Law Center
814 Thayer Avenue
Silver Spring, MD 20910-4500
(301) 587-7730 (Voice or TTY)
(301) 587-0234 (Fax)
OBLIGATION OF PRIVATE ATTORNEYS
TO DEAF CLIENTS UNDER THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act (ADA) went into effect on January
26, 1991. Title III of the ADA, 42 U.S.C. §§12181 – 12183, provides
people with disabilities the right to equal access to public accommodations.
Both Title III of the ADA, and the U.S. Department of Justice regulation
pursuant to Title III, 28 C.F.R. Part 36, specifically include the offices
of lawyers in the definition of public accommodations. 42 U.S.C. §12181;28
C.F.R. §36.104.
Under Title III, public accommodations are required to provide auxiliary
aids and services to ensure effective communication with deaf and hard
of hearing people:
A public accommodation shall furnish appropriate auxiliary aids
and services where necessary to ensure effective communication with individuals
with disabilities.
28 C.F.R. §36.303(c)
A comprehensive list of auxiliary aids and services required by the
ADA is set forth in this regulation, and includes, for deaf and hard of
hearing individuals:
qualified interpreters, notetakers, computer-aided transcription services,
written materials, telephone handset amplifiers, assistive listening devices,
assistive listening systems, telephones compatible with hearing aids, closed
caption decoders, open and closed captioning, telecommunication devices
for deaf persons (TDD), videotext displays, or other effective methods
of making aurally delivered materials available to individuals with hearing
impairments.
28 C.F.R. 36.303(b)(1).
The term qualified interpreter is defined in the regulation to mean:
...an interpreter who is able to interpret effectively, accurately and
impartially both receptively and expressively, using any necessary specialized
vocabulary.
28 C.F.R. 36.104.
The Analysis to this regulation makes it clear that Congress, as well
as the Department of Justice, “expects that public accommodation(s) will
consult with the individual with a disability before providing a particular
auxiliary aid or service.” 56 Fed. Reg. at 35567, quoting H.R.Rep.No.485,
101st Cong., 2d Sess., pt.2, at 107 (1990). The Department of Justice further
states in its Analysis:
It is not difficult to imagine a wide range of communications involving
areas such as health, legal matters, and finances that would be sufficiently
lengthy or complex to require an interpreter for effective communication.
56 Fed.Reg. at 35567 (emphasis added).
The Department of Justice has also noted in its Analysis:
The Department wishes to emphasize that public accommodations must take
steps necessary to ensure that an individual with a disability will not
be excluded, denied services segregated or otherwise treated differently
from other individuals because of the use of inappropriate or ineffective
auxiliary aids. In those situations requiring an interpreter, the public
accommodations must secure the services or a qualified interpreter, unless
an undue burden would result.
56 Fed.Reg. at 35567 (emphasis added)
The Department of Justice does not permit a public accommodation to
charge a person with a disability for the cost of the auxiliary aid provided.
The Title III regulation states:
A public accommodation may not impose a surcharge on a particular individual
with a disability…to cover the costs of measures, such as the provision
of auxiliary aids…that are required to provide that individual…with the
nondiscriminatory treatment required by the Act or this part.
28 C.F.R. 36.301(c).
It is clear from the Act, the Regulation and its Analysis, that important
communications, such as those with an attorney, will require provision
of a qualified sign language interpreter to ensure effective communication
with the deaf client. We hope that this information will be of assistance.
Please let us know if there are any questions.
©2003 Alabama Department of Rehabilitation Services
|
