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

 

Enforcing the ADA:

A Status Report from the Department of Justice

October-December 2001

 

This Status Report covers the ADA activities of the Department of Justice during the fourth quarter (October-December) of 2001. This report, previous status reports, and a wide range of other ADA information are available through the Department’s ADA Home Page on the World Wide Web (see page 13). The symbol (**) indicates that the document is available on the .

INSIDE...

ADA Litigation
Formal Settlement Agreements
Other Settlements
Mediation
Technical Assistance
Other Sources of ADA Information
How to File Complaints

2001, Issue 4

 

I. Enforcement

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

A. Litigation

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.

1. Decisions

Accessible Bathroom Door Requirement in Newly Constructed Hotels Is Mandatory -- The U.S. Court of Appeals for the Ninth Circuit held in Long v. Coast Resorts, Inc., that a large, newly constructed Las Vegas hotel and casino must redo bathroom doors in over 800 guest rooms in order to comply with the ADA's 32-inch width requirement. Of the 839 hotel guest rooms, 819 included bathroom doors that were only 28 inches wide. Although the district court found that the bathroom doorways were too narrow, it refused to order any relief to correct the violation, because it thought the “minimal” inconvenience to people with disabilities was outweighed by the expense of widening the doorways. The Ninth Circuit agreed with the Department's amicus brief which argued that the inaccessible doorways would seriously impede access by persons with disabilities and that the ADA does not allow courts to ignore new construction violations. The Court also agreed with the Department that each of four slot change kiosks in the casino must comply with the ADA. The hotel had argued that only the casino's main counter needed to comply.

Private Plaintiffs Have Right to Enforce Title II Curb Cut Requirements -- The U.S. District Court for the Northern District of Ohio agreed with the Department's amicus brief and ruled in Ability Center of Greater Toledo v. City of Sandusky that private plaintiffs have a right to enforce the curb cut requirements of the ADA title II regulation. The plaintiffs alleged that Sandusky, Ohio, failed to properly install curb cuts in streets altered or constructed after the ADA went into effect. The district court had earlier ruled that the city violated the ADA. Soon after that decision, the Supreme Court ruled in Alexander v. Sandoval that plaintiffs do not have a private right of action to enforce regulations issued under title VI of the Civil Rights Act of 1964 that prohibit neutral policies or practices that have discriminatory effects. (Title VI prohibits discrimination on the basis of race, color, or national origin in programs that receive financial assistance from the Federal Government and was earlier interpreted by the Supreme Court to prohibit only intentional discrimination.) Because of the Sandoval decision, the defendants in Sandusky asked the district court to reconsider its decision and dismiss the case. They argued that plaintiffs did not have the right to file a suit against Sandusky for enforcement of the curb cut regulations because the curb cut requirements target effects-based, rather than only intentional, discrimination. In response, the Department's brief asserted that the curb-cut regulations may be enforced by a private suit because they fall squarely within the scope of the ADA, which was meant to address not only intentional exclusion but also a much broader range of discrimination including the effects of architectural, transportation, and communication barriers.

Court Finds U.S. Suit Challenging Employment Discrimination Barred by Sovereign Immunity -- The U.S. District Court for the Southern District of Mississippi dismissed the Department's lawsuit on behalf of a cadet with diabetes who allegedly was expelled from the Mississippi State patrol training academy because of his disability. The court ruled in U.S. v. Mississippi Department of Public Safety that, because the Department's suit was based upon an individual charge filed by the cadet with the U.S. Equal Employment Opportunity Commission, the government was barred by sovereign immunity from suing the State for money damages – just as the individual would be barred if he brought his own private lawsuit against the State. The Department unsuccessfully argued that a State is not protected by sovereign immunity from suits by the Federal Government and that the Attorney General, in bringing a suit based on an EEOC charge, is not merely representing the individual, but also the broader public interest in Federal enforcement of Federal employment discrimination laws. The Department has filed a notice of appeal.

Persons at Risk of Institutionalization May Challenge Denial of State Home Health Care Services -- The U.S. District Court for the Middle District of Tennessee ruled in Newberry v. Menke that individuals who reside in the community, but who are at risk of institutionalization, have “standing” to challenge aspects of the Tennessee Medicaid program that allegedly create incentives for institutionalization in violation of title II's integration requirement. The plaintiffs allege that they have been denied home health care services as a result of certain financial incentives in the TennCare system and that, without home health care services, plaintiffs' only alternative is to enter nursing homes despite the fact that the care they require is more appropriately provided in the community. The Department filed an amicus brief opposing the State's argument that only people who are currently institutionalized are entitled to sue. The brief successfully urged the court to allow not just those who are in institutions, but also those at risk of institutionalization, to challenge the Tennessee program.

Court Rejects Flawed Department Store Class Action Settlement -- In response to objections filed by the Department and disability rights advocates, the U.S. District Court for the Southern District of Florida refused to approve a proposed nationwide class action settlement agreement in Access Now v. The May Department Stores Company. The proposed agreement addressed the physical accessibility of store aisles, check-out counters, bathrooms, and fitting rooms at over 350 May-owned department stores nationwide, including those of the Filene's, Hecht's, Foley's, Lord and Taylor, and Robinson's-May chains. The Department objected to the agreement for a number of reasons, including an overly broad class definition, a lack of an “opt out” provision for class members, and expansive language protecting defendants from future claims. Together, these provisions would have made it difficult or impossible for people with disabilities or the Department to bring future ADA claims challenging barriers and discriminatory policies at May-owned stores, including even those barriers or policies that were not addressed by the proposed agreement. The court ordered the May Company to make accessibility modifications to its six department stores located in Florida.

District Court Dismisses U.S. Suit for Accessible “Stadium-Style” Theaters -- The U.S. District Court for the Northern District of Ohio ruled in U.S. v. Cinemark USA, Inc. that the ADA's requirement for comparable lines of sight only requires stadium-style movie theaters to provide unobstructed views of the screen and does not require accessible seating within the tiered, stadium portion of the theater. The Department filed suit against Cinemark alleging that three of Cinemark's Ohio theaters, as well as its 68 other stadium-style theaters across the country, violated the ADA by providing accessible seating only on the flat portion of each theater in front of the stadium-style seating, offering an inferior and uncomfortable line of sight for wheelchair users. The Department has filed a notice of appeal.

2. New lawsuits

The Department intervened in the following lawsuit.

Title II

Department Defends Constitutionality of Private Title II Damages Suits -- The Department intervened in Thomas v. Nakatani in the U.S. Court of Appeals for the Ninth Circuit in order to defend the constitutionality of private ADA lawsuits for damages against State agencies. The case involves a suit brought by a deaf inspirational speaker, who uses a hearing guide dog, against a Hawaii State agency and State official challenging the State's animal quarantine laws. The Department argued that title II is appropriate legislation to enforce equal protection rights in light of the long history of widespread discrimination against people with disabilities and therefore that damages suits against States are consistent with the Constitution. The brief also argues that, even if a damages suit were not permitted, the plaintiff could still proceed against the State official in his official capacity to seek an injunction to change the State's policy.

3. Consent Decrees

Some litigation is 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.

Title III

Bell v. Captain D's, Inc. -- The U.S. Attorney for the Western District of Tennessee intervened in, and resolved by consent decree, Bell v. Captain D's, Inc. and Shoney's, Inc., a private lawsuit alleging that a person who uses a service animal and her husband and son were evicted from a Captain D's restaurant in Memphis, Tennessee, because of her service animal. The defendants -- Captain D's, Inc., the current owner of the restaurant in which the incident occurred, and Shoney's, Inc., the parent corporation of Captain D's and previous owner of the restaurant at issue -- agreed to provide employee training and post signs welcoming persons with their service animals throughout the 570 franchiser-owned Shoney's and Captain D's restaurants in 28 states. They also agreed to pay $8,000 in compensatory damages to the private plaintiff.

Baltimore City Schools Agree to Pay Blind Teacher $55,000 to Settle Title I Discrimination Suit -- The Baltimore City Public School System agreed to pay $55,000 as part of a consent decree to resolve a disability discrimination charge filed by a blind elementary school teacher who uses a service animal. She alleged that the school system offered her a teaching position after two interviews during which she had used a cane. After she mentioned that she would soon be picking up her new service animal, the school principal allegedly withdrew the offer rather than allow her to bring a dog in the building. The charging party later found employment as a teacher with another school system. Under the consent decree in U.S. v. Baltimore Public School System, the system will ensure that all personnel who participate in employment decisions are trained in the requirements of the ADA. The school system will also designate an employee to serve as an ADA coordinator for employment matters and to serve as a liaison with people with disabilities. The coordinator will attend annual ADA training. The school system will also post notices about the ADA in every school or other location in which its employees work. The United States Equal Employment Opportunity Commission's regional office in Baltimore investigated the employee's ADA charge, found reasonable cause to believe that the school system had violated the ADA, attempted to conciliate the matter and then referred it to the Department of Justice.

4. Amicus Briefs

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

Title I

Access Now v. The May Department Stores Company; Access Now v. Carnival Corporation -- The Department filed amicus briefs in the U.S. District Court for the Southern District of Florida objecting to the proposed nationwide class action settlement agreements reached by the private parties in these two cases because they would inappropriately limit the rights of people with disabilities. The settlement agreement in Access Now v. The May Department Stores Company addresses the physical accessibility of store aisles, check-out counters, bathrooms, and fitting rooms at over 350 May-owned department stores nationwide, including those of the Filene's, Hecht's, Foley's, Lord and Taylor, and Robinson's-May chains. In Access Now v. Carnival Corporation, the settlement agreement focuses on the physical accessibility of Carnival's 15 existing cruise ships and new ships that it constructs. The Department objected to these agreements for a number of procedural reasons including their broad class definitions, their lack of an "opt out" provision for class embers, and their expansive language protecting defendants from future claims. Together these provisions would make it difficult or impossible for people with disabilities or the Department to bring future ADA claims challenging barriers and discriminatory policies at May or Carnival, including even those barriers or policies that are not addressed by the proposed agreements.

Chevron U.S.A., Inc. v. Echazabal -- The Department filed an amicus brief in the U.S. Supreme Court urging the Court to uphold an ADA title I regulation issued by the U.S. Equal Employment Opportunity Commission that permits an employer to deny employment to individuals with disabilities whose performance of a job would pose a direct threat to their own health or safety. Mario Echazabal, who has hepatitis C, worked at a Chevron oil refinery as an employee of various maintenance contractors for more than twenty years. When he applied to work directly for Chevron, he was denied employment on the ground that exposure to the liver-toxic chemicals at the refinery could seriously endanger his health or even be fatal. He sued under title I claiming that Chevron's action violated the ADA. The U.S. District Court for the Central District of California ruled in favor of Chevron but the U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit held that the EEOC regulation allowing the employer to use a direct threat to the employee's own health or safety as a defense was inconsistent with the language of the statute, which only mentions direct threat “to others.” The Department's brief in the Supreme Court argues that the EEOC regulation is a reasonable interpretation of the statute because the employer has a legitimate interest in protecting employees from a significant risk of injury or death, because the employee is protected from paternalism by the requirement that the employer engage in an individualized and objective assessment of the risk in each case, and because the “threat to self” provision is consistent with earlier court and EEOC interpretations of the Rehabilitation Act.

Title III

Oregon Paralyzed Veterans of America et al. v. Regal Cinemas, Inc. -- The Department filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit arguing that the viewing angles for wheelchair users in stadium-style movie theaters must be comparable to those offered to the general public. The plaintiffs alleged that the wheelchair seating locations provided at several Regal stadium-style theaters are very close to the screen and require wheelchair users to look up at the screen at sharp angles, often resulting in a blurry or distorted image and severe discomfort. They also alleged that because the wheelchair locations are not located in the stadium-style portion of the theaters, wheelchair users are effectively segregated from most other patrons. The district court held that the ADA regulation's requirement for comparable “lines of sight” means only that the wheelchair users must have an unobstructed view of the movie screen. The court also concluded that failing to place the accessible wheelchair seating in the stadium portion of the theaters does not violate the regulation's requirement that wheelchair areas “be an integral part of any fixed seating plan.” On appeal, the Department argued in its amicus brief that both rulings are incorrect and that the ADA regulations require that wheelchair users be provided lines of sight within the range of viewing angles offered to most of the patrons of the cinema and that wheelchair seating be integrated into the elevated, stadium portion of the theater.

Karr v. Wal-Mart Stores, Inc. -- The Department filed an amicus brief in the U.S. District Court for the Southern District of Alabama, Northern Division arguing that the plaintiff, who has Tourette Syndrome (TS), is a person with a disability within the meaning of title III of the ADA. The lawsuit alleges that Wal-Mart violated title III of the ADA when it forcibly removed plaintiff from its store. Plaintiff alleges that while shopping at Wal-Mart she experienced manifestations of her TS, including uncontrollable vocal and body tics. In response to these manifestations of her TS, a Wal-Mart employee allegedly summoned a security guard to remove plaintiff from the store. Wal-Mart argued that the case should not be allowed to go forward because she is not substantially limited in any major life activity and therefore is not a person with a disability. The Department disagreed and argued in its amicus brief that, because of her TS, plaintiff is substantially limited in the major life activities of interacting with others and working.

B. Formal Settlement Agreements

The Department sometimes resolves cases without filing a lawsuit by means of formal written settlement agreements.

