SayWhatClub Online Voices April 2011

Interview with John Waldo of Hearing Loss Law & Wash-CAP

by Michele Linder
Copyright 2011

John Waldo is an attorney whose practice focuses on legal issues involving hearing loss. He is the founder, advocacy director and counsel to the Washington State Communication Access Project (Wash-CAP), a non-profit membership corporation whose objective is to reduce or eliminate the barriers that prevent those of us with hearing loss from participating fully in public life. He is also counsel to a sister organization, the Oregon Communication Access Project. John and his wife Eve recently moved to Portland, Oregon.

Have you ever had the experience of not knowing anything about a person or thing, but once that person or thing blips onto your radar you seem to notice them or it everywhere? That’s the experience I’ve had with John Waldo.

The first time I saw the name "John Waldo" was a few years ago while researching hearing loss blogs online. I read a few of John’s articles on the "Hearing Loss Law & Wash-CAP" website, and then more and more I began to notice others were posting his articles onto their own blogs. A few SayWhatClub subscribers were even sharing his articles on their list.

Recently, I joined the Collaborative for Communication Access via Captioning (CCAC), a place where individuals can share resources with others who are working on the same types of “personal” communication access projects in their own communities and lives, but also can add their single voice to the chorus of group advocacy efforts that are much broader. I hadn’t been at CCAC long before my radar picked up on John Waldo’s presence among the many informative and clear voices there, shedding light on how a single person fits into the big picture of communication access advocacy. How lone actions, no matter how small, can help bring about awareness and change, and how acceptance of inaccessibility and inaction can actually be a hindrance.

John has graciously given me permission to quote from a few of his comments that were made on CCAC, and to ask him some further questions about his career and advocacy efforts, but first let’s get to know John Waldo a bit better.

SWC: Your “significant hearing loss” is mentioned in your bio on the “Hearing Loss Law & Wash-CAP” website. Could you share your own personal hearing loss story with us?

John: I have a bilateral sensorineural hearing loss. I've worn hearing aids for years, and just last July received a cochlear implant.

SWC: I’m sure others are just as curious as I am about your cochlear implant--if you consider your implant a success and how has it has changed or improved the way you hear, both personally and professionally--would you care to share your experience with us?

John: I think my CI has been a hugely positive experience. I can hear better on the telephone now than I ever could before, and my overall word comprehension is much better. The biggest challenge I face now is learning how to be a hearing person. I'm so used to "tuning out" in those situations where I've always been unable to comprehend what is being said that I have to teach myself that I can hear.

SWC: Do you know and use sign language?

John: I don't use ASL at all. Given the amount of time I spend with people who do communicate primarily with ASL, I should find the time to learn at least some, but so far, that hasn't happened.

SWC: How did your hearing loss affect you during your formative years, early education, college, and while attending law school?

John: I was pretty much unaware of my hearing loss when I was very young, and because I have good language skills, I must have had fairly normal hearing at an early age. However, I do remember being the only kid who didn't realize that Donald Duck actually was trying to talk, so obviously, I had some high-tone loss pretty early.

I don't think there was any real impact (early education). I went to a very small high school with small classrooms. I didn't do it to accommodate a hearing loss, but it's probably what I would have done had my parents and I been aware of the loss.

I think there was considerable impact in college. I was a really marginal student. I didn't find the classes very interesting, and essentially did as little as possible to pass. I did take a hearing test my junior year in college, and it showed a pretty significant high-tone loss, but at that point (1965), hearing aids didn't do a very good job of accommodating such a loss, so my ENT recommended I not get an aid. He may have been right, but in retrospect, I wish I had been counseled about the fact that this was more than just a nominal loss, and that I was going to have to make some behavioral adjustments.

By the time I went to law school -- eleven years after college -- I was very conscious of my loss. I coped as best I could -- sitting front and center in every classroom, being sure I could lip-read the professor and the other students. Academically, I did very well in law school. Part of that was that I was much more mature and motivated than I had been in college, but I think part of it was being conscious of my hearing loss and being proactive about accommodation.

SWC: At the time you went to college and law school, what accommodations were in place for those with hearing loss?

John: I went to a private college (Pomona College in California), and this was way, way before ADA or the Rehabilitation Act. So the whole notion of accommodations (other than behavior on my part) didn't exist.

