42 U.S.C. § 12188 — Enforcement

Page 8264 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12187 (I) with respect to small providers of transportation (as defined by the Sec- retary), 3 years after the date of issuance of final regulations under clause (ii); and (II) with respect to other providers of transportation, 2 years after the date of issuance of such final regulations. (C) Limitation on requiring installation of ac- cessible restrooms The regulations issued pursuant to this paragraph shall not require the installation of accessible restrooms in over-the-road buses if such installation would result in a loss of seating capacity. (3) Standards The regulations issued pursuant to this sub- section shall include standards applicable to facilities and vehicles covered by sections 12182(b)(2) and 12184 of this title. (b) Other provisions Not later than 1 year after July 26, 1990, the Attorney General shall issue regulations in an accessible format to carry out the provisions of this subchapter not referred to in subsection (a) that include standards applicable to facilities and vehicles covered under section 12182 of this title. (c) Consistency with ATBCB guidelines Standards included in regulations issued under subsections (a) and (b) shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204 of this title. (d) Interim accessibility standards (1) Facilities If final regulations have not been issued pur- suant to this section, for new construction or alterations for which a valid and appropriate State or local building permit is obtained prior to the issuance of final regulations under this section, and for which the construction or alteration authorized by such permit begins within one year of the receipt of such permit and is completed under the terms of such per- mit, compliance with the Uniform Federal Ac- cessibility Standards in effect at the time the building permit is issued shall suffice to sat- isfy the requirement that facilities be readily accessible to and usable by persons with dis- abilities as required under section 12183 of this title, except that, if such final regulations have not been issued one year after the Archi- tectural and Transportation Barriers Compli- ance Board has issued the supplemental min- imum guidelines required under section 12204(a) of this title, compliance with such supplemental minimum guidelines shall be necessary to satisfy the requirement that fa- cilities be readily accessible to and usable by persons with disabilities prior to issuance of the final regulations. (2) Vehicles and rail passenger cars If final regulations have not been issued pur- suant to this section, a private entity shall be considered to have complied with the require- ments of this subchapter, if any, that a vehicle or rail passenger car be readily accessible to and usable by individuals with disabilities, if the design for such vehicle or car complies with the laws and regulations (including the Minimum Guidelines and Requirements for Accessible Design and such supplemental min- imum guidelines as are issued under section 12204(a) of this title) governing accessibility of such vehicles or cars, to the extent that such laws and regulations are not inconsistent with this subchapter and are in effect at the time such design is substantially completed. (Pub. L. 101–336, title III, § 306, July 26, 1990, 104 Stat. 361; Pub. L. 104–59, title III, § 341, Nov. 28, 1995, 109 Stat. 608.) Editorial Notes AMENDMENTS 1995—Subsec. (a)(2)(B)(iii). Pub. L. 104–59 substituted ‘‘3 years after the date of issuance of final regulations under clause (ii)’’ for ‘‘7 years after July 26, 1990’’ in subcl. (I) and ‘‘2 years after the date of issuance of such final regulations’’ for ‘‘6 years after July 26, 1990’’ in subcl. (II). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective July 26, 1990, see section 310(c) of Pub. L. 101–336, set out as a note under section 12181 of this title. § 12187. Exemptions for private clubs and reli- gious organizations The provisions of this subchapter shall not apply to private clubs or establishments ex- empted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000–a(e)) [42 U.S.C. 2000a et seq.] or to religious organizations or en- tities controlled by religious organizations, in- cluding places of worship. (Pub. L. 101–336, title III, § 307, July 26, 1990, 104 Stat. 363.) Editorial Notes REFERENCES IN TEXT The Civil Rights Act of 1964, referred to in text, is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title II of the Act is classified generally to subchapter II (§ 2000a et seq.) of chapter 21 of this title. For complete classifica- tion of this Act to the Code, see Short Title note set out under section 2000a of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 18 months after July 26, 1990, see section 310(a) of Pub. L. 101–336, set out as a note under section 12181 of this title. § 12188. Enforcement (a) In general (1) Availability of remedies and procedures The remedies and procedures set forth in section 2000a–3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimi- nation on the basis of disability in violation of this subchapter or who has reasonable grounds Page 8265 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12188 1 So in original. The word ‘‘section’’ probably should not ap- pear. for believing that such person is about to be subjected to discrimination in violation of sec- tion 12183 of this title. Nothing in this section shall require a person with a disability to en- gage in a futile gesture if such person has ac- tual notice that a person or organization cov- ered by this subchapter does not intend to comply with its provisions. (2) Injunctive relief In the case of violations of sections 12182(b)(2)(A)(iv) and section 1 12183(a) of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this sub- chapter. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a pol- icy, or provision of alternative methods, to the extent required by this subchapter. (b) Enforcement by Attorney General (1) Denial of rights (A) Duty to investigate (i) In general The Attorney General shall investigate alleged violations of this subchapter, and shall undertake periodic reviews of compli- ance of covered entities under this sub- chapter. (ii) Attorney General certification On the application of a State or local government, the Attorney General may, in consultation with the Architectural and Transportation Barriers Compliance Board, and after prior notice and a public hearing at which persons, including indi- viduals with disabilities, are provided an opportunity to testify against such certifi- cation, certify that a State law or local building code or similar ordinance that es- tablishes accessibility requirements meets or exceeds the minimum requirements of this chapter for the accessibility and usability of covered facilities under this subchapter. At any enforcement pro- ceeding