U.S. Department of Justice
Civil Rights Division
Disability Rights Section

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Enforcing the ADA:

A Status Report from the Department of Justice

April - June 2004

This Status Report covers the ADA activities of the Department of Justice during the second quarter (April - June) of 2004. This report, previous status reports, and a wide range of other ADA information are available through the Department’s ADA Home Page on the World Wide Web (see page 11). The symbol (**) indicates that the document is available on the .


INSIDE...

ADA Litigation
Formal Settlement Agreements
Other Settlements
Mediation
Certification
Technical Assistance
Other Sources of ADA Information
How to File Complaints

 

2004, Issue 2

 

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law for people with disabilities. The Department of Justice enforces the ADA’s requirements in three areas --

Title I: Employment practices by units of State and local government

Title II: Programs, services, and activities of State and local government

Title III: Public accommodations and commercial facilities

 

I. Enforcement

     Through lawsuits and both formal and informal settlement agreements, the Department has achieved greater access for individuals with disabilities in thousands of cases. Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations.

A. Litigation

      The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III the Department may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.

1. Decisions

Supreme Court Upholds Private Title II Court Access Suits Against States -- The Supreme Court ruled in a 5-4 decision in Tennessee v. Lane on May 17, 2004, that private individuals may sue States for damages in cases brought to enforce access to courts under title II of the Americans with Disabilities Act. In this case plaintiffs sued the State of Tennessee and 25 of its counties alleging that they had violated the ADA by operating inaccessible courthouses. The plaintiffs asked the Federal court to order that the courts be made accessible and to grant them compensatory damages. The Department of Justice, which had intervened in the Court of Appeals to defend the constitutionality of title II, urged the Supreme Court to uphold private title II suits against States across the board as an appropriate means of enforcing the 14th Amendment’s wide range of equal protection and due process rights. The Court, however, limited its ruling to title II cases brought to enforce constitutional guarantees relating to court access. Among these rights are the right of a criminal defendant to be present at his or her trial, the right of civil litigants to have a meaningful opportunity to be heard, the right of a criminal defendant to a trial by a jury that reflects a cross section of the community, and the right of the public to have access to criminal proceedings. The Court ruled Congress had the authority to act to remedy and deter violations of these rights because it was acting against a “backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.” The Court pointed to the record of unconstitutional treatment of persons with disabilities by State agencies in a variety of settings, including voting, commitment, institutional abuse and neglect, zoning, prisons, public education, and the administration of justice. It also held that title II’s court access requirements were a “proportional” response to this pattern of unconstitutional behavior identified by Congress because of the limits provided by the fundamental alteration and undue burdens defenses and the flexible nature of the program accessibility requirement. Because the Court limited its ruling to court access, litigation on whether sovereign immunity bars title II cases addressing issues than other court access will continue.

Supreme Court Decides Not to Hear Challenges to Stadium-Style Theater Decisions -- As requested by the Department of Justice, the Supreme Court decided to let stand two courts of appeals decisions regarding stadium-style movie theaters. In both cases, U.S. v. Cinemark USA, Inc. (6th Circuit), a lawsuit filed by the Department, and Regal Cinemas, Inc. v. Stewmon (9th Circuit), a case in which the Department filed an amicus brief supporting the plaintiff, the appellate courts ruled in favor of the plaintiffs’ arguments that the quality of viewing angles must be considered in deciding whether sight lines for accessible seating are “comparable” to those offered to the general public. In both cases plaintiffs challenged accessible seating that was located close to the screen allegedly resulting in extreme viewing angles that produced physical discomfort and image distortion. Both appellate courts rejected an earlier ruling by the U.S. Court of Appeals for the Fifth Circuit in Lara v. Cinemark USA, Inc. that the ADA regulation requiring “lines of sight comparable to those for members of the general public” required only that sight lines be unobstructed. In opposing requests by the movie theater chains for Supreme Court review, the Department argued that the Sixth and Ninth Circuits were correct in ruling that the ADA requires more than merely unobstructed sight lines, and that the Access Board and the Department of Justice are in the process of developing revised ADA Standards for Accessible Design that are likely to address this issue and to eliminate the conflict in the courts of appeals.


2. Consent Decrees

     Some litigation is resolved at the time the suit is filed or afterwards by means of a negotiated consent decree. Consent decrees are monitored and enforced by the Federal court in which they are entered.

