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

Enforcing the ADA

A Press Report from the Department of Justice for the Southwest Region: Arkansas, Louisiana, New Mexico, Oklahoma, and Texas

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

U.S. v. Neurological Surgery, Inc. — The Department filed suit in the U.S. District Court for the Northern District of Oklahoma against Neurological Surgery, Inc.(NSI), a Tulsa consortium of privately practicing neurosurgeons who allegedly violated the ADA by refusing to render medical services to an individual because he was HIV-positive. During a medical evaluation of the patient, the NSI physician allegedly became aware of the patient's HIV-positive status and then refused to provide medical services solely because of that status.

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 I

United States v. Town of Tatum, New Mexico -- Tatum, New Mexico agreed to pay $40,000 in back pay and compensatory damages to resolve a retaliation suit brought by the Department on behalf of a former town employee. The lawsuit alleged that the town discharged the individual from his position as an emergency medical technician in retaliation for his having obtained a favorable monetary settlement in a lawsuit he previously had filed against the town under title I of the ADA. The Equal Employment Opportunity Commission referred this charge to the Department after a finding of reasonable cause and an unsuccessful effort to conciliate by that agency. The town also agreed to post a notice about ADA rights and remedies on town property, and provide ADA training to town employees and elected officials.

United States v. City of Slidell, Louisiana -- The Department resolved by consent decree a reasonable accommodation suit against Slidell, Louisiana, brought on behalf of Gregory Smith, an employee in the city's department of parks and recreation. The lawsuit alleged that the city failed to reasonably accommodate Mr. Smith's chronic knee condition, which had resulted from an on-the-job injury, and that the city discharged him because of his disability without discussing with him whether he could continue to do the job. Under the consent decree, Mr. Smith received $2,000 in compensatory damages and over $21,000 in back pay. He did not seek reinstatement to his job. The case originated as a charge filed with the Equal Employment Opportunity Commission that was referred to the Department of Justice for litigation when conciliation efforts failed.

Allen v. Russell -- A commercial landlord who allegedly refused to allow removal of architectural barriers and to lease office space to a prospective tenant because of his quadriplegia will pay damages and remove barriers under an agreement with the U.S. Attorney for the Western District of Oklahoma. The Department intervened to support the plaintiff in this suit involving a small commercial office building in Pauls Valley, Oklahoma. The plaintiff alleged that the defendants refused to rent to him, but subsequently leased the premises to a friend of the plaintiff acting as plaintiff's representative. Several days later, however, the landlord allegedly told plaintiff that he would have to move. The plaintiff also alleged that the landlord retaliated against him for exercising his ADA rights, refused to remove architectural barriers, and even prevented the plaintiff from removing barriers at plaintiff's own expense. Under the consent decree the defendants will pay $20,000 to the plaintiff and develop and implement an ADA compliance plan to remove barriers to access.

United States v. Louisiana Department of Public Safety and Corrections -- The Department settled by consent decree a suit alleging that the Louisiana Department of Public Safety and Corrections violated title I by failing to provide a reasonable accommodation to Edward Smith, a former corrections sergeant in the Department of Corrections who sought to be rehired. Mr. Smith lost his sight in one eye after being assaulted by an inmate. When he asked to be rehired, he requested as a reasonable accommodation to be allowed to wear protective head gear to guard against the possibility of a second assault that could leave him blind. Louisiana refused. Under the consent decree Louisiana was required to pay $47,000.00 in damages to Mr. Smith.

United States v. Morvant -- Under a consent order a New Orleans, Louisiana dentist, Dr. Drew B. Morvant, agreed to pay $60,000 in damages to the family of one deceased patient, Ismael Pena, $60,000 to another patient, and to stop discriminating against persons with HIV or AIDS. A Federal court had earlier ruled that Morvant violated the law by referring persons with HIV or AIDS to another dentist solely on the basis of the patient's HIV-positive status. Under the consent order, Morvant may refer such patients to another dentist only when the dental treatment being sought or provided is outside his area of expertise. The order also requires Morvant and his staff to undergo training on the treatment of persons with HIV or AIDS, infection control in the dental workplace, and the ethical duty to treat persons with HIV or AIDS.

