# 116 II - 3.

6000 September 8, 1993

XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX XXXXX RE: Complaint Number XXXXXXXXXXXX New Complaint Number XXXXXXXXX New Complaint Number XXXXXXXXX New Complaint Number XXXXXXXXX Dear Mr. XXXXXXXX: Please note the new complaint number assigned to your complaint. Please use the new number in all correspondence and other communications regarding this complaint. This letter constitutes our letter of findings with respect to your complaint filed with our office alleging discrimination by the City of San Francisco in violation of title II of the Americans with Disabilities Act (ADA). You alleged that, as an individual with environmental illness, you were denied access to municipal buildings because of the perfume used by municipal employees. Title II of the ADA prohibits discrimination on the basis of disability in the services, programs, and activities of public entities (State and local governments). This office is responsible for investigating alleged violations of title II by public entities for which it is the designated enforcement agency, including State and local government support services and other government functions not assigned to other designated agencies. Your complaints against the Museum of Modern Art and the San Francisco Municipal Railway have been referred to the Departments of the Interior and Transportation, respectively. These are the designated agencies for enforcement of title II with respect to the subjects of those complaints. Copies of our referral letters are enclosed for your information.

Your complaint alleges generally that the City and County of San Francisco has not adopted a public access policy for individuals with environmental illness. Although formal adoption of nondiscrimination policies may be helpful in ensuring that a public entity meets its obligations under the statute and regulation, the regulation does not require public entities to adopt such policies with respect to individuals with disabilities or any particular class of individuals with disabilities. Also, since your complaint was filed, the City has adopted an accessible meeting policy that includes a requirement that all public meeting notices and agendas must include a notice asking individuals attending the meeting to refrain from wearing perfume or other scented products in order to allow individuals with environmental illness or multiple chemical sensitivity to attend the meeting. We have reviewed your allegation that you are denied access to public buildings because of the use of scented products by employees in those buildings. Section 35.130 (b)(7) of the Department's regulation implementing title II provides that A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. Assuming, for purposes of this letter, that you are an individual with a "disability" as that term is defined in our regulation at 28 C.F.R. 35.104, we have determined that a public entity is not required to prohibit use of perfume or other scented products by employees who come into contact with the public because such a requirement would not be a "reasonable" modification to its personnel policies. Furthermore, nothing in the ADA or its legislative history indicates that Congress intended to require public entities to regulate use of such products by its employees. The failure of a public entity to adopt such a policy, therefore, does not violate title II of the ADA. We have therefore determined that the allegations in your complaint do not state a violation of title II of the ADA. If you are dissatisfied with this Letter of Findings, you may file a private complaint presenting your allegations of discrimination

in the United States District Court under title II of the ADA. Please be advised that your right to file a complaint is protected by Federal law. A State or local government may not intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone who has either taken action or participated in an action to secure rights protected by the ADA. If at any time you feel you are being harassed or intimidated because of your dealings with the Department of Justice, please let us know immediately. This office would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, 5 U.S.C. 522, we may be required to release this letter and other correspondence and records related to your complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could constitute an unwarranted invasion of your or other's privacy. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division

Mr. Peter A. Suazo Acting Director Departmental Office of Civil Rights Office of the Secretary Department of Transportation 400 7th Street, S.W.

Washington, D.C. 20590 Re: Correspondence of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX California Date Received by DOJ: August 14, 1993 DOJ Number: XXXXXXXXX DOJ Contact Person: Mr. Bruce Purvis Dear Mr. Suazo: I am referring this correspondence to your agency for investigation to determine whether the allegations of discrimination by the San Francisco Municipal Railway, if true, violate section 504 of the Rehabilitation Act or title II of the Americans with Disabilities Act. We believe that your agency is designated to investigate this matter by subpart G of the title II regulation found at 28 C.F.R. Part 35. This Department has referred the complaint against the Museum of Modern Art to the Department of the Interior. The attached letter of Findings, which resolves the complaint with respect to other City agencies, reflects our policy, and we urge you to follow our direction. If you have section 504 jurisdiction, please investigate the allegations for compliance with both your agency's section 504 regulation and the Department of Justice's (DOJ) title II regulation. Even if you do not have section 504 jurisdiction, we believe your agency is designated under subpart G of the title II regulation to investigate this matter. If so, please investigate the allegations under the procedures in subpart F of that regulation. Within 30 days of the date of this letter, please tell us what statute you are using. If you have no jurisdiction over this complaint, please return it promptly to DOJ. Because we are responsible for coordinating enforcement of title II, please send any final written disposition of this matter to the Coordination and Review Section, P.O. Box 66118, Washington, D.C. 20035-6118. In all correspondence, please reference the correspondent's name, name of the alleged discriminating entity, and the DOJ number. If you have any questions, please contact Bruce Purvis, of my staff, at (202) 662-0079. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division

Ms. Carmen R. Maymi Director Office for Equal Opportunity Office of the Secretary Department of the Interior 18th & C Streets, N.W. Washington, D.C. 20547 Re: Correspondence of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX California Date Received by DOJ: August 14, 1993 DOJ Number: XXXXXXXXX DOJ Contact Person: Ms. Flora Brown Dear Ms. Maymi: I am referring this correspondence to your agency for investigation to determine whether the allegations of discrimination by the San Francisco Museum of Modern Art, if true, violate section 504 of the Rehabilitation Act or title II of the Americans with Disabilities Act. We believe that your agency is designated to investigate this matter by subpart G of the title II regulation found at 28 C.F.R. Part 35. This Department has referred the complaint against the San Francisco

Municipal Railway to the Department of Transportation. The attached letter of findings, which resolves the complaint with respect to other City agencies, reflects our policy, and we urge you to follow our direction. If you have section 504 jurisdiction, please investigate the allegations for compliance with both your agency's section 504 regulation and the Department of Justice's (DOJ) title II regulation. Even if you do not have section 504 jurisdiction, we believe your agency is designated under subpart G of the title II regulation to investigate this matter. If so, please investigate the allegations under the procedures in subpart F of that regulation. Within 30 days of the date of this letter, please tell us what statute you are using. If you have no jurisdiction over this complaint, please return it promptly to DOJ. Because we are responsible for coordinating enforcement of title II, please send any final written disposition of the matter to the Coordination and Review Section, P.O. Box 66118, Washington, D.C. 20035-6118. In all correspondence please reference the correspondent's name, name of the alleged discriminating entity, and the DOJ number. If you have any questions, please contact Flora Brown, of my staff, at (202) 6281168. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosures