Enforcing the ADA:

2. New lawsuits

Title II

Dillworth v. City of Detroit -- The Department moved to intervene in a lawsuit filed in the U.S. District Court for the Eastern District of Michigan, challenging the inaccessibility of Detroit’s public transportation system. The Department’s complaint alleged that the City of Detroit failed to maintain and repair the wheelchair lifts of the city’s fixed-route bus system, denying individuals with disabilities an equal opportunity to benefit from public transportation. The complaint described situations where individuals who use wheelchairs were allegedly forced to wait, often 30 minutes or more, while multiple buses with inoperable lifts passed them by, often leaving them stranded as they attempted to get to work, church, medical appointments, grocery shopping, and numerous other essential destinations. The complaint also alleged that Detroit has approximately 120 buses with lifts that have not been working for more than six months and that the city does not intend to make the needed repairs.

Defending the Constitutionality of Title II -- The Department intervened in four additional lawsuits to defend the constitutionality of title II of the ADA. In Tennessee v. Lane the Supreme Court upheld the constitutionality of title II in cases involving the fundamental right of access to courts. The Department intervened in the following cases to support title II’s constitutionality in other areas as indicated --

Courts of Appeals

Roe v. Johnson (2d Circuit)(attorney licensing)

Bill M. v. Nebraska Department of Health and Human Services Finance and Support (8th Circuit)(institutionalization)

Constantine v. Rectors and Visitors of George Mason University (4th Circuit)(law school testing accommodations and retaliation)

District Court

Birdsong v. Perdue (N.D. Georgia)(institutionalization)

3. Amicus Briefs

Title II

George v. Bay Area Rapid Transit District -- The Department filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in order to defend the Department of Transportation’s (DOT) regulations implementing title II of the ADA in public transportation. Plaintiffs filed suit against the Bay Area Rapid Transit District (BART) alleging that public entrances at four BART stations were inaccessible to persons with vision impairments. The U.S. District Court for the Northern District of California ruled that the DOT regulations, as applied to accessible routes, were invalid because they were not adequate to ensure that the required accessible route would be accessible to individuals who are blind or who have low vision. The Department argued on appeal that the DOT regulations were a reasonable interpretation of the ADA because the government carefully considered the needs of people who are blind or who have low vision and issued rules that, taken as a whole, address the obligation of public transportation facilities to provide access to these individuals.

Title III

Spector v. Norwegian Cruise Lines, Ltd -- The Solicitor General filed an amicus brief in the Supreme Court in Spector v. Norwegian Cruise Lines, Ltd., arguing that cruise ships sailing under foreign flags are covered by the ADA when operating in U.S. ports. The plaintiffs, who are individuals with mobility disabilities and their nondisabled companions, filed suit under the ADA alleging that the cruise line discriminated against them on a cruise from Houston, Texas, by imposing a surcharge for an accessible cabin; by failing to remove architectural barriers to ship facilities and services, such as public restrooms, restaurants, swimming pools, and elevators; and by failing to make reasonable modifications in policies needed to include people with disabilities in the ship’s emergency evacuation procedures. The Supreme Court is reviewing the decision of the U.S. Court of Appeals for the Fifth Circuit in this case, which held that title III does not apply to foreign-flag cruise ships even when they voluntarily enter U.S. ports to receive passengers. Relying on general international law principles that domestic law may not be applied to foreign-flag ships without specific evidence of congressional intent to do so, the Fifth Circuit found no indication either in the statutory text or the legislative history that Congress intended title III to apply to foreign-flag cruise ships. This Fifth Circuit decision is in conflict with an earlier decision of the Eleventh Circuit in Stevens v. Premier Cruises, Inc. which agreed with the Department’s amicus brief in that case arguing that foreign-flag ships operating in U.S. ports are covered by title III. In the Supreme Court, the Department argued, as it did in the courts of appeals, that the ADA applies to foreign-flag cruise ships when they voluntarily enter U.S. ports to receive passengers and that such coverage does not result in an unlawful extraterritorial application of the statute because the discrimination occurs in U.S. internal waters.

