Civil Rights Division
Disability Rights Section
This Status Report covers the ADA activities of the Department of Justice during the fourth quarter (July-September) of 1998. 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 12). The symbol (**) indicates that the document is available on the ADA Home Page.
Formal Settlement Agreements
Other Sources of ADA Information
How to File Complaints
1998, Issue 4
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
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
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 $50,000 for the first violation and $100,000 for any subsequent violation.
Supreme Court will Review Integrated Setting Issue -- The Supreme Court will review the decision of the U.S. Court of Appeals for the Eleventh Circuit in L.C. v. Olmstead that Georgia's failure to provide services to two individuals with mental disabilities in the community, rather than in an institution, despite the recommendation of the State's treating professionals, could violate title II. The Department argued successfully in an amicus brief in the Eleventh Circuit that unnecessary segregation of these plaintiffs could violate title II, which requires States to provide services in the most integrated setting appropriate to the needs of individuals with disabilities. The Eleventh Circuit sent the case back to the U.S. District Court for the Northern District of Georgia for a decision as to whether community-based services could be provided to the two plaintiffs without fundamentally altering the State's program. The Department then filed an amicus brief in the district court arguing that providing community-based services in this case would not be a fundamental alteration.
Supreme Court Finds Collective Bargaining Agreement did not Waive Employee's Right to Bring ADA Suit -- In Wright v. Universal Maritime Service Corporation, the Supreme Court ruled that a South Carolina longshoreman could file an ADA lawsuit charging employment discrimination even though the job was covered by a collective bargaining agreement that generally required arbitration of employee grievances. The Court agreed with an amicus brief filed by the Department of Justice that the arbitration provision at issue in the agreement between the International Longshoremen's Association and several South Carolina stevedore companies was not specific enough to waive an employee's right to seek court enforcement of ADA rights. The Court did not reach the issue of whether even an unmistakably clear agreement could require an individual to arbitrate a claim rather than go to court.
Dental Care for Patient with HIV is not a "Direct Threat" -- The U.S. Court of Appeals for the First Circuit reaffirmed its earlier ruling in Abbott v. Bragdon that a Maine dentist violated the ADA by refusing to fill a cavity because of the patient's HIV infection. The court found that the patient had produced adequate evidence that individuals with HIV can be safely treated by a dentist as long as universal precautions are followed and that the dentist had failed to introduce any evidence that treating the patient would pose a direct threat to the health or safety of the dentist or his staff. The Supreme Court had sent the case back to the court of appeals for further review of the evidence on the direct threat issue after it decided that asymptomatic HIV infection is a disability under the ADA and that the patient was entitled to bring a lawsuit challenging the dentist's refusal to provide treatment. The Department filed an amicus brief in the First Circuit in support of the patient.
Notice Not Required Before Title III Suit -- The U.S. Bankruptcy Court for the District of New Hampshire agreed with the Department's amicus brief and ruled that plaintiffs do not have to provide thirty days notice to State and local authorities before filing a title III lawsuit. In Kitson v. Peoples Heritage Savings Bank, a blind individual who is a petitioner in a bankruptcy proceeding raised a title III claim alleging that a New Hampshire bank failed to provide audio recordings of the mortgage contract and related documents.
2. New lawsuits
The Department initiated or intervened in the following lawsuits.
Erickson v. Board of Governors of State Colleges and Universities -- The Department intervened in the U.S. Court of Appeals for the Seventh Circuit to defend the constitutionality of title I of the ADA. The Department's brief in Erickson argues that, given the history of pervasive discrimination against people with disabilities, title I is an appropriate exercise of congressional authority to enforce the equal protection rights guaranteed by the Fourteenth Amendment.
Williams v. Wasserman -- The Department intervened in the U.S. District Court for the District of Maryland in Williams v. Wasserman to defend the constitutionality of title II of the ADA. The suit challenges the continued institutional placement of certain individuals with disabilities in State-run psychiatric hospitals, mental retardation facilities, and nursing homes despite findings by the State's treating professionals that the plaintiffs would be more appropriately served in existing community-based programs. Earlier in this case the Department filed an amicus brief in which it successfully argued that unnecessary segregation is a form of discrimination prohibited by title II. In its intervention brief, the Department argued that this prohibition is within the constitutional authority of Congress to regulate interstate commerce under the Commerce Clause and to enforce the equal protection guarantees of the Fourteenth Amendment.
