Civil Rights Prosecutions: Disability Rights
The Hotels Initiative in the Southern District of New York
by Preet Bharara, U.S. Attorney for the Southern District of New York
The passage of The Americans with Disabilities Act (ADA) in 1990 gave the Department of Justice a ground-breaking and vital new resource to help ensure that individuals with disabilities are afforded equal access to the same places and experiences as the general public. Lawyers in the Southern District of New York are committed to aggressive enforcement of the ADA, along with all federal civil rights laws. Our Hotels Initiative is one example of the creative ways in which we are using the ADA to ensure that individuals with disabilities can enjoy equal access to public accommodations.
Times Square is often called the crossroads of the world. Millions of people pass through Times Square every year, yet people with disabilities are not always able to enjoy the theater, dining, and accommodations that Times Square offers. To ensure that people with disabilities are able to take advantage of the unique cultural experience of visiting New York City, the U.S. Attorney’s Office for the Southern District of New York developed its Hotels Initiative in 2005.
On May 5, 2005, the U.S. Attorney’s Office announced its initiative, explaining that it would be conducting a compliance review under the ADA of almost fifty Times Square hotels. Adhering to the definition of the New York City Theater District used by the City of New York for zoning purposes, our office focused on the area between West 40th and West 57th Street, and between Sixth and Eighth Avenues. By defining the target area in this manner, the initiative promoted consistency in enforcing the law, and created leverage in fostering voluntary resolutions, as all of the businesses competing in the same area were being asked to improve compliance with the law at the same general time and on the same general terms.
Title III of the ADA, which prohibits discrimination on the basis of disability by private entities that own or operate “places of public accommodation,” such as hotels, provided the basis for the compliance review. The ADA authorizes the United States Department of Justice to not only investigate complaints submitted by members of the public, but also to undertake periodic compliance reviews of covered entities. This latter provision greatly expands the Department’s investigative authority and enables the Department to move proactively address violations of the law.
At the outset, our office sent each hotel within the scope of the initiative a survey form, and followed up with on-site inspections. The results of the survey and the inspections revealed a number of hotels that had made no effort at all to comply with the ADA in the nearly fifteen years since its passage in 1990, even though the ADA requires that a hotel make only a small percentage of its rooms accessible to persons with physical and hearing impairments. Working closely with Disability Rights Section (DRS) Coordinator Roberta Kirkendall and DRS Architect Diane Perry, Assistant U.S. Attorneys (AUSAs) conducted inspections, drafted a model Voluntary Compliance Agreement, and negotiated dozens of such agreements with hotels to improve accessibility.
The AUSAs found literally hundreds of barriers to access, including hotel entrances that were inaccessible because they required travel over multiple stairs; guest registration counters that were too high for people using wheelchairs; hotel rooms that were not marked with Braille signs for people with visual impairments; hotel rooms that were so poorly laid out that a person using a wheelchair could not turn on the television, adjust the thermostat, put clothes in the closet, or close the drapes; bathroom facilities that were missing grab bars and roll-in showers; televisions that lacked captioning for people who are hearing impaired; and rooms that lacked visual alarms, so that people who are hearing impaired would not be aware of any emergencies.
As a result of our office’s efforts, with the assistance of DRS, there are now dozens of newly accessible rooms in Times Square. As of July 1, 2011, we have entered into thirty-three Voluntary Compliance Agreements with Times Square hotels: the DaVinci; the Paramount; the Hotel 41; the Salisbury; the Doubletree Times Square; the Sheraton Manhattan; the Flatotel; the Hilton New York & Towers; the Park Central; the Hilton Times Square; the Courtyard by Marriott; the Marriott Marquis; the Accor Novotel; the Muse; the Sheraton New York Hotel & Towers; the Edison; the Dream; the Crown Plaza; the Time; the Portland Square; the Night; the London-NYC (Rihga); the Parker Meridian; the Casablanca; the Comfort Inn; the Renaissance; the Westin; the Millennium Broadway; the W The Court; the W The Tuscany; the W Union Square; the W Times Square; and the W New York. A small number of hotels declined to cooperate with the initiative, notwithstanding their lack of compliance, and so on January 13, 2009, the U.S. Attorney’s Office sued five of them– the Moderne; the Amsterdam Court; the Ameritania; the Radio City Suites; and the Hotel Carter. These five hotels soon agreed to court-ordered consent decrees on substantially the same terms as the Voluntary Compliance Agreements, but with civil penalties. Our office is now wrapping up the initiative, with eleven hotels remaining, some of which are engaged in long-term renovations and reconstruction. With this initiative winding down, our office is preparing a new compliance initiative that, like the Hotels Initiative, will focus on some of the unique attractions of New York City.
