SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND SCHEELS ALL SPORT, INC.
DOJ #202-29-74

BACKGROUND AND PARTIES

1. The parties to this Settlement Agreement (the “Agreement”) are the United States of America and Scheels All Sports, Inc. located at 6503 W. 135th Street, Overland Park, Kansas (hereinafter “Scheels,” and together with the United States, the “Parties”).
2. The United States is authorized to investigate alleged violations of Title III of the Americans with Disabilities Act (“ADA”), to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises an issue of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 36.503, 36.506.
3. The United States initiated its investigation of Scheels after receiving a complaint from Complainant and her father, alleging that Scheels discriminated against Complainant on the basis of her disability (Down Syndrome) when it refused to permit her to ride on Scheels’ Ferris wheel without an adult.  The United States investigated this allegation to determine whether Scheels violated Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the regulation implementing Title III, 28 C.F.R. Part 36. 
4. Down Syndrome is a physical and mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1), (2); 28 C.F.R. § 36.105 (defining “disability” for purposes of Title III of ADA). Accordingly, Complainant has a disability within the meaning of 42 U.S.C. § 12102(1 & 2) and 28 C.F.R. § 36.105.  At the time of the incident that gave rise to Complainant’s complaint, she was 18 years old.  
5. Title III of the ADA prohibits public accommodations from discriminating against individuals on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, and accommodations. 42 U.S.C. §§ 12182(a); 28 C.F.R. § 36.201(a). Scheels is a place of public accommodation because it is a retail store, which is subject to the ADA’s Title III requirements.  Id. § 12181(7)(E); 28 C.F.R. § 36.104(5). Ensuring that sales establishments do not discriminate against persons with disabilities is an issue of general public importance.
6. Under Title III, a public accommodation shall not subject an individual or class of individuals on the basis of a disability directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 28 C.F.R § 36.202(a).
7. Under Title III, a public accommodation shall afford an individual or class of individuals, on the basis of their disability, with the opportunity to participate in a good or service that is equal to that afforded to other individuals.  28 U.S.C. § 36.202(b).
8. Under Title III, a public accommodation shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages or accommodations being offered. While public accommodations may impose legitimate safety requirements that are necessary for safe operation, those safety requirements must be based on actual risks and not on mere stereotypes, or generalizations about individuals with disabilities.  28 C.F.R. § 36.301(b).  Id. 
9. Scheels has cooperated with the United States’ investigation and has committed to fully complying with the ADA. The Parties agree that it is in their best interests, and the United States believes it is in the public interest, to resolve this dispute without engaging in protracted litigation.  The parties have therefore voluntarily entered into this Agreement.

INVESTIGATION

1. Scheels is a sporting goods store that includes a Ferris Wheel and other attractions, as amenities for customers in its facility located at 6503 W. 135th Street, Overland Park, Kansas.
2. Scheels has an admission policy for the Ferris Wheel (“Policy”) that includes the following, “[i]f groups are guests with disabilities, it is important that a companion rides with them.” Scheels’ practice under this policy is to require that the companion be an adult.    
3. During the 2018-2019 school year, Complainant’s class went to the Scheels store as part of its educational program.  After Complainant completed an educational project, she got in line to ride the Ferris wheel with another student, who was under the age of 18.  Scheels’ employees would not permit Complainant to ride the Ferris wheel without being accompanied by an adult.
4. The United States’ investigation revealed that the Policy, as it related to individuals with disabilities, imposed impermissible eligibility criteria that screened out Complainant, and tends to screen out individuals with disabilities and classes of individuals with disabilities, from fully and equally enjoying Scheel’s goods, services, facilities, privileges, advantages and accommodations.  The investigation further revealed that the Policy was not based on a legitimate safety requirement necessary for safe operation of Scheel’s Ferris wheel, but rather was based on mere speculation, stereotypes, or generalizations about individuals with disabilities.   
5. This Agreement does not constitute an admission by Scheels with regard to any specific allegations investigated in this matter or cited within this Agreement.  Nothing in this Agreement shall be construed as an acknowledgment or evidence of liability under the ADA or any other federal, state, or local law. Nor shall this Agreement be construed as an acknowledgment of liability under the ADA.

