October-December 2000

     This Status Report covers the ADA activities of the    Department of Justice during the fourth quarter       (October-December) of 2000. This report, previous   status reports, and a wide range of other ADA     information are available through the DepartmentR17;s  ADA Home Page on the World Wide Web (see page 13). The   symbol (**) indicates that the document is available on the ADA Home Page.

          INSIDE...

          ADA Litigation

          Formal Settlement Agreements

          Other Settlements

          Mediation

          Technical Assistance

          Other Sources of ADA Information

          How to File Complaints

     2000, Issue 3

     The Americans with Disabilities Act (ADA) is a    comprehensive civil rights law for people with       disabilities. The Department of Justice enforces the ADAR17;s requirements in three areas -- Title I: Employment practices by units of   State and local government  Title II: Programs, services, and activities            of State and local government    Title III: Public accommodations and  commercial facilities  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

     Jury Requires Obstetrical Practice to Pay $60,000 in    Interpreter Case - A jury of the U.S. District Court

     for the District of Maine in U.S. v.York Womens' Care Associates awarded $60,000 in damages to a deaf

     individual who was denied a sign language interpreter for medical consultations involving his wife's

     high-risk pregnancy. Because of the lack of an    interpreter, the couple, both of whom are deaf, was

     unable during office visits to fully communicate with the medical practice about dietary concerns and other complications caused by the wife's gestational  diabetes. The patient herself did not receive a       damages award because the jury found that she had   waived her request for an interpreter. The U.S.     Attorney will ask the court to require the practice to  pay civil penalties and to enter an order preventing     future violations.

     Federal Judge Holds Foreign Cruise Ship Covered by ADA

     - The U.S. District Court for the Northern District of    California in Walker v. Carnival Cruise Lines ruled      that the ADA covers cruise vessels when they are in  the ports or other internal waters of the United     States, even if they are registered in a foreign   country. The plaintiffs in this case were two   wheelchair users who had booked cruises on the  "Holiday," a ship registered in the Bahamas,   originating in Los Angeles with stops at Catalina   Island, California, and Ensenada, Mexico. They alleged  that the defendants had failed to remove barriers in   their reserved rooms and throughout the ship's  facilities even though it was readily achievable to do so. The Department argued in an amicus brief that  title III of the ADA applies to cruise ships because they are both "places of public accommodation" and "specified public transportation services" operated by   private entities, and that cruise ships are required  to comply with title III's "barrier removal"   requirement despite the absence of applicable design  standards for new construction and alterations. In  addition, the Department argued that foreign-flag   cruise ships (virtually all cruise ships serving U.S.  ports sail under a foreign flag) are subject to the  requirements of the ADA when they do business in U.S.   ports and internal waters. As urged by the Department,  the court will allow consideration of the plaintiffs'  barrier removal claims to continue.

     Eighth Circuit Clarifies "Standing" Requirements for    Title III Suits - The U.S. Court of Appeals for the      Eighth Circuit ruled in Steger v. Franco that two   plaintiffs who are wheelchair users did not have  standing to bring a suit challenging the accessibility  of a Clayton, Missouri, office building containing   numerous places of public accommodation, because they  had not visited the building before filing the lawsuit  and had not alleged that they intended to do so in the near future. The court disagreed with an amicus brief     filed by the Department that argued that, in order to   have standing, plaintiffs did not have to first actually try to use the facility as long as they  reasonably believed that it was not accessible and  that they would likely use the facility if the ADA violations were corrected. However, consistent with the Department's brief, the court held that another plaintiff, a blind individual who had visited the building before the complaint, had standing to challenge all barriers in the building that would affect blind individuals, even those he had not encountered personally.

          2. New lawsuits

          The Department initiated or intervened in the  following lawsuits.

                            Title III

     U.S. v. Hoyts Cinemas Corporation; U.S. v. National    Amusements, Inc. - The U.S. Attorney for the District of Massachusetts filed lawsuits against two national  movie theater chains, Hoyts Cinemas and National    Amusements, for allegedly violating the ADA by  designing, constructing, and operating stadium-style  movie theaters with wheelchair seating locations that    are not an integral part of the fixed stadium-style  seating, that fail to provide comparable lines of  sight, and that deny wheelchair users an equal opportunity to enjoy the stadium-style theater experience. At most Hoyts and National Amusements     theaters the wheelchair seating spaces are located on    the sloped floor in the front few rows of the theater       immediately in front of the screen, while nearly all of the other patrons are seated in the stadium seats     on tiered risers that give them an unobstructed view of the screen with far better sight lines. The   lawsuits ask the court to order the defendants to correct the theaters already built, to agree to design  and construct all future theaters in compliance with   the requirements of the ADA, and to pay civil penalties.

          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 I and II   U.S. v. Town of New Chicago, Indiana - New Chicago,  Indiana, agreed to pay $42,500 in damages and back pay  to an employee who allegedly suffered retaliation by  the town after she filed a discrimination charge with  the Equal Employment Opportunity Commission. The  Department of Justice filed suit on behalf of the employee, a former dispatcher in the police department, who alleged in her EEOC charge that she  had been discriminated against by the town in the  administration of its employee group health insurance plan. Following the filing of the charge, the town allegedly took a wide range of adverse actions in retaliation, including refusing to speak to her about alleged deficiencies in her work performance, subjecting her work to unreasonable scrutiny,  informing the police commission about alleged       deficiencies in her work performance, engaging in    reprimands and suspensions, and filing formal charges       against her that ultimately resulted in her   termination from employment. In addition to damages  and back pay for the complainant, the consent decree  prohibits the town from engaging in discrimination or     retaliation in the future, requires training on the  ADA for all town officials and employees, and requires     the town to post a notice on town property describing  ADA rights and remedies.

       **Colorado City Agrees to Accessible Bus    Service in Justice Department's First Public Transit Case - Steamboat Springs, Colorado, will take immediate steps to ensure accessible public bus service under an             agreement reached with the Department of  Justice. The consent decree resolves the case of Richardson v. City of Steamboat  Springs, which was originally brought by two wheelchair users who claimed that they were denied equal access to the public transit system in Steamboat Springs. The Department of Justice intervened and alleged that the city violated the ADA by purchasing           inaccessible used buses without first making  the required good faith efforts to purchase   accessible buses, by failing to repair  inoperable wheelchair lifts and to provide alternative transportation when wheelchair            lifts were inoperable, and by not adequately training bus drivers in the operation of  wheelchair lifts. Under the consent decree,  Steamboat Springs will - * Lease two accessible vans or minibuses for use on the city's fixed route system  to replace two inaccessible vans; * Use other inaccessible vans only on an                    emergency basis until they are permanently replaced through a recent  purchase of new accessible vans;  * Implement a wheelchair lift maintenance  program and train city bus employees on  proper maintenance and operation of  wheelchairs lifts; * Ensure by August 2002 that all vehicles  in its active inventory of vehicles are readily accessible; * Upgrade record-keeping policies and procedures;                  * Adopt procedures for providing  alternative means of transportation when wheelchair lifts are inoperable; and * Compensate the two aggrieved individuals  in the amount of $12,250.

                            Title III

     ** U.S. v. Neurological Surgery, Inc. -- Neurological    Surgery, Inc. (NSI), a group of privately practicing       neurosurgeons in Tulsa, Oklahoma, agreed to a pay   $40,000 in damages and $10,000 as a civil penalty to     settle a lawsuit brought by the Department alleging that NSI violated the ADA when one of its       neurosurgeons refused to provide medical services to an individual because of his HIV disease. The     complainant, who had a back condition, was originally referred to the neurosurgeon for possible surgery. He alleged that upon learning of his HIV disease, the  surgeon refused to provide him with any further     services because of the surgeon's policy of refusing elective surgery to individuals with HIV disease.     Under the decree, NSI must treat persons who have HIV or AIDS in a nondiscriminatory manner and post a     notice of nondiscrimination against persons with HIV disease or AIDS. In addition, the surgeon who was     alleged to have discriminated must attend training concerning the medical treatment of persons with HIV.

          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

     Kapche v. City of San Antonio - The Department filed an amicus brief arguing that blanket policies     excluding people with insulin-treated diabetes violate  the ADA. It asked the U.S. Court of Appeals for the       Fifth Circuit to overrule an earlier decision holding   that individuals with insulin-treated diabetes were      automatically ineligible for jobs involving driving   because, in the court's view, they presented a serious     risk of harm to themselves and others. In Kapche the   plaintiff was rejected for a police officer position      because of his insulin-treated diabetes. The  Department argued in its amicus brief that this  blanket policy violated the ADA, because the ADA  requires a fact-based, present assessment of both an applicant's qualifications for the job and of the employer's qualification standards that screen out      individuals with disabilities. The brief noted that  the U.S. Department of Transportation has completed a study concluding that it is feasible to evaluate on an  individualized basis applicants for commercial motor      vehicle licenses who have insulin-treated diabetes. It also informed the court that Federal law enforcement agencies no longer apply a blanket exclusion of applicants with insulin-treated diabetes.

     House v. City of Jackson - The Department filed an    amicus brief in the U.S. District Court for the      Western District of Tennessee questioning the validity  of a Tennessee statute that prohibits any person who  has "any apparent mental disorder" from being a police officer. This law, which does not allow for an      individualized assessment of an individual's ability  to perform the essential functions of the job,      automatically bars any person with any disorder, even  the most minor, listed in the Diagnostic and      Statistical Manual of Mental Disorders (DSM-IV) of the   American Psychiatric Association. The Department   earlier intervened in a lawsuit challenging this same  requirement as applied to public safety dispatchers in  Nored v. Weakely County 9-1-1 Emergency Communications  District.

                            Title II

     Crocker v. Lewiston Police Department - The Department    filed an amicus brief in the U.S. District Court for   the District of Maine arguing that the ADA covers all  State and local government activities, including     police arrest procedures. The suit was brought by a    deaf individual who alleged that the failure of the       Lewiston police to provide a sign language interpreter    denied him the ability to communicate effectively      during his arrest and detention.

                            Title III