Meaningful Access: True Equality or Frightening Reality?

• Author: Stout, Mackenzie L.

Childress v. Fox Assocs., LLC Childress, 932 F.3d 1165 (8th Cir. 2019).

1. INTRODUCTION

   "It's too good to be true" summarizes the decision in Childress v. Fox Associates, LLC. The Childress court admirably aimed to create a more accessible society for individuals with disabilities but may have unintentionally created the exact opposite. Courts require public accommodations to provide "meaningful access" to individuals with disabilities in order to comply with the Americans with Disabilities Act ("ADA"). (1) However, "meaningful access" is an unclear, evolving standard. The Childress decision strayed from precedent by heightening the standard for meaningful access to a level equal to identical access. While this heightened standard strives for the goal of true equality, it consequently shifts the focus of courts' decisions to the sufficiency of a claimed affirmative defense - that is, the requested accommodation would pose an undue buden. Analyzing a case based on the sufficiency of an affirmative defense - especially in the context of ADA Accommodations - is detrimental because it forces courts to determine whether an accommodation must be provided at all, instead of deciding what degree satisfies meaningful access. The framework for analyzing meaningful access set forth by the Childress decision may create detrimental impacts long into the future.

   Recognizing the need to create an accessible society for all people, this Note highlights the positive strides the Childress Court aimed to establish, but it also discusses the dangers this decision creates within litigation as future decisions turn on the sufficiency of affirmative defenses. Part II of this Note describes the facts, the lower court's determination, and the ultimate holding in Childress. Part III provides the legal background of the ADA and the United States Court of Appeals for the Eighth Circuit's legal precedent for "meaningful access" leading up to this decision. Part IV details the majority's decision to increase the standard for meaningful access for public accommodations to comply with ADA requirements and the dissent's criticism of the majority's deviation from precedent and the future impacts of this decision. Part V comments on the specific ways this decision strays from prior decisions within the Eighth Circuit and discusses the future implications of this new standard.

2. FACTS AND HOLDING

   Fox Associates, LLC ("Fox Theater") is a large historic theater in St. Louis, Missouri which hosts a variety of live Broadway shows. (2) In April 2016, Childress contacted Fox Theater to request captioning for a performance of Rent, a Broadway show scheduled to perform in May 2017. (3) Although Fox Theater provided an American Sign Language ("ASL") interpreter at each production, Childress preferred closed captioning because she was able to "experience the writer's original dialogue and lyrics" compared to receiving the lyrics through an interpreter. (4) Fox Theater denied this request and said it did not offer closed captioning at its shows and did not plan to in the future. (5) Following that denial, in June 2016, Childress filed suit in the United States District Court for the Eastern District of Missouri under Title III of the ADA. (6) Plaintiff alleged Fox Theater violated Title III of the ADA by failing to provide patrons with hearing impairments with "meaningful access" to the theater's productions. (7) Plaintiff sought injunctive relief and wanted Fox Theater to be ordered to "provide open or closed captioning at all performances of theatrical productions; publicize the availability of captioning and provide means to request captioning; enable persons to purchase tickets to captioned performances by non-telephonic means, including by electronic mail; and provide hands-free, line-of-sight captioning devices." (8)

   After the complaint was filed, Fox Theater offered to amend its policies to offer a single captioned performance for each Broadway production if the patron requested the captioning within two weeks of the show. (9) Additionally, Fox Theater adjusted its ticket offerings to allow purchases through non-telephonic means for hearing-impaired patrons. (10) Despite making these adjustments, Fox Theater stated the captioned showing would only occur during the day on a designated Saturday for each tour. (11) Childress believed a single showtime did not satisfy meaningful access as compared to the numerous showtimes non-disabled individuals could attend. (12) Due to the persistent inequalities and difficulties even after Fox Theater's adjustments, Childress argued its policies still violated the ADA. (13)

