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

B. Legal Authority to Require Captioning and Audio Description

1. The ADA

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability.  The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life.  The ADA also requires, in pertinent part, newly designed and constructed or altered public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities.  42 U.S.C. 12101 et seq.

Title III of the ADA prohibits discrimination on the basis of disability in the “full and equal enjoyment” of places of public accommodation (privately operated entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation––as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)––to comply with the ADA Standards.  42 U.S.C. 12181-12189.  Title III of the ADA includes movie theaters within its definition of places of public accommodation.  42 U.S.C. 12181(7)(C).  Movie studios and other entities that produce movies to be shown in theaters are not public accommodations by virtue of the making of movies, and therefore are not covered by title III in their production of movies. 

Title III makes it unlawful to discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.  42 U.S.C. 12182(a).  Moreover, title III prohibits public accommodations such as movie theaters from affording an unequal or lesser service to individuals or classes of individuals with disabilities than is offered to other individuals.  42 U.S.C. 12182(b)(1)(A)(ii).  Title III requires public accommodations to take “such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently * * * because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden."⁹  42 U.S.C. 12182(b)(2)(A)(iii).  The statute defines auxiliary aids and services to include “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments” and “taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments.”  42 U.S.C. 12103(1)(A)-(B).

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.

3. The Legislative History of the ADA

While the ADA itself contains no explicit language regarding captioning (or audio description) in movie theaters, the legislative history of title III states that “[o]pen captioning * * * of feature films playing in movie theaters, is not required by this legislation.  Filmmakers are, however, encouraged to produce and distribute open-captioned versions of films, and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films.”  H.R. Rep. No. 101-485, pt. 2, at 108 (1990); S. Rep. No. 101-116, at 64 (1989).¹¹  Congress was silent on the question of closed captions in movie theaters, a technology not yet developed for use in movie theaters, but it acknowledged that closed captions might be an effective auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing.  See H.R. Rep. No. 101-485, pt. 2, at 107.  Importantly, the House Committee stated that “technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities.  Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities.”  Id. at 108.¹²  Similarly, in 1991, when issuing its original title III regulation, the Department stated in preamble language that “[m]ovie theaters are not required * * * to present open-captioned films,” but the Department was silent as to closed captioning.  56 FR 35544, 35567 (July 26, 1991).  The Department also noted, however, that “other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons with hearing impairments.  Captioning is one means to make the information accessible to individuals with disabilities.”  Id.

The legislative history of the ADA and the Department’s commentary in the preamble to the 1991 regulation make clear that although Congress was not requiring open captioning of movies in 1990, it was leaving open the door for the Department to require captioning in the future as the technology developed.  Congress did not specifically mention audio description in the legislative history; however, audio description clearly falls within the type of auxiliary aid contemplated by the ADA.  Moreover, given the present state of technology, the Department believes that mandatory requirements for captioning and audio description in movie theaters fit comfortably within the meaning of the statutory text.

4. Federal Appellate Case Law Addressing Captioning and Audio Description

In April 2010, the first and only Federal appellate court to squarely address the question of whether captioning and audio description are required in movie theaters under the ADA determined that the ADA required movie theater owner and operator Harkins Amusement Enterprises, Inc., and its affiliates, to screen movies with closed captioning and descriptive narration (audio description) unless such owners and operators could demonstrate that to do so would amount to a fundamental alteration or undue burden.  Arizona v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 675 (9th Cir. 2010).  The Ninth Circuit held that because closed captioning and audio descriptions are correctly classified as “auxiliary aids and services,” a movie theater may be required to provide them under the ADA, and thus, the lower court erred in holding that these services fell outside the scope of the ADA.  Id. (citing 42 U.S.C. 12182(b)(2)(A); 28 CFR 36.303).¹³

Representatives of the movie industry (movie studios and movie theater owners and operators) who commented on the 2010 ANPRM contended that exhibiting captioning is a fundamental alteration of its services.  The Department does not agree with that assertion.  As the Department asserted in its amicus brief filed in the Harkins case, exhibiting movies with captioning and audio description does not fundamentally alter the nature of the service provided by movie theaters.  The service movie theaters provide is screening or exhibiting movies.  The use of auxiliary aids to make that service available to those who are deaf or hard of hearing or blind or have low vision does not change that service.  Rather, the provision of auxiliary aids such as captioning and audio description are the means by which these individuals gain access to the movie theaters’ services and therefore achieve the “full and equal enjoyment,” 42 U.S.C. 12182(a), of the screening of movies.  See Brief for the United States as Amicus Curiae Supporting Appellants and Urging Reversal at 15-16, Harkins Amusement, supra, (9th Cir. Feb. 6, 2009) (No. 08-16075).

13. A consent decree was entered into on November 7, 2011, in which Harkins agreed to provide closed captioning and audio description at all 346 screens in its 25 movie theaters by January 15, 2013.  See Consent Decree in Arizona v. Harkins Amusement Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), ECF 131, CV07-703 PHX ROS, Approved 11/07/2011.  In February 2012, Harkins announced that it expected to have all of its theaters equipped with closed captioning and audio description by the end of 2012.  Press Release, Arizona Commission for the Deaf and Hard of Hearing, “Harkins Theatres announces closed captioning and descriptive narration devices” (Feb. 16, 2012), available at http://www.acdhh.org/news/harkins-theatres-announces-closed-captioning-and-descriptive-narration-devices (last visited July 14, 2014).