Court Holds that Federal Law Requires Theater to Provide Disabled Patron with Tactile Interpreter
by Jerry Glover
November 9, 2017
The U.S. Court of Appeals for the Third Circuit recently decided that the Americans with Disabilities Act, 42 U.S.C. Sec. 1201 et seq. (the ADA) requires a movie theatre to provide a deaf and blind patron with what is known as a tactile interpreter so that he could enjoy a movie playing at that theatre. McGann v. Cinemark USA, Inc., 873 F.3d 218 (3d Cir. 2017). The question the court had to decide was whether the law’s requirement to provide “auxiliary aid or service” included tactile interpreters.
The plaintiff typically used American Sign Language (ASL) to communicate which has its own idioms, grammar and syntax. He most commonly used what is known as the hand-over-hand method of tactile communication. This method involves the plaintiff placing his hands lightly upon the hands of an interpreter who is signing in ASL. The plaintiff reads those ASL signs through touch and movement. For a movie, ASL includes every element of the film’s content including visual, aural and oral components. The reaction of other movie patrons to the film will also be included through the interpreter. No changes to the film or the theatre are needed for ASL to work.
In 2014, the plaintiff decided to see the film ”Gone Girl”. He contacted a Cinemark theatre in his area and requested tactile interpretation services. He received no response. After trying to contact the theatre again, he was referred to a paralegal in the theatre’s Texas corporate office. The paralegal contacted the Center for Hearing and Deaf Services for quotes on the cost of tactile interpretation services. They were told rates ranged between $50 and $65 per hour for a minimum of two hours. The Center said that the film would require two interpreters since it was a complex assignment. Cinemark denied plaintiff’s request claiming that the ADA did not require the theatre to provide him with these types of services. By the way, this was the first request for tactile services Cinemark had ever received.
Plaintiff sued. The trial court found for Cinemark holding that a tactile interpreter was not an “auxiliary aid or service” required by the ADA noting that the theatre had not prohibited the plaintiff from entering the theatre because of his disability. Plaintiff appealed.
Title III of the ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” A motion picture theatre is a place of public accommodation. Although the word “discriminate” is not defined by the statute, other provisions in the law provide broad categories of conduct that constitute discrimination including denying an individual on the basis of a disability the “opportunity to participate in or benefit from the goods or services of a public accommodation.” Federal regulations have attempted to interpret the federal law including one that requires places of public accommodations to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” The only way to avoid this regulation’s requirement is for the place of public accommodation to show that providing a particular auxiliary aid or services would alter the nature of the good, service, or facility or result in an undue burden.
Another regulation requires a place of public accommodation to furnish auxiliary aids and services where necessary to ensure effective communications with individuals with disabilities. “Auxiliary aids and services” include qualified interpreters or other effective methods of making aurally delivered materials available to individuals with earing impartments and qualified readers or other effective methods of making visually delivered materials available to individuals with visual impairments. Regulations go further and note that on-site interpreters may be used
A Department of Justice pamphlet was issued to provide guidance for working with people who are hearing and vision impaired and that pamphlet mentioned using tactile interpreters.
The appeals court noted that the trial court looked to the dictionary to define “auxiliary aid” as something that has a supplemental relationship to something else, not something that is altogether new or different. Since the theatre did not already provide tactile interpreters, they would be a new, not supplementary service. But the court noted that if this definition of “auxiliary” was accepted then the law’s mandate to provide auxiliary services would be avoided if a place of public accommodation, like a theatre, did not already offer the service since providing tactile interpreters would be a new service not a supplemental service. And beyond that, the court noted that the trial court did not need to look to the dictionary for the definition of “auxiliary” since the ADA already states that interpreters are included within the definition of “auxiliary aid or service.”
Finally the appellate court noted that different places of public accommodations may not be required to supply the same auxiliary aids and services as other places of public accommodations. The court used bookstores as an example. It noted that a bookstore offers customers the ability to select and purchase books from the store’s shelves and inventory but it does not have to offer Brailled versions of books if doing so would require altering the mix of goods provided. But, the court continued, a bookstore cannot prevent a disabled customer from perusing the store’s existing selection or purchasing whatever book he/she chose even if the store had to provide an auxiliary aid to assist a blind customer so that he/she is not excluded from the bookstore.
But entertainment venues offer something different to its patrons than stores that offer goods or products for purchase, the court continued and that difference is entertainment service. The court explained that customers do not pay for a ticket to a movie theatre to sit in an empty auditorium; they pay to experience the entertainment being offered. The obligation to provide a service for patrons who have purchase tickets includes the obligation to provide auxiliary aids and services to the disabled.
The court claimed that the ADA was an attempt to stop the isolation and seclusion of a population of people with disabilities who did not frequent places of public accommodations b4ecjuas3e of communication barriers. Congress found that people with disabilities did not go to the movies, the theatre, musical performances and sports events. Merely directing a blind/deaf person to the correct auditorium to “see” a movie is meaningless if that’s all the law requires.
Cinemark also argued that a requirement to provide tactile interpreters would result in a fundamental alteration of the goods and services provided by Cinemark. But Cinemark did not claim that the use of tactile interpreters would require any change to a motion picture, the screens or sound systems. So, the court did not agree that requiring a tactile interpreter was a modification so significant that it altered the essential nature of Cinemark’s services.
What does this mean for live theatre venues? The court’s rationale in this case would seem to apply equally to live theatre presentations. Theatres are often leased by producers. Would the producers, rather than the theatres, be liable under the ADA. How about sporting events? Would the owner of the arena or the owner of the teams playing in the arena be liable under the ADA?
In an interesting coincidence New York City’s Broadway League has just announced a new initiative to use technology to better serve deaf/blind audiences via mobile devices and headsets beginning January 1, 2018. Nothing in this announcement included assistance for those who are both blind and deaf.