Matthew Stoloff's Blog » Effective Communication

Communicating with the Deaf and Speech Impaired

Matthew Stoloff — Mon, 21 Sep 2009 12:20:54 +0000

One of the most important cases that affect business owners in New Jersey is a case where a deaf patient repeatedly requested that her doctor hire a sign language interpreter. When the doctor refused to provide a sign language interpreter after repeated requests over a period of some 18 months, the deaf patient sued. At the end of the trial, the jury awarded $400,000 to the deaf patient. To learn more about this case, see NJ Doctor Sued for Refusing to Provide ASL Interpretation, Doctor Liable for Not Providing Sign Language Interpreter, and The Price of Disability Law.

It is important that small and large businesses be familiar with both federal and state disability laws that may affect their business.

Caption: A woman is fitting in a hearing aid

Like the blind and visually impaired, there are degrees of hearing impairments and speech impediments. How one communicates depends on one’s ability to hear, lip-reading skills, speaking abilities, and so on. Some people are deaf (cannot hear anything at all) and some are hearing-impaired (can hear a little or less than the average person). Some deaf people can read lips proficiently and speak well; others cannot and rely on sign language as the exclusive method of communication. Some hearing-impaired people need to hear and read lips simultaneously for effective communication. Hearing aids may help some—but not all—hearing-impaired people. The possibilities are endless.

When a person with a hearing impairment or speech impediment visits a business, it is sound business practice to find ways to communicate effectively. Sign language interpreters are not necessary in all cases. In simple business transactions, such as the selling of pizza, books, or clothes, exchanging written notes can be effective. These exchanges of written notes using pen and paper cost virtually nothing to the business owner. If you see a customer wearing a hearing aid, it is always a good idea to assume that the customer can read lips, so speak as clearly as possible and avoid covering your mouth or face.

A common communication tool among deaf, hearing-impaired, and speech-impaired individuals is the use of a telephone relay service. Several different types of relay services exist, but most share the same essential features. Suppose that Sarah, a hearing- and speech-impaired person, wants to order a pizza for delivery. Sarah dials the number for a relay service and asks the relay operator to dial the number for the pizza parlor. When the pizza proprietor picks up the telephone, the relay operator explains that a call is being made on behalf of a person who is either deaf or speech-impaired. Once the relay operator has provided simple instructions how to respond, Sarah will type “I would like to order one large pizza with pepperoni for delivery, please.” The relay operator will then read the message to the pizza proprietor. When the proprietor asks for Sarah’s address, the relay operator will type the message so that Sarah can read it and provide the information requested.

When a business owner receives a telephone relay call, federal law requires that business owners accept the call. Although the telephone relay service can take a little bit longer than the average telephone call between two hearing persons, the delay should mean very little to the pizza proprietor or any business owner. Money is being made: Without Sarah’s ability to call through the relay service, it would have been one less pizza delivered that night.

That a jury awarded $400,000 to a deaf patient who was denied a sign language interpreter should set off warning alarms to all business owners. The law requiring effective communication is clear. However, the cost of communicating with a deaf, hearing-impaired or speech-impaired individual is often nominal. If business owners take the initiative to find ways to effectively communicate with patrons, patients, and clients, there will be more opportunities for good, long-term business relationships.

Communicating with the Deaf and Speech Impaired originally appeared on Matthew Stoloff's Blog on September 21, 2009.

Deaf People are not Deaf to Justice

Matthew Stoloff — Wed, 09 Sep 2009 16:10:37 +0000

Deaf people are not deaf to justice. Blind people aren’t blind to justice either. When deaf, hard-of-hearing, blind, and visually-impaired people are offered accommodations, generally, there should not be any issues related to fulfilling their juror obligations. Provided that individuals with disabilities understand the proceedings and can intelligently answer questions during the voir dire stage, they can serve their juror obligations just as well as anyone.

Caption: Empty seats in the jury box

Yet, I was disheartened several weeks ago when I heard through the grapevine that certain legislators at the North Carolina House of Representatives were opposed to the idea that the deaf and hard-of-hearing should serve as jurors. The National Association of the Deaf blogged about this in North Carolina Legislators Oppose Deaf Jurors. When I read some of the transcript excerpts, I was astonished.

