2.1 Organization and Structure

The Department of Justice (DOJ) has broad responsibility for the enforcement of ADA, just as it has ultimate responsibility for the enforcement of many other federal laws (see Figure 2-1). Under ADA, the DOJ has authority for litigating discrimination cases involving state or local government employment, whether filed under Title I or Title II. The EEOC is responsible for investigating Title I charges, but where a Title I charge relates to state or local government employment, the EEOC refers charges to DOJ after investigation and a failure to conciliate by an EEOC regional or local office. The Department then decides whether to reopen the case for investigation, issue a right-to-sue letter, or initiate settlement discussions or undertake litigation of those matters.

The DOJ has specific and primary responsibility for the enforcement of Title II, affecting all activities of state and local governments, and of Title III, which applies to privately operated public accommodations, commercial facilities, and private entities offering certain examinations and courses. As ADA gives primary responsibility for Title I enforcement to the Equal Employment Opportunity Commission, and DOJ's activity under Title I is limited, the enforcement activities of the Department of Justice with respect to Titles II and III are the primary focus of this chapter.

2.1.1 Structure of Civil Rights and ADA Enforcement

Within the DOJ, the Civil Rights Division has responsibility for the enforcement of the nation's civil rights laws that prohibit discrimination on the basis of race, color, sex, disability, religion, and national origin. The Division is headed by an assistant attorney general, who reports to the associate attorney general. The Civil Rights Division includes 11 sections, of which 10 have substantive enforcement responsibilities. One of these is the Disability Rights Section (DRS), charged with responsibility for enforcement of disability civil rights laws, including ADA and some aspects of Section 504 of the Rehabilitation Act, such as DOJ's obligation, pursuant to Executive Order 12250, to coordinate the implementation and enforcement of Section 504.

The Appellate Section of the Civil Rights Division also has key responsibilities in relation to ADA; it is responsible for handling civil rights cases in the courts of appeals and, in cooperation with the solicitor general, in the Supreme Court. In addition, the Special Litigation Section of the Civil Rights Division has responsibility for enforcement of the Civil Rights of Institutionalized Persons Act (U.S.C. §§ 1997-1997h) and, since 1994, incorporates ADA claims in the cases it pursues; where such overlap with ADA occurs, the Special Litigation Section and DRS may consult and collaborate. Similarly, because of overlap between the Fair Housing Act and ADA, the Housing and Civil Enforcement Section and DRS coordinate their activities when both ADA and the Fair Housing Act are implicated.

2.1.2 Disability Rights Section

The Disability Rights Section is directed by a section chief. A special legal counsel and three deputy chiefs, each with responsibility for a different geographic area of the country, report directly to the section chief. In addition to the offices of the deputies, there are four units within DRS: Technical Assistance, Office Administration, Investigation, and Certification and Coordination.

The entire staff of DRS is located in Washington, D.C.; there are no regional or district offices. However, since 1995, over half of the U.S. attorneys have been involved in the handling and resolution of Title II and Title III charges, thus spreading the processing of discrimination charges beyond the Washington offices of DRS. Additionally, mediators funded by DRS to facilitate charge resolutions are located throughout the nation.

Major responsibilities and activities of DRS are the following:

• Investigation and settlement of discrimination complaints filed under Titles II and III of ADA
• Litigation under Titles II and III of ADA
• Litigation against public employers under Title I following referral from the EEOC or under the attorney general's authority for pattern or practice litigation
• Certification of voluntarily submitted building codes from state and local governments for equivalence with ADA Accessibility Standards
• Dissemination of technical assistance information and coordination of the technical assistance of other federal agencies
• Coordination of the administrative enforcement of Title II of ADA and Section 504 of the Rehabilitation Act by other federal executive agencies
• Continuing development of the regulations implementing Title II (Subtitle A) and Title III
• Representing the assistant attorney general as a member of the Architectural and Transportation Barriers Compliance Board (Access Board)
• Implementing section 508 of the Rehabilitation Act by
  1. developing and implementing a continuing process through which federal agencies may assess the extent to which their use of electronic and information technology is accessible to people with disabilities; and
  2. preparing periodic reports to the president and Congress that contain "information on and recommendations regarding the state of Federal department and agency compliance" with Section 508.

[Figure 2-1, Department of Justice Enforcement of ADA, not available.]

2.1.3 Budget and Staffing

The total budget of the Disability Rights Section is $10.8 million for fiscal year (FY) 1999. This includes an increase over FY 1998 of $1 million; Congress authorized the increase specifically for ADA enforcement and mediation activities (approximately $500,000 for each). DRS is using the $500,000 increase to hire attorneys and investigators.

The availability of resources is an important factor in decisions regarding enforcement actions, technical assistance, policy development, and data reporting systems. Increased resources would mean that more cases could be opened for investigation and litigation; that regulations, policy guidance, and technical assistance materials could be developed more expeditiously and on a broader scale; and that systems improvements could be introduced that would lead to better tracking of complaints and referrals, more useful enforcement data, and quicker responses to complainants. Effects of resource limitations are discussed in section 2.11.1 of this chapter. President Clinton has recognized the urgent need for expanded resources and called for an additional $2.4 million for ADA enforcement, including 29 new positions (a 35% increase), in the FY 2001 budget. Action by Congress to adopt this significant budget increase will help ensure that the shortcomings and problems identified in this report will be ameliorated.

The staff of DRS consists of attorneys, paralegals, investigators, architects, staff specialists for technical assistance functions, and secretarial support staff. The Enforcement Unit, consisting of three litigation teams, has 30 staff members, with each team containing six or seven lawyers, an architect, a secretary, and a paralegal. The Investigations Unit, with one team of DOJ employees and one team of contract employees, has 20 staff members. Most of these are investigators, along with some support staff; although several of the investigators happen to be attorneys, they do not function as attorneys. The Technical Assistance Unit consists of 20 professional and clerical staff members. Among the professional staff are an accessibility specialist/architect, program analysts, and specialists in accessibility and equal opportunity. Finally, the Certification Unit contains eight persons, including two attorneys, program and code specialists, an architect (part-time), and support staff.

Including the section chief, the special legal counsel, and the deputies, who are all attorneys, there are 82 FTEs assigned to ADA enforcement in the Disability Rights Section. Approximately 40 percent of DRS staff time is devoted to Title II technical assistance and enforcement, with 60 percent of staff time devoted to Title III enforcement and technical assistance and Title I enforcement.[1]

Some members of the staff of DRS worked in other units within the Department of Justice before transferring into DRS. Some of these staff members were previously unfamiliar with disability civil rights law (e.g., Sections 503 and 504), with disability issues, and with the disability community. However, almost all of the key staff members, including the section chief, the deputy section chiefs, the special legal counsel, and other key managers, had considerable experience with disability issues and disability law. Four of the architects in key roles also had expertise in architectural issues related to accessibility before joining the staff of DRS.