United States v. Reunion Hotel/Tower Joint Venture, et al. -- The Department filed, and resolved by consent decree, a lawsuit involving accessibility problems at the Hyatt Regency Dallas Hotel. Under the consent decree, the Hyatt Corporation and the owners and asset managers of the Hyatt Regency Dallas Hotel agreed to provide 28 fully accessible guest rooms; to modify three sets of restrooms on the first, second, and third floors of the hotel to make them accessible; and to construct ramps providing access to the hotel's swimming pool and hot tub areas. The defendants will also offer 24 individuals with disabilities compensation in the form of either a return visit to the hotel at the defendants' expense or $1,500 in cash. The consent decree resolved a lawsuit filed on the same day as the consent decree by the Department of Justice in the United States District Court for the Northern District of Texas. The suit alleged that the Hyatt Corporation, which operates the facility, violated title III of the ADA by failing to remove architectural barriers to access where it is readily achievable to do so. Also named as a defendant was the partnership that owns the facility, and its asset manager, the Woodbine Development Corporation. The lawsuit arose from a complaint filed with the Department by several children and adults who attended a conference of the Spina Bifida Association of America at the landmark hotel in June 1992.

United States v. Jack H. Castle, D.D.S., Inc. d/b/a Castle Dental Center - In the first AIDS-related agreement with a dental service under the ADA, a Houston, Texas dental office will pay $100,000 in damages and penalties for refusing to treat a patient who revealed that he was HIV-positive. Under the proposed consent order defendant Castle Dental Center, a large chain of dental offices in the Houston area, will pay $80,000 in compensatory damages to a person who was denied dental services because of HIV status, the largest amount of damages obtained to date by the Department on behalf of a complainant. The owner of the Center and its management company will each pay a $10,000 civil penalty to the Federal Government. The defendants will also provide full and equal services to persons with HIV or AIDS, train their staff in nondiscriminatory treatment of persons with HIV or AIDS, and send periodic reports to the Department so that compliance with the order can be monitored.

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 student-athletes 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.

United States v. Gibson's Discount Centers, Inc.-- A lawsuit and consent decree were filed simultaneously to resolve this case against the operator of 31 discount department stores in eight Midwest and Rocky Mountain States. The Department investigated complaints against several Gibson's stores alleging that Gibson's had failed to remove architectural barriers to access and that it had made alterations without complying with the ADA's Standards for Accessible Design. Under the terms of the consent order, Gibson's will bring every one of its stores into full compliance with the Standards. Gibson's will provide at least one accessible fitting room and entrance at each store, as well as accessible parking, check-out aisles, and restrooms. In addition, Gibson's will pay a civil penalty of $30,000 to the United States, and will pay compensatory damages of $15,000 to the complainant.

Amicus Briefs

Title I

Gilbert v. Eckerd Drugs -- It is not necessary to first 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. In Gilbert, the drug store defendant withdrew its motion to dismiss after the Department filed its brief.

Formal Agreements

Title I and Title II

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.

Title II

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 the following localities --

Assumption Parish, Louisiana
Davenport, Louisiana
St. James Parish, Louisiana
McAlester, Oklahoma
Creek County, Oklahoma
Pryor City, Oklahoma
Rogers County, Oklahoma
Bartlesville, Oklahoma

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.

Auxiliary Aids and Services -- The Department reached separate agreements with police departments in Montgomery County, Maryland, Glendale, Arizona, Roswell, New Mexico, and Rochester, New York, requiring them to develop policies and procedures to ensure that appropriate auxiliary aids and services are provided in their interactions with individuals who have hearing impairments. The departments agreed to establish procedures to ensure that deaf individuals who use sign language would have interpreters in circumstances where interpreters are necessary for effective communication -- for example, when criminal suspects are being advised of their constitutional rights or being questioned by police. The police departments agreed to train police officers on the appropriate use of interpreter services and to ensure that interpreters are sufficiently qualified.

Roswell, New Mexico -- An agreement was reached between the Department of Justice and the City of Roswell, New Mexico, Municipal Court in which Roswell agreed to adopt a written policy to provide qualified interpreters in court proceedings when necessary to ensure effective communication with individuals who are deaf or hard of hearing.

Houston, Texas Police, Courts, and Jail to Improve Communication with Deaf Individuals-- The City of Houston will significantly improve the way its municipal courts system, police department, and jail communicate with people who are deaf or hard of hearing. Under the agreement, the Houston police, courts, and jails will each appoint an ADA coordinator, purchase TTY devices that will enable the agencies to communicate effectively by telephone with deaf TTY users, and train staff in how to operate the devices.

The Houston Police Department will --

• adopt a new "General Order" instructing police officers on how to interact with witnesses, victims, and suspected criminals who are deaf or hard of hearing;
  
• require that a qualified interpreter be called in any time a person who is deaf and needs an interpreter is involved in a major accident, is suspected of a felony, is under arrest, is being given a test measuring alcohol consumption, or is giving a statement in a case; and,
  
• provide training about the new procedures for every officer at the rank of sergeant and above, and ensure that the new General Order is discussed with every officer during roll call.

