Lawyers and the Deaf Community

Thursday, September 13, 2012 8:30 a.m.–11:30 a.m. DoubleTree Hotel Portland, Oregon 3 General CLE or Access to Justice credits

Lawyers and the Deaf Community

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2012 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Lawyers and the Deaf Community

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Table of Contents 1. Working with Deaf Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–i — Dennis Steinman, Kell Alterman & Runstein LLP, Portland, Oregon 2. Working with the Deaf Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–i — Julie Simon, The Language Door, Ashland, Oregon 3. Working with Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–i — Edward C. Alletto, Court Interpreter Services, Oregon Judicial Department, Salem, Oregon 4.

Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–i — Edward C. Alletto, Court Interpreter Services, Oregon Judicial Department, Salem, Oregon — Julie Simon, The Language Door, Ashland, Oregon — Dennis Steinman, Kell Alterman & Runstein LLP, Portland, Oregon

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Schedule 7:30 Registration 8:30 Working with Deaf Clients F ADA and Oregon legal requirements for lawyers F In-office meetings F Court sessions and other legal settings Dennis Steinman, Kell Alterman & Runstein LLP, Portland 9:30 Working with the Deaf Community F Myths and realities F Communication access Julie Simon, The Language Door, Ashland 10:30 Break 10:45 Working with Interpreters F Who pays F Privilege issues F Requesting interpreters Edward C. Alletto, Court Interpreter Services, Oregon Judicial Department, Salem 11:30 Adjourn

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Faculty Edward C. Alletto, CSC; OIC:v/s, s/v; SC:L, Court Interpreter Services, Oregon Judicial Department, Salem. Mr. Alletto was trained as an interpreter in 1978 at the National Technical Institute for the Deaf in Rochester, New York, and graduated from the Rochester Institute of Technology with a business degree. He had a freelance practice in New York City for 13 years before arriving in Portland in 1994 to continue his profession. In 2003, he teamed up with SignOn Inc. of Seattle to establish SignOn-Oregon LLC, a sign language interpreting agency that offered both video and in-person interpreting. Mr. Alletto has interpreted in courtrooms in New York and Oregon since the mid 1980s. He joined the Oregon Judicial Department’s interpreting staff in 2007 as an ASL Interpreter II. Julie Simon, Ph.D., CI, CT, The Language Door, Ashland. Dr. Simon has been an American Sign Language/ English Interpreter for over 29 years and an interpreter educator for over 22 years, having taught in both pre-service and in-service settings on a wide range of topics. She holds certification from the Registry of Interpreters for the Deaf. In March 2007, Dr. Simon founded The Language Door, an education and resource network for interpreters, translators, and educators. Prior to opening The Language Door, she served as Administrator for the Western Region (formerly Region X) Interpreter Education Center at Western Oregon University. She received her doctorate from the University of Arizona in Language, Reading, and Culture and her Masters from Boston University in Deaf Education/ASL Studies. Dennis Steinman, Kell Alterman & Runstein LLP, Portland. Mr. Steinman has a strong interest in disability law and other practice areas, including business, real estate, and fair housing law. He successfully litigated Green v. Housing Authority of Clackamas County, which established the law in Oregon for reasonable accommodation and assistance animals. Mr. Steinman is fluent in American Sign Language, and a substantial portion of his practice is working with hearing-impaired individuals. Mr. Steinman is past chair of the Oregon State Bar Civil Rights Section and a former member of the Disability Rights Oregon Board of Directors. Mr. Steinman is an adjunct professor of law at Lewis & Clark Law School and teaches federal litigation.

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Chapter 1

Working with Deaf Clients Dennis Steinman Kell Alterman & Runstein LLP Portland, Oregon Contents Scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1 Scenario 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1 Scenario 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2 Scenario 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3 Scenario 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–4 Scenario 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–5 Appendixes A.

“Now Hear This: Lawyers and the ADA” . . . . . . . . . . . . . . . . . . . . . . . . . . 1–7

B.

42 USC §§ 12181-12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–11

C.

28 CFR 36.104; 28 CFR 36.302–36.303 . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–17

D.

ORS 659A.400 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–25

E.

“Public Accommodations and the ADA Amendments Act” . . . . . . . . . . . . . . .1–27

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Chapter 1—Working with Deaf Clients Scenarios Scenario 1 You are a general practice attorney. You receive a call from a family member of an individual who wants to meet with you about a legal matter. The legal matter is of a kind that you normally handle. The family member tells you that the individual could not call you himself because he is hearing-impaired. You schedule a time for the individual to come to your office for the initial consultation. The family member requests that you have a sign language interpreter present. Do you have to provide a sign language interpreter at your own expense, or can you require the prospective client to pay for the cost? Can you require the prospective client to choose a sign language interpreter for the session on his own and make the arrangements, or do you have an obligation to do so?

Does the presence of the sign language interpreter destroy the attorney-client privilege?

A.

The family member says that she can provide sign language interpretation for the discussion and asks to be present as an interpreter.

Do you have to allow the family member to attend, or can you request that an independent thirdparty interpreter attend instead? What if the legal matter concerns an issue that may affect the family member (for example, a will or a trust) and you would rather not have the family member present? B.

The family member says that she is adept at sign language and will also attend the initial consultation but does not want to provide the sign language interpretation for the discussion.

Can you require the family member to provide the interpretation services in order to save money? C.

The family member says that the prospective client does not understand sign language and needs “real-time captioning.”



Do you have to accommodate the individual by obtaining real-time captioning?

D. You retain the client and want to talk to him on the telephone about case-sensitive confidential information.

Do you have to pay for placing phone calls to him over a relay line?

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Chapter 1—Working with Deaf Clients Scenario 2 You are an attorney with a very large law firm who participates in the Oregon State Bar’s Lawyer Referral Service (the OSB refers clients to you, and you provide an initial consultation for no more than $35). You agree to provide an initial consultation for a hearing-impaired prospective client who will require the services of a sign language interpreter. You learn that a sign language interpreter will charge you $50 for the one-hour consultation. Do you have to pay for the sign language interpreter, even though you will end up losing money on this transaction? A. You are a solo attorney that has just received the same request. Does your status as a small law firm impact your responsibilities? What if you are a brand-new attorney who just hung out your own shingle? B. You provide 100 hours of pro bono representation out of the 2,000 hours you bill each year. The work you will do for the prospective client with a hearing impairment is part of your pro bono work. Do you have to pay for the sign language interpreter, even though you will not collect any money from your client at all?

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Chapter 1—Working with Deaf Clients Scenario 3 After your initial consultation with the hearing-impaired individual, you accept the case and begin representing him.

Do you have to hire a sign language interpreter for the following events?



F

The client comes to your office to discuss detailed strategy regarding his matter.



F

The client comes to your office to sign documents.



F

The client is going to be deposed by opposing counsel.



F

The client will be attending an arbitration/mediation with you.



F The client wants to watch you appear in court at a motion hearing for his case, where he is not required to testify at all.



F

The client will be testifying in court.



F

The client will participate in informal settlement negotiations at your office.

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Chapter 1—Working with Deaf Clients Scenario 4 You represent a client in a lawsuit. One of the main fact witnesses in the case has a hearing impairment and requires a sign language interpreter to communicate with you. Do you have to hire a sign language interpreter for the following events, or can you pass the cost along to your client?

F

You interview the witness about the case.



F

You want to take the witnesses’ deposition to secure her testimony.



F

You call the witness to testify at a hearing.

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Chapter 1—Working with Deaf Clients Scenario 5 A.

A hearing-impaired client retains you to draft a contract for her. You retain the client and do the work for her, but as you are about to provide her with a draft of the contract, she informs you that because she is deaf she needs to have the contract interpreted into ASL.



Do you have to comply with this demand?

The client requests that you have an interpreter “read” the document to her for her consideration. However, the matter is complex, and you would like her to review it carefully before approving it. You want to provide her a copy of the contract. What if she does not want to just read the copy without an interpreter, but you think it would be in her best interests to have one? B.

The hearing impaired client will be coming to your office to sign the contract. She has a hearing ear dog as a service animal. The building where your law office is located has a strict “no dogs allowed” policy, and you have seen the building security ask other dog owners to remove their dogs from the building.



Can you allow the client to come to your office with the service animal?

What if you do not mind the service animal in your office but building management informs you that you cannot allow the animal in the building again. Can you be liable for the building’s actions? Can you avoid these problems and agree to meet your client at a coffee shop across the street? What if you suggest this and the client wants to go to your office instead?

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Chapter 1—Working with Deaf Clients Appendix A—“Now Hear This: Lawyers and the ADA”1



 Reprinted with permission from the Oregon State Bar Bulletin, October 1999.

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Chapter 1—Working with Deaf Clients Appendix B—42 USC §§ 12181-12182 42 USC § 12181—Definitions

As used in this subchapter:

(1) Commerce. The term “commerce” means travel, trade, traffic, commerce, transportation, or communication—

(A)

among the several States;



(B)

between any foreign country or any territory or possession and any State; or



(C)

between points in the same State but through another State or foreign country.



(2)

Commercial facilities. The term “commercial facilities” means facilities—



(A)

that are intended for nonresidential use; and



(B)

whose operations will affect commerce.

Such term shall not include railroad locomotives, railroad freight cars, railroad cabooses, railroad cars described in section 12162 of this title or covered under this subchapter, railroad rights-of-way, or facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968 (42 U.S.C. 3601 et seq.). (3) Demand responsive system. The term “demand responsive system” means any system of providing transportation of individuals by a vehicle, other than a system which is a fixed route system. (4) Fixed route system. The term “fixed route system” means a system of providing transportation of individuals (other than by aircraft) on which a vehicle is operated along a prescribed route according to a fixed schedule. (5) Over-the-road bus. The term “over-the-road bus” means a bus characterized by an elevated passenger deck located over a baggage compartment. (6) Private entity. The term “private entity” means any entity other than a public entity (as defined in section 12131 (1) of this title). (7) Public accommodation. The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce— (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(B)

a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(D)

an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G)

a terminal, depot, or other station used for specified public transportation;



(H)

a museum, library, gallery, or other place of public display or collection;

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(I)

a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L)

a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

(8) Rail and railroad. The terms “rail” and “railroad” have the meaning given the term “railroad” in section 20102 (1) of title 49. (9) Readily achievable. The term “readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include—

(A)

the nature and cost of the action needed under this chapter;

(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. (10) Specified public transportation. The term “specified public transportation” means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis. (11) Vehicle. The term “vehicle” does not include a rail passenger car, railroad locomotive, railroad freight car, railroad caboose, or a railroad car described in section 12162 of this title or covered under this subchapter. 42 USC § 12182—Prohibition of discrimination by public accommodations (a) General rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

(b) Construction



(1)



(A) Activities

General prohibition

(i) Denial of participation It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. (ii) Participation in unequal benefit It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. (iii) Separate benefit It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. (iv) Individual or class of individuals For purposes of clauses (i) through (iii) of this subparagraph, the term “individual or class of individuals” refers to the clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement. (B) Integrated settings. Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual. (C) Opportunity to participate. Notwithstanding the existence of separate or different programs or activities provided in accordance with this section, an individual with a disability shall not be denied the opportunity to participate in such programs or activities that are not separate or different. (D) Administrative methods. An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration—

(i)

(ii) control.

that have the effect of discriminating on the basis of disability; or that perpetuate the discrimination of others who are subject to common administrative

(E) Association. It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

(2)



(A) Discrimination. For purposes of subsection (a) of this section, discrimination includes—

Specific prohibitions

(i) the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered; (ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations; (iii) a failure 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 services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden; Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients (iv) a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and (v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable.

(B) Fixed route system

(i) Accessibility It shall be considered discrimination for a private entity which operates a fixed route system and which is not subject to section 12184 of this title to purchase or lease a vehicle with a seating capacity in excess of 16 passengers (including the driver) for use on such system, for which a solicitation is made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. (ii) Equivalent service If a private entity which operates a fixed route system and which is not subject to section 12184 of this title purchases or leases a vehicle with a seating capacity of 16 passengers or less (including the driver) for use on such system after the effective date of this subparagraph that is not readily accessible to or usable by individuals with disabilities, it shall be considered discrimination for such entity to fail to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities. (C) includes—

Demand responsive system. For purposes of subsection (a) of this section, discrimination

(i) a failure of a private entity which operates a demand responsive system and which is not subject to section 12184 of this title to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities; and (ii) the purchase or lease by such entity for use on such system of a vehicle with a seating capacity in excess of 16 passengers (including the driver), for which solicitations are made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities (including individuals who use wheelchairs) unless such entity can demonstrate that such system, when viewed in its entirety, provides a level of service to individuals with disabilities equivalent to that provided to individuals without disabilities.

(D)

Over-the-road buses

(i) buses.

Limitation on applicability Subparagraphs (B) and (C) do not apply to over-the-road

(ii) includes

Accessibility requirements For purposes of subsection (a) of this section, discrimination

(I) the purchase or lease of an over-the-road bus which does not comply with the regulations issued under section 12186 (a)(2) of this title by a private entity which provides transportation of individuals and which is not primarily engaged in the business of transporting people, and

(II)

any other failure of such entity to comply with such regulations.

(3) Specific construction. Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term “direct threat” means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.

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Chapter 1—Working with Deaf Clients Appendix C—28 CFR 36.104; 28 CFR 36.302–36.303 28 CFR 36.104—Definitions

For purposes of this part, the term—

1991 Standards means requirements set forth in the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as appendix D to this part. 2004 ADAAG means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009). 2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in subpart D of this part. Act means the Americans with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-122 13 and 47 U.S.C. 225 and 611 ).

Commerce means travel, trade, traffic, commerce, transportation, or communication—



(1)

Among the several States;



(2)

Between any foreign country or any territory or possession and any State; or



(3)

Between points in the same State but through another State or foreign country.



Commercial facilities means facilities—



(1)

Whose operations will affect commerce;



(2)

That are intended for nonresidential use by a private entity; and



(3)

That are not—

(i) Facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-363 1);

(ii)

Aircraft; or

(iii) Railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars (including coaches, dining cars, sleeping cars, lounge cars, and food service cars), any other railroad cars described in section 242 of the Act or covered under title II of the Act, or railroad rights-of-way. For purposes of this definition, “rail” and “railroad” have the meaning given the term “railroad” in section 202(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C. 431(e) ). Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem. Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services, as provided in § 36.208. Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

(1)

The phrase physical or mental impairment means—

(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients (ii) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities; (iii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism;

(iv)

The phrase physical or mental impairment does not include homosexuality or bisexuality.

(2) The phrase major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (3) The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

(4)

The phrase is regarded as having an impairment means—

(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by a private entity as constituting such a limitation; (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by a private entity as having such an impairment.

(5)

The term disability does not include—

(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(ii)

Compulsive gambling, kleptomania, or pyromania; or



(iii)

Psychoactive substance use disorders resulting from current illegal use of drugs.

Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812 ). Existing facility means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part. Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located. Housing at a place of education means housing operated by or on behalf of an elementary, secondary, undergraduate, or postgraduate school, or other place of education, including dormitories, suites, apartments, or other places of residence. Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812 ). The term “illegal use of drugs” does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. Individual with a disability means a person who has a disability. The term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when the private entity acts on the basis of such use. Other power-driven mobility device means any mobility device powered by batteries, fuel, or other engines—whether or not designed primarily for use by individuals with mobility disabilities—that Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2). Place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories— (1) Place of lodging, except for an establishment located within a facility that contains not more than five rooms for rent or hire and that actually is occupied by the proprietor of the establishment as the residence of the proprietor. For purposes of this part, a facility is a “place of lodging” if it is—

(i)

An inn, hotel, or motel; or



(ii)

A facility that—

(A) Provides guest rooms for sleeping for stays that primarily are short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of his or her stay; and (B) Provides guest rooms under conditions and with amenities similar to a hotel, motel, or inn, including the following—

(1)

On- or off-site management and reservations service;



(2)

Rooms available on a walk-up or call-in basis;



(3)

Availability of housekeeping or linen service; and

(4) Acceptance of reservations for a guest room type without guaranteeing a particular unit or room until check-in, and without a prior lease or security deposit.

(2)

A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4)

An auditorium, convention center, lecture hall, or other place of public gathering;

(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(7)

A terminal, depot, or other station used for specified public transportation;



(8)

A museum, library, gallery, or other place of public display or collection;



(9)

A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. Private club means a private club or establishment exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000a(e) ). Lawyers and the Deaf Community

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Private entity means a person or entity other than a public entity.

Public accommodation means a private entity that owns, leases (or leases to), or operates a place of public accommodation.

Public entity means—



(1)

Any State or local government;

(2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act). (45 U.S.C. 541 ) Qualified interpreter means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. Qualified reader means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered 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 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.

Religious entity means a religious organization, including a place of worship.

