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

Enforcing the ADA

A Press Report from the Department of Justice for the New England Region: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont

This report covers the ADA activities of the Department of Justice after the ADA first went into effect on January 26, 1992.

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, consent decrees, and formal and informal settlement agreements the Department of Justice has achieved greater access for individuals with disabilities in hundreds of cases. Under general rules governing lawsuits brought by the Federal Government, the Department may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations.

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.

Some lawsuits are 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.

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

The Department sometimes resolves cases without filing a lawsuit by means of formal and informal agreements.

 

New Lawsuits

Title III

New Title III Lawsuits Challenge Stadium-style Theater Design --

United States v. AMC Entertainment, Inc. -- The Department filed suit against AMC Entertainment, Inc., and American Multi-Cinema, Inc., in the U.S. District Court for the Central District of California for violating the ADA in the design, construction, and operation of stadium-style movie theaters in the AMC chain. The two theaters named in the complaint are the Norwalk Theater in Norwalk, California, and the Promenade 16 Theater in Woodland Hills, California. The newly constructed AMC theaters have two types of seats -- stadium-style seats, which provide comfortable, unobstructed lines of sight to the screen, and traditional seating, which is located on the sloped floor at the front of the theater immediately in front of the screen. Although AMC marketed the theaters as providing stadium-style seating, it placed the wheelchair seating only in the less desirable traditional seating on sloped floors. Wheelchair users are therefore denied a movie viewing experience that is comparable to that afforded to other members of the general public. The complaint also alleges other access violations including the failure to provide companion seating next to wheelchair seats; failure to provide handrails; inadequate space at wheelchair seating locations; and inaccessible concession counters, bathrooms, and telephones.

United States v. Cinemark USA, Inc. -- The Department filed suit against Cinemark USA, Inc., in the U.S. District Court for the Northern District of Ohio alleging that three of Cinemark's Ohio theaters, as well as its stadium-style seating theaters across the country, violated the ADA by failing both to provide comparable lines of sight to wheelchair users and to make wheelchair seating locations an integral part of the stadium-style seating. Prior to this lawsuit, Cinemark filed suit against the Department of Justice in the U.S. District Court for the Eastern District of Texas asserting that the Department's actions regarding stadium-style theaters violate the Administrative Procedure Act. The Department believes that suit is without merit and has asked the court to dismiss it.

Consent Decrees

Title III

Connecticut Association of the Deaf v. Middlesex Memorial Hospital -- The Department intervened in this suit brought by the Office of Protection and Advocacy in Connecticut against 10 acute care hospitals for failing to provide sign language and oral interpreters for persons who are deaf or hard of hearing. All the parties in the case asked the court to approve a proposed consent decree negotiated by the Department, the original plaintiffs, and the defendant hospitals. In addition, all twenty-two other acute care hospitals in Connecticut intervened as defendants to join in the proposed agreement and protect themselves from future liability. If the U.S. District Court for the District of Connecticut approves the proposed agreement, the hospitals will --

• set up a State-wide on-call system to provide interpreters 24 hours a day, seven days a week, for persons who are deaf or hard of hearing (the system will respond to most requests in urban areas within an hour, and in rural areas within one hour and fifteen minutes);
  
• use sign language pictogram flash cards that will be developed by the Department of Justice to assist in communication when sign language interpreters are not available;
  
• provide TTY's throughout the hospitals public areas and in patient rooms, when requested;
  
• install visual alarms where audible alarms are provided;
  
• provide other auxiliary aids and services when necessary for effective communication, including computer assisted real-time transcription services, closed caption decoders for televisions, captioning of hospital-generated videos, qualified notetakers, assistive listening devices and systems, and written materials;
  
• train employees and volunteers about issues relating to communication with persons who are deaf or hard of hearing, including special training for emergency department personnel, psychiatric personnel, social workers, and other key personnel;
  
• offer training to all affiliated physicians; and
  
• pay $333,000 in compensation to the named plaintiffs and individuals who filed complaints with the Department of Justice.

DeVinney v. Maine Medical Center -- The U.S. Attorney for the District of Maine, a private plaintiff, and the Maine Medical Center entered into a consent decree requiring the medical center to provide qualified sign language interpreters, assistive listening and telecommunication devices, captioned televisions and other similar aids and services to persons who are deaf or hard of hearing. Maine Medical Center, which is Maine's largest hospital, also agreed to publish and distribute a new written hospital policy directing its employees to offer an interpreter whenever staff has any reason to believe a patient is deaf or hard of hearing. The interpreter will be made available by the medical center "as soon as possible and no later than one hour after the receipt of a request for an interpreter." The hospital has also agreed to provide the same services including interpreters to deaf family members, relatives, companions and friends who visit or accompany a patient. The hospital will require all of its clinical directors and department heads, as well as its supervisors, nurses and other patient-contact personnel, to participate in mandatory and comprehensive in-service training regarding the proper use and role of interpreters and other communication needs of persons who are deaf or hard of hearing. Maine Medical Center will also produce an educational video and distribute materials to all physicians with hospital privileges regarding the ADA rights of persons who are deaf and hard of hearing. The hospital agreed to pay a civil penalty of $10,000 and $25,000 in damages to the plaintiff.

Friendly's Agrees to Chainwide Barrier Removal Program Under Title III -- The U.S. Attorney for the District of Massachusetts and the Massachusetts-based Friendly Ice Cream Corporation entered into a consent decree under which Friendly's will engage in an aggressive barrier-removal program to increase accessibility throughout its chain of 704 restaurants in 15 States. The consent order requires Friendly's to come into substantial compliance within six years. In the first year, Friendly's will complete barrier removal at 117 locations, including altering the entrances (removing steps, widening doorways, and redesigning vestibules) at those 93 restaurants that currently have inaccessible entrances. Other alterations required by the consent order include redesigning dining areas to accommodate wheelchair users; striping parking areas to include accessible spaces; and altering bathrooms by widening doorways, increasing unobstructed floor space, installing grab bars and accessible door hardware. In addition, the consent order requires the company to pay a civil penalty of $50,000.

