In the latest series of cases under the public-accommodation (not employment) provisions of the American with Disabilities Act, the federal Ninth Circuit Court of Appeals holds that closed captioning and audio descriptions are “auxiliary aids and services” that a movie theater may be required to provide under the ADA.  The posture of the case is such that no final determination has been made whether theaters are required to provide closed captioning (for the deaf) and audio description (spoken narration of onscreen action, for the blind).  Thus theater operators may still raise defenses under ADA Title III, such as that they are being asked to fundamentally alter the nature of their services, or to assume an undue burden.  For now, the Ninth Circuit found that closed captioning for the deaf, and audio narration for the blind, must be understood as an aspect of movie theaters’ primary service of screening films.  (Arizona v. Harkins Amusement Enterprises, Inc., 9th Circuit No. 08-16075, April 30, 2010)  Ultimately, while it is theater operators who are subject to any ADA public-accommodation requirements, it may be film producers and distributors who will be best positioned to include closed captioning and audio narration if required by law.  Meanwhile, as yet undeveloped is the precise status of online websites as places of public accommodation for ADA purposes, as reflected in the recent ADA settlement involving extensive new design accommodations for the blind in the defendant’s website and a substantial cash settlement prior to substantive rulings at the court of appeals.

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