Hearing Loss Law : Washington Hearing Loss Lawyer & Attorney : John Waldo Law Firm : Hard of Hearing, Disability, Hearing Impairment : Seattle, Bainbridge, Washington, Pacific Northwest

 An unfortunate incident last fall has turned into a teachable moment about hearing loss for two state agencies in Washington.

Last fall, a Tacoma police officer stopped a man driving down a busy city street with expired license tabs. Because the driver was not responding to the officer's questions and instructions, the officer realized -- quite correctly -- that the driver had a significant hearing loss.

After writing a ticket for the license violation, the officer then made a written request to the state Department of Licensing, asking that the driver be re-tested to determine his fitness to hold a license. The stated reason -- in the officer's opinion, the inability to hear would make the man a dangerous driver, unable to hear sirens, warnings from passengers, etc. DOL complied, and required the man to pass a physical and to re-take his driving test.

The man found an advocate in Christine Seymour at the Tacoma Hearing, Speech and Deafness Center. Ms. Seymour was well aware that there is no requirement for any specific level of hearing to get a drivers' license. As the manual published by the Washington DOL specifically states, deaf drivers have just as good driver-safety records as hearing drivers, probably because we find ways to compensate for our lack of hearing, such as being much more aware of traffic behind us. 

Through Ms. Seymour's persuasive advocacy, the Tacoma Police Department admitted that the officer erred in basing a re-test request on a drivers' hearing loss, and pledged that it would use this situation as a learning tool.

The DOL was another story. It took the position that it cannot question the contents of a request from a police officer, and therefore, it had to require the re-examination. At that point, Ms. Seymour asked me to help.

I did two things. First, I filed a claim with the state for the money the driver had spent on the medical examination and the wages lost because of the time required. Second, I wrote a rather firm letter to the Department of Licensing. I said that while DOL may be required to believe every word a police officer says or writes, that wasn't the issue. The issue, we pointed out, was that even if the facts stated by the officer were all true, the DOL still had to determine whether those facts constituted adequate grounds to require a re-examination, but either did not make such a determination, or made a determination at variance with its own statements about driver safety and hearing loss.

Shortly thereafter, we got a letter from the DOL acknowledging that it had been wrong to accept a request for re-test based solely on an allegation that a driver cannot hear well. Hearing loss alone, as the DOL ultimately recognized, does not make a driver unsafe.

Once DOL admitted error, the state promptly paid the claim for compensation.

Any interaction between law enforcement and a person with a hearing loss can be difficult and sometimes down-right dangerous -- our inability to hear and therefore comply with an officer's commands or questions can be interpreted as hostility and resistance. Fortunately, though, this interaction ultimately had a happy ending, and will, we hope, bring about some lasting changes in at least one police department and one agency.

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Wash-CAP won the first round in our movie-captioning case against five corporate defendants when the court ruled that under Washington law, theaters must do what is "reasonably possible" to make their movie soundtracks understandable.

The order from Superior Court Judge Regina Cahan said that the specific steps each theater must take will be decided later at trial. 

Her ruling came on cross-motions from Wash-CAP and the theaters. The theaters argued that nothing in Washington law requires theaters to do anything more than open their doors to people with hearing loss, and treat us exactly the same as everyone else.

Wash-CAP argued that under Washington law, treating us just like everyone else wasn't sufficient. Our state law says that when "same service" -- treating us just like everyone else -- doesn't permit us to fully enjoy a business's services, the business must offer "reasonable accommodation." Our state law defines "reasonable accommodation" as taking those steps "reasonably possible in the circumstances" to make all services "accessible," which in turn is defined as "usable or understandable."

Judge Cahan agreed with us. While she did not specifically endorse captioning, and did not state exactly what any of the theaters must do, she did say the theaters would have to do whatever is "reasonably possible," and she intends to determine at trial exactly what that may be.

Trial is scheduled for March 21, 2011.

In a sense, this ruling is a little anti-climactic, coming as it does on the heels of last week's decision by the Ninth Circuit Court that the Americans with Disabilities Act can requires closed captioning. But for a number of reasons, a decision under our Washington state law will be better for Washington movie-goers than a decision under federal law. 

So now we see what the theaters do. Will they fight to the death in Washington -- not a particularly good venue for them in light of our excellent state law -- or will they fold their tents here and save their legal "firepower" to fight the Ninth Circuit decision?

What I think we can say with considerable assurance is that meaningful access to the movies for people with hearing loss is a whole lot closer to reality today than it was last week.

