Tasmanian Civil and Administrative Tribunal Act 2020 s 74, 75;

Community Corrections (Offender Reporting Act) 2005.

EI v A Health Club [2022] TASCAT 141;

The State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48;

Cain v The Australian Red Cross Society [2009] TASADT 3;

Lucy Orchard v Frayne Higgins [2020] TASADT 11;

Elliot v Hobart City Council [2024] TASCAT 203;

Shayne Arkley v CatholicCare Tasmania & Andrea Witt (Ref No. 7/2017) [2017] TASADT 3;

Ebber v Human Rights and Equal Opportunity Commissioner [1995] FCA 134;

Jin v The State Of South Australia [2016] FCCA 986.

Respondent: R Hart - Ross Hart Barrister & Solicitor

1. This is a review of a decision by the Anti-Discrimination Commissioner (ADC) of 2 October 2025 to dismiss the complaint made by complainant against the respondent on 5 May 2025.
2. Subsequent to the ADC's decision to dismiss the complainant's complaint the complainant sought to review the dismissal of his complaint pursuant to s 71(3) of the Anti-Discrimination Act 1998 (the ADA).
3. As the complainant made his application in writing and as it was received by the Tribunal on 7 October 2025, he was otherwise compliant with s 71(4) of the ADA which requires such an application to be made within 28 days after receipt of the statement of reasons for the dismissal of his complaint.
4. For the reasons which follow I find pursuant to s 72(1) of the ADA that the ADC made the correct decision in dismissing the complainant's complaint and it therefore lapses.

1. On 5 May 2025, the complainant made a complaint to the ADC alleging that in or around January 2025 when he was banned from the respondent's premises he was directly discriminated against (s 14 of the ADA) on the ground of his prescribed attribute being irrelevant criminal record (s 16(q) of the ADA). He also alleged that he had been victimised by the respondent contrary to s 18 of the ADA.
2. The ADC found that the evidence provided by the complainant indicated that the definition of irrelevant criminal record in s 3 of the ADA was (i) - the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises, was the aspect of this definition which applied to this complaint.
3. The relevant area of activity was the provision of facilities, goods and services s 22(c) of the ADA.
4. The ADC determined that the allegation of the complaint did not disclose victimisation.
5. The ADC dismissed the complainant's complaint pursuant to s 71(1)(a) of the ADA on the basis that it did not relate to discrimination or prohibited conduct pursuant to s 64(1)(b) of the ADA.

1. In addition to the complainant's complaint of 5 May 2025 the ADC also considered additional material provided by the complainant on 10 July 2025 amongst which was a copy of the complainant's national police certificate.
2. This certificate indicated that the complainant had charged with 5 counts of indecent assault and that the outcome of his plea of guilty to those charges was that on 9 October 2005 he was sentenced to 6 months imprisonment backdated to 14 October 2005.
3. Under cover of correspondence from the respondent's solicitors dated 8 July 2025, the ADC also received from the respondent material purportedly evidencing its focus upon being a family friendly environment along with photographs from within the brewery, Trip Advisor reviews, screenprints from the respondent's website further purportedly supporting this assertion.

1. The Tribunal's powers to review the dismissal of the complainant's complaint arise under s 72 of the ADA.
2. Section 72(1) of the ADA provides that if upon reviewing the dismissal of the complaint, the Tribunal is satisfied that the ADC made the correct decision in dismissing the complaint, the complaint lapses. Section 72(3) provides that if, on review the dismissal of the complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in dismissing the complaint, the Tribunal is to deal with the complaint as if it were an inquiry under Division 4 of the ADA.
3. It is clear that the Tribunal's powers to review the dismissal of this complaint are also governed by the Tribunal's review jurisdiction under the Tasmanian Civil & Administrative Tribunal Act 2020 (the TASCAT Act), refer ss 74(1) and 75 of the TASCAT Act.
4. It has been authoritatively stated by the Supreme Court of Tasmania that the review process pursuant to s 72 of the ADA is a comprehensive merits review. This review process is not confined to the material which was before the ADC. So much was stated by Porter J in State of Tasmania v Anti Discrimination Tribunal and other [2009] TASSC 48 at [27] - [29]. Of particular relevance at [47] of this decision, Porter J stated:

... Thus, when s 72 speaks of the Tribunal being satisfied of not that the Commissioner has made a correct decision", it means that the question is whether the decision was the correct one of the material before the Tribunal. The extent of such material is to be governed by relevance. That is interpretation which accords with the remedial nature of the legislation which better promotes its objects.