Title I

** Arizona State Compensation Fund -- The Arizona State Compensation Fund agreed to pay $150,000 in compensatory damages to resolve a charge that was filed with the Equal Employment Opportunity Commission by a former employee with severe depression and referred to the Department of Justice for litigation. The complainant alleged that the Fund unlawfully terminated her after failing to grant her the reasonable accommodation of additional leave without pay that she needed in order to stabilize her condition. The former employee, who worked with the State Fund for a number of years while managing her depression, took three months of unpaid leave under the Family and Medical Leave Act (FMLA) to recover from a severe episode of depression. The employee stayed in communication with her supervisor while on leave and, toward the end of that leave, after consulting with her doctor, advised her supervisor that she planned to return to work soon. The complainant alleged that shortly after the expiration of her FMLA leave, the State Fund terminated the employee instead of granting her a brief additional period of unpaid leave as a reasonable accommodation. The employee's termination came just one day after she submitted to her employer a release from her physician clearing her to return to work the following week.

Title II

Deschutes County, Oregon -- The Department entered into a settlement agreement with the Deschutes County Sheriff's Office resolving a complaint filed by a deaf individual who alleged that the sheriff's office failed to provide effective communication when he was arrested. The county agreed to provide auxiliary aids and services, including qualified interpreters, when necessary to ensure effective communication and to instruct its employees on the provisions of its new policy.

Saguache County, Colorado -- The Department and Saguache County, Colorado, entered an agreement resolving a complaint that the county courthouse is not accessible to individuals with mobility impairments. The county agreed to make physical modifications to its entrances and restrooms and to install an elevator to provide access to services on the second and third floors. The county also agreed to ensure that all services are offered at alternative accessible locations until modifications have been completed.

Minnesota Board of Law Examiners, St. Paul, Minnesota -- A law school graduate complained that the Minnesota Board of Law Examiners refused to recommend his admission to the Minnesota Bar because of his history of mental illness, even though he had passed the bar examination and provided the board with evidence of his recovery. The board agreed to reconsider the individual's application under the same criteria that apply to all other applicants without requiring him to complete a new application or retake the bar examination.

** More Project Civic Access Agreements -- The Department has signed four additional agreements under the Department's Project Civic Access initiative, a wide-ranging effort to ensure that cities, towns, and villages comply with the ADA. Project Civic Access is dedicated to removing barriers to all aspects of civic life, including courthouses, libraries, polling places, police stations, and parks. The new agreements cover --

Seaside, California
Kaua'i, Hawaii
State of Delaware
Robertsdale, Alabama

Forty-four agreements have been signed to date. They require communities, depending on local circumstances, to --

• Improve access to programs at city and town halls, police and fire stations, sheriff's departments, courthouses, health care delivery centers, childcare centers, teen and senior activities centers, convention centers, animal shelters, libraries, baseball stadiums, golf course clubhouses, and parks (including ice skating rinks, skateboard rinks, public pools, playgrounds, ball fields and bleachers, and band shells);
• Alter polling places and provide curbside or absentee balloting;
• Upgrade 9-1-1 emergency services for people who use TTY's;
• Install assistive listening systems in legislative chambers, courtrooms, and municipal auditoriums; and
• Provide delivery systems and time frames for providing auxiliary aids, including sign language interpreters and materials in Braille, large print, or on cassette tapes.
  
  

Borough of Hollidaysburg, Pennsylvania -- In response to a complaint that it had failed to provide a sign language interpreter in an arrest situation, the Borough of Hollidaysburg agreed to adopt a written policy for providing appropriate auxiliary aids and services to ensure effective communication. It also agreed to publish notice of this policy in the local newspaper and train its employees on the ADA.

Polk County, Georgia -- A deaf individual complained that a Georgia county sheriff's department failed to provide effective communication during his arrest. The sheriff's department adopted and implemented a policy ensuring effective communication with individuals who are deaf or hard of hearing, including procedures for providing on-call, qualified sign language interpreter services when necessary, and making available a TTY at department headquarters.

Title III

Drawbridge Estate Hotel, Fort Mitchell, Kentucky -- An individual whose child has a mobility impairment complained that the Drawbridge Estate Hotel refused to allow access to the hotel's airport shuttle bus because the child uses a wheelchair. The hotel agreed to provide accessible transportation services for guests who use wheelchairs, to train its employees on carrying out this new policy, and to notify the public of the availability of the accessible services in its publications.

** Las Vegas Hotel and Casino Agrees to Comprehensive Access Agreement -- The New York-New York Hotel & Casino entered a wide ranging agreement with the Department of Justice to provide accessibility throughout its Las Vegas facility. The agreement resolves a compliance review that began prior to the hotel's construction and took place over a two-year period. Under the agreement the hotel and casino will be fully accessible in all respects, including accessible bathroom doors in all of its 2,023 guest rooms. New York-New York also agreed to provide 84 accessible guestrooms and suites; accessible penthouse suites; in-suite accessible Jacuzzi tubs; lifts into the outdoor swimming pool and Jacuzzi; accessible hydrotherapy tub for women and an accessible Jacuzzi for men in the spa; accessible restaurant seating and Braille menus; state-of-the-art assistive listening systems in all theaters, bars, and meeting rooms; accessible gaming tables and slot machines; sign language interpreters upon request for live performances and gaming lessons; and an accessible roller coaster.

