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 2010

This Status Report covers the ADA activities of the Department of Justice during the second quarter (April - June) of 2010. This report, previous status reports, and a wide range of other ADA information, including the consent decrees and formal settlement agreements mentioned in this report, are available through the Department's ADA Home Page at www.ada.gov.


INSIDE...

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

2010, 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 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. New Lawsuits

Title II

Defending the constitutionality of the ADA -- When a party in a lawsuit challenges any provision of a Federal law as unconstitutional, the Department is permitted to intervene to defend the law's constitutionality. During this quarter, the Department intervened in two cases to defend the constitutionality of private title II lawsuits against State claims of immunity under the 11th Amendment.

Hale v. King (Fifth Circuit) -- a lawsuit by a former inmate at a state correctional institution in Mississippi claiming he was denied access to certain facilities and programs based on his medical and psychiatric classifications.

Disability Rights New Jersey, Inc. v. Velez (District of New Jersey) -- a lawsuit alleging that New Jersey has failed to implement its plan for transitioning individuals with developmental disabilities from institutional settings to community-based settings.

2. Decisions

Title III

Arizona v. Harkins Amusement Enterprises, Inc. -- On April 30, 2010, the U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. District Court for the District of Arizona was in error when it dismissed a lawsuit by the State of Arizona and two individuals (each representing a separate class - one of individuals who are deaf or hard of hearing, and one of individuals who are blind or have visual impairments) against a movie theater chain alleging that it violated the ADA by failing to exhibit movies with captions and video description. The Department filed an amicus brief in this appeal in February 2009 arguing that closed captions and video description are auxiliary aids that permit individuals with sensory disabilities to enjoy a movie, and that the district court was wrong in concluding that these auxiliary aids would fundamentally alter the movie theaters' services.

3. Amicus Briefs/Statements of Interest

The Department files briefs in selected ADA cases in which it is not a party in order to guide courts in interpreting the ADA.

Title II

American Ass'n of People with Disabilities v. Holland -- On June 11, 2010, the Department filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit in support of plaintiffs' petition for rehearing by the panel or the full court. This lawsuit by registered voters who have visual and manual disabilities seeks to require Duval County, Florida, to acquire voting machines that permit them to vote unassisted. In its brief, the Department argued that the panel or the full court should reconsider the panel's ruling, because the panel misconstrued the relevant Supreme Court precedent, Sandoval v. Alexander, when it ruled that the plaintiffs do not have the right to file a lawsuit to enforce specific language in the Department's Title II regulations that is not spelled out explicitly in the statute.

Miller v. Smith -- On June 21, 2010, the Department filed an amicus brief in the U.S. District Court for the Southern District of Georgia in a lawsuit filed by a state prisoner who has paraplegia who alleges that he has been incarcerated in inaccessible facilities and denied the opportunity to participate in programs at two facilities of the Georgia Department of Corrections in violation of the ADA. The Department's brief explains the obligations of correctional officials to house inmates with mobility disabilities in accessible cells, provide inmates with disabilities access to all prison programs, activities, and services, and provide disability-related medical care, assistance, equipment, and supplies.

Department Files Briefs to Enforce Olmstead Decision -- The Department has launched an aggressive effort to enforce the Supreme Court decision in Olmstead v. L.C., a 1999 ruling recognizing that the unjustified isolation of individuals in institutional settings is a form of discrimination under the ADA. The Olmstead decision has often been called the Brown v. Board of Education of the disability rights movement. In June 2009, President Obama directed Federal Agencies to redouble enforcement efforts. During this quarter, the Department filed briefs in cases in Illinois, Florida, and California.

On May 24, 2010, the Department filed a Statement of Interest in Williams v. Quinn, a case pending in the U.S. District Court for the Northern District of Illinois, challenging Illinois' reliance on large institutions to provide long-term care services for individuals with mental illnesses and its failure to offer services in community-based settings. The Department urged the court to give preliminary approval of a proposed consent decree negotiated by the parties to resolve this lawsuit. On May 27, 2010, the court gave preliminary approval of the proposed decree. As in all class action cases, a fairness hearing will now be scheduled to give interested parties an opportunity to comment on the decree.

