Today, I am off to Dallas Texas. While there, I will be doing two different webinars with my colleague and foil Richard Hunt. The webinars can be found here and here. So, this is my blog entry for the week. With respect to next week’s blog entry, absolutely no doubt that it will be blogging on the imminent decision in Kisor v. Wilkie. Also, on the horizon, blogging on some books put out by the American Bar Association related to what I do. This blog entry talks about one of those books.

As everyone knows, Richard and I frequently blog on each other’s cases. Our perspectives are so different that the reader gets the benefit of both. Sometimes, I am in complete agreement. Sometimes, very close to it. Today’s blog entry offers a personal and professional perspective on Richard’s blog entry talking about noisy restaurants. His blog entry can be found here. As everyone knows, I am deaf proud with a small d. What that means is that I have a 65 to 120 dB sensorineural hearing loss in both ears. I function entirely in the hearing world with very advanced powerful hearing aids and top-notch lip reading skills. I am very sensitive to deaf culture and have represented culturally deaf individuals in effective communication cases. If I were deaf with a D, then I would be a person who learned ASL as a first language, went to a state school for the deaf, and is medically deaf. In the capital deaf world, you get a bonus if you are genetically deaf. While I am medically deaf and most probably genetically deaf considering my immediate and extended family’s history of childhood hearing loss, I don’t meet the other two criteria. Hence, the small d.

Richard’s blog entry is all about the noisy restaurant. Recently, an article getting wide play suggested that the ADA should apply to noisy restaurants, and Richard’s blog entry is a follow-up on that. I deal with the noisy restaurant all the time. First, I wear digital hearing aids. As such, they are highly programmable. With the hearing aids I have now, I have two programs on it. First, a program for everyday conversation. Second, a program for noisy restaurant and amplification. In the noisy restaurant and amplification program, if I am in a noisy restaurant, I will select that program and it fades the background noise so that I hear the people immediately around me. It is also excellent for when I am at the theater as it does real well with amplification.

So, what do I do with noisy restaurants? First, I try to avoid them at all costs. You know the noisy restaurants. They’re going to be restaurants with high ceilings, no carpeting, and lots of people. It seems that millennial’s and younger folks thrive on this kind of vibe. If I do go into a restaurant and it gets noisy, I use my noisy restaurant program. For anyone using digital aids, they often come with several different programs. I would strongly encourage a program for noisy restaurants. It really is a tremendous help. Sometimes, like the restaurant I went to recently for professional networking lunch, even the noisy restaurant program is not much help. In that case, I tough it out, and then strongly consider whether I want to go back as being in that kind of environment puts me at a severe disadvantage.

Turning to Richard’s legal analysis, it is superb as usual. First, I personally don’t like the word “disabled.” I find that word disabling. Disability to me is more neutral. That said, my preference for disability seems like a battle I am losing. At any rate, go people first and then try to figure out what the individual prefers. Second, the hearing loss community can’t stand “hearing impaired,” though I do know of individuals with hearing loss using it. You are much better off going with deaf or hard of hearing, whichever is the case. There is nothing impaired about my hearing. I just don’t hear without my hearing aids.

I agree with Richard that a hearing loss is a physical impairment. I also agree that the inability to hear when compared to most people in the general population is a substantial limitation on a major life activity. Finally, I agree that the inability to understand the conversation in a specialized environment like a noisy restaurant is not a substantial limitation on the major life activity because conversing in noisy places is not a major life activity.

I also agree with Richard that a noisy restaurant is not discrimination because everyone has to endure it. That said, if a person with a hearing loss goes to a noisy restaurant, the restaurant would have to adjust with respect to the patron partaking in the essential eligibility requirements of the restaurant. For example, if the patron simply can’t understand the server, adjustments will need to be made so that the server and the patron can communicate to get the order. I also agree with Richard that design and construction are not policies, practices, or procedures and that the ADAAG has nothing to do with noise in the facility.

With respect to background music, even with my hearing aids, I still have a 40% hearing loss. I don’t always hear the background music, especially if my noisy restaurant program is on. Oftentimes, I will hear it only in the background. If my wife or my daughter says that is a really cool song, I will whip out shazam to figure out what it is. So, in my case background music is not much of an issue. I do understand how background noise could be an issue, especially for those without a noisy restaurant program on their hearing aids.

In the nut allergy blog entry, here, we talked about what might be the essential eligibility requirements of a restaurant. As Richard points out and as I pointed out in that blog entry, it isn’t always clear what the essential eligibility requirements of a restaurant are. A noisy restaurant is part of the restaurant’s vibe and therefore, essentially part of the facility. Playing with the music volume arguably fundamentally interferes with the vibe of the restaurant.

Richard does raise the point of closed captioning and here is also something I have personally dealt with. I do recall walking into a restaurant once and asking the restaurant to turn on captioning on the TV. They refused saying that it bothered their patrons. On this, IMO, the restaurant blew it. As a deaf individual functioning in the hearing world who relies on captioning whenever I watch TV, the captioning should have been turned on. There is no way they could say that providing that auxiliary aid and service would fundamentally alter the essential eligibility requirements associated with the restaurant. Also, what I see more often now, is that the televisions in the restaurant all have the sound off and the captioning on. The reasoning being is that way the patron can understand what is going on and the noise from the TV doesn’t interfere with patrons trying to hear each other; a case of universal design benefiting everyone.

Finally, while I am at it, since I have a blog, I am able to get books from the American Bar Association for free if it is related to what I cover in my blog, and I can find a way to post a review of the books on the blog when appropriate. Recently, I have received two books from the American Bar Association. The Model Rules of Professional Conduct and the Class Action Strategy and Practice Guide. I am going to save the Model Rules of Professional Conduct for another blog entry. I do want to briefly talk about the book, Class Action Strategy and Practice Guide, by Gregory Cook and Jocelyn Larkin editors from the ABA’s litigation section. I do write about class action quite a bit, such as here. However, I am not a person that spearheads litigation. So, I was very interested in this book to find out why an attorney would undertake a class action in the first place and what are the considerations that go along with it. If you are trying to get a handle on just what is class action litigation, the first few chapters do a great job talking about the considerations for deciding whether to take on a class action. After that, the book gets into the serious weeds of class action litigation. On the one hand, it is really nice how it does with that because it has both the plaintiff and the defense perspective. On the other hand, if you are not a person doing class action litigation, much of the succeeding chapters may well go over your head. In short, if you are a class action litigator or are seriously considering pursuing class action litigation or find yourself in a class action as an attorney, I would definitely recommend the book.


Be back next week with Kisor v. Wilkie.