“Court: Movies must be accessible to hearing, visually impaired”

by Walter Olson on June 21, 2010

The Ninth Circuit greenlights a potentially significant ADA suit, reversing a trial court that “found that the Americans with Disabilities Act and the Arizonans with Disabilities Act do not require movie theaters to provide captions and descriptions.” [Yuma Sun, Legal NewsLine]

{ 1 trackback }

Simple Justice
06.21.10 at 7:33 am

{ 54 comments }

1 Richard Nieporent 06.21.10 at 7:14 am

The infamous 9th Circuit Court of Appeals strikes again.

The lawsuit filed by the state Attorney General’s Office said none of the 262 screens the company operated at the time … offered “closed caption” technology where hearing impaired patrons can get special equipment that displays the dialog being spoken by actors on the screen.

And Daly-Rooney said there are no options at all for those who are visually impaired: None of the Harkins theaters offers “descriptive narration,” where someone describes the action occurring on the screen to those who are blind or have limited vision.

I think the movie theater should hire Garrett Morris for the hearing impaired and Marcel Marceau for the visually impaired.

But Silver said Harkins is not excluding anyone. She said what the Attorney General’s Office wants amounts to requiring the theater chain to offer entirely different services to those with hearing and vision problems, something she said the law does not require.

Exactly.

2 Jackie Chiles 06.21.10 at 10:21 am

I hope the National Park Service has personnel to provide descriptive narration at the Grand Canyon, Yellowstone, etc.

3 rxc 06.21.10 at 11:03 am

What are they going to do about those scenes that are “too beautiful to describe”, or just plain undescribable? If the descriptions will just be factual, how will they convey the emotional message that the tone of the actors, and the music, or the gorgeous scenes, try to provide?

Maybe bakeries and restaurants should also be required to provide alternative sensory input for people who have lost their sense of taste or smell.

And what are sympyony orchestras supposed to do?

And then there is the generic question of radio – why do we continue to allow a form of communications that inherently leaves out hearing imparied people?

4 Aaron Worthing 06.21.10 at 12:01 pm

Well, as usual the press manages its usual quality in legal reporting.

They did not say they must provide captions. They said that not providing them did exclude the deaf and the blind. Which is true, right, folks? You aren’t going to sit there and pretend that deaf people can equally enjoy an uncaptioned movie, right?

So it goes back to the courts to figure out of the disability can be reasonably accommodated. Financial burden is a defense, as is a claim that it fundamentally alters the experience.

I frankly have little sympathy with either argument, at least vis-à-vis the deaf. I mean, why not just caption every movie? I mean crap, my hearing is perfect, but I almost always turn on the captions at home. And let me tell you, “Monty Python and the Holy Grail” is a revelation when you have the captions on. You wouldn’t believe how much crud you miss.

As for the descriptive thing, if the blind can use it without annoying the other patrons too much, and without it costing too much, why not?

But the theater owners wanted to say that even if it didn’t cost too much and even if it didn’t alter the experience, they shouldn’t have to do it. That seems to be a textbook example of unreasonableness.

5 Aaron Worthing 06.21.10 at 12:04 pm

rxc

> What are they going to do about those scenes that are “too beautiful to describe”, or just plain undescribable?

We are talking about hollywood, right? since when has anything they made reached those heights?

Its probably going to be more like this: “big explosion. Close up of Meghan Fox’s clevage. two robots waiting on each other. more Meghan Fox. Ah, f— if i know what i am looking at, its pretty confusing, but don’t worry the sighted people won’t understand it either.”

6 Jack Wilson 06.21.10 at 12:33 pm

These sorts of things remind me of Gulliver’s Travels – Gulliver visits an island ruled by liberals who build houses from the roof down.

7 Aaron Worthing 06.21.10 at 1:37 pm

jack

so let’s just take the deaf issue on. You feel that even if it is not a burdensome cost, and even if it doesn’t change the experience, the movie theaters shouldn’t do it?

8 kimsch 06.21.10 at 2:15 pm

For the hearing and sighted captions can be quite distracting. Do you watch the movie or read the captions?

9 Aaron Worthing 06.21.10 at 4:21 pm

Well, lord knows, let’s make sure every deaf person is excluded from the movie theater so you don’t have to ignore those words. *rolls eyes*

Sorry, but that seems monumentally selfish to me.

10 Bill Alexander 06.21.10 at 4:23 pm

If captions are visible to all, I for one would find them distracting, and would go to even fewer movies. I expect I am not the only one, so there would probably be considerable financial consequences for the theaters.

11 D 06.21.10 at 5:07 pm

If someone needs a different experience than me, let them get it a different way. When someone figures out an economically viable way of catering to the blind and deaf audience (like Feel-o-Vision: “ow, that dagger in the back hurts!”), let the profits rain. Please don’t tell me that every person is entitled to every entertainment they can imagine.

The only reason I go to a theatre is for an experience I can’t get from a DVD. I can’t stand subtitles, especially the ones that just say *boom!*, *crash!*, *cleavage!*

12 BHR 06.21.10 at 5:56 pm

From behind you at the next Michael Bay/McG movie..

“shit blew up. More shit blew up. Jiggling Boobs. Shit blew up. Implausible physics allow hero to escape as shit blew up, Jiggling Boobs. Shit blew up. Jiggling Boobs. Running running running. Panic looks while they pant. Jiggling boobs blow up”

13 Aaron Worthing 06.22.10 at 7:29 am

Bill, D,

Again, get over yourselves. I mean, sheesh weren’t you taught in kindergarten to share?

Next you will say the sign language interpreters should be banned from church. in fact, why don’t we just segregate the deaf from us completely?

What a bunch of whininess… “oh, i can’t stand to see words on the screen and i can’t just not look at them.” God forbid you be asked to make any sacrifice at all to include others in your fun.

14 Reformed Republican 06.22.10 at 7:46 am

I am not a supporter of these requirements for theaters, but I will add that captions can be done where not everyone can see them. It is done at movie-like theme park attractions, like Shrek 4D. They are displayed as a mirror image in the back of a theater, and patrons are provided with a mirrored viewer so they can see them.

