PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2160
___________
PAUL RICHARD MCGANN,
Appellant
v.
CINEMARK USA, INC.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-15-cv-00423)
Chief Magistrate Judge: Honorable Maureen P. Kelly
____________________________________
Argued: November 10, 2016
Before: SMITH, Chief Judge, MCKEE, and RESTREPO,
Circuit Judges
(Opinion Filed: October 6, 2017)
_____________
Carol A. Horowitz [ARGUED]
Jeffrey M. Skakalski
Disability Rights Network of Pennsylvania
429 Fourth Avenue
Suite 701
Pittsburgh, PA 15219
Counsel for Appellant
M. Brett Burns [ARGUED]
Hunton & Williams
575 Market Street
Suite 3700
San Francisco, CA 94105
Bridget J. Daley
Brian H. Simmons
Buchanan Ingersoll & Rooney PC
One Oxford Center, 20th Floor
301 Grant Street
Pittsburgh, PA 15219
Counsel for Appellee Cinemark USA, Inc.
Vanita Gupta
Tovah R. Calderon
Bonnie I. Robin-Vergeer [ARGUED]
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Counsel for Amicus Curiae United States of America
___________
2
OPINION OF THE COURT
RESTREPO, Circuit Judge.
The Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, et seq., requires public accommodations,
including movie theaters, to furnish auxiliary aids and services,
which include qualified interpreters, to patrons with vision,
hearing, and speech disabilities. Plaintiff-Appellant Paul
McGann, who is blind and deaf, requested from Defendant-
Appellee Cinemark USA, Inc. (“Cinemark”) an American Sign
Language (“ASL”) tactile interpreter so that he could
experience a movie in his local Cinemark theater during one of
its regular showings. Cinemark denied his request, and
McGann then filed this suit under the ADA.
After a bench trial in which the parties stipulated to all
relevant facts, the District Court entered Judgment in favor of
Cinemark. It reasoned that McGann’s requested tactile
interpreter was not an auxiliary aid or service under the ADA
and that the ADA did not require movie theaters to change the
content of their services or offer “special” services for disabled
patrons. For the following reasons, we will vacate the
Judgment and remand for consideration of Cinemark’s
available defense.
I.
A.
3
McGann has Usher’s Syndrome Type 1, a sensory
disorder. He was born deaf and began losing his sight at age
five. He has been completely blind for approximately fifteen
years, and he is now considered deaf-blind. There is no single
universally accepted method of communication for people who
are deaf-blind. McGann generally uses ASL to communicate
with others. ASL is a unique language that has its own idioms,
grammar, and syntax.
McGann can expressively communicate by signing in
ASL himself. He receptively communicates with the
assistance of ASL tactile interpreters.
There are numerous methods of ASL tactile interpretation.
McGann most commonly uses the hand-over-hand method.
The hand-over-hand method involves the recipient placing his
hands lightly upon the hands of an interpreter, who is signing
in ASL, and reading those ASL signs through touch and
movement.
ASL tactile interpretation of a movie includes every
possible element of that movie’s content, including visual,
aural, and oral components. In addition, because tactile
interpretation in almost any venue includes a descriptive
component, interpretation of a movie screening will include
environmental elements, such as other viewers’
contemporaneous reactions. Given practical limitations, tactile
interpreters cannot communicate all elements of a movie
verbatim; they must, at times, make judgment calls about what
content to skip. But tactile interpretation of a movie does not
require any changes to the video or audio content of the movie,
the auditorium screens or sound systems, or the physical
environment—including the lighting—in or around the theater.
4
McGann has experienced movies in theaters for many
years. He enjoys attending movies in person for a number of
reasons; among others, it affords him the opportunity to
participate in discussions about the movies with his friends and
family. Before his wife passed away in 2001, she would
provide him with tactile interpretation during movies in the
theater. Since then, McGann has attended movies at a local
Carmike Cinema. Carmike provided him with tactile
interpretation services for movie presentations at his request.
In November 2014, McGann became interested in
experiencing the movie Gone Girl (Twentieth Century Fox
Film Corp. 2014), after hearing about it from his family and
reading about it online using Braille. After he contacted his
customary Carmike Cinema to inquire about attending a
presentation of the movie, he learned it was no longer playing
there. So he sought another theater in which to experience it.
Cinemark owned another theater in McGann’s local
area, Cinemark Robinson Township and XD Theater
(“Cinemark Robinson”). As of December 2014, Cinemark was
the most geographically diverse, worldwide exhibitor of
movies, with 335 theaters and 4,499 movie screens in the
United States, spread across forty-one states, including
Pennsylvania. Cinemark makes assistive listening devices,
closed captioning devices, and descriptive narration devices
available in its U.S. theaters to patrons who are disabled. But
given McGann’s disability, none of those devices would help
him experience a movie.
Having learned that Cinemark Robinson still offered
Gone Girl, McGann e-mailed the theater directly to request
tactile interpretation services that would allow him to
5
experience the movie during one of its regular presentations.
After receiving no response to his initial inquiry, McGann
contacted Cinemark Robinson again and was directed to senior
paralegal Leslie Petengill, who worked in Cinemark’s national
headquarters in Texas. He reached out to Petengill that same
day.
Cinemark had never received a request for tactile
interpretation services for a patron who was deaf-blind before
McGann’s request. Petengill and Cinemark investigated
McGann’s request by contacting the Center for Hearing and
Deaf Services (“HDS”), which provided Cinemark with quotes
for tactile interpretation services. Rates ranged between $50
and $65 per hour, for a minimum of two hours. Because HDS
considered tactile interpretation of Gone Girl a complex
assignment, with a duration of over two hours, it would have
required two interpreters.
Petengill denied McGann’s request for tactile
interpretation services on December 15, 2014, via e-mail, on
her own authority. The e-mail explained that Cinemark did not
believe that the ADA required Cinemark to provide McGann
with tactile interpretation services for the purpose of
“describ[ing] the movie [McGann] [would] [be] attending.”
As of January 2016, Cinemark had not received any other
requests to provide tactile interpretation services to any patron
who is deaf-blind.
McGann filed suit against Cinemark in March 2015,
alleging that the theater violated Title III of the ADA when it
denied his request for tactile interpreting services. In his suit,
he sought declaratory relief, attorneys’ fees, and costs. After
discovery, the parties did not file dispositive motions. They
6
agreed to a non-jury trial before the District Court presented
through pretrial briefs, amended joint stipulations of fact, joint
exhibits, and oral argument. Oral argument was held in
January 2016. The District Court entered Judgment for
Cinemark in April 2016. This timely appeal followed.1
B.
With an understanding of the factual and procedural
background of McGann’s claim, we turn to the statutory and
regulatory framework under which his claim arises. Congress
enacted the ADA in 1990 as a “clear and comprehensive
national mandate” designed to eliminate discrimination against
individuals with physical and mental disabilities across the
United States. 42 U.S.C. § 12101(a)(1), 12101(b)(1); PGA
Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001). To help
“effectuate its sweeping purpose,” Congress enacted Title III
of the ADA, which prohibits “public accommodations” from
discriminating against individuals on the basis of disability.
PGA Tour, 532 U.S. at 675; 42 U.S.C. § 12182(a). “Public
accommodations” span “12 extensive categories” and include
“a motion picture house, theater, concert hall, stadium, or other
place of exhibition or entertainment.” PGA Tour, 532 U.S. at
676, 676 n.24 (citing 42 U.S.C. § 12181(7)).
Title III begins with a “[g]eneral rule” that “[n]o
individual shall be discriminated against on the basis of
The Civil Rights Division of the United States
1
Department of Justice has submitted an amicus brief in support
of McGann and urges us to reverse the District Court
Judgment.
7
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation.” 42 U.S.C. § 12182(a).
“The term ‘discrimination’ is not directly and uniformly
defined in Title III.” Menkowitz v. Pottstown Mem’l. Med.
Ctr., 154 F.3d 113, 116 (3d Cir. 1998). “Instead, the statute
provides several ‘general prohibitions,’” which bar broad
categories of conduct “that constitute discrimination for
purposes of the general rule found in 42 U.S.C. § 12182(a).”
Id. (citing 42 U.S.C. § 12182(b)(1)(A)(i)-(iii)). These general
prohibitions include, inter alia, denying an individual on the
basis of a disability “the opportunity . . . to participate in or
benefit from the goods [or] services” of a public
accommodation. 42 U.S.C. § 12182(b)(1)(A)(i).
Congress supplemented the general prohibitions against
discrimination in Title III with several “specific prohibitions,”
which also constitute discrimination “for purposes of the
general rule announced in 42 U.S.C. § 12182(a).” Menkowitz,
154 F.3d at 117 (citing § 12182(b)(2)(i)-(iv)); see also Spector
v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). One
such “special prohibition,” see 42 U.S.C. §
12182(b)(2)(A)(iii), pertains to “auxiliary aids and services.” 2
Section 12182(b)(2)(A)(iii) requires public accommodations
to “take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and
2
We refer to this “special prohibition” throughout this
Opinion as the “auxiliary aids and services requirement” of
Title III.
8
services.” Id. § 12182(b)(2)(A)(iii) (emphasis added). Failure
to take such steps amounts to prohibited discrimination unless
the accommodation shows that providing the auxiliary aid or
service would “fundamentally alter the nature of the good,
service, facility, privilege, advantage, or accommodation being
offered” or “would result in an undue burden.” Id. §
12182(b)(2)(A)(iii).
