Things have been crazy around here lately. The latest thing I am dealing with apparent incompatibility between Dragon NaturallySpeaking and Microsoft Office 365. It makes things incredibly crazy (I can’t dictate in Word for long without having to click the dragon mike on and off and other office 365 products, such as outlook and excel, are even worse), but I am hopeful that somehow there will be a fix soon.
Today’s case comes from the Third Circuit, McGann v. Cinemark USA, Inc., which can be found here. The case has been all over the news, including a piece in Forbes magazine where the case was used to rip the ADA. To me, the case is pretty straightforward. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.
McGann has Usher’s Syndrome type I, a sensory disorder. He was born deaf and began losing his sight at age 5. He has been completely blind for approximately 15 years and is now considered deaf-blind. For such individuals, there is no single universally accepted method of communication. He generally uses ASL to communicate with others. He can expressively communicate by signing in ASL himself. For receiving information, he uses ASL tactile interpreters and the hand over hand method. That method involves the recipient placing his hands lightly upon the hands of an interpreter, who is signing in ASL, and reading those ASL signs from its touch and movement. ASL tactile interpretation of the movie’s content, includes visual, aural, and oral components. It also includes environmental elements, such as contemporaneous reactions. It does not require any changes to the video or audio content of the movie, the auditorium screens or sound systems, or the physical environment-including the lighting- in or around the theater. For many years, McGann has experienced movies in theaters and enjoyed them. In particular, Carmike movie theater provided him with tactile interpretation services for movie presentations at his request. In November 2014, he became interested in experiencing the movie Gone Girl but learned that it was not playing at the cinema he generally went to. So, he looked for another theater to experience it. As of December 2014, Cinemark was the most geographically diverse worldwide exhibitor of movies possessing 335 theaters and 4,499 movie screens in the United States across 41 states, including Pennsylvania. They do have assistive listening devices, close captioning devices, and descriptive narration devices available for patrons with disabilities, but none of those devices help McGann experience a movie. Once he learned of the movie theater offering Gone Girl, he emailed the theater to directly request tactile interpretation services so that he could experience the movie during one of its regular presentations. After receiving no response to his initial inquiry, he contacted the theater again and was directed to a senior paralegal working in Cinemark’s national headquarters in Texas. Cinemark never having received a request for tactile interpretation services investigated his request by contacting the center for hearing and deaf services for a quote for tactile interpretation services. The rates they received ranged between $50 and $65 per hour for a minimum of two hours, and considering the nature of interpreting a movie, would have required two interpreters. On her own authority, the paralegal denied McGann’s request for tactile interpretation services, and McGann thereafter filed suit. The District Court entered judgment for Cinemark and McGann appealed.
In vacating the judgment and remanding for consideration of Cinemark’s available defenses the court reasoned as follows:
- A movie theater is undoubtedly a place of public accommodation as it is specifically listed in 42 U.S.C. §12181(7)(C).
- The court noted that the civil rights division of the U.S. Department of Justice submitted an amicus brief supporting McGann.
- 42 U.S.C. §12182(a) says that a place of public accommodation cannot discriminate on the basis of disability with respect to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. That necessarily includes denying an individual on the basis of disability the opportunity to participate in or benefit from the goods or services of a public accommodation.
- 42 U.S.C. §12182(b)(2)(A)(iii) requires public accommodation to take such steps as necessary in order to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services. Failure to take those steps is prohibited discrimination unless the place of public accommodation shows that providing the auxiliary aid or service fundamentally alters the nature of the good, service, facility, privilege, advantage, or accommodation being offered or it results in an undue burden.
- The regulations implementing title III of the ADA, 28 C.F.R. §36.303(c)(1), contains an effective communication requirement stating that places of public accommodation have to furnish auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.
- The ADA itself supplies a definition for auxiliary aids and services and includes; 1) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; and 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).
- In 28 C.F.R. §36.303(b), (c)(1), DOJ offers a non-exhaustive list of auxiliary aids and services that may be required to ensure effective communication with individuals with disabilities.
- DOJ’s regulatory guidance on auxiliary aids and services notes that if a deaf and blind individual needs interpreting services, an interpreter qualified to handle those particular interpreting needs may be required.
- In DOJ’s technical assistance publication in 2014 that provided guidance on communicating effectively with individuals having vision, hearing, or speech disabilities, they specifically mentioned tactile interpreters as an auxiliary aid or service for communicating with individuals who are both deaf and blind.
- A defense that a place of public accommodation has is that they can refuse to provide an auxiliary aid or service if they can show that the accommodation either fundamentally alter the nature of its goods or services or results in an undue burden.
- No one disputed that McGann has a disability.
- A tactile interpreter falls comfortably, a point made by DOJ in its amicus brief, within the definition of an auxiliary aid since a qualified interpreter is making aurally delivered materials and visually delivered material available to a person who has both hearing and visual impairments.
- The District Court focused on the word auxiliary as defined in a dictionary, but the Court of Appeals was having none of it. In particular: 1) such a definition renders the auxiliary aids and service requirement of title III meaningless since all of the products, technologies, and services explicitly listed in the statute and regulations as examples of auxiliary aids and services would constitute new goods or services that would escape title III’s mandate unless they were already provided by a public accommodation voluntarily; 2) the District Court did not have to resort to dictionary definitions of the word “auxiliary,” to understand the meaning auxiliary aids and services in title III of the ADA since the ADA and DOJ in DOJ regulations specifically define the term; 3) the statute has no ambiguity as to whether a qualified interpreter falls within the definition since it was specifically listed as an example of an auxiliary aid or service; 4) the primary dictionary definition provided for the term, “auxiliary” in the very same dictionary cited by the District Court is, “offering or providing help, assistance, or support.” So, the relevance of the primary definition of offering help is self-evident, but the relevance of the secondary definition, something supplementary, is not; and 5) even assuming the District Court’s definition made sense, the nature of the auxiliary aid or service being provided here would still not exclude coverage from the ADA.
