Legal E-Bulletin - August 2001

Brief Overview of Enforcement 
Under Title II & III of the ADA

The following is a brief overview of what the ADA says about damages, attorneys fees and related enforcement issues under Titles II and III. In the the next two issues of the DLRP Legal E-Bulletin detailed information on enforcement issues on all major disability legislation will be provided-stay tuned!

To date almost all of the Americans with Disabilities Act cases have been brought under Title I, employment.  As a result most of the existing literature and litigation on the ADA focuses on employment issues arising under under Title I.  It is the goal of this piece to elucidate, albeit briefly, the enforcement options available under Title II, and III.

Title II covers state and local governmental entities.  The Title requires that these entities provide access to their programs and services through a variety of means, including modifying their programs, or their buildings to accommodate persons with disabilities.  What must be done in each case will depend upon the type of program or service at issue and the type of disability that needs to be accommodated. This part of the ADA in large part mirrors §504 of the Rehabilitation Act (Rehabilitation Act of
1973, 29 U.S.C. § 794 Section 504 of the Rehabilitation Act applies to all programs feceiving federal financial assistance. 

Under both the ADA and the Rehabilitation Act attorneys fees are allowed for prevailing parties. The ADA provides for attorney fees in section 42 U.S.C. § 12205.  Attorneys fees are provided for under the Rehabilitation Act of 1973 in § 794a(2)(b), both of these sections are attached at the end of this piece.

Title III applies to the private sector.  It requires private businesses which are considered places of public accommodations (retail centers, restaurants, law and doctors offices etc.) to make their places of business, and services provided accessible. 

There are administrative remedies available to the public.  Under Title II, the ADA designates eight federal agencies that have responsibilities in enforcement, these include: Department of Agriculture, Department of Education, HUD, Department of Health and Human Services, Department of the Interior, Department of Transportation, Department of Labor (and the EEOC under its umbrella), and the Department of Justice. When in doubt of what agency to file a complaint with forward it to the DOJ,
the agency will then forward it to the appropriate agency.  The Department of Justice also has responsibility for enforcing Title III of the ADA. Other federal agencies have enforcement duties under other titles of then ADA; including the FCC for Title IV: Telecommunications.

Typically, however, a person files a complaint with the DOJ.  The complaint must be filed within 180 days of the date of the discrimination. The DOJ may investigate the matter.  It may be referred to a DOJ mediation program, or the Department may bring a lawsuit where it has been unable to resolve the dispute.  If the DOJ brings suit in federal court a court may order compensatory damages and back pay to remedy discrimination if the Department prevails. Under title III, the Department of Justice may also obtain civil penalties of up to $50,000 for the first violation and $100,000 for any subsequent violation. Information on filing administrative complaints is available on the DOJ Web site at http://www.usdoj.gov/crt/ada/enforce.htm#anchor218282

Title II claims may also be enforced by filing private lawsuits in a United States District Court. There is no need to exhaust administrative remedies in order to file a claim, or get a "right-to-sue" letter from the DOJ before pursuing litigation.  Exhaustion of administrative remedies and "right-to sue" letters are required when pursuing complaints under Title I of the ADA. A plaintiff can pursue a covered entity under Title II for injunctive, declaratory, and monetary relief.  Damages are available in a private cause of action under Title II to the extent that they are available under §504.  This will depend on the jurisdiction. Costs, reasonable attorney's fees, and other litigation expenses are also available to the prevailing plaintiff, and to the prevailing defendant where plaintiff's claim was groundless, or brought with bad faith.

Under Title III, a person may file a complaint with the DOJ, or pursue a private cause of action in U.S. District Court.  As in Title II private actions, litigation costs, and attorney's fees may be available, but monetary damages are not available.

For more information about bringing an administrative complaint under Title II & III of the ADA visit: http://www.usdoj.gov/crt/ada/adahom1.htm

The Department of Justice also sponsors a mediation program through which complaints may be resolved, visit http://www.usdoj.gov/crt/ada/mediate.htm for more information.

The Department of Justice is also developing a program to monitor civil litigation initiated pursuant to the ADA.  The purpose is to share strategies and promote winning arguments.  Visit http://www.usdoj.gov/crt/ada/litmon.htm to find out more about the program.

To ask a question, or give a comment, please send an E-mail to: swdbtac@ilru.org.  All questions are answered confidentially. 


Americans with Disabilities Act 42 U.S.C. § 12205

Sec. 12205 Attorney's fees
In any action or administrative proceeding commenced pursuant to this chapter, 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. (Pub. L. 101-336, title V, Sec. 505, July 26, 1990, 104 Stat. 371.

Rehabilitation Act of 1973, 29 U.S.C. § 794 

"Sec. 794a Remedies and attorneys' fees 
(a)(1) The remedies, procedures, and rights set forth in Sec. 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), including the application of Secs. 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k)), shall be available, with respect to any complaint under Sec. 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint.
In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.
(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under Sec. 794 of this title.
(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. (Pub. L. 93-112, title V, Sec. 505, as added Pub. L. 95-602, title I, Sec. 120, Nov. 6, 1978, 92 Stat. 2982.) 

The Legal E-bulletin is distributed monthly for subscribers interested in a  comprehensive review of litigation that is occurring on a national and regional level in regard to the Americans with Disabilities Act and other disability related laws. Beth Sufian and James Passamano of Sufian and Passamano, attorneys who are experts in the field of disability law, facilitate it. The bulletin is intended to provide technical assistance and information on the litigation that is shaping the meaning of the ADA and
other laws.  The mission of the DLRP is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma. Based at
ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA. NIDRR is not an enforcement agency.

Project staff are also available at 800-949-4232 from 9:00a.m.–5:00p.m. Central Time to answer your ADA questions. All questions are answered confidentially.  The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

To unsubscribe to the legal E-bulletin, or to subscribe to the general or HR E-bulletin, to ask a question or give a comment, please send an E-mail to swdbtac@ilru.org.  All questions are answered confidentially.

You are welcome to reproduce all or part of the text on this web page electronically or in print, crediting as your source the Southwest ADA Center at ILRU. We would greatly appreciate receiving a copy of your use of our material. Please send to:

Southwest ADA Center
2323 S. Shepherd #1000
Houston, Texas 77019
713-520-0232 (v/tty)
713-520-5785 (fax)
swdbtac@ilru.org