PRESS Peggy A. Lautenschlager RELEASE United States Attorney Western District of Wisconsin (608)264-5158 For Immediate Release Contact Person June 30, 1997 David E. Jones Assistant U.S. Attorney SUIT FILED AGAINST THREE BELOIT CHILD CARE CENTERS FOR REFUSAL TO ADMIT HIV-POSITIVE CHILD Madison, Wisconsin - Peggy A. Lautenschlager, United States Attorney for the Western District of Wisconsin, announced today that the United States has filed a civil suit against three child care centers in Beloit, Wisconsin, charging that the centers refused to admit a four-year-old boy because he had tested positive for the Human Immunodeficiency Virus ("HIV").This is the first action brought by the United States Justice Department regarding the right to child care under title III of the Americans with Disabilities Act of 1990 ("ADA"). The action was filed in the United States District Court for the Western District of Wisconsin against Kiddie Ranch Day Care and Learning Center, Inc.; Happy Time Daycare Center; and ABC Playhouse Child Care, Inc.; all of Beloit, Wisconsin. The complaint alleges that the child's guardian sought to place the child in each of the three child care centers in 1996 and that each center denied the child admission because he was HIV-positive. Although she had no obligation to do so, the child's guardian voluntarily provided information to the three child care centers about the child's HIV status. "This lawsuit shows that the ADA applies to all public accommodations, large and small, and discrimination by none of these businesses will be tolerated," said United States Attorney Peggy A. Lautenschlager. "Discrimination against a young child with disabilities is inexcusable, and we will seek out and find those businesses that refuse to comply with the ADA. Businesses found liable will be subjected to paying damages to the children and parents they have wronged as well as a civil penalty to the United States." (MORE) 01-07709 This action is being pursued in coordination with the Madison, Wisconsin, law firm of Murphy & Desmond, which is representing the child and his guardian in a suit brought in Rock County Circuit Court under a state statute with provisions similar to the federal ADA. There has been no known case of HIV transmission in a school or child care center setting. Child care employees commonly use with all children a set of procedures known as Universal Precautions, which involve such things as wearing latex gloves when assisting a child with toileting, because any child could have an undiagnosed contagious disease. When Universal Precautions are followed, the Centers for Disease Control in Atlanta, Georgia, reports that the extremely low risk of HIV transmission in a school or child care setting can be reduced even further. Title III prohibits discrimination on the basis of disability in a place of "public accommodation," which the ADA defines as including a wide range of businesses, such as day care centers, restaurants, movie theaters, hotels, shopping centers, bakeries, zoos, and golf courses. The complaint filed today seeks declaratory and injunctive relief, including an order requiring the three child care centers to cease any discriminatory practices and to comply with title III of the ADA. The Department also seeks civil penalties and compensatory damages for the child and for the child's guardian. Responsibility for this case has been assigned to Assistant United States Attorney David E. Jones. The Department has established an ADA Home Page and hotline that provide information about the ADA and the Department's ADA responsibilities. The Home Page is located on the World Wide Web at http://www.usdoj.gov/crt/ ada/adahom1.htm and the hotline can be accessed by calling (800) 514-0301 (voice) and (800) 514-0383 (TDD). #### 01-07710 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) ABC NURSERY, INC. 2255 Prairie ) Avenue, Beloit, WI, ) ) Defendant. ) ) COMPLAINT NOW COMES the plaintiff, United States of America, by and through its attorneys, Peggy A. Lautenschlager, United States Attorney for the Western District of Wisconsin, and David E. Jones, Assistant United States Attorney for that District, and respectfully states as follows: 1. This action is brought by the United States pursuant to title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12188 (b)(1)(B), against defendant ABC NURSERY. 2. This Court has jurisdiction by virtue of 28 U.S.C.  1331 & 1345 and 42 U.S.C.  12188(b). 3. Venue is proper in this judicial district. The acts of discrimination by Defendant alleged herein occurred in or around Beloit, Wisconsin, which lies within this judicial district. Accordingly, this Court has venue over this matter by virtue of 28 U.S.C.  1391(b). 01-07711 4. Defendant ABC Nursery is a public accommodation that affects commerce by providing daycare or nursery services for young children in and around Beloit, Wisconsin. Defendant is thus subject to title III of the ADA. 42 U.S.C.  12181(7)(J) & (K) and 12182; 28 C.F.R.  36.104. 