Title III
 

**U.S. v. Parkway Hospital -- Parkway Hospital, a private hospital in Queens, New York, agreed to provide sign language interpreter services to ensure effective communication with the hospital’s deaf patients and their relatives and pay $125,000 in compensatory damages to the family of a former deaf patient of the hospital. The consent decree settled a lawsuit filed jointly by the Civil Rights Division and the U.S. Attorney for the Eastern District of New York alleging that Parkway was discriminating on the basis of disability against persons who are deaf and those related to or associated with them. The complaint alleged that Parkway failed to provide a qualified sign language interpreter for a deaf patient, now deceased, and her husband during her extended hospitalization at Parkway in the spring of 2001. The patient, who was 77 years of age at the time, was admitted into Parkway’s emergency room in critical condition. During her hospitalization, Parkway relied on lipreading, handwritten notes, and a staff member with limited sign language skills to communicate with her and her family regarding treatment options, medical consent, and risky surgical procedures. As alleged in the complaint, this situation forced the patient’s adult children into the role of interpreters between their parents and the hospital’s staff. The consent decree requires Parkway to provide qualified sign language interpreters (which may include audio-video interpreting services) to patients and their family members who are deaf or hard of hearing and whose primary means of communication is sign language. The decree further requires that the hospital provide an on-site interpreter in circumstances where audio-video interpreting services will not be effective.

**U.S. v. The Bette Bus Shuttle, Inc. -- The U.S. Attorney’s Office for the Western District of Tennessee agreed to a consent decree resolving its lawsuit against The Bette Bus Shuttle, Inc. (a private provider of fixed route transportation between Memphis, Tennessee, and the airport at Little Rock, Arkansas), and its successor company, Metro Services, Inc. of Moscow, Tennessee. The U.S. Attorney received a complaint alleging that Bette Bus did not provide wheelchair-accessible vans and that Bette Bus staff refused to allow the complainant to take her wheelchair with her on its inaccessible vans. The complainant, who uses a wheelchair for full mobility, was required to travel without her wheelchair, severely limiting her ability to leave her hotel room. The Bette Bus owner acknowledged that the company had purchased at least six 15-passenger vans since 1990, none of which were lift-equipped, and that the company had never provided service to people with disabilities because it thought it was too expensive and would require medical personnel on board. Unrelated to the lawsuit, the defendants have now refocused their operations to provide a broader range of demand responsive services and to limit fixed-route airport service. The consent order requires the Defendants to provide a lift on one vehicle immediately, equip more vehicles with lifts in the future depending on the degree of fixed-route service provided, eliminate discriminatory policies, train employees to assist persons with disabilities, and pay $1,000 in damages and $500 in civil penalties.


B. Formal Settlement Agreements

      The Department sometimes resolves cases without filing a lawsuit by means of formal written settlement agreements.

Title II

** New Project Civic Access Agreement -- The City of Pueblo, Colorado, signed an agreement under Project Civic Access, a nationwide initiative by the Department of Justice to ensure that local governments comply with the ADA. This comprehensive agreement, the 75th under Project Civic Access, resulted from a compliance review of a wide range of the city’s programs, services, and activities. The City agreed to make physical modifications to its facilities to ensure that parking, routes of travel into buildings, entrances, toilet rooms, bathrooms, service counters, telephones, drinking fountains, playgrounds, and wheelchair seating are accessible to people with disabilities. The city also agreed to expand the provision of effective communication, adopt appropriate TTY call-taking procedures for its 9-1-1 emergency services, provide law enforcement officers with information and guidance on effective communication with people who are deaf or hard of hearing, appoint an ADA advisory committee, and train employees on the ADA.

New Hope, Alabama -- The Department entered an agreement with the City of New Hope resolving a complaint alleging that the city’s jail and city hall (which are in the same building) are not accessible for those with mobility impairments. The city agreed to “book” and house prisoners or detainees with mobility impairments in accessible facilities in a neighboring county jail. The city will also provide accessible door hardware throughout the facility, a van-accessible parking space and access aisle, a text telephone, proper bathroom signage, and an accessible drinking fountain.