Here is the wikipedia article: http://en.wikipedia.org/wiki/Rear_Window_Captioning_System

15 Jack Wilson 06.22.10 at 9:48 am

I don’t know why I insist on frequenting this website, the most depressing site on the web.

16 Jackie Chiles 06.22.10 at 1:42 pm

Superb job of avoiding the ad hominem and straw man arguments, Worthing, old man. Top notch.

17 gitarcarver 06.22.10 at 2:19 pm

God forbid you be asked to make any sacrifice at all to include others in your fun.

You do realize that there is a difference in being asked to make a sacrifice and some court telling you that you have to make that sacrifice, right?

18 Aaron Worthing 06.22.10 at 3:44 pm

Jackie

When you personalize your argument on one side, by saying, “I am irritated, and I don’t want it” its kind of hard not to reply in a personalized way, now isn’t it?

Gitar

> You do realize that there is a difference in being asked to make a sacrifice and some court telling you that you have to make that sacrifice, right?

Telling you based on a law passed overwhelmingly by both parties. I think maybe there were 7 votes against the ADA.

If you don’t like it change the law. But I have to say, this is petty selfishness, here. You know there are people in the world besides you, and common courtesy should have made us glad to see captions in movies, to demand it even. We should want deaf people included in our lives as equals, as much as humanly possible. The fact we need a law and even a lawsuit is a pretty significant indictment on the morality of everyone involved just as much as the fact that there was racial segregation in many place for my parents’ generation is an indictment on them.

Yes, we have too many laws, but sometimes we have too many laws because our own sense of Christianity fails us. ‘Do onto others as you would have done to you. So if you were deaf, would you want to be segregated, or possible even excluded entirely, from the movie theaters? Or would you want to be included?

God forbid your hearing goes bad as you get old.

Again, no sympathy for the movie theater. I find it utterly implausible that they can’t at least have the kind of captions everyone can see. And it is correctly pointed out that you can also use equipment to include captions that only those who want to see can see.

19 J.T. Wenting 06.23.10 at 2:46 am

“If captions are visible to all, I for one would find them distracting, and would go to even fewer movies. I expect I am not the only one, so there would probably be considerable financial consequences for the theaters”

Indeed. On DVDs (and where possible on television) I turn them off if I know the language of the spoken text at all.
They’re not only distracting, but usually completely and utterly wrong.
Monty Python and the Holy Grail was mentioned, and is a case in point. The captions there don’t convey the spoken text at all. Of necessity parts of the narrative have to be removed in order to fit it all in 2 lines of text.

And how do you caption the music and background noise which often are essential?

Let’s face it, movies are not going to be enjoyed identically by people with hearing and visual disabilities as compared to those who don’t have such disabilities.
Either the court (by allowing this case to go forward at all, I’d have arrested those bringing it for contempt of the court had I been a judge) and those bringing it are blabbering idiots or their intent is to destroy a means by which people have a good time: watching movies.
And of course once movie theaters are destroyed, the movie industry is pretty much gone as well. There will be fewer DVD and television releases, especially of movies of the kind that now rake in big bucks on the big screen.

20 J.T. Wenting 06.23.10 at 2:52 am

“God forbid your hearing goes bad as you get old.”

My father’s hearing is quite bad. He doesn’t go around demanding the entire world changes to accommodate him, and I’m sure most hearing impaired would find the ADA application here utterly idiotic.

Are there some deaf or blind people who’d want the entire world to change whatever it is doing so they’re not “left out”? Sure. But the majority of them learn to cope without annoying the heck out of others.
I’ve a bad back, I don’t expect every chair to be specially designed so I can sit on it for more than 10 minutes without having agonising pain for days after.
Under the ADA I could probably demand just that. I won’t, and none of my colleagues and friends with back problems would ever consider doing that. We’re happy if accommodations are made for us at our workplace (which is good business, prevents us from being on sick leave for a week after every day in the office) but we don’t expect restaurants to do the same. If we can’t find a good place to sit somewhere, we just go elsewhere.

21 gitarcarver 06.23.10 at 6:58 am

Telling you based on a law passed overwhelmingly by both parties. I think maybe there were 7 votes against the ADA.

So this isn’t a “moral” position to you, is it? It is the rule of law that matters and that is it. Or is it?

‘Do onto others as you would have done to you.

Now please tell me where Christ said that “do unto others” should be done at the edge of a judicial sword? Or did you forget the “render unto Caesar that which is Caesar’s” part of the Bible?

Again, no sympathy for the movie theater.

Of course you don’t. You don’t own the theater. It isn’t your money that is being taken. Now I suspect that if I were to walk through your home, there would be a lot of things that I could find that don’t comply with the “moral” spirit of the ADA. The handles on your doors are all the lever type, correct? You have an elevator to get up to the second floor, right? Your bathrooms have grab bars and the mirrors are all at a certain height, right? Got a ramp leading up to your door?

You don’t?

Aren’t people that are disabled allowed in your home? Are you actively segregating them from entering your home? I am aghast I tell you. Aghast!

It is easy to demand that others follow some moral code that you do not wish to follow.

And that is the problem, isn’t it? When the discussion turns to the moral part of the issue, you will rely on “the law.” When the law is discussed, you will attempt to use some sense of morality to make your point. All the while, you will be pointing fingers at people while your residence does not comply with the very morals you demand of others.

It is easy to play with other people’s money, isn’t it?

22 Bob Lipton 06.23.10 at 8:02 am

Again we have the reductio ad absurdum position that because we do not make everything mandatory we are absolutely opposed to anyone doing it. I am fat, so every clothing store should be required to carry my size in clothing. I have size 15 feet, so any shoe store that doesn’t carry shoes I can wear should be put out of business. My youngest nephew is allergic to eggs, so they should be banned.

No. If I sdon’t fit the standard mold, I go in search of what I need.

Anyway, movies are inherently discrimatory to the blind. Let’s ban them entirely.

Bob

23 Aaron Worthing 06.23.10 at 8:36 am

A few points.

