000710	07.wma
000000	Clifford R. Michel:  So Amira, are there any limitations to the standards for reasonable accommodations?
000006	Amira Day:  There are.
000007	There are two affirmative defenses to the requirement to make reasonable accommodations.
000012	The first is that there's no obligation to make an accommodation that's going to constitute a fundamental alteration of the goods and services being provided.
000021	And there's no requirement to make the accommodation if doing so would impose and undue burden on the entity providing the goods and services.
000031	So the first question of fundamental alteration is really a case by case determination.
000038	So it's a difficult standard to analyze and, again, it varies from case to case and it's also relatively hard to apply in the website context.
000049	So some of the case law that you look at or some of the examples that are given in terms of what would constitute a fundamental alteration are there would be
000058	obligation for a book store to change the goods and services that it provides.
000104	So, for example, a bookstore would not have to carry Braille books, but it would have to sell the books that it does carry to blind patrons.
000114	That doesn't mean that they have to now stock a different kind of goods.
000117	They just have to make the goods that they do sell available.
000120	Another example is a case that came out of Florida calling Larson v Carnival Corp and it's a case where the plaintiff brought suit against the Carnival Cruise Lines
000130	and the court determined that requiring the cruise ship to wait at port indefinitely for a passenger to get a replacement medical device was a fundamental alteration
000140	of the services that the cruise line provided, in that delaying the ship would have potentially interfered with various scheduled port stops on the cruise
000148	and the plans of other passengers for those stops.
000151	Another example is a case involving a plaintiff who suffered from cystic fibrosis and allergies
000159	and asthma and he claimed that a music venue violated Title III by allowing smoking on its premises.
000205	And the court rejected that claim because the venue was able to demonstrate that if it had banned smoking, it would have a severe economic impact on its business
000217	and would result in major bands not coming to play at the music venue.
000220	That case is called Emery v Caravan of Dreams Inc.
000224	And it's a Northern District of Texas case in '95.
000228	In contrast, another case called Ball v AMC Theaters that came out of the District Court in DC, in 2003 found that requiring a movie theater, AMC movie theaters,
000239	to display closed captioned films and to install rear window captioning
000245	in its movie theaters would not be a fundamental alteration of the goods and services that it provided.
000249	And the rear window captioning is a program, in contrast to open captioning, which actually displays the text on the base of the screen in the movie theater,
000257	rear widow captioning involves a device that can be put in the cup holders of individual seats that displays the text on a glass screen
000310	so that for an individual viewer the words appear on the bottom of the screen, but it's not something that every other viewer in the movie theater has to look at.
000319	So the court determined that doesn't fundamentally alter the nature of the services that the movie theater is providing
000324	because they're not required to play only closed captioned movies and they're not required to change the way that the movie is displayed for every patron.
000334	And one of the interesting things in that case, actually, is that the court focused on the distinction between the goods provided and the services provided.
000345	So where the movie theater is providing the service of screening first run films and it needed to make that service available to the disabled,
000359	to the deaf patrons in this case or the hearing impaired patrons, and in contrast,
000405	and drew the distinction between a bookstore carrying Braille books where they're supplying a particular good.
000411	So that it's not that the movie theater was being required to only run closed captioned films,
000419	it just needed to make the films that had closed captioning accessible to its viewers.
000425	Clifford R. Michel:  So the first limitation that you've talked about is a term, the fundamental alteration, affirmative defense, is that right, Amira?
000435	Amira Day:  Right.
000436	Clifford R. Michel:  And there's a second affirmative defense you mentioned.
000438	Amira Day:  Right, there's no obligation to make an accommodation where to do so would involve an undue burden on the provider of the services.
000447	And this is, again, a sort of case by case determination and it involves balancing on the part of the court.
000454	Generally, the court is looking at the nature of the accommodation required and the cost involved.
000501	And they'll look at the financial resources that the provider of services has at its disposal, whether it's a small company or a large company.
000509	If it's a smaller company, is there a larger parent corporation that's involved that would be able to put financial resources towards the accommodation,
000517	generally, just balancing the resources available and the cost involved.
000523	And even where a particular modification is determined to impose an undue burden or is determined to fundamentally alter the nature of the goods
000531	or services provided, a public accommodation would still have to provide an alternative modification or auxiliary aid if one exists.
000542	So even if the best modification would impose an undue burden or would be a fundamental alteration of the goods or services, if there is a less desirable
000550	or second tier accommodation that's available, there would be an obligation that wouldn't cause an undue burden
000558	or wouldn't fundamentally alter the nature of the services provided.
000601	There is an obligation to provide that second tier modification.
000606	So, for example, the court in the Target case mentions the example of a restaurant not having to make its menu available in Braille,
000617	but would need to make sure that staff people are available to describe the items on the menu or read the menu, if necessary.
000623	So there is an issue in the Target case of whether -- the court didn't address the issue of whether allowing the accommodations that the plaintiff sought
000636	would be an undue burden on Target, but suggested that if it was ultimately determined that that was the case there may be alternative modifications
000643	that would be appropriate, such as having telephone staff available to be able to navigate, to describe the items on the website.
000652	So generally, the focus is on effective communication and on implementing the best available modification that doesn't impose an undue burden
000705	or fundamentally alter the services being provided.
000707	Clifford R. Michel:  Thank you.
000709