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FOIA Number: 2007-0143-F
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administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Counsel Office
Series/Staff Member:
David Fein
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10179
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Folder Title:
Disability Discrimination
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108
4
3
3
THE WASHINGTON POST
THE FEDERA)
IN BRIEF
GO
Bill Targets White House Job Rules
De
House Republicans want the White House to be bound by the same
employment and civil rights laws that businesses are.
Rep. John L. Mica (R-Fla.) introduced a bill Tuesday that would
By :
cancel exemptions the White House and Executive Office of the Presi-
Washin:
dent have from such laws as the Americans with Disabilities Act, the
Family and Medical Leave Act, the Age Discrimination in Employ-
A witness C.
ment Act and the Occupational Safety and Health Act.
black hood an
The bill also seeks to assert more congressional control over exec-
tronically alte
utive office fini ices by requiring appointment of a chief financial offi-
a partition, cc
cer.
committee ye
"This Congre 3 really took an historic step during its first 100 days
agency had us
when it made its >If live under laws that had been imposed on the pri-
lobby against
vate sector," Mia said during a news conference. "Now, we feel, it's
"The bottom line is
legislation.
time to close the loop by putting the White House under those same
Mr. X testil
laws. I call this ending the last plantation."
that federal
Government k
Under the bill, White House employees who prove violations of
Committee, W
equal employment opportunity laws would be eligible for punitive
employees should be
bill that would
damages, just like their private counterparts, Mica said.
cy employees f.
Mica said he proposed the bill partly in response to congressional
administering
ed funds to be
hearings on the politically sensitive firings at the White House travel
opposition to !
office in May 1993.
programs passed by
Congress.
Those hearings revealed the White House's financial management
Committee
needs to be tightened, he said.
Congress-not
the panel's Re
The firings caused an uproar as Republican critics accused the
campaigning with
grandstanding.
White House of fabricating charges of incompetence against the em-
"Today's hea
ployees 90 they could be replaced by President Clinton's allies.
taxpayer dollars on
than a publicity
"We observed that the White House financial operations lacked
Collins (D-III) S
both accountability and structure," he said. "It is inconceivable that a
behalf of their own
new low," Rep
[chief financial officer] would have permitted the unorthodox account-
(D-Calif.) said.
ing practices that prevailed in the travel office, and which the White
special agency
The GOP pu
House used as justification for firing those longtime employees."
tivities comes is
interests."
ter months of to
Clinton Removes War Zone Order on Vietnam
with the White
- Rep. William F. Clinger Jr. (R-Pa.)
and environmer
Three decades after it was signed, the executive order declaring
panels also are
Vietnam a war zone was revoked by Clinton this week.
Cabinet membe
The action, which Clinton signed Tuesday, takes effect June 30 and
el rules, and t
applies to Vietnam and the waters off its coast.
requested tha
Clinton's decision to cancel the executive order ends one more lin-
them with doc
gering link to the war, which ended in 1975. The United States nor-
subjects.
malized diplomatic relations with Vietnam last year.
At yesterday
The 1965 order, signed by President Lyndon B. Johnson, made mil-
tee Chairman V
itary personnel serving in Vietnam eligible for tax exempt hostile-fire
(R-Pa.) said the
pay.
that identity
It was kept in effect after the war to preserve benefits for POW-
ger added that
MIA
families."
said
2
White
House
David,
I'm not Sure if this is what
you wanted, but pls let me know.
Michael
(legalintern)
]
May 15, 1996
MEMORANDUM FOR DAVID FEIN AND TREY SCHROEDER
FROM:
MICHAEL YANG, Legal Intern
SUBJECT:
DISABILITY DISCRIMINATION
You have asked me to determine whether the ADA applies to
White House hiring; specifically, what impact it has on
applicants with mental illnesses or records of illegal drug use.
Short Answer: Yes, it does. Current illegal drug users are not
protected. In all other cases, it is difficult to predict the
impact of the statute because of the complexity of the statute
and its frequent use of balancing and multi-factor tests. The
easiest way to avoid liability is to minimize or eliminate the
impact the mental illness and/or drug use has on the hiring
decision, except in cases where it is clear that the disability
renders the individual unqualified.
FULL ANALYSIS
I. Does the ADA apply to EOP?
The ADA does not technically apply to the Executive Office
of the President, but the Rehabilitation Act does.¹ The
Rehabilitation Act prohibits discrimination by any federal
executive agency or program which receives federal funds. In its
application to employment discrimination, however, the Act is
identical to the ADA. 2 The Executive Office of the President
qualifies as an executive agency. 3 Thus, any EOP hiring is
subject to the Rehabilitation Act's ban on discrimination against
"qualified individual [s] with handicap [s] 114 A handicap is any
physical or mental impairment which substantially limits one or
1
While the ADA on its face applies to any employer who
employs more than 15 employees, the United States government has
been specifically exempted from this definition. 29 C.F.R.
1630.2 (e) (2) (i).
2
29 U.S.C. 794 (a) provides that in the area of
employment discrimination, the standards to be applied are the
same as those required by the ADA.
3
3 C.F.R. 102 et. seq., which I have attached to this
memo. Specifically, WHO, OVP, OMB, OPD, NSC, OSTP, USTR, CEQ,
CEA, the Office of Administration, the Office of Federal
Procurement Policy, and any committee, board, commission, or
similar group established in the EOP.
4
29 C.F.R. 794; 3 C.F.R. 102.140.
more major life activities. Thus, in determining whether an
individual is covered you must consider 1) does he or she have an
impairment?; 2) does that impairment substantially limit a major
life activity?' and 3) is that person qualified?
II. Does drug use qualify as an impairment?
A. Current drug use: No. The Rehabilitation Act explicitly
states that an individual "who is currently engaging in the
illegal use of drugs" does not qualify as an individual with a
disability.⁶ The implementing regulations for EOP, however,
state that "drug addiction" qualifies as a physical or mental
impairment for the purposes of the Act.⁷ Thus, I believe the
following statements are true:
1) An individual who is currently using any illegal
substance is not covered by the Act.
2) An individual who is addicted to an illegal substance but
is not using it is covered. (For example, a heroin addict using
methadone, a legal substitute, would be potentially covered).
3) An individual who is addicted to a legal substance is
covered.
B. History of drug use: Yes. The Act specifically provides
that an individual who has successfully completed or is currently
participating in a rehabilitation program who is not currently
using the illegal substance is covered.8
II. Do mental illnesses qualify as impairments?
Yes. The definition of a handicap is a "physical or mental
impairment which substantially limits one or more major life
activities. Any mental illness qualifies as an impairment,
with the exception of sexual behavior disorders, compulsive
gambling, kleptomania, pyromania, or any psychoactive use
5
29 U.S. 706. NOTE: The definition also includes having
a record of such an impairment or being regarded as having such
an impairment.
6
29 U.S.C. 706 (8) (C) (i)
7
3 C.F.R. 102.103. It is a general principle of
administrative law that implementing regulations may not
contradict their authorizing statutes, but every effort is made
by the courts to devise interpretations which maintain
consistency.
8
29 U.S.C. 706 (8) (C) (ii)
9
29 U.S.C. 706 (8) (A)
disorders stemming from illegal drug use. 10
III. Does the impairment substantially limit a major life
activity?
The next test is whether the impairment in question is
serious enough to warrant protection. Although virtually any
health condition qualifies as an impairment, only those which
substantially limit a major life activity qualify an individual
for protection. Major life activities include caring for one's
self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 11 A substantial
limitation is one which prevents or significantly restricts the
condition, manner, or duration the individual's ability to
perform the activity.¹² Thus, any mental illness or (legal) drug
addiction which meets the requirements of both of these
definitions qualifies an individual for protection. Likewise,
any long-term effects of prior illegal drug use which met these
requirements would qualify an individual for protection.
IV. Is the individual "qualified"?
Even if an individual has an impairment which substantially
limits one of his or her major life activities, he or she is not
necessarily covered by the Act. The Act only requires that
employers not discriminate against "qualified" handicapped
individuals. An individual is qualified if he or she can perform
the essential functions of the job with or without "reasonable
accommodation. 113
What constitutes a "reasonable accommodation" is defined on
a case-by-case basis. Accommodations to be considered include
making existing facilities usable and accessible, job
restructuring, part-time or modified work schedules, or providing
devices or materials to help overcome the disability's impact on
the individual's work. Factors to be considered in determining
the reasonableness of an accommodation include its nature and
cost and the size and financial resources of the employer.
While the federal government is certainly a large employer
with considerable financial resources, the sensitive and high-
stress nature of many EOP jobs can probably make for a strong
argument that an individual may not be qualified for a particular
job. Predicting whether a court will find an individual
qualified in advance, however, is obviously difficult.
10
29 U.S.C. 706 (8) (E). Sexual behavior disorders include
transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, and gender identity disorders.
11
3 C.F.R. 102.103; 29 C.F.R. 1630.2.
12
29 C.F.R. 1630.2 (j).
13
42 U.S.C. 12111 (8).
V. Summary of coverage requirements
The Rehabilitation Act applies to the EOP, but not to every
individual. When considering whether a rejected applicant might
be able to bring a lawsuit, the three-part test applies: 1)
impairment, 2) substantially limiting, 3) qualified.
VI. If an individual is covered, what is prohibited by the Act?
Assuming an individual is covered, he or she may not be
discriminated against. This means any of the following practices
are prohibited: 14
1) limiting, segregating, or classifying the applicant in a way
that lowers his or her chances of being hired
2) using standards, criteria or methods of administration which
"have the effect of discrimination" on the basis of the
individual's disability, including qualifications or criteria
which screen out such individuals
3) refusing to make reasonable accommodations for an otherwise
qualified applicant
4) requiring applicants with disability to submit to a medical
examination when non-disabled applicants are not also required to
submit.
In short, if an individual qualifies for protection, the Act
seeks to prevent his or her disability from being a factor in the
hiring process. Any practices which make the disability a major
factor are likely to generate liability. Obviously, refusing to
hire the person because of the disability also generates
liability.
VI. Conclusion
Mental illnesses and/or drug use are almost inevitably
likely to reflect poorly on an individual's application. Denying
an individual a position because of the disability, however,
often may not generate liability because the disabilities render
the individual unqualified. The nature of the position thus
becomes a crucial factor.
Also, in a highly political environment, it is difficult to
prove that the disability played a role in the rejection. Many
other factors, such as connections, past experience, etc., can be
cited as a defense.
Thus, applying the Act to EOP hiring is difficult.
Liability is best avoided by downplaying the role the mental
illness or history of drug use plays in the hiring decision, to
the extent practicable.
14
42 U.S.C. 12112 (b) (3)
MEMORANDUM TO DAVID FEIN AND TREY SCHROEDER
FROM:
MICHAEL YANG, Legal Intern
RE:
DISABILITY DISCRIMINATION
The attached article appeared in the Washington Post
yesterday (May 16). It does not affect my previous memo
concerning the applicability of anti-discrimination laws to the
EOP.
As best I can determine without contacting anyone on the
Hill, this bill would repeal EOP's exemption from punitive
damages. Under 28 U.S.C. 2674, the Federal government cannot be
held liable for punitive damages. Rep. Mica's bill only appears
to strip EOP of this exemption. If the Post article is accurate,
this bill will not apply to the rest of the executive branch.
If you would like more information, please let me know.
$ 102.101
Title 3-The President
PART 102-ENFORCEMENT OF NONDISCRIMINATION ON THE
board members. I
BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES
arises within the
CONDUCTED BY THE EXECUTIVE OFFICE OF THE PRESIDENT
be the Director of
"Assistant Attor
Sec.
Rights Division, U
102.101 Purpose.
102.102 Application.
'Auxiliary aids
102.103 Definitions.
paired sensory, m
102.104-102.109 [Reserved]
participate in, and
102.110 Self-evaluation.
by the agency. For
102.111 Notice.
102.112-102.129 [Reserved]
vision include real
102.130 General prohibitions against discrimination.
lar services and d
102.131-102.139 [Reserved]
hearing include te
102.140 Employment.
hearing aids, teled
102.141-102.148 [Reserved]
102.149 Program accessibility: Discrimination prohibited.
preters, notetakers
102.150 Program accessibility: Existing facilities.
vices.
102.151 Program accessibility: New construction and alterations.
"Complete comp
102.152-102.159 [Reserved]
plainant's name an
102.160 Communications.
tory action in suffi
102.181-102.169 [Reserved]
102.170 Compliance procedures.
of the alleged viola
102.171-102.999 [Reserved]
ant or by someone
Authority: 29 U.S.C. 794.
filed on behalf of
name, if possible) t
Source: The provisions of this part 102 appear at 53 FR 25879, July 8, 1988, and 55 FR 46037,
November 1. 1990, unless otherwise noted.
"Facility" means
roads, walks, parkir
$ 102.101 Purpose.
or personal propert
The purpose of this regulation is to effectuate section 119 of the Rehabili-
"Historic preserv
tation, Comprehensive Services, and Developmental Disabilities Amend-
agency that have pi
ments of 1978, which amended section 504 of the Rehabilitation Act of
"Historic properti
1973 to prohibit discrimination on the basis of handicap in programs or ac-
listing in the Natio
tivities conducted by Executive agencies or the United States Postal Serv-
as historic under 8
body.
ice.
"Individual with
$ 102.102 Application.
mental impairment
This regulation (§§ 102.101-102.170) applies to all programs or activities
ties, has a record 0
impairment.
conducted by the agency, except for programs or activities conducted out-
As used in this d
side the United States that do not involve individuals with handicaps in
(1) "Physical or n
the United States.
(i) Any physiolo
§ 102.103 Definitions.
anatomical loss affe
rological; musculo
For purposes of this regulation, the term-
"Agency" means, for purposes of this regulation only, the following enti-
speech organs; card
ties in the Executive Office of the President: the White House Office, the
and lymphatic; skir
Office of the Vice President, the Office of Management and Budget, the Of-
(ii) Any mental 0
fice of Policy Development, the National Security Council, the Office of
ganic brain syndro
disabilities. The ter
Science and Technology Policy, the Office of the United States Trade Rep-
limited to, such dis
resentative, the Council on Environmental Quality, the Council of Eco-
nomic Advisers, the Office of Administration, the Office of Federal Pro:
hearing impairmen
tiple sclerosis, car
curement Policy, and any committee, board, commission, or similar group
tional illness, and (
established in the Executive Office of the President.
"Agency head" or "head of the agency"; as used in §§ 102.150(a)(3).
(2) "Major life ac
102.160(d) and 102.170 (i) and (j), shall be a three-member board which
performing manua
learning, and work
will include the Director, Office of Administration, the head of the Execu-
(3) "Has a record
tive Office of the President, agency in which the issue needing resolution
been misclassified
or decision arises and one other agency head selected by the two other
tially limits one or
1070
Chapter I
§ 102.103
CRIMINATION ON THE
board members. In the event that an issue needing resolution or decision
S OR ACTIVITIES
arises within the Office of Administration, one of the board members shall
E OF THE PRESIDENT
be the Director of the Office of Management and Budget.
"Assistant Attorney General" means the Assistant Attorney General, Civil
Rights Division, United States Department of Justice.
Auxiliary aids" means services or devices that enable persons with im-
paired sensory, manual, or speaking skills to have an equal opportunity to
participate in, and enjoy the benefits of, programs or activities conducted
by the agency. For example, auxiliary aids useful for persons with impaired
vision include readers, Brailled materials, audio recordings, and other simi-
lar services and devices. Auxiliary aids useful for persons with impaired
hearing include telephone handset amplifiers, telephones compatible with
hearing aids, telecommunication devices for deaf persons (TDD's). inter-
preters, notetakers, written materials, and other similar services and de-
vices.
ns.
"Complete complaint" means a written statement that contains the com-
plainant's name and address and describes the agency's alleged discrimina-
tory action in sufficient detail to inform the agency of the nature and date
of the alleged violation of section 504. It shall be signed by the complain-
ant or by someone authorized to do so on his or her behalf. Complaints
filed on behalf of classes or third parties shall describe or identify (by
name, if possible) the alleged victims of discrimination.
9, July 8, 1988, and 55 FR 46037,
"Facility" means all or any portion of buildings, structures, equipment,
roads, walks, parking lots, rolling stock or other conveyances, or other real
or personal property.
ction 119 of the Rehabili-
"Historic preservation programs" means programs conducted by the
ntal Disabilities Amend-
agency that have preservation of historic properties as a primary purpose.
the Rehabilitation Act of
'Historic properties" means those properties that are listed or elígible for
ndicap in programs or ac-
listing in the National Register of Historic Places or properties designated
United States Postal Serv-
as historic under a statute of the appropriate State or local government
body.
"Individual with handicaps" means any person who has a physical or
mental impairment that substantially limits one or more major life activi-
all programs or activities
ties, has a record of such an impairment, or is regarded as having such an
activities conducted out-
impairment.
As used in this definition, the phrase:
duals with handicaps in
(1) "Physical or mental impairment" includes—
(i) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems: Neu-
rological; musculoskeletal; special sense organs; respiratory, including
only, the following enti-
speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic
White House Office, the
and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, or-
nent and Budget, the Of-
ganic brain syndrome, emotional or mental illness, and specific learning
y Council, the Office of
disabilities. The term "physical or mental impairment" includes, but is not
United States Trade Rep-
limited to, such diseases and conditions as orthopedic, visual, speech, and
ty, the Council of Eco-
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, mul-
3 Office of Federal Pro-
tiple sclerosis, cancer, heart disease, diabetes, mental retardation, emo-
ission, or similar group
tional illness, and drug addiction and alcoholism.
(2) "Major life activities" includes functions such as caring for one's self,
sed in §§ 102.150(a)(3),
performing manual tasks, walking, seeing, hearing, speaking, breathing,
e-member board which
learning, and working.
the head of the Execu-
(3) "Has a record of such an impairment" means has a history of, or has
ssue needing resolution
been misclassified as having, a mental or physical impairment that substan-
ected by the two other
tially limits one or more major life activities.
1071
102.104-102.109
Title 3-The President
(4) "Is regarded as having an impairment" means—
§ 102.111 Notice.
(i) Has a physical or mental impairment that does not substantially limit
The agency shall m
major life activities but is treated by the agency as constituting such a limi-
beneficiaries, and oth
tation;
provisions of this regu
(ii) Has a physical or mental impairment that substantially limits major
ties conducted by the
life activities only as a result of the attitudes of others toward such impair-
in such manner as the
ment; or
persons of the protect
(iii) Has none of the impairments defined in paragraph (1) of this defini-
504 and this regulation
tion but is treated by the agency as having such an impairment.
