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Title III Technical Assistance Manual (with 1994 supplement)


Regulatory references: 28 CFR 36.501-36.508.

III−8.1000 General. The ADA establishes two avenues for enforcement of the requirements of title III --

1) Private suits by individuals who are being subjected to discrimination or who have reasonable grounds for believing that they are about to be subjected to discrimination.

2) Suits by the Department of Justice, whenever it has reasonable cause to believe that there is a pattern or practice of discrimination, or discrimination that raises an issue of general public importance. The Department will investigate complaints and conduct compliance reviews of covered entities.

Do State or local civil rights agencies have any role in enforcing title III? There is no provision for State or local civil rights agencies to directly enforce title III of the ADA. They can, however, enforce State or local laws that incorporate the standards of the ADA, or they can set up alternative dispute resolution mechanisms (see III−8.6000).

III−8.2000 Private suits. Any person who is being subjected to discrimination on the basis of disability in violation of title III of the Act may file a civil action for injunctive relief. Also, when a person has reasonable grounds for believing that he or she is "about to be subjected to discrimination" because of a violation of the new construction and alterations requirements of the ADA, he or she may file a civil action.

ILLUSTRATION: X has reasonable grounds for believing that the plans for a hotel complex are not in compliance with the ADA. X may file a lawsuit challenging the plans, even though construction has not begun.

An individual is not required to engage in a futile gesture, if he or she has notice that a person or organization does not intend to comply with its obligations under the Act.

At the request of the plaintiff or defendant, and if the court permits it, the Department of Justice can intervene in the civil action, if it determines that the case is of general public importance. The court may also appoint an attorney for the plaintiff and may permit him or her to commence the civil action without first paying fees, costs, or security.

Remedies available in a private suit may include a permanent or temporary injunction, restraining order, or other order, but not compensatory or punitive money damages or civil penalties. In the case of violations of the requirements for readily achievable barrier removal or for accessible new construction and alterations, remedies to correct a violation may, as appropriate, include an order to alter the facilities that do not meet the requirements of the Act to make them readily accessible to and usable by individuals with disabilities. Also, the remedies may include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods of barrier removal.

III−8.3000 Investigations and compliance reviews. The Department of Justice will investigate alleged violations of title III and undertake periodic reviews of compliance of covered entities. An investigation may be requested by any individual who believes that he or she has been discriminated against or that a specific class of persons has been discriminated against in violation of title III. Where the Department has reason to believe that there may be a violation, it may initiate a compliance review.

Complaints may be sent to the following address:

Office on the Americans with Disabilities Act

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035‒9998

III−8.4000 Suit by the Attorney General. The Department may bring a civil action in any appropriate United States district court if it has reasonable cause to believe that --

1) Any person or group of persons is engaged in a pattern or practice of discrimination in violation of title III; or

2) Any person or group of persons has been discriminated against in violation of title III and the discrimination raises an issue of general public importance.

What remedies are available in civil actions brought by the Department of Justice? The remedies available include those available in an action brought by an individual, such as an order granting temporary, preliminary, or permanent relief; requiring that facilities be made readily accessible to and usable by individuals with disabilities; requiring provision of an auxiliary aid or service; or modification of a policy, practice, or procedure.

In addition, in a suit brought by the Department, the court may award other appropriate relief, including, if requested by the Department, monetary damages to individual victims of discrimination. Monetary damages do not include punitive damages. They do include, however, all forms of compensatory damages, including out-of-pocket expenses and damages for pain and suffering.

Also, to vindicate the public interest, the court may assess a civil penalty against the covered entity in an amount --

1) Not exceeding $50,000 for a first violation; and

2) Not exceeding $100,000 for any subsequent violation.

How will violations be counted in determining whether a particular violation is "first" or "subsequent"? All violations found in the first suit against a covered entity are considered to be the first violation, so that the maximum penalty that may be assessed in that suit is $50,000. A "subsequent" violation would not be found until the Department brought a second suit against the same covered entity. The maximum penalty in each suit after the first suit is $100,000.

Will good faith efforts be considered in determining the amount of civil penalty? Yes. In considering what amount of civil penalty, if any, is appropriate, the court is required to give consideration to any good faith effort or attempt by the covered entity to comply with its obligations under the Act. One of the factors to be considered in evaluating good faith is whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability.

