Effective communication with blind, low vision, deaf, hard-of-hearing, speech impaired and cognitively challenged employees, potential employees, customers and guests is one of the fundamental tenets of the Americans with Disabilities Act of 1990 (“ADA”). For nearly 25 years, the ADA has been the most sweeping civil rights legislation designed to provide persons with disabilities full and equal access to public accommodations, employment and potential employment.

In its latest effort to enforce the ADA’s effective communication requirements, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in a Baltimore federal court against FedEx, charging the overnight delivery giant with failing to provide basic auxiliary aids and services to effectively communicate with its deaf, hard-of-hearing and speech impaired employees and job applicants.

The suit accuses FedEx of not providing Qualified American Sign Language interpreters, Communications Access Realtime Translation (“CART”) services or closed captioned training videos during new hire orientation or staff and safety meetings to its employees and job applicants in violation of the ADA’s requirement that businesses provide such auxiliary aids and services.

What is a “Qualified American Sign Language Interpreter?

The ADA requires that persons requesting sign language interpreting services be provided with “qualified interpreters”. The ADA defines a “qualified interpreter” as an “interpreter who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary vocabulary.” Qualified American Sign Language interpreters must be provided to deaf, hard of hearing and speech impaired customers, guests, employees and potential employees upon request, at no cost, with reasonable notice.

In simple transactions such as checking into a hotel, buying groceries or making a bank deposit, it is generally appropriate for a business to effectively communicate by passing notes, texting, emailing or reading lips. However, in more complex interactions, such as medical treatment, completing a home or business loan, meeting with a wealth manager, lawyer or accountant, or an employment interview, if requested, the business must provide technically proficient Qualified American Sign Language interpreters at no cost to the customer, employee or job applicant.

Qualified American Sign Language interpreters are specially trained to translate and interpret specialized or complex interactions using technical language related to such subjects. Despite reasonable requests, it is not always possible to get a Qualified American Sign Language interpreter to a meeting in order to accommodate the customer’s, employee’s or job applicant’s schedule, particularly in certain parts of the country or with little notice. So, what can you do?

What is CART?

As noted above, CART stands for Communications Access Realtime Translation. With CART, everything that is spoken is “captioned” live for persons who are deaf and hard-of-hearing. CART is an important communication technological advance, and every business owner, employer or human resources director needs to know about it. When an actual Qualified American Sign Language interpreter cannot be timely engaged, CART is one of the most effective auxiliary aids available. CART can be captioned on a single iPad, tablet, laptop or PDA, or it can be displayed on an overhead screen or on the Internet. The CART interpreter types onto a stenotype machine which translates shorthand into real-time captioning, with little or no lag time.

The process can be done wirelessly to serve remote locations where Qualified American Sign Language interpreters are not available.

Is the EEOC lawsuit the first of its kind?

The FedEx lawsuit is one of many “effective communications” cases. It is similar to a series of lawsuits filed against several California state agencies for allegedly refusing to provide Qualified American Sign Language interpreters to their deaf, hard of hearing and speech impaired employees at all times during the work day, during all internal staff meetings and at offsite conferences.

These suits alleged that the agencies’ failure to provide effective auxiliary aids and services prevented deaf and hard-of-hearing employees from fulfilling their job responsibilities hence carrier advancement. The advocacy group plaintiff alleged that note taking, memos, meeting agenda and similar forms of communications were inadequate and that each agency was required to have a number of Qualified American Sign Language interpreters on staff and immediately available.

How does this affect your business?

Every business that is classified as a “public accommodation” under the ADA is required to effectively communicate with its customers, employees and prospective employees upon request. We discussed effective communication in a simple transaction. In complex job interviews, daily work interactions, conferences, staff and safety meetings, classroom lectures, CART or Qualified American Sign Language interpreters are effective ways to communicate with persons who are deaf, hard-of-hearing or speech impaired.

What auxiliary aids and services are available and how do you obtain them?

When you need to provide auxiliary aids and services, do you have a documented system in place to access these resources? How do you identify and provide for them? Do you have defensible written policies, practices and procedures in place to assure effective communication with guests, customers, employees and potential employees?

Companies need to review these questions and include providing “effective communication” with guests, customers, employees and job applicants as a component of their enterprise wide ADA compliance program.

The DOJ, other governmental agencies, advocacy groups and private litigants have expanded litigation against companies who fail to provide a wide variety of auxiliary aids and services to effectively communicate with guests, customers, employees and job applicants. FedEx is the latest highest profile lawsuit. We have not seen the end of effective communication litigation, and steps should be taken to avoid the risk of expensive litigation and reputation risks.

This ADA lawyer’s advice? Don’t wait for the outcome of the FedEx case to act.

For more information on our preventative enterprise-wide ADA compliance program . . .

Too often we see property owners and managers get “stuck” on a single element of ADA compliance, whether that is pool lifts or web access. Don’t focus on any single element. The best approach to avoiding an ADA lawsuit is to conduct an ADA compliance and prevention survey of your business. The survey should include an assessment of the following:

  • Physical facilities — the brick and mortar
  • Written ADA policies, practices and procedures manual
  • Reservation system compliance with best practices
  • Website accessibility for blind and low-vision guests
  • Staff training and competency on using auxiliary aids and services for persons with disabilities (audio and visual)
  • Call center and operator training and compliance to accept the many types of Telecommunication Relay Services (TRS) used by deaf, hard of hearing and speech impaired guests and potential guests. (The U.S. Department of Justice has been particularly aggressive when it comes to enforcing hotel policies, practices and procedures regarding the effective use of TRS.)

Subpar performance on any one of these elements could mean trouble in an ADA suit.