RESOLUTION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND
THE YOUNG MENS CHRISTIAN ASSOCIATION OF MIDDLE TENNESSEE
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ # 202-71-130

BACKGROUND

1. The parties to this Resolution Agreement (“Agreement”) are the United States of America (“United States”) and the Young Men’s Christian Association of Middle Tennessee (“YMCA”) in Middle Tennessee.
2. This matter is based upon a complaint filed with the United States Department of Justice alleging that YMCA discriminated against a child because of his disability in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181, et seq., and its implementing regulation, 28 C.F.R. Part 36.
3. The Complainants are a child (the “Child”) who has Autism Spectrum Disorder (“ASD”) and his father (the “Father”). ASD is a developmental disability that can cause significant social, communication, and behavioral challenges. ASD substantially limits one or more major life activities or major bodily functions, including brain function. 28 C.F.R. § 36.105(d)(2)(iii); 42 U.S.C. §§ 12102(1), (2). Accordingly, the Child has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.105. The Child is a person with a disability, and the Father is a person associated with a person with a disability within the meaning of 42 U.S.C.§ 12182(b)(1)(E) and 28 C.F.R. § 36.205.
4. Specifically, the Complaint alleges that YMCA’s after-care program, YMCA Fun Co., asked that the Child not return to its after-care program for School Year 2018-2019, on the basis of the Child’s disability-related behavior without providing any reasonable modification to their program that could have mitigated YMCA’s concerns about the Child’s behavior. YMCA expressly denies any wrongdoing and maintains that it fully complied with the ADA in providing childcare services to the Child. The YMCA believes that it was willing to make reasonable modifications to allow the Child to attend its program because it made several efforts, albeit unsuccessful, to hire a one-to-one attendant.
5. YMCA is a private organization that provides a before-care-program and after-care program, YMCA Fun Co., throughout the Middle District of Tennessee, for school-age students ranging from 3 to 14 years old. YMCA offers YMCA Fun Co. at more than 120 sites, including Rutherford County, Tennessee, in the City of La Vergne, where the Complainants reside. YMCA’s headquarters are located at 1000 Church Street, Nashville, TN 37203. YMCA is a private entity within the meaning of 42 U.S.C. § 12181(6) and is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7)(K); 28 C.F.R. § 36.104. YMCA is subject to Title III of the ADA and its implementing regulation because it owns, leases (or leases to), or operates a before-care school program and after- care school program. See 42 U.S.C. § 12182(a); 28 C.F.R. § 36.104.
6. Under Title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201.
7. Discrimination includes a public accommodation’s failure to make reasonable modifications in policies, practices, or procedures when necessary to afford its goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2) (A)(ii); 28 C.F.R. § 36.302.
8. It is also discriminatory to deny an individual the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the public accommodation. 42 U.S.C. § 12182(b)(1)(A); 28 C.F.R. § 36.202.
9. Title III further prohibits public accommodations from discriminating against an individual because of the known disability of an individual with whom the individual is known to have a relationship or association. 42 U.S.C. § 12182(b)(1)(E). A public accommodation shall not exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.  28 C.F.R. § 36.205.
10. Ensuring that childcare providers do not discriminate on the basis of disability is an issue of general public importance. The United States is authorized to investigate alleged violations of Title III of the 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 raises issues of general public importance. 42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506.
11. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation. The parties have therefore voluntarily entered into this Agreement.

