BACKGROUND

1. This matter was initiated by a complaint filed under Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, with the United States Department of Justice ("United States") against Blockbuster Inc. ("Blockbuster"), the owner and operator of retail stores where Blockbuster provides video rental services and sells videos and other goods to the public. Blockbuster owns and operates more than 3,000 retail stores located throughout the United States. The Complainant, an individual with a disability, alleges that Blockbuster denied her an equal opportunity to enjoy its goods, services, and facilities at several stores because the Complainant was accompanied by the Complainant´s service animal. The Complainant alleges that the denial of access continued to occur at Blockbuster stores even though the Complainant had contacted Blockbuster management to ensure that she and her service animal would be allowed in Blockbuster stores and had been assured that such access problems would be properly addressed.
2. The Attorney General of the United States ("Attorney General") is authorized to enforce Title III of the ADA by seeking damages, civil penalties, and full compliance with Title III´s provisions. 42 U.S.C. § 12188(b); 28 C.F.R. § 36.504. The Attorney General may commence a civil action to enforce Title III in any situation where the Attorney General believes that a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. §12188(b)(1)(B); 28 C.F.R. § 36.502.
3. The retail stores owned and operated by Blockbuster are places of public accommodation covered by Title III of the ADA. 28 C.F.R. § 36.104. As the owner and operator of the retail stores, Blockbuster is a public accommodation covered by Title III of the ADA. 42 U.S.C § 12181(7)(F); 28 C.F.R. § 36.104.
4. The ADA prohibits public accommodations, including those operating retail stores, from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods, services, facilities, and accommodations. 42 U.S.C. §12182(a); 28 C.F.R. § 36.201.
5. The ADA specifically requires public accommodations to make reasonable modifications in policies, practices, and procedures to permit the use of service animals by persons with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. §36.302(a), (c).
6. Prior to the United States´ investigation, Blockbuster had taken certain steps to comply with Title III of the ADA, including the adoption and dissemination of relevant policies and providing certain training to store personnel.
7. None of the agreements, statements, or actions reflected herein shall be deemed an admission of wrongdoing or liability by Blockbuster. The agreements, statements, and actions are made in order to compromise and settle certain disputed complaints against Blockbuster and shall not be used for any other purpose except as stated herein.

PARTIES

8. The parties to this Settlement Agreement ("Agreement") are the United States of America ("United States") and Blockbuster (collectively, "the Parties"). The Parties have determined and agreed that the Department of Justice complaint 202‑35-231 can be resolved without litigation pursuant to the terms of this Agreement.
9. Blockbuster expressly asserts that it already has policies and training in place regarding Title III of the ADA and seeks to enhance its policies and practices in the manner set forth below. The United States contends that the steps taken by Blockbuster were inadequate to achieve ADA compliance in connection with Complainant. Blockbuster affirms its commitment to maintain policies, practices, and procedures as outlined in this Agreement to ensure that individuals with disabilities have an opportunity equal to that of individuals without disabilities to enjoy the goods, services, facilities, privileges, advantages, and accommodations of its stores.
10. In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit with respect to the Department of Justice complaint 202-35-231, except as provided in the Enforcement Section of the Agreement. This provision does not limit the United States´ ability to investigate or file a civil suit with respect to allegations not contained in the Department of Justice complaint 202-35-231.

REMEDIAL ACTION

General Nondiscrimination Requirement

11. Consistent with the requirements of Title III of the ADA, Blockbuster will not discriminate against any individual on the basis of disability in the full and equal enjoyment of any of its goods, services, facilities, privileges, advantages, or accommodations. Specifically, Blockbuster will not refuse to make reasonable modifications to policies, practices, and procedures to afford equal access to the goods, services, facilities, privileges, advantages, and accommodations of its Blockbuster stores by persons with disabilities or when otherwise necessary to avoid discrimination against individuals with disabilities, including but not limited to persons who use service animals.

Service Animal Policy

12. Within thirty (30) days after the effective date of this Agreement, to ensure equal access for persons with disabilities who use service animals to all facilities that it operates, Blockbuster will adopt the Service Animal Policy (Policy) attached hereto and incorporated by reference herein as Attachment A to this Agreement.
    