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 As we predicted and hoped, the Ninth Circuit Court of Appeals ruled today that the Americans with Disabilities Act requires movie theaters to show closed-captioned movies unless doing so would constitute an "undue burden."

The ruling came in a case that the Arizona Attorney General's Office filed against the Harkins theater chain. The federal district court ruled that the ADA does not regulate the content of the goods and services offered by businesses, and that the theaters are in the business of showing non-captioned movies. That case was appealed.

The Ninth Circuit opinion said that while ADA does not generally regulate the content of goods and services, ADA does require businesses to provide "auxiliary aids and services," which are defined as including open and closed captioning. That specific provision applies to movie theaters, and controls over the general rule that ADA does not regulate content.

The court noted that when ADA was passed, a statement of purpose from the House of Representatives stated that ADA does not require theaters to show open-captioned movies. That interpretation has been adopted consistently by the federal Department of Justice, which is empowered to interpret ADA. The court said that while DOJ may change its interpretation, the theaters are entitled to rely on it until it is changed. Therefore, theaters are not required to show open-captioned movies.

The Arizona district court ruled that there was no basis for treating closed-captioned movies any differently. The Ninth Circuit disagreed. It said that open-captioning, in which captions are visible to the entire audience, may fundamentally alter the movie-going experience for others. But closed-captioning displays captions only to people who want to see them. "The difference between open and closed captioning is more than linguistic," the opinion states.

The case now goes back to the Arizona district court, where the theaters will be able to argue that closed captioning poses an "undue burden." Because closed captioning is readily available through the Rear Windows Captioning system, the "undue burden" issue is economic only -- how much can the theaters afford?

The theaters can ask for a rehearing, but because the decision was unanimous and issued very quickly, the judges likely regarded this as pretty much of a "slam-dunk" case, and are very unlikely to grant a rehearing. An appeal to the U.S. Supreme Court is always a possibility, and is somewhat worrisome given that court's general hostility to ADA cases. But the U.S. Supreme Court picks the cases it wants to consider, and the odds are against appealing parties -- only one out of every hundred petitions for review are granted.

Assuming the opinion stands, it will become the law in the Ninth Circuit states of Arizona, California, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii, and may be persuasive in the rest of the country.

Our Washington case is currently under advisement. We brought that case under Washington law only, because our state law avoided some of the arguments made under ADA. However, the decision can't do anything but help our case.

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Last Friday, we argued important motions in our Washington movie-captioning case in Seattle Superior Court. Judge Regina Cahan listened attentively, indicated that she knew how important this case is, and indicated that she would need to consider the matter further rather than issue an immediate ruling.

Wash-CAP filed a motion for partial summary judgment. We are asking the judge to rule that the defendant movie theaters -- five corporations that operate multi-screen theaters in King County -- must take all reasonably possible steps to make captioned movies available.

Washington state law requires public accommodations like movie theaters to offer "reasonable accommodations" when treating disabled patrons just like everyone else would not yield full enjoyment of the businesses' goods and services. We asserted -- and the judge seemed to agree -- that those of us whose hearing loss is such that we can't follow a movie dialogue even with the volume-boosting assistive-listening devices that theaters don't fully enjoy the movie, meaning the theaters must provide "reasonable accommodations."

"Reasonable accommodations" are defined in Washington law as those steps "reasonably possible in the circumstances" to make a business' services "accessible." "Services" are defined broadly as "everything" the business offers, which we contend includes the movie soundtrack, and "accessible" is defined in state law as "usable or understandable." Since captions make movies understandable, we argued that under Washington law, the theaters are required to display captioned movies to the extent it is "reasonably possible in the circumstances" for them to do so.

In opposing our motion and asking that the case be thrown out entirely, the attorneys for the theaters offered a broad array of arguments. First, they argued that our state disability law does not regulate the content of goods or services that a business offers, and claimed that their "goods and services" are non-captioned movies. While we can never be certain -- a federal court in Arizona essentially bought that argument -- we don't think it will go far here. We pointed out that captions are prepared in advance for most -- not all, but most -- of the first-run movies that these defendants show, and that those captions are made available on CD-ROM discs furnished to the theaters at no charge. So we argued that in fact the theaters actually have captioned movies, but just refuse to install the equipment necessary to display the captions.

Second -- and this is the argument they really pushed -- the theaters argued that any requirement to undertake captioning should be made by the state Human Rights Commission through a process called agency rulemaking. Because of the emphasis the theaters placed on that argument, we filed a supplemental brief on Tuesday. The judge has accepted our brief, and given the theaters until Wednesday, April 28, to respond.

We expect the judge to issue her ruling shortly after she receives the theater response to our supplemental brief -- possibly the first week in May.

Unless the judge throws the case out, we expect the theaters to begin meaningful settlement negotiations with us. Because what is "reasonably possible in the circumstances" has an economic component to it, we won't really know what each of the defendants can reasonably do until we start looking at some of their economic data. But our objective is to develop a firm and binding commitment and specific schedule for making all of the defendants' theaters accessible to people with hearing loss.

Meanwhile in San Francisco, efforts to resolve the captioning case against the Harkins theater chain were unsuccessful, meaning that the Ninth Circuit Court of Appeals will likely go ahead and issue a ruling. That is the case in which the federal trial judge accepted the argument that the theaters' "product" is non-captioned movies. That decision was appealed to the Ninth Circuit.

As reported in prior posts, the appeals court judges ridiculed that argument, although they did not issue a decision. The attorneys for Harkins then asked the court to put a 30-day hold on its deliberations while the parties went to mediation. Fortunately, the mediation was unsuccessful.

The reason that failure of the mediation is fortunate is that if a case settles during the appeal process, the decision of the trial court stays on the books. Our impression from the oral arguments is that the chances of a favorable decision from the Ninth Circuit are high, and we would like to see that process go forward.

While our case in Washington was brought under state law and the Arizona case was decided according to the Americans with Disabilities Act, there may be considerable practical overlap. If theaters across the country are required under ADA to show some captioned movies, their obligation would cease at the point that doing so becomes an "undue burden," which is essentially the flip side of Washington's "reasonably possible in the circumstances." So what we are able to negotiate in Washington State may have some impact on future implementation of an ADA captioning requirement.

And even though our state law is separate and free-standing, a national decision would be of significant practical benefit to us in Washington, because if theaters across the country need to beef up their captioned offerings, there will be far greater demand for the necessary equipment. That could both increase the availability of the equipment and lower the price.

We've got our fingers crossed. 

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Lawyers for the Harkins movie theater chain, which took the position that they have no obligation to patrons with hearing loss other than to open the doors and let us in, are now waving the white flag of surrender. After getting lambasted by the Ninth Circuit Court of Appeal at oral argument, they filed a motion yesterday asking the appeals court to defer issuing a decision in the case while the parties try to reach a settlement.

While it's gratifying to see the opposition acknowledge that their clocks got cleaned by the appeals court, a settlement might not be very good news at all for folks outside of Arizona who want to see captioned movies. That's because if the parties to a lawsuit settle their case, the appeals court will not issue a decision. And without an appeals-court decision, the trial court's opinion remains "on the books" and can still be cited by theater chains other than Harkins who want to claim that they don't have any captioning obligations.

To briefly review, the Arizona Attorney General and the Arizona Center for Disability Law filed suit against the Harkins regional theater chain on behalf of both deaf and blind, claiming that both Arizona state law and the Americans with Disabilities Act required movie theaters to show captioned movies for folks with hearing loss, and audio-described movies for people with vision loss. The captions and descriptions are furnished without charge by the studios -- the theaters must simply install and deploy equipment needed to display those auxiliary aids.

The theaters argued that they have no obligation to do either of those things. They said that all ADA requires is that they treat everyone equally. Captioned movies, they claimed, are a different product than non-captioned movies, and ADA permits them to sell whatever product they choose -- and they don't choose to show captioned movies. The federal district court bought that argument, and issue a truly regrettable decision.

The case then went to the Ninth Circuit Court of Appeals, which heard oral argument last month. The judges essentially ridiculed the theater's argument, telling the theater attorneys at one point that "you will lose on this issue ... maybe not this case, but on this issue," and urged the parties to work out an agreement. 

The Harkins attorneys are now asking for the opportunity to do just that. While the judges indicated strongly that they won't accept the theaters' argument, they didn't actually issue a ruling. And the Harkins attorneys are now asking the judges to put their ruling on ice while the parties mediate and try to resolve the case.

While it's always nice to make peace and put an end to litigation, there's a danger involved. Any settlement would just bind the Harkins theaters in Arizona -- not any other theaters in any other states. The bad decision from the trial court, though, would remain on the books to jump up and haunt us at some future time even if the appeals court issues an order saying that the decision is "vacated."