** Georgetown University Hospital, Washington, D.C. -- A wheelchair user complained that the Georgetown University Hospital did not assist her in transferring from her wheelchair to an examination table at a gynecological examination for possible uterine cancer. The hospital agreed to pay the complainant $15,000 in compensatory damages and to pay the United States a civil penalty of $10,000.

** PSINet Stadium, Baltimore, Maryland -- The Department signed two settlement agreements to resolve a complaint from a man with a mobility impairment who alleged that the parking lot at the PSINet Stadium was not accessible during football games. The Baltimore Ravens Limited Partnership agreed to modify its existing policy to allow people with disabilities who have club level or suite seating to reserve accessible parking spaces in advance in the same manner as people reserving other spaces and to provide training to Ravens employees in carrying out this policy. In a separate agreement, the Maryland Stadium Authority agreed to ensure that the “accessible” parking at the stadium actually complies with the ADA. It agreed to restripe spaces and add signage, as appropriate, maintain the accessible spaces, and perform a weekly inspection of the parking area during the football season.

Tri State Coach Lines, Gary, Indiana -- The Department entered into a settlement agreement with Tri State Coach Lines, Inc., an airport shuttle bus company, resolving a complaint that Tri State refused to allow an individual with a mobility impairment to ride one of its buses with his service animal. Tri State agreed to change its policy and to welcome individuals with disabilities and their service animals. Tri State also agreed to train its employees on the new policy and to pay the complainant $3,000 in damages.

C. Other Settlements

The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements.

Title II

• An individual who has a hearing impairment complained that an Oklahoma county sheriff's department failed to provide effective communication. The sheriff's department adopted a policy for providing effective communication, including the use of a sign language interpreter agency and a local sign language interpreter on an on-call basis and making a TTY available at headquarters.
• A wheelchair user who was a candidate for city council was unable to independently access a Texas city council platform to address citizens. The city agreed to acquire a portable ramp for the platform.
• The mother of a deaf student complained that a local Ohio drivers' training school would not provide a sign language interpreter to allow her daughter to participate in drivers' education. The driving school adopted a written policy of nondiscrimination with respect to hearing impaired students, prominently posted a notice of the policy in all of its locations, and met with all staff to ensure that they are aware of and follow this policy.
• A North Carolina Medical Center that failed to provide effective communication during an emergency room visit purchased two TTY's, entered into a contract with an interpreter service agency, obtained a list of freelance interpreters in the immediate area, and adopted a policy ensuring effective communication with individuals who are deaf or hard of hearing or who have speech impairments.
• An individual who uses a wheelchair complained that an Oklahoma computer lab in a city-run program was not accessible. The city provided an accessible route to the computer lab, trained its employees on ADA requirements for accessibility, installed an accessible computer table in the lab, and provided assistive technologies.
  

Title III

• A shopping mall owner in Massachusetts replaced improperly mounted signage for accessible parking following a complaint from a wheelchair user.
• An individual who is deaf complained that a franchise hotel in Arkansas did not have a TTY or a visual smoke alarm or door knocker. The hotel owner purchased an additional communication kit that includes the required devices.
• An individual who is deaf complained that a South Dakota medical clinic refused to use a relay service to provide her with effective communication. The clinic adopted a policy on effective communication, including instructions on using the relay system, interpreter services, and written communications to ensure effective communication.
• A wheelchair user complained that a California grocery store lacked accessible check-out aisles. The grocery store made three of its nine check-out aisles accessible.
• A deaf individual complained that a North Carolina software company refused to provide her with the auxiliary aids and services necessary to provide effective communication during a conference for software users. The company agreed to provide accommodations for participants with disabilities.
• An individual with a mobility impairment was unable to gain access to a Texas restaurant. The restaurant added two accessible spaces, including a van-accessible space, to its parking lot and installed a curb ramp to complete an accessible route from the designated spaces to the accessible front entrance of the restaurant.
• An individual with multiple sclerosis who uses a service animal filed a complaint against a shopping mall in Montana because the shopping mall manager required her to divulge her disability in order to remain in the mall with her service animal. The mall adopted and implemented a written policy regarding service animals and trained its management employees on their ADA obligations.