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.
Cleveland v. Policy Management Systems Corp. -- The Department filed an amicus brief in the Supreme Court arguing that, in determining whether a plaintiff is a qualified individual with a disability in a title I employment suit, courts should not give any special weight to the fact that the individual has also applied for Social Security disability benefits. The district court agreed with the employer that the employee's representations in her application for Social Security benefits -- that she was unable to work because of a disability -- prevented her from claiming that she is a "qualified individual with a disability" under the ADA. On appeal, the U.S. Court of Appeals for the Fifth Circuit ruled that a Social Security applicant who claims inability to work should not be automatically barred from bringing an ADA suit. However, it decided that courts should presume that such a Social Security applicant is not "qualified" under the ADA, unless "under some limited and highly unusual" circumstances the claimant is able to introduce evidence that he or she is in fact qualified. The Department's amicus brief argues that the Fifth Circuit "presumption" is incorrect -- that courts should not assume that receipt of Social Security benefits and a title I lawsuit are mutually exclusive. The brief argues that because the qualification standards under Social Security and the ADA are different, application for or receipt of Social Security benefits is not by itself inconsistent with being a qualified individual with disabilities. For example, Social Security does not consider reasonable accommodation in determining whether an applicant is able to perform the applicant's past or other work.
Sutton v. United Air Lines, Inc.; Murphy v. United Parcel Service, Inc. -- The Supreme Court asked for the Department's views as to whether it should accept for review two cases raising the issue of whether mitigating measures, such as medicines or prosthetic devices, are to be taken into account in determining whether a plaintiff is an individual with a disability under the ADA. In Sutton v. United Air Lines, Inc. the U.S. Court of Appeals for the Tenth Circuit held that an individual's corrective lenses should be taken into account in determining whether his or her vision impairment is a disability. In Murphy v. United Parcel Service the Tenth Circuit ruled that the impact of an individual's blood pressure medication should be considered in evaluating whether his or her high blood pressure is a disability. The Department believes both decisions are incorrect but recommended Murphy as the better case for a Supreme Court decision on the general issue of mitigating measures because of the tendency of courts to view vision as a special case.
Lusby v. Metropolitan Washington Airports Authority -- The Department filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in support of an assistant fire marshal at National Airport who was discharged after his employer learned that he had been diagnosed with heart disease. He sued under title I arguing that he was able to perform the essential functions of his job, which on a daily basis involved conducting fire investigations and safety inspections. The employer claimed that the essential functions of the position included fighting fires and conducting other emergency operations as reflected in the job description. The district court granted summary judgment for the employer even though the employee presented evidence that in the 14 years he had held the position he had never been asked or required to fight fires or become involved in emergency operations. The Department's amicus brief argued that, because of the conflicting evidence on whether carrying out emergency operations such as fighting fires was an essential job function, summary judgment was inappropriate and the case should be allowed to continue to trial.
McNeil v. Time Insurance Company -- In an amicus brief filed with the U.S. Court of Appeals for the Fifth Circuit, the Department argues that title III covers the terms and conditions of insurance policies and regulates more than just physical access to insurance offices. The plaintiff, who died of AIDS during the litigation, is challenging an insurance policy's $10,000 cap on expenses for treatment of AIDS and HIV-related conditions during the first two years the policy was in effect. The policy did not contain such a cap for most other conditions. The district court ruled in favor of the insurance company, concluding that title III does not apply to provision of insurance benefits and that the statute covers only denials of physical access to a public accommodation.
B. Formal Settlement Agreements
The Department sometimes resolves cases without filing a lawsuit by means of formal written settlement agreements.
