MAY 6 1993 The Honorable Orrin G.

Hatch United States Senator 8402 Federal Building 125 South State Street Salt Lake City, Utah 84138 Dear Senator Hatch: This is in response to your inquiry on behalf of your constituent, (b)(6) inquiry concerns the need to obtain a "right to sue" letter under title III of the Americans with Disabilities Act and whether an impairment affected by cigarette smoke is covered under the Americans with Disabilities Act. The Americans with Disabilities Act authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. XX wrote to us requesting an advisory interpretation of the Act. I am enclosing a copy of our recent response to him. We apologize for the delay in responding to his inquiry. I hope this information is helpful in responding to your constituent. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosure cc: Records, Chrono, Wodatch, Magagna, Miller, McDowney, FOIA udd\Millerc\policy\hatch.ltr

01-02026 U.S. Department of Justice Civil Rights Division Public Access Section XX P.O. Box 66738 Washington, D.C. 20035-6738 APR 27 1993 (b)(6) XX West Jordan, Utah XX Dear XX: This is in response to your request for a "right to sue" letter under the Americans with Disabilities Act and your request for information as to the obligation of a public accommodation to modify its policies and practices in order to be accessible to you because of the effect of smoking on your ability to breathe. The Americans with Disabilities Act authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the Act's requirements. However, it does not constitute a legal interpretation and it is not binding on the Department. You do not need a "right to sue" letter in order to institute a civil action to redress your rights under title III of the Americans with Disabilities Act. The Americans with Disabilities Act contains a private right of action under title

III. Any person who is being subjected to discrimination on the basis of disability in violation of the Act may institute a civil action for preventive relief, such as an injunction or other order. The Department of Justice does have the authority to investigate complaints under title III; however, it is not necessary to file a complaint with the Department prior to exercising your private right of action. The Americans with Disabilities Act prohibits discrimination on the basis of a disability, which is defined as a physical or mental impairment that substantially limits one or more major life activities, including breathing. With respect to an impairment affected by cigarette smoke, the preamble to the Department's implementing regulation states,

01-02027 -2Sometimes respiratory or neurological functioning is so severely affected that an individual will satisfy the requirements to be considered disabled under the regulation. Such an individual would be entitled to all of the protections afforded by the Act and this part. In other cases, individuals may be sensitive to environmental elements or to smoke but their sensitivity will not rise to the level needed to constitute a disability. For example, their major life activity of breathing may be somewhat, but not substantially, impaired. In such circumstances, the individuals are not entitled to the protections of the statute despite their sensitivity to environmental agents. In sum, the determination as to whether allergies to cigarette smoke, or allergies or sensitivities characterized ... as environmental illness are disabilities must be made using the same case-by-case analysis that is applied to all other physical or mental impairments. This discussion of environmental sensitivities can be found

at page 35549 of the enclosed title III regulation. I also have enclosed a copy of the Department of Justice's Title III Technical Assistance Manual. There is an explanation of what is meant by the phrase "individuals with disabilities" on pages 8 12 of the manual. After reviewing this material, if you wish to file a complaint under the Americans with Disabilities Act against a specific public accommodation, you may write to the Public Access Section, Civil Rights Division, U.S. Department of Justice, Post Office Box 66738, Washington, D.C. 20035-9998. Please bear in mind that the Department is not able to investigate all the complaints it receives and that it can take enforcement action where there is a pattern or practice of discrimination or discrimination involving an issue of general public importance. I hope this information is helpful to you. Sincerely, John L. Wodatch Chief Public Access Section Enclosures (2)

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