United States v. Becker C.P.A. Review --In a consent decree resolving the first case filed by the Department of Justice under the ADA, Becker C.P.A. Review, which prepares over 10,000 students annually to take the national certified public accountant exam, agreed to amend its auxiliary aids policy. Becker will no longer limit its offered auxiliary aids to audiotape transcripts prepared for the instructors' use, and will provide appropriate auxiliary aids and services, including qualified sign language interpreters and assistive listening devices, to students with hearing impairments. The company may require a student to attend a consultation meeting, at which time the student would explain his or her individual needs and means of communication. Becker would explain the nature of the class and the proposed auxiliary aid or service. However, Becker may request that the student try its proposed aid or service at a Becker class prior to the session that the student wishes to attend. If the student can articulate, based on experience or skills, why the proposed aid or service will not provide effective communication, the student will not be requested to try out the proposed auxiliary aid or service. Becker also agreed to appoint a national ADA coordinator and to train its staff regarding the policy revision; pay $20,000 to the Department of Justice to be distributed to seven deaf and hearing impaired individuals, all former Becker students; and establish a $25,000 scholarship fund for accounting students who have hearing impairments at California State University.

NCAA Will Revise Eligibility Requirements to Accommodate Student-Athletes with Learning Disabilities -- Under a landmark consent decree, the National Collegiate Athletic Association will modify policies that each year prevented hundreds of students with dyslexia and other learning disabilities from playing college sports and receiving athletic scholarships. The agreement in United States v. National Collegiate Athletic Association, which was filed in the U.S. District Court for the District of Columbia, stems from a series of complaints lodged with the Department by student1athletes alleging that the NCAA's initial-eligibility academic requirements discriminate against student-athletes with learning disabilities. The agreement requires the NCAA to modify its policies while at the same time enabling it to maintain its academic standards. The NCAA agreed to --

• revise its rules so that classes designed for students with learning disabilities can be certified as core courses if the classes provide students with the same types of knowledge and skills as other college-bound students;
  
• allow students with learning disabilities who are unable to meet the initial eligibility rules when they graduate from high school to earn a fourth year of athletic eligibility if they complete a substantial percentage of their degree work and maintain good grades;
  
• direct its committees that evaluate applications filed by students who do not meet the requirements but are seeking a waiver to consider a broad range of factors in reviewing the student's high school preparation and performance when deciding whether to grant a waiver and not to use a minimum qualifying test score on the SAT or ACT;
  
• include experts on learning disabilities on the committees that evaluate waiver applications.

In addition, the consent decree requires the NCAA to undertake efforts designed to prevent further violations of the ADA, including designating one or more employees as an ADA compliance coordinator to serve as a resource to NCAA staff and as a liaison with students with learning disabilities; providing training to its staff regarding the new policies; and publicizing the terms of the agreement to high schools, students, parents, and member colleges and universities. The NCAA also agreed to pay a total of $35,000 in damages to four student-athletes.

Days Inns Will Promote Accessibility at New Hotels Nationwide -- The world's largest hotel chain agreed to undertake a nationwide initiative designed to make hundreds of its new hotels across the country more accessible to persons with disabilities. The consent decree, filed in U.S. District Court in Pikeville, Kentucky, resolves five lawsuits filed by the Department of Justice. The suits alleged that franchiser Days Inns of America, Inc, and its parent company, Cendant Corporation (formerly HFS, Inc), because of their significant role in the design and construction of new Days Inns hotels, violated the ADA by allowing franchisees to construct hotels that failed to comply with the ADA Standards for Accessible Design. Under the agreement, Days Inns will --

• require new hotels to certify that they are in compliance with the ADA Standards before they open for business as Days Inns;
  
• pay for an independent survey program designed to identify ADA problems at newly constructed hotels;
  
• establish a $4.75 million revolving fund to provide interest-free loans to franchisees of newly constructed hotels to finance repairs and renovations required for ADA compliance; and
  
• pay $50,000 to the United States.

The agreement ends four years of litigation that followed an 18-month investigation of newly constructed Days Inn hotels across the country. The investigation revealed that similar accessibility problems existed throughout the chain, including, for example, insufficient accessible parking, inaccessible entrances and walkways at the facilities; inadequate space for persons who use wheelchairs to maneuver in guestrooms and bathrooms; insufficient visual alarm systems for persons who are deaf or hard of hearing; inadequate signage for persons who are blind or have low vision; inaccessible routes throughout the hotels; and guestroom and bathroom doors that were not wide enough to allow wheelchairs to pass inside. The owners, contractors and all but one architect for each of the five hotels named in the lawsuits had earlier entered into consent decrees or agreements with the Department. This consent decree resolves the remaining claims against Days Inns of America and Cendant Corporation.

United States v. Ellerbe Becket, Inc. -- The Ellerbe Becket architectural firm agreed that all of the new sports stadiums and arenas that it designs in the future will be designed to provide wheelchair seating locations with a line of sight over standing spectators. The agreement specifically applies to any facility with more than four fixed seats and in which spectators can be expected to stand for all or any part of an event . The consent decree resolves the Department's lawsuit alleging that Ellerbe had violated the ADA by repeatedly designing new sports stadiums and arenas that violated the ADA new construction requirement for comparable lines of sight for wheelchair seating locations. Ellerbe argued that the court should dismiss the case because architects are not covered by title III of the ADA and because lines of sight over standing spectators are not required. The court disagreed with both of these arguments and allowed the case to continue.