5. L.W., born on December 27, 1992, is an individual who tested positive for the Human Immunodeficiency Virus (HIV), the virus believed to be the causative agent of the Acquired Immune Deficiency Syndrome ("AIDS"). L.W., therefore, is an individual with a disability within the meaning of the ADA, 42 U.S.C.  12102(2); 28 C.F.R.  36.104. 6. Rosetta McNuckle is L.W.'s aunt and legal guardian. At all times relevant to this complaint, L.W. has lived with Ms. McNuckle and has relied upon her for material and emotional support. Her relationship with L.W. constitutes an "association" as that term is used in 42 U.S.C.  12182(b)(1)(E). 7. In March 1996, Ms. McNuckle called ABC Nursery and was told that there were openings for children L.W.'s age. Ms. McNuckle delivered an application form to ABC Nursery and advised an assistant there that L.W. was HIV positive. Ms. McNuckle understood that L.W. would be accepted, and an assistant provided Ms. McNuckle with a list of supplies that L.W. would need at ABC Nursery. 8. Upon returning home, Ms. McNuckle received a call from someone she believed to be the manager of ABC Nursery. This person advised Ms. McNuckle that L.W. would not be accepted at ABC Nursery. 2 01-07712 9. On information and belief, ABC Nursery's refusal to accept L.W. was due to L.W.'s HIV-positive status. 10. Defendant's actions caused L.W. and Ms. McNuckle to suffer extreme humiliation, emotional distress, frustration, and anxiety. As a result of Defendant's actions, Ms. McNuckle was required to pay for sitters to watch L.W. rather than receiving public assistance for placing him in a daycare or nursery facility. COUNT I 11. Plaintiff realleges all of the allegations of this complaint as though fully set forth herein. 12. By denying L.W. placement in a daycare or nursery facility because of his HIV-positive status, Defendant has unlawfully discriminated against L.W. and has thereby violated title III of the ADA in the following ways: A. On information and belief, defendant has denied L.W., and perhaps other individuals who have tested positive for HIV, the opportunity to benefit from the services of a place of public accommodation, in violation of 42 U.S.C.  12182(b)(1)(A)(I) and 28 C.F.R.  36.202(a); B. On information and belief, defendant has imposed eligibility criteria, for the privilege or advantage of receiving day care or nursery services, that screen out the class of individuals who have tested positive for HIV, in violation of 42 U.S.C.  12182(b)(2)(A)(I) and 28 C.F.R.  36.301(a); and C. On information and belief, defendant has failed to make reasonable 3 01-07713 modifications in policies, practices, or procedures where such odifications are necessary to afford equal advantages or privileges to the class of persons who have tested positive for HIV, in violation of 42 U.S.C.  12182(b)(2)(A)(ii) and 28 C.F.R.  36.302(a). 13. Defendant's practices as described herein constitute discrimination that raises an issue of general public importance within the meaning of 42 U.S.C.  12188(b)(1)(B)(ii) and 28 C.F.R.  36.503(b). COUNT 2 14. Plaintiff realleges all of the allegations of this complaint as though fully set forth herein. 15. On information and belief, Defendant has denied L.W. placement in a daycare or nursery facility because of his HIV-positive status and has thereby unlawfully discriminated against Ms. McNuckle through her association with L.W. by denying Ms. McNuckle the opportunity to benefit from the services of a place of public accommodation in violation of 42 U.S.C.  12182(b)(1)(E) and 28 C.F.R.  36.205. 16. Defendant's practices as described herein constitute discrimination that raises an issue of general public importance within the meaning of 42 U.S.C.  12188(b)(1)(B)(ii) and 28 C.F.R.  36.503(b). 4 01-07714 PRAYER FOR RELIEF WHEREFORE, the United States prays that the Court: A. Declare that the practices of the Defendant, as set forth above, discriminated against persons who have tested positive for HIV, in violation of title III of the Americans with Disabilities Act, 42 U.S.C.  12181-12189, and the implementing regulation at 28 C.F.R. part 36; B. Enjoin the Defendant, its agents and employees, and all other persons in active concert or participation with it, from refusing to provide services to persons who have tested positive for HIV; C. Award monetary damages to L.W. and Ms. McNuckle to compensate them for injuries resulting from such discrimination; D. Assess a civil penalty against the Defendant to vindicate the public interest; and E. Order such other appropriate relief as the interests of justice may require. 5 01-07715 Dated this day of , 1997. Respectfully Submitted, UNITED STATES OF AMERICA JANET RENO Attorney General ISABELLE KATZ PINZLER PEGGY A. LAUTENSCHLAGER Acting Assistant Attorney General United States Attorney Civil Rights Division Western District of Wisconsin By: JOHN L. WODATCH DAVID E. JONES Chief Assistant United States Attorney Disability Rights Section 660 W. Washington Avenue Civil Rights Division Madison, Wisconsin 53701 (608) 264-5158 6 01-07716