One legislator said, “You know we don’t have quadriplegics running track. Nor do we need to have deaf persons serving on juries…. But if you think about this realistically, folks, as an attorney, I’m never going to let a deaf person serve on a jury. It’s not going to happen.”

Correct me if I am wrong, but isn’t this the 21st century?

Embarrassing remarks such as the one just quoted above shocks the conscience because these words were spoken by well-educated people who apparently have little knowledge of federal disability laws and have had scant interaction with people who are deaf or hard-of-hearing. Those of you who are familiar with the Rehabilitation Act of 1973 and Americans with Disabilities Act know that these are federal laws that prohibit discrimination on the basis of disability. Individuals who are disabled are protected under these laws, and that includes jurors and potential jurors.

It is incredible that in the many years since the passage of the two laws that prohibit discrimination on the basis of disability, North Carolina still has a law on the books that excludes jurors on the basis of a hearing impairment. (If you enjoy reading statutes, the pertinent North Carolina provision is Section 14-7-810.) Since federal law pre-empts state law, any interpretation relating to Section 14-7-810 that excludes individuals who are disabled from the jury pool is out of compliance with the Rehabilitation Act and the Americans with Disabilities Act.

While not commonplace, the fact is that there have been deaf and hard-of-hearing jurors in civil and criminal cases. Keith Davis is a deaf individual who served as juror on a murder case in Atlanta. Karen Smith is a deaf individual who served as juror on a criminal case in Rochester, Minnesota. For a personal perspective on what it is like to be a deaf juror in a civil and criminal case, see Sheila Mentkowski’s blog post.

You’ll notice that Keith Davis, Karen Smith, Sheila Mentkowski, and many other deaf and hard-of-hearing individuals who have served as jurors, were provided accommodations. There are several different kinds of accommodations that a deaf or hard-of-hearing person may request: sign language interpreter, cued speech interpreter, Communication Access Real-time Translation (CART), to name a few. These are but tools that facilitate effective communication. With these tools, deaf and hard of hearing jurors are able to understand what is being said in the courtroom and satisfactorily fulfill their juror obligations. Federal law requires that the courts provide these accommodations not only to deaf and hard-of hearing jurors, but deaf and hard-of-hearing witnesses and parties as well.

Deaf and hard-of-hearing individuals who live in New Jersey, as well as attorneys who practice in New Jersey, are encouraged to be familiar with the Guidelines for Trial Involving Deaf Jurors Who Serve With the Assistance of Sign Language Interpreters. Those living outside of New Jersey are encouraged to check the Advocacy Statement: Communication Access in State and Local Courts (2008), which was published by the National Association of the Deaf.

I don’t know if anyone from the North Carolina legislature will read this blog post, but I hope that the way they think about jurors who are deaf and hearing impairments change. Like it or not, there are 36 million people in this country with some degree of hearing loss. As the population ages, that number will increase. If potential jurors are deaf or have any degree of hearing impairment, but are able to understand the proceedings and answer questions truthfully, they should be permitted to serve on a jury.

Deaf People are not Deaf to Justice originally appeared on Matthew Stoloff's Blog on September 9, 2009.

Web Accessibility for the Blind and Visually Impaired Under the ADA

Matthew Stoloff — Mon, 31 Aug 2009 12:10:21 +0000

Unlike music and stand-up comedy, the internet is largely a visual art. Colors, photographs, videos. These are the things that make websites look attractive. But unless the photographs are captioned and the videos are narrated, these things are unimportant to someone who is completely blind.

If you are a sighted person and have a few minutes of spare time to participate in a research project, try this experiment. Remain seated in front of your computer. Keep your hand on the mouse or trackball. Now, close your eyes or put blindfolds on. While your eyes remain closed, move your mouse to the address bar and type in your favorite search engine. Once you think you’re in, type in a couple of keywords. Next, navigate to a computer folder, open up an audio app, and play your favorite music tracks.

Caption: Blindfolded female navigating her laptop.

It’s quite hard, isn’t it?

Really, we who are sighted must keep our eyes peeled in order to navigate the computer and the internet.

