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

We'll deal more specifically with ADA and hearing loss in our blog posts as various issues arise, but here is an overview of the major areas:

EMPLOYMENT. ADA prohibits covered employers -- those with more than 15 employees -- from refusing to make reasonable accommodations sufficient to allow those of us with hearing impairments to do the job, or from refusing to hire us on the basis that accommodations would be required. This means, for example, that our employers may have to obtain and pay for things like telephone amplifiers, captioners for meetings and seminars, or assistive listening devices. If we can't do our job even with a reasonable accommodation, the employer may have to try to find a job that we can do.

Where good hearing is a critical qualification for the job, ADA does permit employers to discriminate. For example, a fire department was permitted not to hire a fireman with a hearing loss. The court reasoned that in the noise of a fire, where the safety of everyone depends on appropriate and coordinated action, a firefighter who couldn't hear instructions would be ineffective and a danger to others. Because water can render a hearing aid ineffective, the department was allowed to refer to the applicant's uncorrected hearing in making the decision.

Moreover, the ADA does not require an accommodation that would impose an "undue hardship" on the employer. That doesn't mean that the employer may weigh the cost of the accommodation against the financial benefit from providing it. Rather, the "undue hardship" test looks at whether the cost of the accommodation is one that the business as a whole can absorb.

PUBLIC ENTITIES. We're all entitled to participate in the civic life of our city, state and nation, and we're entitled to enjoy the benefits provided by the government. So in most instances, any facility or service operated by a state or local government must offer aids and services sufficient to ensure that communication with us is as effective as communication with those whose hearing is undiminished. In determining what aids and services to offer, public entities must give "primary consideration" to our preferences.

The most significant national case dealing with the duties of public entities towards those with hearing loss comes from Kitsap County. A man asked that his divorce trial be captioned. Instead, he was offered listening devices, a small and acoustically friendly courtroom, and the opportunity to move around so that he could speech-read the testifying witnesses. The Ninth Circuit Court of Appeal ruled those aids and services were insufficient. It reminded the county of its obligation to give "primary consideration" to the requests of the individual, and warned abainst furnishing aids and services based on "stereotypes," such as the belief that assistive listening devices are adequate for all individuals with a hearing loss, or that all of us benefit from sign-language interpretation.

In the wake of that decision, the Washington Supreme Court adopted General Rule 33, which applies to all non-federal courts in Washington. It provides that any participant in a court proceeding is entitled to the aids and services they request if they give two weeks' notice unless it would be impossible to provide the service an the date scheduled for the proceeding, and it would be impossible to continue the proceeding until the aids and services became available.

While GR 33 takes care of the access problem for parties, witnesses, jurors and attorneys, it leaves open the question of whether aids and services have to be provided for spectators. My own view is that ADA essentially requires equal treatment where possible, and that if a court proceeding is open to hearing spectators, then aids and services must be provided to make the proceeding equally open to those with hearing losses.

PUBLIC FACILITIES: ADA requires that every "public facility" furnish aids and services that will enable us to fully enjoy the services provided. "Public facility" is a broad term that encompasses virtually every place we might patronize, including places like hospitals, doctors' and lawyer' offices, stores, theaters and so forth. While public facilities do not have to give primary consideration to our individual requests, they do have to accommodate us in the most integrated setting possible.

Again, the facility need not provide aids and services that would constitute an undue burden, and again, that is determined in reference to the enterprise as a whole. For example, a doctor cannot refuse to provide a sign-language interpeter for a deaf patient simply because the interpreter costs more than the amount charged to the patient -- the question is whether the doctor's entire practice is able to absorb that cost. Nor can the facility charge more to patrons who request aids and services.

There are some significant exceptions. Any entity operated by a religious organization is exempt from the public-facility requirement, even if the entity serves only a secular purpose. (Although they are not covered by the ADA, many churches have been among the leaders in providing aids and services). Bona fide private clubs are also exempt, but there are fairly stringent tests to determine which private organizations can claim this exemption. Organizations that require a membership fee but are open to all would seldom qualify, and if a private club rents its facilities to the public, at least some of its activities may be covered by ADA.

Movies are something of a special case, because while movie theaters are clearly public facilities, the reports from the committees of Congress that adopted ADA state that the law does not require open-captioned movies. Cases seeking to require some form of closed captioning have had mixed outcomes. My personal belief is that because of some of the favorable provisions of Washington's state Law Against Discrimination, an action to require some form of movie captioning is more likely to succeed here than almost anywhere else.

