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

July-September 2001

This Status Report covers the ADA activities of the Department of Justice during the third quarter (July-September) of 2001. 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
Technical Assistance
Other Sources of ADA Information
How to File Complaints

 

2001, Issue 3

 

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 hundreds 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

Tenth Circuit Declares Title II Damages Suit Against Colorado Unconstitutional ... The U.S. Court of Appeals for the Tenth Circuit ruled in Thompson v. Colorado that private plaintiffs could not bring suit against the State of Colorado challenging the fees that it charges for parking placards issued to persons with disabilities. The district court ordered Colorado to stop collecting the fees. On appeal to the Tenth Circuit the State argued that Congress did not have sufficient constitutional authority in enacting the ADA to abrogate the State's sovereign immunity to suits under title II. The Department of Justice disagreed and intervened on appeal to defend the constitutionality of title II suits against States. The Department argued that title II was appropriate legislation to enforce equal protection rights under the Constitution because it was based on a broad record of unconstitutional conduct by States, because Congress had made express findings of discrimination, and because title II was appropriately tailored to remedy and prevent this discrimination. The Tenth Circuit disagreed, hoding that Congress did not compile a sufficient record of unconstitutional conduct by States to support the ADA's abrogation of State sovereign immunity.

...But Second Circuit Would Permit Damages Suit Against a State if "Ill Will" or "Animus" Could Be Proven -- The U.S. Court of Appeals for the Second Circuit also disagreed with the Department and ruled in Garcia v. S.U.N.Y. Health Sciences of Brooklyn that a medical student with attention deficit disorder and a learning disability could not pursue a private damages claim against the State of New York challenging its failure to modify academic rules to allow him to be readmitted to medical school. The Second Circuit ruled that title II's abrogation of sovereign immunity is constitutional only in cases where "ill will" or "animus" by the State can be proven and not in cases where the only allegation is a failure to make a reasonable accommodation to an individual's disability.

Ninth Circuit Finds Architects Not Responsible for Inaccessible Design -- The U.S. Court of Appeals for the Ninth Circuit decided in Lonberg v. Sanborn Theatres, Inc. that an architect cannot be held liable under the ADA for designing an inaccessible movie theater. It ruled that the title III provision requiring newly constructed facilities to meet the requirements of the ADA Standards for Accessible Design would only apply to an entity that owns, operates, leases, or leases to a movie theater and not the architect. The Department of Justice filed an amicus brief in the Ninth Circuit in favor of architect liability. The plaintiff wheelchair users filed suit against the owner and operator of a newly constructed stadium style theater in Riverside, California, as well as the architectural firm that designed the facility. The suit alleged that the theater did not provide adequate numbers of wheelchair seating locations, fixed companion seats next to wheelchair seating locations, aisle seats with removable armrests, and wheelchair seating locations with lines of sight comparable to those for other members of the general public. The Department has intervened to become a party in this suit and will continue to press its claims against the theater owner and operator.

Tenth Circuit Rules Against Plaintiff but Declares Generally That Defendant Has Burden of Proving That Barrier Removal Is Not Readily Achievable -- The U.S. Court of Appeals for the Tenth Circuit ruled in Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I that once a plaintiff introduces evidence tending to show that removing a barrier would be readily achievable, the defendant has the burden of proving that it is not. The plaintiff in this case is a wheelchair user who was unable to enter a store in Larimer Square in downtown Denver, Colorado, because of a six-inch step from the sidewalk to the entrance. He filed suit under the ADA in the U.S. District Court for the District of Colorado against the store and owner of the building alleging that the failure to remove this barrier violated the ADA. At trial the plaintiff presented detailed evidence on design and cost issues including expert testimony that "warping" the sidewalk to remove the barrier could be done without significant difficulty or expense. Despite this evidence the district court dismissed the case. It ruled that, although the plaintiff did not have to provide detailed drawings or permits, he did have to present evidence that the proposed barrier removal was in fact readily achievable. On appeal to the Tenth Circuit, the Department argued that the case should not have been dismissed because the plaintiff suggested a reasonable method of removing the barrier and showed that barrier removal was generally readily achievable in the circumstances of this particular case. The Tenth Circuit disagreed. It found that the plaintiffs did not provide a precise cost estimate or specific design drawings and therefore ruled that the evidence presented by the plaintiff was not specific enough to show that the proposed barrier removal was readily achievable. It did agree, however, that if the plaintiff had produced enough specific evidence the burden would have been on the defendant to prove thatthe proposed barrier removal was not readily achievable.

