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NAD Wins Victory in Court for Relay Users
By advocacy | September 13, 2008
The National Association of the Deaf (NAD) and a private law firm represented a deaf man in an employment discrimination case on appeal in the U.S. Court of Appeals for the 7th Circuit. In an opinion issued on September 12, 2008, the Court of Appeals reversed the district court’s decision to dismiss the case and returned the case to the district court for further proceedings.
This decision by the Court of Appeals is a victory for everyone who uses relay services. The case involved a new legal issue: whether statements transmitted by a communications assistant in a call made through a telecommunications relay service (TRS) are admissible. NAD attorney, Michael Stein, argued the relay service issue before the Court of Appeals.
In dismissing the case, the district court had relied on its conclusion that key evidence – a telephone conversation conducted through relay service between the employer and the deaf job applicant – was inadmissible hearsay. The Court of Appeals said that was wrong. The Court of Appeals recognized that if the employer and job applicant “had spoken to each other over an ordinary phone line as two hearing persons would have done,” the job applicant could testify about the employer’s statements with no hearsay problems.
The Court of Appeals was guided by cases involving foreign language interpreters that presume that translated statements “are otherwise admissible unless there is a showing of unreliability or a motive to mislead.” The Court of Appeals also looked at four factors used “to check for likely bias or unreliability on a case-by-case basis”:
[1] which party supplied the interpreter,
[2] whether the interpreter had any motive to mislead or distort,
[3] the interpreter’s qualifications and language skill, and
[4] whether actions taken subsequent to the conversation were consistent with the
statements as translated.
In this case, the Court of Appeals held that the relay service communications assistant served as “no more than a language conduit” between the deaf job applicant and the employer. The Court of Appeals held that “a certified communications assistant, transmitting statements through a telecommunications relay service, does not add a layer of hearsay, unless the opponent of that evidence can produce specific evidence of unreliability or a motive to mislead.” (Emphasis added.)
The Court of Appeals also held that there were “strong policy reasons for admitting testimony about the contents of TRS conversations.” Citing the Americans with Disabilities Act (ADA), the Court of Appeals noted:
“Congress mandated the creation of a telecommunications system for persons with hearing and speech disabilities that is ‘functionally equivalent’ to those used by nondisabled persons. 47 U.S.C. § 225. Denying the admissibility of statements made during a TRS conversation would strip those with hearing disabilities of a vital source of evidence available to hearing persons. Deaf persons could not conduct important day-to-day affairs over the phone, such as calling the bank or the doctor, with the same ability to rely on the statements made to them by the other party that is enjoyed by hearing persons. Such a result is at odds with Congress’s intent to make disabled persons full and equal participants in society. See 42 U.S.C. § 12101(a)(8).” (Emphasis added.)
The Court of Appeals held that there was “no sound basis in law, fact, or policy on which to distinguish the role of communications assistants from that of reliable, unbiased foreign language interpreters.” (Emphasis added.)
The NAD thanks Karen Peltz Strauss for her assistance on the brief submitted to the Court of Appeals. Ms. Strauss is an attorney for Communication Service for the Deaf and author of the book, A New Civil Right: Telecommunications Equality for Deaf and Hard of Hearing Americans.
For more background information about this case, see NAD Advocacy Blog, “NAD Says Courts Should Treat Relay Calls Same as Voice Calls” (March 25, 2008).
Click here to read the Court of Appeals opinion.
[Note – The 06/04/2008 Oral Argument is an audio file; no transcript provided.]
Topics: General |
September 13th, 2008 at 11:24 pm
This is a significant victory. I am glad the dismissal from the district court was rejected by the Court of Appeals.
September 14th, 2008 at 10:37 am
This is great news! Now if only all courts had that kind of common sense.
September 14th, 2008 at 1:34 pm
About time it is getting better and adjusting for our need to use Relay Service as who is user.
Change much better and the future will be huge diffrence! System getting better for anyone as easier for hard of hearing or impaired. Kind of typical relay service.
September 15th, 2008 at 6:15 pm
It is great news to be victory!!! and time for change to get better any relay services in the future.
November 3rd, 2008 at 4:48 pm
Great News & Post!