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Case Update
The plaintiff Licensee filed an appeal with the Ninth Circuit Court of Appeals, challenging the district court’s summary judgment in favor of the local REALTOR® association. In July 2019, the appellate court reversed the district court’s order. The court held that the association was not required to provide the specific aid or service requested by the Licensee, but that there was a genuine issue of material fact of whether the association offered an auxiliary aid or service that would provide effective communication.
The court found that the ADA’s requirement of an “interactive process” isn’t applicable outside the employer context and to public accommodations and services. But the association was still required to offer an accommodation of effective communication that did not cause it an undue burden. The appellate court ruled that the district court must consider the complex issues of whether an ASL interpreter would result in an undue burden on the association.
The case was remanded to the district court for further proceedings.
Arizona federal court rules that a REALTOR® association did not discriminate against deaf individual when it refused to honor his demand for a sign language interpreter at an association education session. Read the earlier decision, No Right to Sign-Language Interpreter.
A real estate licensee who was also deaf (“Licensee”) sought to take an education class at a local REALTOR® association (“Association”). The Licensee contacted the Association and requested the Association to provide him an accommodation by having a sign language interpreter attend the class to translate for him. The Association offered alternative accommodations to the Licensee, such as having captioning or a FM loop system, because it was expensive to provide an interpreter.
A few months later, the Licensee signed up for a course at the Association and checked the box that he had a disability and required an accommodation, writing “sign language interpreter.” The Association responded to him through its attorney, who told the Licensee that the Association denied the accommodation request for an interpreter but was willing to discuss other alternatives. The Licensee did not attend the class, and received a refund of the registration costs.
The Licensee brought a lawsuit against the Association alleging violations of Title III of the American with Disabilities Act (“ADA”) and the state’s disabilities act. To allege discrimination under the ADA, an individual must allege that he is disabled under the ADA; that he is a qualified individual with a disability; and that he was discriminated against. Because the Licensee met the first two prongs, the only question was whether the Association’s refusal to provide him with an interpreter constituted discrimination.
Enacted in 1990, Title III of the ADA specifically aims to end discrimination by private entities that operate a “place of public accommodation,” and requires that any existing architectural and communication barriers be removed (where such removal is readily achievable and would not cause undue hardship to the entity) so that disabled persons are provided equal participation and benefits. While the type of accommodation offered is specific to each request, the implementing regulations for the ADA state that “the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.”
The court ruled that the Licensee had failed to demonstrate that the Association had discriminated against him by refusing to provide an interpreter. The parties disputed whether the Association qualified as a place of public accommodation, and the court did not decide this issue. The court found that the Association met the ADA requirements when it engaged in discussions with the Licensee on providing an accommodation. The ADA does not require the public accommodation to provide the individual with his/her requested auxiliary aid; the only requirement is that the auxiliary aid selected facilitates effective communication. Because the Licensee refused to discuss any other alternatives with the Association, he prevented the Association from providing an accommodation to him. Thus, the Licensee could not allege discrimination under the ADA and so the court entered judgment in favor of the Association.
Tauscher v. Phoenix Bd. of Realtors, Inc., No. CV-15-00125-PHX-SPL, 2017 WL 4357489 (D. Ariz. Sept. 30, 2017). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information.]