Fake Sign Language Interpreter At Nelson Mandela Memorial Demonstrates Why The ADA Sign Langugage Interpreting Requirements Are Necessary

Imagine you are a Deaf person living in South Africa and the world is mourning with your country over the loss of Nelson Mandela. You turn on your television to join millions around the world in paying respect to South Africa's first President. You become excited when you discover that there is a South African Sign Language Interpreter for you to watch. But there's one problem.

This South African Sign Language interpreter is making up signs. Now your heart sinks becuase you can't understand what is being said at the Nelson Mandela Memorial Ceremony because Sign Language interpreters are used to translate what is being spoken into sign language.  

Deaf people around the world are outraged at the fact that a man who held himself as a legitimate South African Sign Language Interpreter turned out to be a charlatan. He's a fake interpreter. For proof that this interpreter is making signs up, watch this YouTube clip to see a side by side comparison between a real interpreter and the imposter. Sadly, this kind of fake interpreting is part of South Africa's complex history with its Deaf citizens.

Paul Breckell, the Chief executive of the U.K.-based charity Action on Hearing Loss, explained how this fake interpreter harmed the South African Deaf community: 

"We are shocked by the quality of sign language interpretation at Nelson Mandela’s memorial -- if it could be called interpretation at all."

He added that "the limited number of signs, the amount of repetition, lack of facial expressions and huge gaps in translation meant that deaf or hard of hearing people across the world were completely excluded from one of the biggest events in recent history."

As a Deaf attorney who represents Deaf clients (and hearing clients too) on a wide variety of legal matters and is an advocate for the rights of Deaf and Hard of Hearing people in America, I can tell you that it is not always easy for a person with a hearing loss to get a qualified Sign Language Interpreter in the United States. 

That is why the Americans With Disabilities Act (ADA) is so important in America for Deaf and Hard of Hearing individuals. The ADA has some provisions that helps to insure that the American Sign Language (ASL) interpreter is a legitimate interpreter who will actually interpret what is being said. The fake interpreter did not help Deaf South Africans from understanding the speakers at the Nelson Mandela memorial. Any Deaf or Hard of Hearing individual who relied on this fraudulent interpreter missed out on so much information and knowledge that was presented at the memorial. All the heartwarming stories and speeches were completely missed thanks to this imposter. 

Now imagine if you were a Deaf or Hard of Hearing individual in America. What if this interpreter was interpreting for you in court? Was with you in your visit with your doctor? Was with you as you were being questioned by the police either as a witness or a suspect of a crime? Was interpreting for you at your wedding? 

You would miss out on so much. That is why interpreters are so important to Deaf people. That is why Deaf people demand that an interpreter be competent in translating for them. However, having a sign language interpreter isn't just for the Deaf person. Its also for you. The interpreter is also there for you to help you understand what the Deaf person is telling you. An interpreter is there to help facilitate effective communication between both parties.

How does having an interpreter help hearing people? It allows for clear communication to occur between both parties which reduces frustration, confusion and misunderstanding that might occur. It reduces any civil or criminal liability that may arise if there is a dispute over what was communicated. It also helps the parties identify where the miscommunication or misunderstanding occurred. It also helps preserve confidentiality where important or private information is being shared, especially in medical or legal settings. Using a certified interpreter is the only way to avoid these and other unforeseen problems. All certified interpreters are bound by a Code of Professional Conduct. 

It is also good for business. There will be better communication between both parties in business transactions. A Deaf patient will be able to follow a doctor's medical advice which reduces medical complications and injuries. A Deaf person can receive the legal advice that an attorney provides which will keep his Deaf client in compliance with the law.

How The ADA Ensures that Sign Language Interpreters Are Competent

There are five sections to the ADA.  Title I covers employment. Title II applies to public entities such as state and local governments. Title III applies to places of public accommodations such as football stadiums, businesses and restaurants. Title IV covers Telecommunications. And Title V deals with miscellaneous items.  

One of the major goals of the ADA is to ensure that “effective communication” takes place between an employer and employee under Title I;  a citizen and a government official such as a police officer, fireman, a doctor working at a state run hospital, a city official, Judge, Mayor or federal employee working for the United States government under Title II; or between a individual and a business owner or employee such as a lawyer, a doctor working at a private hospital or clinic or having a face to face meeting with a business owner to discuss a complaint about a product or service at the business under Title III.

Both Title II and Title III of the ADA provide definitions of what a competent ASL interpreter is. The ADA calls a competent and legitimate ASL interpreter a "qualified interpreter." Under the ADA, a 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.” See 28 C.F.R.§ 35.104 for Title II and 36.104 for Title III.

