Rights of Deaf and Hard of Hearing People to Accessible Communication

Introduction
Title III of the Americans with Disabilities Act (ADA) gives rights of equal access to places of public accommodation. For deaf and hard of hearing people, Title III requires businesses and agencies to remove barriers to communication.
 
Places Covered by ADA
Title III covers a wide range of places of public accommodation, including retail stores and the wide range of service businesses such as hotels, theaters, restaurants, doctors' and lawyers' offices, optometrists, dentists, banks, insurance agencies, museums, parks, libraries, day care centers, recreational programs, social service agencies and private schools. It covers both for-profit and nonprofit organizations. Unlike the employment section of the ADA, which only applies to employers with 15 or more employees, this part of the ADA applies to all such offices and businesses, regardless of size.
Places of public accommodation must give persons with disabilities equal opportunity to participate in and to benefit from their services. They cannot provide unequal or separate benefits to persons with disabilities. They must modify their policies and practices when necessary to provide equal access to services and facilities.
 
Provision of Auxiliary Aids and Services
In order to provide equal access, all public accommodations are required to provide auxiliary aids and services to ensure effective communication. The ADA also requires removal of structural communication barriers that are in existing facilities, and installation of flashing alarm systems, permanent signage, and adequate sound buffers.
 
The U.S. Department of Justice regulation to Title III of the ADA, 28 C.F.R. Part 36, and the Analysis that accompanies it, 56 Fed. Reg. 35544 - 35691 (July 26, 1991), explain in detail the requirements of the law. Public accommodations are required to provide auxiliary aids to enable a person with disabilities to communicate effectively:
A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. Š36.303(c).
 
Auxiliary Aids and Services
A comprehensive list of auxiliary aids and services required by the ADA for deaf and hard of hearing people includes:
  • qualified interpreters or translators
  • notetakers
  • computer-aided transcription services
  • written materials
  • telephone handset amplifiers
  • assistive listening devices
  • assistive listening systems
  • telephones compatible with hearing aids
  • closed caption decoders
  • open and closed captioning
  • telecommunication devices for deaf persons [TTYs]
  • videotext displays or other effective methods of making aurally delivered materials available to individuals with hearing impairments.
 28 C.F.R. 36.303(b)(1).
The term qualified interpreter is defined in the regulation to mean:
    . . . an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.
 
Need to Consult with Deaf or Hard of Hearing Person to Determine Appropriate Accommodation
 
28 C.F.R. 36.104.
The analysis to this regulation makes it clear that Congress, as well as the Department of Justice, "expects that public accommodations will consult with the individual with a disability before providing a particular auxiliary aid or service." 56 Fed.Reg. at 35567. The Department of Justice also states:
It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication.
 
56 Fed.Reg. At 35567.
The most important consideration is the type of service that will be necessary to give "effective communication" to a deaf individual. For example, in addition to providing an interpreter or translator, it may be necessary to change seating arrangements or lighting so that there is a clear line of sight to the interpreter, and so that the interpreter is clearly visible. Businesses may need to instruct employees to accept TTY relay calls, even though such calls take longer to complete than regular voice calls. Policies and practices may have to be altered in order to provide access. A business that normally would not permit a customer to bring in an animal must give access to "hearing ear" and "seeing eye" dogs.
 
Undue Burden
A public accommodation may deny an auxiliary aid only if it can demonstrate that providing the aid would fundamentally alter the nature of the service, or would constitute an undue burden or expense. If the public accommodation is able to demonstrate that there is a fundamental alteration or an undue burden in the provision of a particular auxiliary aid it must, however, be prepared to provide an alternative auxiliary aid, where one exists. 28 C.F.R. Š36.303(f).
Whether or not a particular auxiliary aid constitutes an "undue burden" is difficult to decide. It depends on a variety of factors, including the nature and cost of the auxiliary aid or service and the overall financial and other resources of the business. The undue burden standard is intended to be applied on a case-by-case basis. Undue burden is not measured by the amount of income the business is receiving from a deaf client, patient or customer. Instead, undue burden is measured by the overall financial impact on the whole entity. Therefore, it is possible for a business to be responsible for providing auxiliary aids even if it does not make a sale or receive income from a deaf customer, if the cost of the aid would not be an undue burden on its overall operation.
 
