Is your theatre or production in danger of an ADA lawsuit?

If you produce or operate a venue that houses Movies, concerts, or performing arts works, like theatre, comedy or spoken word performances, you  may not be aware of the scope of  the Americans With Disabilities Act (ADA), which  requires that you make reasonable accommodations for people with disabilities.

Sure, we've all  made entryways wider, installed ramps, and configured seating to allow for patrons in wheelchairs.  But what about those patrons with less obvious disabilities, such  as deafness and blindness?

Growing threat of lawsuits

Recently, a number of Disability Rights Advocates announced that they and their “public interest” attorneys would soon be turning their attention to “the theater industry”.   Their concern?  Closed Captioning for hearing impaired patrons.

Last November,  a disability rights group filed a class action against Cinemark theatres over this issue.    They claim that,  “Over two-thirds (2/3) of Americans attend movies each year. Yet without some form of captioning, countless seniors and those with hearing loss, cannot enjoy at trip to the movies because they are unable to hear or understand the dialogue.”  Their suit contends that by not providing  Closed Captions, Cinemark’s they are engaged in discriminatory practices that violate the Unruh Civil Rights Act (California Civil Code sections 51 and 52), which prohibits discrimination on the basis of disability, the Disabled Persons Act (California Civil Code section 54.3), and the Americans with Disabilities Act.

In the world of live theatre, it's not uncommon to see a live sign-interpreter for certain shows and/or specific performances… but should it be required for all performances?  Should closed-captioning become the standard?

The Americans With Disabilities Act

Enacted in 1990, the Americans with Disabilities Act was created to ensure equal access to “public accommodations” for disabled Americans. Movie, concert, and performing arts theaters qualify under law as “public accommodations.”

As such, they must ensure that no individual with a disability may be “treated differently than other individuals because of the absence of auxiliary aids and services.” Included in examples of “auxiliary aids and services” are closed captions, rear-window captioning and open captioning for individuals with hearing impairments.

“Closed Captions”  allow  viewers to optionally  see subtitles  providing on-screen text descriptions of dialoge and other sounds.  Open captions  are on-screen all the time and visible to all viewers.  Live sign-language interpreters are similar in character to open captioning, since they're visible to all viewers.

So, does the ADA require theatres to provide closed captioning?

By law, theaters must provide auxiliary aids and services (such as the common “Assistive listening devices” providing an amplified signal and headphones); however, public accommodations are not required to make every possible device available or to meet the specific, specialized needs of individual customers.

As a safeguard for theaters, the ADA also maintains that if provision of a particular auxiliary aid or service would result in a fundamental alteration of goods, services, or in an undue burden, i.e., significant difficulty or expense, the ADA would allow an alternative auxiliary aid or service, if one exists, which would ensure equal facilitation to the maximum extent for disabled individuals.

The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length and complexity of the communication; and the context which the communication is taking place.

So, closed captioning systems, which may be much more expensive than the headphone-style devices are probably NOT required for most theatres, and in facilities where sign-interpeters are provided, even those devices may not be required.

First Amendment Considerations

Some producers and venue operators have argued that requiring any form of captioning, sign-interpretation, or other assistance amounts to a “fundamental alteration” in the presentation, and that a law mandating such accommodations violates their First Amendment right to free expression.   Their argument goes something like this…  If we provide a sign interpreter, it requires a lighted position on stage, so it affects our scenic and lighting design and distracts other patrons.  If we provide open captioning, it involves projecting the text above the proscenium, disturbing the other patrons, and distracting from the action on stage.  Closed captioning systems are expensive and involve  display screens that spill light into the auditorium and  distracting other patrons.  So, they argue, there really is no good, alternative accommodation.

But this argument hasn't yet been tested in the Courts.  Such questions are subject to a so-called “strict-scrutiny” consitutional analysis, which requires that the restraint on speech be narrowly tailored to achieve a compelling governmental interest, and must be the least restrictive alternative to achieving those goals.

Conclusion

Ultimately, it's the responsibility of theatres and producers to consider the issues, and make sound business (and artistic) decisions about how best to accommodate  persons with disabilities.  While it is inevitable that theatres will see more litigation over ADA issues, Theatres that demonstrate  that they've investigated the options, and consulted with individuals with disabilities to determine what type of auxiliary aids of services are needed to ensure effective communication, will encounter fewer issues.

As always, it's wise to consult with an attorney knowledgable about the law governing theatre operations before making these decisions.  I'm always glad to consult on these issues, and can be reached at 310-443-4185.

Note: Many theatre companies have found audiences very receptive to sign-interpreters and/or open captioning. It's anything but certain that the “distraction” created by the availability of accommodations for disabled persons isn't outweighed by the positive public-relations value to being perceived as a good public citizen and steward of the arts.

Related articles

• New Guide Gives Practical Tips for Disabilities Act Compliance — The Chicago Community Trust Publishes New Tools For Nonprofits and Others (prweb.com)
• Theater chain sued over lack of captioning (sfgate.com)
• ADA Blues: …a disabled person who believes he… (sf.curbed.com)
• Government wants to update ADA for cyberspace (seattletimes.nwsource.com)
• Deaf moviegoers sue Cinemark theater chain (seattletimes.nwsource.com)