I didn't think I'd write even a single piece about movie theaters during my tenure here, and yet I'm about to do so for the third time. The offenses involved in the other two--a bad date and a questionable screening practice--were pretty innocuous but still worth a closer look.
Today's issue involves something more serious, though: It deals with the fundamental rights granted to disabled citizens through the Americans with Disabilities Act (ADA). More specifically, Cinemark Theaters, the third-largest chain in the country, has raised the question of exactly how much accommodation a movie theater is required to provide to a patron who is both blind and deaf.
What Happened?
Pennsylvania movie enthusiast Paul McGann was born with Usher's Syndrome Type 1, a rare disorder which rendered him deaf at birth and began to degrade his eyesight at age five. At the time of the lawsuit McGann v. Cinemark USA Inc., Mr. McGann had been legally "deaf-blind" for around fifteen years.
The deaf-blind community faces many hurdles with communication. Conventional American Sign Language (ASL) helps deaf people communicate, but its hand signs do not work for those who are also visually impaired. Mr. McGann communicates outward using ASL, but cannot see responses from conversation partners. In these instances a different form of communication called "tactile interpretation" is used. The receptive party lightly touches the speaker's hands, feeling rather than seeing the signs they create. Also called "protactile ASL," it does a reasonable job of describing a film's elements to a moviegoer. Through gestures and hand motions, it can convey character appearance and dialog, action, scenery, and even audience reactions.
Interested in seeing the movie Gone Girl and unable to view it in the theater he normally attended that provided him with an interpreter, Mr. McGann contacted a local Pittsbugh Cinemark theater in November 2014 and requested they provide protactile ASL assistance. This being Cinemark's first known request for such an interpreter, they called a hiring service and found that one would cost them $50-65 an hour for a minimum of two hours; furthermore, the service determined that the complexity and length of Gone Girl would require two interpreters to help Mr. McGann. With this knowledge, the theater denied his request, asserting the ADA did not require them to accommodate his specific needs.
McGann filed suit against the theater in March 2015, alleging that Cinemark violated Title III of the ADA by denying him "reasonable accommodation" for his moviegoing needs. The trial lasted until April of 2016, at which time the district judge decided in favor of the defendant. McGann appealed that ruling, sending it up the chain to the 3rd Judicial Circuit appellate court. Looking at the facts of the case, Chief Judge D. Brooks Smith delivered the court's opinion that the ADA quite clearly applies to the plaintiff's needs and that Cinemark is legally obligated to provide the interpreter. The case was remanded back to the district court for retrial.
Backed Up by the ADA
How can the federal and appellate courts disagree on whether the Americans with Disabilities Act covers tactile interpreters? After all, it's all there in carefully-planned and documented legislation, so there can't be any ambiguity...right?
Not exactly. It'd be almost impossible to write an exhaustive set of rules that addresses every possible contingency and technicality, so some blanket language is included in the the ADA's outline of protections for disabled citizens, including where those protections should be expected and which ones are guaranteed..
Most specifically related to this case is Title III of the Act, which deals with "public accommodations" and the expectation that they will provide equal services to those with special needs. It's based around this idea:
"No individual shall be discriminated against 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)
"Discrimination" is not rigidly defined in the statute; rather, several general categories of prohibited behavior are outlined, and the decision as to whether something falls into those categories is situational. The term "public accommodation" is also pretty expansive, including but not limited to "a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment" PGA Tour, 532 U.S. at 676, 676 n.24 (citing 42 U.S.C. § 12181(7)). However, not everything in statute is generalized; among the more specific accommodations outlined by Title III is the required provenance of "auxiliary aids and services" to those in need. The ADA supplementally defines that to include interpreters or methods of communicating both with hearing- and visually-impaired individuals, as well as a clause for "other similar services and actions." A tactile interpreter certainly seems to qualify as an auxiliary service using these definitions.