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients Specified public transportation means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis. State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands. Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered 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 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. Video remote interpreting (VRI) service means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in § 36.303(f). Wheelchair means a manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or of both indoor and outdoor locomotion. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2). [Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order No. 3181-2010, 75 FR 56250, Sept. 15, 2010; 76 FR 13287, Mar. 11, 2011] 28 CFR 36.302—Modifications in policies, practices, or procedures. (a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

(b) Specialties—

(1) General. A public accommodation may refer an individual with a disability to another public accommodation, if that individual is seeking, or requires, treatment or services outside of the referring public accommodation’s area of specialization, and if, in the normal course of its operations, the referring public accommodation would make a similar referral for an individual without a disability who seeks or requires the same treatment or services. (2) Illustration—medical specialties. A health care provider may refer an individual with a disability to another provider, if that individual is seeking, or requires, treatment or services outside of the referring provider’s area of specialization, and if the referring provider would make a similar Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients referral for an individual without a disability who seeks or requires the same treatment or services. A physician who specializes in treating only a particular condition cannot refuse to treat an individual with a disability for that condition, but is not required to treat the individual for a different condition.

(c)

Service animals—

(1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. (2) Care or supervision of service animals. Nothing in this part requires a public accommodation to supervise or care for a service animal. (d) Check-out aisles. A store with check-out aisles shall ensure that an adequate number of accessible check-out aisles are kept open during store hours, or shall otherwise modify its policies and practices, in order to ensure that an equivalent level of convenient service is provided to individuals with disabilities as is provided to others. If only one check-out aisle is accessible, and it is generally used for express service, one way of providing equivalent service is to allow persons with mobility impairments to make all their purchases at that aisle. 28 CFR 36.303—Auxiliary aids and services. (a) General. 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, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.

(b) Examples. The term “auxiliary aids and services” includes—

(1) Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including realtime captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; (2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;

(3)

Acquisition or modification of equipment or devices; and



(4)

Other similar services and actions.



(c)

Effective communication.

(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities. (i) For purposes of this section, “companion” means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate. Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients (ii) 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. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. (2) A public accommodation shall not require an individual with a disability to bring another individual to interpret for him or her. (3) A public accommodation shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication, except— (i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or (ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. (4) A public accommodation shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.

(d) Telecommunications.

(1) When a public accommodation uses an automated-attendant system, including, but not limited to, voicemail and messaging, or an interactive voice response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including text telephones (TTYs) and all forms of FCCapproved telecommunications relay systems, including Internet-based relay systems. (2) A public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls using the public accommodation’s equipment on more than an incidental convenience basis shall make available accessible public telephones, TTYs, or other telecommunications products and systems for use by an individual who is deaf or hard of hearing, or has a speech impairment. (3) A public accommodation may use relay services in place of direct telephone communication for receiving or making telephone calls incident to its operations. (4) A public accommodation shall respond to telephone calls from a telecommunications relay service established under title IV of the ADA in the same manner that it responds to other telephone calls. (5) This part does not require a public accommodation to use a TTY for receiving or making telephone calls incident to its operations. (e) Closed caption decoders. Places of lodging that provide televisions in five or more guest rooms and hospitals that provide televisions for patient use shall provide, upon request, a means for decoding captions for use by an individual with impaired hearing. (f) Video remote interpreting (VRI) services. A public accommodation that chooses to provide qualified interpreters via VRI service shall ensure that it provides— Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;

(3)

A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. (g) Alternatives. If provision of a particular auxiliary aid or service by a public accommodation would result in a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or in an undue burden, i.e., significant difficulty or expense, the public accommodation shall provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by the public accommodation. [Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order No. 3181-2010, 75 FR 56253, Sept. 15, 2010]

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Chapter 1—Working with Deaf Clients Appendix D—ORS 659A.400 et seq. ACCESS TO PUBLIC ACCOMMODATIONS (Unlawful Discrimination in Public Accommodations) 659A.400 Place of public accommodation defined. (1) A place of public accommodation, subject to the exclusion in subsection (2) of this section, means any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise. (2) However, a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private. [Formerly 30.675] 659A.403 Discrimination in place of public accommodation prohibited. (1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.

(2)

Subsection (1) of this section does not prohibit:

(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served; or

(b)

The offering of special rates or services to persons 50 years of age or older.

(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section. [Formerly 30.670; 2003 c.521 §1; 2005 c.131 §1; 2007 c.100 §5] 659A.406 Aiding or abetting certain discrimination prohibited. Except as otherwise authorized by ORS 659A.403, it is an unlawful practice for any person to aid or abet any place of public accommodation, as defined in ORS 659A.400, or any employee or person acting on behalf of the place of public accommodation to make any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older. [Formerly 30.685; 2003 c.521 §2; 2007 c.100 §6] 659A.409 Notice that discrimination will be made in place of public accommodation prohibited; age exceptions. Except as provided by laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served, and except for special rates or services offered to persons 50 years of age or older, it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older. [Formerly 659.037; 2003 c.521 §3; 2005 c.131 §2; 2007 c.100 §7]

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Chapter 1—Working with Deaf Clients Appendix E—“Public Accommodations and the ADA Amendments Act”

PUBLIC ACCOMMODATIONS AND THE ADA AMENDMENTS ACT By Dennis Steinman, Esq.* Title III of the ADA covers places of public accommodation, which are, in short, all private businesses or places that are open to the general public. This includes places such as movie theaters, restaurants, malls, doctors’ offices, and lawyers’ offices. There were changes to the regulations that interpret and enforce the ADA Amendments Act of 2008 as they relate to public accommodations. The ADA Amendments Act of 2008 changes little in the actual provisions of the ADA relating to Title III, but the Department of Justice (DOJ) regulations overhaul and/or add provisions in 28 C.F.R § 36 regarding: (1) service animals; (2) auxiliary aids and services regarding effective communication; (3) requirements of places of lodging; (4) requirements of public accommodations to provide access to mobility devices; and (5) standards for accessible design. The following discussion focuses primarily on the amendments to 28 C.F.R. § 36. The amended regulations are detailed and provide express guidance, but due to the lack of case law under these new regulations, a good deal of the discussion below will focus on the DOJ commentary contained in the regulations appendix. I.

Service Animals.

The amendments to 28 C.F.R § 36 add a definition for “service animal” and provide for a more detailed requirement that public accommodations “modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” 1 a.

Definition of Service Animal.

The amended regulations sought to place limits on what constitutes a “service” animal because “[m]any covered entities indicated that they [were] confused regarding their obligations under the ADA.” 2 Also, in addition to the DOJ concern that a number of non-disabled individuals fraudulently or mistakenly claimed their animals were covered under the ADA in order to gain access to public accommodations, disabled individuals were concerned that if untrained or exotic animals were deemed “service animals,” then “their own right to use guide or service dogs may become unnecessarily restricted or questioned.” 3 Accordingly, § 36.104 now provides that a “service animal” means: [A]ny dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or * Dennis Steinman is a partner at Kell, Alterman & Runstein, LLP. He received his BA from Temple University and his JD from Lewis and Clark Law School. Mr. Steinman is an adjunct professor at Lewis and Clark Law School and teaches federal litigation. He specializes in the rights of the disabled and is a frequent speaker on the ADA. Mr. Steinman thanks Zachary Walker, the firm’s certified law clerk, for his significant contribution to this article. 1 See 28 C.F.R. § 36.104 and § 36.302. 2 28 C.F.R. pt 36 Appx A § 36.104 3 Id. Lawyers and the Deaf Community

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Chapter 1—Working with Deaf Clients other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. 4

The new definition of “service animals” performs four important tasks. First, it expressly limits the rule’s coverage to dogs and excludes “[o]ther species of animals, whether wild or domestic, trained or untrained.” Commentators suggested that the limitation of “allowable species would help stop the erosion of the public’s trust, which has resulted in reduced access for many individuals with disabilities who used trained service animals that adhere to high behavioral standards.” 5 Additionally, the regulation clearly excludes “all wild animals, whether born or bred in captivity or in the wild.” 6 The DOJ was specifically concerned with “nonhuman primates” because “of their potential for disease transmission and unpredictable aggressive behavior.” 7 However, the DOJ’s exclusion of monkeys from the definition of service animals does not affect the allowance of such use under existing federal statutes such as the Fair Housing Act (“FHAct”), which condones the use of animals other than dogs in the home of an individual with a disability if the animal qualifies as a “‘reasonable accommodation’ that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming the use of the animal does not pose a direct threat.”8 The DOJ also declined to place size, weight, and breed limits on the definition of a “service animal.” 9 Second, the right to such an animal to a disabled individual expressly states a “service animal” is “any dog . . . individually trained to do work or perform tasks,” which creates an objective standard. The standard requiring the dog “do work or perform tasks” was criticized on the grounds that some dogs serve as comfort to individuals with some neurological based disabilities and that some “’critical forms of assistance can’t be construed as physical tasks.’” 10 The DOJ agreed with this concern, but noted “what the animal is trained to do in response to [a neurological episode is what] distinguishes a service animal from an observant pet or support animal.” 11 Ultimately the line between a service dog and a pet is blurred by their ability to 4

28 C.F.R. § 36.104 (emphasis added). 28 C.F.R. pt 36 Appx A § 36.104 6 Id. 7 Id. 8 Id. 9 Id. 10 Id. 11 Id. 5

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recognize the needs of a disabled individual, but what differentiates the two is the dogs individually trained “response” to such needs (e.g., a dog individually trained to respond the needs of a disabled individual qualifies as a service animal where as a dog who merely recognizes the needs of the disabled individual does not). 12 In addition, Appendix A to part 36 reiterates the DOJ policy that “public accommodations are not required to admit any animal whose use poses a direct threat.” 13 Third, the definition modifies the examples of task that can be performed by service animals, specifically changing the task of “minimal protection” to “non-violent protection.” 14 The 1991 Title III regulation provided that “‘minimal protection’ was a task that could be performed by an individually trained service animal for the benefit of an individual with a disability.’” 15 Commentators to the amended regulations “urged the removal” of this language because it allowed “dogs trained to be aggressive to qualify as a service animal” merely by “pairing the animal” with a disabled individual, and it allowed “any untrained pet dog to qualify as a service animal, since many consider the mere presence of a dog to be a crime deterrent.” 16 Additionally, commentators suggested that “there appears to be a broadly held misconception that aggression-trained animals are appropriate service animals for persons with post traumatic stress disorder (PTSD).” 17 As a policy matter, the DOJ “recognize[d] that an animal individually trained to provide aggressive protection, such as an attack dog, is not . . . a service animal” and amended the regulation to read “non-violent protection” in order to exclude “‘attack dogs or dogs with traditional ‘protection training’ as service animals.” 18 Finally, the DOJ eliminated “emotional support” animals from the definition. The DOJ received some criticism from parties concerned that excluding emotional support animals “will lead to discrimination against and excessive questioning of individuals with non-visible or nonapparent disabilities” and because “emotional support” could constitute “work” the benefits disabled individuals. 19 Critics also allege the DOJ’s definition of “service animal” should focus on the “nature of the person’s disability” and “not on evaluating the animals involved.” 20 However, the DOJ indicates that the new definition does cover animals that provide psychiatric service, so long as the animal is trained to respond as opposed to providing mere comfort to the handler. The DOJ’s position is “based on the fact that Title II and Title III regulations govern a 12

See Id. Id. (emphasis added); see also 28 C.F.R. § 36.104 (“Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services, as provided in § 36.208.”); see also 28 C.F.R. § 36.208(a) (providing that a public accommodation does not have to permit and individual to participate in the benefits provided by the public accommodation if the individual poses a direct threat “to the health or safety of others.”); see also 28 C.F.R § 36.208(b) (“In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.”). 14 28 C.F.R. pt 36 Appx A § 36.104 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 13

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wider range of public settings than the housing and transportation setting for which the Department of Housing and Urban Development (HUD) and the DOT regulations allow emotional support animals or comfort animals.” 21 The presence of animals in the housing setting provide fewer safety and health risks and the DOJ believes the presence of emotional support animals is “not required in the context of public accommodations, such as restaurants, hospitals, hotels, retail establishments, and assembly areas.”22 b.

Public Accommodations Duty to Accommodate.

The amended regulations provide for the same standard as that of the 1991 regulations but add more specific provisions regarding a public accommodations duty to modify its practices to allow for the use of service animals by disabled individuals. Section 36.302(c) provides: (1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. (2) Exceptions. A public accommodation may ask an individual with a disability to remove a service animal from the premises if: (i) The animal is out of control and the animal's handler does not take effective action to control it; or (ii) The animal is not housebroken. (3) If an animal is properly excluded. If a public accommodation properly excludes a service animal under § 36.302(c)(2), it shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises. (4) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means). (5) Care or supervision. A public accommodation is not responsible for the care or supervision of a service animal. (6) Inquiries. A public accommodation shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).

21 22

Id. Id.

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Chapter 1—Working with Deaf Clients (7) Access to areas of a public accommodation. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go. (8) Surcharges. A public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal. (9) Miniature horses. (i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. (ii) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider-(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features; (B) Whether the handler has sufficient control of the miniature horse; (C) Whether the miniature horse is housebroken; and (D) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

(iii) Other requirements. Sections 36.302(c)(3) through (c)(8), which apply to service animals, shall also apply to miniature horses. 23 As a general matter, public accommodations are under the duty to modify “policies, practices, or procedures,” to allow for the use of service animals by disabled individuals unless such modifications would “fundamentally alter the nature of goods, services, facilities, privileges, advantages, or accommodations.”24 In addition to denying the use of a service animal do to the fundamental alteration of the public accommodations goods or services, it may deny the use of a service animal if it’s “out of control” or “not housebroken.” Even if a service animal is properly excluded under § 36.302(c)(2), the public accommodation must allow the disabled individual “the opportunity to obtain goods and services” without the presence of the animal. 25

23

28 C.F.R. § 36.302(c) (emphasis in original). See Id. at § 36.302(a). 25 See Id. at § 36.302(c)(3). 24

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Additionally, disabled individuals must have a harness or leash on the service animal while in the public accommodation, unless it interferes with the safe operation of the animal and public accommodations are not responsible for the supervisions of the service animal. 26 At not time can a public accommodation ask about the “nature extend of the person’s disability,” but it may ask “two inquiries”: (1) whether the animal is “required because of a disability”; and (2) what “work or tasks the animal has been trained to perform.” 27 These inquiries are limited to situations when it is not readily apparent that a service animal is trained to do work (e.g. public accommodations “may not” inquire in situations where a “dog is observed guiding an individual who is blind.”). 28 Additionally, public accommodations “shall” allow disabled individuals and their service animals the same access to areas as that provided to the public and customers. 29 Public accommodations are also not allowed to charge disabled individuals with service animal fees; “even if people accompanied by pets are required” do so. 30 Finally, § 36.302(9) significantly departs from both the limitation of “service animals” to dogs trained to do work by requiring public accommodations to modify its practices to “permit the use of miniature horses by an individual with a disability . . . if the miniature horse has been individually trained to do work.” 31 Along with the limitations on the use of service animals described above (subsections (c)(3)-(8)), a public accommodation is also allowed broader leeway with its inquiries as to whether “modifications in policies, practices or procedures can be made.” For example, public accommodations may consider: (1) the size and weight of the animal; (2) whether the handler has control over the animal; (3) whether the miniature horse is housebroken; and (4) whether the miniature horse would compromise safety requirements. 32 The DOJ decided to exclude miniature horses from the definition of service animal in § 36.104 and include a special provision in § 36.302 in order to allow the public accommodation more discretion as to whether it must accommodate the animal and its handler.33 The DOJ was persuaded by comments to the final rule regarding the benefits of miniature horses to disabled individuals of larger stature, but allows the public accommodation more factors in which to base its duty to accommodate because miniature horses often vary in size to a greater extent than dogs. 34 35

26

Id. at § 36.302(c)(4) and (5). Id. at § 36.302(c)(6). 28 See Id. 29 Id. at § 36.302(c)(7). 30 Id. at § 36.302(c)(8). 31 Id. at § 36.302(c)(9). 32 Id. 33 28 C.F.R. pt 36 Appx C § 36.302 34 Id. 35 It’s interesting to note that the DOJ seems particularly concerned with the safety and health concerns of allowing pets who act as mere comfort animals, but then allow the use of miniature horses, which seemingly would create the same, if not greater, safety and health concerns. 27

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II.

Effective Communication. a.

Duty to Provide Auxiliary Aids.

Public accommodations are under the general duty to ensure no disabled individual is “excluded, denied services, segregated, or otherwise treated differently . . . because of the absence of auxiliary aids and services,” unless the provision of such services would “fundamentally alter the nature” of the goods and services provided or resulting in and “undue burden, i.e. significant difficulty or expense.” 36 Even if a public accommodation is able to show fundamental alteration or undue burden, § 36.303(g) requires a public accommodation provide “alternative auxiliary aid[s] or service[s]” to “the maximum extent possible.” 37 b.