It is important to point out that the ADA doesn't require the ASL interpreter to be licensed and certified. It just requires them to be "qualified." However, some states have passed laws requiring that qualified interpreter must also be licensed and certified. For example, Utah passed a HB371 which amended Title 53A, Chapter 26a to now require interpreters to obtain obtain state certification as American Sign Language-trained interpreters and that anyone who interprets in the state of Utah without being certified is charged with a Class B Misdemeanor.  As a result of the passage of HB371, Utah Administrative Code Rule R746-510-2 , defines a "Certified Interpreter" to mean a "person who is certified as meeting the certification requirements" of  the "Interpreter Services for the Hearing Impaired Act."  I strongly encourage states to follow Utah in making it a state requirement that ASL interpreters should be required to be certified by a state licensing agency. 

The ADA also doesn't recognize (yet) Certified Deaf Interpreters (CDI). A CDI is "an individual who is deaf or hard of hearing and has been certified by the Registry of Interpreters for the Deaf as an interpreter.” (Professional Standards Committee. CDIs have “excellent general communication skills and general interpreter training, [and that] the CDI may also have specialized training and/or experience in use of gesture, mime, props, drawings and other tools to enhance communication. The CDI has an extensive knowledge and understanding of deafness, the deaf community, and/or deaf culture which combined with excellent communication skills, can bring added expertise into booth routine and uniquely difficult interpreting situations.” (They are also attuned to the finer nuances of ASL and non-verbal communication that a hearing interpreter might not have. However, a properly trained and certified CDI would easily met the ADA requirements for a qualified interpreter.

The best way to find a qualified (and certified)  ASL interpreter or CDI is to contact an interpreting agency in your state who can assist you in finding the right interpreter for you and your client. There is also the  Registry of Interpreters for the Deaf (RID which is can assist you in finding an good and competent ASL interpreter or CDI.

The ADA as well as many state anti-descrimination laws strictly forbid people from using friends and family members as an interpreter unless they can prove that it was either an emergency or by judicial decree. Attempting to use a client’s family member, friend or neighbor who claims to know ASL leads to a minefield of problems for you and your organization. They may be too emotionally or financially involved to provide a fair and accurate interpretation of what is being said between both parties. Furthermore, an unqualified interpreter will not have to abide by ethical constraints required of a qualified interpreter. Additionally, using an unqualified interpreter may destroy the privilege of confidential communication between an attorney and the client, doctor and the patient, clergy and the parishioner and therapist and client.  Finally, not using a qualified interpreter may expose you or the unqualified interpreter to liability.

Also Title II and Title III strictly forbids people, public entities and public accommodations from charging the client the cost of hiring an interpreter. Charging a Deaf client will most certainly put you in legal trouble and you might face the possibility of a lawsuit. The cost of providing an interpreter is part of the cost of doing business or providing a government service. Almost always, the cost of an interpret is less than profit you will make from that client in providing a product or service to the Deaf or Hard of Hearing individual. 

HB371 amends previous rules to penalize individuals who don't obtain state certification as American Sign Language-trained interpreters. Many have performed the duty without the correct certification, essentially bilking deaf individuals, said Dale Boam, a Utah Valley University professor of deaf studies, attorney and experienced ASL interpreter.
Read more at http://www.ksl.com/?nid=148&sid=24252184#QqoMcASRehCzClzO.99

HB371 amends previous rules to penalize individuals who don't obtain state certification as American Sign Language-trained interpreters. Many have performed the duty without the correct certification, essentially bilking deaf individuals, said Dale Boam, a Utah Valley University professor of deaf studies, attorney and experienced ASL interpreter.
Read more at http://www.ksl.com/?nid=148&sid=24252184#QqoMcASRehCzClzO.99

The fake Sign Language Interpreter at the Nelson Mandela memorial demonstrates why having a qualified and certified interpreter is necessary and why it a major part of the Americans with Disabilities Act. A person claims know sign language isn't enough. This guy was able to bluff his way into interpreting for many South African events until he was able to land the biggest interpreting job in history. As a result of his lies, he hurt the world wide Deaf Community who wanted to join in and celebrate Nelson Mandela's life.  

Don't just hire any interpreter. Get the right one. A qualified and certified one.

Giving A Presentation On Living Wills In St. George

I will be giving a presentation regarding wills in at the Deaf Center in St. George, Utah on October 24, 2013. See the flyer below for more information. 

Legal Requirements of Representing Deaf Clients

With approximately 220,000 deaf people residing in the State of Utah, it is likely that at some point a deaf person may seek your legal services.  

Being the only practicing deaf attorney in Utah that I am aware of, I would like to share some suggestions on how to best represent deaf clients and how to meet your ethical and legal obligations when representing them.

It begins by understanding that the Americans With Disability Act (“ADA”) governs you and your firm’s representation of anyone with a disability, including deaf and hard of hearing individuals. A person becomes a protected class under the law when there is “a physical or mental impairment that substantially limits a major life activity” such as walking, seeing, hearing, breathing, learning, reading, concentrating, thinking, communicating, and working. 28 C.F.R. § 36.104.

There are five sections to the ADA.  Title I covers employment. Title II applies to public entities such as state and local governments. Title III applies to places of public accommodations such as football stadiums, businesses and restaurants. Title IV covers Telecommunications. And Title V deals with miscellaneous items.  

Attorneys working in a small law firm frequently assume that there must be minimum number of employees in the firm in order to be subject to the ADA.  The law, however, is much more inclusive.  Although Title I of the ADA contains language covering businesses of a certain size, Title III of the ADA does not limit the law’s coverage to an entity of any particular size. As a result, whether you are in private practice as a sole practitioner, or whether you are part of a large, high-profile law firm, both are considered as places of “public accommodation” and therefore both are forbidden from discriminating against people with disabilities, including clients who are deaf or hard of hearing. 42 U.S.C. § 12182. Even if your law firm is a non-profit organization, you are not exempt from the ADA.

The next step is to understanding the ADA is to know that one of the major goals of the ADA is to ensure that “effective communication” takes place between an attorney and any client with disabilities. Law firms of any size are deemed to be “Public Accommodations,” and as such, they are required to provide “auxiliary aids and services” to qualified individuals with a disability in order to satisfy the law’s requirement to provide effective communication. “Auxiliary aids and services” are modifications of existing services, benefits, equipment or devices so as to provide effective communication to individuals with disabilities.

Title III of the ADA requires lawyers to “make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless they can demonstrate that making the modifications would fundamentally alter the nature of the service or facility.” 28 C.F.R.§ 36.302.

Under the ADA, auxiliary aids and services may include “qualified interpreters, note-takers, computer-aided transcription services (“CART”), written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (“TDD’s”), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.” [See 28 C.F.R. § 36.303 (b)(1).] Attorneys sometimes operate under the misconception that the list provided above under Title III of the ADA means that the lawyer can selectively choose the aid or service the attorney will provide. That is not true.

Please understand that even though Title III of the ADA provides that “the ultimate decision as to what measures to take rests with the public accommodation” in order to obtain effective communication with their client they “should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication.” 28 C.F.R. § 36.301(c).

Consulting with the client about the specific auxiliary aid and services he needs is essential in meeting the ADA’s goal of achieving effective communication, and your goal of providing the best representation possible for your disabled client. Primarily because 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.” 28 C.F.R. § 36.303(c)(1)(ii).This requires that you learn from the client the type of aid or service that works for them.

Additionally, in order for effective communication to take place, “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.” Id. 

Often times, a deaf or hard of hearing client will request an American Sign Language (ASL) interpreter. Other deaf or hard of hearing individuals may request a Cued speech interpreter. These are the most common requests that you can expect to receive when representing a client with a hearing loss.  Having a qualified interpreter will not only help the client, but will be of invaluable benefit to you as well.

One thing you should know about deaf and hard of hearing individuals is that they do not all have the same communication needs. Some can communicate in English, while others use ASL, and yet others communicate through Cued Speech – all of which are different from each other. That is why you must learn from the client the type of interpreter they will need.  Don’t assume that deaf clients need an ASL interpreter.  They may in fact need a Cued speech interpreter, or no interpreter at all.  If the client doesn’t tell you what his communication needs are, take the initiative and have an open dialogue about the best method to communicate during the initial interview. Periodically check if the accommodations are working for the client.

Proper communication is absolutely essential to effectively represent deaf and hard of hearing clients. Refusing to hire a sign language interpreter may constitute discrimination under the ADA.  Discrimination occurs when there is “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 place of public accommodation “can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”  42 U.S.C. § 12182(b)(2)(A)(ii).

Other examples of potential acts of discrimination under the ADA include: instances where the attorney agrees to provide an interpreter but fails to schedule one, or where an attorney asks a deaf or hard of hearing client to bring a family member to interpret for them.

Under Title III of the ADA, you cannot simply use someone who claims to know how to interpret for a deaf or hard of hearing person, because having the ability to sign does not mean the individual has the ability to interpret. Attorneys are required to provide qualified interpreters to their Deaf clients and patients. A qualified interpreter means an “interpreter who, via a video remote interpreting (“VRI”) service through 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.” 28 C.F.R. § 36.104.

Attempting to use a client’s family member, friend or neighbor who claims to know ASL leads to a minefield of problems for you and your client. They may be too emotionally or financially involved to provide a fair and accurate interpretation of what your client has said to you. Furthermore, an unqualified interpreter will not have to abide by ethical constraints required of a qualified interpreter. Additionally, using an unqualified interpreter may destroy the privilege of confidential communication. Finally, not using a qualified interpreter may expose you or the unqualified interpreter to liability.

Using a qualified interpreter is the only way to avoid these and other unforeseen problems. Doing so will not disrupt attorney-client privilege.  Additionally certified interpreters are bound by a code of ethics that require the interpreter to keep the attorney client communication confidential, and that they be neutral in any matter that they are

The best way to find a qualified interpreter is to contact an interpreting agency who can assist you in finding the right interpreter for you and your client. It is important to mention that you will not always need to hire an interpreter for every interaction or communication with a deaf client. Hiring an American Sign Language interpreter applies for both potential clients as well as current clients. If you are unsure as to the need for an interpreter, ask yourself if the information you need to share with your client needs to be done in person, face to face, or whether it can be done via e-mail, fax, or letter. If you need to share information face to face, then you should hire an interpreter.

When you meet with your deaf or hard of hearing client and an interpreter is present, you should look at and speak directly to your deaf client, not the interpreter, even though the deaf client will be watching the interpreter. When your deaf client speaks to you, look at your deaf client even though your client is signing and listening to the interpreter.  Remember, the interpreter is only facilitating communication between you and your deaf client.  You are not communicating with the interpreter.

If a deaf person is nodding their head during a conversation, it could mean that they are acknowledging that they understand what is being said, or it could mean it is an affirmative agreement or a “yes” response.  Please make sure you clarify why they are nodding their head.

Sometimes attorneys find that when they make a simple statement, such as “I don’t believe the officer had probable cause to search your car,” the interpreter will take additional time in interpreting to elaborate the meaning of certain legal words or phrases to help the client understand what you have said. Often times, legal vocabulary cannot be easily interpreted into ASL. 

In some cases, especially in criminal matters, you may have to hire a Certified Deaf Interpreter (“CDI”.)  The Registry of Interpreters for the Deaf (“RID”) is a “national membership organization representing the professionals who facilitate communication between people who are deaf or hard of hearing and people who hear.” ("About RID: Overview." Registry of Interpreters for the Deaf, Inc. Ed., 2012. Web. 25 June 2012. <http://www.rid.org/aboutRID/overview/index.cfm>.)

According to the RID, a “Certified Deaf Interpreter (“CDI”) is an individual who is deaf or hard of hearing and has been certified by the Registry of Interpreters for the Deaf as an interpreter.” (Professional Standards Committee. “Use Of A Certified Deaf Interpreter.” Registry of  Interpreters for the Deaf . Registry of Interpreters for the Deaf, Inc, Aug. 1997. Web. 20 June 2012. <http://www.rid.org/UserFiles/File/pdfs/120.pdf>.)

RID explains that CDI’s get “excellent general communication skills and general interpreter training, [and that] the CDI may also have specialized training and/or experience in use of gesture, mime, props, drawings and other tools to enhance communication. The CDI has an extensive knowledge and understanding of deafness, the deaf community, and/or deaf culture which combined with excellent communication skills, can bring added expertise into booth routine and uniquely difficult interpreting situations.” (Id.)   They are also attuned to the finer nuances of ASL and non-verbal communication that a hearing interpreter might not have.

A common concern that attorneys have is the cost of hiring a sign language interpreter. The cost shouldn’t be a significant concern for a number of reasons.  First, you won’t need an interpreter all of the time when communicating with your client.  Second, interpreter rates are typically not excessive.  And lastly, it is part of the cost of doing business and providing valuable services to an often under-represented group. In any event, attorneys are forbidden under the ADA from charging the client for the cost of using the auxiliary aid or other services. (See 28 C.F.R. §36.301.)  This includes potential clients as well as current clients. The good news is that although you cannot charge your clients for the interpreter services, the ADA does provide tax incentives to encourage compliance. (See 26 U.S.C. §44.)

When you are not having a face to face meeting with dear or hard of hearing clients, there are inexpensive and free methods of communication that you can use. In fact, you may use most of them already, such as e-mail, fax, or an Internet-based chat program.

If you or you client want to communicate by phone, there are other devices and methods that are typically free and easy to use. For example, deaf and hard of hearing individuals use video phones to sign to other deaf and hard of hearing individuals.  They use a video relay service when talking with hearing individuals, where the deaf person signs to the video relay operator, who will then verbally interpret to you what your deaf client has said.  You can use this video relay interpreter service by dialing a toll-free number and giving the interpreter the deaf person’s video phone number.

Despite the detailed descriptions provided above, it is not difficult to represent deaf and hard of hearing individuals.  It all boils down to asking them how you can best facilitate your communications with each another.  

** This blog post originally appeared as an article the March/April 2013 Utah Bar Journal titled "Legal Requirements for Representing Clients With Disabilities." I am republishing my article on this blog as part of my desire to help attorneys across the United States find the best ways to represent their clients who are Deaf or Hard of Hearing.