A federal judge has ordered New York Governor Cuomo to add sign-language interpretation to his daily televised coronavirus briefings. The May 14, 2020 court order followed a lawsuit alleging the New York governor had discriminated against deaf and hard of hearing people. The court further decided that providing closed captioning in English is an insufficient accommodation since not all deaf and hard of hearing people can read English.
Before the court order, Cuomo had only provided sign language interpretation for the press briefing viewable online but not for the briefing viewable on television. Some plaintiffs in the court case and other New Yorkers do not own computers and do not have access to the governor’s online postings, the federal court ruled.
According to USA Today:
“[U.S. District Judge] Caproni said Cuomo’s office was preventing deaf New York residents who lack internet access or cannot read English from accessing necessary information about the state’s coronavirus response and steps to reopen the economy.
That put the state in violation of the Americans [sic] With Disabilities Act, which prohibits governments from excluding the disabled from government services or benefits or discriminating against them.
Without immediate implementation of an in-frame ASL interpreter, Plaintiffs and other similarly situated deaf New Yorkers will continue to be denied timely access to this critical information, leaving them less able to comply with current orders and advice, less able to prepare for the future, and more anxious about current conditions and the future, Caproni wrote.”
The court case was filed by four deaf people and Disability Rights New York, an advocacy organization. In the federal complaint, they claimed that:
“Governor Andrew Cuomo’s failure to provide in-frame American Sign Language (“ASL”) interpretation during his daily press briefings regarding the COVID-19 pandemic has excluded certain deaf New Yorkers from the benefits of those briefings. … although videos of ASL interpretations of Governor Cuomo’s briefings are available through a link on the Governor’s website, because they lack internet access, they cannot view the videos. Similarly, while some of the channels that broadcast Governor Cuomo’s live briefings include closed captioning, Plaintiffs argue that the closed captions do not accommodate them because they cannot read English at all or well enough to understand the information.
Plaintiffs…argue that Cuomo’s failure deprives them of effective communication in violation of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”).”
Governor Cuomo’s daily briefings have gained much notoriety and attention, the court opined. They also provide critical emergency information about the coronavirus.
As the court ruled:
Specifically, the briefings have included information regarding the number of confirmed COVID-19 cases in New York, the closing of schools and non-essential businesses, the stay-at-home order, the availability of testing, social distancing requirements, the requirement to wear a mask, rent suspension, the coordination of local, state, and federal government emergency response systems, and other information about how New Yorkers can stay safe and help limit the spread of the virus.
The briefings have also featured government officials from the New York State Department of Health, New York State Division of Budget, and the Army National Guard.
On April 13, 2020, Governor Cuomo hosted a multi-state press briefing with the Governors of New Jersey, Delaware, Connecticut, Rhode Island, Pennsylvania, and Massachusetts, during which he announced the ‘Multi-State Council to Get People Back to Work and Restore the Economy.’
Local and major news networks, including ABC, CBS, NBC, and Fox, have broadcast Governor Cuomo’s briefings live to a national audience. Governor Cuomo’s daily briefings have been widely touted as providing reliable and up-to-date information; Cuomo has emerged as a prominent and steady voice in a time of crisis.”
The court decided that the governor’s online posting of ASL interpreted recordings of his briefings was insufficient and did not provide deaf people with their legally required right to effective communication. Simply put, the court ruled, Governor Cuomo’s online postings of the interpreted briefings did not ensure that plaintiffs had “meaningful access” to his communications.
“Governor Cuomo argues that they do; he emphasizes that he employs a ‘multiplicity of ways’ to ensure that deaf individuals can access the important information in the briefings. The Court disagrees.
…Although the Court acknowledges that Defendant’s accommodations need not be ‘perfect,’ they still must ensure that the press briefings are ‘readily accessible’ to the Plaintiffs in this case.
[The] ADA requires that ‘an individual analysis  be made with every request for accommodations and the determination of reasonableness  be made on a case by case basis.’). Although Governor Cuomo is providing reasonable accommodations for many deaf New Yorkers, he has failed to make the ‘reasonable accommodations’ necessary to give these Plaintiffs access to his briefings. D’Amico, 813 F. Supp. at 221.
What was the effect of the Court’s decision?
As noted above, the online ASL interpretations of Governor Cuomo’s briefings are not readily accessible to Plaintiffs or any other similarly situated deaf New Yorker who lacks internet access.
The live broadcasts with closed captioning, while perhaps accommodating deaf New Yorkers who are fully literate in English, do not accommodate Plaintiffs and other similar deaf New Yorkers who cannot read English. Defendant’s suggestion that Plaintiffs are merely ‘choos[ing] not to take advantage of the various means by which the Governor communicates critical information during his press briefings,’ is unfounded, conclusory, and cavalier.
While Governor Cuomo’s accommodations may ‘constitute a reasonable accommodation under some circumstances,’ and may be utilized and valued by deaf New Yorkers with internet access, the ‘determination of reasonableness must be made on a case by case basis’…
[T]he Court finds that the balance of hardship tips decidedly in favor of the Plaintiffs… the Court agrees that Plaintiffs cannot follow Governor Cuomo’s executive orders or health department recommendations if they are not aware of them. Plaintiffs and members of the deaf community who are similarly situated to Plaintiffs cannot ‘ensure that they act in the public’s interest, and may unknowingly endanger themselves or others. Furthermore, the Court sees no disservice to the public by providing Plaintiffs’ proposed accommodation. “
Of significant additional importance in the decision, the court recognized the “digital divide” of disparate internet access that the pandemic has laid bare. As the court ruled: “While the accommodations provided via the internet are impressive, the right of deaf New Yorkers to access Governor Cuomo’s briefings and get critical information regarding the COVID-19 pandemic ‘should not be contingent on the happenstance’ that they have access to the internet.”
- Posting online recordings with ASL interpreters of televised broadcasts without the interpreters may not be a sufficient accommodation for deaf and hard of hearing people who have neither computers nor ready internet access.
- Closed captioning in English may not comply with federal law if deaf and hard of hearing people are illiterate in English and cannot access the information provided.
- Emergency situations may require organizations to provide additional accommodations to ensure that people with disabilities can equally access critical emergency information.
Check out Bruce Adelson’s other blog posts to learn the latest developments in language access law, including national origin discrimination. If you’re interested in a consultation about your own organization’s compliance with federal language access law, please reach out to our experienced team of compliance experts here at Bromberg & Associates.
© Bruce L. Adelson 2020. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
Mr. Adelson’s blogs are a Bromberg exclusive