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

 Department of Justice seal

 

Enforcing the ADA:

A Status Report from the Department of Justice

October - December 2009

This Status Report covers the ADA activities of the Department of Justice during the fourth quarter (October - December) of 2009. 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 Departmentís ADA Website at www.ada.gov.


INSIDE...

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

2009, 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 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. Decisions

Title III

Ault v. Walt Disney World Co. -- On October 6, 2009, the U. S. District Court for the Middle District of Florida vacated its prior order conditionally certifying a class and a proposed settlement agreement in this ADA lawsuit involving the use of Segways® at Disney resorts nationwide. The proposed settlement would have permitted Disney to continue banning Segways® (and other two-wheel motorized devices) from all Disney resorts and would have required the company to make Disney-owned four-wheel electric stand-up vehicles (ESVs) available for rent at $45.00 per day. The Department of Justice, 23 state attorneys general, and over 100 individuals and disability rights organizations had participated in the case as amici curiae to challenge the fairness of the proposed settlement. In the October 6th opinion, the court held that the private plaintiffs had failed to show that they represented the interests of all people affected by the Disney policy and therefore the case was not appropriate for review by the court. On November 5, 2009, the court denied plaintiffs’ motion for reconsideration of this dismissal order.

2. New Lawsuits

Guttman v. Khalsa -- On December 4, 2009, the Department filed a brief as intervenor in this case in the U. S. District Court for the District of New Mexico. The case involves a doctor who alleges that the New Mexico Medical Board violated title II of the ADA by revoking his medical license due to his disabilities. The State filed a motion to dismiss the case, arguing that the doctor’s claim is barred by the Eleventh Amendment. The Department intervened to defend the private plaintiff’s right to sue the state to challenge its licensing decision.

Disability Advocates, Inc. v. Paterson -- On November 23, 2009, the U.S. District Court for the Eastern District of New York granted the Department’s motion to intervene in this lawsuit alleging that adults with mental illnesses who reside in adult homes in New York City could and should be residing in a more integrated setting in the community. Adult homes are residential adult care facilities, each housing more than 120 residents. The court had already ruled for Disability Advocates, Inc. (DAI) on liability. The Department intervened to participate in the remedy phase of the case and participate in the event of an appeal and, on November 25, filed a brief supporting the remedial plan proposed by DAI and opposing the plan proposed by the State of New York. DAI had proposed that the State create 6,000 supported-housing units over four years, enough so that all current adult home residents with mental illnesses can be accommodated, as well as individuals who would be at risk of being placed in adult homes in the future. The State of New York had proposed to provide 1,000 supported-housing units over a five-year period.

3. Consent Decrees

Title III

U.S. v. Alphonse Hotel Corp. -- On October 6, 2009, the U. S. District Court for the Southern District of New York approved a consent decree resolving this lawsuit against the owner and operator of the 450-room Hotel Carter in New York City. Under the agreement, the hotel will provide 13 fully accessible rooms, at least four of which will have roll-in showers, and an additional 22 rooms equipped for people who are deaf or hard of hearing; make its main public entrance, registration counter, and public restrooms accessible; allow service animals; ensure that reservation agents are familiar with and can answer questions about the accessibility features in the guest rooms; and train staff to assist people with disabilities as needed. The hotel will also pay a $20,000 civil penalty to the United States. This case is part of an initiative by the United States Attorney’s Office to ensure that hotels in Manhattan’s Theater District are accessible. (See companion story in the Formal Settlement Agreements section)

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

Baker v. Windsor Republic Doors, Inc. -- On December 21, 2009, the Department and the Equal Employment Opportunity Commission filed a joint amicus brief in support of the plaintiff in this case from the Western District of Tennessee that is on appeal to the U. S. Court of Appeals for the Sixth Circuit. The case involves a man whose employer wanted him to waive his workers’ compensation rights as a condition of returning to work after getting a pacemaker and defibrillator to correct his heart conditions. The issue on appeal is whether compensatory damages can be awarded to a person who files a retaliation claim against his employer under title I of the ADA. The Department and the EEOC argued that compensatory damages are permitted.

Title II

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. Earlier this year, President Obama issued a proclamation launching the “Year of Community Living,” and directed the Administration to redouble enforcement efforts. During this quarter, the Department intervened in one lawsuit in New York (see New Lawsuits section on page 3) and filed the following amicus briefs in cases in Virginia, Connecticut, and North Carolina.

Arc of Virginia, Inc. v. Kaine -- On November 24, 2009, the Department filed an amicus brief in the U.S. District Court for the Eastern District of Virginia opposing the State’s motion to dismiss this case, which challenges the State’s decision to build a new facility to replace the Southeastern Virginia Training Center (SEVTC), an institution for people with intellectual disabilities. Plaintiffs allege that this will result in the placement of 75 of SEVTC’s current residents in a new segregated facility despite the fact that they have already been determined capable of living in the community. On December 17, 2009, the court dismissed the lawsuit, and that decision has been appealed.

