"In this scenario we witness a woman with a medical problem is entering a restaurant with her guide dog which is legal by law to allow her to bring in but it becomes a big problem to the restaurant managers and other customers who ask her to take her dog outside..but when she says it's perfectly legal, things turn ugly..will anyone stand up for this woman?"
This is in response to your request for information on how to file a complaint under title III of the Americans with Disabilities Act.
Title III prohibits discrimination based on disability in public accommodations. Private entities covered by title III include places of lodging, establishments serving food and drink, places of exhibition or entertainment, places of public gathering, sales or rental establishments, service establishments, stations used for specified public transportation, places of public display or collection, places of recreation, places of education, social service center establishments, and places of exercise or recreation. Title III also covers commercial facilities (such as warehouses, factories, and office buildings), private transportation services, and licensing and testing practices.
If you feel you or another person have been discriminated against by an entity covered by title III, send a letter to the Department of Justice, at the address below, including the following information:
- Your full name, address, and telephone number, and the name of the party discriminated against;
- The name of the business, organization, or institution that you believe has discriminated;
- A description of the act or acts of discrimination, the date or dates of the discriminatory acts, and the name or names of the individuals who you believe discriminated; and
- Other information that you believe necessary to support your complaint. Please send copies of relevant documents. Do not send original documents. (Retain them.)
Sign and send the letter to the address below:
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights - NYAVE
Washington, D.C. 20530
The Disability Rights Section will consider your complaint and inform you of its action. The office will investigate the complaint and determine whether to begin litigation. 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 Unites States. We do not act as an attorney for, or representative of, the complainant.
You also have the option of filing your own case in U.S. District Court.
Depending on the nature of your complaint, other information would also be helpful to our investigation:
1. Small businesses have limited protection from lawsuits. Except with respect to new construction and alterations, no lawsuit can be filed concerning acts or omissions that occur before --
1) July 26, 1992, by businesses with 25 or fewer employees and gross receipts of $1,000,000 or less.
2) January 26, 1993, by businesses with 10 or fewer employees and gross receipts of $500,000 or less.
2. The name or names of the individuals or entities who have an ownership and/or managerial interest in each facility or business that is the subject of your complaint, with phone numbers and addresses, including zip codes, if you have them.
3. Information specifying whether the facility is owned and/or operated by a private entity or a state or local government.
4. The nature of the activity or service provided by the business.
5. If you are alleging failure to remove architectural barriers, a description, including as much detail as possible, of the barriers. If possible, please provide pictures, videotapes, diagrams, or other illustrations that accurately set forth the alleged violation.
6. Any suggestions for remedying the alleged violations of the ADA.
7. Information about whether you have filed a related complaint with a U.S. Attorneys Office, or any other Federal, State, or local agency, or any court, or whether you intend to file such a complaint.
Source: (http://www.ada.gov/t3compfm.htm):
FILING AN ACTION FOR VIOLATION OF FAIR HOUSING ACT:
THIS HAS BEEN RESEARCHED FROM RECENT CASE LAW, AND SHEPHERDIZED AS OF JULY 30, 2015. PLEASE ALWAYS BE SURE WHEN CONDUCTING LEGAL RESEARCH THAT THE LAW IS CURRENT AND EFFECTIVE.
In Hawn v. Shoreline Towers Phase 1 Condo. Ass'n, 347 Fed. Appx. 464 (11th Cir. Fla. 2009), the direct discussion of 42 U.S.C. § 3604(f)(3)(B) took place in which the court had upheld that in order to prevail on a Section 3604(f)(3)(B) claim,
WHAT MUST THE DISCRIMINATED DISABLED PERSON PROVE?: a plaintiff must establish that
WHEN IS AN INDIVIDUAL CONSIDERED DISABLED UNDER THE FHA?: An individual is handicapped, for the purposes of the Fair Housing Act, if he has:
HOWEVER THE ENTITY IS NOT LIABLE WITHOUT KNOWLEDGE OF THE DISABILITY: A defendant "cannot be liable for refusing to grant a reasonable and necessary accommodation if [it] never knew the accommodation was in fact necessary." Schwarz, 544 F.3d at 1219 (quoting Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1275 (10th Cir. 2001)).
