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 2005

This Status Report covers the ADA activities of the Department of Justice during the second quarter (April-June) of 2005. 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

 

2005, 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 Finds Foreign-Flag Cruise Ships Covered by ADA -- The Supreme Court ruled in Spector v. Norwegian Cruise Lines, Ltd., that a foreign-flag cruise ship operating in the internal waters of the United States is covered by title III of the ADA, except where specific requirements of the law would interfere with the ship's internal affairs or operations in particular cases. The Supreme Court reversed the U.S. Court of Appeals for the Fifth Circuit which held that such ships were not covered. The plaintiffs, who are individuals with mobility disabilities and their nondisabled companions, filed suit under the ADA alleging that the cruise line discriminated against them on a cruise from Houston, Texas, by imposing a surcharge for an accessible cabin; by failing to remove architectural barriers to ship facilities and services, such as public restrooms, restaurants, swimming pools, and elevators; and by failing to make reasonable modifications in policies needed to include people with disabilities in the ship's emergency evacuation procedures. The Department filed amicus briefs in both the appeals court and the Supreme Court in support of ADA coverage. Of all the title III provisions at issue in Spector, involving both policy issues and barrier removal, only barrier removal was identified by the Supreme Court as raising the possibility of causing inappropriate interference with the ship's internal affairs or operations if it caused "permanent and significant modification to a ship's physical structure." Concern was expressed that requiring such changes to a foreign-flag ship might make it impossible for the ship to comply with all of the varied requirements that different countries might impose. The decision also noted, however, that interference with a ship's internal affairs or operations might generally be avoided because of the significant limitations on the barrier removal requirement, but that this determination would have to made on a case-by-case basis.

Supreme Court Will Consider Constitutionality of Title II Prisoner Suits -- The Supreme Court decided to review the decision of the U.S. Court of Appeals for the Eleventh Circuit in Goodman v. Ray, which held that private title II suits against State prisons are barred by sovereign immunity. The Solicitor General asked the Supreme Court to review this decision in order to resolve the conflict between the Ninth Circuit, which upheld the constitutionality of individual title II suits against State prisons in Phiffer v. Columbia River Correctional and the Eleventh Circuit decision in Goodman, which held such suits unconstitutional. In its petition, the Department argued that the Eleventh Circuit decision in Goodman was wrong because it was inconsistent with the Supreme Court's decision in Tennessee v. Lane, which upheld the constitutionality of individual title II suits against State court systems. The petition asserted that title II is an appropriate congressional response to the history of constitutional violations against persons with disabilities in prisons. The plaintiff, who has paraplegia and uses a wheelchair, alleged that his cell was too small for him to maneuver his wheelchair, making it impossible for him to access his bed, toilet, and shower without assistance, and that assistance was often denied. He also claimed that the prison's barriers prevented him from using the prison library, attending religious services, and participating in a wide range of counseling, education, and vocational training programs.

Two Appellate Courts Rule Sovereign Immunity Is No Bar to Private ADA Suits Against Public Colleges -- The U.S. Courts of Appeals for the Fourth and Eleventh Circuits ruled in favor of the Department of Justice in upholding the constitutionality of private title II suits against State institutions of higher education. The Fourth Circuit in Constantine v. The Rectors and Visitors of George Mason University ruled that a GMU law student with "intractable migraine syndrome" can continue with her lawsuit against the law school for injunctive relief and damages. The suit alleged that the GMU law school, which is part of Virginia's public system of higher education, failed to accommodate her disability in the administration of a constitutional law exam and then retaliated against her when she complained. The Eleventh Circuit in Association for Disabled Americans, Inc. v. Florida International University upheld the constitutionality of the ADA's abrogation of State sovereign immunity in the context of public education, allowing a suit to go forward alleging that the university failed to provide interpreters, note takers, and other appropriate auxiliary aids and services to students.

Eighth Circuit Bars Integration Claim Against State Agency -- The U.S. Court of Appeals for the Eighth Circuit ruled against the Department of Justice in Bill M. v. Nebraska Department of Health and Human Services Finance and Support, holding that it was unconstitutional for a group of persons with developmental disabilities, who claimed that they are at risk of facing unnecessary institutionalization, to sue various State agencies who administer the State's Medicaid program for failing to provide medical services in the most integrated setting appropriate. The plaintiffs sued both the State agencies and State officials in their official capacities for an order requiring modifications in the program. The Court ruled only that the claims against the State agencies were barred by sovereign immunity. The State did not challenge the right of the plaintiffs to sue the State officials in their official capacities.

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.

U.S. v. Apollo Theater Foundation -- The U.S. Attorney's Office for the Southern District of New York simultaneously filed and resolved by consent decree a lawsuit against the Apollo Theater Foundation, which operates the historic Apollo Theater in Harlem, challenging barriers to access at the theater. The agreement requires the Apollo to install 12 permanent wheelchair seating locations with companion seats in its orchestra section. The agreement also requires the Apollo to renovate its front and rear entrances to provide accessible routes into the facility and to eliminate a wide variety of barriers by making changes to restrooms, elevators, drinking fountains, signage, and telephones.