4. Consent Decrees

Title III

** U.S. v. Fairview Health Services -- The United States Attorney’s Office for the District of Minnesota entered a consent decree with Fairview Health Services settling a lawsuit alleging that Fairview failed to provide qualified sign language interpreters and other services to deaf patients. Under the agreement, Fairview agreed to hire one or more qualified sign language interpreters who will be available 24 hours a day, seven days a week, to provide effective communication at each of the five Fairview hospitals and agreed to pay $188,000 in damages to four complainants and a $20,000 civil penalty to the United States. Fairview will also rewrite its hospital policy and procedures to bring them into compliance with the ADA, develop patient and visitor information and notices in forms that are accessible to deaf and hard-of-hearing patients, and conduct comprehensive training of hospital personnel.

B. Formal Settlement Agreements

Title II

** Project Civic Access Agreements Signed by Seven More Communities -- The Department has signed seven additional agreements under its Project Civic Access initiative, a wide-ranging effort to ensure that cities, counties, towns, and villages throughout the United States comply with the ADA. The new agreements cover --

Sedona, Arizona;
Hutchinson, Kansas;
San Luis Obispo, California;
Cheshire County, New Hampshire;
Washington County, Utah;
Carpinteria, California; and
Missoula County, Montana

The goal of Project Civic Access is to ensure that people with disabilities have an equal opportunity to participate in civic life. Departmental investigators, attorneys, and architects survey State and local government facilities and programs across the country for the purpose of identifying modifications needed to comply with ADA requirements. Depending on the circumstances in each community, the agreements address specific areas where access can be improved. To date, 111 Project Civic Access agreements have been signed. Each community agreed to take specific steps, depending on local circum-stances, to make core government functions more accessible to people with disabilities. The agreements have improved access to many aspects of civic life including, courthouses, libraries, parks, sidewalks, and other facilities, and address a wide range of accessibility issues, such as employment, voting, law enforcement activities, and emergency preparedness and response.

Nevada State Welfare Division, Las Vegas, Nevada -- The Department entered an agreement with the Nevada State Welfare Division to resolve two complaints alleging that the Welfare Division failed to provide qualified interpreters necessary to ensure effective communication with individuals with disabilities in the services, programs, and activities of the Welfare Division. The agreement requires the Welfare Division to establish and maintain a system for providing appropriate auxiliary aids and services, including qualified interpreters, whenever necessary both during regular hours and for after-hours emergencies to secure effective communication between its staff, agency clients, and their companions, as defined in the agreement.

Clackamas County Sheriff’s Office, Oregon City, Oregon -- The Department reached an agreement with the Clackamas County Sheriff’s Office resolving a complaint that the county violated title II by failing to provide effective communication with an inmate who is deaf. The county agreed to provide appropriate auxiliary aids, including qualified interpreters, and to designate an official to carry out this policy. The county also agreed to provide telephones with volume controls for prisoners with hearing loss and TTYs for prisoners with speech or hearing disabilities who need them to communicate by telephone. The county will also permit prisoners with hearing disabilities to buy or use visual and tactile alarm clocks whenever other prisoners are permitted to buy or use alarm clocks, to provide televisions with closed captioning features for use by prisoners with hearing disabilities whenever other prisoners are permitted access to television, and to provide hearing aid batteries for prisoners who use hearing aids during the period of their detention.

Title III

Dr. Robila Ashfaq, Irvine, California -- The Department reached an agreement with a California physician, a solo practitioner in family medicine, resolving a complaint alleging unequal treatment for people with disabilities. The complainant, an individual with paraplegia who uses a wheelchair, alleged that at her first office visit her husband helped her onto the examination table and that for subsequent visits over the course of a year she was examined in her wheelchair. When it came time for her annual physical, which would require use of an examination table, she asked the doctor to borrow or purchase an adjustable exam table or a lift to facilitate her transfer to the existing table. The doctor informed her that she no longer wished her to continue as her patient and that she could not provide an accessible table or lift because of budget constraints. Under the settlement, the doctor agreed to provide equal access by purchasing an accessible, adjustable height examination table; pay the complainant $1000; adopt an ADA nondiscrimination policy; attend training for herself and her staff on the requirements of the ADA; and ensure that, when scheduling an appointment, her staff will ask the patient if he or she will need any special assistance, modification of policy, or auxiliary aid or service at the examination because of a disability.

