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the subject matter covered in part 101– 101-8.708 Affirmative action by recipient. 6.

101-8.709 Special benefits for children and

the elderly. [37 FR 20542, Sept. 30, 1972]

101-8.710 Age distinctions contained in Gen

eral Services Administration regulation. 8 101-6.4901 [Reserved)

101-8.711 General responsibilities.

101–8.712 Notice to subrecipients and bene8 101-6.4902 Format of certification re

ficiaries. quired for budget submissions of es- 101-8.713 Assurance of compliance and reciptimates of obligations in excess of ient assessment of age distinctions. $100,000 for acquisitions of real and 101-8.714 Information requirements. related personal property.

101-8.715 Compliance reviews.

101-8.716 Complaints. NOTE: The illustration in $101-6.4902 is filed 101-8.717 Mediation. as part of the original document.

101-8.718 Investigation.

101-8.719 Prohibition against intimidation (37 FR 20542, Sept. 30, 1972)

or retaliation.
101-8.720 Compliance procedure.

101-8.721 Hearings. PART 101-8-NONDISCRIMINATION

101-8.722 Decisions and notices. IN FEDERAL FINANCIAL ASSIST

101-8.723 Remedial action by recipient. ANCE PROGRAMS

101-8.724 Exhaustion of administrative rem

edies.

101-8.725 Alternate funds disbursal. Subparts 101-8.1-101-8.2 (Reserved]

AUTHORITY: Sec. 205(c), 63 Stat. 390; 40 Subpart 101–8.3-Discrimination Prohibited U.S.C. 486(c). on the basis of Handicap

SOURCE: 47 FR 25337, June 11, 1982, unless

otherwise noted. Sec. 101–8.300 Purpose and applicability. 101-8.301 Definitions.

Subparts 101-8.1-101-8.2 101-8.302 General prohibitions.

[Reserved] 101-8.303 Specific prohibitions. 101-8.304 Effect of State or local law or

other requirements and effect of employ Subpart 101-8.3-Discrimination ment opportunities.

Prohibited on the basis of 101-8.305 Employment practices prohibited.

Handicap 101-8.306 Reasonable accommodation. 101-8.307 Employment criteria.

§ 101-8.300 Purpose and applicability. 101-8.308 Preemployment inquiries. 101–8.309 Program accessibility.

(a) The purpose of this subpart is to 101-8.310 New construction.

implement section 504 of the Rehabili101-8.311 Historic preservation programs. tation Act of 1973, as amended, which 101-8.312 Procedures.

prohibits discrimination on the basis of 101-8.313 Self-evaluation.

handicap in any program or activity

receiving Federal financial assistance. Subparts 101-8.4-101-8.6 [Reserved)

(b) This subpart applies to each recipSubpart 101–8.7-Discrimination Prohibited

ient or subrecipient of Federal assiston the Basis of Age

ance from GSA and to each program or

activity that receives or benefits from 101-8.700 Purpose of the Age Discrimination assistance.

Act of 1975. 101–8.701 Scope of General Services Admin

8 101-8.301 Definitions. istration's age discrimination regulation. 101-8.702 Applicability.

(a) Section 504 means section 504 of 101-8.703 Definitions of terms.

the Rehabilitation Act of 1973, Public 101-8.704 Rules against age discrimination. Law 93-112, as amended by the Reha101-8.705 Definition of normal operation and bilitation Act Amendments of 1974, statutory objective.

Public Law 93-516, 29 U.S.C. 794. 101-8.706 Exceptions to the rules against age

(b) Handicapped person means any discrimination. 101-8.706_1 Normal operation or statutory

person who has a physical or mental objective of any program or activity.

impairment which substantially limits 101-8.706-2 Reasonable factors other than

one or more major life activities, has a age.

record of such impairments, or is re101-8.707 Burden of proof.

garded as having such an impairment.

[graphic]

(c) As used in paragraph (b) of this section, the phrase:

(1) Physical OT mental impairment means:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine; or

(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness and drug addiction and alcoholism, when current use of drugs and/or alcohol is not detrimental to or interferes with the employee's performance, nor constitutes a direct threat to property or safety of others.

(2) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

(3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

(4) Is regarded as having an impairment means:

(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation;

(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(iii) Has none of the impairments defined in paragraphs (c)(1) (i) and (ii) of this section, but is treated by a recipient as having such an impairment.

Qualified handicapped person means:

(1) With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question;

(2) With respect to public preschool, elementary, secondary, or adult education services, a handicapped person:

(i) Of an age during which nonhandicapped persons are provided such services;

(ii) Of any age during which it is mandatory under state law to provide such services to handicapped persons; or

(iii) To whom a state is required to provide a free appropriate public education under section 612 of the Education for All Handicapped Children Act of 1975, Public Law 94–142.

(3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity; and

(4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services.

(e) Handicap means condition or characteristic that renders a person a handicapped person as defined in paragraph (b) of this section. The definitions set forth in $101-6.216, to the extent not inconsistent with this subpart, are made applicable to and incorporated into this subpart.

§ 101-8.302 General prohibitions.

No qualified handicapped persons shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity that receives or benefits from Federal assistance from GSA.

8101-8.303 Specific prohibitions.

(a) A recipient, in providing any aid, benefit, or service, may not directly or through contractual,

contractual, licensing, or other arrangements, on the basis of handicap:

(1) Deny a qualified person the oppor- (d) A recipient may not, directly or tunity to participate in or benefit from through contractual or other arrangethe aid, benefit, or service;

ments, use criteria or methods of ad(2) Afford a qualified handicapped ministration that: person an opportunity to participate in (1) Have the effect of subjecting or benefit from the aid, benefit, or qualified handicapped persons to disservice that is not equal to that af crimination on the basis of handicap; forded others;

(2) Have the purpose or effect of de(3) Provide a qualified handicapped feating or substantially impairing acperson with an aid, benefit, or service complishment of the objectives of the that is not as effective in affording recipient's program with respect to equal opportunity to obtain the same handicapped persons; or result, to gain the same benefit, or to (3) Perpetuate the discrimination of reach the same level of achievement as another recipient if both recipients are that provided others;

subject to common administrative con(4) Provide different or separate aid, trol or are agencies of the same State. benefits, or services to handicapped (e) In determining the site of a facilpersons or to any class of handicapped ity, an applicant for assistance or a repersons than is provided to others un- cipient may not make selections that: less the action is necessary to provide (1) Have the effect of excluding qualified handicapped persons with aid, handicapped persons from, denying benefits, or services that are as effec- them the benefits of, or otherwise subtive as those provided to others;

jecting them to discrimination under (5) Aid or perpetuate discrimination any program or activity that receives against a qualified handicapped person Federal assistance from GSA, or by providing significant assistance to (2) Have the purpose or effect of dean agency, organization, or person that feating or substantially impairing the discriminates on the basis of handicap accomplishment of the objectives of in providing any aid, benefit, or serv- the program or activity with respect to ices to beneficiaries of the recipient's handicapped persons. program;

(f) As used in this section, the aid, (6) Deny a qualified handicapped per- benefit, or service provided under a son the opportunity to participate as a program or activity receiving or benemember of planning committees, advi- fitting from Federal assistance insory boards, or other groups; or

cludes any aid, benefit, or service pro(7) Otherwise limit a qualified handi- vided in or through a facility that has capped person in the enjoyment of any been constructed, expanded, altered, right, privilege, advantage, or oppor- leased, or rented, or otherwise actunity enjoyed by others receiving the quired, in whole or in part, with Fedaid, benefit, or service.

eral assistance. (b) For purposes of this subpart, aids, (g) The exclusion of nonhandicapped benefits, and services, to be equally ef- persons from the benefits of a program fective, are not required to produce the limited by Federal statute or Execuidentical result or level of achievement tive order to handicapped persons or for handicapped and nonhandicapped the exclusion of a specific class of persons, but must afford handicapped handicapped persons from a program persons equal opportunity to obtain limited by Federal statute or Executhe same result, to gain the same bene- tive order to a different class of handifit, or to reach the same level of capped persons is not prohibited by achievement in the most integrated this subpart. setting appropriate to the person's (h) Recipients shall take appropriate needs.

steps to ensure that communications (c) Despite the existence of permis- with the donees, applicants, employees, sible separate or different programs or and handicapped persons participating activities, a recipient may not deny a in federally assisted programs and acqualified handicapped person the op- tivities or receiving aid, benefits, or portunity to participate in programs or services are available to persons with activities that are not separate or dif- impaired vision and hearing. Examples ferent.

of communications methods include:

Telecommunication devices for the deaf (TDD's), other telephonic devices, provision of braille materials, readers, and qualified sign language interpreters.

(i) The enumeration of specific forms of prohibited discrimination in this section does not limit the generality of the prohibition in 8101-8.302 of this subpart,

8 101-8.304 Effect of State or local law

or other requirements and effect of

employment opportunities. (a) The obligation to comply with this subpart is not obviated or alleviated by the existence of any State or local law or other requirement that, on the basis of handicap, imposes prohibitions or limits upon the eligibility of qualified handicapped persons to receive services or to practice any occupation or profession.

(b) The obligation to comply with this subpart is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for handicapped persons than for nonhandicapped persons.

organizations providing training and apprenticeship programs.

(d) The provisions of this subpart apply to:

(1) Recruitment, advertising, and processing of applications for employment;

(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

(3) Rates of pay or any other form of compensation and changes in compensation;

(4) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

(5) Leaves of absence, sick or otherwise;

(6) Fringe benefits available by virture of employment, whether administered by the recipient or not;

(7) Selection and provision of financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;

(8) Employer-sponsored activities, including social recreational programs; and

(9) Any other term, condition, or privilege of employment.

(e) A recipient's obligation to comply with this subpart is not affected by any inconsistent term of any collective bargaining agreement to which it is a party.

or

[blocks in formation]

8 101-8.305 Employment practices pro

bibited. (a) No qualified handicapped person shall, on the basis of handicap, be subjected to employment discrimination under any program or activity to which this subpart applies.

(b) A recipient shall make all decisions concerning employment under any program or activity to which this subpart applies in a manner which ensures that discrimination on the basis of handicap does not occur and may not limit, segregate, or classify applicants or employees in any way that adversely affects their opportunities or status because of handicap.

(C) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified handicapped applicants or employees to discrimination prohibited by this subpart. The relationships referred to in this paragraph include relationships with employment and referral agencies, labor unions, organizations providing or administering fringe benefits to employees of the recipient, and

(a) A recipient shall make reasonable accommodation to the known physical or metal limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

(b) Reasonable accommodation may include:

(1) Making facilities used by employees readily accessible to and usable by handicapped persons; and

(2) Job restructing; part-time or modified work schedules; acquisition or modification of equipment or devices, such as telecommunications devices or other telephonic devices for hearing impaired persons; provision of reader or qualified sign language interpreters; and other similar actions. These actions are to be taken either upon request of the handicapped employee or, if not so requested, upon the recipient's own initiative, after consultation with and approval by the handicapped person.

(c) In determining, under paragraph (a) of this section, whether an accommodation would impose an undue hardship on the operation of a recipient's program, factors to be considered include:

(1) The overall size of the recipient's program with respect to number of employees, number and type of facilities, and size of budget;

(2) The type of the recipient's operation, including the composition and structure of the recipient's work force; and

(3) The nature and cost of the accommodation needed.

(d) A recipient may not deny an employment opportunity to a qualified handicapped employee or applicant if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.

cant as to whether the applicant is a handicapped person or as to the nature or severity of a handicap. A recipient may, however, make preemployment inquiries into an applicant's ability to perform job-related functions.

(b) When a recipient is taking remedial action to correct the effects of past discrimination, or is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity, or when a recipient is taking affirmative action under section 503 of the Rehabilitation Act of 1973, as amended, the recipient may invite applicants for employment to indicate whether, and to what extent, they are handicapped provided that:

(1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally, if no written questionnaire is used, that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and

(2) The recipient states clearly that the information is requested on a voluntary basis, that it will be kept confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with this subpart.

(C) This section does not prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty provided that all entering employees are subjected to the examination regardless of handicap or absence of handicap and results of the examination are used only in accordance with the requirements of this subpart.

(d) Information obtained in accordance with this section concerning the medical condition or history of the applicant shall be collected and maintained on separate forms that are to be accorded confidentiality as medical records, except that:

(1) Supervisors and managers may be informed of restrictions on the work or duties of handicapped persons and of necessary accommodations;

§ 101-8.307 Employment criteria.

(a) A recipient may not use an employment test or other selection criterion that screens out or tends to screen out handicapped persons unless the test score or other selection criterion, as used by the recipient, is shown to be job-related for the position in question.

(b) A recipient shall ensure that employment tests are adapted for use by persons who have handicaps that impair sensory, manual, or speaking skills except where those skills are the factors that the test purports to meas

ure.

8 101-8.308 Preemployment inquiries.

(a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination or may not make preemployment inquiries of an appli

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