SWC: Did your hearing loss have anything to do with your choice to study law?

John: Not really. I did wonder how my hearing loss would limit my ability to practice, but basically ignored that and went into trial law. I thought I was doing great, but about five years after I started practicing, we had a very good result in a monster case -- trial went 12 weeks -- and the other side appealed. In writing our appeal brief, I spent a lot of time going over the trial transcripts. It was embarrassing to see how often I asked the witness to repeat him- or herself. At that point, I stopped doing jury trials, and focused on other areas. Motions before individual judges and appeals courts were interesting. I always acknowledged my hearing loss in advance, and I found a lot of empathy from the courts, many judges being of an age where their hearing wasn't the best either.

SWC: I really relate to your being unaware of how much you were asking for repeats, and even though you stepped away from jury trials and always acknowledged your hearing loss in advance, there must have been times and situations when you had more difficulty than usual. How did you handle those situations? Did you request CART or any other accommodation when you anticipated situations that would be more of a challenge? Have you ever encountered problems when requesting an accommodation?

John: My withdrawal from trial work occurred before ADA was passed, so I didn't have accommodation options. Up until about 2000, I was always able to do well enough when I could face the speaker that I didn't have a problem with things like arguments to one or a panel of judges. In 2000, I did have a sudden hearing loss in my left ear that knocked out the majority of my usable hearing in that ear, and in the aftermath, I did ask for CART on occasion. I never have had any trouble getting it. The most dramatic use of CART was for the Ninth Circuit Court of Appeals argument in the Harkins movie-captioning case. I had filed a friend-of-the-court brief there, and asked for CART. Because of the number of deaf and hard-of-hearing people in the audience, the captions were put on a screen visible to everyone. The chief justice actually commented on that in casting doubt on the movie theaters' claim that captioning was too expensive

SWC: In your career, have you always applied your efforts to focus on advocating for those with hearing loss? If not, when did your work in this area begin, and why?

John: No, this is relatively new. I'd been practicing for almost 30 years, and had gotten to the point where I wanted my professional epitaph to be more meaningful than, "he made a decent living." I was thinking about possible public-service work when it occurred to me that I basically had a built-in area of interest and, because of my own personal experience, some level of insight. So I conceived of the notion of using Washington state's exceptionally favorable anti-discrimination law as a tool to make the state a model of accessibility for people with hearing loss. To implement that plan, I founded the Washington State Communication Access Project (Wash-CAP). It's a non-profit membership corporation run by a nine-member Board of Directors (of which I am not one -- they are my bosses), all but one of whom have significant hearing losses. We started receiving inquiries from some people in Oregon, and formed a sister organization there.

SWC: Civil rights, employment discrimination, and public and private insurance are your areas of practice... what are your biggest successes and frustrations in each of these areas?

John: Civil Rights - I spend the vast majority of my time working in this area, trying to improve access to public places. We've gotten the three largest live theaters in Washington state and one live theater in Oregon to begin offering captioned performances of their plays, and have worked with the Oregon Shakespeare Festival to make that theater almost completely accessible through captioning. We've also gotten a number of the professional and college sports teams to caption their events.

The most important effort to date by far has been our movie-captioning work. We filed a friend-of-the-court brief in the Arizona movie-captioning case that was on appeal at the Ninth Circuit Court of Appeals, and at the same time filed a lawsuit against the major corporate theater-owners in Seattle. We received very favorable decisions in both cases. In the aftermath of those efforts, two of the three largest movie theater owners in the country, Regal and Cinemark, have essentially agreed to equip all of their first-run theaters in the country to show closed-captioned movies.

My frustration at the moment is that as a result of some very bad decisions by the United States Supreme Court, the Americans with Disabilities Act is not a very effective legal tool because it is relatively easy for the defendants to avoid their legal obligation to pay the claimants' attorneys' fees even when they provide access as a result of our efforts. Because of that, I have to do our precedent-setting work in only limited geographic areas, principally Washington and California, where we have great state laws. Sometimes, as with the movie theaters, we can achieve national results starting from a limited geographic base, but this is something I'd really like to see Congress address.

Employment Discrimination - Employment cases are tough, because it's seldom very clear that an employment action is taken just because of hearing loss. We've achieved some good outcomes in this area, though, particularly for things like providing sign-language interpreters.

