The ADA sets forth three means of enforcing its provisions. Each is different and the consumer should choose the method that best suits his or her situation. There are some differences in enforcement against private entities and those are described below.
A state or local government with 50 or more employees is required to have an internal complaint process under the ADA. This allows for a less adversarial approach to dispute resolution. Consumers who believe their rights have been violated may try this less formal approach for prompt resolution of problems. There is no obligation for a private entity to have an internal complaint process. However, it is recommended strongly as a way to provide for a less expensive and more prompt response.
The U.S. Department of Justice investigates administrative complaints against private entities such as adventure outfitters, health and fitness clubs, and nonprofits. The recreation consumer who wins a complaint to DOJ will benefit from injunctive relief (an order from DOJ to the provider which requires it to change policy, provide accommodations, make programs inclusive, etc.) and the losing defendant pays the consumer's legal fees and costs.
Recognizing it cannot handle all complaints, DOJ established "designated agencies" for complaints in certain areas. For example, the U.S. Department of Interior National Park Service investigates administrative complaints against state or local government providers of recreation and sport opportunities, and the U.S. Department of Education investigates complaints against educational agencies such as school districts and colleges. Designated agencies can order a unit of state or local government to provide injunctive relief as well as the payment of legal fees and costs.
Administrative complaints are a powerful tool and should not be overlooked when considering how to enforce the ADA. Court dockets are clogged and going to court is very time consuming. Administrative complaints can be an effective and efficient alternative to court.
But, the absolute right to enforce ADA provisions in federal district court is powerful. The consumer may go directly to court and claim that a private entity or a unit of state or local government has violated his or her rights under the ADA. A recreation consumer is not required to exhaust administrative remedies before going to court. In court, the consumer wins injunctive relief and payment of legal fees and costs.
In addition, if the court complaint is against a private entity and pattern or practice of discrimination is found, the Court may award punitive damages. For example, if the CEO of a national fitness chain writes a memo to regional managers, ordering them not to pay for sign language interpreters, that is a pattern or practice of discrimination. Punitive damages may not exceed $50,000 for the first offense and $100,000 for the second offense. These funds are to be paid to the U.S. Department of Justice to enhance its enforcement effort.