5. Such an approach is consistent with the Tribunal's review powers pursuant to s 74(1) and 75 of the TASCAT Act.

1. An initial telephone directions conference occurred before a case officer on 13 November 2025 at which time directions were given regarding the provision of any further material upon which the parties intend to rely.
2. On 28 November 2025, the complainant provided an email to the Tribunal setting out further issues he wished the Tribunal to consider.
3. On 24 December 2025, the respondent provided further materials upon which it sought to rely these being:
   • Witness statement TCS dated 22 December 2025.
   • Witness statement MLN dated 23 December 2025.
   • Witness statement PBP dated 23 December 2025.
   • Various photographs of children's play area within the facility.
   • Trip Advisor website business profile.
   • Business website venue description.
   • Tamar Valley Wine website business profile.
   • Tamar Valley Wine brochure 2025 business profile.
   • MQ - Toddler Techno business poster.
   • Gormakers App business profile.
   • Gormakers App business profile number 2.
   • Photograph shared unisex toilet.
   • Photograph shared urinals with children specific urinal at end.
   • Business parents' room and toilet entrance.
   • Business parents' room.
   • Business dining hall - employee handbook.
   • OADC training invoice - October 2024.
   • Business website - venue description.
4. At a conference before a case officer on 22 January 2026 with the parties indicating that there was nothing further they wished to provide to the Tribunal, the matter was referred to me and an initial directions conference occurred on 18 February 2026.
5. At this directions conference the nature of the review process was discussed with the parties and final directions were given regarding the provision of any further final material upon which the parties wished to rely.
6. On 18 February 2026, the complainant provided a further email commenting on some of the evidence provided by the respondents with their correspondence of 24 December 2025.
7. On 1 March 2026, the respondent indicated that as they did not desire to provide any further evidentiary material, nor did they wish to be heard, they were happy for me to make my decision on the material at that stage before the Tribunal.
8. On 2 March 2026, the complainant provided a further email with additional comments in relation to statements of evidence provided by the respondents on 24 December 2025.
9. By 3 March 2026, it had been confirmed that the parties were content for my decision to be made on the written materials before me.

1. In the investigation decision and reasons for decision document dated 2 October 2025 the ADC determined that the complainant's complaint should be dismissed because it did not disclose discrimination pursuant to s 64(1)(b) of the ADA.
2. The ADC found that paragraph (i) of the definition of irrelevant criminal record in s 3 of the ADA was the definition which applied, and that there was evidence provided by the complainant in his National Police certificate which indicated he had been charged with five counts of indecent assault with certificate indicating a sentence of imprisonment of six months backdated to 14 October 2025.
3. The ADC found that although the respondent did not dispute that the complainant had a criminal record its argument was that the complainant's criminal record is relevant to the situation in which the discrimination arises.
4. The ADC found that the respondent does have facilities for children including toilet facilities, and is a venue that caters for families with children.
5. The ADC found that the complainant's criminal record of indecent assault related to indecent assaults of children over a period from around 1972 to 1999 in this regard particularly the comments on passing sentence of Blow J (as he then was) in the State of Tasmania v EI 19 October 2005.
6. The ADC also cited a previous decision of the Tribunal in EI v A Health Club [2022] TASCAT 141 particularly [37], [40]-[46] from Senior Member Jack.
7. In its decision the ADC stated:

In the complainant before me the circumstances relating to the respondent's offending is set out in the comments of passing sentence and the Tasmanian Civil and Administrative Tribunal case cited above. > > The situation in which this alleged discrimination occurs at a hospitality venue that is in large part designed for families with children. The venue has a children's play area and activities. Within the men's urinal areas there is specific urinal designed designation for children (it has been lowered to make it accessible for younger age groups). The area where the group met meet is 5metres from the children's play area and is only accessible by walking past the children's play area. It is also close to the parents' room. In all the circumstances I accept families and children go to the venue. I accept children would be likely to access the play area and toilet facilities with or without parental supervision. I also note the business employs a person who was the victim of a sexual assault and has been triggered by the respondent's presence causing a PTSD reaction.

