28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by Public Accommodations - Movie Theaters; Movie Captioning and Audio Description (NPRM)

2.  The ADA Title III Regulation¹⁰

The Department of Justice’s regulation implementing title III of the ADA provides additional examples of auxiliary aids and services that are required by the statute.  The regulation lists open and closed captioning and audio recordings and other effective methods of making visually-delivered materials available to individuals with visual impairments as examples of auxiliary aids and services that should be provided by public accommodations.  28 CFR 36.303(b)(1)-(2).  This list was revised in 2010 to reflect changes in technology and the auxiliary aids and services commonly used by individuals who are deaf or hard of hearing or blind or have low vision.  75 FR 56236, 56253-56254 (Sept. 15, 2010).  The title III regulation reiterates the requirement of the statute, stating that a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that providing such aids and services would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden.  28 CFR 36.303(a).  The title III regulation reflects that the overarching objective and obligation imposed by the auxiliary aids and services requirement is that a public accommodation must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.  28 CFR 36.303(c)(1).  The type of auxiliary aid or service necessary to ensure effective communication varies in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.  28 CFR 36.303(c)(1)(ii).  Moreover, in order to be effective, auxiliary aids and services must be provided in accessible formats and in a timely manner.  Id.  For individuals who are deaf or hard of hearing and are prevented from being able to effectively use the assistive listening receivers currently provided in movie theaters to amplify sound, the only auxiliary aids presently available that would effectively communicate the dialogue and sounds in a movie are captioning or sign language interpreting.  Likewise, for individuals who are blind or who have very low vision, the only auxiliary aid presently available that would effectively communicate the visual components of a movie is audio description.

As stated above, a public accommodation is relieved of its obligation to provide a particular auxiliary aid (but not all auxiliary aids), if to do so would result in an undue burden or a fundamental alteration.  To that end, the Department’s title III regulation specifically defines undue burden as “significant difficulty or expense” and, emphasizing the flexible and individualized nature of any such defense, lists five factors that must be considered when determining whether an action would constitute an undue burden.  See 28 CFR 36.104.  These factors include: (1) the nature and cost of the action; (2) the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) the geographic separateness, and the administrative or fiscal relationship of the site or sites in question, to any parent corporation or entity; (4) if applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; and the number, type, and location of its facilities; and (5) if applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.  Id.  The undue burden defense entails a fact-specific examination of the cost of a specific action and the specific circumstances of a particular public accommodation.  This defense also is designed to ensure that the needs of small businesses, as well as large businesses, are addressed and protected.

The Department defines fundamental alteration as a “modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.”  U.S. Department of Justice, Americans with Disabilities Act ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities III-4.3600, available at http://www.ada.gov/taman3.html (last visited July 14, 2014). 

If a provision of a particular auxiliary aid or service by a public accommodation would result in a fundamental alteration or an undue burden, the public accommodation is not relieved of its obligations to provide auxiliary aids and services.  The public accommodation is still required to provide an alternative auxiliary aid or service, if one exists, that would not result in such an alteration or burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods and services offered by the public accommodation.  28 CFR 36.303(g).  It is the Department’s view that it would not be a fundamental alteration of the business of showing movies in theaters to exhibit movies with closed captions and audio descriptions in order to provide effective communication to individuals who are deaf or hard of hearing or blind or have low vision.