Public and Private Insurance - I haven't spent a lot of time working in this area. Often-times, the way private disability-insurance policies are worded, it does not appear that those policies cover hearing loss, but they almost always do. I've worked with some clients on their applications.

SWC: Many who read your articles learn about the battles fought and won in Washington state. Washington, along with other progressive states, has become somewhat of a barometer of positive change in communication access for those with hearing loss. Those of us living in states that are less progressive can sometimes feel a bit removed and disconnected, wondering how a battle won in a progressive state will affect us in our state?

A discussion on CCAC brought to my attention a recent hearing on a bill (Senate Bill 596) in Maryland--a brief synopsis of the bill as found on the Maryland General Assembly website reads: “Making specified provisions of law related to discrimination by a place of public accommodation applicable to the Internet Web site of specified business entity; authorizing specified persons to elect a civil action when a complaint filed with the Commission of Human Relations alleges discrimination by a place of public accommodation, etc.”--that you agreed was a “big deal indeed”.

You went on to say, “When Congress made ADA subordinate to more protective laws, it was tacitly encouraging states and even municipalities to experiment with bolder laws, which the State of Maryland seems to be doing.”

“Given the present gridlock in the other Washington, I think our gains in the next few years are going to come from legislation in progressive states. While it is technically possible to restrict website access to a given state, (which is legally necessary, because a state court can't regulate interstate commerce), I gather it is almost more trouble than it is worth. So it won't take many states acting this way to turn state regulations into essentially a national standard.”


Would you speak further on how state regulations can morph into a national standard?

John: Let me give you an example. In some of the early cases seeking captioned movies, the courts declared, wrongly, in my view, that the ADA only requires businesses to provide physical access, and that if deaf or hard-of-hearing people could go to the movies for the same price and on the same terms as anyone else, the theaters had satisfied their legal obligations. Our Washington State regulations, though, state that businesses like theaters must do what they reasonably can to become "accessible," and those same regulations define "accessible" as "usable or understandable." So the theaters couldn't make the argument that physical access was good enough -- they tried, but it didn't wash, and the judge ordered them to do what they reasonably could to make their soundtracks understandable. In practice, that means providing captions to the extent the theaters can afford to do so.

Why does this help in other states? The ADA requires businesses to provide "auxiliary aids and services" like captioning unless the businesses can demonstrate that doing so would impose an "undue burden." And if the theaters can afford to provide captioning in Washington, they have a really hard time arguing that they can't also provide captioning in other geographic areas.

In a somewhat related manner, California basically uses the ADA as a standard, but provides minimum damages of $4,000 per day per person for violations. That damage provision bends the cost curve really rapidly, and makes it much cheaper for businesses to provide access than it is to fight. And California is such a huge market that it often makes sense for businesses to do on a nationwide basis what they are doing in California.

SWC: The Internet seems to be the next big frontier with regard to the need for communication access. Can you share your insight on this subject?

John: This is absolutely huge -- the next frontier, as you have put it. I personally don't think the ADA is going to help us much here. The federal Department of Justice is trying to regulate websites, arguing that had the Internet been in existence when ADA was passed, Congress would have applied the ADA to it. While I'd be delighted to be wrong about this, I don't think that argument will hold up in court, because a court is likely to say that if Congress wants to subject the internet to the ADA, it can do so explicitly. Worse yet, some Internet captioning requirements were originally part of the 21st Century Communications and Video Accessibility Act, but were taken out during the deliberations, which provides at least some support for an argument that Congress affirmatively does not want the Internet to be subject to ADA requirements.

I think the states are going to have to take the lead on this, and again, I look to California for possible leadership. It would be possible to make websites accessible in California only, but it wouldn't be worth the bother -- if you are going to caption a video for the California market, why not make the captions available everywhere? The problem, of course, is that so much of the technology industry that might resist access requirements is also located in California. But I think you could get a fair hearing there.

I also hold out some hope for Washington state. As I read our state Law Against Discrimination, it may be possible to construe websites as businesses that are subject to the non-discrimination provisions. Our Legislature reacted sharply when the state supreme court ruled that the state law was really the same thing as ADA, overruling a specific decision and reminding the courts that our state law provides separate and independent rights for people with disabilities. So we might be able to get something done with respect to websites.