8. The ADC also found that on the evidence before it, the complainant's allegations of victimisation were not made out.

The statutory provisions relevant to this review

1. The relevant statutory provisions in relation to direct discrimination are set out in s 14 and 16 of the ADA as follows:

1. As was stated in Cain v The Australian Red Cross Society [2009] TASADT 3 at [403]:

(1) Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.

(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

(3) For direct discrimination to take place, it is not necessary -

(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or

(b) that the person who discriminates regards the treatment as unfavourable; or

(c) that the person who discriminates has any particular motive in discriminating.

Discrimination on the grounds of an attribute (s 16)

1. Relevantly, s 16 prescribes that a person must not discriminate against another person on the ground of any of the following attributes:

1. Irrelevant criminal record is defined in s 3 of the ADA and relevantly for the purposes of this review at (i) states:

(i) the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises;

1. The relevant area of activity is defined in s 22 of the ADA and states:

(1) Subject to the exceptions and exemptions specified in Part 5 , this Act applies to discrimination and prohibited conduct, other than inciting hatred, by or against a person engaged in, or undertaking any, activity in connection with any of the following:

...

(c) provision of facilities, goods and services;

(1) A person must not victimise another person because that other person -

(a) made, or intends to make, a complaint under this Act; or

(b) gave, or intends to give, evidence or information in connection with any proceedings under this Act; or

(c) alleged, or intends to allege, that any person has committed an act which would amount to a contravention of this Act; or

(d) refused or intends to refuse to do anything that would amount to a contravention of this Act; or

(e) has done anything in relation to any person under or by reference to this Act.

(2) Victimisation takes place if a person subjects, or threatens to subject, another person or an associate of that other person to any detriment.

1. In the decision Lucy Orchard v Frayne Higgins [2020] TASADT 11, Tribunal Member Cuthbertson SC (as she then was), undertook a detailed review of the law relating to victimisation pursuant to the Act.
2. At [277] - [287] of Lucy Orchard v Frayne Higgins Tribunal Member Cuthbertson clearly stated the law as follows:

