Reader Response to Using HLAA Walk4Hearing Money for Captioned Theater

By John Waldo

March 2010

Editor: John makes a really good point about HLAA chapters using Walk4Hearing (or other) money to pay for services that organizations might be required to provide under the Americans with Disabilities Act. Here are his comments on last week's article. Note also that his PS provides information on how to determine an organizations annual revenue, which provides an indication of how much of a burden providing services like captioning might be.

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Here's the article John is responding to.

While I admire the initiative of the Tennessee walkers, I have some mixed emotions about this.

The reason is that under ADA, the facility has the obligation of providing auxilliary aids and services up to the point that doing so becomes an "undue burden." I think there may be some dangers in our too readily assuming the burden ourselves. The ADA envisions these expenses as a cost of doing business, to be absorbed by the business and spread across the entire customer base. The ADA and specifically forbids imposing an extra charge on for accommodations on the individuals who need the accommodation.

Unfortunately, there is no definition and extraordinarily little case-law guidance on what constitutes an "undue" (as opposed to a tolerable) burden, but plainly, the law does envision that public facilities such as theaters will have to spend some money to provide accommodations, likely in excess of the additional revenue that the accommodations would generate.

A couple of years ago, the Department of Justice was rewriting the regulations for ADA. One idea they floated out was to create a "safe harbor" for determing what would constitute "readily achievable" activity -- a less demanding measure than "undue burden." DOJ proposed a "safe harbor" of 1% annual gross revenue. Everyone screamed bloodly murder. A number of organizations representing the disabled hollered that such a "safe harbor" would let some organizations do less than they would otherwise be required to do.

The businesses, not suprisingly, argued that any "safe harbor" should be measured in terms of net revenue rather than gross revenue, an idea DOJ sensibly rejected, noting that "net" means after compensation to owners (not dividends), and that many highly profitable small businesses never show a net profit.

My thought was that if both sides objected with equal vehemence, it was probably a pretty good idea, and I keep that one percent figure at least in the back of my mind when trying to figure out what businesses might be able to do. For example, I refused to be persuaded that a theater with annual revenues of $19 million couldn't afford to spend $14,000 per year on captioning. I would hate to have organizations with that kind of financial ability start arguing that "captioning is done mostly where the folks who need it pay for it."

On the other hand, I would certainly agree that a small community theater with annual revenues of $100,000 couldn't afford $14,000 for captioning. In situations like that, it seems to me that any source of outside funding is necessary and appropriate.

In short, I guess my thought is that fund-raising we do should be dedicated only to facilities that really can't otherwise afford to do captioning, but we should be pretty careful about not "bailing out" theaters that have the means but not the will to undertake captioning.

John Waldo