About Effective Communication in Title II and Title III
SUMMARY: The Americans with Disabilities Act (ADA) discusses communications-related requirements for Title II and Title III entities.
The Americans with Disabilities Act (ADA) sets the groundwork for people with communications disabilities to interact successfully with many types of organizations and businesses. The rules are slightly different, however, depending on whether the specific situation is covered by Title II or Title III of the ADA. Title II is about state and local governments (public entities), while Title III is about businesses and nonprofits that are open to the public (public accommodations).
When it comes to effective communication, the ultimate goal for both Title II and Title III entities is to ensure that their communication with individuals with hearing-, visual-, or speech-related disabilities (communications disabilities) is as effective as that offered to anyone else. To do this, a public entity or public accomodation provides an auxiliary aid or service, such as an alternative format of a document, a sign language interpreter, or allowing extra time for a person using a communication board or device.
How does the entity decide what aid or service to use? Two factors come into play: the preference of the person with a disability is the first factor, and the nature, complexity, and importance of the communication is the second.
A unique responsibility of a Title II entity is that it must give primary consideration to an individual’s preferred method of communicating. Primary consideration means a Title II entity must provide an individual with their chosen method of communication. An exception would be if that chosen method causes a fundamental alteration in the entity’s service, program, or activity, or an undue burden (significant difficulty or expense). For example, a woman who is low vision requests that her town provide her with a large-print version of the trash pick-up schedule instead of the standard print copies available in the town hall. The town responds by giving her a large-print version so that she is equally able to access the information.
In contrast, a Title III public accommodation is encouraged to ask an individual for their preference, but there is no obligation to honor it. For example, the same woman who is low vision goes to a restaurant. She requests a large-print version of the menu. The waiter chooses to read the menu to her as an alternative to providing large print because the restaurant has not chosen to make a large-print menu. The lack of primary consideration for public accommodations, however, does not mean that a public accommodation can simply provide whatever auxiliary aid or service they wish—it does not have to offer an aid or service that would result in an undue financial or administrative burden or in a fundamental alteration, but some means of effective communication should be found.
In addition, neither Title II nor Title III entities can pass along the cost of the auxiliary aid or service to the person making the request. Doing so is called a surcharge and is expressly prohibited by the regulations for Title II and III of the ADA.
Nature, Complexity, and Importance
Primary consideration is a requirement for Title II and is recommended for Title III. Beyond this, entities must consider the nature, complexity, and importance of the communication. For example, if Micha, who is Deaf and who is comfortable with sign language, goes to her doctor to pay a bill, a sign language interpreter is likely not needed for this transaction. However, if Micha has an appointment to discuss her diagnosis, then the doctor should provide a qualified sign language interpreter for the visit. The doctor may not charge a fee for providing the interpreter as that would be a surcharge.
As another example, consider Bill who became blind later in life and does not read Braille. Bill needs to complete some documents for a municipal court case. Bill requests that the court provide an accessible electronic version of the documents. As a public entity, the court should provide the materials in an accessible electronic format. The court may not charge a fee for this auxiliary aid.
To conclude, providing effective communication is a responsibility of both public entities and public accommodations under the ADA. These covered entities should consider the nature, complexity, and importance of the communication. A Title II public entity must also give primary consideration to the communication choice of the individual. Ultimately, the communication must be equally effective for the person with a disability as for anyone else. Any cost associated with providing the auxiliary aid or service cannot be passed on to the individual with a disability; the cost is the responsibility of the entity. Each situation must be looked at on a case-by-case basis to understand what is the best means of effective communication.
Our favorite resource about effective communications for Title II and Title III entities is ADA Requirements: Effective Communication, a fact sheet from the US Department of Justice, Civil Rights Division. It was published by the ADA National Network.