If convicted, Netflix would have to add closed captioning to virtually all of the movies, TV shows, and the other programming it provides over the Internet to customers; a tremendous benefit not only to the deaf, but also to the much larger number of customers who are older or otherwise simply hard of hearing, says public interest law professor John Banzhaf, who has filed more than 100 successful complaints against discrimination based upon race, sex, country of origin, and disability.
Netflix -- and Apple, Panasonic, Tivo, and Toshiba, which have been charged with "aiding and abetting" for providing and modifying their devices to facilitate Netflix's Internet transmissions -- could also face penalties for every day and to every person who has been subjected to this discrimination, as well being forced to pay attorney fees.
The complaint recites that Netflix has assured deaf organizations, as well as deaf individuals who have complained about the discrimination, that there is no technical reason why the closed captioning information -- which is allegedly already available in most of the source material Netflix uses to transmit the programming, including even in the DVDs which it provides to customers -- cannot be transmitted over the Internet, and Netflix has repeatedly promised to do so.
Netflix's "willfully, maliciously, and unfairly refusing to provide closed captioning services for the programming it transmits to customers through the Internet," and its continued refusal to meet the legitimate needs of their deaf, hearing impaired, and hard of hearing customers, is the basis of this legal action, says Banzhaf, who helped establish the National Center for Law and the Deaf, require the open captioning of information in emergency messages broadcast by TV stations, get deaf students admitted to law schools, and caused Congress to invite the first deaf person to testify on deaf-related issues before a congressional committee.
Many courts have held that even providing the same services to everyone may nevertheless illegally discriminate against one group as compared with another if that service has the effect or consequence of adversely affecting one group. For example, a university which provides uniforms and equipment to its university athletes, but doesn't provide protective cups and/or jock straps, obviously has the effect or consequence of discriminating against the male athletes, even though the female athletes are likewise denied these same items.
Two U.S. Court of Appeals decisions make this point very clearly. In the first, the Sixth Circuit court held that even providing identical restroom facilities to males and females may constitute illegal sex discrimination against women because their needs are very different. In that case the facilities were filthy, which presented a far more serious health problem to women since men don't have to sit to urinate. The court held "anatomical differences between men and women are ‘immutable characteristics,’
Similarly, in another case, where both male and female workers were equally required to urinate outdoors in the open, the court held that the requirement constituted "sexual harassment" of female employees because the same act of urination was both more difficult and more embarrassing for women than for men
This legal proceeding against Netflix is also similar to two other discrimination complaints brought against eHarmony, a match-making Internet website. Both charged that although the company provided the same service to everyone -- help in finding a person of the opposite sex who might be compatible -- it nevertheless discriminated on the basis of the prohibited basis of sexual orientation since the service was virtually useless to homosexuals -- just as a movie-via-Internet service without captions is virtually useless to the deaf.
eHarmony was ordered to pay $55,000 in one case, and to settle for $2 million in the other.
Ironically, deaf people may sign up to receive DVDs in the mail from Netflix containing many of the same programs they can also receive over the Internet, and which have closed captions which they can turn on so that they can understand and fully enjoy the programming. However, they cannot get this same closed captioning if they obtain their programming from Netflix over the Internet.
As a result, the deaf are denied the full and equal enjoyment of the Netflix Internet service since, with the DVD delivery-by-
■ they have to order the programming days in advance and cannot be spontaneous, entertain visitors with different tastes who suddenly drop in, etc.;
■ they must wait several days before they can watch the programming they desire;
■ they are limited -- by the number of DVDs they can have out at any one time -- in terms of how many programs they can watch in a given time span;
■ they must put up with the inconvenience of opening and repacking the mailing envelopes, finding and then putting them back into a mailbox, etc.
Banzhaf, who has been a leader in using legal action as a weapon against the problems of the deaf, just as he has also done with the problems of smoking, obesity, and sex discrimination, says that finally the silent minority may be heard, and be able to enjoy -- even if they cannot hear -- the movies and TV programs everyone else takes for granted.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
Creator, Banzhaf Index of Voting Power
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/]