The major focus of the Washington State Communication Access Project, Wash-CAP, is to work systematically to make all of Washington's public facilities accessible to those with hearing loss. For more information, click on the Wash-CAP topic on this website, or the topics dealing with various types of public facility.

EXCEPTIONS TO ADA COVERAGE:

There are several areas that are often thought of as being subject to ADA, but which are, in fact, not covered. In most cases, that is simply because other laws apply, often with essentially equal effectiveness.

FEDERAL FACILITIES AND EMPLOYMENT: Here is a situation in which ADA does not apply, but individuals are well protected. What applies when dealing with the federal government is the Rehabilitation Act of 1973, which prohibits disability discrimination under any program or activity conducted by the federal government or the post office. The anti-discrimination provision, known as Section 504, also applies to activities substantially funded by the federal government. In many respects, Section 504 is the "father" of ADA, with the latter being an effort to extend the protections of Section 504 to a much larger variety of activities.

PUBLIC ELEMENTARY AND SECONDARY EDUCATION. Again, individuals with disabilities have significant protection in an educational setting, but not under ADA. In 1975, Congress passed a statute dealing with the education of pupils with special needs, which law is now called the Individuals With Disabilities Education Act (IDEA). Generally speaking, students with hearing issues are entitled to the aids and services necessary to succeed in a classroom setting. The outcomes under IDEA tend to be similar to the outcomes under ADA, which applies to private schools (but not to religious schools), but the procedures are considerably more complex.

In a rather troublesome early case under IDEA's predecessor laws, the U.S. Supreme Court determined that a deaf student was not entitled to a sign-language interpreter, because even though the student understood less than half of what the teacher was saying, the student's performance was still adequate to superior. Fortunately, that precedent, although honored in theory, has frequently been essentially ignored in practice, and schools have been directed to provide reasonably extensive services to students with hearing loss even if the students are performing well academically.

Colleges and universities are governed by ADA -- either the governmental entity or public-facility provisions, depending on whether the school is public or private -- and by Section 504 if the school receives federal funds.

PERMANENT HOUSING. While hotels are governed by ADA, permanent housing is not. What applies instead is the Federal Fair Housing Act. Like the ADA, the federal fair-housing laws prohibit discrimination against the disabled, but the crucial distinction is that the fair-housing laws define discrimination differently. Rather than requiring the facility to provide aids and services at its expense, the fair-housing laws require only that the owner permit a tenant to install aids and services at the tenant's expense. Moreover, the property owner can require a tenant to remove the aid and service upon vacating the property, and to pay for the cost of restoring the premises to its pre-modified condition.

The fair-housing laws impose very limited structural requirements on new construction, mostly designed to accommodate those who use wheelchairs. It would seem that as a policy matter, landlords, who are required to install smoke alarms, should be required to install effective alarms for tenants with hearing losses. An effort is under way to pass such an ordinance in the City of Seattle, but at the moment, no such requirement exists.

AIR TRANSPORTATION.

Airports are covered by ADA, but air transportation is not. Rather, transportation is covered by the Air Carrier Access Act, as modified by the Airline Deregulation Act.

The combination has proved most unfortunate. Those laws don't allow individuals to vindicate their rights in court. Instead, we're left to complain to the federal Department of Transportation, which makes as well as enforces the rules.

Unfortunately, DOT has proved far friendlier to the airlines than to the consumers. DOT has, for example, rejected any requirement that in-flight entertainment systems on existing airplanes be modified to show captioned movies. In making that determination, DOT relied to a significant extent on a so-called cost-benefit analysis from the airlines showing that captioned in-flight movies wouldn't increase airline traffic in an amount equal to the cost. The potential benefit to those of us who already fly wasn't even considered.

To make matters worse, "air transporation" doesn't begin when you board the airplane -- rather, DOT regulations begin and ADA protections end when you pass through the security gates. DOT has rejected any requirement that announcements made at the gates be captioned. This is a particular problem at the SeaTac airport, because SeaTac does not have a central paging system -- all announcements for individual passengers are made by the airlines, and those are not subject to ADA requirements.

I do not believe the situation for air travelers with hearing loss is going to improve until either Congress acts to remedy the current situation, or we have a Secretary of Transportation whose orientation is more evenly balanced between the needs of the travelers and the needs and wishes of the airlines.