Staff members of DRS report that the section is understaffed in many areas of its responsibility, with significant operational consequences. A shortage of staff has been cited as a factor in such decisions as not to open for investigation a large proportion of Title III complaints received and not to request information from other federal agencies about the Title II complaints that they handle, and as a reason for delays in DOJ promulgation of standards based upon guidelines issued by the Architectural and Transportation Barriers Compliance Board.

2.1.4 Administrative and Organizational Issues

As part of this report's pursuit of a "whole agency" approach, the researchers sought to determine how DOJ's internal operations function in practice--to gain insight into DRS's day-to-day operations. Accordingly, researchers conducted interviews with a number of staff members in various positions throughout the section. At times, serious differences of opinion were uncovered between the views of some staff members and those of management personnel as to how well internal processes were operating. Several issues were identified more than once by different staff members in separate interviews as factors that, from their perspectives, impede the section's overall timely and efficient functioning. One factor repeatedly cited was the many levels of staff and supervisory approval and consultation required before a final decision is made.

In the normal course of DRS operations, many decisions involving a case--whether they involve the complaint investigation, a settlement before a finding, a formal finding, the preparation for litigation, a settlement before litigation, or the decision to litigate (as plaintiff, intervenor, or amicus), are subject to multiple levels of review. To explain how this multiple review process operates, examples mentioned include the following:

• There is significant involvement of supervising attorneys, deputies, the special litigation counsel, the section chief, and the assistant attorney general's office at virtually every stage of all cases.
• A chain of review exists in which even minor and routine briefs and memoranda face review by as many as seven managers, and outgoing correspondence by one or more managerial-level persons.
• Many decisions in DRS require the concurrence of all three deputy section chiefs.

The levels of review and consultation restrict the autonomy of investigators and trial attorneys to act in carrying out their responsibilities. A number of DRS staff members interviewed indicated that, in their experience, the intensity of supervisor scrutiny and multiple levels of sign-off in DRS are far more extensive than in other sections of the Civil Rights Division and elsewhere in the Department of Justice.

Some staff members also reported that they were not present at meetings at which cases they were handling were discussed, and suggested that they were being sidestepped because of their stances on advocacy issues regarding the cases. DRS responded that cases are discussed in a variety of settings and that it is neither possible nor a prudent use of attorneys' time to have them attend all such discussions; DRS provided assurance that DRS's policy is that line attorneys are present at meetings where policy decisions about their cases are made and that line attorneys are present at discussions of cases with the assistant attorney general.

While the intensive involvement of upper-level managers mentioned previously means that they are all thoroughly knowledgeable about the cases before the section, it also raises the issues of unnecessary delay and duplication of effort. The levels of review as described by staff members are formidable both in regard to their height, (i.e., how high in the organizational hierarchy decisions are reviewed), and their breadth, (i.e., how many persons at a particular level need to approve). The requirement of multiple-level and multiple intra-level approvals has timing, personnel resource, and substantive consequences. Because litigation and policy decisions and documents are subjected to such intense supervisory review, it often takes considerable time to obtain the requisite prior approval; the result is delay in taking actions.

"Taking forever to do things" is one of the most frequently heard outside criticisms of DOJ's performance in regard to ADA enforcement. The features of the DRS approval process reported by staff members appear to have some bearing on why the agency is often so slow-moving. In the context of insufficient numbers of staff members to fully perform the section's responsibilities, the multiple-approval process compounds the problem. By requiring front-line staff to spend considerable time and effort seeking to satisfy each of the various managers having sign-off authority, and by delaying them from taking action until this cumbersome process is complete, the efficiency of the inadequate numbers of staff is further hampered.

The potential impacts of this process on the effectiveness of enforcement are great. Most important is that too many of DRS's person hours are spent on internal decision making and not enough in taking action to achieve ADA compliance in the outside world. Another more subtle, but no less far-reaching, potential impact is the pressure on attorneys to propose primarily actions likely to garner easy approval by multiple supervisors without all of them having to assent to all the complexities and nuances that might inhere in less facile proposed actions. This "path of least resistance" approach can result in a tendency toward timidity or wariness--an inclination to avoid thorny and controversial matters and to tackle only the "sure things."

In an official response to a review draft of this report, DOJ offered a different perspective on this purported problem of too many layers of review and too little autonomy of front-line staff. DOJ disagrees with the view that the Office of the Assistant Attorney General for Civil Rights (AAG) is deeply involved at virtually every stage of all cases. Rather, the official role of the AAG's office is to review requests for litigation, requests for amicus participation, and regulatory matters, and to be involved in major policy decisions and strategic planning and priority setting. The Department does agree that all final decisions regarding a case require a complete review but says this does not mean that nearly all decisions involving a case require multiple layers of review.

The DOJ disagrees with the view that investigators and trial attorneys are accorded little autonomy; instead, according to DOJ, they are accorded different levels of autonomy depending on their experience and expertise and the nature of the case involved. Likewise, according to DOJ, it is not true that all correspondence and investigator settlements must be reviewed by managers; all settlements are reviewed by managers but all correspondence is not.

DOJ indicates further that not all three deputies have to concur on all cases. The Department contends that the implication that the review structure is vertical, involving multiple layers, is incorrect. While there are cases requiring review by the deputies, the special legal counsel, and the section chief, those are normally matters involving policy or ground-breaking litigation. In such instances, DOJ states that the review is conducted simultaneously by the deputies and the special legal counsel and then by the section chief. DOJ points out that one reason DRS may have a different review structure than other sections is that many ADA matters still involve matters of first impression. DOJ also takes issue with any suggestion that the supervisors in DRS are incapable of grasping the complexities and nuances of difficult cases.

NCD believes that the disparity in views between the staff members who raised these concerns and the DOJ reviewers who officially commented on this document indicates, at the very least, a need for clarification throughout the section of what the review structure is and what the criteria are that trigger each level of review. A lack of clarity about the review process and areas of independent action for investigators and trial attorneys could be significantly hampering DRS operations. A review of internal operations should be undertaken to determine how these concerns can be alleviated, where procedures can be streamlined, and how staff can be given the maximum autonomy feasible in carrying out their responsibilities.

Each of the three deputies in DRS has a team of investigators and attorneys. Each team is responsible for the complaints and cases that arise for the set of states assigned to that team. This structure allows for the development of collaborative working arrangements and knowledge of specific geographic areas. However, it sometimes results in an inefficient allocation of staff in situations where there is a big issue or case in one region, and the work is somewhat slower in another. The geographic team structure decreases the ease with which the staff resources of DRS can be reassigned as the workload shifts. This appears to be compounded at times by a sense of competition between deputies and concern about credit for the work, creating a disincentive to sharing resources.

The offices of the various sections of the Civil Rights Division are spread across several office buildings. The Office of the Assistant Attorney General for Civil Rights is located in the main DOJ building. This dispersal tends to separate and isolate disability civil rights from other areas of civil rights enforcement. For example, DRS attorneys have too little sense of how enforcement is structured in the other sections or whether the criteria for settlement versus litigation are equivalent. The physical separation also makes diffusion of disability expertise and sensitivity in the overall Civil Rights Division more difficult.

