Title III of the Americans with Disabilities Act (ADA) gives rights of equal access to places of public accommodation. For people who are deaf or hard of hearing, Title III requires businesses to remove barriers to communication. Restaurants and other hospitality providers are required to provide "auxiliary aids and services" to assist any class of individuals with disabilities, in order for them to "fully and equally" enjoy any goods, services, or facilities offered by the hospitality provider so that effective communication can be achieved. What constitutes an "auxiliary" aid or service to a deaf or hearing-impaired individual is being scrutinized in recent discrimination lawsuits brought by deaf or hearing-impaired plaintiffs. As such litigation unfolds, restaurants and other hospitality providers should be aware of the accommodations they are obligated to provide to their guests, and should review their current policies and procedures to ensure compliance with the ADA requirements. A public accommodation may deny an auxiliary aid only if it can demonstrate that providing the aid would fundamentally alter the nature of the service, or would constitute an undue burden or expense.

In a recently filed case in New Jersey, a deaf individual whose first and primary language is American Sign Language ("ASL") sued Taco Bell Corp. and two New Jersey-based franchisees alleging that she was discriminated against twice by the company's failure to accommodate her disability.

In Cirrincione v. Taco Bell Corp., No. 33-0001 (D.N.J., filed July 13, 2016), the plaintiff alleges that at one location, she utilized the drive-through window to place her order by writing it down on a piece of paper and handing it to a Taco Bell employee (where payment is normally collected after ordering via the drive-through menu board speaker). The plaintiff contends that although her order was processed and she was served, she was "berated" by a manager for "utilizing the drive through and for placing her order at the 'pick up' window" because it "interfered with the desired flow of business." On this occasion, the plaintiff was not restricted from fully and equally enjoying the goods, services, and facilities of Taco Bell, but she alleges that she was informed by the store manager that in the future, she would not be served unless she parked and entered the store rather than using the drive-thru. The customer videoed the manager's response. See http://www.nbcphiladelphia.com/news/local/Deaf-New-Jersey-Woman-Sues-Taco-Bell-Over-Drive-Thru-Orders-387004011.html. A copy of the Complaint is available at https://www.scribd.com/document/318210997/Gina-Cirrincione-Complaint#from_embed.

Further, the plaintiff contends that on a second occasion at a different Taco Bell location, she was completely refused service. She claims that she used the drive-through at this location, wrote her order on a piece of paper, and handed it to the drive-through employee at the window. She alleges that the note was slipped back through the drive-through window, the window was shut, and her order was not processed. Thereafter, the plaintiff parked her car and entered the store on foot, where she attempted to "get the attention of the employees therein" but was ignored by "each and every one of them," causing her to leave without being served.

The crux of the plaintiff's claim is the inaccessibility of Taco Bell's drive-through ordering system to deaf or hearing-impaired individuals, such that there is no accessible or alternative means for those individuals to utilize the drive-through "fully and equally" as non-deaf individuals. Under the ADA, the plaintiff seeks remedial measures "to develop, implement, promulgate, and comply with a policy prohibiting future discrimination," and an employee training program for accommodating deaf and hearing-impaired individuals. Moreover, the plaintiff also seeks compensatory and punitive damages under a New Jersey state law concerning discrimination, for mental anguish caused by her humiliation and frustration of being refused service. The Cirrincione lawsuit against Taco Bell appears to be the first of its kind to allege discrimination by a food/hospitality service-provider against a deaf or hearing-impaired individual.

In a previous case, Camarillo v. Carrols Corp. et al., 518 F.3d 153 (2nd Cir. 2008), a legally blind patron of various fast food restaurants successfully alleged that the restaurant operators failed to effectively communicate the menu selections to her. In that opinion, the Second Circuit vacated the judgment of the lower district court that the plaintiff patron did not adequately plead standing under the ADA. The plaintiff admitted she was served on each occasion, but she claimed that she was not read the entire menu, was served out of turn in which she placed her order, and she suffered humiliation by restaurant employees laughing and staring at her. The Second Circuit remanded the case to the district court to reach the merits of whether the plaintiff was denied a "full and equal opportunity" to enjoy the services at the defendants' restaurants because she did not receive "effective communication" of the menu options.

In another recent case, McGann v. Cinemark USA, Inc., 2016 WL 1294582, currently on appeal from the Western District of Pennsylvania, a claim of discrimination was brought by a deaf/hearing-impaired individual seeking full and equal access to movie screenings at Cinemark. The plaintiff, McGann, was born deaf and primarily uses ASL to communicate. Notably, McGann also became progressively blind since the age of 5, but nevertheless enjoys attending movies at theatres. Given his disabilities, Mr. McGann utilized tactile interpretation services in order to receptively communicate using ASL and understand what a tactile interpreter is conveying to him. The tactile interpreter uses methods such as hand-over-hand touching to "read" ASL signs through touch and movement, finger spelling, and other touch-related techniques to communicate ASL to deaf-blind individuals. In his lawsuit against Cinemark, Mr. McGann alleges that he was denied his request for a tactile interpreter for a showing of the movie Gone Girl, and that such denial is in violation of the ADA requiring reasonable accommodation for guests with disabilities.

In a lengthy opinion from the district court which the plaintiff is appealing to the Third Circuit, the district court stated that to be an "auxiliary" aid, the aid is "necessarily one that is supplemental to that which is already provided and not an aid that provides something altogether new or different." The court reasoned that the service that Cinemark provides—screening movies—does not include tactile interpretation and tactile interpreters are not needed for Mr. McGann to attend a movie as non-disabled patrons do. Accordingly, the Court held that tactile interpreters are not auxiliary to Cinemark's services, and Mr. McGann was not treated differently than non-disabled patrons because of the absence of a tactile interpreter.

In light of these cases, restaurants and other hospitality providers should review their current policies and procedures, as well as their employee training, for communicating with and serving deaf and hearing-impaired individuals. Hospitality providers should consider additional signage on their drive-through menu boards that advises deaf or hearing-impaired guests to use the pick-up window to place their order and to come inside if further assistance is needed. In addition, training materials should be updated to include how to accommodate deaf and hearing-impaired guests.