Arnold v. United Artists Theatre Circuit, Inc. -- The Department entered into a formal agreement and consent decree with United Artists Theatre Circuit, Inc. (UATC), one of the nation's largest exhibitors of motion pictures, that will ensure compliance with the ADA's barrier removal and new construction provisions at more than 400 theater locations with approximately 2,300 screens throughout the United States. The consent decree, which was filed simultaneously with the Department's intervention in Arnold v. United Artists Theatre Circuit, Inc., will completely resolve that suit. The Arnold case was a private class action suit brought on behalf of California residents with mobility impairments who encountered barriers at UATC theaters. The agreement requires UATC to take the following actions in almost all of its existing theaters throughout the country within the next five years --

• provide parking spaces that comply in design and number with the requirements of the ADA Standards for Accessible Design (the Standards);
  
• provide an accessible path of travel from parking spaces to an accessible theater entrance;
  
• provide in each auditorium the number of wheelchair seating spaces required in comparably-sized, newly-constructed auditoriums, with companion seating;
  
• ensure that one percent of the total number of seats is aisle seats with folding or removable aisle-side armrests;
  
• provide at least two dispersed wheelchair seating locations at a distance of from one-third to two-thirds of the way back from the screen in auditoriums with more than 300 seats; and
  
• modify existing restrooms to make them accessible or construct unisex accessible restrooms that comply with the Standards.

UATC will also be required to bring all theaters constructed for first occupancy after January 26, 1993, into full compliance with the Standards by no later than June 30, 1997, and to ensure that future construction complies with the Standards.

United States v. Harcourt Brace Legal and Professional Publications, Inc. -- A consent decree resolved this suit against the auxiliary aids policies of Harcourt Brace Legal and Professional Publications regarding Bar/Bri, the nation's largest preparatory course for individuals studying for bar examinations. The Department's complaint alleged that the Bar/Bri course failed to provide appropriate auxiliary aids to students with vision and hearing impairments. Under the consent decree, filed simultaneously with the complaint, Harcourt Brace agreed to establish a detailed set of procedures for identifying and providing appropriate auxiliary aids and services, including qualified sign language interpreters, assistive listening devices, and Brailled materials, to students with disabilities. In addition, Harcourt Brace has agreed to pay $28,000 in compensatory relief. This award is divided among two students, the California Department of Rehabilitation which provided the interpreter for one of the students, and the individual who converted the course materials into Braille for the other student. Harcourt Brace also agreed to pay $25,000 in civil penalties, adopt and implement a formal written policy ensuring that auxiliary aids and services are promptly and properly provided, educate Bar/Bri staff regarding students with disabilities, and include information regarding the availability of auxiliary aids and services for students with disabilities in its advertising materials.

Amicus Briefs

Title II

Lakes Region Consumer Advisory Board v. City of Laconia, New Hampshire -- The City of Laconia denied the Lakes Region Consumer Advisory Board's application for a permit to operate a facility providing services to persons with mental illness. The Advisory Board sued, alleging that the denial violated title II of the ADA and section 504 of the Rehabilitation Act. The Department filed an amicus brief supporting the Advisory Board's position that zoning decisions are subject to review under title II of the ADA and section 504 of the Rehabilitation Act.

Harnois v. Christy's Market, Inc. -- The Department filed an amicus brief in Federal district court in Maine arguing that thirty days prior notice to State and local authorities is not required before a title III suit may be filed. In Harnois v. Christy's Market the plaintiff alleged that several Christy's Markets locations in Maine are inaccessible.

Gilbert v. Eckerd Drugs; Kellet-Breed v. Coastal Bank -- It is not necessary first to notify a State or seek State administrative remedies before filing a Federal lawsuit under title III according to amicus briefs filed in Gilbert v. Eckerd Drugs in the Eastern District of Louisiana and in Kellet-Breed v. Coastal Bank in the District of Maine. In Gilbert, the drug store defendant withdrew its motion to dismiss after the Department filed its brief.

Szarlan v. Connecticut Bar Examining Committee -- In a private action in which the Department joined in an amicus role, an individual seeking licensing as an attorney charged that the Connecticut Bar Examining Committee had violated the ADA by requiring applicants to the bar to State whether they had ever sought treatment for or been diagnosed as having a nervous, mental, or emotional condition. Applicants who answered in the affirmative were required to sign a consent form authorizing the release of any and all mental health records, and otherwise undergo investigatory procedures not uniformly required of all applicants. The bar committee held public hearings on the issue, obtained technical assistance from the Department, withdrew the challenged inquiry, and substituted a revised inquiry focusing more narrowly on impairment of the ability to practice law.

Cohen v. Boston University, Massachusetts -- A person who has Tourette Syndrome filed a lawsuit against Boston University charging that it violated title III of the ADA by refusing to readmit her to its graduate school of social work because of her disability. The Department filed a brief in support of the plaintiff arguing that the court should not grant summary judgment for the University, because facts concerning the University's actions remain in dispute.

Formal Agreements

Title II

Access to 9-1-1 Systems -- The U.S. Attorney's office for the District of Connecticut entered a written agreement to ensure direct, equally effective access for TDD users to 9-1-1 emergency systems in Danbury, Connecticut. The agreement required 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.

East Providence, Rhode Island -- The City of East Providence has agreed to pay damages for failing to carry out two earlier agreements with the Department of Justice. Those agreements required it to alter its municipal stadium, Pierce Field, to make it accessible. The city had agreed to install thirty accessible seating locations and thirty companion seats; provide an accessible route to the accessible seating locations, install proper signage marking the accessible route; modify each of the stadium's restrooms to provide an accessible lavatory, water closet, paper towel dispenser, and mirror; and install proper signage at the restroom entrances. In light of these previous failures and the length of time it has taken to bring Pierce Field into compliance, the city agreed to pay $2,000 to a group representing people with disabilities in Rhode Island, and, if the city did not complete the required renovations by May 1, 1998, it agreed to pay any group on the same list $200 per day for each day after that date that renovations were not completed. The city missed the deadline by 12 days and paid $2,400.

New Hampshire Sweepstakes Commission, Concord, New Hampshire -- The Department signed an agreement with the New Hampshire Sweepstakes Commission that will ensure program accessibility in the State's lottery program. The agreement resolved a complaint charging that establishments that sell lottery tickets were inaccessible to persons with mobility impairments. New Hampshire will evaluate the accessibility of lottery sales in the 1300 retail establishments participating in the lottery program, the geographical dispersal of accessible facilities, the ratio of accessible to inaccessible sites in each town and county, and the rate of use of each retailer. It will then develop and implement a plan to ensure that the lottery program as a whole is accessible to people with mobility impairments. The Department will review and approve the Commission's actions. Because of the large number of facilities participating in the lottery program, the agreement promises to substantially increase the overall accessibility of public accommodations and State facilities throughout New Hampshire.