under this section, such certifi- cation by the Attorney General shall be re- buttable evidence that such State law or local ordinance does meet or exceed the minimum requirements of this chapter. (B) Potential violation If the Attorney General has reasonable cause to believe that— (i) any person or group of persons is en- gaged in a pattern or practice of discrimi- nation under this subchapter; or (ii) any person or group of persons has been discriminated against under this sub- chapter and such discrimination raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States dis- trict court. (2) Authority of court In a civil action under paragraph (1)(B), the court— (A) may grant any equitable relief that such court considers to be appropriate, in- cluding, to the extent required by this sub- chapter— (i) granting temporary, preliminary, or permanent relief; (ii) providing an auxiliary aid or service, modification of policy, practice, or proce- dure, or alternative method; and (iii) making facilities readily accessible to and usable by individuals with disabil- ities; (B) may award such other relief as the court considers to be appropriate, including monetary damages to persons aggrieved when requested by the Attorney General; and (C) may, to vindicate the public interest, assess a civil penalty against the entity in an amount— (i) not exceeding $50,000 for a first viola- tion; and (ii) not exceeding $100,000 for any subse- quent violation. (3) Single violation For purposes of paragraph (2)(C), in deter- mining whether a first or subsequent violation has occurred, a determination in a single ac- tion, by judgment or settlement, that the cov- ered entity has engaged in more than one dis- criminatory act shall be counted as a single violation. (4) Punitive damages For purposes of subsection (b)(2)(B), the term ‘‘monetary damages’’ and ‘‘such other re- lief’’ does not include punitive damages. (5) Judicial consideration In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any, is appropriate, shall give con- sideration to any good faith effort or attempt to comply with this chapter by the entity. In evaluating good faith, the court shall con- sider, among other factors it deems relevant, whether the entity could have reasonably an- ticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability. (Pub. L. 101–336, title III, § 308, July 26, 1990, 104 Stat. 363.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b)(1)(A)(ii), (5), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 18 months after July 26, 1990, see section 310(a) of Pub. L. 101–336, set out as a note under section 12181 of this title. Page 8266 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12189 1 So in original. Probably should be ‘‘subchapters’’. CIVIL ACTIONS FOR VIOLATIONS BY PUBLIC ACCOMMODATIONS For provisions directing that, except for any civil ac- tion brought for a violation of section 12183 of this title, no civil action shall be brought for any act or omission described in section 12182 of this title which occurs (1) during the first six months after the effective date of this subchapter, against businesses that employ 25 or fewer employees and have gross receipts of $1,000,000 or less, and (2) during the first year after the effective date, against businesses that employ 10 or fewer employees and have gross receipts of $500,000 or less, see section 310(b) of Pub. L. 101–336, set out as an Effective Date note under section 12181 of this title. § 12189. Examinations and courses Any person that offers examinations or courses related to applications, licensing, cer- tification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to per- sons with disabilities or offer alternative acces- sible arrangements for such individuals. (Pub. L. 101–336, title III, § 309, July 26, 1990, 104 Stat. 365.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 18 months after July 26, 1990, see section 310(a) of Pub. L. 101–336, set out as a note under section 12181 of this title. SUBCHAPTER IV—MISCELLANEOUS PROVISIONS § 12201. Construction (a) In general Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards ap- plied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title. (b) Relationship to other laws Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and pro- cedures of any Federal law or law of any State or political subdivision of any State or jurisdic- tion that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter. Nothing in this chapter shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment covered by subchapter I, in transportation covered by sub- chapter II or III, or in places of public accommo- dation covered by subchapter III. (c) Insurance Subchapters I through III of this chapter and title IV of this Act shall not be construed to pro- hibit or restrict— (1) an insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from under- writing risks, classifying risks, or admin- istering such risks that are based on or not in- consistent with State law; or (2) a person or organization covered by this chapter from establishing, sponsoring, observ- ing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (3) a person or organization covered by this chapter from establishing, sponsoring, observ- ing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance. Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of sub- chapter 1 I and III. (d) Accommodations and services Nothing in this chapter shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to ac- cept. (e) Benefits under State worker’s compensation laws Nothing in this chapter alters the standards for determining eligibility for benefits under State worker’s compensation laws or under State and Federal disability benefit programs. (f) Fundamental alteration Nothing in this chapter alters the provision of section 12182(b)(2)(A)(ii) of this title, specifying that reasonable modifications in policies, prac- tices, or procedures shall be required, unless an entity can demonstrate that making such modi- fications in policies, practices, or procedures, in- cluding academic requirements in postsecondary education, would fundamentally alter the na- ture of the goods, services, facilities, privileges, advantages, or accommodations involved. (g) Claims of no disability Nothing in this chapter shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimina- tion because of the individual’s lack of dis- ability. (h) Reasonable accommodations and modifica- tions A covered entity under subchapter I, a public entity under subchapter II, and any person who owns, leases (or leases to), or operates a place of public accommodation under subchapter III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 12102(1) of this title solely under subparagraph (C) of such sec- tion. (Pub. L. 101–336, title V, § 501, July 26, 1990, 104 Stat. 369; Pub. L. 110–325, § 6(a)(1), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104