** Blue Plate Café, Memphis, Tennessee -- The U.S. Attorney’s Office for the Western District of Tennessee entered a settlement with the owner and operator of two Blue Plate Café restaurants, resolving a complaint that at one of the locations an individual accompanied by a service animal was not allowed to enter the restaurant. Under the agreement the owner will ensure access to individuals with disabilities accompanied by service animals at both restaurants, post its nondiscrimination policy at the entrances and employee areas, give a copy of the policy to each employee, and pay $3,500 in damages to the complainant and a $1,000 civil penalty to the U.S. Government.

Natural Bridge, Virginia -- The Department entered into a settlement agreement with A & M Investments, Inc., and Marshall Management, Inc., the owners and operators of the Natural Bridge complex, to ensure that persons with disabilities have equal access to the many attractions and accommodations of historic Natural Bridge, Virginia. The agreement is in response to a complaint that the Natural Bridge Inn and Conference Center did not provide adequate accessible guestrooms. The agreement requires one fully accessible sleeping room in the 18-room Stonewall Inn, two in the 34-room Cottages, and five additional fully accessible sleeping rooms in the 121-room Natural Bridge Inn. It also requires a number of additional rooms to have notification devices for persons who are deaf or hard of hearing, including visual door knockers, TTY’s, and visual alarms. In addition, the agreement requires accessible parking, service counters, ATM’s, public telephones, and toilet rooms in the Natural Bridge Gift Shop and Bridge Entrance Building and requires accessibility modifications in a number of other facilities including the wax museum.

C. Other Settlements

II. Mediation

Under a contract with the Department of Justice, The Key Bridge Foundation receives referrals of complaints under titles II and III for mediation by professional mediators who have been trained in the legal requirements of the ADA. An increasing number of people with disabilities and disability rights organizations are specifically requesting the Department to refer their complaints to mediation. More than 400 professional mediators are available nationwide to mediate ADA cases. Over 75 percent of the cases in which mediation has been completed have been successfully resolved. Following are recent examples of results reached through mediation.