On May 24, 2010, the Department filed a Statement of Interest in Haddad v. Arnold, a case pending in the U.S. District Court for the Middle District of Florida, challenging Florida's requirement that a Medicaid-eligible woman with spinal cord injuries must enter a nursing home for sixty days as a prerequisite to receiving community-based services. The Department argued that the woman is likely to win the lawsuit and should be provided with in-home services while the case is pending. On July 9, 2010, the federal court in Jacksonville issued a preliminary injunction requiring the state to provide in-home services to Ms. Haddad pending a final decision in this case.

On June 28, the Department filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the plaintiffs in Cota v. Maxwell-Jolly, a case against the California Department of Health Care Services. The plaintiffs are elderly individuals and adults with physical and mental disabilities who currently receive services from California's Adult Day Health Care program (ADHC), which is offered through the state's Medicaid program. In response to the state's budget crisis, the California legislature changed the way eligibility for ADHC is determined. Under the new law, the plaintiffs and several thousand other ADHC recipients will lose community-based services and will have to enter institutions to continue receiving needed services. The Department argued that the plaintiffs are likely to win the lawsuit and should not be denied services while the case is pending.

Title III

Equal Rights Center, et al. v. Abercrombie & Fitch Co. -- On July 6, 2010, the Department filed a Statement of Interest in the U.S. District Court for the District of Maryland in a private lawsuit alleging that Abercrombie & Fitch and Hollister clothing stores nationwide have inaccessible main entrances, inaccessible service counters, and inaccessible interior paths of travel. The Department argued that the defendants' motion to dismiss the lawsuit should be denied because the plaintiffs meet the legal tests for establishing their standing to pursue their ADA claims.

B. Formal Settlement Agreements

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

Title II

Gretna, Virginia -- On June 28, 2010, the Town of Gretna, Virginia, entered into a settlement agreement with the Department resolving a complaint from a woman who wanted to sign up with a local non-profit agency to provide foster care in her home for two adults with intellectual disabilities. Her application for a special use permit was denied after a hearing at which townspeople expressed unfounded concerns about the people she would be caring for, but was subsequently granted after the Department became involved in the matter. Under the Agreement, the town will adopt nondiscrimination policies and practices with respect to land use decisions and will provide ADA training for town officials. The town also agreed to pay the complainant $60,000 in compensatory damages.

Department Signs Additional Project Civic Access Agreements -- The Department signed four new agreements with local government entities under Project Civic Access (PCA), the Department's wide ranging initiative to work cooperatively with local governments to ensure that people with disabilities have an equal opportunity to participate in civic life, a fundamental part of American society. More than 175 agreements have been reached with communities small and large throughout the United States. PCA reviews have been conducted in all 50 States, as well as Puerto Rico and the District of Columbia, helping to improve the lives and broaden opportunities for more than three million individuals with disabilities. During this quarter, new agreements were signed with –

Project Civic Access was initiated to ensure that people with disabilities have an equal opportunity to participate in civic life. To carry out this project, Department investigators, attorneys, and architects survey State and local government facilities and programs across the country to identify modifications needed to comply with ADA requirements. Depending on the circumstances in each community, the agreements address specific areas where access can be improved, such as town halls and other government offices, places where public meetings are held, police and fire stations, community centers, local parks and recreational facilities, emergency 911 services, government websites, and polling places.

Title III

Stoneridge Germantown Falls Apartments, Memphis, Tennessee -- On April 6, 2010, Northland Germantown, LLC, of Memphis, Tennessee, entered into a settlement agreement with the U.S. Attorney's Office for the Western District of Tennessee resolving an ADA complaint alleging that the company had failed to remove architectural barriers at the leasing office of the Stoneridge Germantown Falls Apartments. The barriers included inaccessible parking, an inaccessible route from the parking lot to the entrance, an inaccessible entry, an inaccessible route from the leasing office to the site's swimming pool, inaccessible men's and women's restrooms, and an inaccessible after hours drop box. The agreement requires that all of these barriers be removed.

Suisun Marsh, California -- On June 6, 2010, the Suisun Marsh Natural History Association, which owns and operates the Suisun Marsh Wildlife Center, a wetlands natural habitat preservation park in Solano County, California, entered into a settlement with the U.S. Attorney's Office for the Eastern District of California resolving a complaint from an individual who was asked to leave the wildlife center because she was accompanied by her service animal. Under the agreement, the operators of the center will adopt a policy ensuring equal access to the park and facilities for people with disabilities who use service animals and will publish the policy on its website. In addition, the center will conduct a free animal education program for the complainant's grandchild's school group and offer three additional no-fee educational programs for children or low-income people with disabilities.

C. Other Settlements

The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation 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 II

An individual complained that a West Virginia municipal football stadium was inaccessible for people with mobility disabilities. The municipality agreed to install nine accessible spaces in the parking lot, including two van accessible spaces; provide an accessible route from the parking lot to the stadium; provide 101 wheelchair accessible seating areas, with companion seats; lower a concession stand service counter; and provide an accessible public telephone. It also agreed to provide two accessible toilet stalls in the stadium's south side men's and women's toilet rooms, relocate paper towel and soap dispensers, lower a lavatory and insulate its drain pipes, and mount braille signage identifying the accessible toilet rooms.

An individual with a mobility disability alleged that an Indiana municipality moved the accessible parking space at its community center to an inconvenient location so it would serve both the community center and the adjoining baseball field. The municipality installed a new van accessible space in front of the community center and added flared sides to the curb ramp leading to the entrance.

An individual with multiple physical disabilities who uses a wheelchair complained that a Nebraska village failed to provide an accessible trash pickup receptacle. The village placed a trash receptacle on an accessible route close to the complainant's house.

An individual with a disability alleged that police officers in a California municipality removed him from a public park because he was accompanied by his service animal. The police department agreed to adopt a service animal policy, post the policy in public, train its employees on service animal issues, and provide information to residents on how to file ADA complaints.

An individual complained that a Florida state agency denied him the opportunity to serve as a guardian ad litem because he is blind. The agency agreed to adopt a nondiscrimination policy stating that they will not deny individuals an opportunity to serve as guardians ad litem based solely on their disability, designate an ADA coordinator, train staff about the policy, and post signage regarding the policy.

An individual with mobility disabilities complained that a municipal farmer's market in Louisiana lacked adequate accessible parking. The city agreed to provide additional accessible parking spaces on the shortest accessible route to the market.

Title III

An individual with cerebral palsy alleged that employees of a California bar denied him access because they mistakenly believed he was intoxicated and would not accept his explanation that his impaired speech and movements were caused by his disability. The bar agreed to adopt a nondiscrimination policy, train staff about the policy, post a notice of the policy, and pay the complainant $500.

An individual who uses a wheelchair complained that a Massachusetts restaurant was inaccessible for patrons with disabilities. The owners of the restaurant agreed to provide signage at the accessible parking spaces; remove an obstruction from the van accessible space; modify a protruding object in the entry foyer; insulate lavatory drain pipes and install accessible door hardware and accessible mirrors in the toilet rooms; and install braille signage at each toilet room door.

A parent whose daughter has a mobility disability alleged that a California hotel refused to reserve and hold for her the room adjoining the accessible room her daughter would be using. The hotel has implemented a room rental policy whereby individuals with disabilities are given priority when reserving and renting accessible rooms and adjoining rooms.

An individual who has multiple sclerosis alleged that a restaurant in Oklahoma refused to serve her because she was accompanied by her service animal. The restaurant agreed to adopt a service animal policy, post signs welcoming service animals, train its employees on the policy, and pay the complainant $100.

An individual who uses a wheelchair complained that a New Jersey restaurant's entrance was inaccessible. The restaurant constructed a ramp to the entrance, installed an interior lift to provide access to the dining room waiting area, removed minor barriers in the toilet rooms, and lowered a salad bar to allow self-service by people using wheelchairs.

A disability advocate complained that an Alabama marina lacked an adequate number of accessible parking spaces in the two lots serving the facility. The marina agreed to install one van accessible and four standard accessible parking spaces in its public parking lot and one van accessible and three standard accessible spaces in its tenant parking lot.

An individual with a mobility disability complained that a Pennsylvania restaurant lacked an accessible parking space and appropriate signage in its parking lot. The restaurant installed a van accessible space and signage indicating that the space is reserved for individuals with disabilities.