I never said that accommodations must be done at all costs. I have specifically said from the beginning that cost can be considered. So Gitar, you can stop killing that straw man, as you always do when we debate this.

Captioning—the kind seen by everyone—is actually very cheap. Indeed, often outside sponsors will pay for the captioning in order to generate positive feelings in the community.

The chief objection to that, however, is aesthetic whininess. “I don’t like to see words on my screen.” I wonder if you extend the same principle to other subjects? Can a person then say, “I don’t like looking at black people, so I want my movie theaters to be segregated.” Of course there is a legal issue, but wholly apart from that, morally do you think we should exclude people due to that kind aesthetic concern? Or should we say, “everyone is welcome”?

“I don’t want a wheelchair ramp, because I think they are ugly!” “Ah, the sound of your electric wheelchair is giving me a headache! Get out and crawl on your belly. And please, don’t grunt so loud!” “Oh God, that red and white cane’s colored so garishly!” It’s all whiney, irrational inflexibility showing a complete lack of concern for others. Its selfish and vile.

Really, if you think every single deaf person should be segregated from your movie-going life, not because of cost, but because you can’t stand to watch words on the screen, I have to question if you have any basic compassion for deaf people at all. And it makes me wonder if you care enough about deaf people to p-ss on them if they are on fire.

24 Aaron Worthing 06.23.10 at 8:37 am

wow, bob, you dun killed that straw man good.

25 gitarcarver 06.23.10 at 9:05 am

I have specifically said from the beginning that cost can be considered. So Gitar, you can stop killing that straw man, as you always do when we debate this.

And I have never said costs are an issue other than to say that a company must bear them. So you can stop killing that straw man as well.

The chief objection to that, however, is aesthetic whininess.

You mean market preferences should never have a bearing on what services and goods a company provides? Even so, do you really think that if there we no costs to providing closed captioning and other services, movie theaters would object to this? There is a cost element to the objection, no matter how hard you try and dismiss it.

Tell me Mr Worthington, what is your objection to requiring the service to be paid for by those who use it?

Really, if you think every single deaf person should be segregated from your movie-going life, not because of cost, but because you can’t stand to watch words on the screen, I have to question if you have any basic compassion for deaf people at all.

I am sorry, but this is laughable. No one is segregating anyone from using public facilities. No one is saying “hey, you can’t come in here!” based on any real or perceived disability.

And it makes me wonder if you care enough about deaf people to p-ss on them if they are on fire.

Here we go again. Because you cannot support this by any rational means, you resort to petty name calling and mis-characterizations.

There is a fundamental difference that you fail to realize in this debate. There is nothing wrong when a person says “I need or want this and I am going to pay for it.” There is something wrong when a person says “I need or want this and you have to pay for it.”

26 Aaron Worthing 06.23.10 at 9:27 am

Gitar

> And I have never said costs are an issue other than to say that a company must bear them.

That’s right. You never pretend that cost is an issue; you pretend that we are not allowed to consider it at all, or that I am arguing that.

> You mean market preferences should never have a bearing on what services and goods a company provides?

In a contest between excluding a whole class of people, on one hand, and bowing to aesthetic whininess on the other, its not even a close call.

I am big on free markets but it’s an absolute fact that sometimes businesses are obstinate and irrational, because they are run by human beings. There is the famous example of the business owner who thought it was ridiculous to be forced to put in wheelchair ramps because handicapped people never went into his store.

I mean there was a time when it was downright common to say that just because a man is black, he is unqualified for certain jobs. And ditto for women. Would you say those market actors had been rational?

And of course if there is any cost to the accommodation—such as a mere wheelchair ramp—it will be uniquely hard to get a business to invest the money. They will face certain costs, with uncertain benefits. But if you say “every business will have to do it,” then it just becomes a cost of doing business, like the need to buy insurance or assure there are a certain number of restrooms.

People keep saying that a movie theater will lose business if they have to caption. Really? If every movie theater had to caption, you would boycott Iron Man 2 (or name a movie you do like, if not IM2)? I highly doubt it.

> what is your objection to requiring the service to be paid for by those who use it?

So I am sure you will be sure to avert your eyes when the captions are on the screen, right?

And, incidentally, if the court decides that its an undue burden for financial reasons, than the handicapped people can offer to pay to diffuse it.

> No one is segregating anyone from using public facilities. No one is saying “hey, you can’t come in here!” based on any real or perceived disability.

Ah, so you are going to pretend that when you leave out captions that this is not excluding the handicapped. Pathetic.

“Look, my company doesn’t exclude jews. We just demand that everyone work on Saturday and eat a steady diet of pork products.” *rolls eyes*

> Because you cannot support this by any rational means

Lol, you guys have been arguing that there shouldn’t be captions because you can’t stand to see words on the screen and I am the irrational one? Heh.

27 Frank 06.23.10 at 9:36 am

It is hard to nail down anything close to an exact number for the deaf population in the U.S. Estimates range from .18% of the population (Gallaudet U.) to 10% (Wiki-answers).

IMO Gallaudet, as the leading institute foof higher education for the deaf community, should be considered reliable in its information, so I will use its estimate in addressing “selfishness” here.

Other internet info states that the average capacity of a movie theater in the US (including multi-plexes) is 200-300. Let’s call a full house 200 people. .0018 (.18%) of 200 is .36. So in every 3 full houses, 600 people there is a chance , on average, that 1 deaf person may be in attendance. (That is assuming that the deaf population is as likely as the hearing to attend movie theaters.)

It is somehow selfish for those 600 people to want to see the movie as the director and cinematographer designed it even though one other person would not be able to do so; it is not selfish for one person to say to the other 600, no, my way or the highway.

Selfishness has changed since my youth.

(Open captioning does seriously negatively impact the visual design of a movie)

(I work in amateur theater and several times I have worked with what are known as “shadow” interpreters – sign language interpreters who actually appear on stage with the actors. I have also seen such productions as audience member. It is said to be better for the deaf audience than standard interpreting off-stage. I very much dislike it and feel that it ruins a production by interfering with the suspension of disbelief and the “fourth wall”.
The company markets these shows heavily within the deaf community. In my opinion, we present a flawed product, detracting from the enjoyment of the cast and the greater audience for the benefit of a couple of people. (Of course not all actors or audience agree)

28 Bill Alexander 06.23.10 at 10:13 am

“People keep saying that a movie theater will lose business if they have to caption. Really? If every movie theater had to caption, you would boycott Iron Man 2 (or name a movie you do like, if not IM2)? I highly doubt it.”