2.1.5 Findings and Recommendations

Finding 1: Several Disability Rights Section (DRS) staff members interviewed for this report expressed concern about the number of administrative reviews affecting various stages of decision making about cases, the limited autonomy of line professional staff, and the separation of DRS from the main offices of the Civil Rights Division.

Examples of their concerns included the following:

• The delays that result, in part, from the multiple levels of review imposed by the administrative structure on decision making with respect to settlement and litigation;
• Managerial review of settlements and some correspondence that may not be necessary
• The separation of the physical location of DRS from the main offices of the Civil Rights Division and the Department of Justice, and from most of the other sections in the Civil Rights Division, which hampers collaboration, integration, and understanding of disability issues across the sections of the Civil Rights Division.

Recommendation 1: The management, line attorneys, and other staff members of DRS should conduct a collaborative examination of DRS internal operations to determine how the concerns identified can be alleviated, where procedures can be streamlined, how staff members can be given the maximum autonomy feasible in carrying out their responsibilities to increase performance, and how DRS can ensure that it gets the maximum benefit of the input and abilities of its staff members, including those who have disabilities.

The Civil Rights Division and DRS should consider delegating decision-making authority in some Title I, II, or III cases to lower levels within DRS and should develop criteria for determining the types of cases and decisions that must be approved at higher levels.

Recommendation 2: To the extent feasible, all sections of the Civil Rights Division should be housed in the same physical location in order to increase collaboration across sections and enable the communication of disability issues as part of a shared culture of civil rights. If the division cannot achieve a unified physical location of the sections, it should develop and activate mechanisms to foster cross-sectional interaction and cross-pollination, and to promote other sections' awareness and understanding of disability issues and sensitivities.

2.2 Regulatory Activities and Policy Development

The regulatory responsibilities of the Department of Justice include issuing regulations for ADA and issuing the technical standards for accessibility based upon guidelines developed by the Architectural and Transportation Barriers Compliance Board: ADA Accessibility Guidelines (ADAAG). DOJ also is charged with the responsibility of certifying that state and local building codes are compatible with ADA standards. Policy development activities include the development of policy statements that provide guidance on the interpretation of legal standards and the use of litigation to articulate policy and legal interpretation.

2.2.1 Regulatory Activities

ADA assigns the Department of Justice the responsibility of issuing regulations for Titles II and III. In compliance with the statutory deadline, DOJ issued Title II and Title III regulations on July 26, 1991.[2] The Title III regulations incorporated ADA Accessibility Guidelines,[3] which establish minimum guidelines for the accessibility of buildings and facilities. ADAAG were developed by the Architectural and Transportation Barriers Compliance Board (Access Board), an independent federal agency given statutory authority for developing these guidelines for subsequent adoption by the standard-setting agencies, DOJ and the Department of Transportation. In addition to having authority to adopt standards based upon the Access Board's guidelines, DOJ and DOT participate as members on the Access Board. Two areas in which the Access Board has developed accessibility guidelines subsequent to the original ADAAG are children's facilities and state and local government facilities. The proposed accessibility guidelines for children's facilities were issued in 1996, and the proposed state and local government guidelines were issued in 1994. In both cases, the guidelines were published in final form by the Access Board in January, 1998. DOJ has yet to issue proposed regulations based on the guidelines, much less final rules. Many parties inside and outside government have expressed frustration at the long time lag before action by DOJ. The long delays mean that facilities across the United States that are built and altered, and that will be covered by the standards once they are formally adopted, can be legally built without complying with the precise specifications of the proposed accessibility standards. In an official response to a review draft of this report, DOJ indicated that its delay in issuing such regulations has not excused covered entities from complying with the ADA requirement that facilities must be accessible, and that in an enforcement action a covered entity would still bear the burden of demonstrating that it had met the accessibility requirement of ADA. The National Council on Disability does not consider that covered entities' compliance with the general accessibility requirement of ADA is a substitute for issuance and enforcement of explicit, detailed standards defining such accessibility precisely as it applies in the specific context of children's facilities and state and local government facilities.

One reason DOJ gives for the delay is that is has not had sufficient staff to process the standards more quickly; some additional staff were purportedly assigned to this task in 1999. DRS indicated in early 1999 that both rules would be published within six months. The section also indicated that the new rules would make Title II's new construction requirements the same as Title III's. Persons outside DOJ expressed skepticism about this timeline, noting that for months they had heard the six-month prediction. The skeptics have been proven correct, as DOJ has not issued either of the two sets of standards, not even as proposed regulations, through the end of 1999 and up to the issuance of this report. (Users of DOJ's ADA Web site can easily be misled by two links on a New or Proposed ADA Regulations page--at http://www.usdoj.gov/crt/ada/newregs.htm--that appear to be to proposed rules on accessibility standards for "State and Local Government Services" and for "children's facilities." These sites actually contain the original proposed guidelines, published in 1994 and 1996 respectively, that indicate the expectation that DOJ will issue the accessibility standards at a later time.)

DOJ is also planning to review ADA Title II and III regulations within the next year, because the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Acts require that all federal agencies review their regulations that have significant economic impact 10 years after they are adopted.[4] Failure to review the regulations at the 10-year point can be used as a defense for noncompliance with agency requirements. DRS also expects that it will need to propose additional revisions to ADA regulations involving the accessibility standards, because the Access Board is currently in the final stages of a major revision of ADAAG. The Access Board published the revised ADAAG in proposed form in November 1999. In an official response to a review draft of this report, DOJ noted that the "new" ADAAG, as proposed, includes the provisions added to the guidelines in 1998, and, thus, the Department's lapse in issuing regulations establishing accessibility standards for children's facilities and state and local government facilities will be cured by the Department's adoption of the revised ADAAG. The time frame for DOJ's adoption of these revisions is not clear. If DOJ is again delayed in adopting these rules, the improved ADAAG will further be delayed in applying to facilities that are built and altered across the United States.

In contrast, the Department of Transportation, which is also mandated to adopt the Access Board's technical standards when they address transportation, always publishes proposed and final regulations simultaneously with the Access Board. DOJ, however, takes the view that it would be inappropriate to commit, in advance, to simultaneous or contemporaneous publication of each Access Board rule. ADA clearly establishes a two-step rulemaking process, with the Access Board developing guidelines that form the basis of a separate rulemaking by the Department. DOJ believes it would be an abdication of the Department's statutory responsibility to commit, in advance, to publication of regulations that have yet to be drafted. The Department plans to continue to consider each rule on its own merits at the time it is published. NCD believes that DOJ should make a much more definitive commitment to prompt issuance of regulatory standards in such circumstances.

2.2.2 Policy Development

The development and articulation of policy positions by the Department of Justice through the Disability Rights Section occurs primarily through the litigation that DRS decides to pursue and through its technical assistance activities. DRS does not issue policy guidance documents similar to those that the EEOC issues.