"Qualified individual with handicaps" means-
§§ 102.112-102.129 [R
(1) With respect to preschool, elementary, or secondary education serv-
ices provided by the agency, an individual with handicaps who is a mem-
§ 102.130 General proh
ber of a class of persons otherwise entitled by statute, regulation, or agency
(a) No qualified ind
policy to receive education services from the agency;
cap, be excluded from
(2) With respect to any other agency program or activity under which a
wise be subjected to
person is required to perform services or to achieve a level of accomplish-
ducted by the agency.
ment, an individual with handicaps who meets the essential eligibility re-
(b)(1) The agency, il
quirements and who can achieve the purpose of the program or activity
rectly or through conti
without modifications in the program or activity that the agency can dem-
of handicap-
onstrate would result in a fundamental alteration in its nature;
(i) Deny a qualified
(3) With respect to any other program or activity, an individual with
pate in or benefit from
handicaps who meets the essential eligibility requirements for participation
(ii) Afford a qualifie
in, or receipt of benefits from, that program or activity; and
ticipate in or benefit :
(4) "Qualified handicapped person" as that term is defined for purposes
that afforded others;
of employment in 29 CFR 1613.702(f), which is made applicable to this reg-
(iii) Provide a quali
ulation by § 102.140.
or service that is not
"Section 504" means section 504 of the Rehabilitation Act of 1973 (Pub.
the same result, to ga
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation
achievement as that pr
Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); the Rehabilita-
(iv) Provide differen
tion, Comprehensive Services, and Developmental Disabilities Amend-
with handicaps or to :
ments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the Rehabilitation Act
vided to others unless
Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). As used in this reg-
viduals with handicap
ulation, section 504 applies only to programs or activities conducted by Ex-
as those provided to of
ecutive agencies and not to federally assisted programs.
(v) Deny a qualified
"Substantial impairment" means a significant loss of the integrity of fin-
pate as a member of pl
ished materials, design quality, or special character resulting from a perma-
(vi) Otherwise limit
nent alteration.
ment of any right, pri
receiving the aid, bene
§§ 102.104-102.109 [Reserved]
(2) The agency may
opportunity to particip
$ 102.110 Self-evaluation.
different, despite the
(a) The agency shall, by September 6, 1989, evaluate its current policies
grams or activities.
and practices, and the effects thereof, that do not or may not meet the re-
(3) The agency may
quirements of this regulation and, to the extent modification of any such
ments, utilize criteria
policies and practices is required, the agency shall proceed to make the
of which would—
necessary modifications.
(i) Subject qualified
(b) The agency shall provide an opportunity to interested persons, in-
basis of handicap; or
cluding individuals with handicaps or organizations representing individ-
(ii) Defeat or substa
uals with handicaps, to participate in the self-evaluation process by submit-
program or activity wi
ting comments (both oral and written).
(4) The agency may
(c) The agency shall, for at least three years following completion of the
make selections the pl
self-evaluation, maintain on file and make available for public inspection:
(i) Exclude individu
(1) A description of areas examined and any problems identified; and
or otherwise subject t]
(2) A description of any modifications made.
conducted by the agen
1072
Chapter I
§ 102.130
§ 102.111 Notice.
substantially limit
The agency shall make available to employees, applicants, participants,
stituting such a limi-
beneficiaries, and other interested persons such information regarding the
provisions of this regulation and its applicability to the programs or activi-
antially limits major
ties conducted by the agency, and make such information available to them
toward such impair-
in such manner as the head of the agency finds necessary to apprise such
persons of the protections against discrimination assured them by section
(1) of this defini-
504 and this regulation.
airment.
§§ 102.112-102.129 [Reserved]
education serv-
caps who is a mem-
§ 102.130 General prohibitions against discrimination.
regulation, or agency
(a) No qualified individual with handicaps shall, on the basis of handi-
cap, be excluded from participation in, be denied the benefits of, or other-
under which a
wise be subjected to discrimination under any program or activity con-
level of accomplish-
ducted by the agency.
sential eligibility re-
(b)(1) The agency, in providing any aid, benefit, or service, may not, di-
program or activity
rectly or through contractual, licensing, or other arrangements, on the basis
the agency can dem-
of handicap—
nature;
(i) Deny a qualified individual with handicaps the opportunity to partici-
an individual with
pate in or benefit from the aid, benefit, or service;
for participation
(ii) Afford a qualified individual with handicaps an opportunity to par-
and
ticipate in or benefit from the aid, benefit, or service that is not equal to
defined for purposes
that afforded others;
pplicable to this reg-
(iii) Provide a qualified individual with handicaps with an aid, benefit,
or service that is not as effective in affording equal opportunity to obtain
Act of 1973 (Pub.
the same result, to gain the same benefit, or to reach the same level of
the Rehabilitation
achievement as that provided to others;
617); the Rehabilita-
(iv) Provide different or separate aid, benefits, or services to individuals
Disabilities Amend-
with handicaps or to any class of individuals with handicaps than is pro-
Rehabilitation
Act
vided to others unless such action is necessary to provide qualified indi-
As used in this reg-
viduals with handicaps with aid, benefits, or services that are as effective
conducted by Ex-
as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to partici-
the integrity of fin-
pate as a member of planning or advisory boards;
from a perma-
(vi) Otherwise limit a qualified individual with handicaps in the enjoy-
ment of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps the
opportunity to participate in programs or activities that are not separate or
different, despite the existence of permissibly separate or different pro-
its current policies
grams or activities.
ay not meet the re-
(3) The agency may not, directly or through contractual or other arrange-
fication of any such
ments, utilize criteria or methods of administration the purpose or effect
roceed
to
make
the
of which would—
(i) Subject qualified individuals with handicaps to discrimination on the
erested persons, in-
basis of handicap; or
epresenting individ-
(ii) Defeat or substantially impair accomplishment of the objectives of a
process by submit-
program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a facility,
completion of the
make selections the purpose or effect of which would—
public inspection:
(i) Exclude individuals with handicaps from, deny them the benefits of,
identified;
and
or otherwise subject them to discrimination under any program or activity
conducted by the agency; or
1073
§§ 102.131-102.139
Title 3-The President
(ii) Defeat or substantially impair the accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
ance with § 102.150(a
(5) The agency, in the selection of procurement contractors, may not use
cision that complianc
criteria that subject qualified individuals with handicaps to discrimination
made by the agency h
on the basis of handicap.
resources available fo
(6) The agency may not administer a licensing or certification program
program or activity, 8
in a manner that subjects qualified individuals with handicaps to discrimi-
the reasons for reachi
nation on the basis of handicap, nor may the agency establish requirements
an alteration or such
for the programs or activities of licensees or certified entities that subject
would not result in su
qualified individuals with handicaps to discrimination on the basis of
less ensure that indiv
handicap. However, the programs or activities of entities that are licensed
ices of the program or
or certified by the agency are not, themselves, covered by this regulation.
(b) Methods-(1) Ge
(c) The exclusion of nonhandicapped persons from the benefits of a pro-
of this section through
gram limited by Federal statute or Executive order to individuals with
of services to accessi
handicaps or the exclusion of a specific class of individuals with handicaps
home visits, delivery
from a program limited by Federal statute or Executive order to a different
existing facilities and
class of individuals with handicaps is not prohibited by this regulation.
ing stock, or any other
(d) The agency shall administer programs and activities in the most inte-
ties readily accessible
grated setting appropriate to the needs of qualified individuals with handi-
agency is not require
caps.
where other methods
tion. The agency, in m
§§ 102.131-102.139 [Reserved]
cessibility requirement
$ 102.140 Employment.
riers Act of 1968, as a
No qualified individual with handicaps shall, on the basis of handicap,
implementing it. In ch
be subject to discrimination in employment under any program or activity
quirements of this sect
conducted by the agency. The definitions, requirements, and procedures of
that offer programs an
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established
in the most integrated
by the Equal Employment Opportunity Commission in 29 CFR Part 1613,
(2) Historic preserv
shall apply to employment in federally conducted programs or activities.
§ 102.150(a) in historio
ity to methods that pro
$ 102.141-102.148 [Reserved]
In cases where a physi
because of § 102.150(a)
$ 102.149 Program accessibility: Discrimination prohibited.
accessibility include-
Except as otherwise provided in § 102.150, no qualified individual with
(i) Using audio-visua
handicaps shall, because the agency's facilities are inaccessible to or unus-
an historic property tha
able by individuals with handicaps, be denied the benefits of, be excluded
(ii) Assigning perso
from participation in, or otherwise be subjected to discrimination under
through portions of his
any program or activity conducted by the agency.
cessible; or
$ 102.150 Program accessibility: Existing facilities.
(iii) Adopting other i
(c) Time period for c
(a) General. The agency shall operate each program or activity so that the
tions established unde
program or activity, when viewed in its entirety, is readily accessible to
where structural change
and usable by individuals with handicaps. This paragraph does not-
made by September 6,
(1) Necessarily require the agency to make each of its existing facilities
(d) Transition plan. ]
accessible to and usable by individuals with handicaps;
be undertaken to achie
(2) In the case of historic preservation programs, require the agency to
by March 6, 1989, a trai
take any action that would result in a substantial impairment of significant
historic features of an historic property; or
plete such changes. Th
(3) Require the agency to take any action that it can demonstrate would
persons, including indi
result in a fundamental alteration in the nature of a program or activity or
ing individuals with h
in undue financial and administrative burdens. In those circumstances
transition plan by subn
where agency personnel believe that the proposed action would fundamen-
the transition plan shal
tally alter the program or activity or would result in undue financial and
shall, at a minimum-
administrative burdens, the agency has the burden of proving that compli-
(1) Identify physical
cessibility of its program
1074
Chapter I
§ 102.150
of the objectives
ance with § 102.150(a) would result in such alteration or burdens. The de-
handicaps.
ractors, may not use
cision that compliance would result in such alteration or burdens must be
to discrimination
made by the agency head or his or her designee after considering all agency
resources available for use in the funding and operation of the conducted
ertification program
program or activity, and must be accompanied by a written statement of
ndicaps to discrimi-
the reasons for reaching that conclusion. If an action would result in such
ablish requirements
an alteration or such burdens, the agency shall take any other action that
entities that subject
would not result in such an alteration or such burdens but would neverthe-
on the basis of
less ensure that individuals with handicaps receive the benefits and serv-
that are licensed
ices of the program or activity.
by this regulation.