State of Massachusetts -- The Department signed an agreement with the State of Massachusetts providing for access to Doric Hall, located in the eighteenth century section of the Massachusetts State House in Boston. Doric Hall is currently inaccessible to individuals with mobility impairments because of five steps. The agreement provides for alterations to Doric Hall, including the installation of a lift. Until the alterations are completed, the State has agreed to implement a policy requiring all services currently held in an inaccessible location to be relocated, upon request, to an accessible area of the State House.

North Kingstown, Rhode Island -- The police department of North Kingstown, Rhode Island, agreed to adopt a formal written policy ensuring effective communication in situations involving contact between officers and members of the public who are deaf or hard of hearing. The agreement resolved a complaint alleging that the police department failed to interview a deaf witness to a fatal automobile accident.

Title III

Med-Dent, Inc., Presque Isle, Maine -- The U.S. Attorney's Office for the District of Maine entered into an agreement with Med-Dent, Inc., the owner of a medical office building in Presque Isle, Maine, requiring it to make changes that will provide physical access to patients who use wheelchairs. A wheelchair user complained that steps at the exterior entrances and an interior stairwell of the office of her treating neurologist denied her access to the physician's office and required her doctor to examine and treat her in a van in the parking lot. The building owner agreed to install ramps to the exterior front entrances of the office building, install a vertical platform lift at the interior stairwell of the structure, provide training in operation of the lift to persons employed at the building, post accessible parking signs, and replace door knobs with lever-type handles that can be grasped by persons who have disabilities.

Shoppers Landing Limited Partnership, Freeport, Maine -- Shoppers Landing, a commercial landlord, agreed to construct a ramp from the street to the rear door of a retail clothing store; post signs at the inaccessible entrance directing patrons to the accessible entrance; and maintain the walkway to the accessible entrance.

Wendy's Restaurants, Maine -- The owners of all nine franchised Wendy's restaurants in Maine will remove architectural barriers under an agreement with the U.S. Attorney's Office for the District of Maine. Wendy's franchisees, Transco Distributors of Augusta and Robco, Inc., of Sanford, will accommodate customers who use wheelchairs by either widening the queues that customers must pass through to place their orders or by removing the queues altogether. The restaurants also agreed to install door handles and grab bars in their public restrooms and pay civil penalties totaling $4,500. These franchised facilities were not covered by an earlier agreement between Wendy's International, Inc., and the Department of Justice that addressed inaccessible queues at over 1600 company-owned locations.

Flagship Inn and Suites, Groton, Connecticut -- The U.S. Attorney's Office for the District of Connecticut reached an agreement with the owners of the Flagship Inn & Suites in Groton, Connecticut, to resolve a wide range of accessibility issues at the facility. The agreement 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 agreement also required the hotel to pay $1,000 in compensatory damages to the complainant.

Drs. David, Schulman, and Weinstein, East Hartford, Connecticut -- The Department settled a complaint against a dental practice in East Hartford, Connecticut, alleging that the dentists refused to treat an individual because he had AIDS. Under the agreement, the dentists paid $20,000 in compensatory damages to the estate of the complainant, and $9,000 in civil penalties. They also agreed to implement and publicize a policy of nondiscrimination on the basis of HIV and AIDS.

Atrium Mall, Chestnut Hill, Massachusetts -- Atrium Mall provides free shuttle bus service between the Mall and surrounding neighborhoods. The bus provided for this service was not accessible to wheelchair users. As a result of a formal agreement with the Department, the Mall has agreed to lease a wheelchair accessible bus and has paid the complainant $500. This is the first agreement concerning the responsibilities of places of public accommodation to provide accessible transportation.

Anthony's Pier 4 Restaurant, Boston, Massachusetts -- Agreements were reached with the owners and operators of Anthony's Pier 4 restaurant in Boston, Massachusetts, and three other restaurants in the Boston area. Anthony's Pier 4 is one of the five largest restaurants in the United States. The agreements call for a variety of changes to the facilities, including provision of accessible parking spaces, accessible entrances, accessible dining areas, and accessible restrooms. In particular, the agreement with Anthony's Pier 4 calls for reconstructing the front of the restaurant to provide an accessible entrance and accessible restrooms, construction of a ramp to provide access to an outdoor patio, and installation of a mechanical wheelchair lift to provide access to the banquet and meeting rooms on the second floor of the facility. The other three restaurants covered by the agreements are in Swampscott and Yarmouthport, Massachusetts. At each of those, there will be accessible parking, an accessible main entrance, accessible seating areas, and accessible restrooms. Finally, all of the restaurants have adopted policies for serving customers with disabilities.

Crown Cine Theaters, Danbury, Connecticut -- The Department entered an agreement with Crown Cine Theaters resolving a complaint alleging that it failed to provide an adequate number of assistive listening devices and to maintain these devices in proper working order. The theater had a permanently installed assistive listening system for its three screens totaling 1,074 seats but provided only 15 receivers. Crown agreed to make available an additional 12 receivers and three neck loop devices. It also agreed to establish a maintenance procedure to ensure that all devices are maintained in proper working order and to provide appropriate training for employees. In addition to its current practice of providing notice about assistive listening devices in its printed advertisements, Crown Theaters agreed to include information in its prerecorded telephone messages and to provide appropriate signage. Crown Theaters also agreed to issue free movie passes to a future showing of any film along with a full refund of money paid and an apology to any person who is hard of hearing, and any companions, who cannot attend a particular showing of a film because an assistive listening device is not in proper working order.