• An individual with a hearing impairment complained that a Missouri hotel was inaccessible. The hotel agreed to purchase six kits containing portable alarms, door and telephone notification devices, and TTYs for use by guests who are deaf or hard of hearing. The hotel further agreed to reimburse the complainant for 50 percent of her room charges.
• A wheelchair user complained that a Connecticut town allowed restaurants to use public sidewalks to provide outdoor seating, creating barriers for people who use wheelchairs or other mobility devices. The town worked with the restaurant owners and the local chamber of commerce to advise them about the need for unobstructed accessible routes and drafted a local ordinance to provide for and maintain sidewalk accessibility.
• The husband of a wheelchair user complained that a Washington ski tour company arranged a trip that included inaccessible hotel and transportation accommodations. The owner of the company agreed to speak directly to any individual with a disability for whom he was making trip arrangements and to confirm, in advance of the travel, that the arrangements would meet the accessibility needs of the traveler. In addition, the tour operator provided the complainant and his family a free week at a condo in the ski area that was the destination of the original trip.
• In North Carolina, an individual with a disability who uses a service animal complained that hotel employees questioned her disability and challenged her right to bring the service animal into the hotel. The hotel provided ADA and sensitivity training to its employees and posted a copy of its ADA nondiscrimination policy at the front desk. The hotel also posted a sign at the hotel entrance welcoming guests with service animals, provided a letter of apology, and paid the complainant $4,000.
• In Pennsylvania, an individual who is deaf complained that a doctor’s office refused to provide sign language interpreter services, and made her pay for an interpreter she needed for an office visit. The office agreed to amend its preappointment letter to patients to include a statement that the practice would provide sign language interpreter services upon request. The office also provided a letter of apology to the complainant, reimbursed her for the full cost of the interpreter services, and paid her $750 in compensation.
• In New Jersey, a man who is deaf complained that a hotel did not have accessible telephones, doorbells, and alarms and that hotel employees did not use the TTY at the front desk to communicate with guests who are deaf. The hotel directed employees to use the existing TTY at the front desk and provided training on how to use it. The hotel purchased four each of the following devices: TTYs, visual alarms connected to the building’s emergency system, visual notification devices for incoming phone calls and room doorbells, and closed-caption television decoders. The hotel also agreed to provide ADA and sensitivity training to all employees.
• Relatives of a wheelchair user complained that a North Carolina restaurant lacked accessible restroom facilities. With technical assistance from a local independent living center and the local building inspector, the restaurant constructed a unisex accessible restroom, installed one van-accessible and two standard accessible parking spaces, and created an accessible path of travel from the parking area to the restaurant entrance.
• In California, a couple with mobility impairments complained that a cruise line did not honor a free-upgrade promotion because none of the cabins in the “upgrade class” were accessible. The cruise line agreed to offer accessible rooms from a comparable upgrade class and to provide additional training on the ADA to key management staff. It also agreed to provide a free 10-day cruise to the couple as compensation.
• In Georgia, a deaf individual complained that a doctor’s office refused to provide her an interpreter for an appointment. The office agreed to provide appropriate auxiliary aids and entered into a contract with an interpreting service. In addition, the office posted signage indicating that assistance will be provided to persons with disabilities upon request.
• In California, an individual with a mobility disability complained that a theater did not have accessible restrooms. The theater adjusted the front doors to both the men’s and women’s restrooms and installed raised toilet seats. The theater also agreed to provide additional accessible restroom signage and to run an announcement on the movie screen prior to each film explaining restroom locations. The theater also provided the complainant with complimentary movie tickets.
• In Tennessee, a couple complained that a hotel refused to honor their reservation upon learning that one of them uses a service animal, forcing them to find lodging elsewhere. The hotel agreed to apologize to the couple and to train its staff to carry out the requirements of the ADA. In addition, the hotel reimbursed the couple for the cost of substitute lodging as well for phone calls and postage required to make the change. Finally, the hotel extended an offer for a complimentary room for two nights.
• A wheelchair user complained that, despite reserving an accessible room and reconfirming it shortly before her arrival, the desk clerk at a California hotel gave her an inaccessible room. The hotel agreed to retrain all desk clerks on procedures for holding guaranteed reservations and terminated the employee who changed the guaranteed reservation. It also agreed to make arrangements and pay for an accessible room at another hotel in the event a reserved accessible room is unavailable. Further, the hotel agreed to hire a trainer with expertise in ADA compliance to conduct an ADA workshop for managers of all properties in the hotel chain at their next annual conference, and to pay the complainant a $1,500 consulting fee to incorporate her experiences and suggestions in the training. In addition, the hotel paid $7,500 to the complainant for her suffering and embarrassment.
• A wheelchair user in Florida complained that a cinema complex with ten movie theaters did not provide accessible seating or doors in the individual theaters and failed to provide accessible restrooms. The cinema removed existing seats and installed accessible seating in a variety of locations within each theater and signage to identify the location of the accessible seating. The respondent agreed to modify the stalls in both the men’s and women’s restrooms to make them accessible and to reduce the door opening force on all restroom and auditorium doors.
• A wheelchair user in Washington attended a stadium sporting event and complained that standing patrons were crowding the accessible seating area from behind and that vendors were using the accessible seating area as a walkway between seating sections and as a place to store the items they were selling. The stadium agreed to train ushers to keep space behind accessible seating areas clear and to instruct vendors to use alternate paths between seating sections and not to store their goods in accessible seating areas. In addition, the stadium agreed to allow the complainant to buy a preferred seating package, including accessible seats, for fewer games than is normally required.
• In Massachusetts, an individual with a mobility impairment complained that a public golf course’s policies excluded people with disabilities unnecessarily by restricting cart access to certain parts of the course. The golf course agreed to modify the existing policy and developed a written policy providing persons with mobility disabilities access by golf cart to specified areas otherwise off limits. The respondent also apologized to the complainant and offered him a pass for a complimentary round of golf.
• In Florida, a wheelchair user complained that he had requested an accessible room at a hotel but did not receive one at check-in. The hotel agreed to make several changes to its reservations policy to ensure that guests requesting accessible rooms actually receive them. Individuals making reservations with the hotel who request an accessible room will be offered a “personal planning” follow-up contact to provide detailed information about the accessible features at the hotel and provide an opportunity for guests to relate any additional specific requests. Any additional information from “personal planning” follow-ups will be conveyed to check-in staff.
• A deaf couple in Nevada complained that a health care provider in a remote area did not provide a sign language interpreter for an appointment. The doctor agreed to provide interpreters when requested and the parties worked together to identify potential interpreters in the area. In addition, the doctor agreed to write a letter to all the other medical practitioners in the area about how to provide effective communication to persons who are deaf and hard of hearing and including contact information for local interpreters.
• In Texas, a wheelchair user and her young daughter complained that although they had reserved an accessible room, there appeared to be no accessible features at the hotel when they arrived. The hotel sent a written apology to the daughter and reimbursed the mother $700 for expenses incurred in finding alternative lodging. The hotel modified four guestrooms to make them accessible. Three additional rooms were added to the capital plan to be rebuilt with roll-in showers. In addition, the hotel modified the ballroom to make it accessible, including installation of a vertical wheelchair lift between two levels and lowering a section of the bar to make it accessible. The hotel also gutted and rebuilt restrooms in the lobby and sixth floor ballroom to be accessible and provided all staff members with training on the requirements of the ADA.