The U.S. Department of Justice (DOJ) published further clarification on these ADA requirements in a 2014 document about "Effective Communication" with the disabled. The publication specifically mentions protactile ASL interpreters as viable auxiliary aids for deaf-blind individuals. It also cautions places of public accommodation against trying to make a universal system to address these matters, and instead encourages them to respond appropriately to each request since individual needs and situations vary greatly.
As Cinemark is unquestionably a place of "public accommodation," it is legally required by the ADA to reasonably accommodate the special needs of any member of the public who wants to see a movie, or else it risks charges of discrimination. Given the 3rd Circuit's rejection of the original court decision in its favor, the theater chain will have to adopt a different defense. The wording of Title III's requirements provides fuel for a debate about its meaning, but between the ADA's text and the DOJ's supplements it's clear that a tactile interpreter falls within the scope of "auxiliary services." Instead of arguing against protactile interpreters' inclusion in that definition, the theater's defense attorneys will likely attempt to show that providing said service would create an "undue burden" on the business.
Is the Accommodation Unfair to Cinemark?
The DOJ interpretation of Title III's "undue burden" term means "significant difficulty or expense." It goes on to define some of the factors to consider when determining if an accommodating action constitutes an undue burden, including but not limited to:
- The nature and cost of the action needed;
- The overall resources of the business or site involved, like:
- Number of employees at the site
- Effect on expenses and resources
- Legitimate and necessary safety requirements
- The impact of the action upon the operation of the site;
- The administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; and
- The overall size and financial resources of the parent entity (incl. number of employees and facilities)
Cinemark might be able to argue that contracting a pair of specialist interpreters and paying hundreds of dollars (2 interpreters at $65/hr for a minimum of 2 hours; Gone Girl's runtime would inevitably be rounded up to 3 hours) is burdensome and costly. A single individual's entertainment running a tab of almost $400 might seem disproportionately expensive to company bean-counters. Having opened the doors to such requests, they could then extrapolate that further such accommodations could cost the nationwide chain thousands of dollars or more every year. Movie ticket prices might then "have to" be raised in order to compensate for the expenses, possibly stopping more customers from coming due to the expense. A worst-case scenario could be projected that showed significant drops in earnings--a possible platform from which to argue a significant burden.
However, the odds of this argument's success seem slim. Mr. McGann's request for special assistance appears to be the first one of its kind in Cinemark's known history, meaning that any wild predictions about a sudden pandemic of pricey accommodation requests is very unlikely.
As to expense, I will admit that $400 is a lot to spend to help someone enjoy a film. Considering that the theater chain reported earnings of $257 million last year, though, it's hard to see that Cinemark endured any real hardship, much less an "undue burden" as outlined by the ADA.
Wrapping Up
Paul McGann only seeks declaratory relief in this matter, meaning he's asking the courts to officially confirm his right to seek auxiliary aid suited to his needs at a movie theater. Aside from recouping his costs and his attorney fees, Mr. McGann has not asked for financial remedy--only to enjoy a movie like anyone else. The affirmation of that right would likely set a useful precedent, paving the way for future deaf-blind people who deserve the privilege of experiencing films.
To sum up: Cinemark is at this point fighting for their right to refuse a seemingly-reasonable, mildly-expensive request from a deaf-blind man who is backed by the authority of the Americans with Disabilities Act and has the blessing of the U.S. Department of Justice. While I generally admire sticking to one's principles, I can't really grasp why they initially refused to help this prospective customer, aside from just initially balking at his unfamiliar request and then getting lucky with a district judge that reached some interesting conclusions about the ADA.
If they really choose to fight this thing to the bitter end, they will have another shot to show the courts that their multi-million dollar enterprise is threatened on some kind of existential level by helping a disabled man watch Gone Girl. I'd say their chances aren't great, and that consumer confidence in their brand may take something of a hit from this ordeal. Cinemark would be better served by settling and handing out some free movie passes, pronto. Of course, Gone Girl has been out of theaters for quite some time now; if McGann ultimately wins (it seems likely) maybe he and his interpreters can go check out the new Blade Runner. It's terrific.