DRS has initiated the development of a number of documents about ADA. Some of these have been developed in-house, some have been developed by other federal agencies, and some have been developed by industry or community groups as part of a grant from DOJ. Members of the staff of the Disability Rights Section endeavor to review all the developed materials for accuracy and see their targeting of specific audiences for technical assistance materials (e.g., police forces, small businesses) as a way of expressing policy positions. Additionally, as questions come to DRS through its hotline, from members of Congress, from other federal agencies, or by other means, they are often handled by the development of a written letter of reply. These letters can be viewed as policy letters that articulate the DRS position or interpretation on the issue raised. While these letters are not binding, DRS staff members track the letters and try to ensure that there is a consistent response to similar inquiries.[5] DOJ does not publish such letters in any formal way; the DOJ Web site, however, includes a link to "Frequently Requested FOIA-processed Records"[6] that includes "Technical Assistance Letters,"[7] "CORE Letters,"[8] and "Letters of Findings,"[9] in addition to information about ADA settlement agreements.[10] Unfortunately, the Web site contains Technical Assistance Letters only through mid-1998 and Letters of Findings only through mid-1997. The Civil Rights Division has indicated that it will correct this problem soon. During the preparation of this report, DRS updated the Web site file of CORE Letters, so it is current through April 2000. DRS indicates that it is always considering new and innovative ways to disseminate its policy decisions.

The selection of litigation is a key strategy for advancing policy development. The litigation priorities of DRS are discussed in section 2.5, while DOJ policy positions are discussed in section 2.10.

2.2.3 Findings and Recommendations

Finding 2: DOJ provides policy guidance primarily through its litigation and technical assistance activities.

• Guidance is provided by letters issued in response to specific inquiries. Although these express interpretation, they are not binding and do not constitute formal statements of departmental position having visibility and persuasive value to courts and lawyers in a manner similar to the EEOC's subregulatory enforcement guidance.

Finding 3: DOJ has been extremely slow in issuing regulations based on the Access Board's ADA accessibility guidelines; it has delayed inordinately in issuing regulatory accessibility standards for state and local government facilities and for children's facilities.

Recommendation 3: DOJ should establish and commit itself to meet a prompt timeline for issuing regulatory standards based upon Access Board guidelines; in particular, DOJ should promptly issue the long-delayed regulatory accessibility standards for state and local government facilities and for children's facilities.

The time period for promulgating regulatory standards based on Access Board accessibility guidelines should be as short as is feasible, preferably no more than 90 days. DOJ should determine what time period is feasible in light of its internal processing requirements. The DOT model of simultaneous issuance should be examined; under ADA, DOJ has a regulatory responsibility regarding accessibility standards and is not expected to serve as a mere rubber stamp for Access Board guidelines; but as a member of the Access Board, the Department is in a position to gain familiarity with and have input on the guidelines sufficient to enable prompt if not simultaneous promulgation of regulatory standards.

2.3 Complaint Processing

Both Titles II and III require the Department of Justice to receive and process complaints of discrimination filed by individuals. However, the regulatory requirements for processing complaints under the two titles are not the same. Title II regulations require that every complaint that is received by DOJ be examined and a determination made, while this requirement is not present for Title III. Under Title III, the Department of Justice is required to examine complaints for their suggestion of pattern or practice issues and their significance for case law or policy development. As a result, the procedures for complaint processing differ. The Department of Justice also receives some complaints under Title I. However, these are restricted to complaints involving state or municipal governments that are referred from the EEOC after its processing, in situations where efforts at conciliation at the EEOC have failed. DRS enters these complaints into its database and may perform additional investigation on them before determining whether to litigate or to issue a right-to-sue letter. These complaints are only a small portion of those processed at DRS and take on a different character because they have already passed through the investigative process of the EEOC. Employment complaints that DRS receives directly from a complainant that do not involve an entity funded by DOJ are referred to the EEOC for processing, even if the respondent is a state or municipal government. When DOJ receives employment complaints regarding an entity funded by DOJ directly from charging parties, DRS sends the charging parties a letter informing them that they may either have DRS proceed with the complaint under Title II of ADA or have DRS send their cases to the EEOC for processing under Title I of ADA. Because of the disproportionately small number of cases and the relatively meager level of resources and effort that DRS devotes to Title I complaint processing in comparison to Titles II and III, the remainder of this analysis of complaint processing will focus exclusively on the Title II and III complaint processing procedures and outcome.

2.3.1 Title II Complaint Processing

Title II applies to discrimination charges in which the respondent is a state or local government entity. Title II overlaps with Section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability by any program or activity receiving federal financial assistance.[11] Section 504 of the Rehabilitation Act explicitly names state or local government activities and educational institutions and school systems as covered entities if they receive federal financial assistance, as well as private businesses or organizations that are recipients of federal assistance for their programs. Section 512 of ADA amended the Rehabilitation Act so that the definition of disability used by the two statutes is identical. Thus, with respect to state and local governments and agencies and instrumentalities of such governments, many charges of discrimination under Title II also constitute valid charges under Section 504. ADA is broader than Section 504 in that it extends the requirements of Section 504 to all services, programs, and activities of state and local governments, not only those that receive federal financial assistance, and in some areas ADA may offer greater or more specific protections to people with disabilities. Under Section 504, unlike Title II of ADA, the termination of federal funds to the entity is a potential remedy when a violation has been shown. ADA Title II regulations explicitly make a procedural connection with Section 504 and cite statements in the legislative history of ADA noting the link with Section 504 and the intent that Section 504 enforcement procedures and mechanisms be the model for Title II enforcement.

Two significant characteristics of the Title II charge processing differentiate it from Title I and Title III processing, both of which are related to the link with Section 504. The first factor is that processing of Title II charges does not occur exclusively within the Department of Justice and the Disability Rights Section. A complainant may file a charge directly with the Department of Justice, or he or she may file it with another federal agency. The U.S. attorneys' offices sometimes receive Title II complaints directly from complainants; the U.S. attorney's office may investigate such a complaint or may forward it to DRS for processing. Charges filed with another federal agency stay at that agency if the charge falls within the agency's areas of responsibility and the agency is one of eight (including DOJ) "designated" federal agencies named in the regulations as having responsibility for Title II charge processing. Agencies so designated were those that already processed Section 504 complaints and had the largest civil rights compliance staffs and considerable experience with complaint investigations and disability issues.[12] Content area also influenced the selection of the designated agencies: each agency is assigned a complaint when the complaint deals with a state or local government activity most like the activities it otherwise deals with. The seven other designated agencies are

• Department of Agriculture
• Department of Education
• Department of Health and Human Services
• Department of Housing and Urban Development
• Department of the Interior
• Department of Labor
• Department of Transportation

When a Title II charge filed directly with the Department of Justice involves a state or local government entity related to the responsibility of one of the other designated agencies, DOJ refers the charge to that agency for handling and resolution.

The processing of Title II complaints is therefore subject to variation depending upon the agency that is performing the investigation and determination. Complaints that come into the Department of Justice (to the DRS) are logged into a database and then, if appropriate, sent out to one of the designated agencies. DRS requests some reporting back from the agency at the conclusion of its processing, but the oversight is loosely structured, and DRS does not follow up to find out what has happened to complaints that it referred some time ago. Sometimes, the agencies do report back on the disposition of charges referred to them by DRS; however, DRS does not track the cases to ensure that it receives follow-up information. Even when the other department does report back to DRS, DRS often learns only that a complaint has been closed, without obtaining any information about the nature of the resolution.