THE ENTITY MUST BE INFORMED OF THE DISABILITY AND NECESSITY FOR SERVICE ANIMAL: Other circuits have held that this means that the defendant must know or reasonably be expected to know of the existence of both the handicap and the necessity of the accommodation. See, e.g., DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006).
Hawn v. Shoreline Towers Phase 1 Condo. Ass'n, 347 Fed. Appx. 464, 467 (11th Cir. Fla. 2009)
In the case of Fair House of the Dakotas, Inc. v. Goldmark Prop. Mgmt., 778 F. Supp. 2d 1028 (D.N.D. 2011) a disabled person was able to present sufficient evidence to raise a claim for failure to make a reasonable accommodation.
BURDEN SHIFTING ANALYSIS:
Having found the FHA is implicated, evaluation of discrimination claims brought under the FHA is subject to the McDonnell Douglas burden shifting analysis. Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997).
STANDARD: PREPONDERANCE OF THE EVIDENCE:
In order to survive summary judgment, a plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. Id.
ONCE THE DISABLED PERSON IS ABLE TO PROVIDE SUFFICIENT EVIDENCE OF DISCRIMINATION, THE BURDEN THEN SHIFTS TO THE DISCRIMINATING ENTITY TO PROVE: REASONABLE REASON
If the plaintiff establishes with sufficient evidence a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its' action. United States v. Badgett, 976 F.2d 1176, 1178 [1037] (8th Cir. 1992).
STANDARD: PREPONDERANCE OF THE EVIDENCE
If the defendant satisfies its burden, the plaintiff then has an opportunity to prove, by a preponderance of the evidence, the legitimate reasons advanced by the defendant are a mere pretext. Id.
TOTALITY OF THE CIRCUMSTANCES:
The elements of a prima facie case of discrimination vary from case to case, depending on the allegations and the circumstances. Badgett, 976 F.2d at 1178.
A plaintiff alleging a violation under the FHA can proceed under three theories: disparate treatment, disparate impact, and failure to make a reasonable accommodation. Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir. 2002).
Disparate treatment analysis focuses on whether the defendant treated the plaintiff less favorably than others. Gallagher v. Magner, 619 F.3d 823, 831 (8th Cir. 2010).
Proof of discriminatory purpose is crucial for a disparate treatment claim. Id.
Summary judgment is appropriate if the plaintiff does not present either:
(1) direct evidence of discriminatory intent, or
(2) indirect evidence creating an inference of discriminatory intent. Id.
SECOND THEORY: DISPARATE IMPACT THEORY
In contrast, a prima facie case under a disparate impact theory does not require the plaintiff to show the policy or practice was formulated with discriminatory intent. Gallagher, 619 F.3d at 833.
plaintiff must establish:
(1) a facially neutral policy or practice that
(2) resulted in a significant adverse impact on members of a protected minority group. Id.
THIRD THEORY: FAILURE WHEN KNOWS OR SHOULD HAVE KNOWN OF DISABILITY.
As to the third theory to prevail on a claim for failure to make a reasonable accommodation, the plaintiff must establish the following: (1) he or an associate of his is handicapped within the meaning of § 3602(a) and the defendant knew or should have known of this fact;
(2) an accommodation may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling;
(3) such accommodation is reasonable; and
(4) the defendant refused to make the requested accommodation. Astralis Condominium Ass'n v. Sec'y, U.S. Dept. of Housing & Urban Development, 620 F.3d 62, 67 (1st Cir. 2010); DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006).
Fair House of the Dakotas, Inc. v. Goldmark Prop. Mgmt., 778 F. Supp. 2d 1028, 1036-1037 (D.N.D. 2011)FILING AN ACTION UNDER (IDEA):
THIS IS PRIMARILY FOR A STUDENT WHO HAS BEEN DISCRIMINATED AGAINST WHILE WORKING IN TANDEM PERFORMANCE WITH A SERVICE ANIMAL WHILE ON PUBLIC SCHOOL PROPERTY.
"The IDEA's exhaustion requirement ensures that complex factual disputes over the education of disabled children are resolved, or at least analyzed, through specialized local administrative procedures. The IDEA outlines standards and procedures for accommodations and services provided to disabled children whose disabilities cause them to need "special education and related services." 20 U.S.C. § 1401(3)(A).