Effective Communication.

Along with a detailed provision regarding examples of “auxiliary aids and services,” 38 §36.303 generally requires public accommodations to provide auxiliary aids and services that are “necessary to ensure effective communication” with disabled individuals. 39 The duty to ensure effective communication also extends to “companions who are individuals with disabilities,” which are defined as “family member[s], friend[s], or associate[s]” of the non-disabled individual, who along with the non-disabled individual, “is an appropriate person with whom the public accommodation should communicate.”40 The duty to provide effective communication to companions is premised upon: [The DOJ’s] longstanding interpretation of the ADA . . .that public accommodations have effective communication obligations with respect to companions who are individuals with disabilities even where the individual seeking to participate in or benefit from what a public accommodation offers does not have such a disability. 41

36

28 C.F.R. § 36.303(a). Id. at § 36.303(g). 38 28 C.F.R. § 36.303(b): (1) Qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; (2) Qualified readers; taped texts; audio recordings; Braille materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision; (3) Acquisition or modification of equipment or devices; and (4) Other similar services and actions. 39 28 C.F.R § 36.303(c)(1). 40 Id. at § 36.303(c)(1)(i). 41 28 C.F.R. pt 36 App C § 36.303 (emphasis added). 37

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With respect to companions, the duty to provide effective communication is “critical in health care settings” because “miscommunication may lead to misdiagnosis and improper or delayed medical treatment.” 42 Examples of this “critical” setting include, but are not limited to: [When] a companion may be legally authorized to make health care decision on behalf of the patient or may need to help the patient with information or instructions given by hospital personnel. In addition, a companion may be the patient’s next of kin or health care surrogate with whom the hospital personnel need to communicate concerning the patient’s medical condition. Moreover, a companion could be designated by the patient to communicate with hospital personnel about the patient’s symptoms, needs, or medical history . . . .It has been the [DOJ’s] longstanding position that public accommodations are required to provide effective communication to companions when they accompany patients to medical care providers for treatment. 43 Section 36.303 prohibits the converse of the above situation, prohibiting a public accommodation from requiring an “individual with a disability to bring another individual to interpret for him or her.” 44 Public accommodations also prohibited from “rely[ing] on an adult accompanying an individual with a disability to interpret or facilitate communication,” except in emergency situations or where the disabled individual requests the accompanying adult interpret. 45 With respect to reliance on an accompanying child, § 36.303(c)(4) prohibits the same type of reliance but limits the exception only to emergency circumstances. 46 Section 36.303(f) provides for specific circumstances where the public accommodation provides a qualified interpreter via video remote interpreting (VRI) services. In such a case, the regulation requires a high-speed Internet connection, adequate video display, and audio equipment. 47 The duty to provide effective communication also extends to telecommunications. A public accommodation that uses “automated-attendant systems” for “receiving and directing telephone calls” must ensure its system includes text telephones (TTYs). 48 For “incidental” operations, a public accommodation may use “relay services in place of direct telephone communications.” 49 Additionally, § 36.301(c) remains unchanged from the 1991 standards, and prohibits a public accommodation from imposing a surcharge to cover the cost of auxiliary ands and services. This includes situations in the medical context where a public accommodation arranges

42

Id. Id. (emphasis added). 44 28 C.F.R. § 36.303(c)(2). 45 Id. at § 36.303(c)(3). 46 See Id. at § 36.303(c)(4). 47 See 28 C.F.R. § 36.303(f). 48 28 C.F.R. § 36.303(d)(1). 49 28 C.F.R. § 36.303(d)(3). 43

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services for an appointment and the disabled party “cancels his or her appointment at the last minute or is a ‘no-show.’” 50 c.

Type of Auxiliary Aids Necessary.

Section 36.303(1)(ii) gives a degree of deference to the public accommodation in determining the “type of auxiliary aid or service necessary.” 51 In the creation of the new regulation, the DOJ codified its recognition that the provision of effective communication necessarily depends on the “method of communication used” by the disabled individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” 52 Accordingly, so long as effective communication is provided, the ultimate decision” as to what auxiliary aids and services to provide “rest with the public accommodation.” 53 Despite this, the regulation suggests a public accommodation “should” consult with a disabled individual before the determination on the necessity of auxiliary aids and services. 54 Although seemingly discretionary, a public accommodation that merely provides uniform auxiliary aids and services without assessing the individual needs of the disabled party does so at its own peril, “because the auxiliary aids and services necessary to provide effective communication may fluctuate.” 55 Ultimately, the DOJ comments and some case law suggest that the primary factor in the determination of what type of auxiliary aid is necessary, particularly in the medical context, is the complexity of communication involved. 56 The DOJ suggests that a hospital gift shop may provide written notes to a hearing impaired individual, but during a discussion of diagnosis, procedures, treatment, or proscribed medication, hospital personnel should have a qualified interpreter present. 57 III.

Requirements of Places of Lodging.

The amended regulations to Title III both expand the definition of “place of lodging” and provide for explicit requirements regarding reservations made by disabled individuals. a.

Place of Lodging Definition.

A place of lodging is a “public accommodation” if it’s an “inn, hotel, or motel,” a facility which provides guest rooms for stays “that are primarily short term in nature” (30 days or less 50

28 C.F.R. pt 36 Appx C § 36.303 28 C.F.R. § 36.303(1)(ii). 52 Id. 53 Id (emphasis added); see also 28 C.F.R. pt 36 Appx C § 36.303 (“[T]he regulation strongly encourages the public accommodation to engage in a dialogue with the individual with a disability to determine what auxiliary aids and services are appropriate under the circumstances.”). 54 28 C.F.R. § 36.303(1)(ii). 55 28 C.F.R. pt 36 Appx C § 36.303. 56 See Id.; see also Majocha v. Turner, 166 F.Supp.2d 316, 322-333 (W.D. Penn. 2001) (Denying a defendant’s motion for summary judgment when it was alleged a doctor insisted on written notes would be sufficient to communicate with an infant child’s hearing impaired parent. The court reasoned that when considering the adequacy of alternatives, it is the complexity of the information that weights in favor of requiring an interpreter.). 57 See 28 C.F.R. pt 36 Appx C § 36.303. 51

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where the occupant does not have a right to a specific room after the stay), or a facility that provides guest rooms “under conditions and with amenities similar to a hotel, motel, or inn.”58 In addition its duty to accommodate under §36.302, new construction or alterations at places of lodging are also subject to the 2010 Accessible Design Standards under § 36.406, subject to one major exception. Section 36.406(c)(2) exempts alterations to guest rooms in facilities that have ownership structures that allow for individually owned units. In such a case where guest rooms are not owned by the entity that owns or leases, the overall facility and the interior physical features of the guest rooms are owned and controlled by the individual occupant, alterations are not subject to the 2010 Accessible Design Standards. 59 b.

Duty to Reserve Rooms.

Subsection (e) is a new addition to §36.302 and sets out specific requirements for places of lodging taking reservations made by “telephone, in-person, or through a third party.” 60 As a general matter, places of lodging modify their practices and procedures to ensure disabled parties can reserve “accessible guest rooms” in the “same manner as individuals who do not need accessible rooms.” 61 In addition, the reservation service of places of lodging must be able to describe the accessible features in guest rooms, places of lodging must not provide accessible rooms to non-disabled individuals until they are the only type remaining, and must allow thirdparty, non-disabled individuals to rent guest and hotel rooms for disabled individuals. 62 IV.

Mobility Devices.

With respect the mobility devices, the amended regulations serve three functions. First, it adds two definitions for “other-power driven mobility devices” and “wheelchair[s].” 63 Second, it provides for a new section requiring public accommodations to modify its practices in order to accommodate individuals requiring the use of mobility devices. 64 Finally, it expressly limits the type of inquiries that can be made about an individual’s disability and their use of a mobility device. 65 a.

Definitions of Power-Driven Mobility Devices and Wheelchairs.

Title III regulations now provide that “[o]ther power-driven mobility device[s]” mean: [A]ny mobility device powered by batteries, fuel, or other engines--whether or not

designed primarily for use by individuals with mobility disabilities--that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined 58

28 C.F.R. § 36.104. Id at § 36.406(c)(2). 60 Id. at § 36.302(e). 61 Id. 62 Id. 63 See 28 C.F.R. § 36.104. 64 See 28 C.F.R. § 36.311(a)-(b). 65 See 28 C.F.R. § 36.311(c). 59

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pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2). 66 The DOJ received comments criticizing the allowance of mobility devices powered by “fuel,” as these commentators believed “power-driven mobility devices must be assessed, particularly as to their environmental impact.” 67 The DOJ specifically declined to exclude fuel power devices because it did “not want the definition to be so narrow that it would foreclose the inclusion of new technological developments,” believing that at some point “technological developments may result in the production of safe-fuel powered mobility devices.” 68 Until that time, the DOJ believes that the ability of a public accommodation to claim a fundamental alteration or assert legitimate safety requirements “will likely prevent the use of fuel and combustion engine-driven devices indoors.” 69 Also, the definition specifically excludes application the Federal wilderness areas, which governs the use of wheelchairs under 42 U.S.C. § 12207(c)(2) (wheelchair means “device [for the mobility impaired] . . . that is suitable for use in an indoor pedestrian area.). 70 The amended title III regulations also add a definition for “wheelchair,” which means “a manually operated or power-driven device [used by the mobility impaired] . . . for the main purpose of indoor or both indoor and outdoor locomotion.” 71 Similar to “other-power driven mobility devices,” the definition of “wheelchair” does not apply to Federal wilderness areas. 72 (1)

Public Accommodation’s Duty to Accommodate Mobility Devices.

Section 36.311 creates a two tiered approach, differentiating a public accommodations duty as it pertains to “wheelchairs” and “other power-driven mobility devices.”73 Additionally, section 36.311 limits the types of inquires that can be made when public accommodations desire assurance that an individuals mobility limitations are legitimate. 74 A. Two-tiered approach. Sections 36.311(a) and (b) create the two-tiered approach, which respectively requires public accommodations admit all disabled individuals using wheelchairs (manually or power driven) and requires public accommodations to admit “other-power driven mobility devices,” unless they “cannot be operated in accordance with legitimate safety requirements.” 75 66

28 C.F.R. § 36.104 (emphasis added). See 28 C.F.R. pt 36 Appx A § 36.104. 68 Id. 69 Id. 70 28 C.F.R. § 36.104; see also 42 U.S.C. § 12207(c)(1) (Nothing in the Wilderness Act, 16 U.S.C. § 1131 et seq., prohibits the use of wheelchairs, but “no agency is required to provide any form of special treatment or accommodation, or to construct any facilities or modify an conditions of lands within a wilderness area in order to facilitate such use.”); see also 42 U.S.C. § 12207(c)(2) (wheelchair means “device suitable for an indoor pedestrian area”). 71 28 C.F.R. § 36.104. 72 Id. 73 See 28 C.F.R. § 36.311(a), (b). 74 See 28 C.F.R. § 36.311 (c)(1)-(2). 75 See 28 C.F.R. § 36.311(a); (b). 67

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The first tier (subsection (a)) takes away all public accommodation discretion with respect to the admittance of wheelchairs (see 28 C.F.R. § 36.104; wheelchair means manually or power driven device for indoor or outdoor mobility) and “other manually-powered mobility aids” in areas “open to pedestrian use.” 76 Business commentators criticized this rule because of the fear that “individuals with mobility disabilities would make [other power-driven mobility devices] akin to wheelchairs,” which would require the public accommodation to change their faculties to accommodate such use.77 The DOJ responded, calling this fear “misplaced” because facilities need only comply with the 1991 or the 2010 Accessible Design Standards. Also, the Title III regulations contain a “safe harbor” pertaining to alterations and paths of travel which provides that public accommodations that are built or altered in compliance with the 1991 Accessible Design Standards, need not be brought into compliance with the 2010 Accessible Design Standards unless the facility is subject to planned alteration. 78 Additionally, efforts to remove barriers in existing faculties do not trigger the paths of travel requires of § 36.403 (regarding paths of travel to primary function areas). 79 The second tier (subsection (b)) requires public accommodations: [To] make reasonable modifications . . . . to permit the use of other power-driven mobility devices . . . unless [the power-driven mobility device is the type that] . . . cannot be operated in accordance with legitimate safety requirements . . . pursuant to § 36.301(b) [safety requirements must be based on actual risk]. 80 In determining whether a public accommodation must reasonably accommodate for an “other power-driven mobility device,” it “shall consider”: (i) The type, size, weight, dimensions, and speed of the device; (ii) The facility's volume of pedestrian traffic (which may vary at different times of the day, week, month, or year); (iii) The facility's design and operational characteristics (e.g., whether its business is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user); (iv) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and (v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations. 81

The DOJ commentary provides that the default rule is that public accommodations are to allow the use of “other power-driven mobility devices” and it is the burden of the public 76

28 C.F.R. § 36.311(a). 28 C.F.R. pt 36 Appx C § 36.311. 78 See 28 C.F.R. § 36.304(d)(1)-(2). 79 See Id. 80 28 C.F.R. § 36.311(b); see also 28 C.F.R. § 36.301(b) (“A public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risk and not mere speculation, stereotypes, or generalizations about individuals with disabilities.”). 81 28 C.F.R. § 36.311(b)(2)(i)-(v). 77

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accommodation to “prove the existence of a valid exception.” 82 Additionally, it is important to note that the analysis regarding the aforementioned factors “must be on the appropriateness of the use of the device at a specific facility, rather than whether it is necessary for an individual to use a particular device.” 83 (2)

Limitation on Inquires Made by a Public Accommodation.

The amended regulations are again split into a two-tiered approach with respect to inquiries made by a public accommodation. In sum, § 36.311(c)(1)-(2) prohibits any inquiry into the nature and extend of any individuals disability, regardless of the mobility device used, but allows inquiries asking for “credible assurance” that an “other power-drive mobility device” is needed because of an individual’s disability. 84 First, at no time may a public accommodation “ask an individual using a wheelchair or other-power driven mobility device questions about the nature and extent of the individual’s disability.” 85 Second, a public accommodation “may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person’s disability.” 86 Forms of credible assurance that are presumptively valid include: (1) a “valid, State-issued disability parking placard or card” that is “presented by the individual to whom it was issued”; 87 or (2) “State-issued proof of disability.” 88 The DOJ suggests that although these forms are presumptively valid, a public accommodation cannot limit credible assurance to only these two forms because “not all persons with mobility disabilities have such means of proof.” 89 Accordingly, in lieu of the aforementioned forms, a public accommodation “shall accept . . . a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability.”90 V.

Accessible Design Standards.

The 2010 Accessible Design Standards (“2010 Standards”) are far too long and detailed to be summarized for the purposes of this article. However, it is important for public accommodations to understand when the requirements of the 2010 Standards are triggered. As set forth below, the compliance dates and safe harbor provisions are discussed along with the types of alterations to paths of travel that will trigger the requirements of the 2010 Standards.

82

See 28 C.F.R. pt 36 Appx C § 36.311 (“[P]ublic accommodations are by default required to permit the use of other power-driven mobility devices; the burden is on them to prove the existence of a valid exception.”). 83 28 C.F.R. pt 36 Appx C § 36.311 (emphasis added). 84 See 28 C.F.R. § 36.311(c)(1)-(2). 85 28 C.F.R. § 36.311(c)(1). 86 28 C.F.R. § 36.311(c)(2). 87 Id. 88 Id. 89 28 C.F.R. pt 36 Appx. C § 36.311. 90 28 C.F.R. § 36.311(c)(2) (emphasis added). Lawyers and the Deaf Community

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a.

Compliance Dates.

The relevant date for public accommodations governed by Title III of the ADA who make alterations to existing construction is January 26, 1992. 91 Neither the 1991 Accessible Design Standards (“1991 Standards”) nor the 2010 Standards apply if there has not been an “alteration” on or after January 26, 1992, and the public accommodation is merely responsible for barrier removal. 92 If an alteration does occur, compliance dates regarding the various standards are set forth in the table below: 93 Compliance Dates for New Construction and Alterations

Applicable Standards

On or after January 26, 1993, and before September 15, 2010

1991 Standards

On or after September 15, 2010, and before March 15, 2012

1991 or 2010 Standards

On or after March 15, 2012

2010 Standards

94

Compliance dates are determined by the date in which the state or county receives the last application for a building permit, or if no permit is required, the date physical construction or alteration occurs.95 Additionally, the new regulations provide for a “safe harbor” whereby elements that were built or altered in compliance with the 1991 Standards do not have to comply with the 2010 Standards, unless and until those elements are subject to a planned alteration (relevant dates for compliance regarding alterations are set forth above). 96 As a general matter, public accommodations must ensure alterations result in the “maximum physical accessibility feasible.” 97 b.

Standards Regarding Paths of Travel.

