U.S.

Department of Justice

Civil Rights Division

Coordination and Review Section

P.O. Box 66118

Washington, D.C 20035-6118

XXX NOV 21 1994

XXX
XXX
XXX

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.

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Background 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 nondiscrimina-
tory 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"

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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. 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

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seek 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

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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 (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.

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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. 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. 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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