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

 The United States Department of Justice today observed the 20th anniversary of the Americans with Disabilities Act in dramatic fashion by announcing that it will require movies and many internet videos to be captioned, and thereby made accessible to people with hearing loss.

DOJ is proposing that within five years of the adoption of the regulations, at least 50% of all movie theaters must be equipped to show every movie in closed-captioned form. DOJ does not intend to require any specific form of caption display, but will leave that decision to the individual theaters.

Consistent with its past approach and with the Ninth Circuit Court of Appeals decision in the Harkins case from Arizona, DOJ is going to require closed-captioned movies, where the captions are visible only to people who request display devices. The proposal states that if some theaters wish to show open-captioned movies, they may be permitted to do so, and in that case, would not be required to engage the captions for every showing. DOJ did state, though, that a theater that elected the open-captioned option would need to show some prime-time weekend evening movies with captions.

There is a lot to like here.

First, DOJ correctly stated that the obstacle to accessible movies has been the theaters -- that the studios prepare captions for the vast majority of first-run movies (this is actually done by the Media Access Group at WGBH public television in Boston), but that the theaters show only a tiny proportion of movies with captions.

Second, DOJ rejected the theaters' argument that no captioning requirement should be imposed until they convert from analog display using film to digital display. DOJ said the time frame for conversion is too uncertain, and has been promised for too long, to continue delaying making the movies accessible to people with hearing loss.

Personally, I think DOJ is biting off way too little by proposing captioning for only 50% of the screens, and by calling for a five-year phase-in period. While the general economy may be sour, times are good for the theaters -- 2009 was their best year since the Great Depression. I think they can afford to do a great deal more, and do it considerably faster.

DOJ's proposal to require captioned internet videos is even more audacious, because unlike movie theaters, it isn't clear that ADA regulates the internet, or that DOJ has the legal authority to impose these regulations. DOJ is basically taking the position that as more commercial activity goes on line, fair treatment for people with disabilities can only be achieved if they have reasonable access to the internet. 

The two Advance Notices of Proposed Rulemaking were published July 26 in the Federal Register. That is the first step in promulgating regulations that will have the force of law nationwide. DOJ has posed a number of questions, and invites responses from interested individuals and groups for the next six months. it will consider those responses, then draft and propose final regulations, which will also be subject to a comment period. And after it adopts those regulations, affected parties can appeal to court. So DOJ's actions are only the beginning of a process that may take some time.

That said, this appears to be a huge leap forward for DOJ. After spending many years and millions of dollars dealing through regulation with the needs of people with mobility challenges, it's great that DOJ is now proposing to address the needs of the enormously larger population of people with hearing loss. So Happy Birthday ADA from us.

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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. (The very important case declaring that U.S. paper currency discriminates against blind individuals was decided under Section 504).

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, but those requirements are mostly designed to accommodate those who use wheelchairs, and do not address hearing loss in any way. 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.

 

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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.

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Passed in 1990 and effective in 1992, the federal Americans With Disabilities Act (ADA) had the stated purpose of providing "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." The statute defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities."

While some folks with hearing loss may take issue with characterizing that situation as a "disability" or an "impairment," that is the language used in the ADA. There does appear to be universal agreement that hearing is a "major life activity" within the meaning of the statute. So those of us whose hearing loss is more than trivial have never had any difficulty arguing that we are covered by the ADA.

As a general rule, ADA requires that we be provided with "reasonable accommodations" or "auxiliary aids and services" so that we can function adequately despite our hearing loss. Examples of the aids and services that must be provided are assistive listening devices, open and closed captioning and sign-language intepreters. Hearing aids, though, are considered to be for personal use, and we must provide those ourselves.

The ADA protects covered individuals in a number of contexts, principally employment, activities and services offered by public entities, and activities and services offered by what are called "public accommodations" -- privately owned facilities open to the public. Continue reading this post for more specific information about each of those applications of ADA. Several areas not covered by ADA are also addressed in the continuation, including public elementary and secondary education, housing and air travel.

ADA permits individuals who believe they have not received the required accommodations or aids and services to go to court and seek an order requiring that those things be done. If the claimant is successful, then the other party must pay the claimant's costs, including attorneys' fees.

Our office represents individuals with hearing loss -- both those who are hard of hearing and deaf -- in obtaining the protections they are entitled to under ADA. Because of the provision allowing fees to be recovered, we are generally able to handle these cases at little or no cost to the individual. For more information, contact us at johnfwaldo@hotmail.com, or at (206) 842-4106. 

Importantly, the ADA does not invalidate state laws that provide greater protection to affected individuals. The Washington State Law Against Discrimination is one such law, and WLAD is considerably broader and potentially more powerful than ADA. WLAD is the subject of a separate topic on this website.

 

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