Court: Theaters Must Offer Services for Disabled

By Howard Fischer
Capitol Media Services, April 30, 2010

Theater owners have to make special devices available to ensure those with
hearing and vision disabilities can enjoy the movies, a federal appeals
court ruled Friday.

In a unanimous decision, the 9th Circuit Court of Appeals rejected arguments
by attorneys for the Arizona-based Harkins theater chain that nothing in
federal law requires them to purchase and install the necessary equipment.
The judges said the kinds of devices at issue here clearly fall within the
requirements of the Americans with Disabilities Act.

Judge Proctor Hug Jr., writing for the court, said the only way for Harkins
– and other theater chains – to escape the mandate is to prove that it is entitled to an exception. To do that, though, it would have to show that
installing the equipment would be a financial hardship or “fundamentally
alter the nature of its services.”

Calls to Harkins, which has fought against installing the devices for four years, were not immediately returned.

The lawsuit filed by the state Attorney General’s Office said none of the 262 screens the company operated at the time – there are now 345 in Arizona
and 82 elsewhere – offered “closed caption” technology where hearing
impaired patrons can get special equipment that displays the dialog being
spoken by actors on the screen.

In her legal papers, assistant attorney general Rose Daly-Rooney said that would not be necessary if there were sufficient offerings with open
captions, where the dialog is visible to all at the screening. But she said Harkins, which does offer some open-caption movies, does not provide a
sufficient range.
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.

Two years ago, U.S. District Court Judge Roslyn Silver acknowledged that without those devices there are people who will not have access to many of
the popular movies. And the judge said the anti-discrimination laws are
generally designed to ensure that people are not excluded from places of
public accommodation.

But Silver said Harkins is not excluding anyone. And 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.

Hug, however, said that ignores the plain language of the federal anti-discrimination law.

He said that law requires businesses 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.” In other words, businesses are required to
provide equipment that is available and necessary, even if it is different than the service they normally provide.

“For example, a courthouse that was accessible only by steps could not avoid ADA liability by arguing that everyone – including the wheelchair bound –
has equal access to the steps,” Hug wrote.

Friday’s ruling sends the case back to Silver where Harkins can argue it is entitled to escape the mandate because of one of the legal exceptions.

Larry Wanger with the Phoenix chapter of the AZCB has been working on this. At last month’s state convention, he said that Harkens has actually come a
long way in providing audio descriptions to blind people, but that blind
people must take the initiative when going to the theater and ask for the
audio-described version of the film they want to see. Apparently, the
company is using special headsets that are attached to the projector to run
the audio descriptions.

I wonder if the theater chain will try to send this case up to the U.S. Supreme Court. Judge Hug’s decision was based on a 5-to-4 ruling with
Justice Sandra Day O’Connor writing the majority ruling. She has been
replaced by Justice Alito, who, by all accounts, is more sympathetic towards
the needs of businesses than the needs of the disabled.

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