New Jersey Department of Human Services, Division of Family Development, Trenton, New Jersey -- The Department entered an agreement with a New Jersey State agency resolving a complaint alleging that the Hudson County Board of Social Services failed to provide a sign language interpreter at two meetings with a deaf client on whether she was qualified for benefits she had received. The State Department of Human Services agreed to provide appropriate auxiliary aids when necessary to ensure effective communication, train all Division of Family Development employees who have contact with the public on their ADA responsibilities, and pay $2426 to the complainant.

Department of Real Property Management, Clark County, Nevada -- The Department signed an agreement with the Department of Real Property Management of Clark County, Nevada, resolving a complaint alleging that the county had failed to remove architectural barriers at the county fairgrounds. The county agreed to provide accessible ramps, accessible paper towel and toilet seat cover dispensers in the toilet rooms, and appropriate signage on the accessible routes.

Title III

**The Movies at Midway, Rehoboth Beach, Delaware -- The Department entered into a settlement agreement with Midway Realty Corporation, the owner of The Movies at Midway, a 14-screen theater complex. The agreement resolved a complaint made by an individual who is hard of hearing alleging that, despite her continuing complaints to theater personnel, the theaters were not equipped with an assistive listening system for individuals with hearing impairments, even after the theaters underwent substantial alterations. Under the agreement, the theater owner will install additional receivers for the assistive listening system it later installed, develop policies and procedures to ensure that customers who are hard of hearing have ready access to the system, train appropriate theater staff to operate, maintain, and assist customers in using the system, and pay damages in the amount of $500 to the complainant.

Lyon’s Restaurant, Sacramento, California -- The Department signed an agreement with Lyon’s Restaurant resolving a complaint that its restrooms were inaccessible to individuals with mobility impairments. The restaurant agreed to provide one accessible unisex restroom.

Dr. Ilona E. Jurek, Lorain, Ohio
-- The U.S. Attorney’s Office for the Northern District of Ohio entered an agreement with an Ohio doctor resolving a complaint alleging that she refused to continue providing interpreters for communicating with two deaf patients as she had in the past. The doctor agreed to provide a sign language interpreter or other auxiliary aid necessary to provide effective communication with all of her deaf patients, place a sign notifying patients of this policy in a conspicuous location in her office lobby, and train her staff on the requirements of the ADA.

**Rieck Avenue Country Day School, Millville, New Jersey -- The Department reached a settlement resolving a complaint alleging that a privately owned childcare center in Millville, New Jersey, had refused enrollment in a summer program to a seven-year-old girl with cerebral palsy and epilepsy. The child had just finished first grade and had been attending public school and daycare since the age of eighteen months. She allegedly required no additional assistance with daily care or age-appropriate activities and no modifications to the center’s activities or programs -- except that staff members would need to be generally knowledgeable that she had occasional seizures, after which she would be very tired or fall asleep. The center agreed to adopt a nondiscrimination policy, publicize that policy in its handbooks for parents and employees, and provide training to management and staff on the ADA obligations of child care providers. It also agreed to pay $4,000 in compensatory damages.

The Sherwood Inn, Skaneateles, New York -- The Department signed a settlement agreement resolving a complaint by a wheelchair user against The Sherwood Inn alleging a variety of physical barriers. The owner and operator of the inn agreed to provide accessible parking, coat closets, door hardware, men’s and women’s toilet rooms, and an accessible reception area, and to provide directional signage at all inaccessible entrances to indicate the location of the nearest accessible entrance.

**Marriott at Metro Center, Washington, D.C. --The Department signed a settlement agreement with HMC Retirement Properties, L.C., and Marriott International, Inc., resolving a complaint alleging that the Marriott at Metro Center Hotel had no accessible guest rooms equipped with a roll-in shower. HMC and Marriott agreed to install roll-in showers in five guest rooms and pay $18,000 in civil penalties. In addition, if HMC and Marriott do not meet the deadlines for compliance with the agreement, then each missed deadline requires another $18,000 payment (potentially totaling $54,000 in civil penalties).


C. Other Settlements

     The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements.

Title III
An individual with a disability complained about inaccessible parking at a Kansas department store. The store reconfigured its van-accessible parking to widen the access aisles and to remove the shopping cart carrels obstructing those aisles.

A woman whose husband is a wheelchair user complained that a Texas restaurant was inaccessible to persons with disabilities because accessible parking was located in the farthest spaces from the entrance. The restaurant created accessible parking with a curb ramp next to the accessible entrance and installed a new unisex accessible toilet room with appropriate signage.

The U.S. Attorneys obtained informal settlements in the following cases
--

Southern District of Mississippi --
An individual with a disability complained that a newly constructed Mississippi convenience store lacked a curb ramp on the shortest accessible route to the entrance, causing customers using wheelchairs to travel to the end of the sidewalk and out from under the covered area to use the ramp. The store agreed to construct a new curb ramp, to install a new accessible parking space and a van-accessible parking space with appropriate signage, to relocate restroom signs to the latch side of the entry doors, and to alter the door opening force on all interior doors to be accessible.

District of Arizona -- An individual with a mobility impairment complained that the accessible parking spaces at an Arizona town hall were not properly marked and that, as a result, local law enforcement would not cite individuals illegally parked in them. The municipality installed appropriate signage and pavement markings.

Parents of a three-year-old child with cerebral palsy complained that an Arizona arena and event venue would not modify its “no strollers” policy and that, as a result, they had to carry him and hold him in their laps throughout the show. The arena agreed to modify its no stroller policy, train its employees on the requirements of the ADA, reimburse the complainants $124 for the cost of tickets to the event, and provide the complainants with complimentary admission and parking to an upcoming event to be held at the auditorium.


II. Mediation

     Under a contract with the Department of Justice, The Key Bridge Foundation receives referrals of complaints under titles II and III for mediation by professional mediators who have been trained in the legal requirements of the ADA. An increasing number of people with disabilities and disability rights organizations are specifically requesting the Department to refer their complaints to mediation. More than 400 professional mediators are available nationwide to mediate ADA cases. Over 75 percent of the cases in which mediation has been completed have been successfully resolved. Following are recent examples of results reached through mediation.


III. Certification of State and Local Accessibility Requirements

     The ADA requires that newly constructed or altered places of public accommodation and commercial facilities comply with title III of the ADA, including the ADA Standards for Accessible Design (ADA Standards). The Justice Department is authorized to certify that State and local accessibility requirements, which are often established through building codes, meet or exceed the ADA’s accessibility requirements. In any lawsuit that might be brought, an entity that complies with a certified State or local code can offer that compliance as rebuttable evidence of compliance with the ADA.

    In implementing its certification authority, the Department works closely with State and local officials, providing, as needed, detailed technical assistance to facilitate efforts to bring those accessibility requirements into accord with the ADA Standards. In addition, the Department responds to requests from private entities for review of the accessibility provisions of model codes and standards, and provides informal guidance regarding the extent to which they are consistent with the minimum accessibility requirements of the ADA.

Previously, the Department certified the accessibility codes of the States of Washington, Texas, Maine, Florida, and Maryland. In addition, the Department has pending requests for certification from California, Indiana, New Jersey, North Carolina and Utah. Recent certification-related activity includes --

State of Washington -- As of July 1, 2004, the State of Washington will implement new accessibility requirements that will replace the State’s Regulations for Barrier Free Design, which were the first State accessibility requirements to receive certification from the Department of Justice. The Department wrote to Washington State officials encouraging them to request certification for their new accessibility code and expressing willingness to work with them in achieving this goal.


IV. Technical Assistance

     The ADA requires the Department of Justice to provide technical assistance to businesses, State and local governments, and individuals with rights or responsibilities under the law. The Department provides education and technical assistance through a variety of means to encourage voluntary compliance. Our activities include providing direct technical assistance and guidance to the public through our ADA Information Line, ADA Home Page, and Fax on Demand, developing and disseminating technical assistance materials to the public, undertaking outreach initiatives, and coordinating ADA technical assistance government wide.

ADA Website

The Department’s ADA Website on the Internet’s World Wide Web provides direct access at anytime to ADA information offered by the Department and by other Federal agencies.

The ADA Home Page (www.ada.gov) is the entry point to the website. It provides direct access to --

The ADA Home Page also provides information about --

Department Adds Additional Spanish Documents to Website -- The Department has added six more ADA technical assistance documents in Spanish to the ADA Website as part of a continued effort to expand and improve access to technical assistance materials. The new documents include Spanish versions of “ADA Questions and Answers”, “Commonly Asked Questions about Child Care Centers and the Americans with Disabilities Act”, “Access to 9-1-1 and Telephone Emergency Services”, “ADA Designated Investigative Agencies”, and “A Guide for People with Disabilities Seeking Employment”. A new Español link has also been added at the top of the ADA Home Page (www.ada.gov) giving visitors an easy way to access the growing list of ADA technical assistance documents available in Spanish.