DRS estimates that its recent handling of Title II complaints generally results in a referral to the appropriate designated agency within eight weeks. However, the DOT Departmental Office of Civil Rights (DOCR) reported that some of the referrals it received from DOJ sat at DOJ for a year before being sent. An attorney from a private organization told the research team that a complaint filed with DOJ in February 1998 was not transmitted to DOT until August 1998. It was only at that point that the attorney received the first correspondence from DOJ about the complaint. A disability advocate described a complaint that has been bounced back and forth between DOJ and the Department of Housing and Urban Development (HUD) for about two years, with three to four months elapsing between each referral.

ADA Title II charges received directly by a designated agency remain with that agency for processing, and the agency does not notify DRS of receipt or outcome of such charges. As a result, DRS does not even know how many ADA Title II complaints have been filed with other agencies. In some larger agencies, the total number of Title II complaints processed internally may far exceed the number filed with DOJ and referred to the agency. The complaints received and processed at these agencies are typically considered Title II/Section 504 complaints, not solely Title II complaints. Because of the overlapping jurisdiction and statutory standards of Title II and Section 504, agencies consider any complaint received dually filed unless a particular charge raises facts that fit under only one of the statutes. The designated agencies use the same procedures for reaching a resolution of complaints under either or both of the statutes.

The Department of Justice could ask the designated agencies to report on the charges they receive directly that fall under Title II. Such data would be very useful, not only to verify that Title II complaints are being properly handled but also to provide a more accurate picture of the Title II issues raised across the nation. DRS personnel indicated that this information is not requested because of the lack of available staff time to track the receipt of such information from each of the agencies, and to read and analyze it.

A second way in which Title II charge processing differs from Title III is that under the regulations, all Title II charges must be examined and resolved. The explanation for this difference is the link with Section 504, pursuant to which DOJ must respond to every charge filed. In its first years of handling Title II discrimination charges, DRS did open and process every charge. Where possible, DRS would try to resolve the charge through a voluntary settlement. More recently, DRS has begun to send a small number of Title II charges to mediation prior to any investigation by DRS. In light of DRS's belief that mediation is less likely to be possible with larger government agencies, complaints involving small county or municipal agencies are the ones most likely to be referred for mediation.

2.3.2 Title III Complaint Processing

Complaints of discrimination that fall under Title III involve privately operated public accommodations, commercial facilities, and private entities offering certain examinations and courses. The Department of Justice is authorized to receive complaints from individuals and to investigate and resolve these complaints. However, unlike Title II, the Department of Justice does not have the obligation to investigate and resolve every complaint. For Title III, the Department of Justice is only given authority to pursue complaints and litigation selectively, focusing on pattern or practice cases and on instances of discrimination that raise an issue of general public importance. In its instructions on How to File a Title III Complaint, DOJ endeavors to communicate its approach by noting

We will not necessarily make a determination on each complaint about whether or not there is an ADA violation. If we believe there is a pattern or practice of discrimination, or the complaint raises an issue of general public importance, we may attempt to negotiate a settlement of the matter or we may bring an action in U.S. District Court. Any such action would be taken on behalf of the United States. We do not act as an attorney for, or representative of, the complainant.[13]

Title III regulations explicitly encourage the use of alternative means of dispute resolution to resolve disputes that fall under Title III.[14]

The DRS processing of Title III complaints reflects these two aspects of its Title III enforcement obligations. DRS does not investigate every Title III discrimination complaint it receives, although all complaints received are read and a decision is made about what further action will be taken. Most of the complaints that DRS keeps for investigation and resolution are handled by its staff in Washington, D.C. DOJ, however, also makes a concerted effort to involve the U.S. attorneys in the enforcement of ADA. Accordingly, some Title III complaints are sent to U.S. attorneys for resolution. An increasing number of Title III complaints that may involve a violation, but which do not appear to involve pattern or practice issues or issues of general public importance, are referred for mediation. A complaint referred for mediation is not considered a complaint opened for investigation.

2.3.3 Procedures for Complaint Processing

The complaint processing methodology at DRS involves the following steps:

1. All mail received is reviewed by staff members of DRS, recorded in a database called the Correspondence Tracking System, and then distributed. DRS receives mail on a number of topics: correspondence about existing cases or complaints; questions or other correspondence about policy, regulations, or code certification; referrals of Title II complaints from other federal agencies; and new discrimination complaints from individuals. The tracking system log records the general category of the correspondence but does not classify complaints by title, primarily because the determination of the applicable title is not made until a later step. After being logged in, the mail is distributed, depending upon the issue involved, to the appropriate office or individual. Annual tabulations of the correspondence are produced as a measure of performance activity.
2. DRS expects most discrimination complaints from individuals to be transmitted by mail. E-mail complaints are not accepted. DRS will take complaints over the telephone from persons whose disability impairs their ability to send the Department a written complaint. Complaints may come in the form of a letter or on a complaint form developed by DRS. The complaint form is posted on the ADA Web site (http://www.usdoj.gov/crt/ada/adahom1.htm). The large majority of complaints come in the form of a letter.
3. The information provided in a letter of complaint or the complaint form is transferred onto a Complaint Report Sheet. A new complaint is reviewed by a staff person in the Investigations unit who determines whether it is a valid complaint (e.g., the issue raised is covered under ADA-it states a claim) and whether it is a Title I, II, or III complaint.
4. The Title II complaints are usually read in the investigations unit and then sent out to the appropriate designated federal agency for handling, opened for investigation within the unit, or sent to a U.S. attorney's office. Recently, some Title II cases have been sent directly to mediation.
5. Title III complaints are preliminarily sorted into one of four categories: (1) kept at DRS for investigation, (2) sent to mediation, (3) referred to a U.S. attorney, (4) sent a "do-not-open" letter. The do-not-open letter informs the complainant that due to restricted resources DRS will not be investigating the complaint, but the complainant is free to pursue private litigation. The Title III complaints, with DRS's preliminary recommendation, are then sent to a deputy for a "second look." The deputy reviews each case to determine whether a particular case is one that DRS should pursue. Criteria for keeping a case include whether it raises pattern and practice issues and whether it involves an issue of public importance.
6. Complainants in cases that are opened for investigation at DRS (under either Title II or III) are sent a Privacy Act release. Following receipt of the signed release, an investigator begins the investigation by sending a letter or telephoning the respondent. All cases that are opened are logged into a database called the Case Management System (CMS).
7. Investigation may occur through written correspondence and telephone conversations with the complainant and respondent and, if deemed necessary, by site visits to the complainant's and respondent's location.
8. If DRS finds it likely that a violation has occurred, DRS endeavors to negotiate a settlement. Litigation of a violation that cannot be negotiated is a separate decision that is made after extensive review (see the discussion of litigation in section 4.5).
9. DRS complaint processing procedures call for sending written notifications to complainants at three specific stages. Upon receipt of the complaint, after it is logged into the CMS, DRS should send a letter of acknowledgment to the complainant. If a complaint is not going to be referred to mediation or opened, the do-not-open letter may be the only correspondence the complainant receives. Persons who had filed complaints with DOJ told the research team that such a letter was the only correspondence they received, and it was received 6-18 months after the complaint was filed. A complainant whose complaint DRS decides to investigate may get a letter asking for a privacy release as the first piece of correspondence. When a complaint is sent to mediation or to a U.S. attorney, the complainant is contacted; in most cases, this is the second point of contact with DRS. The third piece of formal correspondence some complainants receive is a copy of the letter of agreement or final disposition that is sent to the respondent. DRS indicates that it periodically updates complainants about the course of the investigation or settlement negotiations, but some advocates and complainants report otherwise. Complainants whose cases involve slow or protracted investigation or negotiation may go for more than a year without any communication from DRS.

