Fred Cohen
By Fred Cohen
HearingHealthMatters.org has published several posts on the Hearing News Watch blog in recent months discussing various aspects of accommodating hearing-impaired patrons of movie theaters. (See posts from April 5, 2012; May 2, 2012 ; and July 24, 2012. ) None of these focused on litigation in the area and there was no occasion to describe how a state’s anti-discrimination law versus the federal Americans with Disabilities Act (ADA) might be put to use. I will touch upon those two areas here.
The Washington State Communication Access Project (WashCAP) recently prevailed in state court on its claim that hearing-impaired movie theater patrons were entitled to the display of movie captions as a form of accommodation for their disability. WashCAP members cannot understand aural movie content even with the use of an assistive listening device.
Some of the theater owners had already switched to digital projection, which requires no special technology to allow the display of the closed captions of movies that now have the captions already embedded. The last phase of this successful lawsuit was to require the remaining recalcitrant theater owners to get on board.
Interestingly, this lawsuit was brought under the Washington Law Against Discrimination (WLAD) and not the better-known federal ADA. States are free to adopt such laws that may parallel or exceed federal law and many have elected to do so. The ADA is looked to for guidance in a state lawsuit of this type but it is not controlling.
WLAD requires a disability, the business complained of must be a public accommodation, and there must be disability-related discrimination by the business in its failure to provide services to persons with disabilities comparable to those provided to individuals without disabilities. If this sounds like what’s in the ADA, that’s because the Washington State law closely parallels ADA. Reasonable accommodation is what is required and that was the only nagging issue in this case. What is reasonable, of course, will often be in dispute, even among reasonable people.
This decision in the case (Washington State CAP v. Regal Cinemas, Inc., 2012 WL 6098272 [Wash. App. Div. I]) is the first of its kind in that state in requiring that theater operators make screenings of films for which the distributors provided captions understandable to deaf and hard-of-hearing patrons.
It should be noted, that as a state court holding, the ruling is authoritative only in Washington. Also, the issuing court is an intermediate appellate court in Washington; the state supreme court is Washington’s highest court. Nevertheless, the informal influence of this decision will likely go beyond the state’s borders.
There have been a handful of similar ADA-based holdings in various federal courts.
In the Washington case, the theater owners not only lost the case but were also required to pay counsel fees of $404,322 to lawyers for the prevailing party.
THEATER OWNERS MUST DO THE RIGHT THING
I do not have the passion for movies previously confessed by David Kirkwood in discussing these issues. In particular, going out to a movie typically means sitting near people who transport their at-home TV-viewing behavior to the theater and feel free to chat, announce what comes next, snort, or hoot. Thus, I hear too much of what I don’t want to hear and refuse to wear my Bose headphones to the theater.
These accommodation cases, however, are not about perverse folks like me who prefer Turner Classics at home to Cine 1, 2, 3, or 4. Rather, they are about hearing-impaired folks who want to go out to movies and be able to grasp the audio portion. Clearly, theater owners must avail themselves of the new technology and make that happen — and it’s all good.
Meanwhile, I’ll just snuggle by the TV and make my own popcorn.
Fred Cohen, LLB, LLM, Yale Law School, has taught at a number of leading law schools. He was a founder of the Graduate School of Criminal Justice at the State University of New York at Albany. He now serves as the federal court-appointed Monitor in Fussell v. Wilkinson, which encompasses medical and dental care in Ohio’s prisons. He is author of The Mentally Disordered Inmate and the Law and is the editor of Correctional Mental Health Report and Correctional Law Reporter. He is a frequent contributor to Hearing Views.
People with hearing loss in WA state will also triumph if the legislature passes newly introduced House Bill 1356.
However, more support is sorely needed, because this legislation was canned in the past due to lobbying efforts by business groups.