ACTIONS TO BE TAKEN BY YMCA

12. YMCA will not discriminate against any individual on the basis of disability with regard to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of YMCA. YMCA will also not discriminate against any individual because of the known disability of an individual with whom such person is known to have a relationship or association.
13. YMCA will make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford its childcare services and facilities to children with disabilities, including children whose disabilities impact behavior, unless the modifications would fundamentally alter the nature of its services or facilities.
14. Before suspending or terminating from the YMCA Fun Co. program on behavioral grounds a child whose disability impacts behavior, YMCA will consider, in consultation with the child’s parent(s) or guardian(s), whether reasonable modifications or auxiliary aids or services would sufficiently mitigate the behavioral concerns. If so, YMCA will implement such modifications or auxiliary aids.
15. In addition to the long-standing diversity, inclusion, and non-discrimination language it already has in effect, YMCA will adopt, maintain, and implement the non-discrimination statement attached hereto and incorporated by reference herein as Exhibit 1 to this Agreement. Within thirty (30) days of the effective date of this Agreement, YMCA will prominently  display  a  copy  of  this  non-discrimination  statement  in all its  Fun Co. administrative offices, and will provide a link to the statement on the homepage of any current or future Fun Co. website. YMCA will also include this non-discrimination statement in YMCA’s employee and Fun Co. parent handbooks. YMCA will notify counsel for the United States in writing when it has completed the actions described in this paragraph.
16. Within thirty (30) days of the effective date of this Agreement, YMCA shall designate a person who shall have responsibility for (i) ensuring that the policies and procedures set forth in Paragraph 17 of this Agreement are fully implemented and complied with, (ii) reviewing all requests for reasonable modifications that are not granted, and (iii) reviewing any decisions to terminate the enrollment of or exclude from enrollment any Fun Co. participant with a disability. The designated person shall review all requests for reasonable modifications that are not granted and review any decisions to terminate the enrollment of or exclude from enrollment any Fun Co. participant child with a disability, to ensure that such actions are not discriminatory.
17. Within sixty (60) days of the effective date of this Agreement, YMCA shall submit to the United States for review and approval its written policies and procedures regarding YMCA’s obligations under Title III of the ADA, to be adopted and implemented at each of YMCA’s Fun. Co. locations. YMCA’s currently existing policies and procedures shall be updated if needed, at a minimum, to include the following:
1. The designation of one individual in each county in which Fun Co. operates (currently the Fun Co. Program Specialist) who is authorized to receive and review requests for modifications to policies, practices, and procedures with respect to childcare services . This individual’s contact information shall be publicized in the parent handbook or another manner easily accessible for parents or guardians of children with disabilities, and disseminated with application materials provided to parents or guardians of prospective enrollees.
2. A process by which parents or guardians of Fun. Co. participants can request reasonable modifications to YMCA’s applicable policies, practices, and procedures with respect to childcare services (currently titled “Child with Special Needs Additional Information Form.”) This information shall be publicized in the parent handbook or another manner easily accessible for parents or guardians of children with disabilities, and disseminated with application materials provided to parents or guardians of prospective enrollees.
3. YMCA will promptly consider all requests for reasonable modification of policies, practices, or procedures with respect to Fun Co.’s services.
4. Upon receiving a request for modification that YMCA does not promptly grant, YMCA will initiate a discussion with the parent or guardian to explore what modification(s) may be necessary. Following the discussion, YMCA may:
1. grant the request; or
2. if more information is needed, make an appropriately tailored request for documentation relating to the child’s disability and any necessary modification(s).
5. After an individualized assessment is completed, if a request for modification is denied, YMCA will document each and every reason for the denial of the request and shall submit that documentation to the parent(s) or guardian(s) who requested such modification and the designated individual referenced in Paragraph 16.
6. YMCA will provide a response to a request for modifications, in writing, no later than fifteen (15) business days from the date the request is received.
18. Within thirty (30) days from the date upon which YMCA implements the policies and procedures set forth above, YMCA shall publicize the policies and procedures by distributing them to all of its Fun Co. staff and updating applicable parent handbook sections on its website.
19. Within sixty (60) days from the date upon which YMCA implements the policies and procedures set forth above, and on an annual basis thereafter, YMCA shall provide appropriate training to all individuals employed in Fun Co. with responsibility for granting or denying enrollment and/or considering requests for reasonable modifications for children with disabilities. New employees with comparable responsibilities hired during the term of this Agreement shall be provided comparable training.
20. YMCA shall retain the following records during the term of this Agreement:
1. Copies of all policies and procedures implemented pursuant hereto;
2. Letters or other written material sent to the Fun Co. staff associated with YMCA notifying them of the changes made to their policies, practices, and procedures;
3. Records documenting the training provided to staff of YMCA, including the dates of the training, names and positions of participants, names of trainers, and any materials used in connection with the training;
4. All documents that come into YMCA’s possession relating to a decision to deny enrollment to a child with a disability, or terminate a child with a disability from a YMCA childcare program; and
5. All documents that come into YMCA’s possession relating to a decision to deny a reasonable modification for a child with a disability.

