U.S. Department of Justice Civil Rights Division Coordination and Review Section P.O. Box 66118 Washington, D.

C 20035-6118 XXX XXX XXX XXX NOV 21 1994

RE: Complaint Number XX Dear Mr. XX : This letter constitutes the Department of Justice's Letter of Findings (LOF) with respect to the complaint you filed with our office under Title II of the Americans with Disabilities Act (ADA). Title II prohibits discrimination against qualified individuals with disabilities on the basis of their disability in the services, programs, and activities of State and local governments. We are required to investigate complaints, make findings of fact and conclusions of law, and attempt to negotiate voluntary compliance if a violation is found. Where voluntary compliance cannot be achieved, formal enforcement action may be initiated. The Title II regulation also provides for the use of alternative means of dispute resolution, including settlement negotiations, and conciliation. Allegations Your complaint alleges that the revised accessible meeting policy of the City and County of San Francisco (hereinafter, the "City") discriminates against individuals with environmental illness and multiple chemical sensitivities (hereinafter "MCS"). Specifically, you allege that the City violated Title II when it deleted the request that members of the public refrain from wearing perfume and other scented products at public meetings and substituted a request that individuals with environmental illness

or MCS call an accessibility hotline to discuss specific arrangements for accommodating their environmental illness or MCS at public meetings.

01-00230 -2Background and Facts As you may be aware, our office issued a Letter of Findings on September 8, 1993, which stated that Title II does not require the City and County of San Francisco to adopt a public access policy for individuals with disabilities, including individuals with MCS or environmental illness (please see attached letter). On November 30, 1992, Mayor Frank Jordan adopted a policy requesting individuals to refrain from wearing perfume or other scented products when attending any public meeting. This policy was referenced in our September 1993 LOF. On April 30, 1993, San Francisco revised this policy to request that individuals with MCS or environmental illness call an accessibility hotline in order to make specific arrangements to accommodate their condition at public meetings. The remainder of this letter addresses whether San Francisco's revised public meeting policy violates Title II. Analysis and Findings As we stated in our September 1993 LOF, public entities are not required to have a written policy regarding the accommodation of individuals with disabilities, including individuals with environmental illness or MCS. However, if such a written policy does exist, it must be nondiscriminatory. We have determined that the City's revised policy for accommodating individuals with environmental illness or MCS at public meetings is nondiscriminatory and, thus, does not violate Title II. 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. 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. We have previously determined (see September 1993 LOF) 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" 01-00231 -3modification 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. This determination applies with even greater force to regulating the conduct of individuals attending public meetings who are not employees of the entity. The failure of a public entity to adopt such a policy, therefore, does not violate Title II of the ADA. However, if such a written policy does exist, it must not discriminate, on the basis of disability, against qualified individuals with disabilities as compared to individuals without disabilities. The policy in question does not restrict individuals with disabilities in the enjoyment of any rights or privileges provided for individuals without disabilities. The gravamen of your complaint is that public meetings are inaccessible to you because of the use of scented products by other individuals attending the meetings and that the policy is inadequate because it does not provide sufficient protection. However, the policy neither requires nor permits anything that is prohibited by the ADA. We have, therefore, determined that the allegations in your complaint do not state a violation of Title II of the ADA.

Conclusion Based on the findings outlined above, we are closing your complaint as of the date of this letter. If you are dissatisfied with our determination, you may file a private complaint in the appropriate United States District Court under Title II of the ADA. You should be aware that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that we receive such a request, we will

01-00232 -4seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy. Sincerely, Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division Enclosure

cc: Louise H. Renne City Attorney 01-00233 ​ U.S. Department of Justice Civil Rights Division Coordination and Review Section P.O. Box 66118 Washington, D.C. 20035-6118 SEP 8 (illegible) XXX XXX XXX RE: Complaint Number XXX New Complaint Number XXX New Complaint Number XXX New Complaint Number XXX Dear X 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.

01-00234 -2Your 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 01-00235 -3participated 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

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