ACTIONS TO BE TAKEN BY SCHEELS

Policy change

15. Scheels recognizes that in enacting the ADA, Congress found that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.”  42 U.S.C. § 12101(a)(1).  Congress further found that discrimination against individuals with disabilities persists in such “critical areas” as “public accommodations” and “recreation.”  42 U.S.C. § 12101(a)(3).
16. Scheels agrees not to discriminate against any person on the basis of his or her disability; that is, Scheels agrees to provide customers with disabilities an equal opportunity to ride the Ferris wheel---the same opportunity Scheels provides to customers without disabilities. See 28 CFR § 36.203(b).
17. Scheels agrees that it may only impose legitimate safety requirements that are necessary for safe operation of its amusement ride program.  See 28 C.F.R. § 36.301(b). In order to be a necessary safety requirement, the requirement must be based on “actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”  Id.
18. Within 60 days of the execution date of this Agreement, and prior to the training described in paragraph 20 of this agreement, Scheels shall rescind the existing Ferris Wheel Policy as it relates to individuals with disabilities and a create a new ADA policy that (1) includes the prohibition of discrimination against people with disabilities, (2) does not impose eligibility criteria that screens out or tends to screen out individuals with disabilities, and (3) provides that reasonable modifications to its policies, practices, and procedures will be provided to individuals with disabilities when necessary to avoid discrimination.

Training

19. Within 60 days of the execution date of this Agreement, Scheels shall designate an employee to serve as an ADA liaison. That employee shall have sufficient training and authority to endeavor to ensure that Scheels remains in compliance with this Agreement. This employee should be available to discuss, explain and coordinate the handling of ADA training and complaints pursuant to this Agreement.
20. Within 120 days from the execution date of this agreement, Scheels will provide its employees with training regarding Title III of the ADA. The training will cover Scheels’ obligations under Title III of the ADA, including  the duty to make reasonable modifications to its policies, practices, and procedures under the ADA, and the duty to not impose eligibility criteria that discriminates or tends to discriminate against people with disabilities or classes of people with disabilities.
21. The training in paragraph 20 shall include all employees who work in the amusement ride program, including Ferris wheel operators, Store Leads, and Store Managers.
22. The ADA training will be provided by the Scheels’ employee who is designated as the ADA liaison (pursuant to Paragraph 19 of this Agreement).

Reporting

23. Initial: Within 120 days following the execution date of this Agreement, Scheels shall submit a report to the United States confirming its fulfillment of the requirements set out in Paragraphs 20 and 21 of this Agreement. Scheels will include in this report a copy of the attendance log from the training conducted pursuant to Paragraph 21 of this Agreement, the new ADA policy, and an agenda and training materials from the above-referenced training. The reporting obligations will remain in effect for three years following the execution date of the Agreement.
24. Continuing Reports: During the term of this Agreement, Scheels shall report to the United States not less than once every 12 months. Such report shall include:
1. A description of each customer who was denied access to the Ferris wheel on the basis of disability, including the date the denial was made and the reason for the denial;
2. Knowledge of any lawsuit, written complaint, charge, or other allegation that Scheels has engaged in disability-based discrimination. Such notice will include, at a minimum, a description of the nature of the allegation, the name(s) of the individual(s) bringing the allegation, and all documentation possessed by Scheels relevant to the allegation.
25. During the term of this Agreement, Scheels agrees to cooperate with the United States with respect to any request by the United States for information or documents relating to its compliance with the terms of this Agreement.
26. All information provided pursuant to the above reporting requirements under this Agreement should be provided to the United States at the following address:

United States Attorney’s Office
Attn: Andrea L. Taylor
500 State Avenue, Suite 360
Kansas City, Kansas  66101

MONETARY RELIEF

27. Within 20 days of Scheels’ receipt of an executed release of Complainant’s claims against Scheels (a copy of which is attached hereto as Exhibit 1), Scheels agrees to make a payment of $1,000 to Complainant and her father by check payable to Complainant and her father and will mail the payment to the address listed in Paragraph 26 of this Agreement.

ENFORCEMENT

28. In consideration for the Agreements set forth above, the United States will not institute any civil action alleging discrimination under the ADA based on the allegations raised in DJ # 202-29-74, except as provided in Paragraph 31 of this Agreement.
29. The United States may review Scheels’ compliance with this Agreement at any time. If the United States believes that Scheels has failed to comply in a timely manner with any requirement of this Agreement without obtaining from the United States advance written agreement for a modification of the relevant terms, the United States will so notify Scheels in writing and the parties 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 30 days of the date it provides notice to Scheels, it may institute a civil action in federal district court to enforce the terms of this Agreement or the requirements of Title III of the ADA.
30. Failure by the United States to enforce this Agreement with respect to any deadline or other provision herein will not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
31. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the Parties, the United States and Scheels shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the initially agreed upon relative rights and obligations.
32. This Agreement 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 (including attachments, which are hereby incorporated by reference), will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect Scheels continuing responsibility to comply with all aspects of the ADA.
33. Scheels shall not discriminate or retaliate against any person because of his or her participation in this matter.
34. A signatory to this document in a representative capacity for Scheels represents that he or she is authorized to bind Scheels to this Agreement.
35. This Agreement shall be binding on Scheels, its agents and employees.
36. This Agreement will remain in effect for three years following the effective date of this agreement. Notwithstanding the term of this Agreement, Scheels acknowledges it has ongoing obligations to comply with Title III.
37. The effective date of this Agreement is the date all parties have signed.