(b) Methods-(1) General. The agency may comply with the requirements
benefits of a pro-
of this section through such means as redesign of equipment, reassignment
individuals with
of services to accessible buildings, assignment of aides to beneficiaries,
uals with handicaps
home visits, delivery of services at alternate accessible sites, alteration of
order to a different
existing facilities and construction of new facilities, use of accessible roll-
this regulation.
ing stock, or any other methods that result in making its programs or activi-
in the most inte-
ties readily accessible to and usable by individuals with handicaps. The
viduals with handi-
agency is not required to make structural changes in existing facilities
where other methods are effective in achieving compliance with this sec-
tion. The agency, in making alterations to existing buildings, shall meet ac-
cessibility requirements to the extent compelled by the Architectural Bar-
riers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations
basis of handicap,
implementing it. In choosing among available methods for meeting the re-
program or activity
quirements of this section, the agency shall give priority to those methods
and procedures of
that offer programs and activities to qualified individuals with handicaps
791), as established
in the most integrated setting appropriate.
29 CFR Part 1613,
(2) Historic preservation programs. In meeting the requirements of
grams or activities.
§ 102.150(a) in historic preservation programs, the agency shall give prior-
ity to methods that provide physical access to individuals with handicaps.
In cases where a physical alteration to an historic property is not required
because of § 102.150(a) (2) or (3), alternative methods of achieving program
accessibility include-
ed individual with
(i) Using audio-visual materials and devices to depict those portions of
cessible to or unus-
an historic property that cannot otherwise be made accessible;
fits of, be excluded
(ii) Assigning persons to guide individuals with handicaps into or
scrimination under
through portions of historic properties that cannot otherwise be made ac-
cessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the obliga-
activity so that the
tions established under this section by November 7, 1988, except that
adily accessible to
where structural changes in facilities are undertaken, such changes shall be
h does not-
made by September 6, 1991, but in any event as expeditiously as possible.
S existing facilities
(d) Transition plan. In the event that structural changes to facilities will
be undertaken to achieve program accessibility, the agency shall develop,
uire the agency to
by March 6, 1989, a transition plan setting forth the steps necessary to com-
ment of significant
plete such changes. The agency shall provide an opportunity to interested
demonstrate would
persons, including individuals with handicaps or organizations represent-
gram or activity or
ing individuals with handicaps, to participate in the development of the
ose circumstances
transition plan by submitting comments (both oral and written). A copy of
would fundamen-
the transition plan shall be made available for public inspection. The plan
adue financial and
shall, at a minimum-
roving that compli-
(1) Identify physical obstacles in the agency's facilities that limit the ac-
cessibility of its programs or activities to individuals with handicaps;
1075
§ 102.151
Title 3-The President
(2) Describe in detail the methods that will be used to make the facilities
such burdens, the ag
accessible;
in such an alteration
(3) Specify the schedule for taking the steps necessary to achieve compli-
to the maximum ext
ance with this section and, if the time period of the transition plan is
benefits and services
longer than one year, identify steps that will be taken during each year of
102.161-102.169 [
the transition period; and
(4) Indicate the official responsible for implementation of the plan.
§ 102.170 Compliance
§ 102.151 Program accessibility: New construction and alterations.
(a) Except as provi
Each building or part of a building that is constructed or altered by, on
plies to all allegation
behalf of, or for the use of the agency shall be designed, constructed, or
grams and activities o
(b) The agency shal
altered so as to be readily accessible to and usable by individuals with
with respect to emple
handicaps. The definitions, requirements, and standards of the Architec-
Equal Employment O
tural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-
to section 501 of the ]
19.600 to 101-19.607, apply to buildings covered by this section.
(c) The Director, Fa
102.152-102.159 [Reserved]
tive Office of the Pr
mentation of this sect
102.160 Communications.
lowing address: Roon
(a) The agency shall take appropriate steps to ensure effective commu-
sylvania Ave. NW., W
nication with applicants, participants, personnel of other Federal entities,
(d) The agency sha
and members of the public.
which it has jurisdict:
(1) The agency shall furnish appropriate auxiliary aids where necessary
days of the alleged ad
to afford an individual with handicaps an equal opportunity to participate
period for good cause
in, and enjoy the benefits of, a program or activity conducted by the agen-
(e) If the agency re
cy.
diction, it shall prom
(i) In determining what type of auxiliary aid is necessary, the agency
efforts to refer the con
shall give primary consideration to the requests of the individual with
(f) The agency shall
handicaps.
Compliance Board up
(ii) The agency need not provide individually prescribed devices, readers
or facility that is su
for personal use or study, or other devices of a personal nature.
amended (42 U.S.C. 4
(2) Where the agency communicates with applicants and beneficiaries by
individuals with hand
telephone, telecommunication devices for deaf persons (TDD's) or equally
(g) Within 180 days
effective telecommunication systems shall be used to communicate with
has jurisdiction, the a
persons with impaired hearing.
the investigation in a ]
(b) The agency shall ensure that interested persons, including persons
(1) Findings of fact a
with impaired vision or hearing, can obtain information as to the existence
(2) A description of
(3) A notice of the ri
and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its
(h) Appeals of the
inaccessible facilities, directing users to a location at which they can obtain
must be filed by the co
information about accessible facilities. The international symbol for acces-
of the letter required }
sibility shall be used at each primary entrance of an accessible facility.
good cause.