Mid-South Fast Food Restaurants Improve Accessibility
Western District of Tennessee
In separate lawsuits, the U.S. Attorney for the Western District of Tennessee and the Disability Rights Section negotiated consent decrees with the owners of a large number of Wendy’s and McDonald’s restaurants in Memphis and the Mid-South. Under the terms of the consent orders, the owners agreed to remove a variety of barriers to access by, among other things, adding accessible parking spaces, providing or improving sidewalk ramps, and making major renovations to restrooms to significantly improve accessibility. The case involving Wendy’s restaurants was filed in response to a complaint by a man using a wheelchair who was unable to enter the restroom through the 22-inch wide door opening. The case involving McDonald’s restaurants was filed in response to a complaint by a woman with a leg brace who fell while attempting to turn around in a very narrow stall in the women’s restroom. Both complainants received damages in the consent decrees.
Major Memphis Hospital to improve Interpreting Services for Deaf Patients
Western District of Tennessee
A complaint filed by a deaf and sight-impaired man who spent two weeks in Methodist Hospital after an emergency admission without being able to consult with his doctor resulted in a settlement agreement between the hospital and the U.S. Attorney for the Western District of Tennessee. The settlement agreement requires the hospital to completely revamp its practices and procedures for assessing the need of patients for sign language interpreting services at its six area hospitals. Although the complainant could finger spell and could communicate through an interpreter, the hospital failed to assess his need for an interpreter and actually declined his family’s request that it provide an interpreter. Furthermore, his doctor wrote in the chart that he was unable to communicate with his patient. Following the initial contact from the U.S. Attorney’s Office, Methodist Hospital officials worked very quickly and cooperatively to improve its policies and practices.
Favorable Resolution of Americans with Disabilities Act Case Involving Provision of Services for Individuals with Disabilities
Eastern District of Michigan
On July 15, 2011, Oakland County, Michigan, agreed to resolve the U.S. Attorney’s office investigation into the Oakland County, Michigan jail relating to effective communication with individuals who are deaf and hard of hearing. Specifically, the jail will develop and institute written policies addressing the provision of effective communication for inmates and members of the public who are deaf or hard of hearing, post notices about the availability of interpreters and auxiliary devices, and train all correctional personnel on the requirements of the ADA.
Favorable Resolution of Americans with Disabilities Act Case Involving Accessibility at Outdoor Music Venue
Eastern District of Michigan
On February 16, 2011, DTE Energy Music Theatre agreed to resolve an ongoing investigation under the Americans with Disabilities Act by modifying the accessible seating area to provide companion seating and construct an overhead awning to protect patrons from inclement weather in the same fashion as other patrons are protected, and to correct a range of other barriers to access including problems in the parking area, exterior routes, toilet rooms, concession areas, and drinking fountains.
Favorable Resolution of Americans with Disabilities Act Case Involving Accessibility at a Local Antique Mall
Eastern District of Michigan
In 2011, the owners and operators of The Hitching Post Antiques Mall, in Saline, Michigan, agreed to resolve an investigation under the Americans with Disabilities Act by paying the complainant $1000, changing their policy of prohibiting the use of motorized wheelchairs, and removing several barriers to access.