Your law firm receives a videophone call. Do you accept or reject the call?
An individual greets your secretary using sign language at the front desk of your law firm. How does your secretary handle this conversation?
These scenarios deal with potential clients that have a hearing loss. Does your law firm know how to handle individuals with disabilities via phone calls or walk-ins?
I am an attorney and have clients that are hearing and deaf. I am able to serve both communities because I was born with a 95% hearing loss and know sign language and can lip-read. I wore a hearing aid until 2009 when I got a cochlear implant. I can hear more to not have to extensively rely on lip reading and/or sign language as an attorney. This has allowed me to be a communication bridge between the hearing and deaf communities. Every day, I have to advocate for accommodations for myself and for deaf clients within the legal system. Therefore, I am a resource for other attorneys and the legal system when deaf individuals need to access and participate in the legal system.
Since 1990, the federal civil rights law, Americans with Disabilities Act (ADA), has existed to “prohibit discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.” The purpose of this law is to ensure that individuals with disabilities have the same rights and opportunities as everyone else. To trigger ADA protection, one must have a disability or association with a person with a disability. Further, a disability is a “physical or mental impairment that substantially limits one or more major life activities”, a person with an impairment history or record, or perceived by others having an impairment.
There are five titles or sections to the ADA. They are the following: Title I- Employment; Title II- Public Services: State and Local Government; Title III-Public Accommodations and Services Operated by Private Entities; Title IV- Telecommunications; and Title V- Miscellaneous Provisions.
Law firms and attorneys would fall under Title III of the ADA, which prohibits disability discrimination by privately-owned, leased, or operated facilities such as businesses including hotels, restaurants, retail, doctor’s offices, attorney’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, funeral homes, etc. to provide public accommodations. Title III sets the accessibility and nondiscrimination minimum standards for public accommodations to remove the exclusion, segregation, and unequal treatment barriers as long as there is no difficulty or expense to the entity, which is the undue burden defense. There are reasonable modifications and effective communication steps that a normal business practice can take when serving individuals with vision, hearing, and speech disabilities. The Title III facilities are regulated by the U.S. Department of Justice. The complaint must be filed within 180 days of the date of discrimination. A lawsuit may be authorized if there is a pattern or practice of discrimination or an issue of general public importance since there is no to have need a “right-to-sue” letter to proceed with the litigation.
To trigger the ADA protection such as under Title III, one with a hearing loss is a qualified individual to invoke the ADA rights. After the trigger, the qualified individual has the following responsibilities: he/she must let the provider know he/she has a hearing loss and must make a request for the accommodation. This request invokes the ADA protection for the provider to act accordingly to the ADA.
ADA encourages effective communication. Regardless of the ADA, effective communication is the key when dealing with potential clients or clients that are deaf for law firms and attorneys. There are communication aids and services to ensure effective communication. Communication aids and services are to be provided to communicate effectively with individuals who are deaf or hard of hearing except if the accommodation is an undue burden (financial) or fundamental change of services. The communication aids and services must provide effective communication: accurately and impartially. Examples are written language, visual aids, and assistive devices. These do not include personally prescribed devices like hearing aids.
After the individual makes a request for an aid or service to ensure effective communication, the provider must give primary consideration to provide this request unless a defense kicks in. Interpreters do not have to be provided if there is a reasonable alternative due to financial hardship (undue burden defense). For example in my case, court reporters provided real time captioning services for courtroom hearings. Keep in mind that, providers cannot charge the individual for the communication aids and services provided.
Without the ADA being triggered, attorneys already have an ethical duty to ensure effective communication with their clients and need to provide reasonable accommodations if there is no undue burden defense. Effective communication can be judged by the deaf or hard of hearing individual, the interpreter, and/or provider such as by asking questions to get proper answers. The deaf population or other populations with disabilities have legal issues that need to be addressed and law firms and attorneys need to be knowledgeable and equipped to serve those with disabilities.
In conclusion, the ADA has been a step in the right direction at addressing disability rights and for those with disabilities using the legal system. The ADA provides qualified individuals with rights and responsibilities to prohibit disability discrimination once a request for accommodations is made to a triggered provider. The ADA provides triggered providers with minimum guidelines and standards for reasonable accommodations for individuals who are deaf or hard of hearing as well as the undue burden defenses. The ADA provides reasonable accommodations for effective communication. However, the ADA caveat is that it does not address the financing issue well as this allows providers to circumvent providing requested accommodations if there is a reasonable accommodation alternative. But attorneys have an ethical duty to ensure there is effective communication with clients that are deaf to ensure informed consent and decisions by their clients. Overall, attorneys and law firms need to be informed and equipped to serve the various populations including those with disabilities to address the legal issues.