III−8.5000 Attorney's fees. The prevailing party (other than the United States) in any action or administrative proceeding under the Act may recover attorney's fees in addition to any other relief granted. The "prevailing party" is the party that is successful and may be either the complainant (plaintiff) or the covered entity against which the action is brought (defendant). The defendant, however, may not recover attorney's fees unless the court finds that the plaintiff's action was frivolous, unreasonable, or without foundation, although it does not have to find that the action was brought in subjective bad faith. Attorney's fees include litigation expenses, such as expert witness fees, travel expenses, and costs. The United States is liable for attorney's fees in the same manner as any other party, but is not entitled to them when it is the prevailing party.

III−8.6000 Alternative means of dispute resolution. The ADA encourages the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration to resolve disputes, where appropriate and to the extent authorized by law. In appropriate cases, these types of procedures may be faster, more efficient, and less expensive than the judicial and administrative procedures available under the ADA. Alternative means of dispute resolution, however, are intended to supplement the procedures provided in the ADA, not to replace them. Use of alternative procedures is completely voluntary and must be agreed to by the parties involved.

III−8.7000 Technical assistance. The ADA recognizes the necessity of educating the public about its rights and responsibilities under the Act and requires the Department of Justice, in consultation with other agencies, to provide technical assistance to assist covered entities and individuals with disabilities in understanding their rights and responsibilities under the ADA.

The Federal Government's experience in implementing section 504 of the Rehabilitation Act of 1973, as amended, has demonstrated that a publicized, readily available, comprehensive technical assistance program responsive to the problems and needs of its audience offers many advantages. Technical assistance that is designed to meet the needs of individuals with disabilities, covered entities, and the general public reduces misunderstandings regarding rights and responsibilities, facilitates voluntary compliance, and promotes the exchange of information and the development of more effective and less costly methods to address compliance issues. It also avoids an unnecessary reliance on enforcement and litigation to achieve compliance.

Technical assistance includes the provision of expert advice, and both general and specific information and assistance to individuals with disabilities, the general public, and entities covered by the ADA. The purposes of this technical assistance are two-fold: to inform the public (including individuals with rights protected under the Act) and covered entities about their rights and duties; and to provide information about cost-effective methods and procedures to achieve compliance.

The Department plans to provide technical assistance through publications, exhibits, videotapes and audiotapes, and public service announcements. It has developed a number of nontechnical publications, including this manual, explaining the requirements of the Act, and has established a Speakers Bureau to provide speakers for events such as conferences, workshops, and training programs. It is also operating a telephone information line to respond to inquiries and requests for publications and to provide advice to individuals about specific problems. The Department also engages in a variety of clearinghouse functions and operates an electronic bulletin board to distribute information.

The Department has awarded over $3,000,000 in technical assistance grants to 19 organizations to disseminate technical assistance to specific audiences. They include national associations of covered entities, such as restaurants, hotels and motels; and associations of individuals with disabilities representing individuals with speech, hearing, and vision impairments, mobility impairments, mental retardation, and epilepsy. Many of these organizations have also established telephone information lines to respond to inquiries and are producing publications and providing training directed to their specific audiences. The Architectural and Transportation Barriers Compliance Board (800-USA-ABLE [voice or TDD]), which was responsible for development of ADAAG, and the Equal Employment Opportunity Commission (800‒669-EEOC [voice]; 800‒800‒3302 [TDD]) have also established telephone information services. In addition, the National Institute on Disability and Rehabilitation Research has established ten Regional Disability and Business Accommodation Centers to serve as regional resources for ADA information.

The agencies involved in providing ADA technical assistance are making, and will continue to make, a sustained effort to ensure that effective technical assistance is available to all covered entities. Nevertheless, covered entities retain responsibility for ensuring that their activities comply with the requirements of the Act, and a public accommodation or other private entity is not excused from compliance because of any failure to receive technical assistance.

III−8.8000 Effective date. The ADA requirements became effective on --

1) January 26, 1992, generally;

2) August 26, 1990, for purchase or lease of new vehicles that are required to be accessible. New facilities designed and constructed for first occupancy later than January 26, 1993, must be accessible.

Is there any grace period for small business? No. All businesses must comply by January 26, 1992. Small businesses, however, do enjoy limited protection from lawsuits. Except with respect to new construction and alterations, no lawsuit may be filed until --

1) July 26, 1992, against businesses with 25 or fewer employees and gross receipts of $1 million or less.

2) January 26, 1993, against businesses with ten or fewer employees and gross receipts of $500,000 or less.


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