    Within ninety (90) days after the effective date of this Agreement, Blockbuster will distribute the Policy to all Store Managers, who shall distribute the Policy attached as Attachment A to all Blockbuster store employees who have contact with the public. Thereafter, Blockbuster will provide a copy of the Policy to all newly hired store employees as part of its standard onboarding process for all new hires. Further, within sixty (60) days of the effective date of the Agreement, Blockbuster will post a copy of this Policy in all Blockbuster stores in a conspicuous location where employees can readily read the Policy, such as the employee lounge, and will keep the Policy on hand in all stores for any store customers who wish to, upon request, read the Policy. The Policy shall be printed in a dark bold font on a contrasting background in the largest font that fits on two 8.5" by 11" pieces of paper. Physical copies of the posted Policy will be refreshed, as needed, for the life of this Agreement. Within one-hundred twenty (120) days of the effective date of this Agreement, Blockbuster will provide written confirmation to the United States of the issuance and communication to employees and the posting of the Policy in all Blockbuster stores.
    
    Blockbuster will post a link to its Policy under the "Stores" link on its website (http://www.blockbuster.com) in an accessible format (e.g., HTML), consistent with the requirements of Title III of the ADA.
13. For the life of this Agreement, on an annual basis, Blockbuster will redistribute the Policy to all Store Managers, who shall distribute the Policy to all Blockbuster store employees who have contact with the public. Blockbuster will provide the United States with written confirmation of the issuance of this communication to employees.

Training

14. Within two (2) months after a computer based learning module is approved by the United States, and on an annual basis thereafter for the life of this Agreement, Blockbuster will provide educational training through a computer-based learning module concerning anti-discrimination and anti-harassment, including the substantive provisions of the ADA, to all Store Managers. The same training will then be provided within four (4) months of the approval of the module to all Sales Managers and Shift Leaders and within six (6) months of the approval of the module to all Customer Service Representatives, who are not seasonal. Blockbuster will provide written confirmation of such training within 30 days of completing training for its Customer Service Representatives, who are not seasonal. If concerns have been raised about a particular store through the ADA complaint line, Blockbuster shall provide such training within 30 (thirty) days in that store. This training, which is expected to be approximately one hour in duration, with approximately one-third, provided at the beginning of the training, devoted to compliance with Title III of the ADA and issues relating to service animals (which also may include training on prohibitions of discrimination against customers of other protected classes, e.g., race, color, gender, national origin, religion, etc. in public places), shall include the following:
    1. Information on each individual´s duties and obligations under Title III of the ADA generally and with respect to the obligations to make reasonable modifications in policies, practices, and procedures; the obligation to provide auxiliary aids and services; and the obligation to maintain accessible features;
    2. Instruction on Blockbuster´s policy related to the ADA and service animals;
    3. Instruction on procedures to ensure that customers with disabilities accompanied by service animals have access to Blockbuster stores that is equal to the access afforded to customers without disabilities.
    4. A question and answer session to review the foregoing areas; and
    5. Confirmation of module completion for each person attending the program.
    6. Instruction on procedures to ensure that seasonal employees (those employed on a temporary, short-term basis such as holiday season hires) shall take no action other than to refer service animal matters to a manager.
15. Within fifty (50) days after the effective date of this Agreement, Blockbuster will submit its proposed training materials, developed for purposes of complying with Paragraph 14 of this Agreement, to the United States for review. The United States will review the proposed training materials to ensure that they accurately convey the requirements of Title III of the ADA and the Title III-related topics referenced in Paragraph 14 and provide its written comments regarding the training materials to Blockbuster. Prior to implementing its training as required by Paragraph 14 of this Agreement, Blockbuster will modify its proposed training materials in conformance with the written comments provided by the United States.