So you are saying if someone with tourettes sitting in the front row and yelling obscenities wouldn’t impact your enjoyment of the show?

Personally, I know I would go to fewer movies if there are open captions. So, in addition to any expense the theater has (which is passed on in higher prices) they will lose some of my business. I doubt if I am alone in not seeing as many movies.

29 gitarcarver 06.23.10 at 10:31 am

That’s right. You never pretend that cost is an issue; you pretend that we are not allowed to consider it at all, or that I am arguing that.

So when I say that any cost is an issue to the company, I am actually saying that cost isn’t an issue?

Amazing.

In a contest between excluding a whole class of people, on one hand,

No one is excluded. That is the point that you miss and fail to address.

So I am sure you will be sure to avert your eyes when the captions are on the screen, right?

Once again, what is your objection to those who use the service paying for it? You don’t address this.

Ah, so you are going to pretend that when you leave out captions that this is not excluding the handicapped. Pathetic.

It is not pretending, it is the truth. How is offering the same facilities and the same services to all people “excluding” anyone?

“Look, my company doesn’t exclude jews. We just demand that everyone work on Saturday and eat a steady diet of pork products.” *rolls eyes*

The sad thing is that you don’t see your example as what the ADA does. It forces a company to make everyone “work on Saturday,” even if the company doesn’t want that. It forces “pork” on the company. It forces other patrons to pay for “pork” they won’t consume. Or, on the other hand, it is one person saying “you can’t work on Saturday because I can’t,” and “no one can eat pork because I can’t.”

Thanks once again for proving my point.

Lol, you guys have been arguing that there shouldn’t be captions because you can’t stand to see words on the screen and I am the irrational one? Heh.

Your support is irrational because the argument is that the business should have the right to decide what services it provides. You disagree with that. You think that people and the law should tell business what services they have to provide. You don’t own it, or have an interest in it, but you believe you have the right to tell the business what services they provide.

It might be funny to you, but it is sad to me.

30 Aaron Worthing 06.23.10 at 11:51 am

Frank

Two problems with your analysis. First, you don’t have to be fully deaf to benefit from captions (and I mean besides the people with perfect hearing who just would like to see them). My mother isn’t deaf, but her hearing is so bad she wouldn’t even watch TV anymore until we got one that included captioning.

Second, you are talking about movie going of deaf people based on a reality where most theaters don’t accommodate them.

Bill

What are you talking about? No one is talking about tourettes.

Gitar

You know I can stop with this one line.

> No one is excluded.

That is when you have a movie theater refuse to put up any captioning technology, no one is excluded.

That shows just how radically ignorant you are about this. OF COURSE it excludes the deaf. The only issue is whether it is okay or not. Until you can deal with that much reality, there is no point discussing it further. Because either you are not being intellectually honest, or you are being utterly delusional, and either way the result is the same—it’s a waste of time.

I could picture you in 1910, saying, “this is not a law designed to exclude black people from the vote. It just says you can only vote if your grandfather voted.”

Or in 1967: “there is no racial discrimination in this law against ‘miscegenation.’ White people and black people are equally allowed to marry within their races, and banned from marrying outside of it.”

31 Richard Nieporent 06.23.10 at 12:07 pm

It is not pretending, it is the truth. How is offering the same facilities and the same services to all people “excluding” anyone?

Because Gitarcarver, some people are more equal than others! Supposedly well-meaning laws such as the ADA always end up being used as clubs to beat the rest of us over our heads. Thus you have Aaron arguing not that a closed captioning system should be used that would not impact anyone’s enjoyment of the movie (ignoring the expense of implementing it), but that an open captioning system should be used to punish the non-hearing impaired for having the audacity to not be handicapped.

Aaron I understand why you feel this way. However, your blind spot with respect to the ADA is making you lose all track of reality. Do you really expect anyone to take you seriously when you make comments like that?

32 Aaron Worthing 06.23.10 at 12:23 pm

richard neirpont

I have said i have no objection to the caption machine that makes it only visible to those who want to see it.

But i also said that if the complaint is cost, then the alternative–captions that everyone sees–is cheap and reasonable. And for that the only objection has been whiney aesthetics. adjust. sheesh.

There is nothing at all unreasonable about that.

33 gitarcarver 06.23.10 at 12:29 pm

You know I can stop with this one line.

Cool. I await that line as it is not included in your post.

That shows just how radically ignorant you are about this. OF COURSE it excludes the deaf.

How so? Are they not allowed in the theater? Can they not avail themselves of the same services other patrons enjoy? Are they not allowed to purchase popcorn and candy? Are they denied a seat?

Tell me, Mr. Worthington, if you go to a play or concert and pay for a seat, do you demand to sit in the front row? Or, like the rest of us, do you pay for the seat in which you sit where the better seats cost more?

If, like the rest of us, you pay more for better seats and therefore a better service or level of goods from the house, how is it right that in the case of a movie theater you demand that others pay for additional services for people of a certain class?

I could picture you in 1910, saying, “this is not a law designed to exclude black people from the vote.

You were saying something about being intellectually dishonest?

Please tell us how treating everyone the same is discriminatory? “Discrimination” is “treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs.”

The demand at the point of a legal sword that a business treat different customers differently is discrimination. You can try and put it terms that it is the “moral” or “Christian” thing to do but it is still discrimination no matter how you slice it. And besides, I thought you were against having someone force their morals and beliefs on others?

Once again, how is it discriminatory to treat all patrons the same? And why should other patrons pay for services they do not use?

34 Aaron Worthing 06.23.10 at 3:15 pm

Shorter Gitar: “There is no exclusion when a building has stairs and no wheelchair ramp.”

Enough said.