State of Connecticut Office of Protection and Advocacy v. State of Connecticut -- On November 25, 2009, the Department filed an amicus brief in the U.S. District Court for the District of Connecticut opposing the State’s motion to dismiss this case, which challenges the State’s reliance on privately run segregated nursing home facilities to serve the needs of individuals with mental illnesses who would be more appropriately served in community-based settings.

Marlo M. v. Cansler -- On December 21, 2009, the Department filed an amicus brief in the U.S. District Court for the Eastern District of North Carolina urging the court to grant the plaintiffs’ motion for preliminary injunction. The lawsuit alleges that the State’s decision to terminate state funding for two individuals with mental illness and developmental disabilities who have been living in the community for long periods of time (10 years and 5 years, respectively) puts them at imminent risk of institutionalization in violation of the Olmstead decision and the ADA’s integration mandate. The court granted the preliminary injunction after a hearing on December 28, 2009.

B. Formal Settlement Agreements

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

Title II

New York City Police Department, New York, New York -- On November 18, 2009, the New York Police Department (NYPD) entered into a settlement agreement with the United States Attorney’s Office for the Southern District of New York resolving three ADA complaints concerning NYPD’s failure to have appropriate policies and procedures in place to handle the arrest of, or interviews with, individuals who are deaf or hard of hearing. Under the agreement, NYPD will ensure effective communication with people who are deaf or hard of hearing; designate an ADA coordinator to oversee compliance efforts; institute a grievance procedure; and train new recruits and supervisors regarding appropriate procedures for dealing with people who are deaf or are hard of hearing.

Project Civic Access -- The Department signed seven 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 170 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 3,800,000 Americans with disabilities. The new agreements are 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 9-1-1 services, government websites, and polling places.

Title III

Beth Israel Deaconess Medical Center, Brookline, Massachusetts -- On October 22, 2009, the Beth Israel Deaconess Medical Center (BIDMC) in Brookline, Massachusetts, entered into a settlement agreement with the Department to ensure access to medical facilities and services for individuals with disabilities. BIDMC, a research and teaching hospital affiliated with Harvard University, is one of the largest health care providers in the Northeast. It operates a 621-bed acute care facility, a level one trauma center with sub-specialty services, and three community health clinics in the greater Boston area. Under the agreement, BIDMC will survey existing hospital and patient care facilities and equipment, including patient beds, examination tables, lifts, and radiologic and diagnostic equipment, for compliance with ADA standards; will make 10% of patient rooms (including toilet facilities) in each clinical department accessible and remove other architectural barriers; will implement a system to ensure that accessible equipment is purchased when commercially available; and will review hospital policies and train staff to address the needs of individuals with disabilities.

Pine Hills Kiddie Garden, Castle Rock, Colorado -- On October 20, 2009, the Pine Hills Kiddie Garden of Castle Rock, Colorado, which runs two child care centers in Indiana, entered into a settlement agreement with the Department resolving a complaint by a parent of a girl with Type I diabetes. The complaint alleged that Pine Hills refused to permit the six-year old to participate in field trips unless she was accompanied by a parent or a medically trained person hired by the parent. Under the agreement, Pine Hills will evaluate each child’s individual needs and make reasonable modifications for children with diabetes, including monitoring them while eating, testing their blood, or using other diabetes-related equipment. The agreement includes $10,000 in compensatory damages to the family and a $10,000 civil penalty to the United States.

Edison Hotel, New York, New York -- On November 9, 2009, the U.S. Attorney’s Office for the Southern District of New York signed a settlement agreement with the 790-room Edison Hotel under its initiative to ensure that hotels in New York’s Theater District are accessible. The hotel will create 24 fully accessible guest rooms (twelve with roll-in showers) and an additional 40 guest rooms that are accessible to people who are deaf or hard of hearing. The hotel will also make its front entrance and registration counter accessible. This brings the number of hotels involved in the initiative to 23 -- eighteen resolved by settlement agreements and five resolved by consent decrees after lawsuits were filed. (See companion story in the Consent Decrees.)

IntelliTec Colleges, Colorado -- On December 15, 2009, the Department entered into a settlement agreement with IntelliTec Colleges to ensure access to its facilities in Colorado Springs, Grand Junction, and Pueblo, Colorado. IntelliTec offers career training programs for automotive technicians, medical and dental assistants, administrative professionals, architectural drafting professionals, and other careers at its three campuses. This is the Department’s second agreement with an education provider that leases its campus facilities from another entity. The agreement requires Intellitec to remove access barriers in areas of the facilities under its control; request that its landlords remove barriers in areas under the landlords’ control and notify the Department if the landlords refuse to do so; and comply with the ADA Standards for Accessible Design in any future construction or alterations projects.

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

An individual who uses a wheelchair alleged that she was unable to attend the city council meetings of a Pennsylvania municipality because the meetings are held on the inaccessible second floor of the city hall. The municipality installed a platform lift to the second floor and also created an accessible parking space, with signage, in the parking lot.

An individual who is blind complained that a Texas county court failed to provide him court documents in Braille. The court agreed to adopt, implement, and enforce an effective communications policy for individuals with disabilities; disseminate the policy to its employees and contractors; post the policy on its website and make it available to the public; and provide staff training on the ADA and the policy.

An individual whose parent uses a wheelchair complained that a fair in New York would not allow people to purchase tickets for accessible seating for grandstand events until two days after general admission tickets went on sale to the public. The fair agreed to modify its policy so that both general admission and accessible seating tickets are available to the public at the same time and through the same phone, box office, and internet purchasing options.

Two inmates who use wheelchairs alleged that a Virginia state correctional facility housed them in units that did not have accessible toilets and showers. Both inmates were reassigned to an accessible housing unit. The complaint of a third inmate who is blind and uses a cane was resolved by assigning him an inmate aide to assist with daily cell maintenance, reading and writing correspondence, and navigating the prison complex.

An inmate at a California state prison complained that he was unable to obtain orthopedic boots prescribed for his mobility disability. He received the prescribed boots.

An inmate who uses a prosthetic leg alleged that a Georgia state prison refused to have his prosthesis repaired. The prison gave him a new prosthetic leg.

An inmate with Post Traumatic Stress Disorder alleged that an Oregon state correctional facility disregarded his mental health treatment plan and failed to assign him a quiet cell and quiet cellmate. The prison reassigned him to a cell with a more compatible cellmate.

Title III

An individual who is deaf complained that a New Jersey fitness center failed to provide him consistent access to closed captioning on televisions provided for members to watch while using the treadmills. The fitness center agreed to place a television remote at the front check-in desk so that members can activate the captioning themselves.

An individual with a mobility disability alleged that a Utah grocery store did not have enough accessible spaces in its parking lot. The store agreed to create four accessible spaces, including one for vans equiped with wheelchair lifts.

An individual who uses a wheelchair and has a seizure disorder complained that a California restaurant refused to serve her and her party because she was accompanied by a service animal. The restaurant agreed to adopt a service animal policy, provide a copy of the policy to employees, and post a sign welcoming customers with service animals.

An individual who uses a walker and crutches complained that a Pennsylvania restaurant did not provide adequate knee clearance at any of its fixed tables for people with mobility disabilities. The restaurant agreed to add some tables with the appropriate knee clearance.

An individual with a mobility disability alleged that a Pennsylvania medical office did not have enough accessible parking spaces and had an unlevel landing at the entrance. The medical office and the landlord of the facility agreed to provide one van-accessible space and six standard accessible spaces in the parking lot. In addition, the landing at the entrance was repaved, a threshold at the door was smoothed, and an automatic door opener was installed.

An individual with a mobility disability complained that the entrance to a Pennsylvania clothing store was not accessible to customers using wheelchairs. The store agreed to provide an alternate accessible entrance and to post signs at all inaccessible entrances directing customers to the accessible entrance. Additionally, the store provided an accessible bench and coat hook in the dressing room and an accessible counter at the checkout line.

An individual with a disability who uses a service animal complained that she was charged a pet fee at a Kansas hotel. The owner personally apologized to the customer and removed the charge from the bill. The owner also agreed to adopt, implement, and post a service animal policy, to conduct training on service animal issues for its employees, and to provide information to guests on how to file an ADA complaint.

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

District of Southern Mississippi -- An individual with a disability complained that the city hall in a small Mississippi city was inaccessible. The city agreed to remove all barriers identified during a site visit, including regrading the accessible parking area, replacing a noncompliant ramp, widening several office doorways, adding room identification and directional signage, and creating an accessible restroom.

District of Rhode Island -- An individual with a mobility disability alleged that a Rhode Island theater was inaccessible. The theater agreed to provide an accessible ramp at the main entrance and to install wheelchair accessible and companion seats with sight lines comparable to those of the general public.

District of the U.S. Virgin Islands -- In response to a compliance review, the landlord of a Territorial office building in St. Thomas agreed to install accessible parking spaces on both levels of the parking area, to provide accessible routes to and within the building (including ramps, handrails, signage, and accessible door hardware), and to make the restrooms that serve the offices accessible. The Territorial government agreed to relocate equipment to ensure an accessible route within the offices, to add appropriate signage, and to remount fixtures and intercoms at an appropriate height.

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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December 6, 2010