Whether or not alterations at a public accommodation will be subject to standards governing paths of travel will depend on whether the planned alteration affects or could affect a “primary function.” If alterations are to a “primary function,” the public accommodation must comply with the standards governing paths of travel up to 20 percent of the total cost of its 91

See Alford v. City of Cannon Beach, 2000 WL 33200554 (Jan. 17, 2000); see also 28 C.F.R. 36.402(a). See Id; see also 28 C.F.R. § 36.304. 93 Compliance Date: When the ADA was first enacted, the compliance dates for various provisions were delayed to allow covered entities to become familiar with the new regulations. Therefore, title II and title III of the ADA became effective on January 26, 1992, six months after the regulations were published. For new construction under title III, the requirements applied to facilities designed and constructed for first occupancy after January 26, 1993 – 18 months after the 1991 Standards were published by the Department of Justice. See 28 C.F.R. pt 36 Appx D § 36.406. 94 See 28 C.F.R. § 36.406. 95 See id. 96 See 28 C.F.R. 36.304(d)(2) 97 28 C.F.R. § 36.402 92

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planned alterations. On the other hand, if the alteration does not affect a “primary function,” the public accommodation is only subject to the requirements of § 36.304 regarding barrier removal that is readily achievable. (1)

Definition of “Primary Function” Alterations.

A primary function is “a major activity for which the facility is intended.” 98 regulations further provide:

The

Areas that contain a primary function include, but are not limited to, the customer services lobby of a bank, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public accommodation or other private entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, and restrooms are not areas containing a primary function. 99

Additionally, alterations that affect the “usability of or access to” areas containing a primary function include, but are not limited to: (i) Remodeling merchandise display areas or employee work areas in a department store; (ii) Replacing an inaccessible floor surface in the customer service or employee work areas of a bank; (iii) Redesigning the assembly line area of a factory; or (iv) Installing a computer center in an accounting firm. (2) For the purposes of this section, alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function. 100

(2)

Alterations Affecting a “Primary Function.”

An alteration that affects or could affect access to a faculty’s primary function: [S]hall be made so as to ensure, to the maximum extent feasible, the path of travel to the altered area . . . are readily accessible [to individuals with disabilities] . . . unless the cost and scope of such alteration is disproportionate to the cost of the overall alteration. 101 Any alteration that “affects or could affect” a primary function must comply either with the 1991 Standards or the 2010 Standards according to the table set forth in Section V(1).

98

28 C.F.R. § 36.403(b) 28 C.F.R. § 36.403(b). 100 28 C.F.R. § 36.403(c). 101 28 C.F.R § 36.403(a) (emphasis added). 99

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Essentially, if alterations affect access to a primary function, the public accommodation must expend money altering the paths of travel (according to either the 1991 Standards or 2010 Standards, depending on the date of construction), unless “the cost and scope of such alterations is disproportionate to the cost of the overall alteration.” 102 Alterations to paths of travel are presumptively “disproportionate” when “the cost [to alter paths of travel] exceeds 20% of the cost of the alteration to the primary function area.” 103 104 c.

Alterations Not Affecting a “Primary Function.”

Alterations that do not affect a “primary function” are governed by § 36.402 and the barrier removal requirements of § 36.304. In sum, if alterations do not affect a primary function, the public accommodation must, “to the maximum extent feasible,” ensure “the altered portions of the facility are readily accessible” to individuals with disabilities. 105 Even if there have been no alterations after January 26, 1992/93, barriers within a public accommodations facilities are still considered “existing” and must be removed to the extent “readily achievable.” 106 “Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” 107 Additionally, public accommodations need not fear that barrier removal will subject them to the paths of travel requirements contained in § 36.403 because such requirements are not triggered by “measures taken solely to comply with . . . barrier removal requirements” 108 In determining whether a barrier removal is “readily achievable,” courts are to consider:

102

See 28 C.F.R. § 36.403(a). 28 C.F.R. § 46.403(f)(1) (emphasis added). 104 Additionally, if an alteration affects a “primary function,” of a public accommodation operating an outdoor developed area, the US Access Board suggests that public accommodations can seek guidance from the 2009 Draft Final Guidelines for Federal Outdoor Developed Areas (“Federal Guidelines”) (attached to memo). These guidelines are not yet law, but are recommended as best practices and the US Access Board provides that further guidelines will be forthcoming for public entities (Title II) and public accommodations (Title III). See http://www.access-board.gov/outdoor/draft-final.htm (last visited April 12, 2011). 105 28 C.F.R. § 36.402(a). 106 See 28 C.F.R. § 36.304; see also 42 U.S.C. § 12181(9). Barrier removal is a continuing obligation. An “existing facility” is: “a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered.” 28 C.F.R. § 36.104. Essentially, what this means is that even a newly constructed facility is an “existing facility” subject to the continuing obligation to remove barriers when readily achievable. New facilities must comply with standards applicable (either the 1991 Standards or the 2010 Standards, depending on the date of construction). See 28 C.F.R. § 36.104 Appx. A. Any facility built prior to 1992/1993 is only subject to the obligation to remove existing barriers when readily achievable, where as facilities built after 1993 are subject to either the 1991 Standards or the 2010 Standards and subject to the continuing requirement to remove barriers when readily achievable. 107 28 C.F.R. § 36.304(a) (emphasis added); see also 28 C.F.R. § 36.304(b) (The regulations provide for a series of examples regarding readily achievable barrier removals, which include, but are not limited to: (i) installing ramps, (ii) making curb cuts in sidewalks and entrances, (iii) widening doors, (eliminating a turnstile or providing an alterative accessible path, (iv) creating accessible parking spaces, etc). 108 See 28 C.F.R. § 36.304(d). 103

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Chapter 1—Working with Deaf Clients (A) the nature and cost of the action needed under this chapter; (B) the overall financial resources of the facility . . . the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity . . .the overall size of the business . . . with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation . . . including the . . . function of the workforce . . . [the] administrative or fiscal relationship of the facility or the facilities in question to the covered entity. 109

It should also be noted that even if barrier removal is not “readily achievable,” the ADA can still be violated by the “failure to make such goods, services, facilities . . . or accommodations available through alterative methods if such methods are readily achievable.”110 In essence, the ADA requires public accommodations to develop alternative methods for serving disabled individuals, but again allows the public accommodation to escape such an obligation if it’s not “readily achievable.” 111 Finally, § 36.304(d) requires facilities that have not been altered (i.e.. not altered since January 26, 1992) must comply with the regulations to the extent “readily achievable,” which again is determined by whether compliance can be achieved at low or moderate costs. 112 The standards that noncompliant public accommodation must follow, to the extent readily achievable are: 



VI.

Facilities or elements not in compliance before March 15, 2012, can comply, to the extent readily achievable with the 1991 Standards or the 2010 Standards. Public accommodations compliant with the 1991 Standards to the extent readily achievable prior to March 15, 2012, will be covered by the safe harbor rule of § 36.304(d)(2)(i). Facilities or elements not in compliance on or after March 15, 2012, must comply to the extent readily achievable with the 2010 Standards. 113 Conclusion.

The changes to Title III of the ADA Amendments Act and the corresponding regulations will have significant impact on the manner in which private businesses and groups interact with the disabled community. Many of the changes in the regulations came about due to case law and consent decrees from the past two decades. These new regulations now provide explicit guidance on handling a number of situations that may not have previously been clear.

109

42 U.S.C. § 12181(9)(A)-(D). 42 U.S.C. § 12182(b)(2)(A)(v). 111 Id. 112 28 C.F.R. § 36.304(d). 113 See 28 C.F.R § 36.304(d)(2)(ii)(A) and (B). 110

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Working with the Deaf Community Julie Simon The Language Door Ashland, Oregon Contents RID Standard Practice Paper—Professional Sign Language Interpreting (Reprinted with Permission) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1 RID Standard Practice Paper—Interpreting in Legal Settings (Reprinted with Permission) . . . . . . 2–5

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PROFESSIONAL SIGN LANGUAGE INTERPRETING The Registry of Interpreters for the Deaf, Inc., (RID) Standard Practice Paper (SPP) provides a framework of basic, respectable standards for RID members’ professional work and conduct with consumers. This paper also provides specific information about the practice setting. This document is intended to raise awareness, educate, guide and encourage sound basic methods of professional practice. The SPP should be considered by members in arriving at an appropriate course of action with respect to their practice and professional conduct. It is hoped that the standards will promote commitment to the pursuit of excellence in the practice of interpreting and be used for public distribution and advocacy.

About sign language interpreting Sign language interpreting makes communication possible between people who are deaf or hard of hearing and people who can hear. Interpreting is a complex process that requires a high degree of linguistic, cognitive and technical skills in both English and American Sign Language (ASL). Sign language interpreting, like spoken language interpreting, involves more than simply replacing a word of spoken English with a signed representation of that English word. ASL has its own grammatical rules, sentence structure and cultural nuances. Interpreters must thoroughly understand the subject matter in which they work so that they are able to convert information from one language, known as the source language, into another, known as the target language. In addition, interpretations can incorporate cultural information associated with the languages used. What a sign language interpreter does Most sign language interpreters either interpret, which means working between English and ASL, or they transliterate, which is working between spoken English and a form of a signed language that uses a more English-based word order. Some interpreters specialize in oral interpreting for deaf or hard of hearing persons who lip-read instead of sign. Other specialties include tactile signing, which is interpreting for persons who are blind as well as deaf by conveying signs into a person’s hands; cued speech; and signing exact English. An interpreter’s work begins before arriving at the job site. The interpreter must become familiar with the subject matter that the speakers will discuss; a task that may involve research on topic-related words and phrases that may be used from both languages. The interpreter usually travels to the location where his or her services are needed; physical presence is required except for video conferencing or video telephone interpretation. While interpreters may not completely specialize in a particular field or industry, many do focus on one area of expertise such as business, law, medicine or education. There are two types of interpretation: simultaneous and consecutive. Simultaneous interpretation requires interpreters to listen and sign, or watch and speak, at the same time. The interpreter begins to convey a sentence in the target language while listening or watching the message being delivered in the source language. This type of interpreting happens most commonly in business meetings, college classes or conferences. In contrast, consecutive interpretation begins only after the speaker has spoken or signed a sentence or paragraph. Interpreters may need to take notes to assist in the process of creating a coherent accurate translation. This form of interpretation is used most often for witness testimony in legal settings or in a one-on-one meeting such as with a doctor, social worker or counsellor. In both simultaeducation



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Chapter 2—Working with the Deaf Community neous and consecutive interpreting, the interpreter sits in proximity to the English speaker to allow the deaf person to see the interpreter as well as the facial and body expressions of the English speaker. Because of the need for a high degree of concentration in both types of interpretation and because of the physical demands of the work, interpreters often work in pairs, with each interpreting 20-to 30minute segments1. Where professional interpreters work Interpreters work in a variety of settings and situations. Interpreters may work as employees of an interpreting agency or may be self-employed and as such are referred to as free-lance, independent contractors. Independent contractors may schedule their own assignments directly or receive assignments through interpreter service agencies. Some states have laws that specifically govern the relationship between agencies and interpreters. Interpreters provide services wherever a deaf or hard of hearing person needs to communicate with people who can hear but cannot sign fluently for themselves; such as in educational, medical field, theatre and legal settings; for conferences and conventions; or at corporations and institutions. Interpreters may also work as video relay interpreters, where deaf or hard of hearing individuals use an interpreter to communicate with anyone in the world over the telephone by the use of a Web cam or video phone. Interpreters may specialize in one avenue or work in multiple settings. They must be versatile, flexible and skilled. Deaf individuals who are able to communicate in a form of signed language other than English or ASL an also become interpreters.2 When a deaf or hard of hearing individual expresses the need for a sign language interpreter, it is the responsibility of the entity providing services, employment or entertainment to accommodate that request. Quality of interpreting service is determined by all parties involved. Since the passage of the Americans with Disabilities Act in 1990, payment for interpreting services usually falls to the host business or organization rather than the deaf person.3 Professional conduct It is the interpreter’s sole responsibility to enable deaf or hard of hearing individuals the opportunity to communicate freely with hearing individuals. In order to do this, they must be given enough information about a particular assignment to allow them to determine if it is a situation where they can perform professionally. Content may be shared so the interpreter may determine if she or he has sufficient knowledge or skill to adequately convey the information in both languages. Also, names of participants are shared to ensure that the interpreter is able to work without bias or partiality toward any of the parties involved. Interpreters strive to remain unbiased toward the content of their work and not alter or modify the meaning or tone of what is conveyed. Interpreters may request materials prior to certain assignments to assist in their preparation. Confidentiality is crucial, and an interpreter is expected to refrain from discussing or disclosing the content of a situation in which he or she interpreted. Aside from court-mandated testimony, an interpreter strictly maintains this confidentiality. RID and the National Association of the Deaf (NAD) have jointly developed the NAD-RID Code of Professional Conduct which may be seen in its entirety on the RID Web site. Interpreting Credentials In the field of interpreting, as in other professions, appropriate credentials are an important indicator of an interpreter’s qualifications. RID awards certification to interpreters who successfully pass its national tests. The tests assess language, interpretation and communications skills as well as knowledge, judgment and decision-making skills on issues of ethics, culture and professionalism. The RID Certification Council oversees the policies of certification and the training of individuals who rate the applicants.

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Chapter 2—Working with the Deaf Community Some currently offered common sign language interpreting certifications are: NIC – National Interpreter Certification: Certified, Advanced and Master levels CDI – Certified Deaf Interpreter CI – Certificate of Interpretation CT – Certificate of Transliteration OTC – Oral Transliteration Certificate SC: L – Specialist Certificate: Legal CLIP-R – Conditional Legal Interpreting Permit-Relay Other certifications recognized by RID: MCSC – Master Comprehensive Skills Certificate CSC – Comprehensive Skills Certificate OIC – Oral Interpreting Certificate RSC – Reverse Skills Certificate NAD – National Association of the Deaf Level III – Generalist Level IV – Advanced Level V – Master IC – Interpretation Certificate TC – Transliteration Certificate ACCI – American Consortium of Certified Interpreters SC: PA – Specialist Certificate: Performance Arts CLIP – Conditional Legal Interpreting Permit EIPA – Educational Interpreter Performance Assessment As with any assessment tool, each of these certifications assesses for specific skill sets within the field of interpreting. An interpreter may hold one or more certifications and will be able to offer an explanation of his/her specific certifications. Information on certification is available from RID. To verify an individual interpreter’s current certification status, ask for their RID membership card or perform a search on the RID Web site. Life Long Learning Interpreters need to stay current in the field and maintain their skill level. For this reason, RID requires certified members to earn a specific number of continuing education units (CEUs) every four years as part of the Certification Maintenance Program (CMP). The CEU is a nationally recognized unit of measurement for educational activities that meet established criteria for increasing knowledge and competency. Certification retention is dependent upon successful completion of earning the required CEUs. More information on this may be found at the RID Web site. Registry of Interpreters for the Deaf (RID) RID has played the leading role in establishing a national standard of quality for interpreters and is committed to continued professionalism in the practice of signed language interpretation. For more information about the profession, certification and interpreting throughout the United States, contact the RID national. Please visit RID’s Web site at www.rid.org.

REFERENCES: 1 RID Team Interpreting Standard Practice Paper www.rid.org

2 RID Use of a CDI Standard Practice Paper www.rid.org 3 ADA link to NAD

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INTERPRETING IN LEGAL SETTINGS The Registry of Interpreters for the Deaf, Inc., (RID) Standard Practice Paper (SPP) provides a framework of basic, respectable standards for RID members’ professional work and conduct with consumers. This paper also provides specific information about the practice setting. This document is intended to raise awareness, educate, guide and encourage sound basic methods of professional practice. The SPP should be considered by members in arriving at an appropriate course of action with respect to their practice and professional conduct. It is hoped that the standards will promote commitment to the pursuit of excellence in the practice of interpreting and be used for public distribution and advocacy.