In addition to the text of the statute itself, the
Department of Justice (“DOJ”) issued a specific regulation
implementing Title III’s auxiliary aid and service
requirement.3 This regulation, 28 C.F.R. § 36.303, begins with
a general rule, virtually identical to the auxiliary aid and
service provision of Title III: “A public accommodation shall
take those steps that may be necessary to ensure that no
individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and
services,” subject to the fundamental alteration and undue
burden exceptions. Id. § 36.303(a) (emphasis added). The
regulation also includes an effective communication
3
The ADA directed the Attorney General to “issue
regulations . . . to carry out the provisions” of Title III, 42
U.S.C. § 12186(b), and to provide “appropriate technical
assistance manuals to individuals or entities with rights or
duties” under Title III. Id. § 12206(c)(3). In accordance with
this directive, the DOJ published its original set of regulations
pertaining to Title III in 1991. In September 2010, it published
revised regulations addressing, inter alia, the auxiliary aid
requirement of Title III. See generally 28 C.F.R. § 36.101, et
seq.
9
requirement, stating that public accommodations must “furnish
appropriate auxiliary aids and services where necessary to
ensure effective communication with individuals with
disabilities.” Id. § 36.303(c)(1). DOJ regulatory guidance
notes that the duty to provide effective communication with
customers is “implicit” in the duty of a public accommodation
to provide auxiliary aids and services. Id. Pt. 36, App. A.
The ADA supplies a definition for “auxiliary aids and
services.” The term includes, in relevant part: (1) “qualified
interpreters or other effective methods of making aurally
delivered materials available to individuals with hearing
impairments”; (2) “qualified readers, taped texts, or other
effective methods of making visually delivered materials
available to individuals with visual impairments”; and (3)
“other similar services and actions.” 42 U.S.C. § 12103(1)(A)-
(B), (D). DOJ implementing regulations offer a non-
exhaustive list of auxiliary aids and services that may be
required to “ensure effective communication with individuals
with disabilities.” 28 C.F.R. § 36.303(b), (c)(1); see also Id.
Pt. 36, App. A (explaining that the list of auxiliary aids
provided in Section 36.303 is non-exhaustive). This list
includes “[q]ualified interpreters on-site.” Id. § 36.303(b)(1).
DOJ regulatory guidance on auxiliary aids and services notes
that “if a deaf and blind individual needs interpreting services,
an interpreter who is qualified to handle the interpreting needs
of that individual may be required.” Id. Pt. 36, App. A.
The DOJ also issued a Technical Assistance Publication
in 2014 that provided guidance on communicating effectively
with individuals who have vision, hearing, or speech
disabilities. See Dep’t of Justice, ADA Requirements: Effective
Communication (Jan. 31, 2014),
10
http://www.ada.gov/effective-comm.htm. This publication
specifically mentions tactile interpreters as auxiliary aids or
services that may be used to communicate with individuals
who are deaf-blind. Id.
DOJ regulations caution that public accommodations
cannot expect a one-size-fits-all approach to satisfy their
obligations under the ADA. “The type of auxiliary aid or
service necessary to ensure effective communication will vary
in accordance with the method of communication used by the
individual; the nature, length, and complexity of the
communication involved; and the context in which the
communication is taking place.” 28 C.F.R. § 36.303(c)(ii).
Consistent with the text of Title III, the regulations
provide that a public accommodation may avoid ADA liability
for failure to provide an auxiliary aid or service only if it shows
that the aid or service in question “fundamentally alter[s] the
nature” of its goods or services, or “would result in an undue
burden, i.e., significant difficulty or expense.” Id. § 36.303(a).
The regulations also specify that a public accommodation is
not required to “alter its inventory to include accessible or
special goods,” such as “Brailled versions of books,” audio
books, or other items “that are designed for, or facilitate use
by, individuals with disabilities.” Id. § 36.307.
This appeal centers on the meaning of Title III’s
auxiliary aids and services requirement. With an
understanding of the statutory and regulatory context
surrounding that requirement, we turn to the merits of
McGann’s claim.
II.
11
The District Court had jurisdiction over this suit
pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291. In the context of a bench trial,
we exercise plenary review over the District Court’s
conclusions of law and review findings of fact for clear error.
VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 282-
83 (3d Cir. 2014).
III.
There is no dispute that McGann is disabled within the
meaning of the ADA. There is also no dispute that Cinemark
is a public accommodation under Title III of the ADA. The
issue we must resolve in this appeal is whether Cinemark’s
failure to provide McGann with a tactile interpreter,4 so that he
could experience the film Gone Girl in one of its theaters,
constitutes a Title III “special prohibition” regarding auxiliary
aids and services and thus violates Title III’s “general rule” that
no individual shall be denied the “full and equal enjoyment of
the goods [and] services” of “a place of public
accommodation.” 42 U.S.C. § 12182(a). The District Court
found that Title III did not obligate Cinemark to honor
McGann’s request because (a) his requested tactile interpreter
4
As discussed in Section I, two tactile interpreters
would be necessary for McGann to experience Gone Girl. We
refer to “interpreter” in the singular here for the sake of
simplicity, because the number of interpreters requested has no
bearing on whether Title III entitles McGann to this type of
auxiliary aid or service under the ADA. It may, however, bear
on whether providing this service imposes an undue burden on
Cinemark, which we discuss infra.
