Cinemark Must Provide Tactile Interpretation for Deaf and Blind Movie Patron, Per ADA

            

A man who is both deaf and blind wanted to see the movie Gone Girl which was playing at a theater near his house affiliated with Cinemark.  That company owns 335 theaters in forty-one states.  The man, Paul McGann, was able to experience movies with the aid of tactile interpretation services (a communication method commonly used by people who are both deaf and blind, based on sign language relayed through touch).  A theater near McGann’s home hired tactile interpreters for him, enabling him to attend movies during regular presentations.   Unfortunately, Gone Girl was not playing at that theater, but it was showing at a nearby Cinemark.  McGann sent an email asking for the services of a tactile interpreter.  Cinemark had never before received a request for such services and responded with a refusal.  McGann sued in federal district court, claiming a violation of the Americans with Disabilities Act (ADA).

The ADA, adopted by Congress in 1990, was a major attempt to equalize access to places of public accommodation for people with disabilities. Places of public accommodation include, in addition to hotels, restaurants, stores and the like, movie theaters.  The Act forbids such venues from discriminating against people with disabilities, and also requires that businesses undertake “reasonable accommodations” to enable disabled customers to enjoy the goods or services offered.  An additional statutory mandate is to provide “auxiliary aids and services” as may be necessary to achieve the ADA’s goal of broad inclusion.

Standards for compliance with the ADA have been developed by the Department of Justice (DOJ), an executive department of the US government responsible for enforcement of the law in the country. The DOJ’s guidelines specifically mention tactile interpreters as auxiliary aids or services that may be required.  The district court thus ruled that providing tactile interpretation falls “comfortably within” the required auxiliary aids and services. Cincemark appealed and the decision was affirmed by the Court of Appeals, Third Circuit. Thus, failure to provide such an interpreter violates the ADA unless a statutory defense exists.    

The ADA includes two defenses. If applicable, they excuse a business from providing accommodations, auxiliary aids or auxiliary services.  One defense is that providing the accommodation, aid or service would “fundamentally alter” the nature of goods or services offered by the facility.  The second defense is that the statute’s mandate  “would result in an undue burden,” meaning significant difficulty or expense.

Cinemark argued that providing the tactile interpreter would fundamentally alter the nature of the service it offers. The courts were not convinced. Both courts noted that providing the interpreter would not require any change to the video or audio content of the movie, the screens or sound systems, lighting, scheduling, or the physical environment of the theater.  The fundamental character of the movie would therefore remain unchanged.

Cinemark also asserted an undue burden defense, noting that the cost to provide the interpreter is approximately $250. Due to procedural rules, this defense was not addressed at the district court.  The appeals court thus referred the case back to the district court to consider that issue.  Stay tuned.

For more information see McGann v. Cinemark USA, Inc., 2017 WL 4451053 (3rd Cir., 2017), and/or click here.

 

DISCUSSION QUESTION:

What factors do you think Cinemark considered when deciding whether or not to appeal the case? Which of those factors do you think was most important to the film company?