 
AAG Boyd Hears Testimony on Barriers to Community Living -- Assistant Attorney General Ralph F. Boyd, Jr., participated in a day-long National Listening Session on Community-Based Alternatives for People with Disabilities sponsored by the Department of Health and Human Services (HHS) to solicit the views of consumers, advocates, and providers on barriers to community living for people with disabilities. The listening session was held to carry out a provision of President Bush's Executive Order 13217 that directs HHS, the Department of Justice, the Social Security Administration, and the Departments of Education and Labor to identify existing Federal policies, practices, laws, and regulations that could be revised to improve the availability of community-based services. In Olmstead v. L.C. the Supreme Court held that the unjustified segregation of people with disabilities through institutionalization can be a form of disability-based discrimination prohibited under title II of the ADA. The National Listening Session added to testimony taken at an earlier national teleconference conducted by HHS.

 

2. New lawsuits

The Department initiated or intervened in the following lawsuits.

Title II

New Actions to Defend ADA's Constitutionality -- The Department intervened in two additional cases in U.S. Courts of Appeals to defend the constitutionality of a title II suit against a State for monetary damages --

Lovell v. Chandler -- (9th Circuit) (challenging exclusion from Hawaii health care program for low-income persons)

Simmons v. Texas Department of Criminal Justice -- (5th Circuit) (challenging denial of participation of prisoner with disability in training program)

In March 2001 the Supreme Court ruled in University of Alabama v. Garrett that suits for damages under title I could not override a State's sovereign immunity because title I was not "appropriate legislation" to enforce equal protetion rights under the Constitution. The Department's briefs in these two new cases emphasized that the Supreme Court specifically limited its ruling in Garrett to suits under title I and that the evidence of unconstitutional discrimination by States assembled by Congress to justify title II was far more extensive. Congress specifically made findings in the text of the ADA that State-sponsored discrimination persisted in areas such as education, voting, institutionalization, and public services. Because of this evidence, the Department argued that it was appropriate for Congress to enact title II to root out present instances of unconstitutional discrimination, to undo the effects of past discrimination, and to prevent future unconstitutional treatment by prohibiting discrimination and promoting integration where reasonable.

 

 
** Cruise Line Consent Decree Bars Discrimination Against Blind Passengers -- Norwegian Cruise Line Ltd. agreed to a consent decree requiring it to allow persons who are blind or who have low vision to travel on its cruise ships under the same terms and conditions as other passengers. The agreement settled a lawsuit brought by the Department of Justice against Norwegian Cruise Lines in the U.S. District Court for the Southern District of Florida. The Department filed suit after complaints from three people who alleged that the cruise line imposed requirements on them because of their blindness. The individuals said they were told they had to have a sighted companion in their cabin, obtain a doctor's note saying they were fit for travel, and sign forms assuming financial liability for shipboard injuries. After the lawsuit, Norwegian changed its policies to allow blind people to travel without special terms or conditions. Under the agreement, Norwegian will not require blind people to travel with or share a cabin with a sighted person, obtain a medical note prior to travel, or assume liability for travel risks, unless the same requirement applies to all passengers. The cruise line also agreed to pay a total of $42,500 in compensation to three complainants and $22,500 in civil penalties to the United States.

 

3. Amicus Briefs

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 I

Chevron U.S.A., Inc. v. Echazabal -- The Department filed an amicus brief in the U.S. Supreme Court urging the Court to uphold an ADA title I regulation issued by the Equal Employmnt Opportunity Commission that permits an employer to deny employment to individuals with disabilities whose performance of a job would pose a direct threat to their own health or safety. Mario Echazabal, who has hepatitis C, worked at a Chevron oil refinery as an employee of various maintenance contractors for more than twenty years. When he applied to work directly for Chevron, he was denied employment on the ground that exposure to the liver-toxic chemicals at the refinery could seriously endanger his health or even be fatal. He sued under title I claiming that Chevron's action violated the ADA. The U.S. District Court for the Central District of California ruled in favor of Chevron but the U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit held that the EEOC regulation allowing the employer to use a direct threat to the employees own health or safety as a defense was inconsistent with the language of the statute, which only mentions direct threat "to others." In response to a request by Chevron for Supreme Court review of the decision, the Department filed an amicus brief arguing that the EEOC regulation is a reasonable interpretation of the statute and that the Supreme Court should accept the case for review in order to reverse the Ninth Circuit opinion.

