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U.S.

Department of Justice

Civil Rights Division

Coordination and Review Section

P.O. Box 6611


Washington, D.C. 20035-6118

SEP 8 1993

xxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxx
RE: Complaint Number xxxxxxxxxxxxx
New Complaint Number xxxxxxxxx
New Complaint Number xxxxxxxxxx
New Complaint Number xxxxxxxxx

Dear xxxxxxxxxxxxxxxx

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.

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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. S 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
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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. S 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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U.S. Department of Justice

Civil Rights Division


Coordination and Review Section

P.O. Box 66118


Washington, D.C. 20035-6118

SEP 8 1993

Ms. Carmen R. Maymi


Director
Office for Equal Opportunity
Office of the Secretary
Department of Interior
18th & C Streets, N.W.
Washington, D.C. 20547

Re: Correspondence of XX
California

Date Received by DOJ: August 14, 1993


DOJ Number: XX
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

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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) 628-
1168.

Sincerely,

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

Enclosures

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