About Legal Interpreting Legal interpreting encompasses a range of settings in which the deaf person interacts with various parts of the justice system. Legal interpreting naturally includes court interpreting; however, a legal interpreter’s work is not restricted to the courtroom. Rather, legal interpreting occurs during attorneyclient conferences, investigations by law enforcement, depositions, witness interviews, real estate settlements, court-ordered treatment and education programs and administrative or legislative hearings. Legal interpreting requires highly skilled and trained specialists because of the significant consequences to the people involved in the event of a failed communication. Deaf people have a legal right to a qualified interpreter, and in legal settings, a qualified legal interpreter will have a specific skill set to ensure that the deaf person’s right to be present and participate is not compromised. This standard practice paper discusses legal interpreting globally; however, within the broader spectrum of legal interpreting, practice may vary depending on the nature of the assignment. For example, when interpreting for the police, the interpreter is governed by a different set of legal rules than when interpreting privileged attorney-client conferences. At all times, however, the interpreter is governed by ethical standards established by RID which require accurate interpreting and maintenance of confidentiality, absent a court order, regardless of setting. The legal interpreter will explain to participants, prior to engaging in interpreting, the applicable guidelines for working with the interpreter in the specific setting. Qualified Legal Interpreter The Americans with Disabilities Act of 1990 (ADA) requires the use of “qualified interpreters.” The implementing regulations define a qualified interpreter as one "who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.” Additionally, legal interpreters are governed by the NAD-RID Code of Professional Conduct. The Code requires that interpreters “possess the professional skills and knowledge required for the specific interpreting situation.” In the context of legal interpreting, “necessary specialized vocabulary” and “professional skills and knowledge” are obtained through specialized interpreter training. As with other professions, the field of sign language interpretation has developed specific credentials that indicate minimum levels of competency to interpret in legal settings. RID awards the Specialist Certificate: Legal (“SC: L”) to interpreters who meet specific criteria regarding prior certification, education and experience. While the number of interpreters holding the SC: L has increased, not enough interpreters hold this credential to fully satisfy the demand for legal interpreters. As a result, much legal interpreting is done by individuals certified as generalist practitioners to interpret in the language used by the deaf person and who also have successfully completed legal interpreter training in order to understand and use the necessary specialized vocabulary associated with legal settings. Because qualified interpreters are in great demand, hiring parties are advised to start early to locate the appropriate complement of interpreters once the need is known. Many courts have a liaison for court interpreting who maintains a roster of trained interpreters. In addition, most cities have education



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Chapter 2—Working with the Deaf Community private practice interpreters who are listed by certification on RID’s Web site. Additionally, the Web site lists businesses and organizations that provide interpreters and will have information on the quality, skills and availability of local interpreters. Standard Practices – Generally Applicable Upon accepting a legal assignment, the legal interpreter will conduct an analysis with respect to the communication needs that exist and make recommendations accordingly. These recommendations will focus on a number of factors that impact communication between deaf and non-deaf individuals. These factors may impact the number of interpreters required, positioning of the interpreters and turn-taking. Recommendations will be based upon principles developed by the profession, the courts, legislators, administrators and a rich body of case law regarding language interpreting in legal settings. Staffing a Legal Matter At a minimum, two interpreters are typically required for most legal assignments. Because legal assignments are generally more complex, interpreters often work in teams and relieve each other at predetermined periods. One interpreter actively interprets while the other interpreter watches to ensure accuracy of the interpretation. The process is alternated at appropriate intervals between the two interpreters. The Deaf community is diverse, and different deaf people will have different communicative needs which dictate the credentials of the interpreter. Some deaf people have been deaf all their lives and use the natural language of deaf people referred to as American Sign Language (ASL). Other deaf people may have lost their ability to hear after acquiring spoken English and therefore use a system of sign that approximates English. Other deaf people may not have received a formal education and as a result, have only limited capacity in using sign. Long years of experience have demonstrated that native deaf users of ASL are more effective at communicating with this segment of the population than the general practitioner interpreter who can hear. RID awards a generalist certificate for deaf interpreters who have demonstrated proficiency in working with this population. For Certified Deaf Interpreters (CDI), a conditional permit to work in legal settings is also awarded by RID. As a part of the legal interpreter’s practice, the interpreter will need time to make an accurate assessment of the communication needs. If specialized communication services are required, the interpreter will inform the hiring party and assist in locating the specialized services. Potential Risks Certain legal assignments, such as law enforcement interpreting, pose great risk for the interpreter who may be called as a witness later to defend their work in the interpreted assignment. As such, additional protections are typically instituted such as video taping the session, using consecutive interpreting principles and providing for the assistance of a credentialed deaf interpreter. Preparation The interpreter is ethically obligated to prepare for all assignments, particularly legal and court assignments. To that end, interpreters will contact counsel or the hiring party and request to review pertinent documents to prepare to interpret accurately. Because interpreters are necessary for communication, sharing preparatory materials with them does not breach the attorney-client privilege. Interpreters are governed by strict rules regarding confidentiality and will not reveal information learned on an assignment, absent a court order or other legal mandate. Conflicts & Ethics Based upon the preparation, the interpreter will analyze his or her compatibility with the assignment and determine the existence of any conflicts of interest. A variety of conflicts might prohibit the interpreter from accepting an assignment. The interpreter might have personal knowledge about the matter or the parties; may have previously interpreted in a phase of the case such as the interrogation, which would prohibit the interpreter from accepting the proceedings work; or because of the topic of the mat2

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Chapter 2—Working with the Deaf Community ter, the interpreter may be ethically inclined not to accept the work. Ethically, interpreters are not permitted to take an active role in any assignment; however, prior to or after interpreting, legal interpreters may provide guidance and referrals on relevant issues. Interpreters do not add, omit, edit or participate in the substance of an interpreted conversation outside necessary communications to manage the interpreting process. Standard Practices – Court Interpreting In addition to many of the issues just discussed, court interpreters have additional constraints on their work. Characterized by on-the-record proceedings, court interpreting is a highly specialized subset of legal interpreting. As officers of the court, interpreters are experts who assist the court in defining its interpreting needs. Court interpreters have specific duties prior to interpreting the official proceedings. Court interpreters may participate in limited ways in a legal proceeding, for example to take the oath to interpret accurately, to present their qualifications for the record, to respond to a challenge to the accuracy of the interpretation, to inform the court of an error and to seek permission to ask the witness for repetition or clarification. In a typical court setting, the bulk of the communication is handled by two sworn proceedings interpreters who work together. These interpreters interpret all of the proceedings including all witness testimony. If one of the parties is deaf, a third interpreter will sit at counsel table as a member of the litigation team, interpret privileged communications between counsel and client and monitor the two proceedings interpreters for accuracy. This monitoring function enables counsel to interpose objections to the interpretation immediately to preserve the right to appeal based on a faulty interpretation. The roles of the interpreter at the table and the proceedings interpreters are not adversarial. The interpreter at the table is a member of the team and an agent of the attorney. The proceedings interpreters are officers of the court. Both sets of interpreters are governed by the NAD-RID Code of Professional Conduct. In addition, the interpreters interpreting the proceedings are generally governed by the court interpreter’s code of conduct in the respective state. This configuration is typical, though in certain cases more interpreters might be required. For example, both sides and even the court may decide to retain separate interpreters to prepare their deaf witnesses and to monitor the work of the proceedings interpreters. As mentioned, the parties might not be fluent in ASL or use a non-standard variety of sign language necessitating a specialist interpreting team of credentialed deaf interpreters. As a result, no one rule can be set forth regarding the number of interpreters required for a court assignment. The court interpreter will assess the particular assignment and provide advice and direction regarding the proper working conditions. RESOURCES: 1Many

states have statutes defining legal interpreting and listing the settings which are considered legal assignments under the statute. Typically, those statutes will also list the qualifications required by the state to be qualified to work in those settings. The reader is referred to their specific state statutes and to a list compiled by the National Association of the Deaf and available at http://www.nad.org/site/pp.asp?c=foINKQMBF&b=180366. 2The interpreter in a law enforcement setting may be required to later testify about the interpreting assignment; whereas, the interpreter working in an attorney-client conference cannot, absent waiver of the privilege, be forced to testify about the interpreting assignment. 3Attorneys and courts have independent obligations to locate and pay for qualified interpreters under the ADA. For specific information on these obligations, the reader is referred to http://www.nad.org/legalservices and to http://www.nad.org/government. 429

C.F.R. Part 25.104 (1992).

5The NAD-RID Code of Professional Conduct is available online at the RID Web site: www.rid.org. 6The

RID Web site (www.rid.org) lists the variety of certifications available currently and historically. The site also explains the various combinations of credentials and experience that qualify an interpreter to sit for each examination.

7See “New Study on Fatigue Confirms Need for Interpreting in Teams,” available at http://www.najit.proteus/back_issues/vidal2.htm. 8See National Center for State Courts, Code of Professional Responsibility for Interpreters in the Judiciary available online at www.ncsconline.org. 9Court interpreters are often referred to as proceedings interpreters. 10See National Center for State Courts, Code of Professional Responsibility for Interpreters in the Judiciary available online at www.ncsconline.org.

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Working with Interpreters Edward C. Alletto Court Interpreter Services, Oregon Judicial Department Salem, Oregon Contents NAD-RID Code of Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1 Code of Professional Responsibility for Interpreters in the Oregon Courts . . . . . . . . . . . . . . . 3–7 Interpreters in the Oregon Revised Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3–19 Exercises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3–25

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NAD-RID CODE OF PROFESSIONAL CONDUCT Scope The National Association of the Deaf (NAD) and the Registry of Interpreters for the Deaf, Inc. (RID) uphold high standards of professionalism and ethical conduct for interpreters. Embodied in this Code of Professional Conduct (formerly known as the Code of Ethics) are seven tenets setting forth guiding principles, followed by illustrative behaviors. The tenets of this Code of Professional Conduct are to be viewed holistically and as a guide to professional behavior. This document provides assistance in complying with the code. The guiding principles offer the basis upon which the tenets are articulated. The illustrative behaviors are not exhaustive, but are indicative of the conduct that may either conform to or violate a specific tenet or the code as a whole. When in doubt, the reader should refer to the explicit language of the tenet. If further clarification is needed, questions may be directed to the national office of the Registry of Interpreters for the Deaf, Inc. This Code of Professional Conduct is sufficient to encompass interpreter roles and responsibilities in every type of situation (e.g., educational, legal, medical). A separate code for each area of interpreting is neither necessary nor advisable.

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Philosophy The American Deaf community represents a cultural and linguistic group having the inalienable right to full and equal communication and to participation in all aspects of society. Members of the American Deaf community have the right to informed choice and the highest quality interpreting services. Recognition of the communication rights of America’s women, men, and children who are deaf is the foundation of the tenets, principles, and behaviors set forth in this Code of Professional Conduct. Voting Protocol This Code of Professional Conduct was presented through mail referendum to certified interpreters who are members in good standing with the Registry of Interpreters for the Deaf, Inc. and the National Association of the Deaf. The vote was to adopt or to reject. Adoption of this Code of Professional Conduct Interpreters who are members in good standing with the Registry of Interpreters for the Deaf, Inc. and the National Association of the Deaf voted to adopt this Code of Professional Conduct, effective July 1, 2005. This Code of Professional Conduct is a working document that is expected to change over time. The aforementioned members may be called upon to vote, as may be needed from time to time, on the tenets of the code. The guiding principles and the illustrative behaviors may change periodically to meet the needs and requirements of the RID Ethical Practices System. These sections of the Code of Professional Conduct will not require a vote of the members. However, members are encouraged to recommend changes for future updates.

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Function of the Guiding Principles It is the obligation of every interpreter to exercise judgment, employ critical thinking, apply the benefits of practical experience, and reflect on past actions in the practice of their profession. The guiding principles in this document represent the concepts of confidentiality, linguistic and professional competence, impartiality, professional growth and development, ethical business practices, and the rights of participants in interpreted situations to informed choice. The driving force behind the guiding principles is the notion that the interpreter will do no harm. When applying these principles to their conduct, interpreters remember that their choices are governed by a “reasonable interpreter” standard. This standard represents the hypothetical interpreter who is appropriately educated, informed, capable, aware of professional standards, and fair-minded.

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CODE OF PROFESSIONAL CONDUCT Tenets 1. Interpreters adhere to standards of confidential communication. 2. Interpreters possess the professional skills and knowledge required for the specific interpreting situation. 3. Interpreters conduct themselves in a manner appropriate to the specific interpreting situation. 4. Interpreters demonstrate respect for consumers. 5. Interpreters demonstrate respect for colleagues, interns, and students of the profession. 6. Interpreters maintain ethical business practices. 7. Interpreters engage in professional development. Applicability A. This Code of Professional Conduct applies to certified and associate members of the Registry of Interpreters for the Deaf, Inc., Certified members of the National Association of the Deaf, interns, and students of the profession.

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B. Federal, state or other statutes or regulations may supersede this Code of Professional Conduct. When there is a conflict between this code and local, state, or federal laws and regulations, the interpreter obeys the rule of law. C. This Code of Professional Conduct applies to interpreted situations that are performed either faceto-face or remotely. Definitions For the purpose of this document, the following terms are used: Colleagues: Other interpreters. Conflict of Interest: A conflict between the private interests (personal, financial, or professional) and the official or professional responsibilities of an interpreter in a position of trust, whether actual or perceived, deriving from a specific interpreting situation. Consumers: Individuals and entities who are part of the interpreted situation. This includes individuals who are deaf, deaf-blind, hard of hearing, and hearing.

1.0 CONFIDENTIALITY Tenet: Interpreters adhere to standards of confidential communication. Guiding Principle: Interpreters hold a position of trust in their role as linguistic and cultural facilitators of communication. Confidentiality is highly valued by consumers and is essential to protecting all involved.

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Each interpreting situation (e.g., elementary, secondary, and post-secondary education, legal, medical, mental health) has a standard of confidentiality. Under the reasonable interpreter standard, professional interpreters are expected to know the general requirements and applicability of various levels of confidentiality. Exceptions to confidentiality include, for example, federal and state laws requiring mandatory reporting of abuse or threats of suicide, or responding to subpoenas. Illustrative Behavior - Interpreters: 1.1 Share assignment-related information only on a confidential and “as-needed” basis (e.g., supervisors, interpreter team members, members of the educational team, hiring entities).

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Manage data, invoices, records, or other situational or consumer-specific information in a manner consistent with maintaining consumer confidentiality (e.g., shredding, locked files).

1.3

Inform consumers when federal or state mandates require disclosure of confidential information.

2.0 PROFESSIONALISM Tenet: Interpreters possess the professional skills and knowledge required for the specific interpreting situation. Guiding Principle: Interpreters are expected to stay abreast of evolving language use and trends in the profession of interpreting as well as in the American Deaf community. Interpreters accept assignments using discretion with regard to skill, communication mode, setting, and consumer needs. Interpreters possess knowledge of American Deaf culture and deafness-related resources. Illustrative Behavior - Interpreters: 2.1 Provide service delivery regardless of race, color, national origin, gender, religion, age, disability, sexual orientation, or any other factor.

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2.2

Assess consumer needs and the interpreting situation before and during the assignment and make adjustments as needed.

2.3

Render the message faithfully by conveying the content and spirit of what is being communicated, using language most readily understood by consumers, and correcting errors discreetly and expeditiously.

2.4

Request support (e.g., certified deaf interpreters, team members, language facilitators) when needed to fully convey the message or to address exceptional communication challenges (e.g. cognitive disabilities, foreign sign language, emerging language ability, or lack of formal instruction or language).

2.5

Refrain from providing counsel, advice, or personal opinions.

2.6

Judiciously provide information or referral regarding available interpreting or community resources without infringing upon consumers’ rights.

3.0 CONDUCT Tenet: Interpreters conduct themselves in a manner appropriate to the specific interpreting situation. Guiding Principle: Interpreters are expected to present themselves appropriately in demeanor and appearance. They avoid situations that result in conflicting roles or perceived or actual conflicts of interest. Illustrative Behavior - Interpreters: 3.1 Consult with appropriate persons regarding the interpreting situation to determine issues such as placement and adaptations necessary to interpret effectively. 3.2 Decline assignments or withdraw from the interpreting profession when not competent due to physical, mental, or emotional factors. Registry of Interpreters for the Deaf 333 Commerce Street Alexandria, VA 22314 703/838-0030 (V) 703/838-0459 (TTY) 703/838-0454 (Fax) www.rid.org

3.3

Avoid performing dual or conflicting roles in interdisciplinary (e.g. educational or mental health teams) or other settings.

3.4 Comply with established workplace codes of conduct, notify appropriate personnel if there is a conflict with this Code of Professional Conduct, and actively seek resolution where warranted. 3.5

Conduct and present themselves in an unobtrusive manner and exercise care in choice of attire.

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Refrain from the use of mind-altering substances before or during the performance of duties.

3.7

Disclose to parties involved any actual or perceived conflicts of interest.

3.8 Avoid actual or perceived conflicts of interest that might cause harm or interfere with the effectiveness of interpreting services. 3.9

Refrain from using confidential interpreted information for personal, monetary, or professional gain.

3.10 Refrain from using confidential interpreted information for the benefit of personal or professional affiliations or entities.

4.0 RESPECT FOR CONSUMERS Tenet: Interpreters demonstrate respect for consumers. Guiding Principle: Interpreters are expected to honor consumer preferences in selection of interpreters and interpreting dynamics, while recognizing the realities of qualifications, availability, and situation.

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Illustrative Behavior - Interpreters: 4.1 Consider consumer requests or needs regarding language preferences, and render the message accordingly (interpreted or transliterated). 4.2

Approach consumers with a professional demeanor at all times.

4.3

Obtain the consent of consumers before bringing an intern to an assignment.

4.4

Facilitate communication access and equality, and support the full interaction and independence of consumers.