- Captioning and descriptive narration are auxiliary aids and services under the ADA.
- If the special goods and services rule applied , the auxiliary aids and services requirement would be effectively eliminated.
- The District Court in looking to cases talking about insurance policies was mistaken because those kinds of cases are very different from the situation where a person is trying to access an entertainment venue, such as a movie theater. Accordingly, a court cannot simply assume that what satisfies title III’s auxiliary aids and services requirement in one context necessarily works in another.
- While it is absolutely true that under the special goods exception, a bookstore does not need to offer braille versions of books if doing so would require altering the mix of goods provided, a bookstore does engage in disability discrimination if that customer was forbidden from perusing the store’s existing selection or purchasing whatever book he or she chose. Similarly, with respect to insurance, a company does not have to offer an insurance product tailored to a person with a disability, but the company must have a way to communicate the contents of the policy to a blind customer so that he or she can make an informed purchase.
- DOJ has regularly taken the position in litigating and enforcing the ADA that entertainment venues have to provide auxiliary aids and services to make the content of their performances accessible to persons with vision and hearing impairments. In fact, after oral argument occurred, DOJ amended 28 C.F.R. §36.303 to require movies under their existing title III obligations to provide close captioning and audio description for digital movies presented in those theaters auditoriums (we discussed the final rule in this blog entry). Those amendments make clear that the amendment did not change any existing obligations of movie theaters to provide auxiliary aids and services to persons with disabilities.
- Entertainment venues, such as concert halls and movie theaters, offered to the public are a very different thing than stores offering goods or product for purchase. They offer an entertainment service. Customers do not pay entertainment venues for tickets to sit in an empty auditorium, but rather they pay for the entertainment being offered.
- The provision of this entertainment service continues after a person selects a movie of interest, purchases a ticket to that movie, and walks into the auditorium. So, the obligation to provide auxiliary aids and services continues as well.
- The District Court’s reading of what is an auxiliary aid and service goes against the legislative history of the ADA. In particular, that legislative history talks about the isolation and segregation of persons with disabilities in American society. In fact, data and testimony collected by Congress as it developed the ADA painted a sobering picture of an isolated and secluded population of persons with disabilities who did not frequent places of public accommodations. Due to communication barriers, among other reasons, a large majority of people with disabilities simply did not go to see movies, the theater, musical performance, and sporting events. In fact, the legislative history refers to that as alarming. So, Congress concluded that a compelling need to integrate individuals with disabilities into the economic and social mainstream of American life was required.
- The legislative history reflects Congress’ recognition that presenting movies in the theater is a component of the social mainstream of American life. In fact, the Supreme Court in the past has specifically commented on the importance of movies in American culture.
- With respect to the fundamental alteration defense, since even Cinemark did not dispute that tactile interpretation in no way changes the video audio content of the movie, the screens or sound system presenting the movie, or the physical environment in or around the theater, the defense of fundamental alteration simply doesn’t fly.
- With respect to the undue burden defense, in order to show an undue burden, the defense has to show: 1) the nature and cost of the actions needed; 2) the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or the impact of the action upon the operation of the site; 3) the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent Corporation or entity; 4) if applicable, the overall financial resources of any parent Corporation or entity; the overall size of the parent Corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and 5) if applicable, the type of operation or operations of any parent Corporation or entity, including the composition structure and functions of the work force of the parent Corporation or entity. 28 C.F.R. §36.104. Since this is a fact intensive inquiry, the court decided to remand to the District Court to undertake the inquiry of whether the undue burden defense applies.
- A movie theater is undoubtedly a place of public accommodation, and there is little doubt in my mind that tactile interpretation is both an auxiliary aid and a service for the reason the court mentions.
- DOJ filed an Amicus brief on behalf of the plaintiff. I am seeing a surprising amount of DOJ disability related plaintiff filings under a Trump/Sessions administration.
- For a fundamental alteration defense to apply, the defense has the burden of proof, and it has to show that the operations of their business gets messed up in a big way to prevail. That case could not be made here.
- Very interesting to me that the court didn’t just flat out reverse on the undue burden defense considering, among other things, the overall financial resources of Cinemark surely are not jeopardized by providing a tactile interpreter at a cost of a few hundred dollars.
- The court’s analysis of the special goods exception is easy to understand and makes an excellent resource for referring to if the special goods exception comes up. Also helpful, is the court’s discussion of how context matters when it come to auxiliary aids and services.
- To my mind, this is a by the numbers decision so to speak, and I would be skeptical of any appeal being successful, including one to the Supreme Court.
- Since 1990, I have been involved with the ADA as an attorney in one way or another. Prior to moving to Atlanta, I taught people how to be paralegals full-time for 12 years. The last four of which I ran an ABA approved paralegal program and also was responsible for ensuring that all stakeholders at the College understood what it meant to comply with the ADA. Therefore, I was stunned to read in the decision that the paralegal on her own authority denied McGann’s request for tactile interpretation services. A paralegal is someone who does what a lawyer would otherwise do but under a lawyer’s supervision. They can’t exercise independent legal discretion as that would be, at least in some states if not many, practicing law without a license. So, it completely befuddles me how a company would allow a paralegal on their own authority to deny a reasonable accommodation request from a customer.
- The amount of money Cinemark spent in litigating what seems to me to be a very straightforward case after the paralegal on her own authority made the decision is also curious.