SWC: As part of another discussion on CCAC, you outlined the strengths and limitations of both individual and group advocacy, and in highlighting their different applications made very clear how both forms of advocacy have their own place. I’d like to share those comments here, as I’m sure others might gain the clarity that I did:

“The upside of individual advocacy -- which I would fairly loosely define as trying to resolve a specific problem with a specific business -- is that the advocate can tailor his or her request to exactly what he or she wants, whether that be amplification devices, loops, CART, ASL or whatever. But there are at least three major downsides. The first is that a solution tailored to fit one individual may not be adequate for others. The second is that those individual resolutions are often done only after the requesting party agrees to confidentiality, which seems self-defeating, but nevertheless happens. The third problem is simply one of logistics -- with 38 million or so of us, millions of businesses and so many gradations of needs and preferences, it would simply be impossible to achieve really good overall access on a sustained basis if we limited ourselves to dealing on an individualized basis with specific problems.”

“Sometimes, that is the only really available approach. Hospitals, for example, are clearly obligated to provide accommodations appropriate for each individual served -- patient and family member alike. But too often, they just don't. That's not exactly a situation that group advocacy can effectively address. We just have to keep pounding away, one person at a time.”

“Group advocacy -- which I would fairly loosely define as trying to affect the behavior of a class of businesses on behalf of a class of individuals -- does overcome some of those problems. But it introduces problems of its own, and specifically, it leads to "solutions" that may provide a significant benefit for some number of people, but likely won't suit the preferences and perhaps not the needs of every member of the group intended to be benefitted. For my money, captioning is just such a solution. Some folks find that the Assistive Listening Systems are enough, some find that a loop combined with the t-coil in their HA or CI is enough, and some, of course, want ASL. As we all know, those are all held out from time to time as all the accommodations necessary for all of us, from mildly hard of hearing to totally deaf. And yet we know none of those solutions provide access for everyone. Captioning isn't perfect either, particularly for ASL users, but I suspect it provides more accommodation for more people than any other single method.”

“The obvious question, of course, is why there should be only a single accommodation. Why not do them all? Well, my response to that is, one thing at a time. I know a lot of live theaters have believed in good faith that by providing assistive listening systems and ASL-interpreted performances, they have met the needs of everyone with a hearing loss. Some movie theaters have in the past taken the position that when they provide the requisite number of assistive systems, they've done everything required -- the push for captioning is changing that. So through group advocacy, we've established that the movie theaters have to provide captioning in addition to the assistive listening systems. Now, we can hope that the mode of caption presentation can be refined, perhaps to offer multiple options.”

“We have all heard the adage that "the perfect is the enemy of the good." I don't know of any context in which that is more true than group advocacy, and particularly advocacy for a group like people with hearing loss, where two of us may have identical audiograms but very different needs and preferences.”


Specifically, what can each of us do as individuals to advocate for communication access?

John: When you need accommodations for effective communication, make sure you ask, politely but firmly, and explain why you need what you need. If you don't get what you need, let "the community" know about it -- the situation might prove to be the perfect "test case" that can establish a wonderful precedent that will help us all.

SWC: What can each of us do, as part of group advocacy for communication access, to bring about needed change?

John: Continue to envision what an accessible world would be like, and what needs to happen to get us from here to there. Then if and when we get accommodations, go and enjoy them. Our biggest problem with respect to things like live theater and movies is that we are so used to accepting inaccessibility and staying home that when we have the opportunity to go and enjoy a play or a movie that is accessible, we don't do it. Access for the millions of us with hearing loss should be a win-win situation, and we need to do our part.

Here is basically the model I use. Forty years ago, nobody thought about wheelchair access -- it didn't happen. Today, nobody thinks about wheelchair access either -- they just provide it automatically. This didn't just happen -- people with mobility challenges advocated fiercely and persistently, and weren't shy about going to court to get what the law promised them.

We are at the very early stage, where we are getting people to start thinking and talking about accessibility for people with hearing loss. I'm hoping that it won't take 40 years for us to reach the point where nobody even questions it any more, and aural access just happens. But we won't get there unless we want it, and are willing to stand up and say so.

To learn more visit John Waldo’s blog at www.wash-cap.com or www.hearinglosslaw


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