5.0 RESPECT FOR COLLEAGUES Tenet: Interpreters demonstrate respect for colleagues, interns and students of the profession. Guiding Principle: Interpreters are expected to collaborate with colleagues to foster the delivery of effective interpreting services. They also understand that the manner in which they relate to colleagues reflects upon the profession in general. Illustrative Behavior - Interpreters: 5.1 Maintain civility toward colleagues, interns, and students.

Registry of Interpreters for the Deaf 333 Commerce Street Alexandria, VA 22314 703/838-0030 (V) 703/838-0459 (TTY) 703/838-0454 (Fax) www.rid.org

5.2

Work cooperatively with team members through consultation before assignments regarding logistics, providing professional and courteous assistance when asked and monitoring the accuracy of the message while functioning in the role of the support interpreter.

5.3

Approach colleagues privately to discuss and resolve breaches of ethical or professional conduct through standard conflict resolution methods; file a formal grievance only after such attempts have been unsuccessful or the breaches are harmful or habitual.

5.4

Assist and encourage colleagues by sharing information and serving as mentors when appropriate.

5.5

Obtain the consent of colleagues before bringing an intern to an assignment.

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Chapter 3—Working with Interpreters 6.0 BUSINESS PRACTICES Tenet: Interpreters maintain ethical business practices. Guiding Principle: Interpreters are expected to conduct their business in a professional manner whether in private practice or in the employ of an agency or other entity. Professional interpreters are entitled to a living wage based on their qualifications and expertise. Interpreters are also entitled to working conditions conducive to effective service delivery. Illustrative Behavior - Interpreters: 6.1 Accurately represent qualifications, such as certification, educational background, and experience, and provide documentation when requested.

CODE OF PROFESSIONAL CONDUCT

6.2

Honor professional commitments and terminate assignments only when fair and justifiable grounds exist.

6.3

Promote conditions that are conducive to effective communication, inform the parties involved if such conditions do not exist, and seek appropriate remedies.

6.4

Inform appropriate parties in a timely manner when delayed or unable to fulfill assignments.

6.5

Reserve the option to decline or discontinue assignments if working conditions are not safe, healthy, or conducive to interpreting.

6.6

Refrain from harassment or coercion before, during, or after the provision of interpreting services.

6.7

Render pro bono services in a fair and reasonable manner.

6.8

Charge fair and reasonable fees for the performance of interpreting services and arrange for payment in a professional and judicious manner.

7.0 PROFESSIONAL DEVELOPMENT Tenet: Interpreters engage in professional development. Guiding Principle: Interpreters are expected to foster and maintain interpreting competence and the stature of the profession through ongoing development of knowledge and skills. Illustrative Behavior - Interpreters: 7.1 Increase knowledge and strengthen skills through activities such as:

7.2

•

pursuing higher education;

•

attending workshops and conferences;

•

seeking mentoring and supervision opportunities;

•

participating in community events; and

•

engaging in independent studies.

Keep abreast of laws, policies, rules, and regulations that affect the profession.

Registry of Interpreters for the Deaf 333 Commerce Street Alexandria, VA 22314 703/838-0030 (V) 703/838-0459 (TTY) 703/838-0454 (Fax) www.rid.org © Copyright 2005 the Registry of Interpreters for the Deaf

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May 3, 1995 CODE OF PROFESSIONAL RESPONSIBILITY FOR INTERPRETERS IN THE OREGON COURTS PREAMBLE Many persons who come before the courts are partially or completely excluded from full participation in the proceedings because of limited English proficiency or a speech or hearing impairment. It is essential that the resulting communications barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier.1 An interpreter is sworn in as an officer of the court. As an officer of the court, an interpreter is a neutral and impartial participant who assists the court in ensuring that court proceedings and court support services are accessible and function efficiently and effectively. The court interpreter is a skilled professional, therefore, who fulfills an essential role in the administration of justice. At a minimum, an interpreter must be a "qualified interpreter," under ORS 45.275 (7)-(8), to serve in the courts in Oregon. However, ORS 45.288 requires the court to give preference for appointments to an interpreter certified under ORS 45.291. In other words, the court is required by ORS 45.288 to appoint a certified interpreter if a certified interpreter is available, able, and willing to serve. If no certified interpreter is available, able, and willing to serve, an interpreter still must meet the statutory requirements for qualification contained in ORS 45.275 (7)-(8) and ORS 45.288(3)-(4), and state his or her qualifications on the record as in ORS 45.275 (7). APPLICABILITY This code shall guide all persons, agencies, and organizations who administer, supervise use of, or deliver interpreting services to the courts. Ensuring equal access to the communication, however, may on occasion conflict with this code. When unique situations necessitate an exception to the rules in order to ensure effective communication, the court may so allow. For clarification of this code, the following definitions should be kept in mind. Interpreting is rendering an oral statement from one language into an oral statement to another language. Sight translation is rendering written material into oral form. Translation is rendering written material from one language into written form in another language. Violations of this code may result in the interpreter being deleted from a court's list of qualified and/or certified interpreters. 1.

ACCURACY AND COMPLETENESS The interpreter shall render a complete and accurate interpretation or sight translation, without altering, omitting anything from, or adding anything to what is stated or written, and without explanation.

1

A non-English speaker should be able to understand just as much as an English speaker with the same

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Chapter 3—Working with Interpreters Commentary The interpreter has a twofold duty: 1) to ensure that the proceedings in English reflect precisely what was said by a non-English speaking person, and 2) to place the nonEnglish speaking person on an equal footing with those who understand English. This creates an obligation to conserve every element of information contained in a source language communication when it is rendered in the target language. Therefore, the interpreter is obligated to apply the interpreter's best skills and judgment to faithfully preserve the meaning of what is said in court, including the style or register of speech. Verbatim, "word for word," or literal oral translations are not appropriate when they distort the meaning of the source language, but every spoken statement, even if it appears nonresponsive, obscene, rambling, or incoherent, should be interpreted. This includes apparent misstatements. The interpreter should never interject his or her own words, phrases, or expressions. If the need arises to explain an interpreting problem, (e.g., a term or phrase with no direct equivalent in the target language or a misunderstanding that only the interpreter can clarify), the interpreter should ask the court's permission to provide an explanation. The interpreter of an oral language should convey the emotional emphasis of the speaker, but it may be in a slightly diminished form. If the witness weeps during questioning, the interpreter should not weep. Imitating the weeping might appear to mock the witness. Sadness can be conveyed by tone of voice alone. The judge and jury can see a witness' emotions for themselves even if they do not understand the target language. A sign language interpreter, however, must employ all of the visual cues that the language he or she is interpreting requires--including facial expressions and body language, in addition to sign language. A sign language interpreter, therefore, should ensure that court participants do not confuse these essential elements of the interpreted language with inappropriate interpreter conduct. The obligation to preserve accuracy includes the interpreter's duty to correct, in a timely fashion, any error of interpretation discovered by the interpreter during the proceeding. The interpreter should demonstrate professionalism by objectively analyzing any challenge to his or her performance. 2.

REPRESENTATIONS OF QUALIFICATIONS The interpreter shall accurately and completely represent his or her certifications, training, and pertinent experience. The court should reassess the interpreter's qualifications each time the interpreter is engaged to interpret in court for a nonEnglish speaking party or witness. Commentary Acceptance of a case by the interpreter implies the interpreter's linguistic competency in legal settings. Withdrawing or being asked to withdraw from a case after it begins causes a disruption of court proceedings and is wasteful of scarce public resources. It is therefore essential that the interpreter present a complete and truthful account of the 2

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3.

interpreter's training, certification, and experience prior to appointment so the court can fairly evaluate the interpreter's qualifications for delivering interpreting services. IMPARTIALITY AND AVOIDANCE OF CONFLICT OF INTEREST--COURT OR PROCEEDING INTERPRETER The interpreter shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias or conflict of interest. The interpreter shall disclose to the judge any real bias or interest in the parties or witnesses in a case, or any situation or relationship that may be perceived by the court, any of the parties, or any witnesses as a bias or interest in the parties or witnesses in a case. Commentary When appointed by the court to act as a proceeding interpreter, the interpreter's "clients" are all of the parties and witnesses in the court case. Because of this, it is important that the interpreter have no real or perceived interest in any of the parties or witnesses beyond the professional interest of interpreting for the non-English speaking parties and witnesses in the court case. Any condition that interferes with the objectivity of the interpreter constitutes a conflict of interest. Before providing services in a matter, the court interpreter must disclose to all parties and the court any prior involvement in the case or with the parties or witnesses, whether personal or professional, that could be reasonably construed as a conflict of interest. This disclosure shall not include privileged or confidential information. If, after this disclosure on the record, all parties acknowledge the situation and determine that it is in the best interest of justice for the interpreter to serve in the case, the interpreter may interpret in the case. The following are circumstances that are presumed to create actual or perceived conflicts of interest for the interpreter where the interpreter needs to declare the conflict of interest before appointment on the record and let the court determine if the interpreter should serve in the case: 1.

The interpreter is a friend, associate, or relative of a party or counsel for a party involved in the proceedings;

2.

The interpreter has served in an investigative capacity in the case at issue for any party involved in the case;

3.

The interpreter has previously been retained by a law enforcement agency to assist in the preparation of the criminal case at issue;

4.

The interpreter or the interpreter's spouse or child has a financial interest in the subject matter in controversy or in a party to the proceeding or any other interest from which the interpreter may benefit from, that would be affected by the outcome of the case;

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The interpreter has been involved in the choice of counsel or law firm for the case.

The interpreter should not serve in any manner in which payment for their services is contingent upon the outcome of the case. An interpreter who is also an attorney should not serve as the court or proceeding interpreter, as well as the attorney in the same case. During the proceeding, the interpreter should avoid any conduct or behavior that presents the appearance of favoritism toward any of the parties. The Interpreter should maintain professional relationships with the non-English speaking parties and witnesses, and should limit his or her involvement in the proceedings to that of interpretation. The interpreter should discourage a non-English speaking party's or witness' personal dependence on the interpreter. The interpreter should refrain from conversations with parties, witnesses, jurors, attorneys, or with friends or relatives of any party in or near the courtroom, except in the discharge of their official functions. It is especially important that the interpreter, who is often familiar with attorneys or other members of the courtroom work group, including law enforcement officers, refrain from casual and personal conversations with anyone in the court that may convey an appearance of a special relationship or partiality to any court participant. An example of conversation that would be within the interpreter's official duties would be: communicating with the non-English speaking party or witness in an informal setting where the interpreter would listen to accent, rhythm, and the choice of words of the nonEnglish speaking party to determine if the interpreter can adequately interpret for the non-English speaking party or witness. The interpreter should strive for professional detachment. The interpreter should avoid all verbal and nonverbal displays of personal attitudes, prejudices, emotions, or opinions. Should the interpreter become aware that a proceeding participant views the interpreter as having a bias or being biased, the interpreter should disclose that knowledge on the record to the judge and the parties in the case. This disclosure shall not include privileged or confidential information. If all parties acknowledge the situation and determine that it is in the best interest of justice for the interpreter to serve in the case, the interpreter may continue to interpret in the case.

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IMPARTIALITY AND AVOIDANCE OF CONFLICT OF INTEREST--INTERPRETER APPOINTED TO WORK WITH STATE-PAID, APPOINTED ATTORNEY An interpreter appointed to work with a state-paid, appointed attorney shall refrain from conduct that may give an appearance of personal bias or conflict of interest. The interpreter so appointed may appear to have the natural professional bias that occurs because the interpreter is part of the appointed legal team. Interpreters appointed to work with an appointed attorney shall disclose to the attorney any real bias or interest in the parties or witnesses in a case, or any situation or relationship that may be perceived by the court, any of the parties, or any witnesses as a personal bias or interest in the parties or witnesses in a case. The appointed attorney shall either petition the court for the appointment of a different interpreter to the case, thereby releasing the interpreter from the interpreter's obligation in the case, or the attorney shall bring the situation to the attention of the court and opposing party, on the record. If the attorney fails to bring the conflict to the attention of the court, the interpreter must notify the court of a potential conflict of interest. This disclosure shall not include privileged or confidential information. If all of the parties agree that the interpreter may serve on the case, the interpreter may remain appointed to the case. Commentary Any condition that interferes with the objectivity of the interpreter constitutes a conflict of interest. Before accepting appointment to a case, the interpreter must disclose to all parties and the court any prior involvement in the case or with the parties or witnesses, whether personal or professional, that could be reasonably construed as a conflict of interest. This disclosure shall not include privileged or confidential information. If, after this disclosure on the record, all parties acknowledge the situation and determine that it is in the best interest of justice for the interpreter to serve in the case, the interpreter may interpret in the case. The following are circumstances that are presumed to create actual or perceived conflicts of interest for the interpreter where the interpreter needs to declare the conflict of interest before appointment on the record and let the court determine if the interpreter should serve in the case: 1.

The interpreter is a friend, associate, or relative of a party or counsel for a party involved in the proceedings;

2.

The interpreter has served in an investigative capacity in the case at issue for any party involved in the case;

3.

The interpreter has previously been retained by a law enforcement agency to assist in the preparation of the criminal case at issue;

4.

The interpreter or the interpreter's spouse or child has a financial interest in the subject matter in controversy or in a party to the proceeding or any other interest 5

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The interpreter has been involved in the choice of counsel or law firm for the case.

The interpreter should not serve in any manner in which payment for the interpreter's services is contingent upon the outcome of the case. The interpreter appointed to work with an appointed attorney is to interpret what is spoken by the non-English speaking party in private conferences and conversations between the appointed attorney and the non-English speaking party. In a case where the court has appointed the attorney and the interpreter, the interpreter may also sit at the counsel table and interpret the proceeding for the non-English speaking person in a simultaneous interpretation mode. An interpreter who is also an attorney may prepare a case without the aid of an additional interpreter; however, it is not required. An attorney who is also an interpreter may not act as the attorney and the interpreter for the non-English speaking party in court during a proceeding. Though appointed as a member of the legal team, the interpreter should avoid any conduct or behavior that presents the appearance of any personal favoritism toward any of the parties. The interpreter should maintain professional relationships with the appointed attorney and the non-English speaking party, and should limit their involvement with the non-English speaking party to that of interpretation. The interpreter should discourage a non-English speaking party's personal dependence on the interpreter and should defer all questions the party may have to the appointed attorney. Though a member of the appointed legal team, the interpreter must not take on the role of advocate for the non-English speaking party. Despite the fact that the interpreter is a member of the legal team, the interpreter must still interpret everything that is said in court to the non-English speaking party and to interpret everything that is said by the non-English speaking party. For example, if in a criminal case the defendant becomes angry during the proceeding and starts to shout obscenities at a witness who is testifying, it is the interpreter's duty to interpret for the court participants everything that the defendant is saying, even if what is being said by the defendant is not helpful to the defense effort. An interpreter appointed to a case should not perform bilingual paralegal, investigative, or clerical work on the same case. The interpreter shall not claim paralegal, investigative, or clerical work as interpretation in any billings. During the course of the proceedings, the interpreter should refrain from conversations with parties, witnesses, jurors, attorneys, or with friends or relatives of any party in or near the courtroom, except in the discharge of their official functions. It is especially important that the interpreter, who is often familiar with attorneys or other members of the courtroom work group, including law enforcement officers, refrain from casual and personal conversations with anyone in the court that may convey an appearance of a 6 Lawyers and the Deaf Community

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Chapter 3—Working with Interpreters special relationship or partiality to any of the court participants other than that of the professional relationship of interpreting for the appointed attorney and the non-English speaking party. An example of conversation that would be within the interpreter's duties would be: communicating with the non-English speaking party prior to appointment to the case in an informal setting where the interpreter would listen to accent, rhythm, and the choice of words of the non-English speaking party to determine if the interpreter can adequately interpret for the non-English speaking party. The interpreter should strive for professional detachment. The interpreter should avoid all verbal and nonverbal displays of personal attitudes, prejudices, emotions, or opinions. Should the interpreter become aware that a proceeding participant views the interpreter as having a bias or being biased, the interpreter should disclose that knowledge to the appointed attorney. The appointed attorney shall either petition the court for the appointment of a different interpreter to the case thereby releasing the interpreter from the interpreter's obligation in the case, or the attorney shall bring the situation to the attention of the court and opposing party, on the record. If the attorney fails to bring the conflict to the attention of the court, the interpreter must notify the court of a potential conflict of interest. This disclosure shall not include privileged or confidential information. If all of the parties agree that the interpreter may serve on the case, the interpreter may remain on the case. 5.

