There was a time when the internet offered a breathtaking opportunity to watch, listen and learn from lectures on a broad array of academic subjects with just a click. But then, the internet doesn’t work the same for everyone, as some people have abilities that others don’t, which means some have disabilities. That’s an unfortunate reality of humanity, and one which we, as humane and caring individuals, should do as much as reasonably possible to ameliorate.
This has spawned two distinct cottage industries, one to create accommodations for people with disabilities and one to seek out and sue public accommodations that fall short.
The lawsuits came one after the other, against Fordham University, Manhattan College, Long Island University and other area colleges and universities.
In all, eight suits have been filed in federal court in Manhattan over the past two weeks, most recently against Hofstra University on Long Island on Oct. 4. In each case, lawyers for Emanuel Delacruz, who is blind, charged that the college’s website is inaccessible to their plaintiff and therefore in violation of the Americans With Disabilities Act.
The filings are part of a growing number of actions involving accessibility and the internet. The federal law requires that public accommodations be accessible to those with disabilities, and legal battles have long revolved around physical spaces and therefore physical solutions, such as elevators or wheelchair ramps. Now, advocates and lawyers argue, websites are also public spaces and need to be accessible, with things like captions or audio descriptions.
The argument proffered by the disabled is why should they be denied access to things that others are not. The obvious answer is unavailing, since they didn’t ask to be disabled and we, as a society, don’t want to penalize people for reasons such as disability. But laws prohibiting such discrimination are enacted with the best of intentions, evoke strong empathy and seem to reflect a societal concern that most of us embrace.
They are also particularly susceptible to the slippery slope. Notions of reasonableness are superimposed over the mandates at first, so advocates can shrug off claims of absurdity as accommodations spread out and encompass notions that seem ridiculous at the outset.
But as reflected in the Third Circuit’s decision in McGann v. Cinemark, such idealistic laws eventually reach the point of absurdity.
McGann has Usher’s Syndrome Type 1, a sensory disorder. He was born deaf and began losing his sight at age five. He has been completely blind for approximately fifteen years, and he is now considered deaf-blind. There is no single universally accepted method of communication for people who are deaf-blind. McGann generally uses ASL to communicate with others. ASL is a unique language that has its own idioms, grammar, and syntax.
Certainly, McGann is disabled, and deserving of not merely empathy, but accommodation. But how much? At what point does it cross the line into absurdity?
There are numerous methods of ASL tactile interpretation. McGann most commonly uses the hand-over-hand method. The hand-over-hand method involves the recipient placing his hands lightly upon the hands of an interpreter, who is signing in ASL, and reading those ASL signs through touch and movement.
ASL tactile interpretation of a movie includes every possible element of that movie’s content, including visual, aural, and oral components. In addition, because tactile interpretation in almost any venue includes a descriptive component, interpretation of a movie screening will include environmental elements, such as other viewers’ contemporaneous reactions. Given practical limitations, tactile interpreters cannot communicate all elements of a movie verbatim; they must, at times, make judgment calls about what content to skip. But tactile interpretation of a movie does not require any changes to the video or audio content of the movie, the auditorium screens or sound systems, or the physical environment—including the lighting—in or around the theater.
McGann wanted to “see” the movie Gone Girl. His regular theater provided him with a tactile interpreter, but the movie wasn’t playing there. It was playing at a local Cinemark theater, so he asked them to provide him with a tactile interpreter. They refused.
Cinemark had never received a request for tactile interpretation services for a patron who was deaf-blind before McGann’s request. Petengill and Cinemark investigated McGann’s request by contacting the Center for Hearing and Deaf Services (“HDS”), which provided Cinemark with quotes for tactile interpretation services. Rates ranged between $50 and $65 per hour, for a minimum of two hours. Because HDS considered tactile interpretation of Gone Girl a complex assignment, with a duration of over two hours, it would have required two interpreters.
Obviously, the cost to the theater of hiring interpreters far exceeded the ticket price, but then, the ADA makes no distinction based on cost. The district court dismissed the action upon the grounds that this demand was not an “auxiliary” accommodation, using a definition of “auxiliary aids and services” that depended on an extension of primary services, but the Third Circuit reversed.
Entertainment venues, such as concert halls and movie theaters, offer to the public something different than stores offering goods or products for purchase. They offer an entertainment service. As Cinemark acknowledged, customers do not pay these entertainment venues for tickets to sit in an empty auditorium. They pay to experience the entertainment being offered.
The provision of this entertainment service continues after a patron selects a movie of interest, purchases a ticket to that movie, and walks into the auditorium. So, too, does the obligation to provide auxiliary aids and services.
And so, the provision of a tactile interpreter was required by Title III of the ADA. But there remains a condition, a defense, to the requirement.
As discussed, Title III does not obligate a public accommodation to furnish a requested auxiliary aid or service if doing so would “fundamentally alter the nature of the good, service, facility privilege, advantage, or accommodation being offered” or “would result in an undue burden.” 42 U.S.C. §12182(b)(2)(A)(iii). The public accommodation bears the burden of showing either defense.
While the Circuit remanded on the “undue burden” prong, it held that a tactile interpreter was not a fundamental alteration of the nature of a movie.
Cinemark does not dispute that tactile interpretation of a movie does not require any changes to the video or audio content of the movie, the screens or sound systems that present the movie, or the physical environment—including the lighting—in or around the theater. We thus do not see how it constitutes “a modification that is so significant that it alters the essential nature of the . . . services,”
While the tactile interpreter doesn’t change the movie on the screen, McGann wouldn’t actually see or hear the movie, or experience the theater, but only the tactile interpreter. The use of the interpreter would fundamentally alter the service provided McGann such that the experience of the movie, as intended and expressed by its director and actors, would be subject to an intermediary’s interpretation of it, and transmission to McGann. In other words, he wasn’t going to see Gone Girl no matter what, because he was deaf and blind, and the most he could get is an interpreter’s version of the movie.
The same rationale would apply to an art gallery or museum. A concert. Any experience open to the public, but which required the ability to appreciate the sensation the “service” provided. It’s not McGann’s fault for being disabled, or for wanting to exercise his rights under the ADA. It’s not society’s fault for wanting to do better for the disabled than leaving them isolated and deprived of the experiences around them. But is it absurd for an art gallery to be required to provide an accommodation to a blind person because they can’t see a painting?