III. Certification of State and Local Accessibility Requirements

The ADA requires that newly constructed or altered places of public accommodation and commercial facilities comply with title III of the ADA, including the ADA Standards for Accessible Design (ADA Standards). The Justice Department is authorized to certify that State and local accessibility requirements, which are often established through building codes, meet or exceed the ADA’s accessibility requirements. In any lawsuit that might be brought, an entity that complies with a certified State or local code can offer that compliance as rebuttable evidence of compliance with the ADA.

   In implementing its certification authority, the Department works closely with State and local officials, providing, as needed, detailed technical assistance to facilitate efforts to bring those accessibility requirements into accord with the ADA Standards. In addition, the Department responds to requests from private entities for review of the accessibility provisions of model codes and standards, and provides informal guidance regarding the extent to which they are consistent with the minimum accessibility requirements of the ADA.

The States of Texas, Maine, Florida and Maryland currently have accessibility codes certified by the Department of Justice. The State of Washington recently implemented new accessibility requirements that replace the accessibility code certified previously by the Department. Requests from the States of California, Indiana, New Jersey, North Carolina and Utah for certification are pending before the Department. Recent certification-related activity includes --

North Carolina -- North Carolina officials were notified of the Department’s preliminary determination of equivalency for the North Carolina Accessibility Code (NCAC). Prior to making a final determination regarding the NCAC, the Department will publish notices in the Federal Register of the preliminary determination of equivalency, and request comments in writing and at informal public hearings in North Carolina and Washington, D.C. After considering all of the comments and consulting with the U.S. Access Board, the Department will issue a final determination for the NCAC and publish a notice of the final determination in the Federal Register.

Utah -- The Division received a request for certification of Utah’s newly adopted accessibility requirements for public accommodations and commercial facilities. This request updated and supplemented the State’s pending request for certification review, which was based upon accessibility requirements in effect in Utah as of August 2003. In 2004 the State revised its accessibility code and conducted a public hearing in January 2005 regarding the State’s intention to request ADA certification for the new code.

Michigan -- The Division received a request from Michigan for technical assistance in evaluating the consistency of the current Michigan accessibility code with the ADA’s new construction and alterations requirements for public accommodations and commercial facilities. Michigan officials plan to utilize the Department’s technical assistance in preparing a future request for certification for Michigan’s accessibility code.

Model Code Organization -- The Division received a request from the International Code Council (ICC) for technical guidance regarding the extent to which the model accessibility code provisions of the 2003 edition of the International Building Code (IBC) are consistent with the new construction and alterations requirements of title III of the ADA.

IV. Technical Assistance

The ADA requires the Department of Justice to provide technical assistance to businesses, State and local governments, and individuals with rights or responsibilities under the law. The Department provides education and technical assistance through a variety of means to encourage voluntary compliance. Our activities include providing direct technical assistance and guidance to the public through our ADA Website, ADA Information Line, and ADA Fax On Demand ; developing and disseminating technical assistance materials to the public; undertaking outreach initiatives; and coordinating ADA technical assistance governmentwide.