ADA Information Line

The Department of Justice operates a toll-free ADA Information Line to provide information and publications to the public about the requirements of the ADA. Automated service, which allows callers to order publications by mail or fax, is available 24 hours a day, seven days a week. ADA specialists are available on Monday, Tuesday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m. and on Thursday from 12:30 p.m. until 5:30 p.m. (Eastern Time). Foreign language service is also available.

To obtain general ADA information, get answers to technical questions, order free ADA materials, or ask about filing a complaint, please call:

800-514-0301 (voice)
800-514-0383 (TTY)


ADA Fax On Demand

The ADA Information Line Fax Delivery Service allows the public to obtain free ADA information by fax 24 hours a day, seven days a week. By calling the number above and following the directions, callers can select from among 39 different ADA technical assistance publications and receive the information, usually within minutes, directly on their fax machines or computer fax/modems. A list of available documents and their code numbers may also be ordered through the ADA Information Line.


Publications and Documents

Copies of the Department’s ADA regulations and publications, including the Technical Assistance Manuals for titles II and III, can be obtained by calling the ADA Information Line, visiting the ADA Home Page, or writing to the address listed below. All materials are available in standard print as well as large print, Braille, audiotape, or computer disk for persons with disabilities.

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530

Some publications are available in foreign languages. For further information please call the ADA Information Line.

Copies of the legal documents and settlement agreements mentioned in this publication can be obtained by writing to --

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
FOIA Branch, NALC Room 311
Washington, D.C. 20530

Fax: 202-514-6195

Currently, the FOI/PA Branch maintains approximately 10,000 pages of ADA material. The records are available at a cost of $0.10 per page (first 100 pages free). Please make your requests as specific as possible in order to minimize your costs.

The FOI/PA Branch also provides access to ADA materials on the World Wide Web (www.usdoj.gov/crt/foia/records.htm). A link to search or visit this website is provided from the ADA Home Page.


V. Other Sources of ADA Information

The Equal Employment Opportunity Commission offers technical assistance to the public concerning the employment provisions of title I of the ADA.

ADA publications
800-669-3362 (voice)
800-800-3302 (TTY)

ADA questions
800-669-4000 (voice)
800-669-6820 (TTY)

www.eeoc.gov

The Federal Communications Commission offers technical assistance to the public concerning the communication provisions of title IV of the ADA.

ADA publications and questions
888-225-5322 (voice)
888-835-5322 (TTY)

www.fcc.gov/cgb/dro

U.S. Department of Transportation, Federal Transit Administration or Access Board, offers technical assistance to the public on the ADA Accessibility Guidelines.

ADA Assistance Line for regulations and complaints
888-446-4511 (voice/relay),

ADA publications and questions
800-872-2253 (voice)
800-993-2822 (TTY)

www.access-board.gov

The Disability and Business Technical Assistance Centers are funded by the U.S. Department of Education through the National Institute on Disability and Rehabilitation Research (NIDRR) in ten regions of the country to provide resources and technical assistance on the ADA.

ADA technical assistance
800-949-4232 (voice & TTY)

www.adata.org

Project ACTION is funded by the U.S. Department of Transportation to provide ADA information and publications on making transportation accessible.

Information on accessible transportation
800-659-6428 (voice/relay)

http://projectaction.easterseals.com

The Job Accommodation Network (JAN) is a free telephone consulting service funded by the U.S. Department of Labor. It provides information and advice to employers and people with disabilities on reasonable accommodation in the workplace.

Information on workplace accommodation
800-526-7234 (voice & TTY)

www.jan.wvu.edu


VI. How to File Complaints

Title I

    Complaints about violations of title I (employment) by units of State and local government or by private employers should be filed with the Equal Employment Opportunity Commission. Call 800-669-4000 (voice) or 800-669-6820 (TTY) to reach the field office in your area.

Titles II and III

     Complaints about violations of title II by units of State and local government or violations of title III by public accommodations and commercial facilities should be filed with --

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530

If you wish your complaint to be considered for referral to the Department’s ADA Mediation Program, please mark “Attention: Mediation” on the outside of the envelope.



The Attorney General has determined that publication of this periodical is necessary in the transaction of the public business required by law of the Department of Justice.



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last update: April 24, 2008