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

Enforcing the ADA

A Press Report from the Department of Justice for the Great Plains Region: Iowa, Kansas, Missouri, and Nebraska

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

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

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

Steger v. Franco, Inc. -- The Department filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit in support of plaintiffs' right to sue a commercial landlord for failing to remove architectural barriers in a Clayton, Missouri building that houses health care providers and other places of public accommodation. The district court ruled that two of the plaintiff 's lacked "standing" to bring the suit, because they had not yet visited the building when the lawsuit was filed. The Department's brief on appeal argues that the plaintiffs have standing if they can establish that they are likely to use the facility in the future and that the public accommodation contains barriers to accessibility that could limit their access. The brief asserts that in order to have standing, plaintiffs do not first need to try to use the facility, if they reasonably believe that it is not accessible. They only need to show that they are likely to use the facility if the ADA violations are corrected.

Formal Agreements

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 --

Reno County, Kansas
Grand Island, Nebraska
Norfolk, Nebraska

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.

Sioux City, Iowa -- The Department entered an agreement with the Sioux City Human Rights Commission resolving a complaint alleging that the commission refused to provide an American Sign Language interpreter to a deaf participant at a public forum. The commission agreed to adopt policies and procedures that will ensure effective communication for persons with hearing and speech impairments.

Harrison County, Iowa -- The Department entered an agreement with the Harrison County Sheriff's Department in Logan, Iowa, resolving a complaint alleging that the jail facility was not accessible to persons who use wheelchairs, and that an inmate was denied the use of a medically prescribed egg-crate foam mattress. The Sheriff's Department has agreed to relocate inmates who use wheelchairs to another facility in adjacent Cass County that is accessible. The Sheriff's Department will provide visitors with the option of visiting the inmate during regularly scheduled hours of visitation either at the Harrison County Jail, or at the accessible jail facility in Cass County. If the site of visitation chosen is the accessible jail facility, then the Sheriff's Department will provide the visitors with transportation to that facility. Additionally, the Sheriff's Department has agreed to provide inmates with equipment or medication prescribed by a physician, unless it is determined, on an individual basis, to pose a direct threat to the safety of others.

St. Louis, Missouri -- The St. Louis Land Clearance Redevelopment Authority (LCRA) signed an agreement to resolve a complaint alleging that the ticket pricing, companion seating, and parking policies and procedures of the St. Louis Arena discriminated against individuals with disabilities. Because the Arena recently closed, the agreement does not require changes at the Arena. However, it does require the LCRA to maintain nondiscriminatory policies. Moreover, it provides for the LCRA to pay over $16,000 in compensatory damages to three complainants.

Fulton, Missouri -- The Department settled a complaint filed against the Municipal Court for the City of Fulton and the Office of the Clerk of the Municipal Court. The complaint alleged that the city did not ensure effective communications with persons who are deaf or hard of hearing. The city has agreed to provide appropriate auxiliary aids and services; provide training for personnel; publish a policy that provides reasonable modifications in policies, practices, and procedures for people with disabilities; incorporate instructions for obtaining reasonable modifications in policies, practices, and procedures into the existing language on its traffic citations; and work with the county government to ensure that the municipal courtroom in the county courthouse is accessible.

Title III

Fremont YMCA, Fremont, Nebraska -- The Department entered into an agreement with the Fremont YMCA resolving a complaint alleging violations of the ADA Standards for Accessible Design in a new addition and renovations project as well as violations of the barrier removal requirement for existing facilities. The YMCA is a multi-story facility and, although there was an existing elevator shaft, it was not large enough to accommodate an elevator that complied with the ADA Standards. Under the agreement, the YMCA agreed to enlarge the elevator shaft and install a new elevator. The YMCA also agreed to make changes to the parking, men's locker room, women's pool locker room, fitness studio, signage, doors, and ramps in order to make the facility accessible to and usable by people with disabilities.

Andy Williams Moon River Theater, Branson, Missouri -- An agreement with Moon River Enterprises will improve accessibility for patrons of the Andy Williams Moon River theater in Branson, Missouri. The agreement requires the owner to nearly triple the number of accessible seats in the theater, install additional signs directing patrons to accessible routes, lower the public telephones, and install visual alarms and alternate stalls in the bathrooms.

Paradise Grill, Branson, Missouri -- The Department entered into an agreement with the Paradise Grill restaurant in Branson, Missouri, resolving a complaint alleging that the restaurant was not designed and constructed in compliance with the new construction standards of the ADA. The owner and architect agreed to make the restaurant's parking facilities and main entrance more accessible, provide accessible signage at its restrooms, and correct several problems in the restrooms designated as accessible. In addition, the architect paid $1,000 and the owner paid $1,500 in civil penalties.

Applewood Tanning Center, Omaha, Nebraska -- The Applewood Tanning Center has agreed to provide appropriate auxiliary aids and to modify its policies concerning service animals to facilitate participation by customers with vision impairments. The agreement requires Applewood to make its liability release form available in large print, Braille, and audiotape; and to read the release at the request of customers with vision impairments. Applewood agreed to allow service animals into any area of its facility where it allows customers, including tanning areas. The agreement requires all Applewood personnel who deal with customers to undergo a training session at the Omaha office of the Nebraska Services for the Visually Impaired to learn about blindness and the appropriate way to extend service to blind customers. The agreement also provides for the payment of $1,000 to each of two complainants.

