771

August 26, 1998

The Honorable Michael Bilirakis

Member, U.S. House of Representatives

1100 Cleveland Street

Suite 1600

Clearwater, Florida 33755

Dear Congressman Bilirakis:

I am responding to your letter on behalf of your constituent, xxxxxxxxxxx, who asked you to initiate an investigation of the implementation of the Americans with Disabilities Act of 1990 (ADA) by the Disability Rights Section of the Civil Rights Division.

Mr. xxxxxx letter to you makes unfounded assertions about the Division's ADA implementation. Mr. xxxx is basing his request on a recent article in a publication called The Mouth, which alleged that the Disability Rights Section has completed only one ADA case since the statute was enacted. This assertion is simply wrong. It is premised on a failure to understand the role of the Department of Justice in ADA implementation, the nature of the Federal civil law enforcement process, and the allocation of ADA implementation responsibility within the Civil Rights Division.

The ADA prohibits discrimination on the basis of disability in employment, transportation, public services, and public accommodations. The Department of Justice bears the primary responsibility for the implementation of title II (public services) and title III (public accommodations) of the ADA. The Equal Employment Opportunity Commission (EEOC) has the primary responsibility for implementing the ADA's employment requirements and the Department of Transportation (DOT) has primary responsibility for implementing the transportation-related requirements. However, the Department of Justice is responsible for litigation involving public employers or public transportation providers and all enforcement involving private transportation providers.

The Disability Rights Section is assigned to implement these requirements. The Section uses a multi-faceted approach to achieve compliance with the ADA. The Section investigates charges of discrimination and, when appropriate, initiates litigation. In addition, the Section intervenes as a party in some ongoing litigation and participates as amicus curiae in other district court cases. The Section also sponsors a pilot-project on ADA mediation. Under this program, the Section has awarded grants to train more than 350 professional mediators in 45 States and the District of Columbia to resolve ADA disputes without litigation.

In addition to these enforcement responsibilities, the Section reviews accessibility codes to determine if they are equivalent to the ADA. The Section operates an extensive ADA technical assistance program that includes a technical assistance grant program, the publication of technical assistance documents, and the operation of a toll-free ADA information line that receives over 160,000 calls each year. The Section also has responsibilities under section 504 of the Rehabilitation Act, the Small Business Regulatory Enforcement Fairness Act, and Executive Order 12,250. The Section's activities affect six million businesses and non-profit agencies, 80,000 units of state and local government, 54 million people with disabilities, and over 100 other Federal agencies and commissions in the Executive Branch. Additional information about all of these activities is provided on the Section's ADA Home Page on the Internet (http://www.usdoj.gov/crt/ada/adahom1.htm).

As of March 1998, the Disability Rights Section has a staff of 79 people, including 28 attorneys, assigned to handle these responsibilities. The Section's resources are supplemented, as appropriate, by other Civil Rights Division staff. The Appellate Section handles cases in the U.S. Courts of Appeals, and the Special Litigation Section litigates ADA matters that arise in the context of investigations under the Civil Rights of Institutionalized Persons Act.

With these limited resources, the Department has participated in 116 lawsuits as of May 1998. In 60 of these cases, the Department either initiated the litigation or intervened in an ongoing lawsuit. Fifty eight of these cases were handled by the Disability Rights Section; two were handled by the Special Litigation Section. The Department has also appeared as amicus curiae in 56 cases. The 20 amicus appearances in U.S. Courts of Appeals were handled by the Appellate Section with the assistance of the Disability Rights Section. Of the 36 amicus appearances in U.S. District Courts, 34 were handled by the Disability Rights Section, and two were handled by the Special Litigation Section. We have enclosed a copy of the Civil Rights Division's ADA case list for your reference.