12
was not an “auxiliary aid or service” that satisfied the statutory
definition, and (b) McGann was not excluded from or denied
Cinemark’s services by the theater’s denying him a tactile
interpreter to experience the movie.
A.
We begin by considering whether, in the context of this
case, McGann’s requested ASL tactile interpreter is an
“auxiliary aid or service.” As detailed above, the ADA defines
the term to include (1) “qualified interpreters or other effective
methods of making aurally delivered materials available to
individuals with hearing impairments”; (2) “qualified readers,
taped texts, or other effective methods of making visually
delivered materials available to individuals with visual
impairments”; and (3) “other similar services and actions.” 42
U.S.C. § 12103(1)(A)-(B), (D). DOJ regulations include
“qualified interpreters” among examples of auxiliary aids and
services, 28 C.F.R. § 36.303, and DOJ technical assistance
materials specifically mention tactile interpreters as auxiliary
aids or services, Dep’t of Justice, ADA Requirements: Effective
Communication (Jan. 31, 2014),
http://www.ada.gov/effective-comm.htm.
Cinemark did not dispute that the ASL tactile interpreter
requested by McGann was a “qualified interpreter.” Nor did it
dispute that the tactile interpretation provided by this
“qualified interpreter” would “make aurally delivered
material[]” and “visually delivered material[]” available to
McGann, who has both hearing and visual impairments. 42
U.S.C. § 12103(1)(A)-(B). Therefore, McGann’s requested
ASL tactile interpreter “fall[s] comfortably within the scope of
th[e] definition” of “auxiliary aids and services” provided in
13
the text of the ADA and DOJ regulations. Arizona ex rel.
Goddard v. Harkins Amusement Enter., Inc., 603 F.3d 666, 674
(9th Cir. 2010). The DOJ, participating in this appeal as
amicus curiae in support of McGann, agrees. See DOJ Amicus
Br. 14, 24 (stating that “[a]n ASL tactile interpreter falls within
the [ADA]’s and the regulation’s definitions of ‘auxiliary aids
and services’”).
Despite the District Court’s acknowledgement that
“‘qualified interpreters’ are specifically listed in the ADA and
the Federal Regulations as an example of an auxiliary aid,”
App. 16, it found that McGann’s requested tactile interpreter
did not meet the definition of “auxiliary aids and services.”
The District Court explained that the word “auxiliary,” as
defined in the dictionary, connotes something that has a
“supplemental” relationship to something else, not something
that is “altogether new or different.” App. 16 (citing Webster’s
Third New Dictionary, Unabridged, s.v. “auxiliary,”
http://unabridged.merriam-webster.com). Relying on this
definition, it reasoned that since the service that Cinemark
provides—presenting movies—did not already include tactile
interpretation, tactile interpretation would be a new, not
supplementary, service and was therefore not an “auxiliary”
service under 42 U.S.C. § 12103(1) and 28 C.F.R. § 36.303.
There are several problems with how the District Court
interpreted “auxiliary aids and services” in this case. Most
broadly, applying the District Court’s definition would render
the auxiliary aids and services requirement of Title III
meaningless. All of the products, technologies, and services
explicitly listed in the statute and regulations as examples of
auxiliary aids and services would constitute “new” goods or
services escaping Title III’s mandate unless they were already
14
provided by a public accommodation voluntarily. In effect, no
public accommodation would need to provide them in the first
place. We decline to interpret Title III and the DOJ regulations
in such a manner. See Starbucks Corp. v. Wolfe’s Borough
Coffee, Inc., 736 F.3d 198, 209 (2d Cir. 2013) (explaining that
courts should “interpret statutes to give effect, if possible, to
every clause and word” rather than render some of them
meaningless); see also United States v. Am. Trucking Ass’ns,
Inc., 310 U.S. 534, 543 (1940) (cautioning courts against
construing statutes in a way that would produce “absurd”
results).
Second, the District Court need not have resorted to
dictionary definitions of the word “auxiliary” to understand the
meaning of “auxiliary aids and services” in Title III, since the
statute and DOJ regulations specifically define the term.
Stenberg v. Carhart, 530 U.S. 914, 942 (2000) (“When a
statute includes an explicit definition, we must follow that
definition, even if it varies from that term’s ordinary
meaning.”); Meese v. Keene, 481 U.S. 465, 484-85 (1987) (“It
is axiomatic that the statutory definition of the term excludes
unstated meanings of that term.”). The statute contains no
ambiguity as to whether a qualified interpreter fell within those
definitions; it was specifically listed as an example of an
“auxiliary aid or service.”
Third, even if there had been a reason to consult a
dictionary, the District Court overlooked another definition
provided for “auxiliary.” The primary dictionary definition
provided for the term “auxiliary” in the very same dictionary
cited by the District Court is “offering or providing help,
assistance, or support.” Webster’s Third New Dictionary,
Unabridged, s.v. “auxiliary,” http://unabridged.merriam-
15
webster.com; see also Oxford English Dictionary, s.v.
