Enforcement
Many people’s complaints are resolved through the grievance procedure established by their state or local government. Some people prefer a more formal action. An individual can take the more formal action any time. Using the Title II entity’s grievance procedure is not required.
There are several ways that Title II is enforced.
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Complaints to the Department of Justice and other federal agencies
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Civil lawsuit
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Project Civic Access
A complaint may be filed with either --
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A federal agency that provides funding to the public entity that is the subject of the complaint;
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A federal agency designated in the Title II regulation to investigate Title II complaints; or
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The Department of Justice.
The designated federal agencies are as follows:
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Department of Agriculture
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Department of Education
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Department of Health and Human Services
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Department of Housing and Urban Development
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Department of Interior
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Department of Justice
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Department of Labor
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Department of Transportation
If a person files an administrative complaint, the appropriate federal agency will investigate. If the agency concludes that the public entity violated Title II, it will attempt to negotiate a settlement. If settlement efforts fail, the matter will be referred to the Department of Justice for a decision whether to institute litigation. In cases where the Title II entity receives federal financial assistance, assistance termination is an enforcement option.
A complaint must be filed within 180 days of the date of the alleged discrimination, unless the time for filing is extended by the federal agency.
Title II Regulations 28 § 35.170
Complaints:
(a) Who may file. An individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis of disability by a public entity may, by himself or herself or by an authorized representative, file a complaint under this part. (b) Time for filing. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the designated agency for good cause shown. A complaint is deemed to be filed under this section on the date it is first filed with any Federal agency. (c) Where to file. An individual may file a complaint with any agency that he or she believes to be the appropriate agency designated under subpart G of this part, or with any agency that provides funding to the public entity that is the subject of the complaint, or with the Department of Justice for referral as provided in §35.171(a)(2).
§ 35.171 Acceptance of complaints (a) Receipt of complaints. (1) (i) Any Federal agency that receives a complaint of discrimination on the basis of disability by a public entity shall promptly review the complaint to determine whether it has jurisdiction over the complaint under section 504. (ii) If the agency does not have section 504 jurisdiction, it shall promptly determine whether it is the designated agency under subpart G of this part responsible for complaints filed against that public entity. (2) (i) If an agency other than the Department of Justice determines that it does not have section 504 jurisdiction and is not the designated agency, it shall promptly refer the complaint to the appropriate designated agency, the agency that has section 504 jurisdiction, or the Department of Justice, and so notify the complainant. (ii) When the Department of Justice receives a complaint for which it does not have jurisdiction under section 504 and is not the designated agency, it may exercise jurisdiction pursuant to § 35.190(e) or refer the complaint to an agency that does have jurisdiction under section 504 or to the appropriate agency designated in subpart G of this part or, in the case of an employment complaint that is also subject to Title I of the Act, to the Equal Employment Opportunity Commission. (3) (i) If the agency that receives a complaint has section 504 jurisdiction, it shall process the complaint according to its procedures for enforcing section 504. (ii) If the agency that receives a complaint does not have section 504 jurisdiction, but is the designated agency, it shall process the complaint according to the procedures established by this subpart.
Civil Lawsuits
An individual may go directly to court. Title II does not require complainants to go through the federal administrative process before suing. The complainant may recover attorney’s fees in addition to injunctive relief, if the person prevails. Injunctive relief is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. Under Title II it could be ordering a public entity to provide a sign language interpreter for someone who is deaf or modifying a policy so that service animals are permitted in public buildings.
Compensatory damages (money) are available only if a plaintiff can prove that the discrimination by the public entity was intentional, which means conduct that results from deliberate indifference to the rights of the individual or actual malice. This is a high threshold to meet.
The prevailing party may also recover attorney’s fees at the court’s discretion.
Title II Regulations 28 § 35.172
Investigations and compliance reviews:
(d) At any time, the complainant may file a private suit pursuant to section 203 of the Act, 42 U.S.C. 12133, whether or not the designated agency finds a violation.
28 § 35.175 Attorney's fees. In any action or administrative proceeding commenced pursuant to the Act or this part, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.
Project Civic Access
The Department of Justice’s Project Civic Access is a wide-ranging effort to ensure that counties, cities, towns, and villages comply with the ADA. The Department has conducted comprehensive Title II reviews in 50 states, as well as Puerto Rico and the District of Columbia. Compliance review sites are chosen based upon the Department’s desire to visit every state, the population of the site, and, in some cases, its proximity to a university or tourist attraction. Some reviews were initiated in response to complaints and others were not. The settlement agreements are posted on the Department’s website at www.ada.gov. They provide a good overview of the Department of Justice’s expectations for public entities’ compliance with Title II.
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