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Hearing Loss Law : Washington Hearing Loss Lawyer & Attorney : John Waldo Law Firm : Hard of Hearing, Disability, Hearing Impairment : Seattle, Bainbridge, Washington, Pacific Northwest

Law Office of John F. Waldo
Answering the Special Legal Needs of The Hard of Hearing & Deaf - Washington State Communication Access Project

The renowned Oregon Shakespeare Festival has developed plans that, when fully implemented, will make it the nation’s most accessible live theater for people with hearing loss. OSF will schedule 20 captioned drama presentations in the 2011 season, almost doubling its scheduled captioned offerings in 2010. But even better, OSF hopes to be able to offer open captioning on request (once the captions are completed) for any of its plays, given adequate notice.
Those plans were unveiled at a mid-October meeting involving OSF’s Executive Director Paul Nicholson, Access Coordinator Jim Amberg and Audience Service Manager Radawna Wallace, Oregon Communication Access Project (OR-CAP) Vice President Clark Anderson and me, representing both OR-CAP and the Washington State Communication Access Project (Wash-CAP).
OSF is located in Ashland, Oregon, a lovely but remote small town located almost equidistant between Sacramento, California and Portland, Oregon. It draws patrons from throughout the nation, but most come from California, Oregon and Washington. Unlike patrons at a typical live theater in a major city like Seattle, patrons don’t tend to go to Ashland multiple times during a season. Rather, they go for a long weekend or a full week, and see a number of plays, often two per day.
For the 2010 season, OSF prepared captions for nine of its 11 different plays, but only offered 11 total captioned showings sprinkled throughout the season. On behalf of OR-CAP and Wash-CAP members who wished to enjoy a “full-immersion” Ashland experience, we began communicating with OSF officials early in 2010, asking for an arrangement that would better suit Ashland’s unusual situation.
On our visit in October, we learned that OSF has brought the captioning function in house. All its scripts are available electronically. Once the director has put the play into final form, Amberg and Wallace get busy converting the production script into bite-sized captions, an exacting and labor-intensive process. When that is done, the captions are loaded into a computer, and an on-site operator “performs” the captions in synch with the pace of that particular performance.
As is the case with the captioned theater presentations in Seattle, the captions are displayed on an LED reader-board placed in front of the stage at one side. Patrons requesting captions are seated in areas from where both the captions and the stage are visible in the same line of sight. The seats are offered at the price of OFS’s least-expensive tickets.
The thrust of our discussions with OSF was about the obstacles, if any, to re-using the prepared captions for multiple performances. Our visit disclosed that OSF is thinking along the same lines, and is looking to hire additional technicians familiar enough with both the play itself and the captioning equipment to handle performance captioning. Once that is done, OSF’s plan is to offer captioning upon request any time after the captions are ready.
As usual, OSF’s 2011 season includes a number of Shakespearean plays, together with more modern dramas. An unusual feature for 2011 is the inclusion of a Gilbert & Sullivan operetta, the first time OSF has undertaken a musical presentation.
The scheduled captioned performances will be clustered in 2011 to provide patrons needing captions with the opportunity to enjoy multiple productions during their visit. More information about each play will be available when OSF formally announces its schedule and begins ticket sales.
Here is OSF’s announced schedule of captioned performances for the 2011 season:
March 31, 1:30 – Measure for Measure

Oct. 22, 8:00 – August, Osage County
Tickets are available by email, boxoffice@osfashland.org. Patrons purchasing tickets in the captioned section should state that they do need captioned seating. More information is available online at http://www.osfashland.org/plays/access.aspx.
OSF’s hope is that once one captioned performance of each play has been presented, subsequent performances may be available with captions upon request. Some advance notice will be required, because many of OSF’s performances sell out, and the seats set aside for those requesting captions will need to be released for purchase by others.
Because the additional display technicians are not yet selected and trained, OSF cannot formally commit to on-request captioning of unscheduled performances for 2011, but will attempt to make such performances available on a test basis in 2011. If that proves feasible, it would then formally offer on-request captioning in 2012, becoming perhaps the most accessible venue in America for people with hearing loss.
OSF will also present nine ASL-interpreted performances in 2011, on the following schedule:
May 27, 8:00 – Measure for Measure

Oct. 16, 1:30 – Julius Caesar
We are excited about OSF’s commitment to access, and look forward to joining audiences from throughout the West and across the nation in enjoying OSF’s outstanding offerings.