“auxiliary,” http://www.oed.com (offering as the primary
definition for “auxiliary”: “helpful, assistant, affording aid,
rendering assistance, giving support or succor”). The
relevance of this primary definition—“offering help”—in this
context is self-evident. The relevance of a secondary
definition—“supplementary” —is not.
Finally, if we were to embrace the “supplementary”
definition of “auxiliary,” McGann’s requested tactile
interpreter would still satisfy this definition. As the Ninth
Circuit pointed out in Harkins, “movie theaters’ primary
service is to screen films.” 603 F.3d at 674. Providing tactile
interpretation of a film being presented in a movie theater is
“not so removed from a theater’s usual business that [it] cannot
be deemed [a] ‘subsidiary’ or ‘supplemental’” service. Id.
For all of these reasons, we conclude that the tactile
interpreter McGann requested is an “auxiliary aid or service”
that satisfies Title III.
B.
Having determined that a tactile interpreter meets the
definition of “auxiliary aid or service” laid out in the ADA and
DOJ implementing regulations, we consider whether
Cinemark’s failure to provide tactile interpretation of the
movie Gone Girl excluded McGann from or denied him
Cinemark’s services. The District Court found that it did not.
We disagree.
In finding in favor of Cinemark, the District Court
adopted Cinemark’s argument that “Title III only ensures that
16
people with disabilities are not denied access to places of
public accommodation” and the services offered at those
places, but it does not “require a . . . public accommodation to
provide . . . goods and services specially designed for disabled
persons.” App. 10. Since Cinemark did not provide tactile
interpretation services for its movies in its normal course of
business, the District Court reasoned, tactile interpretation was
a “special” service not required under the law. This “special
goods and services” rule may have a foundation in Circuit
precedent and DOJ regulations, but those authorities do not
support the District Court’s extension of the rule to the
auxiliary aids and services requirement.
The District Court distilled the “special goods and
services” rule primarily from a line of circuit authority in which
disabled individuals claimed that Title III required insurance
companies to alter or modify their insurance policy products in
some way. For instance, in McNeil v. Time Insurance
Company, the plaintiff had purchased a health insurance policy
that capped AIDS-related benefits. 205 F.3d 179, 182 (5th Cir.
2000). Not long after acquiring the policy, the plaintiff was
diagnosed with AIDS and incurred related medical bills that
exceeded the policy’s cap. Id. The plaintiff filed suit, claiming
that the insurer’s failure to cover his excess medical expenses
constituted prohibited discrimination under Title III of the
ADA. Id. at 182-83.
The Fifth Circuit upheld the district court’s dismissal of
the plaintiff’s Title III claim, holding that Title III did not reach
the terms of the policies sold by the insurer since “a business
is not required to alter or modify the goods or services it offers
to satisfy Title III.” Id. at 186. The Court explained that “[t]he
provisions in §§ 12182(b)(1)(A)(i)-(iii) concerning the
17
opportunity to benefit from or to participate in a good or
service”—Title III’s “general prohibitions”—“do not imply
that the goods or services must be modified to ensure that
opportunity or benefit. Rather, this section only refers to
impediments that stand in the way of a person’s ability to enjoy
that good or service in the form that the establishment normally
provides it.” Id. at 186 n.9.
Numerous other Circuits, including ours, have applied
this reasoning in similar insurance benefits cases.5 Several of
these cases cited to the DOJ regulation, 28 C.F.R. § 36.307(a),
which provides the same general rule: a public accommodation
is not required to “alter its inventory to include accessible or
special goods that are designed for, or facilitate use by,
5
See Weyer v. Twentieth Century Fox Film Corp., 198
F.3d 1105, 1115 (9th Cir. 2000) (holding that an insurer could
not be held liable under Title III of the ADA for limiting mental
illness benefits because the ADA did not require the provision
of different goods and services); Doe v. Mut. of Omaha Ins.
Co., 179 F.3d 557, 558 (7th Cir. 1999) (holding that an
insurance company was not required to offer a different
insurance policy to individuals with AIDS than it offered to
other individuals, because the ADA “d[id] not regulate the
content of insurance policies”); Lenox v. Healthwise of Ky.,
Ltd., 149 F.3d 453, 456-57 (6th Cir. 1998) (holding that
defendant’s health coverage policy did not violate the ADA by
excluding coverage for certain types of transplant procedures
that affect particular categories of disabled individuals); Ford
v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998)
(explaining that “an insurance office . . . need not provide
insurance that treats the disabled equally with the non-
disabled”).
18
individuals with disabilities,” such as “Brailled versions of
books.” 28 C.F.R. § 36.307(a); see also Doe, 179 F.3d at 559.