What the appellate court wanted the parties to work out, we think, were the details -- how many screens would be equipped to show captioned films, how often would they be shown, etc. We completely agree that discussion ought to take place, but we think it should take place after the appeals court issues an opinion striking down the trial court's opinion.

We've made our views known to the folks in Arizona. It's their call, of course. But they have done such a great job getting what will be a landmark case this far, we hope they decide to let it play out. 

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Internet videos are becoming a more important source of information, supplementing and sometimes completely replacing written communication. But too often, the makers of those videos forget about those of us who "hear" with our eyes as well as our ears. Especially with the fairly low-fi computer sound systems, non-captioned videos are often inaccessible to us.

Thanks to the persistence of one of our Wash-CAP members, the Spokane Regional Health District has now captioned all of its informational videos. When you go to the District's web-site, you can choose between the regular menu of videos or the "closed-captioned" menu -- click on the latter, and the videos appear with a "captions" icon that you can turn on or off.

The District originally took the position that written transcripts available upon request would be sufficient. We disagreed. In correspondence with the District, through its Spokane attorneys, we pointed out that Title II of the Americans with Disabilities Act requires public agencies to make all of their programs and services accessible to people with hearing loss, and the law further requires them to give primary consideration to the method of accessibility being requested. We also pointed out that the time and expense required to furnish a written transcript would be essentially the same as the time and expense required to prepare captions, so there was little money to be saved by their proposed alternative, and much to be gained in terms of more widespread and timely access by our proposed method.

After considering the alternatives, perhaps including our observation that it would cost them a great deal less to caption the videos than to debate the issue in court, the district complied, and now makes its on-line health advisories accessible to everyone.

The whole business of internet accessibility is an increasing concern. A bill introduced in the House of Representatives, H.R. 3101, would address the problem on a federal level. (Read about H.R. 3101 at the website of the Coalition of Organizations for Accessible Technology, or COAT). Since government agencies have to make all of their "programs and services" accessible, government-provided videos pretty clearly must be captioned. 

The great gap at the moment deals with on-line videos created by private businesses, who are not required to make their programs and services accessible, but only their places of business. Courts are divided on whether a website where goods are sold can be classified as a place of business for purposes of disability laws. The federal Ninth Circuit Court of Appeals has said that places of business are brick-and-mortar places only.

However, a federal district court in California has qualified the Ninth Circuit's rule somewhat by saying that if the inaccessibility of the website actually hinders one's ability to shop at the brick-and-mortar store, that may be a violation of federal disability law. We believe that logic should apply, at the very least, to on-line instructional videos for products sold at the brick-and-mortar store

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Seattle's Paramount Theatre, which pioneered open-captioned performances in the Northwest, will offer three captioned productions in the next six weeks.

This Sunday, Jan. 24, at 6:30 p.m., the captioned production will be Xanadu, a roller-skating pop-rock confection best known as a 1980s movie starring Olivia Newton-John. The music comes from Jeff Lynne, the under-appreciated leader of the Electric Light Orchestra. (You'll recognize the tunes even if you don't recognize the name). Tickets are available on-line at a special price of $38.50.

On Valentine's Day, Sunday Feb. 14, again at 6:30 p.m., the captioned production will be Annie, the musical re-creation of the long-running comic strip about a red-headed moppet and her dog Sandy. It was the longest-running comic strip ever, and one of the longer-running shows on Broadway, logging well over 2,000 performances. Again, tickets are available on-line for $38.50.

Then on Sunday, March 7, at 6:30 p.m., Paramount will do a captioned version of Chicago, a musical originally choreographed by Bob Fosse which was made into an Academy Award-winning movie and which is now back on stage. Here's a link to on-line ticket-purchasing, and the price again is $38.50.

Paramount is offering two other Broadway musicals in the Spring -- Dreamgirls in April and Fiddler on the Roof in May. Dreamgirls, based essentially on the rise to fame of The Supremes, became a critically acclaimed movie starring Beyonce Knowles and Jennifer Hudson, while Fiddler is the much-beloved recreation of life in a Jewish shtetl in the last century. No word yet on whether those productions will have a captioned performance, but assuming Paramount adheres to the pattern of captioning the last Sunday evening performance, the dates would be April 11 for Dreamgirls and May 30 for Fiddler.

For the open-captioned performances, the captions are prepared in advance, and are displayed on a small reader-board placed in front of the stage on the right edge. Tickets purchased through the open-caption links will be in an area where both the captions and the on-stage action can be seen with minimal head-turning. Paramount began offering one captioned performance of each of its Broadway offerings in August of 2008 at the request of the Washington State Communication Access Project (Wash-CAP). Since then, Seattle's 5th Avenue Theatre and Seattle Repertory Theatre have also begun offering captioned performances.