2.3.4 Mediation

Mediation involves the parties to a dispute meeting with a neutral third person to develop a resolution that is acceptable to both parties. DOJ has employed mediation since the beginning of its ADA enforcement. Currently, DRS refers to mediation many of the Title III complaints that appear to present valid claims but which DRS does not wish to retain. A complaint referred for mediation is sent to the DRS staff person who oversees the mediation activities of DRS. This individual reviews the complaint, and if she or he concurs that it is an appropriate case for mediation, starts the process of referral. Approximately 98 percent of the complaints flagged for possible mediation at the first review are determined at the second review to be appropriate for mediation.

DRS does not conduct mediations itself, nor does DOJ employ a staff of mediators. DRS procures mediation through a contract with a private organization, the Key Bridge Foundation for Education and Research. DOJ initially awarded a grant to the Key Bridge Foundation to train mediators all over the country to perform ADA mediation. Key Bridge now not only trains mediators but also provides mediators for particular cases and oversees their work. To date, Key Bridge has trained 440 mediators and has approximately 325-350 mediators active on its roster.[15] DRS refers cases to Key Bridge, and Key Bridge refers the cases to a mediator.

A case in which mediation fails to produce an agreement is sent back to the investigations unit, where a decision is made about whether to investigate. If the failure is due to the refusal of the respondent to participate in mediation or to make appropriate changes, DRS is likely to investigate the case.

Prior to July 1999, all the mediators used by DRS worked pro bono. This situation influenced the availability of mediators and their willingness to travel. The FY 1999 budget contained $500,000 to begin paying mediators and to reimburse them for travel expenses. The budget for FY 2000 and several following years will contain $1 million for mediation. With these additional funds, DRS was able to transform the funding of ADA mediation so that all mediators are now being paid. DRS is considering removing responsibility for oversight of the mediation program from the technical assistance area and assigning it elsewhere in DRS. DRS is also contemplating the possibility of adding an additional staff member to work on mediation referrals and the record-keeping and other paperwork associated with it.

Prior to July 1999, some cases flagged and confirmed as appropriate for mediation were not referred for mediation if no mediator was available in the complainant's and respondent's geographic area (usually within a 50-mile radius, although some mediators were willing to travel farther). Key Bridge reported that the geographic coverage across the nation during this period was still fairly good, although there were some gaps.[16] If no mediator was available for a case, the case was sent back to the investigations unit. At that point, DRS usually reviewed the case again to decide whether to open an investigation or to send a do-not-open letter. DRS did not collect quantitative information regarding the distribution of outcomes at this stage. DRS reports that since it began paying mediators, there are no longer any geographical gaps, and it has not turned down any cases for mediation.

2.3.5 DRS Experience with Mediation

Since beginning mediation, DRS has referred 550 cases to mediation; 200 of these were referred in the past year.[17] Data from December 31, 1997 (with 322 cases referred at that point), indicate that 128 were successfully resolved, 20 were unsuccessful, 54 involved situations in which mediation was never initiated, and 120 were still in mediation.[18] The issues raised in the complaints sent to mediation were barrier removal (204 complaints), modification of policy (66 complaints), and effective communication (52 complaints).

Overall, approximately 15 percent of complaints referred to mediation do not, in fact, go to mediation. Reasons for this include the refusal of the respondent to participate, the closure of the respondent business, and the death of the complainant. DRS has not tracked refusals to mediate but perceives that the number of respondent refusals to participate may be increasing. Some complainants decide not to participate in mediation because they feel too vulnerable. The mediation coordinator at DRS commented that people who live in small towns seem especially concerned about the consequences for them if it becomes known that they have complained, and as a result some are reluctant to engage in mediation. She said she counsels such people that mediation may not be for them under those circumstances. The criteria used in the enforcement unit suggest, however, that such "small" cases are the ones least likely to be vigorously investigated and litigated by DRS but instead are likely to culminate in a do-not-open letter. The mediation coordinator explains the mediation program and the process to individuals who may be hesitant, as well as other options that are available to them, so they can make informed decisions whether or not to participate in mediation.

DRS reports that most mediations are completed within three to four months, although some cases may not be closed for up to a year or more, until the terms of the agreements are carried out. The central CMS database does not track any details about cases that are mediated; at the conclusion of a mediation (success or failure), the case is entered in the database. Cases resolved through mediation may be opened and closed in the CMS database on the same day. More detailed data about the mediated cases are kept in the files of the DRS staff person responsible for mediation and in the files of Key Bridge.

2.3.6 Key Bridge Mediation Responsibilities

As noted previously, the Key Bridge Foundation for Education and Research both trains mediators and supervises their activities. Key Bridge training includes training on methods of mediation and training about ADA and disability issues. ADA mediators trained by Key Bridge must have two or more years of mediation experience and accredited training recognized by a mediator association. Persons with prior civil rights mediation experience are preferred. The disability content in the mediation training is provided in part by the Disability Rights Education and Defense Fund (DREDF). This training is a one-day session; Key Bridge provides additional information to the mediators as issues arise. DRS acknowledges that one day's training is not enough, but also expresses confidence in the additional on-the-job training about disability and ADA that Key Bridge provides through its supervision of the mediators. DRS reports that if factual or technical questions arise, the mediation program brings in neutral outside experts, upon whom both parties have agreed, from the community, to assist both parties in understanding the requirements of ADA. Mediators have been provided with state resource lists that include centers for independent living, protection and advocacy centers (P&As), Disability and Business Technical Assistance Centers (DBTACs), and other organizations. Frequently, parties have located resources independently.

Key Bridge supervises the mediations being performed for DRS by calling the mediators approximately every 10 days to check on the progress of the mediation. Key Bridge also reviews all the agreements. DOJ is not a party to the mediation and does not see how the cases are resolved; therefore, responsibility for ensuring that a mediated agreement does not violate ADA and is not grossly unfair to the complainant falls to Key Bridge.

DRS staff members expressed confidence that Key Bridge was capable of monitoring the mediation process and the content of the agreements for ADA compliance. However, they did note that it would be possible for a mediation agreement to result in monetary compensation for a complainant without the respondent's being required to correct the underlying circumstance of noncompliance that led to the complaint.