In order to establish that victimisation has occurred, a complainant must show that any actual or threatened detriment experienced by them, or an associate of theirs, was because of one or more of the matters referred to in s.18(1) of the Act. These matters are commonly referred to as "protected conduct". If such victimisation is as a result of some other matter, it is not prohibited by s.18 of the Act: von Stalheim v Anti-Discrimination Tribunal and Attorney-General for the State of Tasmania [2007] TASSC 9, Evans J at [15]. > > What is required to establish that there is a sufficient causal link between the protected conduct set out in ss.18(1)(a)-(e) of the Act and the detriment that a person says they have been subjected to (or threatened to be subjected to) has been considered in the context of like legislation in other jurisdictions but has not been the subject of appellate consideration in Tasmania. To establish the relevant causal connection, it must first be shown that the person who is alleged to have engaged in the victimisation knows of the protected conduct: Vidler v Queensland and Williams [2010] QCAT 579 at [10]. A causal connection will be established where the conduct complained of was a real, genuine or true reason for subjecting a person to a detriment: see discussion in Chi v Technical and Further Education Commission (No. 3) [2009] NSWADT 271 at [65]- [72]. Such an approach is consistent with the causal link required to be established in respect of allegations of direct discrimination under s.14 of the Act. > > The ordinary civil standard of proof applies in respect of the proof of victimisation claims. Proving a causal link can be difficult and in the absence of direct evidence of that link, a complainant often has to rely on the drawing of inferences. > > The question of whether a person has been subjected to or threatened to be subjected to a detriment is to be determined objectively and not subjectively. It is not sufficient for a complainant to allege they have suffered a consequence they describe as a detriment: "the loss, damage or injury suffered by a complainant must be something which a reasonable person would consider to be a detriment": Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]. > > In this case, the protected conduct relied upon by the complainant is pursuant to s.18(1)(c), that is the complainant has alleged, or intends to allege, that any person has committed an act that would amount to a contravention of this Act. This provision has not been given particular attention in this jurisdiction. > > A similar provision under s.50(1) of the Anti-Discrimination Act 1977 (NSW) provides that it is unlawful for a person to subject another person to any detriment in any circumstances on the ground that the person victimised has alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act. This provision was considered by the NSW Court of Appeal in Chi v Technical and Further Education Commission [2012] NSWCA 421. Mr Chi was a student at TAFE who made various complaints concerning his treatment and the teaching he received. He made a number of complaints regarding those issues by letter including complaining of receiving unfair marks, suffering a long period of discrimination and harassment from his teacher and in turn his head teacher. At first, the Appeal Panel held that Mr Chi was obliged to prove that he had alleged or in effect intended to allege a breach of the Act and that his letter fell short of doing so. Mr Chi appealed. The Court of Appeal decision focused on the extent to which the complaint made by Mr Chi identified discrimination on the basis of race. In a combined assessment of the language used by Mr Chi in his complaint and the possibility of the conduct alleged amounting to discrimination on the basis of race, the Court of Appeal concluded that the complaints made did not allege acts of the kind referred to in s.50(1)(c) of the Act. > > Mr Chi sought special leave in the High Court. That application for special leave was refused on the basis that it did not raise any question of principle and turns substantially on what facts were communicated by the applicant in his complaint. The High Court determined that the email correspondence relied upon did not "overcome the absence of an allegation of racial discrimination": Chi v Technical Further Education Commission [2013] HCATrans 146. > > In Finch v Heat Group Pty Ltd [2010] VSCA 256, the Victorian Court of Appeal considered a claim made under s.97 of the now repealed Equal Opportunity Act 1995 (Vic) which provided as follows: > > 97(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person - > > .... > > (h) has alleged that any person has contravened a provision of Part 3, 5 and 6 unless the allegation is false and was not made in good faith...or because the person believes that the other person...has done or intends to do any of those things. > > (2) It is sufficient for sub-section (1)(f) if the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened." > > Ms Finch had complained about her treatment by her employers in an email, including complaining that she was questioned excessively about her maternity leave and how long she expected to take off time from work. She further stated that she felt she was being bullied and intimidated leading to stress and anxiety. She referenced that being pregnant was the happiest time of her life and a reason to be joyous - "I just wish to be treated equally, as are others and to continue to perform my role, without being caused undue stress...". The Tribunal had held that there was no evidence that the complainant had alleged or had intended to allege any contravention of the Act in her correspondence with her employer. It was argued on appeal that a fair reading of the email was that it contained allegations of contraventions of the Act or statements that show an intention to make such allegations. > > Despite the terms of s.97(2), the Court of Appeal endorsed the reasoning of the Victorian Civil and Administrative Tribunal stating at [10] that it was > > "faintly arguable that, on a fair reading, this email contains allegations of acts or omissions constituting contraventions of the Act. That is to say, it could perhaps be argued that Ms Finch was alleging that she had been discriminated against by reason of her pregnancy. On balance however, we do not think that is a reasonable construction of the email as a whole. [sic] > > The Court of Appeal did not accept that the Tribunal erred in law by holding that it was necessary that any allegation of contravention identified the attribute relied upon: at [18].

1. The complainant appears to contend:
   1. That his conviction is an irrelevant criminal record, as a conviction for indecent assault is not a conviction for a sexual assault and he was not included on the "unlawful sex register" and
   2. His criminal behaviour was assumed to be with sexual gratification intent and that his Honour Blow J (as he then was) in his comments on passing sentence is quoted as evidence to support this assumption, and that there is no direct evidence to support such an assumption.
2. The complainants first contention was dealt with by Senior Member Jack in EI v A Health Club [2022] TASCAT 141.
3. Senior Member Jack's comments at [43] are of direct relevance to the complainant's contention and state:

Despite these submissions, I am not able to conclude that the circumstances surrounding the complainant's offending did not involve some sexual element involving school-aged boys. The crime of indecent assault, at the time of the complainant's conviction, and at the present time, is classified as a Sexual Crime under the Criminal Code Act 1924. The crime of indecent assault is also a Class 2 reportable offence under the Community Protection (Offender Reporting) Act 2005, conviction for which requires the sentencing court to make an order placing the name of the person who has committed the reportable offence on the Community Protection Offender Register, unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future. However, the Community Protection (Offender Reporting) Act 2005 did not commence until 1 March 2006[3], and was not legislation in force at the time the complainant was sentenced in the Supreme Court. I also have regard to the circumstances of the offences as described in the Comments on Passing Sentence of Blow J (as he then was).

4. These comments are equally applicable to the current review.
5. With regard to the complainant's second contention the following is from the comments on passing sentence of Blow J in relation to the complainant as detailed by Senior Member Jack at [5] of EI v A Health Club:

[The complainant] has been found guilty by a jury on five counts of indecent assault. He is a psychologist. He has worked as a school guidance officer in a number of schools over many years. Each of these charges relates to an indecent assault on a schoolboy during a counselling or therapy session in the course of that work... > > The oldest charge relates to an incident alleged to have occurred in about 1970. Having regard to the [child's] date of birth, I think it is more likely to have occurred in 1972. The boy in question was in grade 6 at the time. He had been sent to [the complainant] because of a speech difficulty. He saw [the complainant] a number of times. On these occasions [the complainant] normally greeted him by hugging him. At the last of these sessions, [the complainant] placed his hand on the child's leg and rubbed the child's groin. > > The next of these offences occurred during the final school term of 1993. The victim was in grade 8. He was sent to [the complainant] because of behavioural problems. He saw [the complainant] four times. [The complainant] sat in a position where he was close enough to touch the boy. During the second session, he indecently assaulted the boy by placing his hand on the boy's upper leg, and moving it higher up the inside of the boy's thigh to a position close to his groin. > > The next of these assaults occurred in late 1994. The victim was a boy in grade 8. He was sent to [the complainant] for counselling after another boy committed suicide. He saw [the complainant] a number of times. During one counselling session, they were sitting close to one another, when [the complainant] placed his hand on the boy's inner thigh, close to his testicles. The boy pushed his hand away. > > The remaining two charges relate to a boy whom [the complainant] saw at a primary school on numerous occasions in 1999. The boy was in grade 5 that year. He had been referred to [the complainant] because of learning difficulties and angry outbursts. One of the charges alleges that [the complainant] hugged the boy and kissed him on the head. The complainant gave evidence to the effect that this happened routinely, but I must treat the charge as relating to a single incident. I will treat it as relating to the first such incident. The other charge relates to [the complainant's] final session with that boy. [The complainant] was using a relaxation therapy technique which involved getting the boy to lie on the floor and relax. There is nothing in the evidence before me to suggest that such a technique was unprofessional or inappropriate. However, on the occasion in question [the complainant] touched the child on the stomach, inserted his hand between the child's underpants and his trousers, and touched him in the area of the penis. This complainant gave evidence that [the complainant] had previously asked him, "How big's your dick?", asked him whether he had wet dreams, asked him whether he had pubic hair, often told him that he loved him, told him that he was a beautiful person, and at nearly every session rubbed his chest and stomach. > > .... [the complainant's] lack of prior convictions, his past community service, and the devastating effect of convictions for indecent assault are all factors which weigh in favour of a lighter penalty than would otherwise be appropriate. > > However, these crimes involved very serious breaches of trust over a very long period. It is true that [the complainant's] physical acts were far less indecent than many acts that the court often hear about. However, each of these charges related to a vulnerable boy with a serious problem. [The complainant] was in a unique position of trust because of his position as a guidance officer. As such, he routinely used his professional skills to gain the trust of students referred to him. That is something that guidance officers need to do. His conduct was likely to exacerbate and compound each boy's problems, rather than alleviating them. He could and should have controlled himself. If, as seems likely, he tended to find boys so sexually attractive that he had difficulty controlling himself, he should have chosen a different area of work involving less temptation. The Education Department investigated his conduct in relation to a number of boys in the mid-1990s, as a result of which he was twice directed in writing not to touch any students, but he committed the last two of these crimes in spite of the investigation having occurred and the directives having been given. Because of all these circumstances, I think that a sentence of imprisonment is the only appropriate penalty.