Blue Velvet Theater, Branson, Missouri -- The Department entered into an agreement with the Blue Velvet Theater, a newly constructed theater in Branson, Missouri, to resolve a complaint involving inaccessible parking. Branson's country music theaters attract more than 5.8 million tourists each year. An individual with multiple sclerosis alleged that on a visit to the theater he was told by theater employees that he could not park in the parking spaces designated for persons with disabilities because they were being used to park tour buses. The complainant was forced to park in the nonaccessible parking spaces and walk up a steep hill to enter the theater. The investigation also found that the accessible parking spaces had slopes that do not comply with the Standards for Accessible Design, and that there were no van accessible spaces designated. The theater agreed to bring the accessible spaces into compliance and to ensure that these spaces are reserved for persons with disabilities at all times. The theater also agreed to pay damages of $1,000 to the complainant and civil penalties of $1,000.

Omaha Zoological Society, Omaha, Nebraska -- The Omaha Zoological Society, a nonprofit corporation that operates and manages the Henry Doorly Zoo, Lied Jungle indoor rainforest, and its Treetops Restaurant, agreed to remove architectural barriers and to provide auxiliary aids and services. Under the agreement the Society will install a wheelchair lift in the Treetops Restaurant; continue to make electric scooters available to persons with mobility impairments to provide access to the Jungle floor path; remove barriers on the Jungle's path; and make modifications to restrooms. In addition, the society will provide a variety of auxiliary aids and services, including audiotape recordings of the Lied Jungle Trial Guide and information about the rainforest contained on signs located throughout the jungle. Staff will be available to serve as guides to visitors with visual impairments upon request.

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.; and
  
• 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 city in Iowa agreed to relocate one of its polling places to a facility with an accessible ground floor entrance.

A Missouri city with an old city hall agreed to deliver its services and programs through alternative methods, including sidewalk and mail service, and to move public meetings to accessible locations.

The owners of two motels in Branson, Missouri, restriped the motels parking lots to have accessible parking spaces on the shortest accessible route to rooms and amenities, and installed curb ramps.

The Des Moines, Iowa, affiliate of a nationwide rental car company will provide hand controls for persons with disabilities.

A Missouri hotel is now providing TDD's and other devices to hotel guests who have hearing impairments.

Mediation

In Nebraska, a wheelchair user complained that a courthouse was not accessible. The courthouse representative agreed to modify the lift providing access to the first floor so that it could be operated independently without staff assistance. He agreed to relocate any proceedings scheduled for the second floor upon request by persons with disabilities and to post directional signage identifying the location of accessible parking and the accessible entrance at the jail. He also agreed to have a disability rights organization complete an accessibility survey of the courthouse, to have sensitivity training provided for courthouse employees, and to pay the complainant $500.

A person who is deaf complained that a Nebraska dentist's office refused to provide effective communication during an office visit. The dentist agreed to institute a policy ensuring compliance with the ADA and to attend training on both the requirements of the ADA and disability awareness. She agreed to join with a disability rights lawyer in conducting four presentations for professional organizations on the ADA and dentists, wrote a letter of apology to the complainant, and agreed to pay the complainant $100.

In Iowa, a wheelchair user complained that an auction house was not accessible. The owner agreed to build a ramp to the bleachers and to provide a wheelchair accessible seating location.

In Missouri, a person with a mobility impairment complained that a convenience store did not provide accessible parking or an accessible entrance and that the aisles of the store were frequently obstructed, restricting access for wheelchair users. The store installed accessible parking with appropriate signage and a ramp to the entrance. The store also agreed to keep the aisles clear of obstructions.

A wheelchair user complained that a Missouri doctor's office did not provide accessible parking and that curb ramps to the building were too steep. The doctor's office restriped the parking lot to provide four accessible spaces, including two van-accessible spaces, with appropriate signage, and also installed accessible curb ramps.

Decisions

Arrest Procedures are Covered by the ADA -- The failure by Kansas City, Missouri, police to properly transport a wheelchair user who was arrested is covered by title II, according to the U.S. Court of Appeals for the Eighth Circuit in Gorman v. Bartch. The plaintiff suffered neck and shoulder injuries when police failed to properly secure him for the trip to the police station. As urged by the Department in an amicus brief, the court relied on the broad language of title II which covers the programs, services, and activities of all public entities. The court found support for a broad interpretation in the Supreme Court's decision in Pennsylvania Department of Corrections v. Yeskey, which held that activities of State prisons are covered by title II. The Eighth Circuit also rejected arguments that arrest procedures are not covered because being arrested is not a voluntary activity. It found that transportation of arrestees is a "service" of a police department and that safe handling and transportation is a "benefit" which title II requires to be provided in a nondiscriminatory manner.

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