Seyfarth Synopsis: A Missouri federal judge orders a theatre to provide, upon request, captioning services for the deaf for all theatrical performances.

A federal judge in Missouri recently ordered a 4500-seat indoor theatre to provide open or closed captioning for all theatrical performances upon request with two weeks’ notice, in a lawsuit brought by deaf patrons and advocacy organizations.

The Fabulous Fox Theatre in St. Louis, Missouri initially offered no captioning services of any kind for its theatre productions. After the plaintiffs filed their lawsuit, the theater agreed to provide captioning on a handheld device for one prescheduled Broadway-style performance per production (usually on a Saturday matinee), if it receives a request for captioning two weeks before the show. The theatre provided stands for the devices only at designated accessible seats because the fire marshal considered them to be a fire hazard. The plaintiffs maintained that captioning should be available for all shows, and that the theatre should provide stands for the handheld devices at all seats, not just accessible seats. They also sought an injunction requiring the theatre to (a) publicize the availability of captioning; (b) provide a means to request captioning; and (c) provide a method for people to purchase tickets by non-telephonic means, including e-mail.

The judge agreed with the plaintiffs on every issue but one. The judge held that providing captioning for only one show per Broadway-style production denied plaintiffs the equal opportunity to participate in the theatre’s performances because it limited their ability to choose from a number of different performances that were available to non-disabled patrons. The court also found that the theatre had failed to meet its obligation to provide auxiliary aids and services to ensure effective communication with the plaintiff. The theatre did not attempt to argue that providing captioning for all performances upon request would be an undue burden or fundamental alteration of its performances. Accordingly, the court ordered the theatre to provide captioning for all theatrical performances upon request with two weeks’ notice. The court also – with no discussion – ordered the theatre to publicize the availability of captioning, provide a means to request captioning, and provide a method of buying tickets through non-telephonic means, including e-mail. The court did not require the theatre to provide stands for the captioning devices at non-accessible seats, due to fire safety concerns.

The decision serves as a reminder that Title III of the ADA requires public accommodations to provide auxiliary aids and services to individuals with disabilities to ensure effective communication with them, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services provided. Organizers of events that are open to the public should keep this in mind and have a plan for ensuring effective communication for participants and spectators with different types of disabilities, as there have been a number of lawsuits filed in the past several years over the lack of captioning for live events.