United States: Ninth Circuit Issues Decision Clarifying Businesses Obligations To Persons With Disabilities

Last Updated: August 7 2019
Article by Laura Lawless Robertson

Many employers are familiar with Title I of the Americans with Disabilities Act (ADA), which sets forth employers' obligations to disabled applicants and employees, but the ADA also imposes obligations on businesses that are places of public accommodation – and nearly all are – with respect to their patrons. A recent Ninth Circuit appellate decision, Tauscher v. Phoenix Board of Realtors, Inc., No. 17-17218 (9th Cir. July 25, 2019), offers guidance on the extensiveness of public accommodations' obligations to accommodate their disabled customers.

The lawsuit was brought by a profoundly hearing-impaired licensed real estate salesperson, Mark Tauscher. Mr. Tauscher is unable to hear sounds that are less than 90 decibels, roughly as loud as a lawnmower. He cannot engage in conversational settings or lip-read. His only means of communication with others is through American Sign Language (ASL). Despite these challenges, Mr. Tauscher had successfully navigated the business world, becoming a branch manager for product development for a telecommunications company while pursuing his real estate career.

Mr. Tauscher signed up to attend a continuing education (CE) seminar to maintain his real estate licensure. The CE seminar was offered by the Phoenix Association of Realtors (PAR), a trade association for metro-Phoenix real estate professionals. Before the seminar, Mr. Tauscher asked PAR's Chief Executive Officer to provide him with an ASL interpreter for the course, but PAR declined. Instead, PAR offered Mr. Tauscher a sound-amplifier as an auxiliary aid. Mr. Tauscher declined the offer, as it would not enable him to hear the presenter, even at its maximum amplification. After Mr. Tauscher insisted on PAR's providing him an ASL interpreter, PAR's outside counsel proposed three alternatives: (1) The CE course instructor would be made available to him at breaks to answer questions, but Mr. Tauscher would need to read the presenter's lips to communicate; (2) PAR would allow Mr. Tauscher to bring a friend for free to sign-translate for him; or (3) PAR would allow Mr. Tauscher to fulfill his CE credits online. When Mr. Tauscher rejected each of these options, PAR refunded Mr. Tauscher's $20 registration fee. When PAR responded similarly the following year after Mr. Tauscher attempted to enroll in a different CE course, he filed suit.

The district court granted PAR summary judgment, holding that PAR had met its obligations under the ADA by engaging in a dialogue with Mr. Tauscher about alternative measures, which process Mr. Tauscher defeated by insisting only on one type of accommodation (an ASL interpreter). On appeal, however, the Ninth Circuit disagreed. The appellate court agreed that PAR was not required as a matter of law to provide the precise measure that Mr. Tauscher insisted on – ADA's public accommodations regulations are clear that "the ultimate decision as to what measures to take rests with the public accommodation," 28 C.F.R. § 36.303(c)(1)(ii) – but whatever measure the public accommodation does offer must provide effective communication. The Ninth Circuit concluded that there was at least a disputed issue of material fact as to whether the alternatives PAR presented to Mr. Tauscher were effective given the nature of his disability. The amplification tool was not sufficient given the profundity of his impairment, and he was unable to read lips. The ADA expressly prohibits requiring individuals to provide their own interpreters, so suggesting he bring a friend to interpret for him was unlawful. Finally, the ADA requires that disabled individuals be as fully integrated as possible with non-disabled individuals, so suggesting he take online classes instead of attending live presentations was insufficient to meet PAR's obligations. The Ninth Circuit therefore remanded the case to the district court for further proceedings, including a determination of whether the cost of providing an ASL interpreter (estimated by PAR to be between $1,680 and $3,360 for the course) was an undue burden on the course provider.

Although the lawsuit is not one brought by an employee against an employer, it is nonetheless an instructive one. First, most employers are also places of public accommodation, meaning that they have obligations not only to accommodate employees and applicants with disabilities, but to ensure the accessibility of their businesses to customers and prospective customers with disabilities. This duty imposes obligations ranging from compliant facility and website design, to providing auxiliary aids (as in this case), to allowing specific service animals, to modifying policies and practices to ensure that disabled individuals can partake in the public accommodation in as integrated a setting as possible; yet these responsibilities are often unintentionally overlooked.

Second, and relatedly, the Court distinguished between an employer's obligations to engage in an interactive dialogue to identify a reasonable accommodation from a public accommodation's responsibilities. Unlike in the employment setting – where PAR's discussions with Mr. Tauscher, his refusal to consider any accommodation other than an ASL interpreter, and PAR's conclusion that providing an ASL interpreter was an undue burden relative to his $20 enrollment fee may have been sufficient to satisfy its burden – Title III of the ADA governing public accommodations does not include an interactive dialogue requirement and therefore a public accommodation is not automatically relieved of its obligation to provide appropriate auxiliary aids and services to disabled members of the public if the individual fails to engage in a good faith exploration of what measures would provide effective communication. The decision is thus a timely reminder of businesses' dual obligations to the disabled community – both its workers and its patrons.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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