MAY 6 1993


The Honorable Orrin G. Hatch
United States Senator
8402 Federal Building
125 South State Street
Salt Lake City, Utah 84138

Dear Senator Hatch:

        This is in response to your inquiry on behalf of your
constituent,   (b)(6)                         inquiry concerns
the need to obtain a "right to sue" letter under title III of the
Americans with Disabilities Act and whether an impairment
affected by cigarette smoke is covered under the Americans with
Disabilities Act.
  
        The Americans with Disabilities Act authorizes the
Department of Justice to provide technical assistance to
individuals and entities having rights or obligations under the
Act.   XX   wrote to us requesting an advisory interpreta-
tion of the Act. I am enclosing a copy of our recent response to
him. We apologize for the delay in responding to his inquiry.

        I hope this information is helpful in responding to your
constituent.

                                        Sincerely,

                                     James P. Turner
                            Acting Assistant Attorney General
                                  Civil Rights Division

Enclosure

cc: Records, Chrono, Wodatch, Magagna, Miller, McDowney, FOIA
    udd\Millerc\policy\hatch.ltr














01-02026

                                        U.S. Department of Justice
                                        Civil Rights Division

                                        Public Access Section


XX                                      P.O. Box 66738
                                        Washington, D.C. 20035-6738

                                                          APR 27 1993

(b)(6)
XX
West Jordan, Utah XX

Dear XX:

        This is in response to your request for a "right to sue"
letter under the Americans with Disabilities Act and your request
for information as to the obligation of a public accommodation to
modify its policies and practices in order to be accessible to
you because of the effect of smoking on your ability to breathe.

        The Americans with Disabilities Act authorizes the
Department of Justice to provide technical assistance to
individuals and entities having rights or obligations under the
Act. This letter provides informal guidance to assist you in
understanding the Act's requirements. However, it does not
constitute a legal interpretation and it is not binding on the
Department.

        You do not need a "right to sue" letter in order to
institute a civil action to redress your rights under title III
of the Americans with Disabilities Act. The Americans with
Disabilities Act contains a private right of action under title
III. Any person who is being subjected to discrimination on the
basis of disability in violation of the Act may institute a civil
action for preventive relief, such as an injunction or other
order. The Department of Justice does have the authority to
investigate complaints under title III; however, it is not
necessary to file a complaint with the Department prior to
exercising your private right of action.

        The Americans with Disabilities Act prohibits discrimination
on the basis of a disability, which is defined as a physical or
mental impairment that substantially limits one or more major
life activities, including breathing. With respect to an
impairment affected by cigarette smoke, the preamble to the
Department's implementing regulation states,




01-02027

                                     - 2 -

                     Sometimes respiratory or neurological functioning
             is so severely affected that an individual will satisfy
             the requirements to be considered disabled under the
             regulation. Such an individual would be entitled to
             all of the protections afforded by the Act and this
             part. In other cases, individuals may be sensitive to
             environmental elements or to smoke but their
             sensitivity will not rise to the level needed to
             constitute a disability. For example, their major life
             activity of breathing may be somewhat, but not
             substantially, impaired. In such circumstances, the
             individuals are not entitled to the protections of the
             statute despite their sensitivity to environmental
             agents.

                     In sum, the determination as to whether allergies
             to cigarette smoke, or allergies or sensitivities
             characterized ... as environmental illness are
             disabilities must be made using the same case-by-case
             analysis that is applied to all other physical or
             mental impairments.

             This discussion of environmental sensitivities can be found
at page 35549 of the enclosed title III regulation. I also have
enclosed a copy of the Department of Justice's Title III
Technical Assistance Manual. There is an explanation of what is
meant by the phrase "individuals with disabilities" on pages 8 -
12 of the manual.

        After reviewing this material, if you wish to file a
complaint under the Americans with Disabilities Act against a
specific public accommodation, you may write to the Public Access
Section, Civil Rights Division, U.S. Department of Justice, Post
Office Box 66738, Washington, D.C. 20035-9998. Please bear in
mind that the Department is not able to investigate all the
complaints it receives and that it can take enforcement action
where there is a pattern or practice of discrimination or
discrimination involving an issue of general public importance.

        I hope this information is helpful to you.

                                        Sincerely,

                                     John L. Wodatch
                                          Chief
                                  Public Access Section

Enclosures (2)



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