Title II

Barden v. City of Sacramento -- The Department filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit arguing that the City of Sacramento's sidewalks are covered under title II. The plaintiffs, a group of individuals who are blind or use wheelchairs, filed suit alleging that Sacramento had violated the ADA by failing to install curb ramps at intersections on newly constructed or altered streets and by failing to remove other obstructions (for example, benches, sign posts, and guy wires) that made some existing sidewalks inaccessible. Dismissing part of the plaintiff's lawsuit, the lower court ruled that the mid-block portion of a sidewalk that connects one intersection to another is not a program, service, or activity of the City of Sacramento and therefore is not covered by the ADA. On appeal the Department argued that providing, constructing, and maintaining a system of sidewalks is an important government activity covered by title II. The brief argued that sidewalks are "facilities" covered by the ADA regulations and subject to the ADA's accessibility requirements. The Department further explained that the absence of detailed requirements in the regulations for sidewalks only means that the Federal process for developing such requirements is not complete, not that sidewalks are not covered. The brief notes that existing sidewalks do not necessarily have to be retrofitted, because the regulations make clear that a public entity does not have to take steps that would result in a fundamental alteration of its program or undue financial burden.

Title III

Access Now v. The May Department Stores Company; Access Now v. Carnival Corporation -- The Department filed amicus briefs in the U.S. District Court for the Southern District of Florida objecting to the proposed nationwide class action settlement agreements reached by the private parties in these two cases because they would inappropriately limit the rights of people with disabilities. The settlement agreement in Access Now v. The May Department Stores Company addresses the physical accessibility of store aisles, check-out counters, bathrooms, and fitting rooms at over 350 May-owned department stores nationwide, including those of the Filene's, Hecht's, Foley's, Lord and Taylor, and Robinson's-May chains. In Access Now v. Carnival Corporation, the settlement agreement focuses on the physical accessibility of Carnival's 15 existing cruise ships and new ships that it constructs. The Department objected to these agreements for a number of procedural reasons including their broad class definitions, their lack of an "opt out" provision for class embers, and their expansive language protecting defendants from future claims. Together these provisions would make it difficult or impossible for people with disabilities or the Department to bring future ADA claims challenging barriers and discriminatory policies at May or Carnival, including even those barriers or policies that are not addressed by the proposed agreements.

B. Formal Settlement Agreements

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

Title II

** More Project Civic Access Agreements -- The Department has signed six additional agreements under the Department's Project Civic Access initiative, a wide-ranging effort to ensure that cities, towns, and villages comply with the ADA. Project Civic Access is dedicated to removing barriers to all aspects of civic life, including courthouses, libraries, polling places, police stations, and parks. The new agreements cover --

Warren County, Illinois;
Perry County, Kentucky;
Brookline, Massachusetts;
Springfield, Missouri;
Allendale County, South Carolina;
Butte County, South Dakota; and
Logan, Utah

Forty agreements have been signed to date. They require communities, depending on local circumstances, to --

  • Improve access to programs at city and town halls, police and fire stations, sheriff's departments, courthouses, health care delivery centers, childcare centers, teen and senior activities centers, convention centers, animal shelters, libraries, baseball stadiums, golf course clubhouses, and parks (including ice skating rinks, skateboard rinks, public pools, playgrounds, ball fields and bleachers, and band shells);
  • Alter polling places and provide curbside or absentee balloting;
  • Upgrade 9-1-1 emergency services for people who use TTYs;
  • Install assistive listening systems in legislative chambers, courtrooms, and municipal auditoriums; and
  • Provide delivery systems and time frames for providing auxiliary aids, including sign language interpreters and materials in Brille, large print, or on cassette tapes.

Title III

** St. Luke's Hospital and Health Network, Allentown, Pennsylvania -- The Department entered into a settlement agreement with St. Luke's Hospital and Health Network resolving a complaint alleging discrimination against a patient and her husband, both of whom are deaf and use American Sign Language as their primary means of communication. The patient was brought to St. Luke's Hospital Emergency Department and was eventually diagnosed with meningitis. The complainant charged that there was a lack of effective communication during her emergency room visit and that her requests for an interpreter were never granted. The agreement requires St. Luke's to provide effective communication between patients, companions, family members, and hospital staff, and to perform initial evaluations as well as ongoing assessments to determine when qualified interpreters or other auxiliary aids will be necessary. St. Luke's also agreed to provide TTY's and closed captioning for televisions on a 24-hour a day basis. Because St. Luke's is located in a rural area, it may elect to become a part of a pilot study that employs the use of video interpreting services in order to satisfy the agreement's requirement that necessary interpreters be provided within one hour. St. Luke's also agreed to pay $500 to the complainant.

 
** Minor League Baseball Team Will Make Stadium Accessible -- The Department reached an agreement with West Michigan Baseball Limited Partnership, owner of the Old Kent Park Stadium and the Whitecaps, a single A minor league baseball team, resolving a complaint that the stadium had been built and renovated in violation of the ADA. Under the agreement, the Partnership will increase the number of wheelchair seating locations, ensure that wheelchair seating locations have lines of sight to the playing field even when spectators are standing, improve the accessibility of routes throughout the stadium (e.g., from parking to the entrance and from locker rooms to the dugouts), and improve accessibility in skyboxes. It will also ensure that toilet facilities and clubhouse areas are accessible and that people with disabilities and their companions will have the opportunity to purchase tickets through the same outlets, during the same times, and at the same locations as do all members of the general public. In addition, for the next two years, the stadium owners will provide free transportation on Friday, Saturday, and Sunday games for persons with disabilities and reduce the price of accessible seating areas by $1.50 per ticket for the next three seasons.

Flagstaff Building "B", Flagstaff, Arizona -- The U.S. Attorney's Office for the District of Arizona entered into a series of settlement agreements with the current and former owners and tenants of a commercial building in Flagstaff, Arizona, that contains offices of health care providers. The complaint alleged that certain offices on the second floor were not accessible by the building elevator. The Building was built prior to the effective date of the ADA, and at tha time all the offices on the second floor of the building were accessible by the elevator. After the effective date, the second floor of the building was allegedly altered so that certain offices were only reachable by climbing stairs. The owners agreed to modify the second floor of the building so that all offices are accessible by elevator, and modify the front entrance and parking lot so that they comply with the ADA. They also agreed to pay the four complainants a total of $18,000 in damages, and the United States a civil penalty of $2,000.

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 II

Title III


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 450 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 entities and individuals with rights and responsibilities under the law. The Department encourages voluntary compliance by providing education and technical assistance to businesses, governments, and members of the general public through a variety of means. 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 Home Page

An ADA home page is operated by the Department on the Internet's World Wide Web (www.ada.gov). The home page provides information about --

  • the toll-free ADA Information Line,

  • the Department's ADA enforcement activities,

  • the ADA technical assistance program,

  • certification of State and local building codes,

  • proposed changes in ADA regulations and requirements, and

  • the ADA mediation program.

The home page also provides direct access to --

  • ADA regulations and technical assistance materials (which may be viewed online or downloaded for later use),

  • Freedom of Information Act (FOIA) ADA materials, including technical assistance letters, and

  • links to the Department's press releases and Internet home pages of other Federal agencies that contain ADA information.

 


** New CD-ROM Provides Quick Access to ADA Information -- The Department released a new ADA Technical Assistance CD-ROM as part of President Bush's New Freedom Initiative. This free CD-ROM contains the Department's ADA documents, including regulations, the ADA Standards for Accessible Design, status reports, and technical assistance publications. Designed for use on any desktop computer or laptop with a CD-ROM drive, it makes viewing documents and identifying appropriate ADA information easier and more efficient, particularly for those lacking high-speed Internet access. Users can access the information in the same manner as a website, navigating to various publications from a home page on the CD-ROM. Documents on the CD-ROM are provided in a variety of formats, including HTML, WordPerfect, and text (ASCII), to enable people with disabilities and others to gain easy access, translate materials to Braille, or use screen readers. Many documents are also provided in Acrobat PDF format so that they appear as they do in print and permit the publication to be reprinted by personal computers. The CD-ROM will be available from the Section's ADA Information Line or by ordering online through the ADA Home Page.


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 listen to recorded information and to order publications, is available 24 hours a day, seven days a week. ADA specialists are available on Monday, Tuesday, Wednesday, and Friday from 10:00 a.m. until 6:00 p.m. and on Thursday from 1:00 p.m. until 6:00 p.m. (Eastern Time. Spanish 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 32 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, NW
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, NW
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 at www.usdoj.gov/crt/foia/records.htm. A link to search or visit this website is provided from the ADA Home Page.

 

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 technicalassistance 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/cib/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/transit_data_info/ada/14524_ENG_HTML.htm

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 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)
202-347-3066 (voice)
202-347-7385 (TTY)

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 workplaceaccommodation
800-526-7234 (voice & 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 governmentor 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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October 09, 2008