Open for Business: The ADA and Hearing Loss ~ Maggie Sims

Under the Americans with Disabilities Act (ADA), public accommodations must provide effective means of communications for persons who are deaf or hard of hearing to ensure an equal opportunity to enjoy the goods and services offered.

What is a place of public accommodation?

Places of public accommodation consist of over five million private establishments. These include restaurants, hotels, theaters, convention centers, retail stores, shopping centers, dry cleaners, laundromats, pharmacies, doctors’ offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, day care centers, health spas, and bowling alleys. Entities controlled by religious organizations, including places of worship, are not covered.

A public accommodation must provide “auxiliary aids and services” that are necessary to ensure equal access to the goods and services that it offers, unless an undue burden or a fundamental alteration would result.

Who is entitled to auxiliary aids?

Individuals with disabilities such as vision, hearing, or speech impairments that substantially limit the ability to communicate.

In order to provide equal access, a public accommodation is required to make available appropriate auxiliary aids and services where necessary to ensure effective communication. The type of auxiliary aid or service necessary will vary in accordance with the length and complexity of the communication involved.

Example 1: Mary, an individual who is deaf, is shopping for film at a camera store. Exchanging written notes with the sales clerk would be adequate to ensure effective communication.

Example 2: Mary then stops by a new car showroom to look at the latest models. The car dealer would be able to communicate effectively general information about the models available by providing brochures and exchanging notes by pen and notepad, or perhaps by means of taking turns at a computer terminal keyboard. If Mary becomes serious about making a purchase, the services of a qualified interpreter may be necessary because of the complicated nature of the communication involved in buying a car.

Who decides what type of auxiliary aid should be provided?

Public accommodations should consult with individuals with disabilities wherever possible to determine what type of auxiliary aid is needed. In many cases, more than one type of auxiliary aid or service may make effective communication possible. While consultation is strongly encouraged, the ultimate decision as to what measures to take to ensure effective communication rests in the hands of the public accommodation. But the method chosen should result in effective communication.

Example: A patient who is deaf brings his own sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter. In this case, the physician is not obligated to pay for the interpreter. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary to ensure effective communication. If the patient believes that the physician’s decision will not lead to effective communication, then the patient may challenge that decision by initiating litigation or filing a complaint with the Department of Justice.

Who is a qualified interpreter?

When an interpreter is required, the public accommodation should provide a qualified interpreter. That is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.

Can a public accommodation use a staff member who signs “pretty well” as an interpreter for meetings with individuals who use sign language to communicate?

Signing and interpreting is not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs. The interpreter must be able to interpret both receptively and expressively.

If a sign language interpreter is required for effective communication, must only a certified interpreter be provided

No. Under the ADA , the key question in determining whether effective communication will result is whether the interpreter is “qualified,” not whether he or she has been actually certified by an official licensing body. A qualified interpreter is one “who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary.” State laws may provide more strict requirements, such as certification. The more stringent law would apply.

What are examples of auxiliary aids and services?

Auxiliary aids and services include a wide range of services and devices that promote effective communication. Examples include qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TTY’s), videotext displays, and exchange of written notes.

When are TTY’s required?

In order to ensure effective communication by telephone, a public accommodation is required to provide TTY’s in certain circumstances. Because the relay system (required by Title IV of the ADA ) eliminates many telephone barriers to TTY users, a TTY is not always required.

On the other hand, if customers, clients, patients, or participants are permitted to make outgoing calls on “more than an incidental convenience basis,” a TTY is required. For example, TTY’s must be made available on request to hospital patients or hotel guests where in-room phone service is provided. A hospital or hotel front desk should also be equipped with a TTY so that patients or guests using TTY’s in their rooms have the same access to in-house services as other patients or guests.

What about closed-captioning?

Hospitals that provide televisions for use by patients and hotels, motels, and other places of lodging that provide televisions in five or more guest rooms must provide closed caption decoder service upon request.

What are the limitations?

A public accommodation is not required to provide any auxiliary aid or service that would “fundamentally alter the nature of the goods or services offered or that would result in an undue burden.”

However, if a particular auxiliary aid or service would result in a fundamental alteration or undue burden, this does not necessarily relieve a public accommodation from its obligation. The public accommodation must still provide an alternative that would ensure effective communication, if one is available.

Example: It may be an undue burden for a small private historic house museum on a shoestring budget to provide a sign language interpreter for a deaf individual wishing to participate in a tour. Providing a written script of the tour, however, would be an alternative that would be unlikely to result in an undue burden.

What is a fundamental alteration?

A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.

What is an undue burden?

Undue burden is defined as “significant difficulty or expense.” Among the factors to be considered in determining whether an action would result in an undue burden include the nature and cost of the action; the overall financial resources of the site or sites involved; and the relationship to any parent corporation or entity.

If you have questions about the ADA , feel free to give the ADA and IT Center a call at 800-949-4232 (V, TTY). You can also visit the website at www.adainformation.org, or visit the ADA search portal at www.ADAportal.org.

Rocky Mtn ADA & IT CenterMaggie Sims is an Information Specialist at the ADA and IT Center and is also the mother of an adult son who is deaf. She has written a series of articles on the ADA for Hands & Voices.