The District Court extended the reasoning of this line of
authority to the auxiliary aids and services requirement, finding
that because Cinemark does not normally offer tactile
interpretation of movies for any of its patrons during regular
screenings, tactile interpretation would be a “special” service
that is not required under these cases. The District Court’s
conclusion, in the context of the statutory scheme, meant that
the “special goods and services” rule served as a limitation on
Title III’s mandate that public accommodations provide
auxiliary aids and services.
Critically, however, none of the cases in the McNeil,
Doe and Weyer line of authority turned on—or even touched
on—the auxiliary aids and services requirement. So even if
this line of authority were to stand for the general proposition
that public accommodations do not have to provide different
products or services for their patrons with disabilities, those
cases say nothing about how the auxiliary aid and service
requirement relates to this general proposition. Those circuits
had no reason to consider the question. Likewise, 28 C.F.R. §
36.307(a) does not address the auxiliary aids and services
requirement.
The Ninth Circuit, in Harkins, did have occasion to
examine the relationship between the “special goods and
services” rule and the auxiliary aids and services requirement.
The Harkins plaintiffs challenged under Title III the
defendant’s failure to provide closed captioning and
descriptive narration to individuals with disabilities who
sought to screen films in its movie theaters. 603 F.3d at 668-
19
69. The district court, relying on McNeil and Weyer, had
dismissed the plaintiffs’ claims, finding that the ADA did not
require movie theaters to alter the content of the services
provided. Id. at 670-71.
The Ninth Circuit reversed, holding that closed
captioning and descriptive narration constituted “auxiliary aids
and services” under the statute, which a movie theater must
provide to patrons with disabilities under the ADA, subject to
available defenses. Id. at 675. In doing so, the Court rejected
the defendant’s and the district court’s extension of the
reasoning in Weyer to limit the auxiliary aid and service
requirement, 42 U.S.C. § 12182(b)(2)(A)(iii). The Court
explained:
In arguing that the ADA’s
requirement of auxiliary aids and
services is limited by Weyer,
[Defendant] puts the cart before
the horse: Weyer does not limit
subsection 42 U.S.C. §
12182(b)(2)(A)(iii)’s requirement
that a public accommodation
provide auxiliary aids and
services; the requirement that
establishments provide auxiliary
aids and services limits Weyer’s
general rule that public
accommodations do not have to
provide different services for the
disabled. Although Weyer may be
controlling in the provision of
goods and services generally, here
20
Plaintiffs are seeking an auxiliary
aid, which is specifically mandated
by the ADA to prevent
discrimination of the disabled.
Harkins, 603 F.3d at 671-72. We agree.
For the reasons pointed out in Harkins and already
discussed here, the auxiliary aids and services requirement
would be “effectively eliminate[d]” if limited by the “special
goods and services” rule. Id. at 672. Unless already provided
voluntarily, auxiliary aids and services would never be
required, because “[b]y its very definition, an auxiliary aid or
service is an additional or different service that establishments
must offer the disabled.” Id. at 672 (emphasis added). We,
like the Ninth Circuit, reject this interpretation of Title III. See
Starbucks Corp., 736 F.3d at 209; Am. Trucking Ass’ns, 310
U.S. at 543.
At a more fundamental level, the District Court’s
analogy to these insurance policy cases failed to account for
the context-specific nature of the auxiliary aids and services
requirement. Insurance companies and retail stores, such as
bookstores, generally offer goods and services that are
different in type and in character from those offered by
entertainment venues like movie theaters. What constitutes a
denial of or exclusion from those goods or services will differ
accordingly. Therefore, a court cannot simply assume that
what satisfies Title III’s auxiliary aids and services
requirement in one context will necessarily satisfy it in another.
Cf. 28 C.F.R. § 36.303(c) (noting that the auxiliary aid or
service required will vary according to the context in which a
communication takes place).
21
A bookstore offers customers the ability to select and
purchase books from the store’s shelves and inventory. Our
case law and 28 C.F.R. § 36.307(a) instruct that a bookstore
may not need to offer Brailled versions of books, if doing so
would require altering the mix of goods provided. See 28
C.F.R. § 36.307(a); Ford, 145 F.3d at 613. But we would have
little trouble concluding that a bookstore had denied service to
a customer if that customer was forbidden from perusing the
store’s existing selection or purchasing whatever book he or
she chose. So, as the District Court’s opinion implied and
Cinemark does not dispute, the bookstore may need to provide
an auxiliary aid or service to assist a customer who is blind
with selecting and purchasing a book, so that he or she is not
excluded from or denied the goods already offered by the
bookstore, in violation of Title III.
Likewise, insurance companies offer customers a
number of standardized insurance contracts available for
purchase. An insurance company—that otherwise meets the
definition of “public accommodation”—may not need to offer
an insurance product tailored to disabled individuals, under
McNeil, Doe, and similar cases. But it may need to provide an
auxiliary aid and service that will communicate the contents of
a written policy to a customer who is blind so that he or she can
make an informed purchase.
The District Court seemed to assume, based on this line
of authority, that a public accommodation’s obligation to
provide auxiliary aids and services does not extend beyond a
patron or customer’s selection of and payment for the good or
service of interest. So as it pivoted in its opinion from
bookstores and insurance companies to the entertainment
22
context, the District Court stated as a legal premise that Title
III does not require art galleries to provide verbal descriptions
of paintings, or concert halls to provide descriptions of the
music being played. Instead, the District Court explained, Title
III simply requires that paintings and performances on display
“are accessible” to patrons with disabilities. App. 15. In other
words, auxiliary aids and services are required only until a
disabled patron has purchased a ticket and is situated in a place
where he or she could perceive the entertainment, but for his
or her hearing or vision disability. The District Court cited to
no authority to support this specific legal premise, and
Cinemark does not provide any on appeal, despite reiterating
the same premise in its briefing.
As the DOJ pointed out in its amicus brief, it has
regularly taken the position in litigating and enforcing the
ADA that entertainment venues must provide auxiliary aids
and services to make the content of their performances
accessible to persons with vision and hearing impairments.
Consistent with this position, the DOJ amended 28 C.F.R. §
36.303, after oral argument in this case, to require movie
theaters, under their existing Title III obligations, to provide
closed captioning and audio description for digital movies
presented in those theaters’ auditoriums.6 28 C.F.R. §
6
These amendments to 28 C.F.R. § 36.303 impose
specific and detailed requirements only on movie theaters
presenting digital movies that are produced or distributed with
closed captioning or audio description features; almost all new
digital movie releases are distributed with such features. 28
C.F.R. § 36.303; 81 Fed. Reg. 87,348-01. Nevertheless, the
supplementary information included with the DOJ’s final rule
repeatedly emphasizes that the rule does not change all movie
23
36.303(g)(2); see also Nondiscrimination of the Basis of
Disability by Public Accommodations – Movie Theaters;
Movie Captioning and Audio Description, 81 Fed. Reg.
87,348-01 (2016) (final rule) (codified at 28 C.F.R. Pt. 36). To
the extent that the District Court relied on this legal premise to
conclude that Title III did not obligate Cinemark to provide
auxiliary aids and services during the movie presentation itself,
that reliance was misguided.
Entertainment venues, such as concert halls and movie
theaters, offer to the public something different than stores
offering goods or products for purchase. They offer an
entertainment service. As Cinemark acknowledged, customers
do not pay these entertainment venues for tickets to sit in an
empty auditorium. They pay to experience the entertainment
being offered. App. 49 (“According to . . . Petengill, people
‘come to the theatre to watch a movie, not just sit in a seat.’”);
see also Ball v. AMC Entm’t, Inc., 246 F. Supp. 2d 17, 24
(D.D.C. 2003) (rejecting the same “special goods and services”
argument advanced by defendant movie theaters and
highlighting that the defendants had “fail[ed] to recognize that
they are not similarly-situated to bookstores and video stores
that provide goods because [they] provide the service of
screening first run movies”). The provision of this
entertainment service continues after a patron selects a movie
of interest, purchases a ticket to that movie, and walks into the
auditorium. So, too, does the obligation to provide auxiliary
aids and services.
theaters’ “longstanding” obligation “to provide effective
communication to persons with disabilities through the use of
auxiliary aids and services.” 81 Fed. Reg. 87,348-01.
24
The District Court’s interpretation of movie theaters’
obligations under the auxiliary aids and services requirement
is also inimical to the purposes of Title III, as reflected
explicitly in the ADA itself, as well as in the legislative history
of the statute. Among those problems Congress sought to
address by enacting the ADA was the “serious and pervasive
social problem” of “discrimination against individuals with
disabilities” by “isolat[ing] and segregat[ing]” them in
American society. 42 U.S.C. § 12101(a)(2). Congress stated
in the text of the ADA that this isolation and segregation of
individuals with disabilities persisted “in such critical areas as
. . . public accommodations . . . [and] recreation.” Id. §
12101(a)(3).
Indeed, data and testimony collected by Congress as it
developed the ADA “painted a sobering picture of an isolated
and secluded population of individuals with disabilities” who
“d[id] not frequent places of public accommodation.” S. Rep.
No. 101-116, at 10-11 (1989); H.R. Rep. No. 101-485, pt. 2, at
34-35, reprinted in 1990 U.S.C.C.A.N. 303, 316. Due to
communication barriers, among other reasons, the “large
majority of people with disabilities d[id] not go to movies,
d[id] not go to the theater, d[id] not go to see musical
performances, and d[id] not go to sports events.” S. Rep. No.
101-116, at 10-11; H.R. Rep. No. 101-485, at 34-35. “The
extent of non-participation . . . in social and recreational
activities [was] alarming.” S. Rep. No. 101-116, at 10-11; H.R.
Rep. No. 101-485 at 34-35. So, after its thorough and fact-
intensive investigation, “Congress concluded that there was a
‘compelling need’ . . . to integrate [individuals with
disabilities] ‘into the economic and social mainstream of
American life.’” PGA Tour, 532 U.S. at 675 (quoting S. Rep.