PROFESSIONAL DEMEANOR The interpreter shall conduct himself or herself in a manner consistent with the dignity of the court and shall be as unobtrusive as possible. Commentary The interpreter should know and observe the established protocol, rules, and procedures for delivering interpreting services. When speaking in English, the interpreter should speak at a rate and volume that enables the interpreter to be heard and understood throughout the courtroom, but the interpreter's presence should otherwise be as unobtrusive as possible. The interpreter should work without drawing undue or inappropriate attention to himself or herself. The interpreter should dress in a manner that is consistent with the dignity of the court proceedings. The interpreter should avoid obstructing the view of any individual involved in the proceeding. An interpreter who uses sign language or other visual modes of communication must, however, be positioned so that the sign language, facial expressions and whole body movement are visible to the person for whom the interpreter is interpreting. The interpreter is encouraged to avoid personal or professional conduct that could discredit the court. 7

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CONFIDENTIALITY The interpreter shall understand the rules of privileged and other confidential information and shall protect the confidentiality of all privileged and other confidential information. Commentary The interpreter must protect and uphold the confidentiality of all privileged information obtained during the course of his or her duties. It is especially important that the interpreter understand and uphold the attorney-client privilege that requires confidentiality with respect to any communication between attorney and client. This rule also applies to other types of privileged communications. The interpreter must also refrain from repeating or disclosing case information obtained by the interpreter in the course of employment. In the event that the interpreter becomes aware of information that suggests imminent harm to someone or relates to a crime being committed during the course of the proceedings, the interpreter should immediately disclose the information to the criminal presiding judge or a judge who is not involved in the proceeding (if the presiding judge is involved in the proceeding). At that point, it will become that judge's responsibility to determine what action, if any, should be taken regarding the situation.

7.

RESTRICTION OF PUBLIC COMMENT The interpreter shall not publicly discuss, report, or offer an opinion concerning a matter in which the interpreter is or has been engaged, even when that information is not privileged or required by law to be confidential.

8.

SCOPE OF PRACTICE The interpreter shall limit himself or herself to interpreting or performing sight translating and shall not give legal advice, express personal opinions to individuals for whom the interpreter is interpreting, or engage in any other activities that may be construed to constitute a service other than interpreting or translating.

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Commentary Because the interpreter is responsible only for enabling others to communicate, the interpreter should limit himself or herself to the activity of interpreting or translating only. The interpreter should refrain from initiating communications while interpreting unless it is necessary for assuring an accurate and faithful interpretation. The interpreter may be required to initiate communications during a proceeding when they find it necessary to seek assistance in performing his or her duties. Examples of such circumstances include seeking direction when unable to understand or express a word or thought, requesting speakers to moderate their rate of communication or repeat or rephrase something, correcting the interpreter's own interpreting errors, or notifying the court of reservations about his or her ability to satisfy an assignment competently. In such instances, the interpreter should make it clear that the interpreter is speaking for himself or herself. The interpreter may convey legal advice only when the interpreter is interpreting legal advice that an attorney is giving. The interpreter should not explain the purpose of forms, services, or otherwise act as a counselor or advisor unless the interpreter is interpreting for someone who is acting in that official capacity. The interpreter should not personally perform acts that are the official responsibility of other court officials, including, but not limited to, court clerks, pretrial release investigators, indigence verification specialists, or probation counselors. An interpreter appointed to a case should not perform bilingual paralegal, investigative, or clerical work on the same case. The interpreter shall not claim paralegal, investigative, or clerical work as interpretation in any billings. 9.

ASSESSING AND REPORTING IMPEDIMENTS TO PERFORMANCE The interpreter shall assess at all times his or her ability to deliver interpretation services. When the interpreter has any reservation about his or her ability to satisfy an assignment competently, the interpreter shall immediately convey that reservation to the court. Commentary If the communication mode or language of the non-English speaking person cannot be readily interpreted or becomes difficult to readily interpret, the interpreter should notify the court immediately. The interpreter should notify the court of any environmental or physical limitation that impedes or hinders the interpreter's ability to deliver interpreting services adequately, e.g., the courtroom is not quiet enough for the interpreter to hear or be heard by the non-English speaker, more than one person at a time is speaking, or principals or witnesses of the court are speaking at a rate of speed that is too rapid for the interpreter to adequately interpret. A sign language interpreter must ensure that he or she can 9

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Chapter 3—Working with Interpreters both see and convey the full range of visual language elements that are necessary for communication, including facial expressions and body movement, as well as sign language. The interpreter should notify the court of the need to take periodic breaks in order to maintain mental and physical alertness and to prevent interpreter fatigue. The interpreter should recommend and encourage the court to use more than one interpreter in a lengthy proceeding or trial. Even a competent and experienced interpreter may encounter cases where routine proceedings suddenly involve technical or specialized terminology unfamiliar to the interpreter, e.g., the unscheduled testimony of an expert witness. When such instances occur, the interpreter should request a brief recess in order to familiarize himself or herself with the subject matter. If familiarity with the terminology requires extensive time or more intensive research, the interpreter should inform the judge. The interpreter is encouraged to make inquiries as to the nature of a case whenever possible before accepting an assignment. This enables the interpreter to more closely match his or her professional qualifications, skills, and experience to potential assignments, and more accurately assess the interpreter's ability to competently satisfy those assignments. The interpreter should refrain from accepting a case if the interpreter feels the language and subject matter of that case may exceed his or her skills or capacities. The interpreter should feel no compunction about notifying the court if the interpreter feels unable to perform competently due to lack of familiarity with terminology, preparation or difficulty in understanding a witness or defendant. The interpreter should notify the presiding officer of any personal bias he or she may have involving any aspect of the proceedings, including any bias as to the subject matter of the case, or bias against any of the parties in the case. 10.

DUTY TO REPORT ETHICAL VIOLATIONS The interpreter shall report to the court any actions by any persons that may impede the interpreter's compliance with any law, any provision of this code, or any other official policy governing court interpreting and sight translating. Commentary Because the users of interpreting services frequently misunderstand the proper role of the interpreter, they may ask or expect the interpreter to perform duties or engage in activities that run counter to the provisions of this code or other laws, regulations, or policies governing court interpreters. It is incumbent upon the interpreter to inform such persons of his or her professional obligations. If, having been apprised of these obligations, the person persists in demanding that the interpreter violate them, the interpreter should turn to the court's interpreter coordinator, the trial court administrator or trial court clerk, or the judge to resolve the situation. 10

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PROFESSIONAL DEVELOPMENT The interpreter shall continually improve his or her skills and knowledge and advance the profession through activities such as professional training and education and interaction with colleagues and specialists in related fields. Commentary The interpreter must continually strive to increase his or her knowledge of the languages in which the interpreter works professionally, including past and current trends in technical, vernacular, and regional terminology, as well as their application within court proceedings. The interpreter should keep informed of all statutes, rules of courts, and policies of the judiciary that relate to the performance of the interpreter's professional duties. The interpreter should seek to elevate the standards of the profession through participation in workshops, professional meetings, interaction with colleagues, and reading current literature in the field.

CR:bkv/E9B95007.F May 3, 1995

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Chapter 3—Working with Interpreters Interpreters in the Oregon Revised Statutes Chapter 40—Evidence Code EVIDENCE AND WITNESSES

40.272 Rule 509-1. Sign language interpreter privilege. (1) As used in this section:

(a) “Person with a disability” means a person who cannot readily understand or communicate the spoken English language, or cannot understand proceedings in which the person is involved, because of deafness or because of a physical hearing impairment or cannot communicate in the proceedings because of a physical speaking impairment. (b) “Sign language interpreter” or “interpreter” means a person who translates conversations or other communications for a person with a disability or translates the statements of a person with a disability. (2) A person with a disability has a privilege to refuse to disclose and to prevent a sign language interpreter from disclosing any communications to which the person with a disability was a party that were made while the interpreter was providing interpretation services for the person with a disability. The privilege created by this section extends only to those communications between a person with a disability and another, and translated by the interpreter, that would otherwise be privileged under ORS 40.225 to 40.295. [1993 c.179 §2; 2007 c.70 §11] 40.273 Rule 509-2. Non-English-speaking person-interpreter privilege. (1) As used in this section: (a) “Interpreter” means a person who translates conversations or other communications for a non-English-speaking person or translates the statements of a non-English-speaking person. (b) “Non-English-speaking person” means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate in the proceedings. (2) A non-English-speaking person has a privilege to refuse to disclose and to prevent an interpreter from disclosing any communications to which the non-English-speaking person was a party that were made while the interpreter was providing interpretation services for the non-Englishspeaking person. The privilege created by this section extends only to those communications between a non-English-speaking person and another, and translated by the interpreter, that would otherwise be privileged under ORS 40.225 to 40.295. [1993 c.179 §3] 40.325 Rule 604. Interpreters. Except as provided in ORS 45.275 (8), an interpreter is subject to the provisions of the Oregon Evidence Code relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true and impartial interpretation of the proceedings in an understandable manner using the interpreter’s best skills and judgment in accordance with the standards and ethics of the interpreter profession. [1981 c.892 §47; 1981 s.s. c.3 §138; 1989 c.224 §7; 1991 c.750 §7; 2001 c.242 §4; 2005 c.385 §3] 40.410 Rule 702. Testimony by experts. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. [1981 c.892 §58] Chapter 45—Testimony Generally INTERPRETERS

45.272 Definitions for ORS 45.272 to 45.297. As used in ORS 45.272 to 45.297:



(1)

“Adjudicatory proceeding” means:

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(a)

Any contested case hearing conducted under ORS chapter 183; or

(b) Any hearing conducted by an agency in which the individual legal rights, duties or privileges of specific parties are determined if that determination is subject to judicial review by a circuit court or by the Court of Appeals.

(2)

“Agency” has that meaning given in ORS 183.310. [1999 c.1041 §3]

45.273 Policy. (1) It is declared to be the policy of this state to secure the constitutional rights and other rights of persons who are unable to readily understand or communicate in the English language because of a non-English-speaking cultural background or a disability, and who as a result cannot be fully protected in administrative and court proceedings unless qualified interpreters are available to provide assistance. (2) It is the intent of the Legislative Assembly in passing ORS 45.272 to 45.297 to provide a procedure for the qualification and use of court interpreters. Nothing in ORS 45.272 to 45.297 abridges the rights or obligations of parties under other laws or court rules. [1993 c.687 §1; 1999 c.1041 §1] 45.275 Appointment of interpreter for non-English-speaking party or witness; substitution; payment of costs. (1) The court shall appoint a qualified interpreter in a civil or criminal proceeding, and a hearing officer or the designee of a hearing officer shall appoint a qualified interpreter in an adjudicatory proceeding, whenever it is necessary:

(a)

To interpret the proceedings to a non-English-speaking party;



(b)

To interpret the testimony of a non-English-speaking party or witness; or

(c) To assist the court, agency or hearing officer in performing the duties and responsibilities of the court, agency or hearing officer. (2) No fee shall be charged to any person for the appointment of an interpreter to interpret testimony of a non-English-speaking party or witness, or to assist the court, agency or hearing officer in performing the duties and responsibilities of the court, agency or hearing officer. No fee shall be charged to a non-English-speaking party who is unable to pay for the appointment of an interpreter to interpret the proceedings to the non-English-speaking party. No fee shall be charged to any person for the appointment of an interpreter if appointment is made to determine whether the person is unable to pay or non-English-speaking for the purposes of this section. (3) A non-English-speaking party shall be considered unable to pay for an interpreter for the purposes of this section if: (a) The party makes a verified statement and provides other information in writing under oath showing financial inability to pay for a qualified interpreter, and provides any other information required by the court or agency concerning the inability to pay for such an interpreter; and (b) interpreter.

It appears to the court or agency that the party is in fact unable to pay for a qualified

(4) paid:

Fair compensation for the services of an interpreter appointed under this section shall be

(a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court. (b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court. (c) By the state in a proceeding in a circuit court. Amounts payable by the state shall be from funds available to the court other than the Public Defense Services Account established by ORS 151.225, Lawyers and the Deaf Community

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(d)

By the agency in an adjudicatory proceeding.

(5) If a party or witness is dissatisfied with the interpreter appointed by the court, the hearing officer or the designee of the hearing officer, the party or witness may request the appointment of a different certified interpreter. A request under this subsection must be made in a manner consistent with the policies and notice requirements of the court or agency relating to the appointment and scheduling of interpreters. If the substitution of another interpreter will delay the proceeding, the person making the request must show good cause for the substitution. Any party may object to use of any interpreter for good cause. Unless the court, hearing officer or the designee of the hearing officer has appointed a different interpreter for cause, the party using any interpreter other than the interpreter originally appointed by the court, hearing officer or the designee of the hearing officer shall bear any additional costs beyond the amount required to pay the original interpreter. (6) A judge or hearing officer, on the judge’s or hearing officer’s own motion, may substitute a different interpreter for the interpreter initially appointed in a proceeding. A judge or hearing officer may make a substitution under this subsection at any time and for any reason. (7) A court may allow as costs reasonable expenses incurred by a party in employing the services of an interpreter in civil proceedings in the manner provided by ORCP 68. (8) A court, a hearing officer or the designee of a hearing officer shall require any person serving as an interpreter for the court or agency to state the person’s name on the record and whether the person is certified under ORS 45.291. If the person is certified under ORS 45.291, the interpreter need not make the oath or affirmation required by ORS 40.325 or submit the interpreter’s qualifications on the record. If the person is not certified under ORS 45.291, the interpreter must make the oath or affirmation required by ORS 40.325 and submit the interpreter’s qualifications on the record.

(9)

For the purposes of this section:



(a)

“Hearing officer” includes an administrative law judge.

(b) “Non-English-speaking person” means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate effectively in the proceedings. (c) “Qualified interpreter” means a person who is readily able to communicate with the nonEnglish-speaking person and who can orally transfer the meaning of statements to and from English and the language spoken by the non-English-speaking person. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style and register of the original statement, without additions or omissions. “Qualified interpreter” does not include any person who is unable to interpret the dialect, slang or specialized vocabulary used by the party or witness. [1991 c.750 §2; 1993 c.687 §8; 1995 c.273 §16; 1997 c.872 §18; 1999 c.1041 §4; 2001 c.242 §1; 2001 c.962 §§65,66; 2003 c.75 §§77,78; 2005 c.385 §2] 45.285 Appointment of interpreter for party or witness with disability; provision of assistive communication device. (1) For the purposes of this section: (a) “Assistive communication device” means any equipment designed to facilitate communication by a person with a disability.

(b)

“Hearing officer” includes an administrative law judge.

(c) “Person with a disability” means a person who cannot readily understand the proceedings because of deafness or a physical hearing impairment, or cannot communicate in the proceedings because of a physical speaking impairment. Lawyers and the Deaf Community

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Chapter 3—Working with Interpreters (d) “Qualified interpreter” means a person who is readily able to communicate with the person with a disability, interpret the proceedings and accurately repeat and interpret the statements of the person with a disability to the court. (2) In any civil action, adjudicatory proceeding or criminal proceeding, including a courtordered deposition if no other person is responsible for providing an interpreter, in which a person with a disability is a party or witness, the court, hearing officer or the designee of the hearing officer shall appoint a qualified interpreter and make available appropriate assistive communication devices whenever it is necessary to interpret the proceedings to the person with a disability, or to interpret the testimony of the person with a disability. (3) No fee shall be charged to the person with a disability for the appointment of an interpreter or use of an assistive communication device under this section. No fee shall be charged to any person for the appointment of an interpreter or the use of an assistive communication device if appointment or use is made to determine whether the person has a disability for the purposes of this section. (4) Fair compensation for the services of an interpreter or the cost of an assistive communication device under this section shall be paid: (a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court. (b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court. (c) By the state in a proceeding in a circuit court. Amounts payable by the state shall be from funds available to the court other than the Public Defense Services Account established by ORS 151.225, except that fees of an interpreter necessary for the purpose of communication between appointed counsel and a client or witness in a criminal case shall be payable from that account. (d) By the agency in an adjudicatory proceeding. [1991 c.750 §1; 1993 c.687 §6; 1999 c.1041 §5; 2001 c.962 §§67,68; 2003 c.75 §§79,80; 2007 c.70 §13] 45.288 Appointment of certified interpreter required; exceptions; disqualifications; code of professional responsibility. (1) For the purposes of this section:

(a)

“Hearing officer” includes an administrative law judge.



(b)

“Non-English-speaking person” has the meaning given that term in ORS 45.275.



(c)

“Person with a disability” has the meaning given that term in ORS 45.285.