Grievance Procedure

16. Within ninety (90) days after the effective date of this Agreement, Blockbuster will post in a conspicuous location in the public entryways of all Blockbuster stores a sign prominently stating "Service Animals Welcome – Report Problems to [insert toll free telephone number]", (herein the "ADA Complaint Line"). The signage will be printed in a dark, bold font no smaller than 30 points in size on a contrasting light background and will be refreshed, as needed, for the life of this Agreement.
17. Blockbuster will be responsible for receiving and investigating all ADA Title III-related complaints by customers received through its ADA Complaint Line or as otherwise directed to its corporate offices. Within sixty (60) days after the effective date of this Agreement, Blockbuster will establish and post the toll free telephone number for its ADA Complaint Line under the "Stores" link on its website (http://www.blockbuster.com) in an accessible format (e.g., HTML), consistent with the requirements of Title III of the ADA. For purposes of this Agreement, a complaint alleging any problem related to a customer´s or potential customer´s service animal will be treated as an ADA Title III-related complaint. Within sixty (60) days after the effective date of this Agreement, Blockbuster will designate and train, as necessary, one or more of its regional and headquarters employees who will be responsible for receiving and investigating ADA Title III-related complaints so that such employee(s) are knowledgeable regarding the requirements of Title III applicable to Blockbuster, including effective communication, reasonable modifications, the maintenance of accessible features, architectural requirements, and the terms of this Agreement. In the event one or more of these individuals leaves employment with Blockbuster or assumes other duties, within ten (10) days after such event, one or more individuals will be designated by Blockbuster to assume these responsibilities.
18. For the life of this Agreement, Blockbuster will handle any ADA Title III-related complaints by a customer directed to its ADA Complaint Line or otherwise directed to its corporate offices as follows: (A) within fifteen (15) business days after an ADA Title III-related complaint is received, Blockbuster, will commence an investigation, including contacting the complainant, if necessary, to find out the allegations of the complaint and will investigate the complaint with the appropriate Blockbuster staff where the complaint originated; and (B) Blockbuster will complete its investigation and respond to the complainant within forty-five (45) business days after the complaint is received, including discussing with the complainant, where appropriate, possible resolutions, including training or remedies for Blockbuster staff and relief for the complainant. Blockbuster is not required to disclose any disciplinary action that may be taken against an employee to the complainant. Blockbuster will maintain written records of ADA Title III-related complaints by customers, its investigations, and its responses to those complaints through the life of this Agreement. Copies of such records will be provided to the United States upon request.

Monetary Relief for Complainant

19. The ADA authorizes the Attorney General to seek a court award of compensatory damages on behalf of individuals aggrieved as the result of violations of Title III of the ADA. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2).
20. Within ten (10) days after the effective date of this Agreement, Blockbuster will compensate the Complainant in this matter by issuing a certified check made payable to the order of the Complainant in the amount of twelve thousand dollars ($12,000.00). Blockbuster will deliver the check to counsel for the United States by common carrier United Parcel Service, delivery prepaid, to the following address: William Lynch, Trial Attorney, Disability Rights Section, Civil Rights Division, 1425 New York Avenue, N.W., Washington, D.C. 20005. The United States will obtain Complainant´s signature on a release in the form attached hereto as Attachment B and will notify Blockbuster that it has done so. Upon obtaining Complainant´s signed release, the United States will send the Complainant the certified check described in this paragraph. The United States will send Blockbuster an original of the release signed by the Complainant promptly after confirming receipt of the certified check by the Complainant.
21. Within ten (10) days after the effective date of this Agreement, Blockbuster will issue a check or money order in the amount of ten thousand dollars ($10,000.00) made payable to the order of the United States Treasury as a payment in furtherance of the public interest. 42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3). Blockbuster will deliver the check or money order to counsel for the United States by common carrier United Parcel Service, delivery prepaid, to the following address: William Lynch, Trial Attorney, Disability Rights Section, Civil Rights Division, 1425 New York Avenue, N.W., Washington, D.C. 20005.

ENFORCEMENT

22. If at any time Blockbuster desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the United States, which approval shall not be unreasonably withheld or delayed.
23. The United States may review compliance with this Agreement at any time, including but not limited to testing at any Blockbuster stores. If the United States believes that Blockbuster has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Blockbuster in writing, and it will attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within sixty (60) days of the date it provides notice to Blockbuster, it may institute a civil action in federal court to enforce the terms of this Agreement or Title III and may, in such action, seek any relief available under law.
24. Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the United States´ right to enforce other deadlines and provisions of this Agreement.
25. A copy of this document, including attachments, will be made available to any person by Blockbuster or the United States on request.
26. This Agreement shall be binding on the United States and Blockbuster and its agents, employees, contractors, successors, and assigns.
27. This Agreement, including Attachments A, and B, constitutes the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable. This Agreement resolves Department of Justice complaint 202-35-231 and does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect Blockbuster´s continuing responsibility to comply with all aspects of the ADA.
28. The person signing this Agreement for Blockbuster represents that he or she is authorized to bind Blockbuster to this Agreement.
29. This Agreement will remain in effect for three (3) years.
30. The effective date of this Agreement is the date of the last signature.

 

 

Attachment A

BLOCKBUSTER INC.
POLICY REGARDING SERVICE ANIMALS
FOR PEOPLE WITH DISABILITIES

Blockbuster Inc. is committed to making reasonable modifications in policies, practices, and procedures to permit the use of service animals in its stores by persons with disabilities. Service animals play an important role in ensuring the independence of people with disabilities, and it is therefore our policy to welcome into our stores and business offices any animal that is individually trained to assist a person with a disability.