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A federal appeals court in San Francisco heard oral arguments on Jan. 13 about whether movie theaters must offer services like captioning or audio descriptions so that those of us with sensory losses can enjoy the movies. And the arguments of one theater chain that all it needs to do is open the doors and let us in was, to put it mildly, poorly received.

Those of us who have spent a lot of time in appellate courts are usually pretty cautious about trying to predict a case's outcome based on the questions the judges ask. But there are sometimes a few clues, or "tells" that can indicate that, just maybe, things aren't going your way.

1) When the judges start making the other side's argument for them, that's a pretty good "tell."

2) When the judges say your clients are "being jerks," that's a pretty good "tell."

3) When the judges suggest that "someday," people will be laughing at your argument, then when you don't back off, proceed to do so, that's a pretty good "tell."

Well, I'm pleased to report that all of those things happened to the attorneys for the Harkins theater chain when the Ninth Circuit Court of Appeals heard arguments about whether the Americans with Disabilities Act requires movie theaters to show captioned (and audio-described) movies.

As you may know, the Arizona Attorney General's Office sued the Harkins theater chain, claiming that the business violated both ADA and Arizona state law by failing to show captioned and described movies. The AG was not suggesting that the theaters themselves had to provide the captions or descriptions, but only that they need to install the equipment necessary to show the captions and descriptions provided by the studios.

The theaters took the position that ADA does not regulate the contents of their products or services, and that they offer non-captioned movies. "We have the right to choose what services we provide, and that is our choice," said the attorney for the theaters. "We let everyone come into our theaters and see our (non-captioned) movies, and that is what ADA requires us to do."

The AG's office, on the other hand, said that captions are the kind of "auxiliary aid and service" that the ADA requires to enable people with hearing and vision losses to gain the "full enjoyment" of the businesses' offerings.

The judges basically said flat-out that they thought the theater argument is preposterous. Alex Kozinski, the chief judge, said, "What if we took the position that this building is a building with steps, and if someone in a wheelchair wants to come in, they can find somebody to carry them?"

Kozinksi went on, "Actually, that case happened, and some lawyer argued that being able to crawl up the steps was good enough. Today, people are laughing at that argument, and I wouldn't be surprised if in a few years, people are laughing at your argument."

The attorney didn't back down. And the judges started laughing.

"Captions just let them enjoy the same movie that everybody else sees," Kozinski said. "I don't know why you don't want to do this."

Kozinski went on to say that at best, it's only a matter of time before movie theaters have to comply. "You are going to lose," he said. "You might not even lose this case, but you will lose someday. Why don't you get out ahead and do the right thing instead of being jerks?"

Nor were the judges impressed with any argument about cost. I asked for CART for the hearing, which was provided. "That wasn't in our budget," Kozinski said, "but we pulled it together in a day. With what theaters are doing with 3D, the cost of this (providing equipment to show captions) is just a drop in the bucket."

Now I don't want to suggest that we're going to see every movie captioned at any time in the future. The judges seemed pretty clear in their view that open-captioning can change the moviegoing experience for hearing patrons, and that the interests of those patrons must be balanced against the benefit to those of us who need captions. I think it's quite clear that those theaters that offer open captions, visible to everyone in the audience, would not be required to caption every movie.

The judges also recognized that the pending change-over to digital display may mean that some things that can't be done now can be done in the future, and that today's captioning equipment may become obsolete. But the judges said issues of that nature should be worked out by the parties themselves.

In fact, that's just what the judges suggested. "You've got your general counsel here," Kozinski told the Harkins attorney, "and the AG's office is here. Why don't you just go down to the cafeteria and work out a schedule today?"

I would anticipate a "quick" decision from the court, but "quick" from an appellate court probably still means four to six months.

Meanwhile, the attorneys representing the movie theaters in our Washington case were in the audience. They asked me afterwards whether we could just put our case on ice for awhile, until the court rules on Harkins. They noted that we're "going to spend a lot of money" making motions in our case.

I said I wasn't interested in a stay. What I suggested instead is that they basically just throw in the towel on any argument that they don't have to do anything, and sit down and negotiate what and when they have to do things. Their response: "we'll report to our clients about what happened today, and get back to you."

The bottom line -- circle today's date on your calendar. This was the day that the movie theaters' arguments that "we don't have to do anything" crumbled.

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