6. As a consequence of these matters, the complainant's contentions are misconceived particularly as there was clear evidence that the respondent's premises were a hospitality venue in large part designed for families with children.
7. There was clear evidence that the venue had a children's play area and activities and that within the men's urinal area there was a specific urinal designed for children (it being lowered to make it accessible for younger aged groups.
8. The area where the group met, that involving the complainant, was 5 metres from the children's play area and was only accessible by walking past the children's play area. It was also close to the parents' room.
9. I agree with the ADC that in all of the circumstances families with children go to the venue and that children will be likely to access the play area and toilet facilities with or without parental supervision.
10. The ADC rejected the complainant's complaint against the respondent pursuant to s 64(1)(b) of the ADA.
11. As was stated by Deputy President Grueber in Elliot v Hobart City Council [2024] TASCAT 203 at [26]:

The phrase "does not relate to discrimination", s 64(1)(b) requires consideration of whether the matters complained of might amount to discrimination under the Act. The focus of s 64(1)(b) is on the complainant's case. It involves consideration of whether the complaint displays an insufficient connection to discrimination rather than a determination of whether discrimination has or has not occurred. It cannot mean a final determination that the conduct complained of amounts in fact and in law to discrimination. That is a matter for the Tribunal on inquiry. The functions of the Commissioner are listed in s 6 of the Act. They include to investigate and seek to resolve complaints, but not to conduct an inquiry.

12. It is incumbent upon a complainant to prove a link or nexus between the respondent's alleged conduct and the claimed attribute, in this case an irrelevant criminal record.
13. So much was clearly stated in Chairperson Webster's decision (as he then was) in Shayne Arkley v CatholicCare Tas and Andrea Witt [2017] TASADT 3 referencing the Federal Court decision in Ebber v Human Rights and Equal Opportunity Commissioner [1995] FCA 134; [1995] 129 ALR 455 at [468], and the Federal Circuit Court of Australia decision in Jin v South Australia [2016] FCCA 986 at [56]. At [45] of Arkley he stated:

This is, Mr Arkley, in order to defeat an application for summary dismissal, needs to have sufficient material by way of evidence to establish there is a sufficient nexus or link between the respondents' behaviour and Mr Arkley's attribute, namely age. Although Mr Arkley holds the belief there is a nexus between his treatment at the hands of the respondents and his age, there is no evidence which directly supports that link or from which that nexus can be inferred. Accordingly, the ADC was correct in dismissing this complaint.

14. Although it may be that the respondent's business facility fits within the definition of the provision of facilities goods and services pursuant to s 22(c) of the ADA, there is no evidence of a nexus or link between the decision of the respondent to ban the complainant from the business facility on the grounds of a prescribed attribute as the complainant has a relevant criminal record not an irrelevant criminal record.
15. On the evidence before both the ADC and the Tribunal I am also satisfied that none of the evidence disclosed a possible breach of s 18 of the ADA. The ADC was correct in finding that there was no evidence of victimisation by the respondent against the complainant.
16. Having carefully considered all of the evidence before the ADC and provided by the parties subsequent to the review coming before the Tribunal, I am satisfied that the complainant does have a relevant criminal record and that it was on this basis that he was banned from the respondent's premises. He was not banned because of the claimed attribute of an irrelevant criminal record. The details of the complainant's relevant criminal record are set out in his National Police check which he provided to the ADC. This record clearly indicated he was both convicted and sentenced for indecent assault of young people, being of sufficient gravity for him to be sentenced in the Supreme Court to a period of actual imprisonment.
17. For all of these reasons I am satisfied that the ADC made the correct decision to dismiss the complainant's complaint

1. Pursuant to s 72(1) of the ADA I am satisfied that the ADC made the correct decision to dismiss the complainants compliant and it lapses.

1. Pursuant to s 72(1) of the ADA, the complainant's compliant lapses.