The blind and visually impaired depend on specially-designed software that allow them to navigate the internet. The software is sensitive, however, and some websites contain code that may disrupt the software’s ability to read the text out loud. Recently, the blind and visually impaired were involved in a lawsuit against Target because part of Target’s website was not accessible. In this blog post, I would like to provide a brief overview of how blind or visually impaired individuals surf websites, and what online accessibility means for the blind and visually impaired. In addition, I’d like to briefly discuss the impact the Target lawsuit may have had on other businesses with internet presence.

Many blind and visually impaired individual use the same computers and laptops that you and I use. For some blind people to actually surf the internet, however, a special software program is installed onto the computer. The screen reader program is designed to convert text into speech. One of these screen reader program is called JAWS. (Other screen readers are listed here.) Essentially, JAWS works like the very popular Dragon NaturallySpeak software, in which the user speaks and the computer types. JAWS converts text to speech quite well most of the time. However, if the website contains certain code, JAWS may not be able to convert text into speech. When this happens, the blind and visually impaired aren’t able to fully enjoy access to the entire website.

In more simplistic terms, it’s like having a five CD disc changer. The CD player plays the first four CDs beautifully. But the fifth CD is actually a Blu Ray DVD. The CD player cannot read it because Blu Ray discs contain certain code that an ordinary CD player cannot read or interpret.

When the federal government enacted the law prohibiting discrimination of individuals with disabilities (the “Americans with Disabilities Act”), the year was 1990. At that time, the Internet had hardly entered the mainstream and Google was not yet a verb. Thus, the law did not explicitly state that the blind or visually impaired could sue for website inaccessibility. However, creative lawyers have suggested that the law is drafted in a way that could be interpreted to include website accessibility.

Caption: Handicap logo on a laptop keyboard

In the Target case, Target’s website contained code that prevented the blind or visually impaired from being able to fully enjoy Target’s website. The blind and visually impaired argued that Target’s website discriminated against them and that federal law required Target to remove the code. (Note: For an insider’s view of the Target case, see Jim Thatcher’s blog post, Accessibility, Law, and Target.com. Mr. Thatcher served as an expert witness in this case.)

The lawsuit raised a very interesting question: is a website a place of public accommodation? The Americans with Disabilities Act says that places of public accommodation include hotels, restaurants, supermarkets, bus stations, and other facilities where the public is invited. The law says that these places of public accommodations must not discriminate against individuals with disabilities. Additionally, the law requires that individuals with disabilities must be given equal access to the facilities as well as equal enjoyment of the goods and services provided by the establishment. For example, if a blind or visually impaired person visits a restaurant and there is no menu printed in Braille, then a waiter or waitress would be required to read aloud each dish if requested.

It appears that like hotels and other public facilities where the public is invited, a website could be seen as an open space where the public is invited.

Unfortunately, the Target court never got an opportunity to answer the question whether a website is a place of public accommodation. Target agreed to a $6 million settlement and the case was closed. The settlement was probably a good move on Target’s part since there is a split among the courts whether the internet was a place of public accommodation. The 3rd Circuit and 11th Circuit courts, for example, held that the internet is not a place of public accommodation, but the 1st Circuit and 7th Circuit courts suggested that it may be. It was really anyone’s guess just how the Target case would have been decided. Of course, the desire to preserve its public image was another reason why Target chose to settle.

In any event, the Target case raised awareness about the problems that the blind and visually impaired people have when accessing websites. Businesses with websites paid very close attention to the Target case and some have made changes to their website in order to prevent litigation–but some businesses may not have made any changes at all. While some bloggers were quite annoyed with the Target case, many website designers agree that it is simply good practice to ensure website accessibility because it can only help drive more traffic to the website, build a larger customer base, and generate more revenue. As blogger Roger Johansson writes, “[R]equiring websites to be accessible does not make building them too expensive or create an artificial barrier to entry. Neither does it mean websites have to be dumbed down to the lowest common denominator or that you cannot use images, Flash, JavaScript, or Ajax.” Two excellent sources of information for designing accessible websites are: the Web Accessibility Initiative and The Great Accessibility Blog Roundup.

Like Target, businesses and bloggers alike should be mindful of people with disabilities who surf the web. Just as a rock star can never have too many fans, so too, no business can have too many customers and no blogger can have too many readers. Let’s make the most of technology and share it with as many people as possible!

Web Accessibility for the Blind and Visually Impaired Under the ADA originally appeared on Matthew Stoloff's Blog on August 31, 2009.