Arizona Departments of Revenue and Administration -- The U.S. Attorney's Office for the District of Arizona entered into a settlement agreement with the Arizona Department of Revenue and the Arizona Department of Administration to resolve an employment discrimination complaint involving the State's refusal to hire an individual with diabetes as a data librarian. The Equal Employment Opportunity Commission (EEOC) found reasonable cause to believe that the State had violated title I by conducting an improper medical examination before issuing a conditional offer of employment. The EEOC also found that, based on the results of that examination, the State concluded illegally that, because of her diabetes, the complainant would not be able safely to work alone as would be required for one-half hour each day of every third week. Under the negotiated settlement, the Arizona Departments of Revenue and Administration will conform their employment practices and policies to the requirements of the ADA, train all supervisory and managerial personnel on disability discrimination, and pay the complainant $80,000 in lost wages and compensatory damages.
State of Hawaii -- The Judiciary of the State of Hawaii agreed to set a statewide policy for providing qualified interpreters whenever necessary to ensure effective participation by any individual who is deaf or hard of hearing, including spectators. The settlement agreement resolved a complaint alleging that a Hawaii court failed to secure the services of a qualified sign language interpreter for a deaf defendant charged with a traffic violation.
Albany County, New York -- The Department entered into a settlement agreement with the Albany County Probation Department to resolve a complaint alleging that Albany County failed to provide sign language interpreters for scheduled meetings with probation officers. Albany County agreed to adopt a policy to furnish auxiliary aids and services when necessary to ensure effective communication in the services, programs, and activities of the Probation Department.
** Texas Commission for the Blind will Reform its Employment Practices -- Through a formal out-of court mediation process the Department of Justice reached an agreement with the Texas Commission for the Blind (TCB) resolving the Department's findings that TCB, a State agency that provides employment and rehabilitation services to people with vision impairments, violated the ADA by failing to provide reasonable accommodations to its own employees with vision impairments and by harassing an employee because of her disability and discharging her from her job. TCB agreed to ensure that all employee manuals, training information, and other printed materials will be provided in an accessible format (e.g., Braille, large print, computer disk) to its employees with vision impairments; to designate an ADA coordinator to handle disability discrimination complaints and refer to independent mediation those that cannot be resolved; to evaluate the accommodation needs of employees on a timely basis, and ensure that necessary equipment is acquired quickly; to train all current and future employees concerning the rights and needs of people with disabilities; and to pay $50,000 to the original complainant and $5,000 to another former employee who was the subject of alleged discrimination. TCB had previously rehired a third former employee who alleged discrimination.
West Seneca, New York -- The Department reached an agreement with the Town of West Seneca, New York, resolving a complaint alleging that the town does not provide an adequate number of accessible parking spaces at each of its public facilities. West Seneca agreed to take specific actions to ensure that accessible parking is provided in accordance with the ADA Standards for Accessible Design, including requirements for signage, access aisles, and accessible routes.
Clifton Park, New York -- The Department entered into a settlement agreement with the Clifton Park-Halfmoon Fire District to resolve a complaint alleging that the fire district had refused to accept the complainant's application for membership as a volunteer firefighter with the fire district solely because the complainant is deaf. The fire district has formally agreed to evaluate its applicants on an individual basis to determine whether, with or without reasonable modifications in policies or practices, they can satisfy the essential eligibility requirements of the position.
Access to 9-1-1 Systems -- U.S. Attorney's offices entered written agreements to ensure direct, equally effective access for TDD users to 9-1-1 emergency systems in six additional localities --
Mount Vernon, New York
New Rochelle, New York
Port Chester, New York
White Plains, New York
Yonkers, New York
The agreements require each 9-1-1 center to have TDD capability at each call-taker position, to query every "silent call" with a TDD, and to thoroughly train each call taker in handling TDD calls.
** Holiday Inn and Crowne Plaza Hotels will Improve Access and Modify Reservation Policies -- The Department signed two settlement agreements with Bass Hotels & Resorts (BHR) and 20 separate agreements with individual hotel franchise owners to resolve ADA violations throughout BHR's Holiday Inn and Crowne Plaza hotel chains. The agreement with BHR on reservations and rental policies requires that each hotel in the two chains must --
The second agreement requires BHR to make modifications in three hotels it currently owns or manages and to pay $75,000 to the Key Bridge Foundation to establish a mediation program for ADA complaints. BHR will also pay a total of approximately $75,000 to the United States and the complainants to resolve all outstanding issues.
The Department also reached 20 agreements with Holiday Inn and Crown Plaza franchisees resolving accessibility complaints involving hotels at the following locations --
Montgomery East, Alabama
Phoenix City, Arizona
SunSpree Resort, Scottsdale, Arizona
Financial District, San Francisco, CA
Fisherman's Wharf, San Francisco, CA
Huntington Beach, California
Downtown Denver, Colorado
Powers Ferry, Atlanta, Georgia
Overland Park, Kansas
Astrodome, Houston, Texas
Those agreements require a wide range of modifications, including removal of barriers to access, provision of auxiliary aids, and staff training.
United Skates of America, Columbus, Ohio -- The Department entered into an agreement resolving a complaint brought by an individual whose two children, both of whom are deaf/blind and have cerebral palsy, were allegedly denied access to the skating rink during a birthday party at a facility operated by United Skates of America in Indianapolis, Indiana. The complainant alleged that he was told by the manager that his children were not allowed on the skating rink floor, even with their father's assistance, and that the manager refused to set aside a time when the children, and other people with disabilities, could skate. United Skates agreed to adopt a policy of nondiscrimination that will allow complete access to the skating rink for a person with a disability unless, after the access has been allowed, an individualized assessment shows that participation by the individual would create a direct threat to the health and safety of others. In such cases, an offer will then be made to allow the individual to skate at a time when access would not present a direct threat to others. United Skates also agreed to distribute its nondiscrimination policy to appropriate personnel at each of its 13 rinks annually and to pay the complainant $1,000 in damages.
** Cumberland Child Care, Smyrna, Georgia -- The Department entered into an agreement with Cumberland Child Care resolving a complaint by parents alleging that their preschool child was prevented from bringing his asthma inhaler to class. The child care center had a policy barring children from bringing any medications with them to the center, including asthma inhalers. Because of this policy, the parents placed the child in another child care facility. In the settlement, Cumberland Child Care agreed to allow the child to bring the inhaler to class and agreed to administer emergency asthma treatment with the consent of the parents in accordance with the doctor's instructions. Cumberland also agreed to pay $1,500 in damages to the complainant.
Flagship Inn and Suites, Groton, Connecticut -- The U.S. Attorney's Office for the District of Connecticut reached a settlement with the owners of the Flagship Inn & Suites in Groton, Connecticut, to resolve a wide range of accessibility issues at the facility. The settlement requires modifications to the motel entrance, parking, and a guest room to provide an additional room that is accessible for people with mobility impairments. The motel also agreed to have a TDD available at the front desk and to provide six guest rooms that are accessible to persons who are deaf or hard of hearing. In addition, the agreement requires a change in reservation and rental policy so that accessible rooms will not be sold until all other rooms in the motel are taken. The settlement also required the hotel to pay $1,000 in compensatory damages to the complainant.
C. Other Settlements
The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements.
A municipal court in a small Ohio town erected directional signs indicating the location of the accessible path and accessible entrance.
A large Texas city developed a transition plan, designated an ADA coordinator, and established grievance procedures for ADA complaints.
A juvenile court in Michigan revised its procedures and adopted a written policy for providing access to individuals with mobility impairments.
A small Pennsylvania city completed its transition plan, implemented a grievance procedure, and installed a van accessible parking space in the municipal building parking lot.
A small fishing boat company in Florida modified its policies, practices, and procedures to allow an individual who uses crutches to fish from its boats so long as he is safely seated when fishing.
A movie theater in a shopping mall in Rhode Island added signage directing persons with disabilities to an accessible restroom in the mall, added three folding armrest type chairs in each of four auditoriums, and agreed to provide fully accessible restrooms when the facility is remodeled.
A movie theater chain installed assistive listening systems in two theaters in Florida.
A collection agency in Memphis, Tennessee, agreed to accept calls from persons using TDD's through the local relay service.
A private Florida bus company agreed to provide equal service to people with mobility impairments by ensuring that the lifts on all of its buses are fully operational and by keeping a radio-dispatched mini-van on standby as a backup in cases where a bus without a lift or a bus with a malfunctioning lift is unable to pick up a person using a wheelchair.
A pediatric dentist in North Carolina agreed to change his policy of limiting scheduled appointments for disabled children to specified "handicapped" days. The doctor agreed to schedule patients with disabilities at any available time and to train his staff accordingly.
A dentist's office in Florida installed a ramp at the entrance door so that the office is now accessible to persons with mobility impairments.
Through a technical assistance grant from the Department, The Key Bridge Foundation is accepting referrals of complaints under titles II and III for mediation by professional mediators who have been trained in the legal requirements of the ADA. More than 350 professional mediators are available to mediate ADA cases in **43 States. 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.
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 and ADA Home Page, developing and disseminating technical assistance materials to the public, undertaking outreach initiatives, operating an ADA technical assistance grant program, and coordinating ADA technical assistance government-wide.
ADA Home Page
** Agencies Extend Suspension of Detectable Warnings Requirement -- The Department of Justice, the Department of Transportation, and the Access Board published a joint final rule extending the current suspension of the Americans with Disabilities Act detectable warnings requirement until July 26, 2001. The ADA Accessibility Guidelines and the ADA Standards for Accessible Design contain provisions requiring the installation of detectable warnings at curb ramps, reflecting pools, and hazardous vehicular areas. The requirement was initially suspended in 1994 because of significant public opposition to the requirement. The suspension has been continued to 2001 with the expectation that the controversy surrounding the requirement will be resolved in the anticipated revisions to the ADA Accessibility Guidelines and the ADA Standards for Accessible Design.
The Department of Justice operates a toll-free ADA Information Line to provide information and free publications to the public about the requirements of the ADA. Automated service is available 24 hours a day, seven days a week, to order materials for delivery by mail or through our fax delivery system. 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.
For general ADA information, answers to specific technical questions, free ADA materials, or information about filing a complaint, call:
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 25 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.
New Web Search Engine Makes Finding Freedom of Information Act Documents Easier -- A new search engine has been added to the making it easier to search for ADA policy letters and other ADA information located on the Civil Rights Division's electronic Freedom of Information Act (FOIA) website. The FOIA website has over 10,000 pages of ADA material including policy letters, technical assistance letters, settlement agreements, and other documents that are frequently requested by the public. This new search engine targets only documents on the FOIA website. It works independently of the existing search engine, which is limited to searching documents on the ADA Home Page such as regulations, technical assistance materials, settlement agreements, and proposed changes to ADA requirements. For a comprehensive search of all ADA documents it is recommended that both search engines be used.
Publications and Documents
Copies of the Department's ADA regulations and publications, including the Technical Assistance Manuals for titles II and III, and information about the Department's technical assistance grant program, can be obtained by calling the ADA Information Line 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
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 http://www.usdoj.gov/crt/foia/records.htm. A link to this website is provided from the ADA Home Page.
ADA regulations and technical assistance materials can also be downloaded from the
Department's ADA Bulletin Board System (ADA-BBS). The ADA-BBS, which includes selected ADA documents from other agencies, can be reached by computer modem by dialing 202-514-6193 or accessed on the Internet through www.fedworld.gov using telnet software. The ADA Home Page also provides a link to the fedworld website.
The Equal Employment Opportunity Commission offers technical assistance to the public concerning the employment provisions of title I of the ADA.
The U.S. Department of Transportation through the Federal Transit Administration offers technical assistance concerning the transportation provisions of title II and title III of the ADA.
ADA Assistance Line for information, questions, or complaints
ADA documents and general questions
ADA legal questions
The Federal Communications Commission offers technical assistance to the public concerning the communication provisions of title IV of the ADA.
The U.S. Architectural and Transportation Barriers Compliance Board, or Access Board, offers technical assistance to the public on the ADA Accessibility Guidelines.
ADA documents and questions
The Disability Rights Education and Defense Fund ADA Hotline is funded by the Department of Justice to provide technical assistance to the public on all titles of the ADA.
ADA technical assistance
800-466-4232 (voice & TDD)
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 & TDD)
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
The Job Accommodation Network (JAN) is a free telephone consulting service funded by the President's Committee on Employment of People with Disabilities. 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 & TDD)
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 (TDD) 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 --
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
Post Office Box 66738
Washington, D.C. 20035-6738
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.
February 15, 1999