(d) “Qualified interpreter” means a person who meets the requirements of ORS 45.285 for an interpreter for a person with a disability, or a person who meets the requirements of ORS 45.275 for an interpreter for a non-English-speaking person. (2) Except as provided by this section, whenever a court is required to appoint an interpreter for any person in a proceeding before the court, or whenever a hearing officer is required to appoint an interpreter in an adjudicatory proceeding, the court, hearing officer or the designee of the hearing officer shall appoint a qualified interpreter who has been certified under ORS 45.291. If no certified interpreter is available, able or willing to serve, the court, hearing officer or the designee of the hearing officer shall appoint a qualified interpreter. Upon request of a party or witness, the court, hearing officer or designee of the hearing officer, in the discretion of the court, hearing officer or the designee of the hearing officer, may appoint a qualified interpreter to act as an interpreter in lieu of a certified interpreter in any case or adjudicatory proceeding. (3) The requirements of this section apply to appointments of interpreters for persons with disabilities and for non-English-speaking persons. Lawyers and the Deaf Community

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Chapter 3—Working with Interpreters (4) The court, hearing officer or the designee of the hearing officer may not appoint any person under ORS 45.272 to 45.297 or 132.090 if:

(a)

The person has a conflict of interest with any of the parties or witnesses in the proceeding;

(b) The person is unable to understand the judge, hearing officer, party or witness, or cannot be understood by the judge, hearing officer, party or witness; or (c) The person is unable to work cooperatively with the judge of the court, the hearing officer, the person in need of an interpreter or the counsel for that person. (5) The Supreme Court shall adopt a code of professional responsibility for interpreters. The code is binding on all interpreters who provide interpreter services in the courts or in adjudicatory proceedings before agencies. [1993 c.687 §2; 1999 c.1041 §6; 2001 c.242 §2; 2001 c.243 §2; 2003 c.75 §81; 2007 c.70 §14] 45.291 Certification program; establishment by State Court Administrator; rules. (1) Subject to the availability of funding, the State Court Administrator shall establish a program for the certification of court interpreters. The program shall be established by rules adopted pursuant to ORS 1.002 and shall include, but not be limited to, provisions for:

(a)

Prescribing the form and content of applications for certification;

(b) Prescribing and collecting reasonable fees for the application, examination, certification and renewal of certification for court interpreters; (c) Establishing categories of certificates based on the nature of the interpreter services to be provided, including categories for interpreters for persons with disabilities, as defined in ORS 45.285, and for interpreters for non-English-speaking persons, as defined in ORS 45.275; (d) Establishing minimum competency requirements for court interpreters in the various categories of certification; (e) Establishing teaching programs designed to educate court interpreters in ethical, substantive and procedural legal issues; (f) Prescribing the form of and administering examinations for the purpose of testing court interpreters for competency and ethics;

(g)

Establishing grounds for renewal, suspension or cancellation of certificates;

(h) Establishing a process for receiving comments and input into the policy and procedures of the certification program; (i) to 45.297;

Establishing a process for receiving comments and input on compliance with ORS 45.272

(j) Establishing a process for receiving comments and input on compliance with the code of professional responsibility adopted under ORS 45.288; and (k) Establishing a process by which an adversely affected interpreter may seek review of any decision made by the State Court Administrator on renewal, suspension or cancellation of a certificate. (2) An interpreter may be certified in Oregon by the State Court Administrator upon satisfactory proof that the interpreter is certified in good standing by the federal courts or by a state having a certification program that is equivalent to the program established under this section. [1993 c.687 §3; 2001 c.242 §3; 2007 c.70 §15] 45.292 Certification required for use of title or designation “certified court interpreter” or “court certified interpreter.” (1) Except as provided in this section, a person may not assume or use the title or designation “certified court interpreter” or “court certified interpreter,” or any other title, Lawyers and the Deaf Community

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Chapter 3—Working with Interpreters designation, words, letters, abbreviation, sign or device tending to indicate that the person is certified for the purposes of providing interpreter services under ORS 45.272 to 45.297.

(2)

Subsection (1) of this section does not apply to any person who:



(a)

Is certified under the program established under ORS 45.291;



(b)

Is certified as an interpreter by the federal courts; or

(c) Is certified as an interpreter in another state that has a certification program that is equivalent to the program established under ORS 45.291. [1999 c.1041 §8] 45.294 Court Interpreter and Shorthand Reporter Certification Account; sources; uses. (1) The Court Interpreter and Shorthand Reporter Certification Account is established as an account in the General Fund of the State Treasury. All moneys received by the State Court Administrator from fees imposed under ORS 8.445 and 45.291 shall be paid into the State Treasury and credited to the account. All moneys in the account are appropriated continuously to the State Court Administrator to carry out the provisions of ORS 8.415 to 8.455 and 45.291. (2) The State Court Administrator may apply for and receive funds or grants from federal, state and private sources to be credited to the Court Interpreter and Shorthand Reporter Certification Account and used for the purposes specified in ORS 8.415 to 8.455 and 45.291. [1993 c.687 §4; 1995 c.386 §7] 45.297 Authority to enter into service contracts. The State Court Administrator may enter into service contracts and may establish uniform policies and procedures, subject to the approval of the Chief Justice of the Supreme Court, governing the appointment, provision and payment of interpreters in proceedings before the circuit courts of the state, including the provision of interpreter services utilizing telecommunications methods. [1993 c.687 §5]

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Chapter 3—Working with Interpreters Exercises1 You Are Person A Simultaneous Exercise You read while Person B simultaneously repeats what you are saying. This hearing is called an arraignment. You are being charged with a crime. I am advising you of your rights. You have the right to a lawyer. You have the right to buy lottery tickets. If you win, you will not be entitled to a public defender. You will be entitled to buy a red convertible. You have the right to a trial. At your trial, if you want to, you can testify and tell your side of things, but you might not want to spill your guts, so you can decide to just sit there and rest on your laurels, rest your case and cite the authorities above stated for your position, even if it is untenable, or play tennis, or quote Tennyson. See RCW 2.42.040 and 113 Wn.2d, 486, CJS, ALR, ABC, and QZ8. Consecutive Exercise While you read, Person B listens. When you are through, Person B will repeat verbatim what you have said. There were three passengers in the car, northbound. The driver seemed to be a tall, red-haired man. Mr. Taylor was sitting in the passenger seat, and right behind him was the woman I also saw at the pharmacy the day before. They were going about 35 miles per hour. [49 words]

These exercises and examples are provided courtesy of Joanne Morre, Washington State Office of the Administrator for the Courts.

1 

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Chapter 3—Working with Interpreters You Are Person B Simultaneous Exercise You read while Person A simultaneously repeats what you are saying. Do you understand that if you plead guilty you are giving up your right to have a trial? You can be sentenced up to 10 years, but the standard range is 4 to 6 months. If you hear that she is here, we can go to the store and buy some potatoes. They you can appeal to the court of last resort, and the resort is at Clear Lake. The challenge to change the tone and meaning of this colloquy is one that can be seen by any literary critic writing for the San Francisco Chronicle, published in Volume 1, number 128, page 7, and following and in the WAC §128.134 (a)(i)(b), with parallel cite at 42 Wash. App 123, 1987, review denied. Consecutive Exercise While you read, Person A listens. When you are through, Person B will repeat verbatim what you have said. At about 7:15 p.m. a blue station wagon, maybe a 1981 Ford, southbound, approached the intersection of 35th Ave. N.E. and N. 27 . There was a stop sign, I think, but the driver did not stop. Then he turned left and speeded away. I could just make out his license plate. I believe it was WKH 392. [57 words]

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Chapter 3—Working with Interpreters

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Chapter 3—Working with Interpreters

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Chapter 4

Presentation Slides Edward C. Alletto Court Interpreter Services, Oregon Judicial Department Salem, Oregon Julie Simon The Language Door Ashland, Oregon Dennis Steinman Kell Alterman & Runstein LLP Portland, Oregon

Chapter 4—Presentation Slides

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Chapter 4—Presentation Slides

Lawyers and the Deaf Community Edward Alletto, CSC, SC:L Julie H. Simon, Ph.D., CI, CT Dennis Steinman, Esq. September 13, 2012 Portland, OR

Lawyers and Deaf Clients

Section 1

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Chapter 4—Presentation Slides

Working with Deaf Clients  

ADA Requirements for Lawyers Settings

ADA and Lawyers 

Title III of the Americans with Disabilities Act

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Chapter 4—Presentation Slides

Case Scenarios 

Lawyers’ responsibilities under ADA and Oregon law

Scenario #1 

You are a general practice attorney. You receive a call from a family member of an individual who wants to meet with you about a legal matter. The legal matter is of a kind that you normally handle. The family member tells you that the individual could not call you himself because he is hearing impaired. You schedule a time for the individual to come to your office for the initial consultation. The family member requests that you have a sign language interpreter present.

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Chapter 4—Presentation Slides

Scenario #1 





Do you have to provide a sign language interpreter at your own expense, or can you require the prospective client to pay for the cost? Can you require the prospective client to choose a sign language interpreter for the session on his own and make the arrangements, or do have an obligation to do so? Does the presence of the sign language interpreter destroy the attorney-client privilege?

Scenario #1 

A. The family member says that she can provide sign language interpretation for the discussion, and asks to be present as an interpreter.



Do you have to allow the family member to attend, or can you request that an independent third-party interpreter attend instead? What if the legal matter concerns an issue that may affect the family member (for example, a will or a trust) and you would rather not have the family member present?

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Chapter 4—Presentation Slides

Scenario #1 

B. The family member says that she is adept at sign language and will also attend the initial consultation, but does not want to provide the sign language interpretation for the discussion.



Can you require the family member to provide the interpretation services in order to save money?

Scenario #1 

C. The family member says that the prospective client does not understand sign language and needs “real-time captioning.”



Do you have to accommodate the individual by obtaining realtime captioning?

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Chapter 4—Presentation Slides

Scenario #1 

D. You retain the client and want to talk to him on the telephone about case-sensitive confidential information.



Do you have to pay for placing phone calls to him over a relay line?

Scenario #2 

You are an attorney with a very large law firm who is signed up as part of the Oregon State Bar’s Lawyer Referral Service (the OSB refers clients to you, and you provide an initial consultation for no more than $35). You agree to provide an initial consultation for a hearing impaired prospective client who will require the services of a sign language interpreter. You learn that a sign language interpreter will charge you $50 for the one hour consultation.

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Chapter 4—Presentation Slides

Scenario #2 

Do you have to pay for the sign language interpreter, even though you will end up losing money on this transaction?

Scenario #2 

A. You are a solo attorney that has just received the same request.



Does your status as a small law firm impact your responsibilities? What if you are a brand new attorney who has just hung out your own shingle?

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Chapter 4—Presentation Slides

Scenario #2 

B. You provide 100 hours of pro bono representation out of the 2000 hours you bill each year. The work you will do for the prospective client with a hearing impairment is part of your pro bono work.



Do you have to pay for the sign language interpreter, even though you will not collect any money from your client at all?

Scenario #3 

After your initial consultation with the hearing impaired individual, you accept the case and begin representing him.

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Chapter 4—Presentation Slides

Do you have to hire a sign language interpreter for the following events? 

The client comes to your office to discuss detailed strategy regarding his matter.



The client comes to your office to sign documents.



The client is going to be deposed by opposing counsel.



The client will be attending an arbitration/mediation with you.

Do you have to hire a sign language interpreter for the following events? 

The client wants to watch you appear in court at a motion hearing for his case, where he is not required to testify at all.



The client will be testifying in court.



The client will participate in informal settlement negotiations at your office.

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Chapter 4—Presentation Slides

Scenario #4 

You represent a client in a lawsuit. One of the main fact witnesses in the case has a hearing impairment and requires a sign language interpreter to communicate with you.

Do you have to hire a sign language interpreter for the following events, or can you pass the cost along to your client? 

You interview the witness about the case.



You want to take the witnesses’ deposition to secure her testimony.



You call the witness to testify at a hearing.

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Chapter 4—Presentation Slides

Scenario #5 

A hearing impaired client retains you to draft a contract for her. You retain the client and do the work for her, but as you are about to provide her with a draft of the contract, she informs you that she because she is deaf, she needs to have the contract interpreted into ASL.



Do you have to comply with this demand?

Scenario #5 

The client requests that you have an interpreter "read" the document to her for her consideration. However, the matter is complex, and you would like her to review it carefully before approving it. You want to provide her a copy of the contract. What if she does not want to just read the copy without an interpreter, but you think it would be in her best interests to have one?

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Chapter 4—Presentation Slides

Scenario #5 

A. The hearing impaired client will be coming to your office to sign the contract. She has a hearing ear dog as a service animal. The building where your law office is located has a strict “no dogs allowed” policy, and you have seen the building security ask other dog owners to remove their dogs from the building.



Can you allow the client to your office with the service animal?

Scenario #5 

What if you do not mind the service animal in your office, but building management informs you that you cannot allow the animal in the building again. Can you be liable for the building’s actions?



Can you avoid these problems and agree to meet your client at a coffee shop across the street? What if you suggest this, and the client wants to go to your office instead?

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Chapter 4—Presentation Slides

Working with the Deaf Community

Section 2

Working with the Deaf Community  

Myths and Realities Communication Techniques

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Chapter 4—Presentation Slides

Myths and Realities 

Myth – All Deaf people can read lips



Reality – Some Deaf people are skilled lip-readers, others are not. Some people are easier to lip-read than others. Only 30% of speech sounds are made on the lips and many of these look identical.

Myths and Realities (continued) 

Myth – All Deaf people use sign language



Reality – Many Deaf people use American Sign Language (ASL). Other Deaf people use English-like signed systems. Some Deaf people do not sign and prefer oral communication (i.e. lipreading).

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Chapter 4—Presentation Slides

Myths and Realities (continued) 

Myth – Hearing aids restore hearing



Reality – Hearing aids amplify sound but do not correct hearing. They have no effect on a person’s ability to process sound. A hearing aid may enable a person to hear someone’s voice but not necessarily understand distinct words.

Myths and Realities (continued) 

Myth – All Deaf people can understand all interpreters – All interpreters can understand all Deaf people



Reality – Each person has his/her own communication style. Sometimes these styles are not compatible.

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Chapter 4—Presentation Slides

Myths and Realities (continued) 

Myth – Using a sign language interpreter will solve all communication issues.



Reality – Just because an interpreter is used, effective communication is not necessarily happening.

Myths and Realities (continued) 

Myth – If an interpreter is provided, the Deaf person will understand the interaction



Reality – No one can guarantee that another person will understand the interaction. Each person approaches an interaction with his/her own knowledge base and it is impossible to know a person’s knowledge about a situation or topic.

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Chapter 4—Presentation Slides

Myths and Realities (continued) 

Myth – A verbatim interpretation is the only accurate interpretation



Reality – Most language use is figurative in nature. Translating figurative communication literally will render the message incomprehensible and incorrect. – Many words have multiple meanings, ex. RIGHT

Words with multiple meanings        

Abuse Charge Citation Consideration Crack Damages Dependency Draft

Lawyers and the Deaf Community

     

Fence Issue Right Standing Swear Trust

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Chapter 4—Presentation Slides

Examples of Class or Group Nouns     

ALCOHOL FURNITURE JEWELRY SPORTS WEAPON

Communication Techniques     

Pen and paper Gestures Sign language Text Message E-mail

Lawyers and the Deaf Community

    

Interpreter Video Relay Service Video Remote Interpreter TTY – Teletypewriter Typewell or CART

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* Definitions 

Video Relay Service (VRS) –



Video Remote Interpreting (VRI) –



A fee-based interpreting service conveyed via videoconferencing where at least one person is at a separate location. VRI can be provided as an on-demand service and/or by appointment

CART - Communication Access Realtime Translation –



A free telephone relay service using video technology to allow deaf and hard of hearing persons to make and receive phone calls using American Sign Language (ASL).

A system provided via a stenotype machine that converts shorthand into realtime captions

Typewell –

A system for transcribing speech to text using a notebook computer with the TypeWell abbreviation software. The transcript is read from a second computer as it is typed in real-time.

Terminology      

Interpreting Translation Sight Translation Simultaneous Interpreting Consecutive Interpreting Qualified vs. Certified

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Chapter 4—Presentation Slides

Terminology (continued)  

Team Interpreter Deaf Interpreter

Terminology (continued)     

Attorney/Client Interpreter Investigative Interpreter Proceedings Interpreters Table Interpreter Monitor Interpreter

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Chapter 4—Presentation Slides

Issues with Interpreting    

Process (lag) time Texts that are read aloud Frozen texts Sight translation

Working with Interpreters

Section 3

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Chapter 4—Presentation Slides

Court Interpreter Services   

Part of the State Court Administrator's Office Provides interpreting services for all languages in Oregon’s state court system Staff –

5 Staff Interpreters  

– – –

4 Spanish 1 ASL

10 Schedulers 2 Certification and Training staff 7 admin staff

Court Interpreter Services Mission Statement: Court Interpreter Services provides high-quality mandated linguistic access to the Oregon State Courts through trained ethical interpreters, education of the court community, and responsible resource management.

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Chapter 4—Presentation Slides

Court Interpreter Services

Kelly Mills CIS Program Manager [email protected]

Court Interpreter Services  

More than 100 languages each year 176 different languages since 1996 Tlapaneco (spoken in the Mexican states of Guerrero and Morelos)



27,013 requests in 2011 –



down 1.5% from 2010

Since 1999 – –

all languages up 300% non-Spanish up 600%

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Chapter 4—Presentation Slides

Court Interpreter Services # of Requests by Language in 2011 91 (