Must a Public University Provide Closed Captioning for Hearing-Impaired Spectators Attending Live Athletic Events?

Posted on by Daniel Baurer in Labor & Employment, Litigation.

Dr. Joseph Innes, Daniel Rinas, and Sean Markel (“Plaintiffs”) filed a lawsuit against the University of Maryland claiming that the university does not provide an equal opportunity to enjoy, benefit from, or participate in watching athletic events equivalent to that of individuals without hearing disabilities. The Plaintiffs, all of whom have a hearing disability, contend that the university excludes them from participating as spectators (and as fans) of live sporting events by failing to reasonably accommodate their disability.

The Plaintiffs brought this action under Title II of the Americans with Disabilities Act of 1990 (the “ADA”), and the Rehabilitation Act. Title II of the ADA pertains to public services, and it provides that “no qualified individual with a disability, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (2014). The Rehabilitation Act provides essentially the same provision, but is tied to entities receiving federal financial assistance, such as the University of Maryland.

The Plaintiffs’ chief complaint is that the University of Maryland fails to provide captioning through the various mediums by which it disseminates information. In particular, the university’s sports venues use public address audio systems in and around the stadium and concourse during live events that project information. Some of the information that gets projected auditorily includes: referee calls, play-by-play commentary, music, and safety and emergency information. The Plaintiffs contend that none of this is captioned for non-hearing fans. They also argue that the university’s web-content, which includes videos of player interviews, highlights from games, and coaches’ press conferences, lacks captioning for non-hearing fans.

In the Plaintiffs’ Amended Complaint, they indicate that after they filed their initial lawsuit, the university began offering captioning on smart phones and other tablet devices. Despite these new efforts by the university, however, the Plaintiffs provide a litany of reasons for why this captioning is unsatisfactory, not inclusive for their participation as sports fans, and not a reasonable accommodation to their needs, including:

  • Their hands are needed for talking;
  • Looking at the device takes their eyes off of the game;
  • The device cannot be read in the sunlight, and is ineffective in inclement weather;
  • Not all fans have such devices and while the school will provide the device, doing so requires non-hearing fans to wait in line to retrieve and return the device; and
  • Streaming captions requires a strong, uninterrupted signal, and the proximity of thousands of people at live events makes the signal weak and unreliable.

The Plaintiffs contend that their requests for captioning on the jumbo screens and LED ribbons in and around the sporting arenas, as well as on the web-content, are reasonable accommodations for the university to make. A reasonable accommodation has been interpreted under Title II of the ADA to mean that it gives those with disabilities “meaningful access” or entitlement to the benefit of the program or service sought. The goal is to help individuals with disabilities access public benefits that they (along with those without disabilities) are legally entitled to, but which they have difficulty obtaining because of their disabilities. Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003).

Conversely, the University of Maryland needs to show that the requested accommodation of providing captioning on the jumbo screens, LED ribbons and web-content is unreasonable. An accommodation is deemed unreasonable if it “‘would fundamentally alter the nature of the service, program, or activity,’ 28 C.F.R. § 35.130(b)(7), or ‘impose an undue hardship on the operation of [the] program,’” 28 C.F.R. § 41.53.” Henrietta, 331 F.3d at 281. Undue hardship looks to the cost of implementing the accommodation, and whether such cost is unreasonable compared against other accommodations (such as providing captioning on smart phones and other tablet devices) and relative to the alleged inequity.

This inquiry is objective in that it does not look to whether the Plaintiffs deem the alternative accommodation to be reasonable, but instead looks to whether the accommodation provides meaningful access for the individuals with disabilities.

This case calls into question whether providing captioning on smart phones or other tablet devices, and not providing closed captioning on jumbo screens and LED ribbons around the stadium satisfies the requirements of the ADA. If this case makes it to trial, then it will ultimately further define what is meant by providing persons with disabilities reasonable accommodations and the extent to which such accommodations must be provided. The outcome of this case may have substantial implications for the local, state and federal government, and for the business community at large. For now, however, this action is pending in the United States District Court for the District of Maryland.

This post will be updated as this case moves forward.