Seattle Arts and Lectures has announced that it will caption the presentations of seven authors this year, including an expert on affordable health care, two Pulitzer-Prize winning literary authors and a well-known children's author who will appear in his adult incarnation.
The captioned offerings begin Tuesday, Oct. 5, at 7:30 p.m. in Seattle's Benaroya Hall with T.R. Reid, a former journalist and radio commentator who will talk about the dysfunctional health care system in the United States, where we spend far more money on health care than any other nation but rank a dismal 37th in effectiveness. Reid has spent years examining the health-care systems of other nations that produce better results for far less money, and will share his insights into what those countries can teach us.
On Tuesday, Oct. 19, the speaker will be Sarah Paretsky, author of the best-selling detective works featuring female protagonist V.I. Warshawsky. A one-time community organizer in Chicago, Paretsky has written extensively about women's rights and social-justice issues.
On Tuesday, Nov. 9, Daniel Handler will appear. While Handler has written a number of literary books and short stories for adults, his best-known writing has been as children's author Lemony Snicket, whose 13-book "Series of Unfortunate Events" has sold more than 50 million copies.
On Wednesday, Dec. 8, Picasso biographer John Richardson will speak. His appearance coincides with an exhibition of Picasso masterpieces at the Seattle Art Museum.
On Monday, Jan. 4 (of 2011), Pulitzer-Prize winner Elizabeth Strout will appear. She was awarded the Pulitzer in 2008 for Olive Kitteridge, a series of interconnected stories set in small-town New England.
Prolific author Joyce Carol Oates will appear Monday, April 18. Oates has published over 50 critically acclaimed novels and dozens of short stories.
The captioned season concludes Tuesday, May 10, with an appearance by Richard Ford, who won a Pulitzer Prize for Independence Day, the middle volume of a trilogy chronicling the fictional life of Frank Bascombe.
The captioned presentations are all in the Mark Taper Auditorium at Benaroya Hall. Because the author discussions and question-and-answer sessions are unscripted, the captioning is done in real time by a highly skilled captioner. The captions are displayed on an LED board visible from throughout the auditorium.
Because the captions are available from all seats, no special area is set aside for patrons who need to see the captions. Tickets are available at their regular price, and may be ordered on line.
This is the second season that SAL has captioned some of its author appearances, an effort it undertook at the request of the Washington State Communication Access Project (Wash-CAP). We hope SAL will be able to expand their captioned offerings in the future to become fully accessible to people with hearing loss.

Seattle's three largest live theaters will make a total of 18 different productions accessible this season to those of us who have a significant hearing loss but do not use sign language. The season begins this Sunday, September 19 at The Paramount, which apologizes for the short notice, and runs through July 31 of 2011, and includes old favorites like "Guys and Dolls" and "Oklahoma," and newer productions like the award-winning "God of Carnage."
The captions are displayed on an LED reader-board placed at the edge of the stage. Seats are set aside on the lower level near the stage, so that it is possible to see the reader-board and the on-stage action without excessive looking back and forth. The captions, including the dialogue and song lyrics, are prepared in advance, and displayed in synch with the pace of the production, enabling people with (and many people without) a hearing loss to understand exactly what is being said.
Best of all, the theaters almost always offer significantly discounted ticket prices.
Here is the schedule by theater:

"Mary Poppins," Sunday May 29, 6:30 p.m.
Tickets for the captioning area can be ordered on line. Go to the main page, click on the icon for the specific show, then go to the "read more" button following the description. Scroll to the end of that, and you will see the announcement of the open-captioned date and time. Continue following that link. When it takes you to the "purchase ticket" page, the only options that will be displayed are tickets in the captioned section.

