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Eighth Circuit Affirms Single Captioned Theatre Performance for Hearing Impaired not Good Enough Under ADA

September 17, 2019 | Brandy Simpson

Title III of the Americans with Disabilities Act specifically prohibits discrimination on the basis of disability in the activities of places of public accommodation. This includes restaurants, schools, movie theatres, doctor’s offices and performing arts theatres. 42 U.S.C. §12182(a). 

In Childress v. Fox Associates, LLC, two hearing-impaired patrons of The Fabulous Fox Theatre in St. Louis (“The Fox”) argued the theatre failed to provide appropriate accommodations under the ADA as a result of the theatre’s offering of only a single captioned performance (Saturday matinee). Plaintiffs argued the ADA requires “equal services,” meaning the theatre was required to offer captioning when requested for any performance, subject only to the ADA’s “undue burden” affirmative defense. During discovery, the Fox objected to providing financial information to support the “undue burden” defense, arguing the information was irrelevant. Plaintiffs argued the Theatre waived the defense by failing to provide financial information. The Fox argued that on-demand captioning was not a reasonable modification to their policies and procedures.  

The district court reasoned that failing to offer captioning at any and every performance where captioning was requested “results in deaf persons being excluded, denied services, or otherwise treated differently than other individuals merely because of the absence of [an auxiliary] aid.” Because The Fox did not assert and prove an undue burden defense, it was required to provide accommodations in the form of auxiliary aids. The District Court awarded injunctive relief requiring The Fox to provide captioning whenever it received a request two weeks prior to the show. The Court also awarded plaintiff $97,920 in attorney’s fees.

On appeal, The Fox argued it should be permitted flexibility to consolidate multiple captioning requests into one performance due to the expense of captioning. It further challenged the award of attorney’s fees, arguing the court used an inflated hourly rate, allowed plaintiff’s counsel to bill for tasks he should not have included, and failed to reduce the fee award to account for plaintiffs’ partial success on the summary judgment motion.

The Court of Appeals first addressed the ADA requirements regarding public accommodations. Under the ADA, public accommodations must provide auxiliary aids and services to individuals with disabilities if the aids are necessary to enjoy “meaningful access” to the public accommodation. In a previous opinion, Argenyi v. Creighton University, the Eighth Circuit explained that under the ADA, a public accommodation shall provide auxiliary aids if the aids would be necessary for an individual to enjoy “meaningful access” to the public accommodation. The definition of “meaningful access” is an “equal opportunity to gain the same benefit” as a person without a disability. Argenyi v. Creighton University, 703 F.3d 441, 449 (8th Cir. 2013). 

The form of auxiliary aid necessary can be determined by the public accommodation, but once it is determined an auxiliary aid is needed, it must be provided unless doing so would “be an undue burden or would fundamentally alter the nature of the provided benefit.” 42 U.S.C. 12182(b)(2)(A)(iii). Both fundamental alteration and undue burden are affirmative defenses that must be raised at the outset or are waived.

The Fox argued that deaf and hearing-impaired patrons received meaningful access to the Fox’s productions because it had never denied a request for captioning and provided a captioned performance of each production. Appellees and the court disagreed, noting hearing impaired patrons received access to a single matinee show on a Saturday for each production while other patrons had access for evening and weekday performances.

The Court also found The Fox had failed to raise “undue burden” as an affirmative defense and had explicitly stated in its summary judgment briefing that it was not asserting an undue burden defense.    The Court further found the district court did not abuse its discretion in awarding attorney’s fees.

Ultimately, the Eighth Circuit Court of Appeals held The Fox’s policy required hearing-impaired individuals to attend a single Saturday matinee performance of each production and prevented them from attending a performance during the week or in the evening, thus excluding the individuals from “economic and social mainstream of American life.” 

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The BSCR Art, Entertainment & Fashion Law Blog examines developments in all aspects of the law affecting those in the creative community, including artists, designers, musicians, and venue owners. Learn more about the editor, John Patterson, and our Art, Entertainment & Fashion Law practice.

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