As of mid-January 2000, Key Bridge reports that it has overseen the mediation of 514 ADA cases and that it has complete evaluation information on 330 of them. Of the 330 cases, 76 percent resulted in agreements. Cases in which agreements were not reached were returned to DOJ. In cases in which agreements were reached, 81 percent of complainants indicated that they were satisfied and 89 percent of respondents indicated that they were satisfied.

2.3.7 DOJ/DRS Relationship to Mediation

While DRS is anxious to refer as many complaints as possible to mediation, it is not a party to the mediation. Key Bridge, through its monitoring, is usually aware of the actions of the parties to the mediation and their respective positions, but DRS does not request or obtain any information about the fact patterns of the cases. Nor does DRS monitor the content of resolutions, although it does receive some information about the outcomes. As a consequence, DRS does not currently have information that would allow it to evaluate the quality of the settlements achieved through mediation. In contrast to the EEOC, which is signatory to the agreement as a means of securing enforcement, DRS does not participate in any formal way in the final resolution. The section chief of DRS expressed the view that if DOJ were a party to the mediation, more respondents might be suspicious of mediation and perhaps refuse to participate. He acknowledged the possibility of an imbalance between complainant and respondent but expressed confidence in the abilities of well-trained mediators to prevent this.[19]

The ADA Mediation Standards Work Group, a national body made up of practicing mediators and representatives of media service providers and professional organizations, has developed guidance for mediators and others titled "ADA Mediation Guidelines." (See Appendix C.) Approximately half of the Work Group's members have disabilities. The final Standards, released in January 2000, contain detailed provisions categorized in four broad areas of program administration, mediation process, training, and ethics. They seek to ensure high-quality mediation services in the context of ADA disputes, much as standards of practice for family and divorce mediation provide in those specialty areas.

2.3.8 Mediation from the Complainant's View

While a random sample and interviews of people who have been through DOJ-sponsored mediation of a Title II or III complaint was not possible, given the time and resource limitations of this study, researchers did interview four people who had been through the process. Three of the mediations involved a small commercial establishment; one of the mediations involved two corporate entities, one of which was quite large. Two of the four individuals reported complete satisfaction with the mediation experience, and two were mixed in their assessments. In all cases, a successful resolution of the initial complaint was achieved. The four complainants reported considerable variation in how long it took to arrange the mediation and how long mediation lasted until there was a resolution. In one case, the mediation was scheduled within a month of filing the complaint, while for two others the mediation occurred nine months after the complaint was filed. In one instance, the issue was successfully resolved in a two-hour mediation session, while for others mediation stretched out over a 1-1« year period. The experiences of these individuals and interviews with DRS and Key Bridge personnel revealed the following important issues/questions about mediation that DRS should monitor as the use of mediation increases:

1. Are additional criteria or safeguards needed for deciding when to send a complex case to mediation? DRS told the research team it selects cases that are relatively simple. One of the cases reviewed by researchers was somewhat complex, involving two large corporate entities charged with violations by a single complainant. Both entities, from the start, had their lawyers involved. The respondent noted that the entity that was located solely in the local community seemed more interested in mediation because of concerns about bad publicity and interest in maintaining good relations in the community. The national corporation, headquartered elsewhere, displayed much less concern about those issues and less interest in reaching a settlement quickly and easily.
2. Is it possible for a complainant to participate effectively in a mediation alone? In two instances, the respondent was represented by a lawyer; only one complainant (the complex case) also had a lawyer. The complainant with the complex case felt strongly that if the respondent brings its lawyers, the complainant also needs representation. This individual said that getting a private lawyer to represent someone in a mediation is difficult, and, if the complainant cannot independently afford legal fees, the final agreement should require the respondent to pay the fees of the complainant's lawyer. Another complainant remarked that although he had not brought a lawyer with him, little progress was made toward settlement until he threatened to sue. Mediation is an unfamiliar experience for most complainants. One complainant remarked how intimidating it was, while another felt ill-prepared to negotiate an appropriate settlement and has now concluded that she settled for too little.
3. Are the mediators well enough trained? Three of the four complainants were not satisfied with the skills or knowledge level of the mediators. Knowledge about ADA and about enforcement methods was noted as especially weak. The complainants who came without a lawyer expected more guidance from the mediator than they received.
4. Should complainants involved in a mediation file a lawsuit before the start of mediation as an additional point of leverage to the mediation? Two informants suggested that the entities with which they were negotiating might have been more anxious to reach an agreement if a lawsuit had been pending in the background.

Despite the questions raised by their experiences, the four participants in mediation were willing to do it again should they file another complaint. The complainant in the case against two corporate respondents felt that without the filing of the complaint with DOJ, the respondents would not have been willing to discuss a settlement or come to mediation. The fact that a complaint had been filed with DOJ and that the agency had initiated the mediation was seen as important and helpful. This informant also believed that mediation could be an especially useful tool for resolving ADA complaints with local or relatively small entities. However, the complainant suggested that for all mediations the complainant probably needs the support of someone trained to assist complainants in the process and that DOJ should develop a mechanism for training and paying a cadre of persons to provide assistance in the mediation process.

2.3.9 Complaint Statistics

The major source of statistics about Title II and III complaints is the Case Management System database. This database does not contain all complaints DRS receives, only those received from a federal agency, those received from an individual and sent to a Title II designated agency, those opened for investigation, and those sent to mediation. Complaints resulting in a do-not-open letter do not appear in the database. As a result, the database contains more Title II than Title III complaints, even though DOJ receives more correspondence alleging violations of Title III than of Title II.

The CMS database does not indicate the date the complaint was first received, either at DOJ or at the agency it was sent to first. Thus, it is not possible to use this dataset to determine how much time elapses between the receipt of cases and their being "opened" by DOJ. The CMS database is the primary source of information about DRS case processing of opened cases. However, because of limitations on the data collected and the time frames in which it is entered, the database does not provide a means for tracking the resolution process of a complaint. For example, it does not record detailed process information about mediation cases (e.g., when referred, whether referral was accepted, why or why not), and it is often missing closing information for Title II complaints processed by a referral agency. An examination of the database also revealed a great many cases for which data are missing.[20] The tables on the pages that follow describe the complaints in the CMS database between FY 1992 and FY 1997, subject to the caveats described in this section about the quality of the data upon which these tables are based.

Table 2-1
Frequency Distribution of Complaints by Statute Received FY92-FY97 and Referred out to a Title II Agency, Opened for Investigation at DOJ, or Sent by DOJ to Mediation

2.3.9.1 Characteristics of Title II and Title III Complaints

Table 2-1 displays the distribution of complaints in the Case Management System. From this distribution it is clear that the majority of complaints (nearly 68%) opened by DOJ fall under Title II. This is the result of the regulatory requirement that every Title II complaint be handled, while Title III complaints may be selectively opened and investigated.