35 gitarcarver 06.23.10 at 5:02 pm

Shorter Gitar: “There is no exclusion when a building has stairs and no wheelchair ramp.”

I’ll take that to mean that you simply cannot or are unwilling to address the real issues that have been brought up by me and others.

The bottom line is that you feel that is it moral that the government demand businesses discriminate toward people.

I disagree.

Strenuously.

36 Richard Nieporent 06.23.10 at 7:30 pm

Speaking about blind spots Aaron, why are you only concerned about the people with hearing difficulties? Where is your compassion for the visually impaired? How do you expect them to enjoy movies with subtitles? We must also have a soundtrack that describes the action that is going on the screen for the visually impaired as well as subtitles for people who are deaf. While we are at it, we need to label the colors for people who are colorblind. Also we cannot have any flickering lights on the screen because that may cause people to have epileptic fits. Have I covered everything or is there something else we can do to make sure that nobody can enjoy the movie?

37 antiredistributionist 06.23.10 at 10:49 pm

gitarcarver – Once again, you demonstrate an almost beatific patience.

I don’t think that anyone here is objecting to accommodations that are (1) reasonably affordable and (2 do not affect the nature of the experience or product being provided by the business. It appears that Worthing agrees that the inability of a proposed accommodation to meet the first criterion disqualifies it. His airy dismissal of the second requirement ignores that facts that (a) the non-disabled have a right to an unmodified product and that (b) the modification of that product may very well lead – especially when the product is entertainment, where aesthetics and the pleasure of the experience are paramount – to a loss of business that dwarfs the cost of an excessively expensive accommodation. Worthing is quite willing to impose on others the costs and risks associated with implementing his version of a better world. I doubt he would feel the same if he had a business that would suffer because his customers didn’t live up to some third party’s conception of “morality.”

38 Aaron Worthing 06.24.10 at 8:11 am

Richard

> Speaking about blind spots Aaron, why are you only concerned about the people with hearing difficulties?

Why don’t you read what I wrote and figure it out? Because I clearly stated why I was focusing on the captions, right at the beginning.

Gitar

I am continually stunned that you think that a facially non-discriminatory rule can’t have an obvious discriminatory effect. I suggest indeed you actually read the ADA, a law which was signed onto by around 90% of congress and two presidents named Bush (when you count the recent amendments to it).

Indeed the reasonable accommodation principle originally started in regard to religious discrimination, in the Civil Rights Act of 1964. Not everyone knows this, but that law protects against religious discrimination, too. But Congress realized that saying it was illegal to discriminate against a person for being jewish didn’t do a whole lot of good if an employer could simply take advantage of the differences between jews and Christians. They realized right from the beginning that a person who hates jews will simply require everyone to work on Saturdays and ban all headwear and in effect remove many, if not all, jews from his employ.

Likewise a restaurant owner who doesn’t want to serve paraplegics need only build his building with no wheelchair ramps. Problem solved.

The law is not, and never has been, that stupid. It simply is not that simple to evade the non-discrimination requirements.

Now you might say that a person could build a building and simply forget about the need for wheelchair ramps. Okay the wheelchair ramps are a bad example, because what kind of idiot forgets there are wheelchair bound people? But there are less-known disabilities. For instance one version of dysgraphia makes it hard to write by hand. I have that one. But I am perfectly normal when using the computer. So a rule in a setting that you cannot have a laptop computer is a facially neutral rule that has the effect of discriminating against people with that disability. And I fully admit that most people don’t even realize that such a disability exists when they come up with that rule. So at the moment of inception, you can correctly say that they are not intentionally excluding people with that disability.

But then when you tell them about it, from that moment on, they are intentionally discriminating against you. Maybe they have a really good reason. But they are doing it with knowledge that it will have that effect. That’s not the end of the discussion, but it gets us off on the right foot. This is discrimination, and it can only be upheld if a valid defense is offered.

Stating that the cost is too high is a quite valid defense.

Whining that you can’t stand to see words on the screen doesn’t strike me as a valid defense. It strikes me as an unreasonable inflexibility.

But go on, please explain to me how it can be that a building that doesn’t have a wheelchair ramp is not knowingly excluding people who are paraplegic. You would render the law a fool.

39 gitarcarver 06.24.10 at 10:43 am

I am continually stunned that you think that a facially non-discriminatory rule can’t have an obvious discriminatory effect.

Because it can’t. Feel free to be stunned all you want.

I suggest indeed you actually read the ADA, a law which was signed onto by around 90% of congress and two presidents named Bush (when you count the recent amendments to it).

You keep throwing this out as to add weight to your argument. I can play the same game. For over 200 years we had laws that were voted on by the majority of people, representatives and founding fathers that allowed and decreed that people be treated differently. Whether it was through the Civil War, the Suffrage Movement, or the Civil Rights Act, we have moved away from treating people differently in law except for one – the ADA. Neither the length of time a law has been in effect nor who voted for it has anything to do with the validity of the law itself. Feel free to keep putting out that canard though.

But Congress realized that saying it was illegal to discriminate against a person for being jewish ……..

You keep using this as an example even though you are not fully correct on your reading of the law and cases.

So a rule in a setting that you cannot have a laptop computer is a facially neutral rule that has the effect of discriminating against people with that disability.

It is here, as always, you jump the shark. Treating everyone the same is not discriminatory. When you start to treat people differently, that is discrimination. Assume for a moment that the person sitting next to you doing the same jobs says, “nice laptop…. I want one too.” There is no justification for not giving him a laptop other than you are being treated differently than he is. We can argue all you want on whether that treatment is justified, legal or moral. You cannot argue that it is dissimilar treatment and therefore discriminatory.

Whining that you can’t stand to see words on the screen doesn’t strike me as a valid defense. It strikes me as an unreasonable inflexibility.

I’m sorry, but this is where you and I disagree. Why is it that you feel you have a right to tell me what to do with my product? This is not a case where the product is injuring someone. It is a case where I, the owner of the property and product have made a decision that suits my business needs and my customers the most. What gives you the right to say what is “reasonable” or “unreasonable?”