No. 101-116; H.R. Rep. No. 101-485); see also 42 U.S.C. §
25
12101(a)(7) (among the “Nation’s proper goals” are “equality
of opportunity” for and “full participation” in American life by
individuals with disabilities).
This legislative history reflects Congress’ recognition
that presenting movies in the theater is a component of the
“social mainstream of American life.” PGA Tour, 532 U.S. at
675 (quoting S. Rep. No. 101-116; H.R. Rep. No. 101-485).
Indeed, our Supreme Court has commented on the importance
of movies in American culture:
It cannot be doubted that motion
pictures are a significant medium
for the communication of ideas.
They may affect public attitudes
and behavior in a variety of ways,
ranging from direct espousal of a
political or social doctrine to the
subtle shaping of thought which
characterizes all artistic
expression. The importance of
motion pictures as an organ of
public opinion is not lessened by
the fact that they are designed to
entertain as well as to inform.
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). If
we interpret the auxiliary aids and services requirement to
facilitate only the process of directing an individual with
hearing or vision impairments to the right auditorium, which
is showing a movie they cannot hear or see (or both), the
requirement does little, if anything, to remediate the very
problem Congress designed it to address.
26
For these reasons, we conclude that Cinemark’s failure
to provide McGann with a tactile interpreter for a presentation
of the movie Gone Girl excluded him from or denied him
Cinemark’s services.
C.
Having established that Title III’s auxiliary aids and
service requirement applies to McGann’s request for a tactile
interpreter to allow him to experience a movie in Cinemark’s
theater, we turn to Cinemark’s available defenses. As
discussed, Title III does not obligate a public accommodation
to furnish a requested auxiliary aid or service if doing so would
“fundamentally alter the nature of the good, service, facility,
privilege, advantage, or accommodation being offered” or
“would result in an undue burden.” 42 U.S.C. §
12182(b)(2)(A)(iii). The public accommodation bears the
burden of showing either defense. Id.; 28 C.F.R. § 36.303.
Cinemark has asserted in this litigation its fundamental
alteration defense. In its answer to McGann’s complaint, it
stated that providing McGann with his requested interpreter
“would result in a fundamental alteration of the goods and
services provided by Cinemark, as Cinemark does not provide
sign language or tactile interpreters for any of its exhibitions in
the normal course of business.” App. 46. In its briefing to this
Court, Cinemark describes its defense as “consistent with the
‘accessible and special goods’ rule articulated in 28 C.F.R. §
36.307.” Appellee’s Br. 49. For the reasons already discussed,
this argument fails.
27
Moreover, Cinemark does not dispute that tactile
interpretation of a movie does not require any changes to the
video or audio content of the movie, the screens or sound
systems that present the movie, or the physical environment—
including the lighting—in or around the theater. We thus do
not see how it constitutes “a modification that is so significant
that it alters the essential nature of the . . . services,” see Dep’t
of Justice, ADA Title III Technical Assistance Manual
Covering Public Accommodations and Commercial Facilities,
at III-4.3600 (1993), that Cinemark provides, or alters the
“fundamental character” of those services,” see PGA Tour, 532
U.S. at 683. As the DOJ points out, “[f]or every patron in the
theater who does not have a sensory disability and does not
request an auxiliary aid, the ‘fundamental character’ of the
movie remains unchanged.” DOJ Amicus Br. 31.
2
Cinemark also asserted an undue burden defense.
However, the District Court did not reach it, as it entered
Judgment in favor of Cinemark on other grounds. DOJ
regulations instruct that “undue burden” under Title III “means
significant difficulty or expense.” 28 C.F.R. § 36.104. The
regulations also provide a lengthy list of factors for courts and
public accommodations to consider when evaluating whether
taking a particular action, such as providing a requested
auxiliary aid or service, would result in an undue burden.
These factors include:
(1) The nature and cost of the
action needed under this part;
(2) The overall financial resources
of the site or sites involved in the
28
action; the number of persons
employed at the site; the effect on
expenses and resources; legitimate
safety requirements that are
necessary for safe operation,
including crime prevention
measures; or the impact otherwise
of the action upon the operation of
the site;
(3) The geographic separateness,
and the administrative or fiscal
relationship of the site or sites in
question to any parent corporation
or entity;
(4) If applicable, the overall
financial resources of any parent
corporation or entity; the overall
size of the parent corporation or
entity with respect to the number
of its employees; the number, type,
and location of its facilities; and
(5) If applicable, the type of
operation or operations of any
parent corporation or entity,
including the composition,
structure, and functions of the
workforce of the parent
corporation or entity.
Id. Given the fact-intensive nature of the undue burden
inquiry, we will remand this portion of the District Court’s
judgment for the District Court to undertake the inquiry in the
first instance.
29
IV.
For the foregoing reasons, we will vacate the District
Court’s entry of Judgment for the Defendant and remand the
case for consideration of Cinemark’s undue burden defense.
30