One of its primary purposes is to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." Id. § 1400(d)(1)(A).
To this end, the IDEA requires that schools and school districts develop an IEP for each such child. Id. § 1414(d)(2)(A).
The IEP outlines "the child's present levels of academic achievement and functional performance[,] . . . measurable annual . . . academic and functional goals," measurement criteria for meeting those goals, and the "special education and related services and supplementary aids and services . . . and . . . the program modifications or supports for school personnel that will be provided for the child" to make progress in achieving the goals. Id. § 1414(d)(1)(A)(i).
The IDEA's procedures for creating and amending a child's IEP encourage participation by those directly involved in the child's care in education, application of expert analysis, and swift dispute resolution. There must be an IEP in effect for each disabled child by the start of each school year. Id. § 1414(d)(2)(A).
The IEP is created by an IEP team, which includes the child's parents, at least one of the child's regular education teachers, at least one of the child's special education teachers, and a representative of the "local education agency" who is qualified in special education, knowledgeable about the general curriculum, and knowledgeable about the local education agency's resources. Id. § 1414(d)(1)(B).
Any party can present a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," including disputes over the content of the child's IEP. Id. § 1415(b)(6)(A); see id. § 1401(9)(D) (defining a free appropriate public education as an education "provided in conformity with the individualized education program").
Within 15 days of receiving notice of a child's parents' complaint, the local educational agency must hold a "preliminary meeting" with the parents and other members of the IEP team to give the local educational agency "the opportunity [9] to resolve the complaint." Id. § 1415(f)(1)(B)(i).
If the local educational agency has not resolved the dispute within 30 days of receiving the complaint, the timeline for a "due process hearing" begins. Id. § 1415(f)(1)(B)(ii).
This process must conclude—with the local or state educational agency issuing a written decision to the parties—within 45 days. 34 C.F.R. § 300.515(a).
If the local agency conducted the hearing, the decision can be appealed to the state educational agency, which conducts an impartial review and issues a decision within 30 days. 20 U.S.C. § 1415(g); 34 C.F.R. § 300.515(b).
These deadlines are of course not entirely set in stone, but in the abstract a dispute about an IEP should go through a resolution meeting, a local agency determination, and a state agency determination within 105 days of the initial complaint. Only at this point may either party take the dispute to court, and the court then receives "the records of the administrative proceedings." 20 U.S.C. § 1415(i)(2). The statute and implementing regulations ensure that the parties have a chance to resolve the dispute without going to court and that local and state educational agencies have a chance to analyze and study it.
Requiring exhaustion of administrative procedures prior to filing suit under the IDEA has clear policy justifications: "States are given the power to place themselves in compliance with the law, and the incentive to develop a regular system for fairly resolving conflicts under the Act. Federal courts—generalists with no expertise in the educational needs of handicapped students—are given the benefit of expert factfinding by a state agency devoted to this very purpose." Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 873 F.2d 933, 935 (6th Cir. 1989) (analyzing substantially similar provisions of the IDEA's predecessor statute). The IDEA calls for highly fact-intensive analysis of a child's disability and her school's ability to accommodate her. The procedures outlined above ensure that the child's parents and educators, as well as local experts, are first in line to conduct this analysis.
The IDEA's substantive protections overlap significantly with other federal legislation and constitutional protections, and so this policy justification would be threatened if parties could evade IDEA procedures by bringing suit contesting educational accommodations under other causes of action. The IDEA contemplates and explicitly precludes this possibility:
20 U.S.C. § 1415(l) (emphasis added). The exhaustion requirement was intended "to prevent courts from acting as ersatz school administrators and making what should be expert determinations about the best way to educate disabled students." Payne v. Peninsula Sch. Dist., 653 F.3d 863, 876 (9th Cir. 2011) (en banc), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). Accordingly, it makes sense to require IDEA exhaustion in order to preserve the primacy the IDEA gives to the expertise of state and local agencies.[B]efore the filing of a civil action under [the ADA, the Rehabilitation Act, or other Federal laws protecting the rights of children [11] with disabilities] seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