"Oklahoma," Sunday, July 31, 1:30 p.m.
Tickets in the captioned section may be purchased on line by contacting the box-office email address, ticketing@5thavenue.org
Seattle Repertory Theatre:

"The Agony and the Ecstasy of Steve Jobs," May 5 (2011) 7:30 p.m.
Seattle Rep has devoted a special page to its captioned shows. Click on the ticket-order form, and it takes you to a diagram of the theater. When you then go to the button that allows you to see a diagram of the theater and select your seats, it limits you to only those seats from which the captioned reader-board is best seen.
This will the the third season that captioned live theater has been available in Seattle. The theaters have worked with the Washington State Communication Access Project and the Theatre Development Fund from New York to bring live theater to those of us whose hearing loss would otherwise prevent us from enjoying this art form.

Bainbridge Cinemas, a locally owned five-screen complex on Bainbridge Island, Washington, has agreed with the Washington State Communication Access Project (Wash-CAP) to begin showing closed-captioned films on a regular basis this fall.
Bainbridge Cinemas will equip one of its five auditoriums to show captioned films using the Rear Windows Captioning system.
Once Bainbridge Cinemas installs the necessary equipment, it will rotate its films through that auditorium, so that patrons will be able to see two captioned films per week. This rotation plan should mean that most if not all of the movies that Bainbridge Cinemas shows and for which captions are available will actually be shown in captioned form during the first two or three weeks of a film's release. All showings will be captioned.
The captions are contained on a computer disc furnished at no charge to the theaters. The captioning is actually done by the Media Access Group at WGBH public television in Boston, which developed and patented the Rear WIndows system. Roughly 80% of the first-run movies released by the major studios are captioned.
The Rear Windows system displays the written dialogue in mirror image on an LED board mounted on the rear wall of the theater. Patrons wishing to view the written dialogue pick up a reflector -- a transparent plastic panel attached to a flexible gooseneck on a heavy base that fits into the cupholder. The reflector may be adjusted so that the captions appear to the viewer either below or superimposed on the screen, like subtitles. Because the captions are not visible to other patrons who are watching the screen, they do not interfere with the viewing experience of others.
The theater will keep track of the number of people who request reflectors and their movie companions. We've devised a formula to estimate how much additional revenue the theater receives from installing the captioning equipment, and have agreed that until the theater has recovered the cost of the equipment and installation, we won't ask them to equip another screen for captioning.
The theater will indicate in all of its advertising and on its marquee which movies will be captioned, so that Bainbridge Island residents who want to see captioned movies can plan accordingly.
Personally, I'm delighted by this arrangement for a number of reasons. First and most obviously, I live on Bainbridge Island, and this means my wife and I can go to movies here rather than travel 30-40 minutes to a theater. On a broader scale, I think we've devised an accessibility formula that might prove workable for other small, independent theaters located in relatively isolated communities -- areas that the big theater chains don't serve. Lastly, I'm delighted and grateful that Bainbridge Cinemas is able to devote its limited resources to providing access rather than to a court battle.
Kany Lavine, Bainbridge Cinemas president, anticipates installing the equipment in time for the holiday movie releases that begin appearing around Thanksgiving. Prior to that time, we'll work with Bainbridge Cinemas to promote Bainbridge Cinemas generally and captioned movies specifically throughout our island community.

The United States Department of Justice today observed the 20th anniversary of the Americans with Disabilities Act in dramatic fashion by announcing that it will require movies and many internet videos to be captioned, and thereby made accessible to people with hearing loss.
DOJ is proposing that within five years of the adoption of the regulations, at least 50% of all movie theaters must be equipped to show every movie in closed-captioned form. DOJ does not intend to require any specific form of caption display, but will leave that decision to the individual theaters.
Consistent with its past approach and with the Ninth Circuit Court of Appeals decision in the Harkins case from Arizona, DOJ is going to require closed-captioned movies, where the captions are visible only to people who request display devices. The proposal states that if some theaters wish to show open-captioned movies, they may be permitted to do so, and in that case, would not be required to engage the captions for every showing. DOJ did state, though, that a theater that elected the open-captioned option would need to show some prime-time weekend evening movies with captions.
There is a lot to like here.
First, DOJ correctly stated that the obstacle to accessible movies has been the theaters -- that the studios prepare captions for the vast majority of first-run movies (this is actually done by the Media Access Group at WGBH public television in Boston), but that the theaters show only a tiny proportion of movies with captions.
Second, DOJ rejected the theaters' argument that no captioning requirement should be imposed until they convert from analog display using film to digital display. DOJ said the time frame for conversion is too uncertain, and has been promised for too long, to continue delaying making the movies accessible to people with hearing loss.
Personally, I think DOJ is biting off way too little by proposing captioning for only 50% of the screens, and by calling for a five-year phase-in period. While the general economy may be sour, times are good for the theaters -- 2009 was their best year since the Great Depression. I think they can afford to do a great deal more, and do it considerably faster.
DOJ's proposal to require captioned internet videos is even more audacious, because unlike movie theaters, it isn't clear that ADA regulates the internet, or that DOJ has the legal authority to impose these regulations. DOJ is basically taking the position that as more commercial activity goes on line, fair treatment for people with disabilities can only be achieved if they have reasonable access to the internet.

That said, this appears to be a huge leap forward for DOJ. After spending many years and millions of dollars dealing through regulation with the needs of people with mobility challenges, it's great that DOJ is now proposing to address the needs of the enormously larger population of people with hearing loss. So Happy Birthday ADA from us.

An unfortunate incident last fall has turned into a teachable moment about hearing loss for two state agencies in Washington.
Last fall, a Tacoma police officer stopped a man driving down a busy city street with expired license tabs. Because the driver was not responding to the officer's questions and instructions, the officer realized -- quite correctly -- that the driver had a significant hearing loss.
After writing a ticket for the license violation, the officer then made a written request to the state Department of Licensing, asking that the driver be re-tested to determine his fitness to hold a license. The stated reason -- in the officer's opinion, the inability to hear would make the man a dangerous driver, unable to hear sirens, warnings from passengers, etc. DOL complied, and required the man to pass a physical and to re-take his driving test.
The man found an advocate in Christine Seymour at the Tacoma Hearing, Speech and Deafness Center. Ms. Seymour was well aware that there is no requirement for any specific level of hearing to get a drivers' license. As the manual published by the Washington DOL specifically states, deaf drivers have just as good driver-safety records as hearing drivers, probably because we find ways to compensate for our lack of hearing, such as being much more aware of traffic behind us.
Through Ms. Seymour's persuasive advocacy, the Tacoma Police Department admitted that the officer erred in basing a re-test request on a drivers' hearing loss, and pledged that it would use this situation as a learning tool.
The DOL was another story. It took the position that it cannot question the contents of a request from a police officer, and therefore, it had to require the re-examination. At that point, Ms. Seymour asked me to help.
I did two things. First, I filed a claim with the state for the money the driver had spent on the medical examination and the wages lost because of the time required. Second, I wrote a rather firm letter to the Department of Licensing. I said that while DOL may be required to believe every word a police officer says or writes, that wasn't the issue. The issue, we pointed out, was that even if the facts stated by the officer were all true, the DOL still had to determine whether those facts constituted adequate grounds to require a re-examination, but either did not make such a determination, or made a determination at variance with its own statements about driver safety and hearing loss.
Shortly thereafter, we got a letter from the DOL acknowledging that it had been wrong to accept a request for re-test based solely on an allegation that a driver cannot hear well. Hearing loss alone, as the DOL ultimately recognized, does not make a driver unsafe.
Once DOL admitted error, the state promptly paid the claim for compensation.
Any interaction between law enforcement and a person with a hearing loss can be difficult and sometimes down-right dangerous -- our inability to hear and therefore comply with an officer's commands or questions can be interpreted as hostility and resistance. Fortunately, though, this interaction ultimately had a happy ending, and will, we hope, bring about some lasting changes in at least one police department and one agency.
Tags: Hearing Loss and the Law

Wash-CAP won the first round in our movie-captioning case against five corporate defendants when the court ruled that under Washington law, theaters must do what is "reasonably possible" to make their movie soundtracks understandable.
The order from Superior Court Judge Regina Cahan said that the specific steps each theater must take will be decided later at trial.
Her ruling came on cross-motions from Wash-CAP and the theaters. The theaters argued that nothing in Washington law requires theaters to do anything more than open their doors to people with hearing loss, and treat us exactly the same as everyone else.
Wash-CAP argued that under Washington law, treating us just like everyone else wasn't sufficient. Our state law says that when "same service" -- treating us just like everyone else -- doesn't permit us to fully enjoy a business's services, the business must offer "reasonable accommodation." Our state law defines "reasonable accommodation" as taking those steps "reasonably possible in the circumstances" to make all services "accessible," which in turn is defined as "usable or understandable."
Judge Cahan agreed with us. While she did not specifically endorse captioning, and did not state exactly what any of the theaters must do, she did say the theaters would have to do whatever is "reasonably possible," and she intends to determine at trial exactly what that may be.
Trial is scheduled for March 21, 2011.
In a sense, this ruling is a little anti-climactic, coming as it does on the heels of last week's decision by the Ninth Circuit Court that the Americans with Disabilities Act can requires closed captioning. But for a number of reasons, a decision under our Washington state law will be better for Washington movie-goers than a decision under federal law.
So now we see what the theaters do. Will they fight to the death in Washington -- not a particularly good venue for them in light of our excellent state law -- or will they fold their tents here and save their legal "firepower" to fight the Ninth Circuit decision?
What I think we can say with considerable assurance is that meaningful access to the movies for people with hearing loss is a whole lot closer to reality today than it was last week.

As we predicted and hoped, the Ninth Circuit Court of Appeals ruled today that the Americans with Disabilities Act requires movie theaters to show closed-captioned movies unless doing so would constitute an "undue burden."
The ruling came in a case that the Arizona Attorney General's Office filed against the Harkins theater chain. The federal district court ruled that the ADA does not regulate the content of the goods and services offered by businesses, and that the theaters are in the business of showing non-captioned movies. That case was appealed.
The Ninth Circuit opinion said that while ADA does not generally regulate the content of goods and services, ADA does require businesses to provide "auxiliary aids and services," which are defined as including open and closed captioning. That specific provision applies to movie theaters, and controls over the general rule that ADA does not regulate content.
The court noted that when ADA was passed, a statement of purpose from the House of Representatives stated that ADA does not require theaters to show open-captioned movies. That interpretation has been adopted consistently by the federal Department of Justice, which is empowered to interpret ADA. The court said that while DOJ may change its interpretation, the theaters are entitled to rely on it until it is changed. Therefore, theaters are not required to show open-captioned movies.
The Arizona district court ruled that there was no basis for treating closed-captioned movies any differently. The Ninth Circuit disagreed. It said that open-captioning, in which captions are visible to the entire audience, may fundamentally alter the movie-going experience for others. But closed-captioning displays captions only to people who want to see them. "The difference between open and closed captioning is more than linguistic," the opinion states.
The case now goes back to the Arizona district court, where the theaters will be able to argue that closed captioning poses an "undue burden." Because closed captioning is readily available through the Rear Windows Captioning system, the "undue burden" issue is economic only -- how much can the theaters afford?
The theaters can ask for a rehearing, but because the decision was unanimous and issued very quickly, the judges likely regarded this as pretty much of a "slam-dunk" case, and are very unlikely to grant a rehearing. An appeal to the U.S. Supreme Court is always a possibility, and is somewhat worrisome given that court's general hostility to ADA cases. But the U.S. Supreme Court picks the cases it wants to consider, and the odds are against appealing parties -- only one out of every hundred petitions for review are granted.
Assuming the opinion stands, it will become the law in the Ninth Circuit states of Arizona, California, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii, and may be persuasive in the rest of the country.
Our Washington case is currently under advisement. We brought that case under Washington law only, because our state law avoided some of the arguments made under ADA. However, the decision can't do anything but help our case.

Last Friday, we argued important motions in our Washington movie-captioning case in Seattle Superior Court. Judge Regina Cahan listened attentively, indicated that she knew how important this case is, and indicated that she would need to consider the matter further rather than issue an immediate ruling.
Wash-CAP filed a motion for partial summary judgment. We are asking the judge to rule that the defendant movie theaters -- five corporations that operate multi-screen theaters in King County -- must take all reasonably possible steps to make captioned movies available.
Washington state law requires public accommodations like movie theaters to offer "reasonable accommodations" when treating disabled patrons just like everyone else would not yield full enjoyment of the businesses' goods and services. We asserted -- and the judge seemed to agree -- that those of us whose hearing loss is such that we can't follow a movie dialogue even with the volume-boosting assistive-listening devices that theaters don't fully enjoy the movie, meaning the theaters must provide "reasonable accommodations."
"Reasonable accommodations" are defined in Washington law as those steps "reasonably possible in the circumstances" to make a business' services "accessible." "Services" are defined broadly as "everything" the business offers, which we contend includes the movie soundtrack, and "accessible" is defined in state law as "usable or understandable." Since captions make movies understandable, we argued that under Washington law, the theaters are required to display captioned movies to the extent it is "reasonably possible in the circumstances" for them to do so.
In opposing our motion and asking that the case be thrown out entirely, the attorneys for the theaters offered a broad array of arguments. First, they argued that our state disability law does not regulate the content of goods or services that a business offers, and claimed that their "goods and services" are non-captioned movies. While we can never be certain -- a federal court in Arizona essentially bought that argument -- we don't think it will go far here. We pointed out that captions are prepared in advance for most -- not all, but most -- of the first-run movies that these defendants show, and that those captions are made available on CD-ROM discs furnished to the theaters at no charge. So we argued that in fact the theaters actually have captioned movies, but just refuse to install the equipment necessary to display the captions.
Second -- and this is the argument they really pushed -- the theaters argued that any requirement to undertake captioning should be made by the state Human Rights Commission through a process called agency rulemaking. Because of the emphasis the theaters placed on that argument, we filed a supplemental brief on Tuesday. The judge has accepted our brief, and given the theaters until Wednesday, April 28, to respond.
We expect the judge to issue her ruling shortly after she receives the theater response to our supplemental brief -- possibly the first week in May.
Unless the judge throws the case out, we expect the theaters to begin meaningful settlement negotiations with us. Because what is "reasonably possible in the circumstances" has an economic component to it, we won't really know what each of the defendants can reasonably do until we start looking at some of their economic data. But our objective is to develop a firm and binding commitment and specific schedule for making all of the defendants' theaters accessible to people with hearing loss.
Meanwhile in San Francisco, efforts to resolve the captioning case against the Harkins theater chain were unsuccessful, meaning that the Ninth Circuit Court of Appeals will likely go ahead and issue a ruling. That is the case in which the federal trial judge accepted the argument that the theaters' "product" is non-captioned movies. That decision was appealed to the Ninth Circuit.
As reported in prior posts, the appeals court judges ridiculed that argument, although they did not issue a decision. The attorneys for Harkins then asked the court to put a 30-day hold on its deliberations while the parties went to mediation. Fortunately, the mediation was unsuccessful.
The reason that failure of the mediation is fortunate is that if a case settles during the appeal process, the decision of the trial court stays on the books. Our impression from the oral arguments is that the chances of a favorable decision from the Ninth Circuit are high, and we would like to see that process go forward.
While our case in Washington was brought under state law and the Arizona case was decided according to the Americans with Disabilities Act, there may be considerable practical overlap. If theaters across the country are required under ADA to show some captioned movies, their obligation would cease at the point that doing so becomes an "undue burden," which is essentially the flip side of Washington's "reasonably possible in the circumstances." So what we are able to negotiate in Washington State may have some impact on future implementation of an ADA captioning requirement.
And even though our state law is separate and free-standing, a national decision would be of significant practical benefit to us in Washington, because if theaters across the country need to beef up their captioned offerings, there will be far greater demand for the necessary equipment. That could both increase the availability of the equipment and lower the price.
We've got our fingers crossed.

The lawyers have written their legal briefs, and we hope that by the end of next month, we'll know whether a Washington court agrees with us that our state Law against Discrimination requires movie theaters to show captioned films.
Oral argument is scheduled for Friday, April 16, on cross-motions filed by Wash-CAP and by the five corporate entities that operate movie multiplexes in the Seattle area.
Our motion is for partial summary judgment. We want the court to declare that under Washington state law, movie theaters are required to do whatever is "reasonably possible in the circumstances" to show captioned films that are understandable and therefore accessible to people with hearing loss of such a magnitude that the volume-enhancing Assistive Listening Devices offered by the theaters are insufficient. Should the court issue such a ruling, we would then undertake discovery into the economic aspects of movie exhibition and determine how much captioning each of the theater defendants can due before the cost becomes an undue burden.
The theater chains have filed a motion for summary judgment, asking that the case be thrown out altogether. They claim that all they are require to do is afford physical access to the theaters, and allow us to purchase tickets to non-captioned movies on the same terms as everyone else.
Each side has filed a legal brief supporting its position, and then has filed a brief responding to the other side's position. Here is a link to our opening brief, the theaters' opening brief, our response to their argument and their response to our argument.

An indispensable ingredient of the theaters' argument is that their product or service is non-captioned movies. That argument was successful in the Harkins case from Arizona, but was ridiculed by the NInth Circuit Court of Appeals at oral argument in January.
Moreover, Harkins and the other movie-captioning cases have all been decided under the Americans with Disabilities Act (ADA), which some court have interpreted as mandating only physical access. But ADA yields to any state law or local ordinance that offers more protections to the disabled than ADA, and we have brought our case solely under Washington's Law against Discrimination.
Our state LAD contains a number of provisions that we think are uniquely helpful. First, our state law specifically states that when treating us like the general public does not afford us "full enjoyment" of a business' services, the business must offer "reasonable accommodations." We think it is abundantly clear that we don't fully enjoy a movie when we can't understand the dialogue, triggering the requirement for "reasonable accommodation."
Washington state law defines "reasonable accommodation" as those steps "reasonably possible in the circumstances" to make the business "accessible." And the regulations define "accessible" as "usable or understandable." Because "accessible" mean "understandable," we think our state law guarantees us not just physical access, but aural access as well.
Defendants in our case are Regal and AMC, both of which operate a number of multiplex theaters in King County, Landmark, which operates the Metro multiplex in Seattle's University area, Cinemark, which operates the Century Federal Way multiplex, and Lincoln Square, which operates a multiplex in Bellevue.
Regal shows some open-captioned movies at some but not all of its multiplexes, and we believe it is reasonably possible for them to show captioned movies at all of its complexes, and to show the captioned movies at reasonable times instead of the present practice of showing either early matinees or late-night showings, especially on weekends.
AMC shows closed-captioned movies at two of its King County complexes, but frequently doesn't use the full capacity that does exist. We think it is reasonably possible for AMC to equip all of its multiplexes to show captioned films.
Cinemark shows occasional second-run captioned films on mid-week days. We think it is reasonably possible for them to show first-run captioned films, and to add weekend showings. Landmark and Lincoln Square show no captioned films, and we think it is reasonably possible for them to start doing so.
Originally scheduled for March but postponed due to a scheduling conflict with one of the defense attorneys, the oral argument will take place at 9 a.m. on Friday, April 16 in the King County courthouse in downtown Seattle. The judge is the Hon. Regina Cahan. The argument will be open to the public, and I will try to arrange CART real-time captioning for my use and for the use of any spectators with hearing loss.

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