Greyhound to Improve Bus Service to Passengers with Disabilities -- An agreement between the Department and Greyhound Lines Inc., will improve the availability and quality of accessible bus service for persons with disabilities. The agreement resolves a wide range of complaints including the denial of passage or boarding assistance to persons with mobility or vision impairments, injuries to passengers while being physically carried on and off buses, and verbal harassment. It requires Greyhound to pay more than $17,500 in damages, which includes individual payments to 14 complainants ranging from $500 to $4,000. Current Department of Transportation (DOT) regulations permit carrying, but require Greyhound to provide lift-equipped bus service on 48 hours' notice beginning in October 2001. The agreement will minimize the need for carrying passengers with disabilities by phasing in accessible bus service in three stages, beginning two years before lift-equipped service is required by the DOT rules. Under the agreement, Greyhound will --

• (through March 31, 2000 only) provide, with 48 hours' notice through its ADA Hotline, a lift-equipped bus or assistive device on scheduled departures to and from locations where these buses are operated (generally along major routes serving a large proportion of Greyhound passengers) or where assistive devices can be made available to passengers who request such accommodations;
  
• on 48 hours' notice, make reasonable efforts to provide an accessible bus between any of the approximately 2,600 points served by Greyhound; and,
  
• (beginning no later than April 1, 2000) guarantee accessible buses between any points served by Greyhound, on 48 hours' notice, except in a limited set of "excusable circumstances" defined in the agreement.

The agreement also requires Greyhound to --

• provide training to employees assisting any person with a disability;
  
• establish an internal dispute resolution procedure for addressing complaints by persons with disabilities within 90 days;
  
• inform individuals with disabilities of their rights under the ADA and the agreement;
  
• convene a meeting of a specially created advisory committee of representatives from organizations advocating the rights of persons with disabilities to advise Greyhound on its training programs and policies by September 30, 1999; and,
  
• continue systematically removing barriers to access in Greyhound facilities.

The Department of Justice has created a plain language guide for bus passengers -- available through the ADA Information Line, the ADA Home Page, and ADA Fax on Demand (document #3400) -- that explains the requirements of the Greyhound agreement and the DOT regulations.

Holiday Inn and Crowne Plaza Hotels will Improve Access and Modify Reservation Policies -- The Department signed two 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 --

• guarantee reservations for accessible rooms as they guarantee other types of reservations;
  
• hold all accessible rooms for persons with disabilities until 6 p.m., at which time they can release all but two (one in each of the two standard categories of single and double bed rooms), which must be held until all other rooms of that type are sold; and
  
• compile a list of accessibility features to be kept at the hotel's front desk and made available to anyone who calls the hotel or the central reservations system.

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, California
Fisherman's Wharf, San Francisco, California
Huntington Beach, California
Downtown Denver, Colorado
Marietta, Georgia
Powers Ferry, Atlanta, Georgia
Alton, Illinois
Overland Park, Kansas
Metairie, Louisiana
Lafayette, Louisiana
Provincetown, Massachusetts
Dayton, Ohio
Springfield, Ohio
Gatlinburg, Tennessee
Austin, Texas
Conroe, Texas
Astrodome, Houston, Texas

Those agreements require a wide range of modifications, including removal of barriers to access, provision of auxiliary aids, and staff training.

Waiting Lines will be Accessible at Wendy's Restaurants -- Nearly 1,700 Wendy's restaurants will become more accessible to their customers with disabilities under an agreement reached with the Department of Justice and nine State Attorneys General. The out-of-court agreement stems from a joint nationwide investigation of the restaurant chain by the Department of Justice and nine States -- the first time the Department has teamed up with States to launch an investigation under the ADA. Under the agreement, Wendy's International, Inc. will either widen the queues in which customers wait to order food, or remove the railings or other dividers marking the queues to accommodate customers who use wheelchairs. Prior to this agreement, customers who use wheelchairs had to cut to the front of the line or stand outside the customer queue and wait to be recognized by a restaurant employee because the queues were too narrow. The agreement resolves a two-year investigation into access issues at Wendy's restaurants by the Department of Justice and State general from Arizona, California, Florida, Illinois, Kansas, Massachusetts, Minnesota, Pennsylvania, and West Virginia. The joint task force visited newly constructed and older Wendy's restaurants in 12 States, which include the nine States, as well as Louisiana, Ohio, and Washington.

Under the agreement, the Ohio-based chain has agreed to --

• either remove or widen the customer queues at all of its nearly 1,700 corporate-owned or leased restaurants in 39 States;
  
• modify its prototype architectural plans for future restaurants, both corporate-owned and franchised, to incorporate accessible customer queue designs;
  
• notify all franchisees of the agreement and their obligations under the ADA, and provide them with technical assistance;
  
• allow the task force to conduct spot checks of restaurants covered by the agreement to ensure that customer queues have been removed or widened;
  
• remove various other barriers found at the 17 newly constructed restaurants visited by members of the joint task force;
  
• pay the joint task force $50,000; and
  
• pay a total of $12,000 in damages to five individuals or entities who filed complaints with the Department of Justice or State Attorney Generals' offices, regarding accessibility at Wendy's.attorneys

Marriott International, Inc., Bethesda, Maryland -- The Department entered into an agreement with Marriott International, Inc., establishing policies for reserving accessible rooms at all of its Courtyard by Marriott facilities throughout the country. This agreement serves as a standard for the hotel industry nationwide. Marriott will ensure that accessible rooms will not be reserved for nondisabled persons unless all other rooms in a facility have been reserved and only accessible rooms are left, and that the central reservations office will be able to guarantee accessible rooms for any Courtyard hotel at a customer's request, provided such rooms are available. It also requires that Marriott's Guest Relations Office maintain a list of accessible rooms at all Courtyard hotels and keep the list updated, and that employees at all Courtyard facilities receive training on the obligations of places of lodging under the ADA. Additionally, Marriott will undertake substantial barrier removal in the parking area, two public restrooms, and guest rooms of a Memphis, Tennessee, Courtyard by Marriott facility that was the subject of a specific complaint, and will purchase equipment to make five additional rooms at that facility accessible to persons with hearing impairments. The complainant alleged that although he and his wife, who has a disability and uses a wheelchair, were guaranteed an accessible room at the facility, they were assigned to an inaccessible room, and staff at the facility did not offer them adequate assistance with finding suitable accommodations elsewhere. Marriott will pay the complainants $10,000 in compensatory damages and will pay civil penalties of $7,500.