The city jail will --

• inform all people under arrest, who are deaf or hard of hearing, that they have a right to auxiliary aids and services at every step of the criminal justice process;
  
• maintain a list of qualified interpreters, who will generally be available within one hour of a request; and,
  
• ensure that there is effective communication between persons who are deaf or hard of hearing and the medical staff at the jail health clinic.

In addition, the municipal court system will --

• adopt a new written policy guaranteeing appropriate auxiliary aids and services for participants in court proceedings, including parties, witnesses, jurors, and spectators;
  
• provide information about the new policies on all official notices of court dates, including tickets, summonses, and other similar notices, and publish notices in legal periodicals that reach the city's legal community; and,
  
• provide training on the new policies for every judge and court administrator.

Adair County, Oklahoma -- The Department reached an agreement with Adair County, Oklahoma, resolving a complaint concerning the accessibility of programs, services, and activities offered in the Adair County Courthouse. The county agreed to relocate court proceedings from the inaccessible courthouse to an accessible courtroom in the courthouse annex upon appropriate notice by individuals with mobility impairments. Court spectators are required, and court participants, such as parties, jurors, attorneys, and witnesses, are requested, to give reasonable notice. The county also agreed to install appropriate signage for a van accessible parking space, adjust opening force on the interior doors, install stable, accessible writing surfaces in the clerk of court's office, and remodel the men's and women's restrooms to be accessible.

Tillman County, Oklahoma -- The Department entered an agreement with the Tillman County, Oklahoma Jail resolving a complaint that the jail failed to provide effective communication for a hard of hearing individual who was arrested and incarcerated. The jail agreed to purchase two TDD's, develop and implement an effective communications policy, revise its medical screening form to ask if an inmate has any effective communications needs, and provide related training for its staff.

Beggs, Oklahoma -- The Department entered into an agreement with the City of Beggs, Oklahoma, to resolve a complaint alleging that the services, programs, and activities of the Beggs City Hall are inaccessible to people who use wheelchairs. The City of Beggs agreed to design and construct a new accessible facility that will house the services, programs, and activities of Beggs City Hall. The new facility will also serve as the location for a new fire station and a new police station. The city also agreed to continue to provide access to the programs, services, and activities of the city hall in the meantime by relocating them to accessible locations and to provide appropriate signage directing people to these locations.

Oklahoma County, Oklahoma -- The Department entered an agreement with Oklahoma County, Oklahoma, resolving a complaint concerning the accessibility of programs, services, and activities offered in the county courthouse. The county will remove physical barriers to access and adopt a policy describing its program accessibility and effective communication obligations that will be published on the county's web site and in a county newspaper. An accessible entrance into the courthouse will be provided, toilet rooms on the first and seventh floors of the courthouse will be altered, elevator signage will be modified to improve accessibility, two courtrooms will be designated as accessible to persons who use wheelchairs and the elements of those courtrooms will be modified to provide an accessible route that connects the main courtroom entrance, spectator seating area, participant seating area, witness stand, jury box area, jury deliberation room and jury rest room. In addition, wheelchair seating will be provided in the jury box, witness stand, and spectator seating area.

Evangeline Parish, Louisiana -- The Evangeline Parish Police Jury agreed to complete a self-evaluation of its compliance with title II and a transition plan identifying structural changes needed to make its programs accessible.

Bogalusa, Louisiana -- The City of Bogalusa, Louisiana, agreed to complete its self-evaluation and transition plan.

Beauregard Parish, Louisiana -- The Beauregard Parish Police Jury agreed to complete its self-evaluation and transition plan. These documents will address accessibility issues at a wide range of facilities including the parish jail, courthouse, civic center, public works building, and tourist center.

Self-evaluations and Transition Plans -- The town of Ferriday, Louisiana and the Vernon Parish Police Jury in Louisiana agreed to complete self-evaluations and transition plans and to report to the Department on their implementation.

Seminole, Texas -- The Department reached an agreement with the Seminole Police Department in response to a complainant who alleged that the police department failed to provide her son with a sign language interpreter when taking his statement after he was involved in a car accident. Seminole agreed to provide sign language interpreters when necessary to ensure effective communication.

City of Tulsa and Tulsa County, Oklahoma -- Under separate agreements, the City of Tulsa Police Department and the County of Tulsa Sheriff's Department agreed to provide appropriate auxiliary aids and services, including qualified interpreters and TDD's, when necessary to assure effective communication between their departments and members of the public who are deaf or hard of hearing. Additionally, the county has purchased two TDD's for use at the city/county jail facility and will make them available for use at all times and under the same circumstances that telephones are available to other inmates. At least one TDD will remain in the booking section of the facility at all times and a TDD will be available for use in holding cells occupied by persons with hearing disabilities. Detained individuals will be allowed to use a TDD whenever necessary to make calls, and the county will continue to permit inmates to have toll-free access to "800" numbers for the purpose of calling telephone relay services or TDD operators.