ENFORCEMENT

21. As consideration for this Agreement, the United States will not institute any civil action under the ADA based on the allegations raised in DJ # 202-72-130 except as provided in Paragraph 22 below.
22. The United States may review YMCA’s compliance with this Agreement or Title III of the ADA at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with YMCA and the parties will attempt to resolve the concerns in good faith. If the parties are unable to reach a satisfactory resolution of the issue(s) raised within 30 days of the date that the United States provides notice to YMCA, the United States may institute a civil action in the appropriate United States District Court to enforce this Agreement or title III of the ADA against YMCA.
23. Failure by the United States to enforce any provision of this Agreement shall not be construed as a waiver of its right to do so with regard any provision of this Agreement.
24. If any term of this Agreement is determined by any court of competent jurisdiction 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 YMCA 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.
25. This Agreement shall be binding on YMCA, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees. In the event that YMCA seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer, or assignment, YMCA shall obtain the written accession of the successor or assignee to any obligation remaining under this Agreement for the remaining term of this Agreement.
26. The signatories to this Agreement warrant and represent that they are properly empowered to enter into this Agreement on behalf of the United States and YMCA of Middle Tennessee.
27. This Agreement constitutes the entire agreement between the United States and YMCA on the matters raised herein, and no other prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any attachments, shall be enforceable. This Agreement can only be modified or amended by mutual written agreement of the parties. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of disability. Nothing in this Agreement changes YMCA’s obligation to otherwise comply with the requirements of the ADA.
28. This Agreement shall be construed and interpreted in accordance with the laws of the United States. The parties agree that jurisdiction over any and all disputes regarding the Settlement Agreement shall lie exclusively in the United States District Court for the Middle District of Tennessee, Nashville Division.
29. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument binding upon all of the parties, notwithstanding that all of the parties are not signatories to the same counterpart.
30. The parties acknowledge and agree to cooperate fully and to execute any supplementary documents and to take any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
31. This Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the parties to this Agreement and each of them.
32. The parties warrant and represent that the parties have not assigned or agreed to assign to any person or entity all or any part of any claims addressed in this Agreement.
33. This Agreement is entered into between financially sophisticated and knowledgeable parties and is entered into by the parties in reliance upon the economic and legal bargains contained herein and shall be interpreted and construed in a fair and impartial manner without regard to the relative bargaining power of the parties.

EFFECTIVE DATE/TERMINATION DATE

34. The effective date of this Agreement is the date of the last signature below.
35. The duration of this Agreement will be three years from the effective date.

EXHIBIT 1
NON-DISCRIMINATION STATEMENT PROHIBITION OF DISCRIMINATION ON THE BASIS OF DISABILITY

YMCA Fun Co. ("YMCA") will not discriminate against any individual on the basis of disability with regard to the full and equal enjoyment of the goods and services of YMCA. YMCA will also not discriminate against any individual because of the known disability of an individual with whom such person is known to have a relationship or association.

YMCA will make reasonable modifications in its policies, practices, or procedures when such modifications are necessary to afford its childcare services and facilities to children with disabilities, including children with Autism Spectrum Disorder, unless the modifications would fundamentally alter the nature of its service or facilities. Please contact your child's Fun Co. Program Specialist for further information and to complete a "Child with Special Needs Additional Information Form."

YMCA will take such reasonable steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.