Going to the movies is a full blown sensory experience – sights, sounds, action, all highlighting the cinematic experience.
But what if you are blind and cannot see the movie screen? What if you are deaf and cannot hear what is happening in the film? What then? How can you experience and enjoy the film? What, if anything, must the movie theater do to accommodate you?
Well, thanks to the U.S. Court of Appeals for the Third Circuit, we may have answers soon.
The Case of Paul McGann
Paul McGann was born deaf and began losing his sight when he was a young child. He is now blind. McGann uses American Sign Language (ASL) to communicate with others. To receive information, he uses tactile interpreters and the hand-over-hand method of communication. As the Court explained “The hand-over-hand method involves the recipient placing his hands lightly upon the hands of an interpreter, who is signing in ASL, and reading those ASL signs through touch and movement.”
In 2014, he requested tactile interpreters for a movie he wished to see. He contacted a Cinemark theater and requested tactile interpreters. He had previously received tactile interpreter accommodations from other theaters. Cinemark, according to the Court, had never received a similar request. The movie company did some research and discovered two interpreters would be needed to accommodate McGann, at a cost of about $60 per hour per interpreter for a minimum of two hours. The movie McGann wanted to see would last at least two hours.
A paralegal at Cinemark’s corporate headquarters denied McGann’s accommodation request on her own authority, deciding “Cinemark did not believe that the ADA required Cinemark to provide McGann with tactile interpretation services for the purpose of “describ[ing] the movie [McGann] [would] [be] attending,” the Court explained.
McGann then sued, alleging Americans with Disabilities Act (ADA) discrimination. The trial court dismissed the case, deciding that tactile interpreters were not a recognized “auxiliary aid or service” under the ADA. Therefore, the trial court ruled, McGann was not entitled to interpreters as an accommodation for his disabilities – being deaf and blind.
The Appeals Court Decision
In October 2017, the appeals court reversed the trial court’s decision. Importantly, the appeals court disagreed that tactile interpreters are not a recognized ADA accommodation.
The Third Circuit correctly recognized “qualified [tactile] interpreters” ARE auxiliary aids or services under the ADA. The Court also explained that U.S. Department of Justice (DOJ) regulations and guidance are similarly clear about interpreters, including tactile interpreters, being part of the ADA’s regimen for providing effective communication to people with disabilities.
The Court decided: “The ADA supplies a definition for “auxiliary aids and services.” The term includes, in relevant part: (1) “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments”; (2) “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments”; and (3) “other similar services and actions.” 42 U.S.C. § 12103(1)(A)(B), (D). DOJ implementing regulations offer a non-exhaustive list of auxiliary aids and services that may be required to “ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(b), (c)(1)
The DOJ also issued a Technical Assistance Publication in 2014 that provided guidance on communicating effectively with individuals who have vision, hearing, or speech disabilities. See Dep’t of Justice, ADA Requirements: Effective Communication (Jan. 31, 2014). This publication specifically mentions tactile interpreters as auxiliary aids or services that may be used to communicate with individuals who are deaf-blind.”
The appeals court put a lot of weight on DOJ’s opinions, as DOJ has expressed them in court cases and DOJ enforcement of the ADA. The court stressed that theaters offer an “entertainment service.” For a person with disabilities to have access to this service, the theater must provide an appropriate auxiliary aid or service, such as a tactile interpreter, for the customer with a disability to enjoy the entertainment offered:
“The provision of this entertainment service continues after a patron selects a movie of interest, purchases a ticket to that movie, and walks into the auditorium. So, too, does the obligation to provide auxiliary aids and services.
… [DOJ] has regularly taken the position in litigating and enforcing the ADA that entertainment venues must provide auxiliary aids and services to make the content of their performances accessible to persons with vision and hearing impairments. Consistent with this position, the DOJ amended 28 C.F.R. § 36.303, after oral argument in this case, to require movie theaters, under their existing Title III obligations, to provide closed captioning and audio description for digital movies presented in those theaters’ auditoriums. 28 C.F.R. § 36.303(g)(2); see also Nondiscrimination of the Basis of Disability by Public Accommodations – Movie Theaters; Movie Captioning and Audio Description, 81 Fed. Reg. 87,348-01 (2016) (final rule) (codified at 28 C.F.R. Pt. 36).
As Cinemark acknowledged, customers do not pay these entertainment venues for tickets to sit in an empty auditorium. The provision of this entertainment service continues after a patron selects a movie of interest, purchases a ticket to that movie, and walks into the auditorium. So, too, does the obligation to provide auxiliary aids and services.”
Cinemark also claimed that the cost of providing tactile interpreters would be an “undue burden” under the ADA. The undue burden defense that an accommodation is too expensive for the organization to bear the cost requires a “fact intensive” investigation to determine if all of the ADA undue burden factors apply to a particular case. The Third Circuit assigned the task of investigating the undue burden defense to the trial court.
A final decision in this case will come after the court decides if providing tactile interpreters to deaf-blind movie patrons is an undue burden to movie theaters.
One of the other big unanswered questions in this case is this – How could a large company like Cinemark give one paralegal the authority to make an ADA accommodation decision that bound the entire company and caused a major federal litigation?
That’s a question for another day.
**Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.