By D&K’s Labor & Employment Team
The Americans with Disabilities Act (ADA), a federal law designed to eliminate discrimination against individuals with disabilities, contains important requirements on ensuring effective communication with individuals with vision, hearing or speech disabilities.
The Civil Rights Division of the Department of Justice (DOJ) recently issued guidance on the effective communication requirements. DOJ is responsible for implementing Title II (applies to programs, activities and services of public entities) and Title III (applies to public accommodations, commercial facilities and private entities that offer certain examinations and courses related to educational and occupational certification) of the ADA. Title III entities range from hotels, restaurants, bars, theaters, stadiums, convention centers, retail stores, banks, museums, privates schools and exercise facilities to commercial facilities that are intended for non-residential use.
The purpose of the effective communication rules is to ensure that an individual with a disability can receive information from, and provide information to, a covered entity. Covered entities must ensure that communications with applicants, participants, members of the public and companions with disabilities are as effective as communications with others.
Under Title II, that requirement includes providing appropriate “auxiliary aids and services” to ensure an equal opportunity to participate in, and enjoy the benefits of, a service, program or activity. Under Title III, entities must ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary aids and services.
There are many different types of auxiliary aids and services, including qualified interpreters, video remote interpreting, notetakers, transcription services, assistive listening devices, taped texts, audio recordings, Braille materials and various other types of equipment, devices, and services.
Title II entities must give primary consideration to the aid or service requested by the individual, and must honor that choice, unless another equally effective means of communication is available, or the requested aid or service would result in a fundamental alteration or undue burden. Even under that circumstance, however, the Title II entity must still provide an alternative aid or service, if one is available. The DOJ indicates that a department head, or someone in a higher position, should make the determination of whether a particular aid or service will result in an undue burden. The DOJ advises that the decision should be in writing with supporting reasons. The decision maker should consider the cost in light of all funding resources available and the effect on other expenses or operations.
Under Title III, however, entities are encouraged to consult with the individual to determine what aid or service is appropriate. Title III entities must provide an appropriate auxiliary aid or service unless it would result in a fundamental alternation or significant difficulty or expense. However, if unduly burdensome, another effective aid or service must still be provided, if possible. A Title III entity should consider the nature and cost relative to its size, and overall financial resources and expenses. In addition, a parent company’s size, resources and expenses should also be considered.
The responsibility to provide effective communication rests with the covered entity, but a covered entity may rely on a companion (family member, friend or associate) of an individual with a disability under limited circumstances. First, in the event of an emergency involving an imminent threat to the safety or welfare of an individual or the public, a covered entity may rely on an adult or minor child accompanying an individual who uses sign language when a qualified interpreter is not available. Second, if there is no imminent threat, a covered entity may rely on an adult accompanying an individual who uses sign language when the person requests it, the accompanying adult agrees and it is appropriate under the circumstances. However, reliance is not appropriate if there is reason to doubt the impartiality or effectiveness of the accompanying adult. In addition, the second exception does not apply to minor children. If neither of these exceptions apply, the covered entity cannot rely on the individual with a disability to provide his or her own interpreter.
Covered entities should ensure that staff are properly trained on these requirements. The failure to take necessary steps to ensure effective communication with individuals with communication disabilities may result in a violation of the ADA.
This article was published on May 5, 2014 in The Business News.