Avis Inc., Garden City, New York -- Through a negotiated agreement, the Department resolved its investigation of Avis, Inc., the country's second largest car rental establishment. Under the agreement, Avis has committed to providing rental vehicles equipped with hand controls to persons with disabilities at all corporately-owned locations. Hand controls will be available on eight hours notice in all major airport locations and on 24 or 48 hours notice at other facilities, depending on certain factors. Avis agreed to provide training at all corporate locations. Avis will urge all existing licensees to adopt the same measures, and will require all new franchisees and those renewing their contracts to follow the agreement. The agreement also references two previously-resolved investigations, where Avis has made substantial changes to its rental policies to accommodate persons with disabilities. When renting to persons who do not use credit cards, Avis will allow persons who are unemployed due to a disability to substitute verifiable disability-related income in lieu of a verifiable employment history. Also, persons who cannot drive due to a disability will now be able to rent cars in their own name and maintain financial responsibility for a car rental when they are accompanied by a licensed driver.

Avis Rent A Car will Improve Access to Airport Shuttle Systems for People with Disabilities -- The nation's second largest rental car company agreed to provide accessible airport shuttle buses at all of its airport locations nationwide. The agreement between Avis Rent A Car, Inc., and the Department of Justice resolved a complaint filed by a traveler who uses a wheelchair alleging that Avis violated the ADA by not providing access to the shuttle system that operates between the terminal at the Detroit Metro Airport and its offsite rental car facilities. During negotiations, Avis agreed to expand the agreement to cover all of its airport shuttle systems nationwide. Avis will ensure that --

• each of the 36 shuttle systems at airport locations that it owns and operates will have at least one accessible vehicle by December 2000; some locations will have several accessible vehicles;
  
• all newly acquired large shuttle vehicles will be accessible;
  
• accessible curbside service, under which rented vehicles are delivered directly to the terminal where the customer with a disability is waiting, will be provided at all locations;
  
• barriers to access will be identified and removed at each airport location.

When the Department began its investigation, Avis had only six lift-equipped vehicles out of 286 in its fleet. When Avis is in full compliance with the agreement, it will have at least 153 accessible vehicles.

Dollar, Inc., Washington, D.C. -- Dollar, Inc., one of the largest car rental establishments in the country, agreed to modify its rental policies to permit people with disabilities to rent cars when accompanied by licensed drivers. Prior to the agreement, Dollar required the licensed driver to be the financially responsible party. This policy made it impossible for people with disabilities who cannot drive (for example, people with visual impairments) to rent cars, even when they had a licensed driver accompanying them. Under the agreement, an individual with a disability who is the financially responsible party may rent a car using his or her own credit card, while a driver accompanying the individual presents his or her own driver's license. All Dollar licensees renewing existing contracts or entering into new contracts subsequent to the agreement will be required to adopt the new policy.

Safeway Agreement has Nationwide Impact -- The Department entered a major agreement with Safeway Stores, Inc., affecting all 835 Safeway stores in the United States. The agreement requires Safeway to create at least one 32-inch opening between the security bollards or cart corrals used at the entrances to many of its stores so that customers who use wheelchairs can have greater access. Safeway will also launch a nationwide compliance plan where it will survey all of its 835 stores, determine the areas throughout the stores that do not meet ADA requirements, and take steps to ensure compliance. The agreement resolved a complaint filed with the Department regarding a Safeway store in Washington, D.C. Other parties to the agreement include two individuals with disabilities and the Disability Rights Council of Washington, D.C., which sued the chain under the ADA, as well as the Disability Rights Education and Defense Fund, which had received several complaints about Safeway's California stores.

Smith Barney, Inc., Washington, D.C. -- The Department reached a formal agreement with Smith Barney, a nationwide financial planning services company, as a result of which Smith Barney will provide financial statements and correspondence in large print to its customers with vision impairments. (Smith Barney already provides documents in Braille.) The enlarged print documents will be provided free of charge, upon request. Smith Barney will also pay a person who filed a complaint with the Department $1,500. Notice of the service will be sent to 55,000 new customers, and over 40,000 potential customers, each month.

KinderCare Learning Centers, Inc., Columbus, Ohio -- The Department reached an agreement with KinderCare, the nation's largest proprietary child care provider, that will allow children with diabetes to enroll at any of KinderCare's 1100 centers nationwide. The agreement, which serves as a model for the child care industry throughout the country, requires KinderCare to perform finger-stick tests at the request of parents in order to monitor the blood sugar level of their children and to take appropriate action. It does not require that KinderCare administer insulin injections. KinderCare also agreed to engage in a three-year ADA training initiative for its employees and to appoint a disability services coordinator. The agreement resolves a Department of Justice investigation and a private lawsuit brought by the American Diabetes Association, its Ohio affiliate, and the next friend of Jesi Stuthard. Jesi had been denied the opportunity to attend a KinderCare Learning Center near Columbus, Ohio, because of his diabetes and KinderCare's refusal to perform glucose monitoring.

Nationwide Child Care Agreement Accommodates Children with Food Allergies, Diabetes, other Disabilities -- The Department reached an agreement with La Petite Academy, Inc., the nation's second largest child care provider, protecting the rights of children with severe food allergies and other disabilities, including diabetes and cerebral palsy. La Petite Academy, Inc., which operates over 750 day care centers nationwide, has agreed to administer epinephrine, a form of adrenaline, to those children who experience life-threatening allergic reactions to certain foods, such as peanuts, or bee stings. If authorized by parents and a physician, La Petite staff will use a small pen-like device (sold as Epipen, Jr., or under other names) that carries a premeasured dose of epinephrine to alleviate a reaction. The staff person simply removes a safety cap and presses the pen against the thigh of the child, discharging the epinephrine. The agreement awards damages in the amount of $55,000 to five children who were allegedly affected by La Petite's lack of reasonable modifications for children with disabilities. Three were children whose food allergies prevented them from enrollment without the availability of the Epipen, Jr. Two were children with cerebral palsy, who were denied reasonable modifications in policies, practices, and procedures that would enable them to continue in child care. La Petite also adopted a policy for administering finger-stick tests to measure the blood glucose levels of children with diabetes.