ADA Website

• ADA regulations and technical assistance materials in English and Spanish (which may be viewed online or downloaded for later use),
  
• electronic versions of the ADA Standards for Accessible Design, including illustrations and hyperlinked cross-references,
  
• selected ADA legal documents, settlement agreements, and technical assistance letters,
  
• the ADA Business Connection, including ADA Business Briefs in English and Spanish,
  
• an online ordering form for the ADA Technical Assistance CD-ROM,
  
• links to the Department’s press releases, and
  
• links to Internet web pages of other Federal agencies and Federal grantees that contain ADA information.

The ADA Website also provides information about --

• the toll-free ADA Information Line,
  
• the Department’s ADA enforcement activities,
  
• the ADA technical assistance program,
  
• certification of State and local building codes,
  
• proposed changes in ADA regulations and requirements, and
  
• the ADA mediation program.

ADA Information Line

800-514-0301 (voice)
833-610-1264 (TTY)

ADA Fax On Demand

Publications and Documents

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530

Some publications are available in foreign languages. For further information please call the ADA Information Line.

Copies of the legal documents and settlement agreements mentioned in this publication can be obtained by writing to --

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
FOIA Branch, NALC Room 311
Washington, D.C. 20530

Fax: 202-514-6195

Currently, the FOI/PA Branch maintains approximately 10,000 pages of ADA material. The records are available at a cost of $0.10 per page (first 100 pages free). Please make your requests as specific as possible in order to minimize your costs.

The FOI/PA Branch also provides access to ADA materials on the World Wide Web (www.usdoj.gov). A link to search or visit this website is provided from the ADA Home Page..

V. Other Sources of ADA Information

The Equal Employment Opportunity Commission offers technical assistance to the public concerning the employment provisions of title I of the ADA.

ADA publications

800-669-3362 (voice)
800-800-3302 (TTY)

ADA questions

800-669-4000 (voice)
800-669-6820 (TTY)

www.eeoc.gov

The Federal Communications Commission offers technical assistance to the public concerning the communication provisions of title IV of the ADA.

ADA publications and questions

888-225-5322 (voice)
888-835-5322 (TTY)

www.fcc.gov/cgb/dro

U.S. Department of Transportation, Federal Transit Administration provides information about the transportation provisions of title II of the ADA.

ADA Assistance Line for regulations and complaints

888-446-4511 (voice/relay)
www.fta.dot.gov/ad

The U.S. Architectural and Transportation Barriers Compliance Board, or Access Board, offers technical assistance to the public on the ADA Accessibility Guidelines.

ADA publications and questions

800-872-2253 (voice)
800-993-2822 (TTY)

www.access-board.gov

The ADA and IT Technical Assistance Centers are funded by the U.S. Department of Education through the National Institute on Disability and Rehabilitation Research (NIDRR) in ten regions of the country to provide resources and technical assistance on the ADA.

800-949-4232 (voice & TTY)
www.adata.org

Project ACTION is funded by the U.S. Department of Transportation to provide ADA information and publications on making transportation accessible.

Information on accessible transportation

800-659-6428 (voice/relay)
www.projectaction.org

The Job Accommodation Network (JAN) is a free telephone consulting service funded by the U.S. Department of Labor. It provides information and advice to employers and people with disabilities on reasonable accommodation in the workplace.

Information on workplace accommodation

800-526-7234 (voice & TTY)
www.jan.wvu.edu

VI. How To File Complaints

Title I

    Complaints about violations of title I (employment) by units of State and local government or by private employers should be filed with the Equal Employment Opportunity Commission. Call 800-669-4000 (voice) or 800-669-6820 (TTY) to reach the field office in your area.

Titles II and III

Complaints about violations of title II by units of State and local government or violations of title III by public accommodations and commercial facilities should be filed with --

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530

If you wish your complaint to be considered for referral to the Department’s ADA Mediation Program, please mark “Attention: Mediation” on the outside of the envelope.

The Attorney General has determined that publication of this periodical is necessary in the transaction of the public business required by law of the Department of Justice.

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