I think that it is unreasonable that your home would not meet the very ADA standards you demand others meet. In fact, it is downright hypocritical. Yet you don’t see me demanding that you change. I respect your right to make the decisions that you want as long as they don’t affect me.

You aren’t willing to extend that basic right to others.

But go on, please explain to me how it can be that a building that doesn’t have a wheelchair ramp is not knowingly excluding people who are paraplegic. You would render the law a fool.

Please tell me how treating all people the same is discriminatory. That is the issue here. Please tell me how a law that demands that I treat one person differently from another is not discriminatory.

You see Mr Worthington, as others have said, you look at the ADA as a good thing because it benefits you. You either don’t see, or refuse to see, the impact it makes on people with businesses. Your blithe dismissal of those concerns is quite telling. While in this thread you have said that “stating that the cost is too high is a quite valid defense,” but yet in the discussion of the “Squeeze On Inn,” you put forth that the business should close because it could not physically accommodate or comply with the ADA.

Closing a business or forcing a business to move is a high cost – an exorbitant cost – but you we all for it. You were all for forcing Kindle to be redesigned at untold costs. I have yet to see you say that the cost of ADA extortion is too high in any case. In the cases presented in this forum, I have never seen you say “I believe those costs would be too high.”

So let’s recap, shall we? You are for a law that discriminates. You never met a cost you didn’t think was reasonable. You want others to do what you will not. You believe that you have the right to tell someone how their property – both material and intellectual – must be designed.

That’s where we are and for this thread, where we shall remain as I will not read nor respond anymore. We have beaten this horse to death.

Before I leave, allow me to leave you with one final thought…..

About a month ago while you were probably sitting around, I was out in the Florida sun helping build a wheelchair ramp for a gentleman in the neighborhood. I had seen him, but never really said more than “hello!” to him. He needed a ramp, so we built if for him. A friend of mine did the drawings so it could be submitted to the city for code approval. (It was.) A couple of local contractors in the neighborhood donated or bought the materials. We went through his home and leveled transitions between rooms, changed heights of washers and dryers, put in support bars in the bathroom, etc. We all donated our time, efforts and expertise. That was a moral choice we all made. None of us made a dime on the project. We all could have been doing other things, but we didn’t.

The only people who made money on the deal was the city government, who charged for the plan submission, the permits, and the inspection.

Go figure.

There is a difference that I don’t think you will ever understand between people making a choice and the government making a choice for them. You will never understand that there is a difference in extending a hand to help and being forced to treat someone differently.

That’s a pity too.

40 gitarcarver 06.24.10 at 10:45 am

Mr Olson / Mr Frank,

I realize that like other threads on this topic, it has gotten long and we are simply beating the same points over and over. I will keep my word given in the above post and not return to this thread, so there is no need to lock it from my standpoint.

Thank you for allowing the discussion to go on as long as it has.

41 Aaron Worthing 06.24.10 at 12:40 pm

Gitar

> Whether it was through the Civil War, the Suffrage Movement, or the Civil Rights Act, we have moved away from treating people differently in law except for one – the ADA.

Except that is not factually true. There is at least one other law that treats people “differently” as you would say it. The Civil Rights Act also says that if you fail to treat people differently when appropriate—by providing a reasonable accommodation to their religious beliefs—you are engaged in discrimination. Since you foolishly express doubt on the subject, I will point out that is conclusively demonstrated BY THE LANGUAGE OF THE ACT ITSELF. Title VII prohibits “discrimination based on” among other things, “religion.” Then the act defines “religion” as follows:

“The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

So if an employer must reasonably accommodate religious observances and practices, so long as there is no undue hardship.

Sheesh, don’t ever complain to me that someone is not following the law as written.

> Treating everyone the same is not discriminatory.

According to Congress, it can be, when it is known that your conduct will have a disparate impact. Besides Title VII, this is made clear by the text of the ADA itself. The ADA simply states the following, on an employment to name an example:

“No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Then it defines the term, “discriminate” stating that it includes:

> (1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;

> (2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entitys qualified applicant or employee with a disability to the discrimination prohibited by this title (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);

> (3) utilizing standards, criteria, or methods of administration

>> (A) that have the effect of discrimination on the basis of disability;

>> or

>> (B) that perpetuate the discrimination of others who are subject to common administrative control;

> (4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

> (5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

> (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

> (6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job- related for the position in question and is consistent with business necessity; and

> (7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

Read through all of them. You will see many instances where the term “discriminate” can include exactly what I described: facially neutral action that has a disparate impact.

> Neither the length of time a law has been in effect nor who voted for it has anything to do with the validity of the law itself.

Are you saying its unconstitutional? Because I would tend to think Thaddeus Stevens, the Father of the 14th Amendment and himself a disabled man, would tend to approve of this law. In fact its hard to think of a single theory you could proffer that wouldn’t also invalidate the Civil Rights Act of 1964, if not entirely, at least vis-à-vis religious discrimination.

> Assume for a moment that the person sitting next to you doing the same jobs says, “nice laptop…. I want one too.”

Yes, everyone should be allowed to bring their own laptop. Why not? Now sometimes a disability requires specifically different treatment. Only the quadriplegic should have someone to turn the pages for him. but as much as practical, yes, everyone should have the same option. Everyone should be able to read the captions, for instance, with or without a hearing impairment.

> This is not a case where the product is injuring someone. It is a case where I, the owner of the property and product have made a decision that suits my business needs and my customers the most. What gives you the right to say what is “reasonable” or “unreasonable?”

So if a man hangs a sign in his store front that says, “whites only” you would support that? Or how about “no jews allowed?”

> I think that it is unreasonable that your home would not meet the very ADA standards

Actually it does. But you would only think so based a woeful misreading of the ADA which is in part fueling your opposition to it, ironically.

> [me] But go on, please explain to me how it can be that a building that doesn’t have a wheelchair ramp is not knowingly excluding people who are paraplegic.

> [you] Please tell me how treating all people the same is discriminatory.

Just did, but its curious you say that in response to my belief that theaters should be required to caption the movies. It would see that if all movies were captioned, there would be no discrimination, either by your definition, or by the definition I, most of congress and the law goes by. If everyone has to see the caption, then how is that giving anyone special treatment?