Educational Testing Service, New York, New York -- The Educational Testing Service and the College Entrance Examination Board agreed to schedule more dates in 1994 for more than 20,000 students with disabilities wishing to take the new version of the Scholastic Assessment Test. Under the original testing schedule, students with disabilities requiring accommodations were offered only one date to take the updated version, as opposed to their peers who had several opportunities to take the test. The agreement also allowed approximately 2,600 students with disabilities who took the old version of the test the chance to cancel their scores and retake the new exam.

Carmike Cinemas Inc., Washington, D.C. -- The Carmike Cinema chain, which operates 510 theaters with over 2700 screens in 36 States, has agreed to initiate a nationwide process of barrier removal. The agreement resolves a complaint alleging that certain theaters operated by Carmike in Des Moines, Iowa, were not accessible to individuals who use wheelchairs. Carmike agreed to remove barriers at the Des Moines theaters, including barriers related to inaccessible entrances, restrooms, ticket windows, lobby areas, concessions, wheelchair seating, and parking. Carmike also agreed to conduct a nationwide review of all of its theaters to identify barriers to access. It developed a twenty-page survey that will be completed by theater managers at each theater, and the results will guide the company's barrier-removal program.

Lone Star Steakhouse and Saloons, Wichita, Kansas -- Lone Star Steakhouse and Saloons, a nationwide restaurant chain operating 105 restaurants in 29 States, agreed to bring 97 new or altered facilities into full compliance with the ADA within 45 days, and comply with the ADA in the alteration and new construction of its restaurants in the future. This agreement was the first resulting from a compliance review, a process by which the Department, in the absence of a complaint, reviews architectural plans for new construction and alterations to assess compliance. Initial review of architectural plans revealed violations of the ADA, and site visits confirmed Lone Star's failure to provide accessible routes from parking areas, and other accessible features including seating, restrooms, and parking. Under the terms of the agreement, Lone Star is contributing $25,000 to four disability advocacy groups, in amounts of $6,250 each.

Movie Theater Chain Agrees to Nationwide Agreement -- Cineplex Odeon Corporation, one of the nation's largest operators of motion picture theaters, agreed to increase significantly the number of receivers it provides for assistive listening systems in its more than 800 motion picture theater auditoriums throughout the United States. Prior to this model agreement, Cineplex provided four receivers for each auditorium, regardless of its size. The company will now provide receivers at the rate of two percent of seats in all auditoriums that opened prior to January 26, 1993. It will also provide receivers at a rate of four percent of seats in all auditoriums where audio-amplification systems have been replaced since January 26, 1992, in order to comply with ADA provisions governing alterations to existing places of public accommodation. (The company already provides receivers at the rate of four percent of seats in new theaters, in strict compliance with the ADA Standards for Accessible Design.) Cineplex Odeon also agreed to provide one neck loop per screen in theaters with six or fewer screens and one for every two screens in theaters with more than six screens. Neck loops facilitate the use of assistive listening systems by people who use hearing aids. Additionally, the company will monitor use of assistive listening systems at all theaters and purchase additional receivers where necessary to meet additional demand, even at theaters where receivers will be provided at the rate of four percent of seats.

The agreement also contains strong provisions requiring maintenance, advertisement, and promotion of the use of assistive listening systems. Cineplex will ensure that employees at all theaters know where receivers are located and how they work in order to respond to customer questions, test systems periodically, and ensure prompt repair of equipment. The company will promote the use of assistive listening systems at its theaters by developing a brochure to be distributed to audiologists in all of the areas of the country where it has theaters, by advertising the availability of systems in newspapers and on pre-recorded telephone announcements for every theater, and, beginning January 1, 1997, by displaying an on-screen announcement prior to every feature film shown at a Cineplex Odeon theater indicating that assistive listening systems are available.

Other Agreements

A northeastern State agreed to provide course materials for its State boating safety course in Braille and to administer a Brailled version of the exam for a boating safety certificate.

A person who is deaf complained that a New Hampshire police department would not provide a qualified sign language interpreter for an open house event advertised in the newspaper. The deputy chief of police agreed to provide qualified sign language interpreters for public meetings and to provide staff training on how to effectively communicate with people who are deaf, including how to obtain the services of a qualified sign language interpreter. The complainant agreed to assist the police department with the training.

A large town in Massachusetts agreed to install Braille signage and widen an access aisle at its community center.

Sixty-four franchise restaurants of a nationally recognized quick service chain in Maine reached an agreement with the U.S. Attorney for the District of Maine to provide access to individuals who are unable to use drive-through speakers, including persons who are deaf or hard of hearing or who have speech impairments. Each restaurant will post clearly visible signs at the drive-through order board informing customers that picture menus and assistance are available for customers with speech or hearing disabilities at the restaurant's pick-up window. In addition, pencils, pens, and paper will be readily available at the pick-up window for customers who indicate they wish to write their order. Drive-through staff will be fully trained in the ADA's requirements for restaurants.

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.

Mediation

A person with a heart condition complained that a Rhode Island restaurant's accessible restroom was not available to people with disabilities because it was routinely occupied by staff using it as a changing room. The restaurant agreed to issue a written policy statement to the staff prohibiting employees from using accessible restrooms as changing rooms except in an emergency.

A wheelchair user complained that a Massachusetts shopping mall did not have enough accessible parking. The mall owner agreed to create twelve additional accessible parking spaces and to replace two signs in front of the existing accessible spaces that had been torn down. He also agreed to install a ramp in front of one of the stores and to resurface three existing ramps.

In Vermont, a person complained that a dance hall did not have accessible restrooms. The owner agreed to make the restrooms accessible.

