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


October-December 2000


This Status Report covers the ADA activities of the Department of Justice during the fourth quarter (October-December) of 2000. This report, previous status reports, and a wide range of other ADA information are available through the Department’s on the World Wide Web (see page 13). The symbol (**) indicates that the document is available on the ADA Home Page.


INSIDE...

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



2000, 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

Jury Requires Obstetrical Practice to Pay $60,000 in Interpreter Case -- A jury of the U.S. District Court for the District of Maine in U.S. v.York Womens' Care Associates awarded $60,000 in damages to a deaf individual who was denied a sign language interpreter for medical consultations involving his wife's high-risk pregnancy. Because of the lack of an interpreter, the couple, both of whom are deaf, was unable during office visits to fully communicate with the medical practice about dietary concerns and other complications caused by the wife's gestational diabetes. The patient herself did not receive a damages award because the jury found that she had waived her request for an interpreter. The U.S. Attorney will ask the court to require the practice to pay civil penalties and to enter an order preventing future violations.

Federal Judge Holds Foreign Cruise Ship Covered by ADA -- The U.S. District Court for the Northern District of California in Walker v. Carnival Cruise Lines ruled that the ADA covers cruise vessels when they are in the ports or other internal waters of the United States, even if they are registered in a foreign country. The plaintiffs in this case were two wheelchair users who had booked cruises on the "Holiday," a ship registered in the Bahamas, originating in Los Angeles with stops at Catalina Island, California, and Ensenada, Mexico. They alleged that the defendants had failed to remove barriers in their reserved rooms and throughout the ship's facilities even though it was readily achievable to do so. The Department argued in an amicus brief that title III of the ADA applies to cruise ships because they are both "places of public accommodation" and "specified public transportation services" operated by private entities, and that cruise ships are required to comply with title III's "barrier removal" requirement despite the absence of applicable design standards for new construction and alterations. In addition, the Department argued that foreign-flag cruise ships (virtually all cruise ships serving U.S. ports sail under a foreign flag) are subject to the requirements of the ADA when they do business in U.S. ports and internal waters. As urged by the Department, the court will allow consideration of the plaintiffs' barrier removal claims to continue.

Eighth Circuit Clarifies "Standing" Requirements for Title III Suits -- The U.S. Court of Appeals for the Eighth Circuit ruled in Steger v. Franco that two plaintiffs who are wheelchair users did not have standing to bring a suit challenging the accessibility of a Clayton, Missouri, office building containing numerous places of public accommodation, because they had not visited the building before filing the lawsuit and had not alleged that they intended to do so in the near future. The court disagreed with an amicus brief filed by the Department that argued that, in order to have standing, plaintiffs did not have to first actually try to use the facility as long as they reasonably believed that it was not accessible and that they would likely use the facility if the ADA violations were corrected. However, consistent with the Department's brief, the court held that another plaintiff, a blind individual who had visited the building before the complaint, had standing to challenge all barriers in the building that would affect blind individuals, even those he had not encountered personally.


2. New lawsuits

The Department initiated or intervened in the following lawsuits.

Title III
U.S. v. Hoyts Cinemas Corporation; U.S. v. National Amusements, Inc. -- The U.S. Attorney for the District of Massachusetts filed lawsuits against two national movie theater chains, Hoyts Cinemas and National Amusements, for allegedly violating the ADA by designing, constructing, and operating stadium-style movie theaters with wheelchair seating locations that are not an integral part of the fixed stadium-style seating, that fail to provide comparable lines of sight, and that deny wheelchair users an equal opportunity to enjoy the stadium-style theater experience. At most Hoyts and National Amusements theaters the wheelchair seating spaces are located on the sloped floor in the front few rows of the theater immediately in front of the screen, while nearly all of the other patrons are seated in the stadium seats on tiered risers that give them an unobstructed view of the screen with far better sight lines. The lawsuits ask the court to order the defendants to correct the theaters already built, to agree to design and construct all future theaters in compliance with the requirements of the ADA, and to pay civil penalties.

3. 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 I and II

U.S. v. Town of New Chicago, Indiana -- New Chicago, Indiana, agreed to pay $42,500 in damages and back pay to an employee who allegedly suffered retaliation by the town after she filed a discrimination charge with the Equal Employment Opportunity Commission. The Department of Justice filed suit on behalf of the employee, a former dispatcher in the police department, who alleged in her EEOC charge that she had been discriminated against by the town in the administration of its employee group health insurance plan. Following the filing of the charge, the town allegedly took a wide range of adverse actions in retaliation, including refusing to speak to her about alleged deficiencies in her work performance, subjecting her work to unreasonable scrutiny, informing the police commission about alleged deficiencies in her work performance, engaging in reprimands and suspensions, and filing formal charges against her that ultimately resulted in her termination from employment. In addition to damages and back pay for the complainant, the consent decree prohibits the town from engaging in discrimination or retaliation in the future, requires training on the ADA for all town officials and employees, and requires the town to post a notice on town property describing ADA rights and remedies.

**Colorado City Agrees to Accessible Bus Service in Justice Department's First Public Transit Case - Steamboat Springs, Colorado, will take immediate steps to ensure accessible public bus service under an agreement reached with the Department of Justice. The consent decree resolves the case of Richardson v. City of Steamboat Springs, which was originally brought by two wheelchair users who claimed that they were denied equal access to the public transit system in Steamboat Springs. The Department of Justice intervened and alleged that the city violated the ADA by purchasing inaccessible used buses without first making the required good faith efforts to purchase accessible buses, by failing to repair inoperable wheelchair lifts and to provide alternative transportation when wheelchair lifts were inoperable, and by not adequately training bus drivers in the operation of wheelchair lifts. Under the consent decree, Steamboat Springs will -
  • Lease two accessible vans or minibuses for use on the city's fixed route system to replace two inaccessible vans;
  • Use other inaccessible vans only on an emergency basis until they are permanently replaced through a recent purchase of new accessible vans;
  • Implement a wheelchair lift maintenance program and train city bus employees on proper maintenance and operation of wheelchairs lifts;
  • Ensure by August 2002 that all vehicles in its active inventory of vehicles are readily accessible;
  • Upgrade record-keeping policies and procedures;
  • Adopt procedures for providing alternative means of transportation when wheelchair lifts are inoperable; and
  • Compensate the two aggrieved individuals in the amount of $12,250.
Title III

** U.S. v. Neurological Surgery, Inc. -- Neurological Surgery, Inc. (NSI), a group of privately practicing neurosurgeons in Tulsa, Oklahoma, agreed to a pay $40,000 in damages and $10,000as a civil penalty to settle a lawsuit brought by the Department alleging that NSI violated the ADA when one of its neurosurgeons refused to provide medical services to an individual because of his HIV disease. The complainant, who had a back condition, was originally referred to the neurosurgeon for possible surgery. He alleged that upon learning of his HIV disease, the surgeon refused to provide him with any further services because of the surgeon's policy of refusing elective surgery to individuals with HIV disease. Under the decree, NSI must treat persons who have HIV or AIDS in a nondiscriminatory manner and post a notice of nondiscrimination against persons with HIV disease or AIDS. In addition, the surgeon who was alleged to have discriminated must attend training concerning the medical treatment of persons with HIV.

4. 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

Kapche v. City of San Antonio -- The Department filed an amicus brief arguing that blanket policies excluding people with insulin-treated diabetes violate the ADA. It asked the U.S. Court of Appeals for the Fifth Circuit to overrule an earlier decision holding that individuals with insulin-treated diabetes were automatically ineligible for jobs involving driving because, in the court's view, they presented a serious risk of harm to themselves and others. In Kapche the plaintiff was rejected for a police officer position because of his insulin-treated diabetes. The Department argued in its amicus brief that this blanket policy violated the ADA, because the ADA requires a fact-based, present assessment of both an applicant's qualifications for the job and of the employer's qualification standards that screen out individuals with disabilities. The brief noted that the U.S. Department of Transportation has completed a study concluding that it is feasible to evaluate on an individualized basis applicants for commercial motor vehicle licenses who have insulin-treated diabetes. It also informed the court that Federal law enforcement agencies no longer apply a blanket exclusion of applicants with insulin-treated diabetes.

House v. City of Jackson -- The Department filed an amicus brief in the U.S. District Court for the Western District of Tennessee questioning the validity of a Tennessee statute that prohibits any person who has "any apparent mental disorder" from being a police officer. This law, which does not allow for an individualized assessment of an individual's ability to perform the essential functions of the job, automatically bars any person with any disorder, even the most minor, listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) of the American Psychiatric Association. The Department earlier intervened in a lawsuit challenging this same requirement as applied to public safety dispatchers in Nored v. Weakely County 9-1-1 Emergency Communications District.

Title II

Crocker v. Lewiston Police Department -- The Department filed an amicus brief in the U.S. District Court for the District of Maine arguing that the ADA covers all State and local government activities, including police arrest procedures. The suit was brought by a deaf individual who alleged that the failure of the Lewiston police to provide a sign language interpreter denied him the ability to communicate effectively during his arrest and detention.

Title III
Justice Department Supports Casey Martin in Supreme Court -- The Department filed an amicus brief in the U.S. Supreme Court in support of Casey Martin, a professional golfer from Eugene, Oregon, with a rare disability, Klippel-Trenaunay-Weber Syndrome, that substantially limits his ability to walk. Martin challenged the PGA Tours refusal to waive its no-carts rule which bars him from using a cart in its golf tournaments. The PGA argues that its tournament rules are not covered by title III because the playing area of the golf course "between the ropes" is only open to competitors, not to the general public, and is not a "place of public accommodation." It also argues that allowing Martin to use a cart would "fundamentally alter" the competition and therefore is not required by the ADA. The U.S. Court of Appeals for the Ninth Circuit agreed with an amicus brief filed by the Department and ruled in favor of Martin. It held that the PGA's tournament rules are covered by title III because the playing areas are part of a place of public accommodation. It also concluded that permitting Martin to use a cart would not fundamentally alter the competition because, in Martin's particular case, it would not give him an unfair advantage. The Ninth Circuit found that the purpose of the rule was to inject fatigue into the game, but that Martin experiences more fatigue than the other golfers, even if he uses a cart, and would not gain a competitive advantage. The Departments amicus brief argues that facilities or parts of facilities with restricted access or selective admissions criteria can still be places of public accommodation under title III (as are, for example, private schools) and urges the Supreme Court to uphold the ruling requiring the PGA to allow Martin to use a cart.

Spector v. Norwegian Cruise Lines --The Department argued in an amicus brief filed in the U.S. District Court for the Southern District of Texas that foreign-flag cruise ships operating in U.S. waters must comply with the ADA's requirements for readily achievable barrier removal. Plaintiffs are individuals with mobility impairments who recently took a cruise aboard a Norwegian Cruise Lines ship but allegedly had to spend most of their time in inaccessible rooms without access to the ship's many amenities and services because of ADA violations by the cruise line.

Williams v. Hermanson Family Limited Partnership I -- The Department explained the proper burden of proof for barrier removal claims in an amicus brief filed in the U.S. Court of Appeals for the Tenth Circuit. The plaintiff in Williams v. Hermanson Family Limited PartnershipI 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 court dismissed the case. It ruled that, although the plaintiff does not have to provide detailed drawings or permits, he does have to present evidence that the proposed barrier removal is in fact readily achievable. This evidence might include specific evidence on engineering requirements, the impact on adjacent businesses, and the ability to obtain necessary governmental permits. On appeal to the Tenth Circuit, the Department argued in its amicus brief that the burden placed by the district court on the plaintiff was too heavy. The brief asserted that the case should not have been dismissed because the plaintiff met the appropriate burden of proof - by suggesting a reasonable method of removing the barrier and showing that barrier removal was generally readily achievable in the circumstances of the case. The brief also stated that once the plaintiff meets this burden, the defendant, in order to avoid liability, must prove that the proposed means of removing the barrier would not in fact be readily achievable.

Zamora-Quesada v. Health Texas Medical Group of San Antonio -- The Department filed an amicus brief in the U.S. District Court for the Western District of Texas arguing that title III does not require a plaintiff to show that disability was the only reason for a defendant's discriminatory conduct. The lawsuit alleged that a group of Texas HMO's and medical service providers engaged in administrative practices that denied people with disabilities an equal opportunity to receive and benefit from their services. Agreeing with the Department's brief, the court agreed to revise its instructions to the jury to state that the plaintiffs were only required to prove that the discrimination, if any, was a "motivating factor" for the defendant's conduct, rather than the sole reason for any discrimination. Following this ruling, the parties reached an agreement in which defendants paid plaintiffs an undisclosed amount to resolve the case.

B. Formal Settlement Agreements

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

Title II

Montgomery County Department of Correction, Maryland -- The Department reached a comprehensive agreement with the Montgomery County Department of Correction resolving a complaint that the agency failed to ensure effective communication with an inmate who is deaf. The agreement ensures effective communication for inmates, visitors, and other members of the public. It guarantees sign language interpreters where necessary in a wide range of settings such as initial intake and processing, regularly scheduled health care appointments and programs, educational classes and activities, parole board hearings, disciplinary hearings, and religious services. The agreement also requires the Department of Correction to provide TTY's in each visiting area, in housing units, and in other areas to the extent that pay telephones are available to inmates.

** Five New Project Civic Access Agreements - The Department has signed five 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 agreements are with -

Dodge City, Kansas;
Elkin, North Carolina;
Cambridge, Ohio;
Ashland, Oregon; and
Warminster Township, Pennsylvania

Twenty-two agreements have been signed in the past six months. They require communities, depending on local circumstances, to --

Title III
West Michigan E.N.T. and Hearing Center, Muskegon, Michigan -- The Department reached an agreement with the West Michigan E.N.T. and Hearing Center resolving a complaint that the Center failed to provide effective communication for a patient who is deaf. The Center agreed to comply with the auxiliary aids requirements of the ADA including the provision of qualified sign language interpreters when necessary to ensure effective communication. The Center will also train its employees on ADA requirements and post a notice to patients notifying them of the Center's commitment to meeting its ADA obligations.

Sunflower Shopping Center, Poplarville, Mississippi -- Under an agreement with the U.S. Attorney's Office for the Southern District of Mississippi, the owner of Sunflower Shopping Center in Poplarville, which houses a number of retail outlets, including a restaurant, grocery store, pharmacy, electronics store, and auto parts store, agreed to improve the accessibility of parking and sidewalks. The owner agreed to provide accessible parking spaces with proper dimensions and signage and accessible curb ramps. The owner will also remove two improperly constructed sidewalk ramps and reconstruct a portion of the sidewalk so that it will comply with the ADA requirements for accessible routes.

Dr. Delmar Gheen, Canton, Ohio -- To resolve a complaint filed with the Department by a deaf patient, an Ohio pediatrician agreed to provide appropriate auxiliary aids and services, including qualified sign language interpreters, when necessary to ensure effective communication. The doctor also agreed to pay the complainant $1,500.

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
A Georgia municipality removed architectural barriers in the city hall and the community center and made structural modifications to provide accessible entrances, accessible parking spaces, and accessible restrooms.

A Mississippi city agreed that, while renovations are being made to remove barriers in the city hall, curb side service will be provided to individuals who are unable to gain access to the tax clerk's office, city utilities, and the police department; and city board meetings will be held in an accessible location.

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 80 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, administering an ADA technical assistance grant program, and coordinating ADA technical assistance governmentwide.

Department Distributes Technical Assistance for Building Construction, Museums --The Department sent training materials on the ADA to department heads of sixty-five schools of building construction nationwide. The materials, entitled ADAPTING: The Construction Industry and the ADA, were developed by the Home Builders Institute of the National Association of Home Builders under a Department of Justice ADA technical assistance grant. The Department also sent a new technical assistance publication entitled Everyone's Welcome: The Americans With Disabilities Act and Museums to nearly 500 small museums nationwide. The publication was developed by the American Association of Museums under a Department of Justice ADA technical assistance grant.

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 home page also provides direct access to --

Joint Federal, State Guidance Provided to Convenience Stores -- The Department of Justice and the National Association of Attorneys General participated in a joint technical assistance initiative to promote compliance by convenience stores with the ADA and State accessibility laws. Advisory letters, signed by Assistant Attorney General Bill Lann Lee and the attorneys general of the 23 participating states, were mailed to trade associations for convenience stores urging them to evaluate their compliance with Federal and state accessibility standards.

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.
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 66738
Washington, D.C. 20035-6738

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

Freedom of Information/Privacy Act Branch
Administrative Management Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 65310
Washington, D.C. 20035-5310
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.

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 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/ad

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.

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

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.

Title 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 --

Disability Rights Section
Civil Rights Division
U.S. Department of Justice
Post Office Box 66738
Washington, D.C. 20035-6738

If you wish the complaint to be referred 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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February 13, 2009