THE AMERICANS WITH Disabilities Act, 42 U.S.C. § 12181, et seq., provides civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, certain government services and telecommunications. The statute has three main parts: 1) employment discrimination on the basis of disability; 2) discrimination against individuals in programs, activities and services of state and local governments and subdivisions; and 3) discrimination against persons with disabilities by places of public accommodations, such as restaurants, theaters, hospitals, retail stores and other similar facilities. By far, most enforcement actions under the ADA involve allegations of discrimination against places of public accommodation, due to barriers to access affecting persons with disabilities.

Although private individuals may enforce the act, the U.S. Department of Justice has significant enforcement authorization. In the district of New Hampshire, the enforcement entities of the Dept. of Justice that would most likely be encountered include the Disability Rights Section of the department’s Civil Rights Division and the U.S. Attorney’s Office for the District of New Hampshire. This article will attempt to give some perspective to the roles of those two entities.

The U.S. Dept. of Justice enforces the ADA through the Disabilities Rights Section (DRS) of the Civil Rights Division, Washington, D.C. The act provides two main ways that the DRS can become involved in an enforcement action. First, any individual who believes that any disabled person has been the victim of discrimination or who has encountered barriers to access to any place of public accommodation may request the Dept. of Justice to investigate. Upon receiving such a complaint, the department may initiate a compliance review. 42 U.S.C. 12188(b)(1)(A)(i) and (ii) 28 C.F.R. § 36.502. Second, the department may bring a civil action at any time in any district if the attorney general has reasonable cause to believe that a person or group of persons is engaged in a pattern of discrimination prohibited by the act or that a person or group of persons have been discriminated against in violation of the ADA and that the discrimination raises an issue of general public importance. 42 U.S.C. § 12188(b)(1)(B); 28 C.F.R. § 36.503.

No matter how the department becomes involved in an enforcement action, the court may grant several types of relief when such an action is brought. The potential relief includes:

• granting a preliminary or permanent injunction;
• providing some type of auxiliary aid or service, or ordering a modification of a practice or procedure that is responsible for the discrimination;
• ordering relief that would make the facilities readily accessible to and usable by persons with disabilities;
• awarding monetary damages to persons injured by the discrimination; and
• assessing civil monetary penalties against the entity in amounts up to $50,000 for a first offense, or up to $100,000 for subsequent offenses.

42 U.S.C. § 12188(b)(2); 36 C.F.R. § 36.504.

DRS acts as a principal source of information for individuals and entities affected by the provisions of the ADA. The section also initiates enforcement action against regional and national entities to require compliance with, especially, Title III provisions concerning the removal of barriers to access at places of public accommodation. For example, DRS brought suit against the Wendy’s restaurant chain (and the company-owned restaurants) to force removal of metal railings, which customers had to navigate to approach the food-service window. These queues, which were designated by rigid rails and fixed posts, were so narrow that a person in a wheelchair could not travel through the passage. In addition, the configuration of the queues required 180-degree turns, which could not be accomplished by individuals in wheelchairs. A comprehensive settlement was reached with the company, which resulted in the modification or removal of the queues at company-owned Wendy’s restaurants and the adoption of a building plan for future restaurants that eliminated the structures.

DRS also coordinates enforcement efforts in national initiatives for particular ADA programs. In 1997, the attorney general directed the Civil Rights Division to determine whether local 911 emergency services were equipped with telephones that could communicate with the hearing impaired through the use of text-telephones. For the next six months, local United States Attorney’s Offices met with the governmental units in their localities that operated the 911 service (including New Hampshire) to ensure the required number of text-telephones were available and that the staff was sufficiently trained in their use. In a few instances, the DRS brought an enforcement action against the agency responsible for 911 service to compel the agency to acquire the necessary number of text-telephones and train operators in their use.