In Massachusetts, a person complained that a movie theater complex did not have an effective assistive listening system and that films were shown in inaccessible theaters. The theater owner agreed to provide an effective assistive listening system and to rotate the films so that each film is shown in accessible theaters.

A person with a physical disability who uses a service animal complained that a Massachusetts restaurant initially refused to serve her, claiming that it only permitted guide dogs for blind persons. The restaurant's policy was based on misinformation provided by a local health organization. The director of the health organization apologized to the complainant for unintentionally misinforming the restaurant owner about the ADA and for the humiliation that resulted. The director agreed to write an article about the ADA and service animals for a State health organization publication and to inform all restaurant owners in the local area of the rights of people who use service animals. The director also agreed to enclose an informational flyer in all license renewal notices in the next year. The restaurant owner apologized to the complainant for the discomfort that was caused and agreed to change the restaurant policy to comply with the ADA. The owner also agreed to purchase an educational video and to utilize it to train the entire staff at the restaurant.

Decisions

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.

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.

Supreme Court Says ADA Clearly Protects Prison Inmates -- In a unanimous opinion the Supreme Court ruled in Pennsylvania Department of Corrections v. Yeskey that a motivational boot camp operated for selected inmates by the Pennsylvania State prison system is subject to the requirements of title II of the ADA. Prisoners who successfully complete the boot camp program are entitled to a significant reduction in their sentence. The Court agreed with the Department of Justice in ruling that the broad language of title II clearly covers prisons and provides no basis for distinguishing programs, services, or activities of prisons from those provided by other public entities. It rejected the State's arguments that the law is ambiguous and that prisoners cannot be "qualified individuals with disabilities" because they are not in prison voluntarily.

Supreme Court Declares that Unjustified Isolation Is Discrimination -- In Olmstead v. L.C., the Supreme Court ruled that the ADA's "most integrated setting appropriate" mandate requires States to avoid undue institutionalization of people with disabilities. As urged by the Department in its amicus brief, the Court upheld the ruling of the U.S. Court of Appeals for the Eleventh Circuit that Georgia may have violated the ADA by confining two individuals with mental disabilities in an institution rather than providing services through a community-based program as recommended by the State's treating professionals. In finding that unjustified isolation is a form of discrimination under the ADA, the Court pointed to the stigma of unworthiness, and the unequal access to family and social interaction, employment, education, and cultural enrichment that result from unnecessary institutionalization. According to the Court, an institutional placement is unjustified when the State's treatment professionals have determined that community placement is appropriate, the transfer is not opposed by the individual, and the placement can be accomplished without fundamentally altering the State's program. In applying the fundamental alteration defense, courts are to consider not only the expense of providing community-based care to the plaintiffs in a particular case, but also the "need to maintain a range of facilities for the care and treatment of persons with diverse disabilities" and "the States' obligation to administer services with an even hand."

Supreme Court Affirms that Receipt of Social Security Disability Benefits Does Not Automatically Bar ADA Suit -- The Supreme Court unanimously ruled in Cleveland v. Policy Management Systems Corp., as urged by the Department in an amicus brief, 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. In Cleveland, the plaintiff, after suffering a stroke and losing her job, applied for and obtained Social Security benefits, claiming she was unable to work because of her disability. Subsequently, she filed suit under the ADA contending that she was qualified for the job and that she was discriminated against because the employer fired her without providing reasonable accommodation. The Court agreed with the Department 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 a disability. 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. The court also ruled that, in order to avoid having her suit dismissed, the plaintiff must provide an explanation that would allow a reasonable juror to conclude that, despite having applied and received Social Security benefits, the plaintiff could still perform the essential functions of her job with or without reasonable accommodation.

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.

Supreme Court Rules Asymptomatic HIV-infected Patient is Person with a Disability -- The Supreme Court decided in Bragdon v. Abbott that asymptomatic HIV status is a disability under the ADA. Plaintiff, a dental patient in Bangor, Maine, infected with HIV, but who had no outward symptoms of the disease, was denied treatment by a dentist. The patient filed suit under the ADA, alleging that, as a result of the virus, she was "disabled" and therefore protected by the Act. The U.S. Court of Appeals for the First Circuit held that the patient's asymptomatic HIV status constituted a disability because it was a physical impairment that substantially limited the "major life activity" of reproduction. The Supreme Court agreed with the amicus brief filed by the Department of Justice and upheld the court of appeals in a 5-4 decision, finding that asymptomatic HIV status met all the requirements under the statutory definition of a disability -- it is a physical impairment (from the moment of infection), it impairs the major life activity of reproduction, and it "substantially limits" that activity. The court also emphasized that its conclusion was consistent with the Department of Justice's views on this issue as expressed in its regulations and technical assistance manual. As to whether the plaintiff's HIV infection posed a "direct threat" to the dentist's health, the Supreme Court sent the case back to the court of appeals for further review of the evidence.

Supreme Court Will Review Constitutionality of ADA Damages Suits Against States -- The Supreme Court will review the decision of the U.S. Court of Appeals for the Eleventh Circuit in Garrett v. University of Alabama at Birmingham, which upheld the constitutionality of title I and title II lawsuits brought by individuals seeking damages awards from States. The Department intervened to defend the ADA in numerous suits nationwide, including Garrett. Most appellate courts have agreed with the Department and upheld the ADA suits against States. Garrett is a consolidation of two employment suits against Alabama State agencies. One involves the alleged discriminatory demotion of an individual with breast cancer by the University of Alabama, and the other a claim that the Alabama Department of Youth Services failed to reasonably accommodate an individual with chronic asthma. States have argued that, because the ADA's protections go beyond the equal protection rights guaranteed by the Fourteenth Amendment, Congress lacks authority to subject them to lawsuits under title I and title II of the ADA. The Department, however, believes that the ADA is constitutionally appropriate legislation to remedy the history of pervasive discrimination against people with disabilities, and almost all of the appellate courts have agreed.

 

 

last update: June 27, 2000