B. Formal Settlement Agreements

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

Title II

** Project Civic Access Agreements Signed by Two More Communities -- The Department has signed two additional agreements under its Project Civic Access initiative, a wide-ranging effort to ensure that cities, counties, towns, and villages throughout the United States comply with the ADA. The new agreements cover --

Florence, South Carolina, and
Monroe County, Pennsylvania.

The goal of Project Civic Access is to ensure that people with disabilities have an equal opportunity to participate in civic life. Departmental investigators, attorneys, and architects survey State and local government facilities and programs across the country for the purpose of identifying modifications needed to comply with ADA requirements. Depending on the circumstances in each community, the agreements address specific areas where access can be improved. To date, 113 communities have signed Project Civic Access agreements. Each community agreed to take specific steps, depending on local circumstances, to make core government functions more accessible to people with disabilities. The agreements have improved access to many aspects of civic life including, courthouses, libraries, parks, sidewalks, and other facilities, and address a wide range of accessibility issues, such as employment, voting, law enforcement activities, and emergency preparedness and response.


Title III

Skyline Mountain Resort, Price, Utah -- The Department reached an agreement with the Skyline Mountain Resort in Price, Utah, which will result in barrier removal throughout the resort. The resort agreed to make at least one of its cabins fully accessible, remove barriers in its clubhouse, including toilets and shower rooms, and provide accessible parking at its golf course.

Regal Cinemas Agrees to Accessibility in Stadium-Style Movie Theaters -- The Department entered a far-reaching settlement resolving its litigation with the Regal Entertainment Group concerning the placement of wheelchair seating at its stadium-style movie theaters nationwide. Stadium-style seating offers superior lines of sight and an enhanced moviegoing experience. The U.S. Attorney's Office for the District of Massachusetts filed suit against Hoyts Cinemas in December 2000 for violating the ADA by placing accessible wheelchair seating very close to the screen in front of the elevated risers of the stadium section, resulting in a distorted and uncomfortable view for wheelchair users. The lawsuit challenged the failure to provide persons with disabilities seating locations and lines of sight comparable to those of the general public. Regal Entertainment Group, which is the largest movie theater chain in the country with 3,500 screens, acquired most of the former Hoyts movie theaters in 2004. Regal agreed to provide improved lines of sight in both existing and future stadium-style theaters. All future construction of Regal theaters will be designed in accordance with design requirements that place wheelchair seating in the stadium section near the middle of the auditorium. Regal also agreed to make changes to nearly 1000 existing stadium-style theaters by moving wheelchair seating further back from the screen. At the remaining theaters, Regal will ensure that any wheelchair seating be relocated as far back from the screen as possible without major reconstruction.

Exodus Women's Center, Lakeland, Florida -- The Department entered an agreement with the Exodus Women's Center, which provides obstetrics and gynecology services in four different locations in Florida, resolving a complaint by an individual who has difficulty walking and uses a wheelchair due to a neurological condition. The complainant alleged that when she arrived for her scheduled appointment, Exodus staff refused to help her get onto the examination table and told her that she needed to bring someone with her to assist her. She left without receiving a medical examination. Under the agreement, Exodus agreed to purchase an adjustable height examination table for one office within three months of the agreement and purchase a second adjustable height examination table for a second office within 12 months. It also agreed, when scheduling an appointment for a first-time patient, to ask the patient if she will need any special assistance, modification of policy, or auxiliary aid or service at the examination because of a disability. In addition, Exodus agreed to pay the complainant $1000 and to conduct ADA training for all its medical and administrative staff on interacting with individuals with disabilities and techniques for assisting individuals with mobility disabilities to transfer to an exam table.

Midwest Orthopaedics, Chicago, Illinois -- The U.S. Attorney's Office for the Northern District of Illinois and Midwest Orthopedics, a multiphysician orthopaedic group practice with offices located throughout the metropolitan Chicago area, signed a settlement agreement resolving a complaint filed by a deaf individual. The complaint alleged that, despite repeated requests, Midwest Orthopaedics failed on three occasions to provide a sign language interpreter when he visited the offices for medical treatment. Under the agreement, Midwest will develop a written effective communication policy, train employees on the policy and the requirements of the ADA, and post a sign in a conspicuous location to notify patients and staff of the policy. In addition, it will pay $2,000 in compensatory damages to the complainant.

Norwegian American Hospital, Chicago, Illinois -- The U.S. Attorney's Office for the Northern District of Illinois and Norwegian American Hospital reached a settlement resolving a complaint alleging that Norwegian, an acute-care hospital, failed to provide effective communication to a patient who is deaf. Norwegian agreed to implement a comprehensive effective communication policy requiring hospital staff to conduct individualized communication assessments when patients are admitted to determine what types of auxiliary aids will be necessary for effective communication. It agreed to provide sign language interpreters when needed, as well as other appropriate auxiliary aids, such as visual alarms, TDDs at pay phones and in patient rooms, signage at phone banks indicating locations of TDDs, volume control telephones, and closed captioned televisions. Norwegian will post notices in conspicuous locations of the availability of auxiliary aids and services and pay $10,000 in compensatory damages to the complainant.

Ramada Hotel, Dallas, Texas -- The Department reached a settlement with S.R.P. Hospitality, the owner of the Ramada Plaza Hotel Convention Center in Dallas, Texas, resolving a complaint that the hotel attempted to bar a guest"s service animal from staying with her because of the hotel's "no pets" policy, and then treated the guest and her two companions poorly during their stay due to the presence of the service animal. Under the agreement, the hotel agreed not to discriminate against people with disabilities who use service animals, and their companions, to post this nondiscrimination policy in the hotel lobby, to provide ADA training to hotel staff, and to pay monetary damages of $1,000 to the guest.

Greater Southeast Community Hospital, Washington, D.C. -- The Department reached an agreement with Greater Southeast Community Hospital resolving a complaint that the hospital failed to provide effective communication for a patient who was hospitalized for three days with severe chest pain. The complainant alleged that he was denied sign language interpreters for a series of medical tests for his heart condition, that he was not provided effective communication for any diagnostic treatment or posthospitalization care, and that his wife was forced to interpret for him because of the lack of interpreters. The hospital agreed to provide appropriate auxiliary aids and services, including sign language interpreters, to the hospital's patients and their relatives or companions who are deaf or hard of hearing, and to pay $30,000 in compensatory damages to the complainant.

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.

An individual with a mobility impairment complained that a Missouri county courthouse was not accessible because stairs were the only means of reaching its upper floors. The county installed an elevator, made all public restrooms accessible, renovated the courtroom, and took steps to ensure that all programs would be held in accessible locations.

A person with a mobility impairment complained that a nationally franchised hotel in Wisconsin was not accessible. The hotel agreed to lower a portion of the front desk counter, to install grab bars in the men's and women's toilet rooms, to install a curb ramp near the main entrance, and to make additional modifications to the common areas and guest rooms to make them accessible.

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

District of Arizona -- An individual who is deaf complained that a medical plan provider billed for the cost of a sign language interpreter. The provider did have a policy for providing interpreters, but the staff who dealt with the complainant were not aware of the policy. The provider agreed to provide ADA training to current and future employees who have patient contact, and to post a sign in a conspicuous location in its health care centers stating that auxiliary aids and services are available to ensure effective communication for persons who are deaf.

Northern District of Iowa -- A patient who is deaf complained that a medical clinic refused to provide a sign language interpreter for a deaf patient during treatment at the clinic. The medical clinic adopted written policies and procedures to ensure effective communication for deaf patients, including the provision of appropriate auxiliary aids.

Southern District of Mississippi -- An individual with a mobility disability complained that a bank in Mississippi had a built-up curb ramp that protruded into the accessible parking space. The bank replaced the existing curb ramp with one that did not protrude into the space, adjusted the slope of the space, provided van-accessible parking spaces in both the customer parking lot and the employee lot, installed proper signage designating all accessible parking, provided a folding shelf at the front teller's service counter, and made several modifications in the toilet room.

An individual complained that the office of a national real estate agency franchisee was inaccessible. The agency added accessible parking, including a designated a van-accessible parking space, replaced two ramps, created level landings at the top of each ramp, and installed accessible hardware on the doors.

An individual with a mobility impairment complained that a city hall was not accessible to individuals with disabilities. The city installed an elevator and created an accessible entrance where none existed before.

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.

The States of Texas, Maine, Florida, and Maryland currently have accessibility codes certified by the Department of Justice. The State of Washington recently implemented new accessibility requirements that replace the accessibility code certified previously by the Department. Requests for certification from the States of California, Indiana, New Jersey and Utah, and for technical assistance from the State of Michigan and the International Code Council (a model code organization), are pending before the Department. Recent certification-related activity includes --

North Carolina -- The Department received no adverse comments during the 60-day comment period for its March 17, 2005, preliminary certification that the North Carolina Accessibility Code (NCAC) meets or exceeds the new construction and alterations requirements of title III of the Americans with Disabilities Act. The Department held public hearings in Cary, North Carolina, and Washington, D.C., on the preliminary certification.



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 Website, ADA Information Line, and ADA 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 Website also provides information about --


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 34 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 largeprint, 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). 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

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

www.fta.dot.gov/ada

The U.S. Architectural and Transportation Barriers Compliance Board, or Access Board, offers technical assistance to the public on the ADA Accessibility Guidelines.

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

www.access-board.gov

The ADA and IT 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)

www.projectaction.org

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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updated December 29, 2005