   Both parties filed for summary judgment. Plaintiff argued the opportunities to participate in only one showing for each Broadway production is unequal to the multiple showtimes and dates available to non-disabled patrons. (14) Plaintiff claimed this policy violated [section] 12181(b)(1)(A)(ii) and [section] 12181(b)(2)(A)(iii) of the ADA because the absence of auxiliary aids and services caused the unequal treatment of individuals with hearing impairments. (15) Further, Plaintiff believed Fox Theater was required to provide closed captioning for each request in order to provide "equal opportunity to the same benefit," subject only to ADA's "undue burden" affirmative defense. (16)

   Fox Theater argued its prior modifications to the existing policies were reasonable and therefore complied with the "meaningful access" requirement. (17) First, Fox Theater argued it provided meaningful access to its shows by captioning one performance of each production. (18) Fox Theater contended that one captioned production was reasonable because of the expense of a live, in-person reporter to transcribe the words, lyrics, and other sounds which was required for captioning. (19) In essence, Fox Theater was nominally invoking the ADA's undue burden affirmative defense, which holds that a defendant need not provide requested accommodations when doing so would cause it financial hardship. (20) However, Fox apparently waived the right to formally assert this defense because it refused to turn over financial information in discovery, which would have been necessary for a determination of hardship. (21) Although Fox Theater attempted to argue the affirmative defense of undue burden on appeal, at the district level, the defense had not been officially raised below and was therefore waived. (22) Second, Fox Theater claimed that requiring captioning for each request is not a reasonable modification to its policies, practices, and procedures. (23)

   The district court granted Plaintiff's motion for summary judgment and denied Defendant's motion. (24) The court clarified that the provision of the ADA applicable to the present lawsuit was 42 U.S.C. [section] 12182(b)(2)(A)(iii), which governs the failure to provide auxiliary aids to individuals with disabilities. (25) Then, the court stated that to prevail on a Title III ADA Discrimination claim the plaintiff must prove: (1) discrimination on the basis of a disability (2) in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of the Fox Theater (3) by Fox Theater's owner, lessor, or operator. (26)

   Analyzing arguments presented by both parties, the district court determined Fox Theater did not provide "meaningful access" by captioning only one showing per tour because that did not provide hearing impaired individuals with equal opportunity to the same benefit - show offerings - as non-disabled individuals as required under [section] 12182(b)(2)(A)(iii). (27) The court reasoned "a non-disabled, hearing person has the benefit of an expansive selection of performances to attend at the Fox Theater and is not limited to only one performance on a date preselected by the venue." (28)

   Following its declaration that Fox Theater was in violation of the ADA, the district court granted injunctive relief. (29) The court ordered Fox Theater to:

   provide open or closed captioning at all performances of theatrical productions where captioning is requested at least two weeks in advance; publicize the availability of captioning and provide a means to request the accommodation; enable persons to purchase tickets to captioned performance by non-telephonic means (including electronic mail); and provide hands-free, line-of-sight captioning devices in areas designated as accessible seating, and handheld captioning devices in all other seating. (30)

   Lastly, the court concluded by noting Fox Theater failed to assert an affirmative defense of undue burden or fundamental alteration. (31)

   Fox Theater appealed the grant of Plaintiff's motion for summary judgment. (32) On appeal, Fox Theater argued the district court erred in granting Plaintiff's motion for summary judgment and denying its motion because hearing-impaired individuals received meaningful access to Fox Theater's productions. (33) In response, Plaintiff argued Fox Theater did not provide "meaningful access" to its productions by only captioning one show per tour as compared to the numerous showtimes available to non-disabled individuals. (34)

   The Eighth Circuit affirmed the district court's grant of summary judgment in favor of Plaintiff. (35) The court concluded Fox Theater's policy of offering a single closed-captioned performance denied individuals with hearing impairments an equal opportunity to gain the same benefit as persons without hearing impairments. (36) Therefore, the policy did not provide individuals with hearing impairments with equal opportunity or "meaningful access" to the benefits of the Fox Theater. (37) The court noted that even though Fox Theater failed to provide meaningful access, it could have prevailed by raising an affirmative defense at the district level and proving that captioning each requested performance would cause an undue financial burden. (38) However, because Fox Theater failed to assert such...