Vol. 22, No. 3, 27. Serving the Client Who is Deaf.

• Author: by Dale H Boam

Utah Bar Journal

Volume 22.

Vol. 22, No. 3, 27.

Serving the Client Who is Deaf

Utah Bar JournalVol. 22, No. 3May/June 2009Serving the Client Who is Deafby Dale H BoamTwenty-four years after my first exposure to the Deaf community I am still deeply involved with Deafness and Deaf Culture as an attorney, certified interpreter, teacher of interpreters, and a friend to the Deaf community.(fn1) In my practice, I often represent persons who are Deaf and who, by reason of their Deafness, face discrimination at the workplace and barriers when they attempt to access goods and services that the hearing population takes for granted. Sadly, I have seen such barriers in hospitals, doctors' offices, educational institutions, courts, and attorneys' offices. Most of these situations are misunderstandings and easily resolved once people understand their legal obligations and make a slight adjustment in their analysis of the situation. In my practice, I have found that law is a profession inhabited by persons seeking to do right. Doing right is often simply a matter of knowing how to analyze the situational requirements and acting accordingly.

For attorneys, developing a working relationship with a client who is Deaf requires a simple adjustment in perspective: An interpreter is not a luxury. Due to the length and complexity of even the most routine communication between attorney and client, in order to establish effective communication an interpreter is usually a necessity. See 28 C.F.R. § 36.303(c). A good rule to follow is to ask yourself if the information you need to present is the kind you would communicate to a hearing client over e-mail, by letter, or in any manner other than face to face; if not, get an interpreter!

This perspective is supported by the text of Title III of the Americans with Disabilities Act (ADA). Title III of the ADA states that, "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. 12182; C.F.R. § 36.201. The term public accommodation includes the offices of attorneys. See 28 C.F.R. § 36.104.

Furthermore, Title III of the ADA requires attorneys to make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless they can demonstrate that making the modifications would fundamentally alter the nature of the above as allowed by section 36.302. See 28 C.F.R.§ 36.302.

Attorneys must take those steps that are necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently from other individuals because of the absence of auxiliary aids and services. If the attorney can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense, this obligation may be avoided. See 42 U.S.C. § 12182(b)(2)(A). Auxiliary aids and services are designed to provide effective communication, which is mandated by the ADA.

Under the ADA, auxiliary aids and services may include qualified interpreters, note-takers, computer aided-transcription services (CART), written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for Deaf persons (TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing...