vector-illustration-of-the-movie-countdown-Stock-Vector-filmHard on the heels of the news about a newly filed lawsuit demanding closed captioning and audio descriptions* the Department of Justice has announced its rules concerning accessibility for movie theaters**, which will become effective sometime in the next few months. This is clearly good news for movie theaters who want certainty about their legal obligations, but will it put an end to the pending lawsuit, or prevent future claims? The disturbing answer is likely “no.”

On its face the Rule helpfully limits the closed captioning and audio description requirement in three ways. First, it applies only to movie theaters that show digital movies. Theaters that show only analog movies are not covered. Second, it does not require that theaters create captions or audio descriptions for a movie; they are only required to have the equipment to take advantage of these features when the movie itself includes them. Finally, it includes an 18 month grace period for the installation of the necessary equipment. Based on this Rule, the theater sued by Mr. DeHaan will not be required to provide closed captioning equipment until sometime in 2018.

But will that stop the lawsuit or others like it? When first passed in 1990 the ADA required the issuance of guidelines for new construction within nine months, and gave businesses and cities 21 months after those guidelines were issued to begin complying with them. The 2010 Standards also contained a regulatory grace period for compliance, allowing businesses to use the older standards while they digested the new standards. With respect to construction the ADA has never required instantaneous compliance with new regulatory standards.

These grace periods do not apply, however, to the general non-discrimination requirement in the ADA or to the requirement that businesses provide auxiliary aids and services. Although defendants have tried to invoke the primary jurisdiction doctrine to slow judicial enforcement while DOJ mulls over it regulatory obligations these efforts have not been successful. Most courts have agreed that:

it is the function of the court to decide whether a particular defendant has violated the ADA’s prohibition against disability-based discrimination. This includes a determination of “the extent to which accommodations are required under the ADA and when such accommodations constitute an undue burden on [a particular defendant].”

Natl. Assn. of the Deaf v. Harvard U., 3:15-CV-30023-MGM, 2016 WL 3561622, at *15 (D. Mass. Feb. 9, 2016), report and recommendation adopted, CV 15-30023-MGM, 2016 WL 6540446 (D. Mass. Nov. 3, 2016).

The argument for this refusal to wait comes from the Court’s right to decide what is unduly burdensome:

While it might be inconvenient for Harvard to be held to a higher standard of accessibility than the DOJ requires if it ever issues its regulations, convenience of the parties is not a relevant consideration in the primary jurisdiction analysis. . . . As long as the burden imposed on Harvard in the court’s issuance of injunctive relief does not rise to the level of undue, it would not run afoul of the ADA.

Id. emphasis added.  In other words, if the Court decides an individual defendant can afford whatever is demanded then it doesn’t matter if DOJ later decides that it is not required.

The Department of Justice agrees with and advocates these same positions. On December 12 DOJ filed a Statement of Interest in Gul v. Winn-Dixie Stores, Inc. that re-affirmed its long held position that the absence of regulations:

does not undermine or change public accommodations’ longstanding existing obligation to ensure equal access to their goods and services. . . .

This is hardly surprising since DOJ has stayed well behind the technology curve in its regulations and, given the pace of technological change, will never catch up.

The new regulations establish a helpful safe harbor for movie theaters, but only with respect to technical obligations, not with respect to time for implementation. A theater sued tomorrow will likely find that the regulatory grace period is not a bar to the lawsuit because the courts will ultimately decide what is unduly burdensome in terms of time to implement the changes.  A district court might well stay the lawsuit, or provide time to implement changes in its injunction, but delay is of no help to a typical business. As we know, the results of ADA lawsuits are driven by the expense of paying lawyers, not the expense of remediation. As long as lawyers are involved nothing the Court can do short of dismissal will help in most cases.

Congress could fix this problem. Just as the original ADA gave businesses time to comply with the standards for new construction after those standards were published, Congress could amend the ADA to provide that a business is required to provide auxiliary aids and services only after the Department of Justice issues regulations with respect to any particular type of aid or service. This would give businesses a fair opportunity to know what they are supposed to do before they are required to spend tens of thousands of dollars defending lawsuits that impose an obligation that does not appear in the statute or its implementing regulations. ADA reform efforts continue to focus on notice issues for lawsuits from serial filers, but real ADA reform will require much more.

*The case is Dehaan v. Cleveland Cinemas, LLC, Case 2:16-cv-01605 in the Western District of Pennsylvania, the blog can be found here.

**This LINK will take you to the announcement.