In My Fair Lady Henry Higgins famously described his ideal room as having an atmosphere as quiet as an undiscovered tomb. Some anti-noise advocates would like to have the ADA impose this kind of requirement on every public accommodation. A recent news story* about this illustrates how little the press and public understand about what the ADA requires.
The complaint that prompted the story is simple. If you have a hearing impairment then it is hard to understand conversation in a noisy public place like a restaurant.‡ In discussing this complaint the Washington Post article and the underlying paper by Daniel Fink ignore or misunderstand two things about the ADA – what it means to be disabled, what the ADA requires in the name of equality.
The problem starts with the use of the word “impairment.” A “disability” triggering ADA coverage requires two things. The first is an impairment. The second is that the impairment be sufficiently severe that it substantially limits one or more major life activities. I have a hearing impairment – the normal loss of high frequency hearing that comes with age. I am not disabled because the diminished ability to understand others in noisy environments is a nuisance but not a substantial limitation on a major life activity. The inability to hear at all is certainly a substantial limitation on a major life activity because hearing is critical to many activities. On the other hand, the inability to understand a conversation in a specialized environment like a noisy restaurant is not a substantial limitation on a major life activity because conversing in noisy places is not a major life activity. Mr. Fink’s paper and the Post article go astray from the beginning because they do not recognize that not every life activity is a major life activity and that not every level of impairment substantially limits such activities.**
The second problem in the Fink paper and the Post article is a failure to understand just what the ADA guarantees for those with disabilities. It forbids outright discrimination, of course, but restaurant noise isn’t discriminatory because everyone must endure it. The ADA also has an affirmative action component that requires physical changes to public accommodations to insure physical access to those with disabilities and requires the provision of auxiliary aids and services in some cases. Neither of those is implicated by restaurant noise. Finally, the ADA requires that public accommodations
make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities . . .
This seems to be what the Post article is really getting at; that is, noisy restaurants need to make some modification in their “policies, practices, or procedures” so those who have hearing disabilities can enjoy their dinner. There are several problems here. First, of course, noise from the conversations of other diners is not one of the restaurant’s policies, practices or procedures. It is just the way other diners behave. The article observes that many restaurants are designed in ways that make them noisy, but design and construction are not policies, practices or procedures, and the ADA’s physical construction requirements are precise and comprehensive. The 2010 Standards define what is required for equal enjoyment of a facility, and what they do not require in terms of physical design is not required.
Background music is a different matter since it can be controlled, but this asks a public accommodation to change something basic that is part of the experience its patrons expect. Individual restaurant patrons and reviewers can argue endlessly about whether the background music is too loud but that is like arguing about whether the lighting is bright enough or too bright (remember there are those with vision disabilities who have trouble in dim light) or the paint scheme is wrong, or the open kitchen a mistake, or the wait staff should be wearing more modest outfits. Whatever the criticism may be, every diner in the restaurant is there because they wanted some part of the whole package and was willing to put up with what they didn’t like. My wife and I recently stayed at a hotel whose afternoon pool party included a DJ and music so loud you couldn’t think, let alone converse. The hotel charged a substantial cover to non-hotel guests who wanted to be in the pool area but there were hundreds of people in and out of the pool for as long as the music played. When it stopped at dusk the pool was rapidly abandoned by folks who probably went to an equally noisy local disco. Turning down the music so a hearing impaired person (or indeed, any person) could carry on a conversation would have been fine with me, but certainly would have ruined the atmosphere for the rest of the crowd.
A misunderstanding related to the role background music and noise plays in restaurant marketing concerns the fundamental alternation defense to a modification request. Restaurants and other public accommodations are not required to make modifications that fundamentally alter their goods and services, but deciding what constitutes a fundamental alteration requires deciding what goods and services are offered. If the only good or service offered is food then making a restaurant quiet is not a fundamental alteration; however, if food is the only good or service offered then noise doesn’t interfere with a disabled person’s access to that good or service. If noise doesn’t interfere with this narroyly defined good or service then no modification is required. Fundamental alteration cannot be disassociated from the nature of the goods and services to which the disabled person is entitled to equal access.
Of course the heart of Mr. Fink’s proposal is not equal access to goods and services, but rather a quieter world in general. His paper is explicit in this regard, for he wants the government to outlaw noise in all public places not just for the benefit of those with hearing impairments but because he wants to live in a quieter world. The ADA was intended to expand the choices available to the disabled, not to take away the choices available to everyone else. It requires ramps, but it doesn’t outlaw stairs. It requires closed captions, but it doesn’t outlaw sound. Most important, it aims for an equality based on lifting up the disabled rather than dragging down the rest of the world. That cannot be perfectly done of course, but a proposal that outlaws choice instead of enhancing choice is fundamentally contrary to the spirit and language of the ADA.
* See, For those with hearing impairments, restaurant noise isn’t just an irritation. It’s discrimination.
‡ The story in the Washington Post had its origin in a paper by Daniel Fink titled “Disability rights aspects of ambient noise for people with auditory disorders under the Americans with Disabilities Act,” published by the Acoustical Society of America. The paper can be found at https://doi.org/10.1121/2.0000657.
** This is apparent in Mr. Fink’s paper when he says that “people with hearing loss clearly meet the ADA definition of having a disability.” Some people with hearing loss are certainly disabled, but hearing loss exists on a spectrum from mild to severe, and not every hearing loss is sufficient to qualify as a disability.
† It is appropriate here to recognize that many with disabilities, especially those who identify as Deaf, reject the notion of suffering. Many would claim what the law calls a “disability” is really just a feature that they would no more change than black person might choose to change skin color.