Who Pays for the Accommodation
The Department of Justice does not permit a public accommodation to charge a person for the cost of the auxiliary aid provided. The Title III regulation states:
A public accommodation may not impose a surcharge on a particular individual with a disability . . . to cover the costs of measures, such as the provision of auxiliary aids . . that are required to provide that individual . . . with the nondiscriminatory treatment required by the Act or this part. 28 C.F.R. 36.301(c).
The cost of interpreters, translators and other auxiliary aids may entitle a business to an income tax credit, as well as the usual business-related expense deduction. Congress has amended the Internal Revenue Code to provide business tax incentives for removing barriers or increasing accessibility. The "Tax Deduction to Remove Architectural and Transportation Barriers to People with Disabilities and Elderly Individuals" (Title 26, I.R.C. Section 190) allows a deduction for qualified barrier removal expenses not to exceed $1500 for any taxable year. The "Disabled Access Tax Credit" (Title 26, I.R.C. Section 44) is available to eligible small businesses. It provides a tax credit of 50 per cent of eligible access expenditures that exceed $250 but do not exceed $10,250, made for the purpose of complying with the ADA. For more information on these tax provisions, contact the IRS, Office of the Chief Counsel, PO Box 7604, Ben Franklin Station, Washington DC 20044, (202) 622-3110 (DC area) or 800-829-1040 (voice), 800-829-4059 (TTY).
 
If You Are Denied an Interpreter or Other Accommodation
If you are denied an interpreter or any other accommodation, it is suggested that you do the following:
  1. Ask for accommodation (yellow card provided by Midwest Center on Law and the Deaf, or in writing)
  2. Get proof of denial - written or verbal - get person's name, date, phone number, reason for denial, etc.
  3. Try again - inform them that there are federal and state laws that protect your rights and that these laws "require" auxiliary aids (such as an interpreter or captioning) for effective communication.  If you need an advocate, contact Kim Eischen at CHS at 773-248-9174 TTY or 773-248-9121 voice.  
  4. Let the place of business know that a complaint will be filed against them for failure to provide appropriate accommodations.
  5. File a complaint.  (See next section below.) 
Contact information for agencies where to file a complaint:
If you need information about filing a complaint, you can contact the Midwest Center on Law and the Deaf at 800-894-3654 TTY or 800-894-3653 voice or mcld1@aol.com .  
 
For complaints related to employment settings, job interviews
Equal Employment Opportunity Commission (EEOC)
              Questions: TTY: 800-669-6820, V: 800-669-4000
www.eeoc.gov
1801 L Street, NW
Washington, D.C. 20507
 
For complaints related to public accommodations (doctors’ offices, businesses) and state and local government offices (police, courts, Social Security, Public Aid, universities
Department of Justice
              To file a federal complaint:
Information Line: 800-514-0383 (TTY), 800-514-0301 (V)
www.usdoj.gov/disabilities.htm
 
Complaints sent to:
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division - Disability Rights Section
New York Avenue Building, Room 4023
Washington, D. C. 20530
 
If you want to speed things up, MEDIATION is much faster with the Department of Justice. Write “Mediation” on the envelope of your complaint to the Department of Justice.
 
Illinois Human Rights Act
To file a charge:
IL Dept. of Human Rights
James R. Thompson Center
100 W. Randolph Street, Suite 10-100
Chicago, IL 60601
TTY: 312-263-1579  V: 312-814-6200
 
Chicago Commission on Human Relations
740 N. Sedgwick, 3rd Floor
Chicago, IL 60610
TTY: 312-744-1088  V: 312-744-4111
 
Cook Country Commission on Human Rights
69 W. Washington Street
Suite 2900
Chicago, IL 60602
TTY: 312-603-1101  V: 312-603-1100
 
For any place receiving federal funds such as Medicare, Medicaid, etc.―this includes hospitals, doctors, drug treatment programs, welfare departments, etc.
Office for Civil Rights
U.S. Department of Health and Human Services
233 N. Michigan Avenue, Room 240
Chicago, IL 60601
TTY: 312-353-5693  V: 312-886-5078

 

 

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