(d) This section does not require the agency to take any action that it can
(i) Timely appeals s
demonstrate would result in a fundamental alteration in the nature of a
agency.
(j) The head of the a
program or activity or in undue financial and administrative burdens. In
the appeal within 60 e
those circumstances where agency personnel believe that the proposed ac-
agency determines tha
tion would fundamentally alter the program or activity or would result in
plainant, he or she sha
undue financial and administrative burdens, the agency has the burden of
tional information to m
proving that compliance with § 102.160 would result in such alteration or
(k) The time limits d
burdens. The decision that compliance would result in such alteration or
extended with the pern
burdens must be made by the agency head or his or her designee after con-
(1) The agency may d
sidering all agency resources available for use in the funding and operation
tigations to other Feder
of the conducted program or activity and must be accompanied by a writ-
final determination ma
ten statement of the reasons for reaching that conclusion. If an action re-
quired to comply with this section would result in such an alteration or
§§ 102.171-102.999 [Re
1076
157-002 0-95-35
Chapter I
§§ 102.171-102.999
to make the facilities
such burdens, the agency shall take any other action that would not result
in such an alteration or such burdens but would nevertheless ensure that,
essary to achieve compli-
to the maximum extent possible, individuals with handicaps receive the
of the transition plan is
benefits and services of the program or activity.
during each year of
§§ 102.161-102.169 [Reserved]
of the plan.
$ 102.170 Compliance procedures.
alterations.
(a) Except as provided in paragraph (b) of this section, this section ap-
tructed or altered by, on
plies to all allegations of discrimination on the basis of handicap in pro-
lesigned, constructed, or
grams and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504
by individuals with
with respect to employment according to the procedures established by the
ndards of the Architec-
blished in 41 CFR 101-
Equal Employment Opportunity Commission in 29 CFR Part 1613 pursuant
to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
this section.
(c) The Director, Facilities Management, Office of Administration, Execu-
tive Office of the President, shall be responsible for coordinating imple-
mentation of this section. Complaints may be sent to the Director at the fol-
lowing address: Room 486, Old Executive Office Building, 17th and Penn-
effective commu-
sylvania Ave. NW., Washington, DC 20500.
other Federal entities,
(d) The agency shall accept and investigate all complete complaints for
which it has jurisdiction. All complete complaints must be filed within 180
aids where necessary
days of the alleged act of discrimination. The agency may extend this time
oportunity to participate
period for good cause.
conducted by the agen-
(e) If the agency receives a complaint over which it does not have juris-
diction, it shall promptly notify the complainant and shall make reasonable
necessary, the agency
efforts to refer the complaint to the appropriate Government entity.
of the individual with
(f) The agency shall notify the Architectural and Transportation Barriers
Compliance Board upon receipt of any complaint alleging that a building
scribed devices, readers
or facility that is subject to the Architectural Barriers Act of 1968, as
nature.
amended (42 U.S.C. 4151-4157), is not readily accessible to and usable by
and beneficiaries by
individuals with handicaps.
(TDD's) or equally
(g) Within 180 days of the receipt of a complete complaint for which it
to communicate with
has jurisdiction, the agency shall notify the complainant of the results of
the investigation in a letter containing-
ons, including persons
(1) Findings of fact and conclusions of law;
as to the existence
(2) A description of a remedy for each violation found; and
cilities.
(3) A notice of the right to appeal.
entrance to each of its
(h) Appeals of the findings of fact and conclusions of law or remedies
which they can obtain
must be filed by the complainant within 90 days of receipt from the agency
ional symbol for acces-
of the letter required by § 102.170(g). The agency may extend this time for
accessible facility.
good cause.
any action that it can
(i) Timely appeals shall be accepted and processed by the head of the
ion in the nature of a
agency.
(j) The head of the agency shall notify the complainant of the results of
inistrative burdens. In
the appeal within 60 days of the receipt of the request. If the head of the
that the proposed ac-
agency determines that additional information is needed from the com-
vity or would result in
plainant, he or she shall have 60 days from the date of receipt of the addi-
ncy has the burden of
tional information to make his or her determination on the appeal.
It in such alteration or
(k) The time limits cited in paragraphs (g) and (j) of this section may be
t in such alteration or
extended with the permission of the Assistant Attorney General.
her designee after con-
(1) The agency may delegate its authority for conducting complaint inves-
funding and operation
tigations to other Federal agencies, except that the authority for making the
ccompanied by a writ-
final determination may not be delegated to another agency.
usion. If an action re-
such an alteration or
§§ 102.171-102.999 [Reserved]
1077
157-002 0-95-35