The Division's extensive amicus participation enables us to fulfill one of our primary obligations in ADA litigation -- to influence the development of case law interpreting the ADA. The Department carries out this obligation in any lawsuit in which it participates. However, our experience has been that one of the most effective ways to target our limited resources is to participate as amicus curiae in cases where significant legal principles will be developed. As amicus, we are able to share our expertise on the legal issues with the court, without expending the significant resources required to initiate and litigate a case.

In addition to the cases that have been litigated since 1992, the Civil Rights Division has received over 10,000 ADA complaints that have been opened for investigation. As of July 1998, the Division has also received 469 referrals of employment discrimination charges from the EEOC, and three matters have been referred for possible litigation by other Federal agencies.

In resolving these complaints, the Disability Rights Section is guided by Executive Order 12,988, which requires Federal law enforcement agencies to seek pre-litigation resolutions of alleged violations. Therefore, the Section diligently attempts to resolve cases through both formal and informal settlements before filing lawsuits. For instance, as of May 1998, the Section has offered 671 complainants the opportunity for mediation. However, even after a lawsuit is filed, the Section continues to seek pre-trial resolutions, such as consent decrees, which will bring about ADA compliance in the most cost-effective manner. As of May 1998, over 50 of these matters have been resolved through settlement agreements or consent decrees.

Despite the Division's accomplishments, we recognize that there are some people who we are not able to assist in a way that they find satisfactory. It appears that Mr. xxxx is one of those individuals. At the present time, the Disability Rights Section has two open investigations of complaints received from Mr. xxxx. One of the pending complaints was initially received in February 1996, but action was deferred while mediation was attempted. When mediation was unsuccessful, the Disability Rights Section initiated an investigation which is close to resolution. The second pending complaint, received in July 1996, is presently involved in mediation. The Disability Rights Section defers action on complaints that have been referred for mediation until the mediation process is completed. If mediation is successful, the complaint file is closed. If mediation is unsuccessful, the Section will review the file to determine if further action by the Department is appropriate.

The Disability Rights Section has corresponded directly with Mr. xxxx about his pending complaints. In addition to the pending complaints, the Section has received complaints from Mr. xxxx that have not been opened for investigation. This appears to be the source of much of his dissatisfaction. In his letter to you, Mr. xxxx criticized the Section for failing to provide appropriate "customer service." His comments indicate that he believes that the Department is required to investigate each complaint that it receives.

The role of the Department of Justice in ADA enforcement is often misunderstood by members of the public. Many people believe that the Department's role is to provide legal services for aggrieved individuals. Therefore, they expect that the Department will pursue each complaint until it is resolved to the satisfaction of the complainant. This perception is incorrect.

As a law enforcement agency, the Department's responsibility is to ensure the fair and effective implementation and enforcement of the law. When the Department initiates an investigation or a lawsuit, it acts on behalf of the United States, not on behalf of an individual complainant. The Department's goals in litigation are to address violations that raise issues of general public importance and to establish legal precedent that may be relied on by other litigants. Although individual complainants may form the basis for the Department's actions, the Department does not act as the attorney for the complainant.

The ADA specifically provides that each individual complainant has the right to initiate ADA enforcement litigation on his or her own behalf. Actions to enforce titles II and III may be filed at any time. Title I incorporates certain procedural requirements before a private lawsuit may be filed.

In summary, the Disability Rights Section works to promote compliance with the ADA in a cost-effective manner. The Section attempts to avoid costly litigation by resolving complaints amicably through informal or formal settlement agreements or through mediation. Nevertheless, the Section will not hesitate to file lawsuits when covered entities refuse to come into compliance voluntarily.

Since the ADA's inception, the Section has emphasized the need to educate the public about the law. By using resources to enlighten rather than simply litigate, the Department has encouraged voluntary compliance. However, when the Section is unable to gain voluntary compliance, the Department has used -- and remains committed to using -- all the enforcement tools that the law provides.

I hope that this information is helpful to you in responding to Mr. xxxx. As you requested, I am returning your constituent's correspondence.

Sincerely,

Bill Lann Lee

Acting Assistant

Attorney General

Civil Rights Division

Enclosure