Table 2-2 displays a breakdown of the types of issues raised in Title II complaints. For the Title I complaints, the database included no information about the nature of the complaints. For Title II, there is information on "Issue1" for about 5,000 cases and on "Issue2" for about 5,000 cases.[21] The categories used are derived from the codes contained in the DRS database. They are a mix of some locations (prisons, courthouses), type of service (auxiliary aids), and impairment (HIV/AIDS). Some cases raised more than a single issue. 10,824 issues are reported for the 6,793 Title II complaints.

The distribution in Table 2-2 shows that 22.6 percent of all the issues raised in the Title II complaints involve service delivery and 20.1 percent involve government offices. Smaller, but still significant, percentages involve inaccessibility, corrections settings, auxiliary aids, public buildings, and aspects of court procedure or courthouse access. A cleaner categorization of circumstance would provide a clearer picture of these Title II issues, as duplication across the categories appears considerable.

Table 2-3 and Table 2-4 display the distribution of settings and issues for the Title III complaints in the CMS database. The types of establishments subject to the most complaints are service establishments, places of lodging, sales or rental establishments, establishments that serve food, and places of exhibition or entertainment. A much smaller proportion of the complaints involve transportation, social service centers, and places of public gathering. Table 2-4 shows that the key issues raised about these entities involve access to existing facilities, allegedly discriminatory policies, and the use of auxiliary aids. A smaller proportion involve new construction or alterations and transportation. The Title III complaint distributions are derived from cases opened by DRS for investigation or cases sent to mediation; they do not include complaints that DRS did not open or refer to mediation and thus may not correspond to the distribution of establishments or issues in the total complaint correspondence received by DRS.

Table 2-2
Complaint Issues of Title II Complaints

Table 2-3
Types of Public Accommodation in Title III Complaints

Table 2-4
Types of Title III Complaint Issues

2.3.9.2 Duration and Disposition of Complaints

Table 2-5 displays the duration from opening to closing of the Title II and III complaints in the CMS database. Altogether, the database includes closing dates for 2,827 (42%) of the 6,793 Title II complaints and for 1,670 (57%) of the 2,953 of the Title III complaints. The principal reason for the absence of a closing date is that the complaint has not yet closed; in some cases, however, data are missing, either for the date of opening or closing. The duration table shows that a slightly larger proportion of the Title II complaints close in a shorter period of time. Approximately 42 percent of Title II complaints compared to 38 percent of Title III complaints are closed within 12 months; 83 percent of Title II complaints compared to 77 percent of Title III complaints are closed at the end of three years. However, in comparison to Title III complaints, more Title II complaints are open for more than five years (47 vs. 11).

Table 2-6 displays the distribution of complaint dispositions. Disposition information is present in the database for fewer than one-half of the cases. The data in Table 2-6 are for Titles I, II, and III. The categories are mutually exclusive; however, the table is derived from the combination of two different variables in the dataset. The category "Responses to referrals to non-DOJ agencies" indicates that information was received about a complaint referred to a designated agency, but does not identify the type of resolution.

Table 2-5
Distribution of Duration from Opening to Closing Title II and III Complaints in CMS Database

Table 2-6
Disposition of Title I, II, and III Complaints in the CMS Database

2.3.9.3 Designated Agency Referral under Title II

As noted in section 2.3.1, Title II regulations specify that complaints received by DOJ that are related to the area of jurisdiction of one of seven cabinet agencies should be referred to that agency. The Department of Justice retains complaints involving other issues. Table 2-7 shows the distribution of agency responsibility for the complaints received by DOJ. Nearly 50 percent of the complaints are retained for processing by DOJ. The largest proportion of referrals are to the Departments of Education, Transportation, and Health and Human Services.

Table 2-7
Distribution of Title II Referral and Processing for Complaints Received at the Department of Justice

The offices for civil rights of the designated agencies generally handle the processing of Title II complaints. These offices have been responsible for handling Section 504 complaints under the Rehabilitation Act. The response of the designated agencies to the receipt of Title II complaints has been to add these complaints to their complaint databases and to investigate and resolve them as they do Section 504 complaints. Most of these agencies classify the complaints as "Title II/Section 504" complaints. Discussions with the Departments of Education and Health and Human Services indicated that they consider few complaints to be only Section 504 or only Title II complaints. This is not surprising, as amendments to the Rehabilitation Act following the passage of ADA narrowed the differences between the legal standards applicable under the two acts.

The Title II designated agencies not only receive referrals from DOJ, they also receive Title II complaints directly (which they generally do not distinguish from Section 504 complaints). At the larger agencies--the Departments of Education, Health and Human Services, and Transportation--the number of Title II/Section 504 complaints they directly receive and process may exceed the number they receive by referral from DOJ. When researchers contacted the designated agencies, their reports indicated that the agencies vary in the degree to which they track and can account for the Title II/Section 504 and the Title II--only complaints they receive. For example, the Department of Education keeps a large database that it made available for this research. Analysis of the database indicates that the Department received approximately 7,861 complaints between 1993 and mid-1998 that were classified as Title II/Section 504 or Title II only. All but a small proportion were considered dually covered by both statutes. The Department of Health and Human Services made available a summary of data for fiscal 1997 and fiscal 1998 that lists the Title II/Section 504 "workload" for those years at 278 complaints.[22] The format of the chart makes it difficult to estimate the total number of Title II complaints in process. In an earlier report to the National Council on Disability, however, the Department of Health and Human Services reported it had received 483 Title II/Section 504 complaints from the effective date of ADA through 1994.[23] The Department of Interior reported that in FY 1997, it received 142 Title II/Section 504 complaints, with 40 percent of them coming from DOJ and the remainder coming in directly from complainants. The Department of Agriculture reported that it does not merge the Title II complaints it receives from DOJ with the complaints it receives directly (and considers Section 504 complaints). The Department reported receiving approximately 3 ADA complaints per year. The Department of Housing and Urban Development reported that it received a total of 228 ADA/Section 504 complaints in FY 1999, of which 3 were ADA Title II only; HUD does not keep track of which complaints it receives by referral from DOJ and which it receives from complainants directly. The Department of Labor indicated that it received 15 Section 504/Title II complaints and 5 Title II only complaints in 1997; 16 Section 504/Title II complaints and 2 Title II only complaints in 1998; and 19 Section 504/Title II complaints and 11 Title II only complaints in 1999. Finally, in the Department of Transportation, ADA/Section 504 enforcement is distributed across the operating administrations. The National Highway Transportation Safety Administration estimated it had received 102 ADA/Section 504 complaints from the beginning of ADA through January 1998. The Federal Transit Administration reports receiving approximately 887 complaints from 1991 through 1998; and a log from the Federal Railroad Administration indicates that 64-75 ADA complaints were received between 1993 and June 1998. A Federal Highway Administration log shows 215 ADA complaints, most of them between 1994 and April 1998 (some of the date fields are missing). The Coast Guard reported it had received 5 ADA complaints.

The total number of ADA Title II complaints filed nationwide since ADA took effect cannot be calculated and is extremely difficult even to estimate. Clearly, it is larger than the approximately 6,600 complaints in the DOJ database. Because of the manner in which the referral agencies categorize the complaints in their own databases, it is also difficult to produce an unduplicated count that separates the complaints referred to the agency by DOJ from the complaints