captioning, it does not require open captions. However, the ADA also does not override state or local laws providing greater protection for people with disabilities. So efforts have been under way in some cities and states to add local open-captioning requirements.
The only actual success so far has been in the State of Hawaii. State law requires any theater with multiple locations to offer two open-captioned showings of each movie each week.
A number of efforts are now under way on the mainland, with one spectacular success. In December, the New York City Council passed an ordinance that will require most movie theaters in that city to offer four open-captioned showings of each movie each week. That doesn’t take effect for 120 days, and the National Association of Theatre Owners has let us know that it plans to fight.
The theater owners believe that open captions are not popular with hearing patrons, and they point to attendance counts at OC showings that consistently lag attendance at non-OC showings, even when things like showtimes are accounted for. I think their data is accurate. But I also think the theaters are asking the wrong question. The question shouldn’t be what the attendance is like at a specific OC showing, but whether offering some OC showings increases or reduces overall revenue. Some people do shun OC showings, but if those people go to a different showing or a different movie, the theater loses nothing. On the other hand, some people wouldn’t be in the theater at all without the OC showings, and if those people outnumber the ones who both avoid OC and don’t find another showing or another movie, the theaters make money overall.
In Colorado, the theater owners are offering a voluntary OC experimental program, likely motivated at least in part by trying to forestall any legal requirements. We’re also actively talking with legislators and theaters in the State of Washington about some sort of demonstration OC program.
The simple takeaway from all of this is that change can come about. But it takes work, it takes patience, and it takes both individual and systemic advocacy. It’s wonderful to be part of an organization that believes in this mission.
