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Discrimination Complaints Under Title III of the ADA

The following information is from the Title III Technical Assistance Manual developed by the U.S. Department of Justice. The manual provides guideance on the regulations

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

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.