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.

The Rights of Deaf and Hard of Heaing Individuals To Have Access To Court

Deaf and Hard of Hearing have historically been denied access to justice through discriminatory measures that prevented them from participating in a court trial such as being a witness in a case or serving on a jury. As a result, Federal and State laws were passed to provide them with meaningful access to justice. Unfortunately, many Deaf and Hard of Hearing people are not aware of their rights when it comes to enjoying the services and programs that are offered by the judicial system. Additionally, the legal community isn't always aware of these various rights either.

This article will provide a quick summary of the rights that Deaf and Hard of have under the Americans with Disabilities Act (ADA) and Utah State law which will help educate the general public as well as the legal community about the rights that people with hearing loss have when they come to court. Most importantly, this summary will be helpful to Deaf and Hard of Hearing people across the country. I have also provided laws that are specific to Utah that will be extremely helpful to those who are not aware of their rights in this state. 

ADA Summary

• Deaf or Hard of Hearing Individuals cannot be excluded or denied from having access to the Courts: Title II of the ADA provides in relevant part that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.

• Courts have a duty to ensure that Deaf and Hard of Hearing individuals have communication access to the courts: Under the ADA, “public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1)

• Courts have a duty to provide Deaf or Hard of Hearing Individuals with the appropriate axuliary aid or services so that they can have equal opportunity to enjoy the services and benefits provided by the courts: Public entities are required to “furnish appropriate auxiliary aids and services where necessary” to provide “applicants” who are “qualified individuals with disabilities” an “equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1)

• The Court’s duty to provide an effective communication will depend on the situation: The kinds 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. § 35.160(b)(2) 

•  Auxiliary Aids and Services Defined: Title II of the ADA explains that “auxiliary aids and services” means to include “Qualified interpreters on-site.” 28 C.F.R. § 35.104(1). A qualified on site interpreter is defined as someone who “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.” Id.

Utah State Law Summary

• Right To An Interpreter In A Criminal or Civil Proceeding: Any “hearing-impaired person who is a party or witness at any stage of any judicial or quasi-judicial proceeding in this state or in its political subdivisions, including civil and criminal court proceedings,” the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired person and to interpret the hearing-impaired person's testimony. If the hearing-impaired person does not understand sign language, the appointing authority shall take necessary steps to ensure that the hearing-impaired person may effectively and accurately communicate in the proceeding. (See 78B-1-202(1))

• Parents of Juveniles have a right to an interpreter: If a juvenile whose parent or parents are hearing-impaired is brought before a court for any reason whatsoever, the court shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired parent and to interpret the hearing-impaired parent's testimony. (See 78B-1-202(2))

• Deaf or Hard of Hearing Individuals have a right to an interpreter in state administrative proceedings: “In any hearing, proceeding, or other program or activity of any department, board, licensing authority, commission, or administrative agency of the state or of its political subdivisions, the appointing authority shall appoint and pay for a qualified interpreter for the hearing-impaired participants if the interpreter is not otherwise compensated for those services.” (See 78B-1-202(2))

• Deaf or Hard of Hearing Individuals have a right to an interpreter when testifying before a legislative body: “If a hearing-impaired person is a witness before any legislative committee or subcommittee, or legislative research or interim committee or subcommittee or commission authorized by the state Legislature or by the legislative body of any political subdivision of the state, the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired person and to interpret the hearing-impaired person's testimony.” (See 78B-1-202(3))

• Where A Deaf or Hard of Hearing Exercises His 6^th Amendment Right to Counsel, he also has a right to have an interpreter present with his court appointed attorney: If it is the policy and practice of a court of this state or of its political subdivisions to appoint counsel for indigent people, the appointing authority shall appoint and pay for a qualified interpreter or other necessary services for hearing-impaired, indigent people to assist in communication with counsel in all phases of the preparation and presentation of the case. (See 78B-1-202(3))

• Jury Duty: The courts in Utah are to provide appropriate auxiliary aids and services, including qualified interpreters, when necessary to provide an individual with a disability an opportunity to serve as a juror. (See Settlement Agreement between the United States of America and The Utah Administrative Office of the Courts, Department of Justice 1993[1].

Why Is It Important For Deaf & Hard Of Hearing Individuals To Have Access To Court Ordered Services?

The reason why is important for Deaf and Hard of Hearing Individuals to have access to court ordered services is because there has been a “pattern of unconstitutional treatment in the administration of justice in our nation’s history towards individuals with a hearing loss.”[2] When Congress was considering passing the Americans With Disabilities Act of 1990 (ADA), they discovered that that many individuals, in many States across the country, were being excluded from "courthouses and court proceedings by reason of their disabilities.”[3] A task force established by Congress “heard numerous examples of the exclusion of persons with disabilities from state judicial services and programs, including exclusion of persons with visual impairments and hearing impairments from jury service [and] failure of state and local governments to provide interpretive services for the hearing impaired.”[4]

When Congress finally passed the ADA, it recognized that “failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion.”[5] As a result, the Supreme Court in Tennessee v. Lane recognized that it “is perfectly consistent with the well-established due process principle that, ‘within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard’ in its courts.”[6]

As a result, the inability to have access to court is a violation of a Deaf or Hard of Hearing person’s federal and state constitution as well as federal and state law right to participate in the judicial process either as a plaintiff, defendant, witness, or jury member. Without the necessary accommodation, meaningful and crucial information is missed which may lead to severe and unjustified consequences to the administration of justice. Deaf and Hard of Hearing individuals who work as attorneys or judges also have rights guaranteed by federal and state constitution as well as federal and state law that guarantees them the right to have the appropriate accommodations necessary in order to work effectively in court. When a denial of accommodations has occurred, it is an effective denial of access to the courts which results in grave injury to the deprived Deaf or Hard of Hearing individual.

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[1] http://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_tal/tal394.txt

[2] Tennessee v. Lane, 541 U.S. 509, 524-525 (2004).

[3] Id. at 527.

[4] Id.

[5] Id. at 531.

[6] Id. at 532 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)).