Alexandria, Louisiana -- The Alexandria Police Department agreed to adopt and publicize a policy for the provision of appropriate auxiliary aids, including sign language interpreters, to persons with hearing impairments when necessary to ensure effective communication in arrest and other situations. The Alexandria City Court agreed to provide auxiliary aids when necessary for effective communication, adopted a policy for the provision of sign language interpreters and purchased a telecommunication device for the deaf (TDD).

Harris County (Houston), Texas -- Harris County agreed to make all of the programs offered in each of its 106 courtrooms and jury assembly rooms accessible, to furnish the auxiliary aids necessary to achieve effective communication in all of the county's programs, and to provide staff training.

Scott County, Arkansas -- Scott County agreed to renovate the county courthouse in order to make it readily accessible to individuals with disabilities. Specifically, the county agreed to renovate the courthouse's entrances, restrooms, door hardware, and drinking fountains.

Title III

Holmes Honda World, Shreveport, Louisiana -- Holmes Honda World agreed to install an accessible counter in its dealer showroom to enable individuals who use wheelchairs to transact business. It also agreed to install a unisex, accessible restroom in the dealership. In addition, Holmes Honda World will provide ADA training to all of its employees, including how to respond to inquiries from patrons with disabilities who require accommodations to participate in any service offered by the dealership.

Wal Mart Stores, Inc., Bentonville, Arkansas -- The Department entered into an agreement with Wal Mart resolving complaints filed by individuals with mobility disabilities alleging that Wal Mart Store managers sometimes blocked accessible parking spaces by displaying sale items there. Wal Mart agreed to redistribute to all of its 3,000 store managers its existing policy requiring accessible parking spaces to be reserved solely for the use of individuals with disabilities.

Angelo Community Hospital, San Angelo, Texas -- An agreement requires Angelo Community Hospital to revise its construction plans to conform with the ADA Standards for Accessible Design and to pay $10,000 in civil penalties. This agreement resulted from a compliance review, a process by which the Department reviews selected architectural plans to determine if new construction projects will comply with the ADA Standards. Under the agreement, the hospital will make extensive design changes, including making doorways wide enough to accommodate people using wheelchairs, providing sufficient accessible parking, ensuring that bathrooms are accessible, and installing visual alarms and accessible drinking fountains.

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 Attorneys 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.

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 pre- measured 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 Texas county made several modifications to its courthouse facility, including installing accessible parking spaces, curb ramps, an exterior ramp, handrails for the exterior ramp and exterior stairs, and signage designating routes to accessible entrances. It also ensured the accessibility of its new courthouse annex.

An Oklahoma county provided accessible parking at its courthouse, installed a curb cut to provide access from the parking lot to the street, and constructed a wheelchair ramp that provides access to the first floor of the courthouse.

A Texas county will provide assistive listening devices at its courthouse for individuals with hearing impairments and include accessibility information on county documents such as jury summonses, traffic tickets, and tax assessments.

A Louisiana city agreed to improve accessibility in its civic center by modifying restrooms, public pay telephones, elevators, drinking fountains, and exterior access routes; installing signage, exterior ramps with handrails, an indoor ramp with modifications to its handrails, and wheelchair lifts; and providing accessible parking, accessible seating in the civic center auditorium, and an accessible ticket sales booth.
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A large Texas city developed a transition plan, designated an ADA coordinator, and established grievance procedures for ADA complaints.

Mediation

In Texas, a wheelchair user complained that a government agency was not accessible and had no accessible parking. The agency agreed to provide accessible parking and to modify a building entrance and a men's room to make them accessible. The agency also agreed to move public services to a first floor location when necessary to provide access to people with disabilities and to provide a phone number for people with disabilities to use to request accommodations or auxiliary aids and services.

A person who uses a wheelchair complained that an Arkansas hotel was not accessible. The owner agreed to add an accessible parking space and a van accessible space, install signage directing people with disabilities to the accessible route to the lounge, lessen the force required to open some doors, modify the restrooms in the lobby, including installing visual alarms, and install a roll-in shower in one of the guest rooms. The owner also agreed to train its staff in providing auxiliary aids.

In Louisiana, a person whose wife is a wheelchair user complained that a restaurant did not have adequate accessible parking and also that the only wheelchair accessible seating was located in the smoking section of the restaurant. The restaurant determined that it was not possible to put in a permanent ramp to the non-smoking section given the configuration of the existing room. The restaurant agreed to construct a removable wooden ramp and create two accessible parking spaces in their lot of 40 spaces.

An individual complained that a New Mexico office supply store did not have accessible parking. The store responded by making accessible parking available.

Decisions

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