Labor & Employment Newsletter

With the increase in communication and notices being sent to customers in multiple industries, one area companies in the 21st century need to be well aware of relates to communication disabilities under the Americans with Disabilities Act (ADA). Customers with vision, hearing, or speech disabilities must be accommodated. What form that accommodation takes, however, will vary considerably. Businesses and governmental entities should be sure to have an established policy in place on how they will provide effective communication that takes the customer’s desired method into account.

General Requirements

The ADA requires that government entities (under Title II) and business organizations (under Title III) communicate “effectively” with customers with disabilities and their companions. Accomplishing this effective communication may require the entity to provide auxiliary aids based on consideration of the nature, length, complexity, and context of the communication along with the person’s normal method of communication. The Department of Justice, Disability Rights Section has a very useful bulletin on effective communication under the ADA.

Particulars

Does the customer get to dictate their aid? Not exactly, but you should listen to it. A Title II employer is required and a Title III employer is encouraged to give primary consideration to the choice of aid or service of the individual. But you do not need to be clairvoyant. Covered entities can require reasonable advance notice from individuals requesting aids or services. Walk-in requests should be honored to the extent possible.

Auxiliary Aids and Services

Auxiliary aids and services include “open and closed captioning, including real-time captioning … or other effective method of making aurally delivered information available to individuals who are deaf or hard of hearing.” The type of auxiliary aid will depend, in large part, on the nature and complexity of the communication involved and the context of the communication.

Individuals who are blind or visually impaired may require a reader, Braille availability, larger print, or some enhanced screen.

Individuals who are deaf may require written materials, a sign language interpreter, real-time captioning or maybe a printed script. It will depend on the circumstances, but entities should evaluate what they will have available. Again, an entity is entitled to reasonable notice of the request, and the whole goal is to accomplish effective communication.

Speech disabilities may require providing a translator or allowing additional time with the person.

Companions

A covered entity is also required to communicate effectively with a companion of the recipient of a good or service, such as a parent, spouse, or other relative. And although businesses often expect a person who utilizes sign language to bring a companion to communicate, the ADA places the onus on the covered entity to provide an interpreter with rare exceptions, such as an imminent threat.

Implementation of aids and services could include using available technologies, such as listening systems, open or closed captioning, hearing aids or text telephones, screen reader software, video description or secondary auditory programming (SAP), among many others. Entities should consider utilizing a telecommunications relay service (intermediary communication assistants), video relay service (a subscriber-based service to provide an intermediary), or video remote interpreting (which accesses an off-site interpreter), all of which could be extremely useful auxiliary aids. Each of these technology tools should be evaluated as part of a company’s ADA compliance policy.

There is some limit to the requirements for aids and services; anything that imposes an undue burden on the entity is not required. The undue burden threshold in the ADA context, however, has proven to be pretty high. It will obviously depend on resources, costs, and size, but entities should not be overly expectant that they will be excused by the undue burden limit.

The effective communication requirements under the ADA have been the subject of multiple court actions. For example, a movie theatre must provide open or closed captioning of showings and captioning devices to comply with ADA communication requirements (see Childress v. Fox Assoc.).

In another recent case, Nat’l Assoc. of the Deaf v. Harvard Univ., the court found that the covered entity failed to provide accurate and timely captioning of online audiovisual content. Notably, the court held the university liable even though the content of the university’s website originated from a third party because the regulations do not limit the public accommodation requirements that it chooses to host on its website. The effective communication requirements, however, are intended to address the covered entity’s central purpose or business, not “incidental conveniences.” (see Johnson v. Speedway, LLC, (at *3, no ADA violation was found where claimant sought auxiliary aid to listen to the gas station pump’s media feature because the defendant was in the business of selling gasoline and there was effective communication with the gas station employees to purchase gas).

Title III (for businesses and non-profits) allows only for injunctive relief and attorneys’ fees, not monetary damages, so a claim could become moot if the business remedies the deficiency even after litigation. For a Title II covered entity, a plaintiff can only get compensatory damages if he or she shows an intentional violation or that a covered entity was “deliberately indifferent” to the ADA protections. You should also be aware of state accessibility laws that may have different damage provisions.

Next Steps

First, each company or covered entity should be aware of the ADA requirements for effective communication and have an established compliance policy. The policy should outline how notice of the disability is to be received and processed, how the customer’s desired choice of aid will be considered, what auxiliary aids or technologies will be available depending on the impediment, and describe how those aids will be put to use. Having a comprehensive policy will be your best defense if ever questioned, as one recent case, Hooper v. City of St. Paul, illustrates. In this matter, summary judgment was granted to the city as the ADA policies being examined required “that, when necessary to communicate effectively, appropriate auxiliary aids be provided to qualified individuals” and that the ADA does not require anything more than that.

Second, be sure to have adequate staff training on the policy mandates. The ADA provisions in this context are inherently flexible or “squishy,” similar to the ADA’s interactive process for employers (see Durand v. Fairview Health Servs., whether there was effective communication is “a fact-intensive inquiry and is largely context-dependent;” also see Chisolm v. McManimon, “Generally, the effectiveness of auxiliary aids and services is a question of fact precluding summary judgment”). But an entity “can defeat an ADA claim by ‘demonstrating that an effective means of communication’ other than the claimant’s preferred accommodation was made available” (see Pollack v. Reg Sch. Unit 75; McCullum v. Orlando Reg Healthcare Sys., Inc.).

Finally, take the time to thoughtfully consider how your organization will address effective communication mandates to have a thorough policy and best position your organization for ADA compliance.