By:  Nicholas E. Ma

The United States Court of Appeals for the Ninth Circuit recently confirmed in Tauscher v. Phoenix Board of Realtors, Inc. that while employers must engage in an “interactive process” with disabled employees to explore possible accommodations, there is no interactive process requirement for public accommodations and services.  By the same token, businesses and entities providing public accommodations cannot discharge the duties they owe to disabled patrons because of a failure to engage in the interactive process.

Title III of the ADA provides that 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.  (42 U.S.C. § 12182(a).)  A public accommodation must furnish “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”  (28 C.F.R. § 36.303(c)(1).)  While “[a] public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication,” the regulations make clear that “the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.”  (Id. § 36.303(c)(1)(ii).)

A public accommodation is relieved of this obligation only if it “can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.”  (Id. § 36.303(a).)

The Tauscher case involved a profoundly deaf, licensed real estate salesman, Mark Tauscher.  Tauscher could not hear sounds that were less than 90 decibels loud, which is about as loud as a lawnmower.  He could not hear in conversational settings, lip read to understand speech, or effectively communicate with others through spoken words.  Tauscher’s primary and best form of communication was American Sign Language (ASL).

Tauscher registered for a continuing education class hosted by the Phoenix Association of Realtors (PAR), a trade association for real estate professionals who sell real estate in Phoenix.  About five months before the course, Tauscher requested that PAR provide an ASL interpreter for the course.  PAR denied the request for an ASL interpreter on the grounds that providing one would be too expensive and an undue burden.  Instead, PAR recommended a host of other measures, including: (1) use of a FM Loop system to amplify sound; (2) using lip reading and making the instructor available for questions; (3) bringing in another real estate agent to sign for him; and (4) taking online courses.  Tauscher rejected all of these recommended measures and got a refund on his registration fee for the course.

Tauscher subsequently brought suit against PAR, asserting that PAR violated the ADA and the Arizonians with Disabilities Act.  On PAR’s summary judgment motion, the lower court held that PAR satisfied its duty to Tauscher under the ADA because PAR engaged in dialogue with him regarding his request for an ASL interpreter and he refused to discuss any other potential measures.

The Ninth Circuit reversed the decision and remanded the case back to the lower court.

The Ninth Circuit found that it remained an open question whether PAR offered Tauscher a means of communications that was effective.  It was undisputed that the FM Loop system was not loud enough for Tauscher to use.  However, it was unclear whether PAR offered to provide a captioning system and whether Tauscher could have relied on lip reading.  Additionally, the Ninth Circuit affirmed that at least two of the proposed measures were not an effective means of communication as a matter of law.  PAR’s suggestion that Tauscher bring a friend to sign for him was inadequate to satisfy PAR’s duty because the federal regulations expressly provide that a public accommodation may not require disabled individuals to provide their own interpreter.  (See 28 C.F.R. § 36.303(c)(2).)  Further, PAR’s recommendation that Tauscher take an online course was also inadequate because the regulations provide that disabled individuals should not be “segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”  (See id. § 36.303(a).)

Notably, the Court rejected PAR’s argument that it had satisfied its burden under the ADA because Tauscher refused to engage in a discussion about alternative auxiliary aids other than an ASL interpreter.  The Court recognized that in the employment context, a covered employer generally must provide a reasonable accommodation for an otherwise qualified employee or applicant with a disability, if such an accommodation is requested.  In order to identify an appropriate reasonable accommodation, the employer generally must “initiate an informal, interactive process with the individual with a disability in need of the accommodation.”  (29 C.F.R. § 1630.2)  The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process.

Outside of the employment context, the ADA does not impose an interactive process requirement on public accommodations and services.  Although the regulations suggest that a public accommodation “should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication,” the public accommodation itself is independently responsible for making the “ultimate decision as to what measures to take.”  (28 C.F.R. § 36.303(c)(1)(ii).)  As such, PAR was not discharged of its obligation to ensure effective communication merely because Tauscher did not engage in further discussion with PAR regarding measures other than an ASL interpreter.

Lastly, the Court concluded that whether providing an ASL interpreter would impose an undue burden on PAR remained an opened issue better suited for determination by the lower court.

The Tauscher decision serves as an important reminder that the duties businesses owe to their disabled employees and customers are not coextensive.  Generally, most employers are places of public accommodation, and, as such, employers must accommodate their own disabled employees and also ensure accessibility of their business to customers with disabilities.  Businesses operating a place of public accommodation must remain mindful that in addition to providing compliant facilities, they have many other obligations under the ADA, including providing auxiliary aids, allowing the use of service animals, and ADA-compliant website design.

Additionally, the Tauscher decision clarifies that the interactive process is a Title I, not Title III requirement under the ADA.  However, businesses should still strive to engage with disabled customers or patrons to determine what measures will allow accessibility.  Otherwise, businesses may hamper their own ability to promptly identify effective measures to satisfy their duty under the ADA.   Businesses need to keep in mind that if discussions with a disabled customer regarding auxiliary aids/services should break down, businesses are still obligated to ensure effective communication, unless doing so imposes an undue burden.