931 F.3d 959
9th Cir.2019Background
- Mark Tauscher, profoundly deaf and primarily an ASL user, registered for PAR continuing-education seminars in 2013 and 2014 and requested an ASL interpreter.
- PAR (Phoenix Association/Board of Realtors) refused to provide an ASL interpreter, offered an FM loop (which Tauscher said was ineffective), instructor Q&A at breaks, bringing a friend to interpret, or taking online courses; it later refunded his fee and cancelled a registration.
- Tauscher sued under Title III of the ADA and the Arizonans with Disabilities Act alleging failure to provide appropriate auxiliary aids for effective communication.
- The district court granted summary judgment for PAR, reasoning PAR had engaged in dialogue and that Tauscher refused to discuss alternatives; the Ninth Circuit reversed and remanded.
- The Ninth Circuit found genuine factual disputes about whether PAR offered effective auxiliary aids (captioning, interpreter, etc.) and held the Title I “interactive process” requirement does not apply to Title III public-accommodation obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PAR failed to provide appropriate auxiliary aids to ensure effective communication under Title III | Tauscher: PAR violated ADA/AzDA by refusing to provide an ASL interpreter and not offering an effective alternative | PAR: It engaged in dialogue and offered alternatives; the ultimate choice rests with PAR; Tauscher rejected alternatives | Reversed: factual dispute exists whether PAR offered effective auxiliary aids; summary judgment for PAR vacated and remanded |
| Whether the Title I "interactive process" doctrine applies to Title III public accommodations | Tauscher: PAR should meaningfully consult to identify effective measures (argued dialogue inadequate) | PAR: Tauscher refused to engage in discussion of alternatives, so PAR satisfied obligations | Court: Title III does not incorporate the Title I interactive-process requirement; public accommodations retain decision authority and cannot avoid duties simply because a requester declines to discuss alternatives |
| Whether specific alternatives offered by PAR (FM loop, lipreading, bring friend, online courses) satisfied ADA duties | Tauscher: Alternatives were ineffective—FM loop unusable, lipreading ineffective for him, bringing friend is impermissible, online courses segregate | PAR: Offered reasonable, less costly measures; captioning may be feasible | Court: Several alternatives were inadequate as a matter of law (e.g., requiring friend to interpret; segregation by online-only). Genuine issues remain whether lipreading offer or captioning would be effective for Tauscher |
| Whether providing an ASL interpreter (or captioning) would be an undue burden on PAR | Tauscher: PAR has sufficient assets and resources; creates factual dispute | PAR: Interpreter cost ($1,680–$3,360) relative to small course fee and course losses creates a significant difficulty/expense—undue burden | Court: Undue-burden determination requires holistic factual inquiry into PAR’s finances and costs; district court should decide in first instance on remand |
Key Cases Cited
- White v. Pauly, 137 S. Ct. 548 (Sup. Ct.) (standard for viewing facts on summary judgment)
- Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128 (9th Cir. 2001) (interactive process requirement in ADA employment context)
- Koester v. Young Men’s Christian Ass'n of Greater St. Louis, 855 F.3d 908 (8th Cir. 2017) (questioning applicability of interactive-process concepts to Title III)
- Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666 (9th Cir.) (undue-burden framework under Title III)
- Roberts v. KinderCare Learning Centers, Inc., 86 F.3d 844 (8th Cir. 1996) (example of undue-burden financial analysis)
- Vinson v. Thomas, 288 F.3d 1145 (9th Cir.) (construed Title II employment precedent; not controlling for Title III)