> You see Mr Worthington, as others have said, you look at the ADA as a good thing because it benefits you.

It benefits you, too. I went from a high school drop out to a lawyer because of the ADA.

> You either don’t see, or refuse to see, the impact it makes on people with businesses.

See, this is where you pretend that cost can’t be considered in determining whether an accommodation is reasonable or not.

> but yet in the discussion of the “Squeeze On Inn,” you put forth that the business should close because it could not physically accommodate or comply with the ADA.

Not quite. I said that they should be required to be able to accommodate people in wheelchairs.

> You were all for forcing Kindle to be redesigned at untold costs.

Oh, for God’s sake, you’re talking a little bit of programming. Its stuff my computer does for free already, and standard. And you know what d—s Microsoft is. If they do it, its hard to believe the cost can be particularly great.

> I have yet to see you say that the cost of ADA extortion is too high in any case.

Proving you haven’t actually read what I wrote here.

> About a month ago while you were probably sitting around

Lol, I think its hilarious that you keep pretending to know what I do when I am not on here.

> I was out in the Florida sun helping build a wheelchair ramp for a gentleman in the neighborhood

Good. Go print out this post, show it to him, and ask him who is right and who is wrong here. Let’s see what he thinks.

42 steve mansfield 06.24.10 at 2:25 pm

There is little doubt that, years ago, disabled people were treated poorly. But, following the principle that for every action there is an equal and opposite reaction, we have gone way overboard in making allowances and allocating resources under the ADA and similar well-intended legislation. Mandating that all municipal buses have expensive wheelchair lifts when less than 1% of the population uses wheelchairs to me is silly. Requiring a small school district to spend $100K (where the average per student expenditure each year is $8000) on one disabled student who is unlikely ever to be capable of taking care of herself is patently unreasonable. This latest absurd ruling requiring theaters to provide captioning and other costly expenditures for visually-impaired or hearing-impaired persons is just the latest outrage. Going to the movies is NOT a constitutional right nor is it an essential life activity like earning a living or having access to an education. Resources are limited: needs both real and trivial, are not. This latest ruling by judges who have little knowledge of economics will lead to more predatory ADA lawsuits which involve truly minor inconveniences but have harmed many hard-working small business people. Then again, most businesspeople are conservatives and thus the trial lawyer-disabled rights activist-Democrat Party cabal do not care and will block any genuine ADA reforms.

43 Aaron Worthing 06.24.10 at 3:58 pm

Steve

So much wrong in so little time.

> Mandating that all municipal buses have expensive wheelchair lifts when less than 1% of the population uses wheelchairs to me is silly.

Disabled people disproportionately use the bus system. How do you propose they get around if not that way?

Would you prefer they instead don’t get jobs and live off the public dole? You are talking about economics, let’s talk about those economics. Which is better for a society. For a handicapped person to live on the public dole? Or to get a job and contribute to the tax base?

> Requiring a small school district to spend $100K (where the average per student expenditure each year is $8000) on one disabled student who is unlikely ever to be capable of taking care of herself is patently unreasonable.

In law school, I knew a man who was probably, in your mind unlikely ever to take care of himself. He had a full body disability. He couldn’t turn the pages of a book without help.

And on top of that he was born poor—food stamp poor. And he was jewish! I jokingly called him the most disadvantaged guy I ever met. And he was the kind of guy you could say that to his face, and he would think it was funny, too.

Last I saw, he was going to Harvard Law. He wasn’t going to be able to take care of himself, except in the sense that he will make so much money that he will be able to pay for the staff needed to help him eat, bathe, etc. So which was better, again? Letting him just be on food stamps all his life, or gee, giving him the educational opportunities that allows him to be enough of a success that he will not need the help anymore?

Its economically sound, and its morally right. With those laws you lament he was able to achieve something you take for granted: independence.

To mangle a phrase by Reagan, if you give a paraplegic a fish, he will eat for a day. But if you make the docks wheelchair accessible, he will eat forever.

> This latest absurd ruling requiring

Except they didn’t require anything at this point. They merely said that the theater will have to provide reasonable accommodations to these disabilities. Reasonable is part of the phrase, too, you know? Cost can be considered, as well as other matters that might make it an undue burden.

> Going to the movies is NOT a constitutional right nor is it an essential life activity like earning a living or having access to an education.

So what? Shouldn’t they be able to enjoy the fullest, most equal, most independent lives as is reasonably possible. The movie theaters were trying to say they don’t have to accommodate even if they are reasonable accommodations. I can’t believe I am being considered unreasonably to say that they are wrong in this position.

> This latest ruling by judges who have little knowledge of economics will lead to more predatory ADA lawsuits which involve truly minor inconveniences but have harmed many hard-working small business people.

Sheesh, really, if you are out to make money, the ADA is one of the worst ways to do it. People with real and serious disabilities are turned away all the time. the only place where the suits are truly frivolous are prison cases. There the prisoners try to do whatever they can to drive the warden crazy with frivolous suits. I would frankly exclude all prisoners from the ADA. Mind you, there can be meritorious cases. One paraplegic I knew of was not let out of his cell for a month, even to shower. He stank so bad, the other prisoners signed a petition to get him bathed. He should have been accommodated in some way. If they guards had to carry him, he should have gotten showers, at the very least. But the meritorious cases are vastly outnumbered by the cases that are crap.

But to pretend that most of the rest of the cases are predatory, is silliness.

> Then again, most businesspeople are conservatives and thus the trial lawyer-disabled rights activist-Democrat Party cabal do not care and will block any genuine ADA reforms.

When the ADA was passed and when it was amended in favor of the handicapped recently, the voted was overwhelming—over 90% in favor. You have more than the democrats to worry about.

44 antiredistributionist 06.24.10 at 4:31 pm

Mr. Worthing – On the issue of predatory suits, you simply have no idea what you’re talking about. ADA Title III public access suits are notoroius scams that have earned well deserved contempt from businesses and the courts.

45 Aaron Worthing 06.25.10 at 9:35 am

anti

disagree totally. outside of prisoners, the “abusive ADA litigant” is largely a myth, if only because sleezy lawyers have much better ways to make money.