An individual who has epilepsy alleged that a bar in California refused to serve her because she was accompanied by a service animal. The bar agreed to adopt a service animal policy, post signage welcoming service animals, and train its employees on service animal issues.

An individual who uses a wheelchair because of a neurological disability complained that a New Jersey hotel had no accessible rooms with roll-in showers. The hotel owners will provide five accessible guest rooms, including one with a roll-in shower, and an additional four guest rooms accessible for people who are deaf or hard of hearing. The hotel will also make minor modifications to the parking, lobby, restaurant, pool, bar area, and accessible routes throughout the facility.

An individual who uses a wheelchair alleged that a North Carolina campground was inaccessible to people with mobility disabilities. The campground agreed to provide an accessible route to all recreational and entertainment areas; provide handrails on the ramp leading to the entrance of a retail store on the premises; install a van accessible parking space in the store's parking lot; remove various barriers to access at all toilet rooms and bathing facilities.; and install accessible door hardware at all entrance doors.

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

Northern District of California -- An individual with a speech disability alleged that a national retailer that sells computers to the public through its website refused to modify its return policy to accommodate his disability. The complainant, who uses a speech synthesizer, tried repeatedly to make arrangements by telephone for returning a defective product, as required by company policy. Even though the sales staff could not understand his speech, they would not allow him to make the arrangements by email. The company has modified its policy and now permits return arrangements to be made by email, online chat, or telephone.

District of New Hampshire -- A individual who is deaf complained that a private hospital failed to provide interpreter services during an emergency room visit, which placed the burden on the patient's hard-of-hearing spouse to attempt to serve as an interpreter. The hospital agreed to institute a comprehensive program for providing auxiliary aids and services, for both scheduled and unscheduled visits, when needed by patients who are deaf or hard of hearing.

District of the Virgin Islands -- A local government department agreed to provide access to its programs by making the parking, the routes from the parking lots to the entrance, the waiting areas and other public areas, the employee work areas, and the restrooms accessible.

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. 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. Activities include providing direct technical assistance and guidance to the public through the ADA Website and the ADA Information Line; developing and disseminating technical assistance materials to the public; and undertaking outreach initiatives.

ADA Website

The Department’s ADA Website (www.ada.gov) provides direct access to the Department’s publications, briefs, and settlement agreements, and other information about its enforcement, mediation, technical assistance, and certification programs, including proposed changes in ADA regulations and requirements, links to ADA press releases, and links to other Federal agencies’ websites that contain ADA information.

In addition, the website provides access to --

♦  electronic versions of the ADA Standards for Accessible Design, including illustrations and hyperlinked cross-references;

♦  the ADA Business Connection, with links to materials of particular interest to businesses;

♦  Reaching Out to Customers With Disabilities, a web-based, interactive online course that explains the requirements of title III;

♦  the ADA Video Gallery, with links to accessible streaming videos about the ADA; and

♦  online ordering forms for the ADA Technical Assistance CD-ROM and selected videos.

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, is available 24 hours a day, seven days a week. ADA specialists, who can assist callers in understanding how the ADA applies to their situation, 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 get answers to technical questions, obtain general ADA information, order free ADA materials, or ask about filing a complaint, please call:

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

ADA Publications and Documents

Copies of the Department’s ADA regulations and technical assistance publications can be obtained by calling the ADA Information Line, visiting the ADA Website, 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 people with disabilities. Some publications are available in foreign languages.

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

Spanish language documents can be accessed through the ADA Website (www.ada.gov/publicat_spanish.htm).

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/PA Branch, NALC Room 311
Washington, D.C. 20530
Fax: 202-514-6195

Currently, the FOIA/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 FOIA/PA Branch also provides internet access to ADA materials at www.usdoj.gov/crt/foia/crt.htm. Links to search or visit this website are provided from the ADA Website.

IV. 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 provides information about the transportation provisions of title II of the ADA.

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

www.fta.dot.gov/ada

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 DBTAC: ADA 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.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)
877-781-9403 (TTY)

www.jan.wvu.edu

V. 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 updated: May 10, 2011