What is a Service Animal?

Service animals are individually trained to work or perform tasks for individuals with disabilities. Service animals are not always dogs; other animals may assist people with disabilities. Service animals come in all breeds and sizes, may be trained either by an organization or by an individual with a disability, and need not be certified or licensed. Service animals do not always have a harness, sign, or symbol indicating that they are service animals. A service animal is not a pet.

Service animals assist people with disabilities in many different ways, such as:

• Guiding people who are blind or have low vision and retrieving dropped objects for them;
• Alerting people who are deaf or hard of hearing to sounds and the presence of others;
• Carrying and picking up items, opening doors, or flipping switches for people with disabilities who have limited use of hands or arms, limited use of their legs, or limited ability to bend or stoop;
• Pulling wheelchairs;
• Alerting people with disabilities to the onset of medical conditions such as seizures, protecting them and cushioning them if they fall, reviving them, and performing other tasks that reduce the risk of disability-related injury;
• Doing work or performing tasks for persons with traumatic brain injury, intellectual disabilities, or psychiatric disabilities, such as reminding a person with depression to take medication or waking him up, alerting a person with anxiety to the onset of panic attacks, orienting people with schizophrenia to reality, and helping people with intellectual or cognitive disabilities to locate misplaced items, find places, or follow daily routines; and
• Providing physical support and assisting people with physical disabilities with stability and balance.

Requirements Regarding Service Animals:

Most of the time, people with disabilities, who use service animals, may be easily identified without any need for questioning. If we can tell by looking, do not make an individual feel unwelcome by asking questions. However, if we are unsure whether an animal meets the definition of a service animal, it is Blockbuster´s policy to ask the individual only one question at the point when the individual seeks entry to the store or office:

• Is your animal a service animal required because of a disability?

If the individual says yes or otherwise explains that the animal is required because of a disability, Blockbuster will welcome the person and service animal into the store or office. Once an individual with a service animal has answered that one question, we will not ask any further questions about his or her service animal. Blockbuster will not ask an individual any questions about his or her disability or ask an individual to show a license, certification, or special ID card as proof of their animal´s training.

If other customers complain about the presence of a service animal, explain to them that federal law protects the right of the person to be accompanied by service animals in public places. Blockbuster will permit service animals to accompany individuals with disabilities to all areas of our stores normally used by customers or other members of the public and will treat individuals with service animals with the same courtesy and respect that it affords to all of our customers and to other members of the public who visit our stores or offices. Thus, Blockbuster will not interfere with the important work performed by a service animal by talking to, petting, or otherwise initiating contact with a service animal.

Manager Responsibilities

In the event that a particular service animal´s vicious behavior poses a direct threat to the health or safety of others, Blockbuster has the right to exclude that animal from our store or office at that time. Barking alone is not a direct threat. In addition, a direct threat does not exist if the service animal´s owner takes prompt, effective action to control the animal.

Only Store Managers, with the approval of their District Manager or Human Resources Manager, can make the decision to exclude a service animal because it poses a direct threat. We will not exclude a particular service animal based on past experiences with other animals, or based on fear that is not related to an individual service animal´s actual behavior. Each situation will be considered individually. In the event Blockbuster excludes a service animal because of a direct threat, the individual with a disability will still be welcome in our stores when he or she is not accompanied by that particular service animal.

Please handle any inquiries or complaints about this policy in accordance with our usual procedures by referring the inquiry or complaint to the Store Manager or District Manager.

 

Attachment B

WAIVER AND RELEASE OF CLAIMS

I, ________________________________, hereby agree that in consideration of the terms set forth in the Settlement Agreement under the Americans with Disabilities Act between the United States of America and Blockbuster Inc. (Agreement), I hereby release Blockbuster Inc. and all of its agents, employees, and contractors, as well as any affiliated entities, successors, and assigns, without limitation, from any and all legal claims arising from or related to the facts and circumstances described in Paragraph 1 of the Agreement resolving Department of Justice complaint number 202-35-231 under title III of the Americans with Disabilities Act. This includes all claims for monetary or equitable relief that I may have under federal, state, or local law based on the facts alleged in complaint number 202-35-231. I have been advised that, before signing this release, I have the right to consult a private attorney regarding its contents. I have read this release and understand its contents, and choose to sign it of my own free will and not under duress.

AGREED:

__________________ Date

____________________________________________ Signature