46 antiredistributionist 06.25.10 at 1:08 pm

I deal first hand with ADA Title III cases, which are known as “drive bys.” They are brought by the dozens by the same plaintiff’s attorneys representing the same professional plaintiffs. They allege hypertechnical violations that, if they exist at all, do not deny access to the disabled. The main issue in all of them is the amount of fees demanded by plaintiff’s counsel, not correcting the supposed violations. The way the federal judges here in Florida treat these claims shows that they understand what is really going on in these cases.

It’s not that you “disagree” about this issue, Worthing; it’s that you don’t know the first thing about it.

47 Aaron Worthing 06.25.10 at 2:18 pm

anti

Lol, so the judges shoot them down all the time, but they keep going and going. that makes zero sense.

greedy people are, well, greedy, and so they aren’t going to lean into something unless they have a reasonable chance of getting money out of it. Indeed a predatory plaintiff’s lawyer cannot even realistically threaten to increase your legal costs, given that both sides can recover attorneys fees.

48 Patrick 06.25.10 at 2:21 pm

Aaron, Google “Morse Mehrban” or “Jason Singleton” and scroll if you don’t believe antiredistributionist. You’ll find a lot of Overlawyered, but believe me that isn’t all you’ll find.

Insurance companies don’t cover ADA claims. One suit (and they’re legion) over a de minimis violation can force a small business into bankruptcy.

49 Aaron Worthing 06.25.10 at 3:18 pm

patrick

I googled around. i see morse being apparently sanctioned with attorneys fees, which is interesting because apparently no one knew that the ADA allows for attorneys fees to be awarded without sanctionable conduct. So apparently alot of these guys don’t know how to defend themselves.

And he was sanctioned for believing his client and not checking it out for himself. mmm, i agree with the ruling, but it hardly proves him a sleezebag.

As for Singleton, i don’t see anything establishing that he has done anything. he has accusors and he denies their specific allegations. now maybe they are buried, given that you get alot of false hits in google.

50 Patrick 06.25.10 at 5:16 pm

It was Rule 11. Sanctions are reserved for misconduct. They’re not the same as automatic fee shifting, which is what you’re thinking of.

Plaintiffs who win ADA cases automatically get fees. Defendants have to prove, essentially beyond reasonable doubt, fraud, perjury, or the sort of lawyer who has his own tag at this site, in order to recover fees.

The unwillingness of judges to apply Rule 11 is a scandal in and of itself, but that’s a book, not a blog comment. I’m afraid I agree with anti, you don’t know what you’re talking about, and I don’t have time to educate you.

51 antiredistributionist 06.25.10 at 5:33 pm

Worthing –

On a given day, a plaintiff’s ADA Title III lawyer files a dozen form complaints against a dozen separate businesses on behalf of the same professional plaintiff. The complaints allege hypertechnical “violations” such as signs that are a couple of inches too low, a toilet grab bar that is two inches too high, a turning space in the restroom that six inches too narrow, a ramp that has a slope that is 1 degree too steep to satisfy ADAAG, some of which do not even arguably apply to the plaintiff (e.g., lack of Braille signage when plaintiff is sighted but utilizes a wheelchair) and none of which actually prevent plaintiff from accessing the facility and some which. In many cases, the plaintiff alleges is not The real object of these suits is not to prod the defendants to resolve the alleged issues but to make them pay an inflated amount of fees to plaintiff’s counsel. Plaintiff’s counsel counts on the fact that most of the defendants will pay him $10-12,000 in fees in order to avoid spending some multiple of that winning the case – and a prevailing defendant in an ADA Title III case is not going to recover fees – a classic shakedown. If the case is settled under such an agreement, the judge does not intervene. When there is a dispute as to fees, the local judges are treat plaintiff’s fee claims with the pointed scrutiny and skepticism they richly deserve. But even if plaintiff’s counsel takes a beating in one or two cases, he still makes money on the other ten cookie cutter actions he filed. That’s why they’re called “ADA mills.”

And the fact that attorneys can make money bringing a certain type of case says absolutely nothing about the merits of the cases they bring. To paraphrase Nathan Thurm, “Maybe you should do more Overlawyered reading. Maybe that would work for you.”

52 CarLitGuy 06.26.10 at 11:18 am

Aaron,
while you are doing reasearch, can I suggest the name “Molski”? He and his attorney appear to be the current poster children for serial abuse of the system, though the Ninth, apparently, wants to encourage this sort of thing…

53 Aaron Worthing 06.28.10 at 9:04 am

I see allegations, without proof, and complaints that you don’t have time to explain. Well, fine, but then don’t expect me to believe you.

Indeed, maybe of the allegations assume facts not presented. Oh, like the claims of merely technical violations when things are an inch off. Well, that inch might matter. I mean for instance, this site says that the door must be at least 32 inches. http://www.access-board.gov/adaag/html/adaag.htm#4.13

According to this site, the average width of a standard manual wheelchair can be easily 26.5 inches. http://www.thewheelchairsite.com/blogs/wheelchair_accessibility_issues/archive/2006/10/25/98255.aspx

That leaves 2.75 inches on each side for, you know, YOUR HANDS. I think given that math, one inch might really matter. Indeed, as corporate counsel to a company, I wouldn’t let my company get that close on compliance on anything. For instance, when you are supposed to do something every 30 days, we do it every 25 days, just to be sure. I would have us have enough of a berth so that we weren’t even close so that no one could allege even a technical violation.

And I would add that it has nothing to do with the issue primarily in the topic, which is whether or not a movie theater should be required to provide accommodations at issue to the deaf and blind.

But I love this. A man can go to Afghanistan, get shot in the spine in defense of our country, and come home and hear people whine that its such an imposition to make it so they can come in the door. “Thank you for serving your country and your reward for doing so is now to be a second class citizen in that country.” Lovely.

54 antiredistributionist 06.28.10 at 12:01 pm

Now you’re just being silly. And I don’t care whether you believe me or not – my comments are intended to prevent you from misinforming others.

Comments on this entry are closed.