The U.S. Attorney’s Office for this district, or any U.S. Attorney’s Office, can become involved in an enforcement action under the ADA in one of three ways. First, when DRS receives a complaint of regional or local concern, a referral may be made to the appropriate U.S. Attorney’s Office for investigation and, if indicated, enforcement. Second, a U.S. Attorney’s Office may receive a complaint directly from a citizen who believes that someone with a disability is being discriminated against because of conditions at a local place of public accommodation. Third, the U.S. Attorney’s Office may initiate its own evaluation of facilities that may have barriers to access by persons with disabilities, which raise issues of general public importance.

Upon receipt of a complaint, a U.S. Attorney’s Office will generally conduct a compliance review to assess the merit of the complaint. That review often includes a meeting with the complainant to learn more about the circumstances of the encounter that gave rise to the suggestion of the existence of barriers to access. One of the most important aspects of the compliance review is a visit to the establishment. This visit, which is initially performed by an investigator from the particular office, provides first-hand knowledge of the perceived barriers to access.

The implementing regulations provide enforcement personnel and business owners with guidance for determining whether there are architectural barriers, based on specific and detailed criteria set out in the guidelines. 28 C.F.R. Part 36, Appendix A. The ADA Accessibility Standards (the standards) detail minimum measurements and benchmarks for a variety of potential barriers to accessibility, including handicapped parking space dimensions and signs, ground and floor surfaces, ramps and stairs, windows and doors, public rest rooms, telephones and many other fixture and design considerations.

In conducting a review, consideration will be given to the age of the building, and whether there has been substantial remodeling to the public areas since 1992, when the ADA went into effect. For all post-1992 structures ("new construction"), the standards allow the investigator to conduct a set of measurements and evaluations, which should readily indicate whether or not there are barriers to access in violation of the ADA mandates. For those buildings older than January 1993, the calculation is quite different. The ADA provides that for existing facilities (i.e., in existence prior to Jan. 26, 1993), a public accommodation shall remove architectural barriers, including communication barriers, that are structural where such removal is "readily achievable," or easily accomplished and able to be carried out without much difficulty or expense. 28 C.F.R. § 36.304(a).

Using the applicable standards, an investigator can make a preliminary determination regarding whether the existing conditions are a barrier to access and, if the building was in existence before January 1993, whether remedial action removing those barriers is "readily achievable." If barriers to access are found to exist and, in "existing structures," the removal of those barriers is readily achievable, then generally the establishment is contacted to advise it of the findings and to provide information to demonstrate either that the barriers are not discriminatory against those with disabilities or that removal is not "readily achievable."

In many instances, the businesses take prompt steps to correct the architectural barriers. Usually, efforts are made to work with the business to craft a plan of renovation, which will incorporate the needed changes that will adequately remove or limit the barriers to access. Extensive modifications usually require the submission of architectural drawings and plans by the business, which will be reviewed by the professional architectural staff of DRS in Washington.

The terms of any needed renovations and the plans for any future ADA-related construction are generally formalized by the parties, including any complainant who first brought the accessibility problems to the attention of the Dept. of Justice. Often, these terms are included in a Consent Decree filed in U.S. District Court. This decree may also include the provisions of any preliminary or permanent injunction; the provision of some type of auxiliary aid or service; the modification of a practice or procedure that is responsible for the discrimination; and the award of monetary damages to the persons injured by the discrimination, as well as the possible assessment of civil monetary penalties against the entity in amounts up to $50,000 for a first offense, or up to $100,000 for subsequent offenses.

The primary enforcement concern is compliance with the provisions of the ADA to ensure that persons with disabilities are able to access public areas of any place of public accommodation to the extent contemplated by the statute. Nonetheless, entities should realize that those enforcing the act stand ready and willing to work with them in the adoption of plans to alter or renovate their public areas to accomplish this goal with a minimum of disruption or excessive expense to their business.

Individuals who believe they are being subject to discrimination on the basis of their disability may bring private suits seeking injunctive relief and monetary damages. The court may permit the Department of Justice to intervene in such actions if there is a certification that the case is one of general public importance. 28 C.F.R. § 36.501.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer