Page images

or benefit from the aid, benefit, or administration (i) that have the effect service;

of subjecting qualified handicapped (ii) Afford a qualified handicapped persons to discrimination on the basis person an opportunity to participate in of handicap, (ii) that have the purpose or benefit from the aid, benefit, or or effect of defeating or substantially service that is not equal to that af impairing accomplishment of the obforded others;

jectives of the recipient's program or (iii) Provide a qualified handicapped activity with respect to handicapped person with an aid, benefit, or service persons, or (iii) that perpetuate the disthat is not as effective as that provided crimination of another recipient if to others;

both recipients are subject to common (iv) Provide different or separate aid, administrative control or are agencies benefits, or services to handicapped of the same State. persons or to any class of handicapped (5) In determining the site or locapersons unless such action is necessary tion of a facility, an applicant for asto provide qualified handicapped per sistance or a recipient may not make sons with aid, benefits, or services that selections (i) that have the effect of exare as effective as those provided to cluding handicapped persons from, deothers;

nying them the benefits of, or other(v) Aid or perpetuate discrimination wise subjecting them to discrimination against a qualified handicapped person under any program or activity that reby providing significant assistance to ceives Federal financial assistance or an agency, organization, or person that (ii) that have the purpose or effect of discriminates on the basis of handicap defeating or substantially impairing in providing any aid, benefit, or service

the accomplishment of the objectives to beneficiaries of the recipients pro of the program or activity with respect gram or activity;

to handicapped persons. (vi) Deny a qualified handicapped (6) As used in this section, the aid, person the opportunity to participate benefit, or service provided under a as a member of planning or advisory

program or activity receiving Federal boards; or

financial assistance includes any aid, (vii) Otherwise limit a qualified benefit, or service provided in or handicapped person in the enjoyment through a facility that has been conof any right, privilege, advantage, or

structed, expanded, altered, leased or opportunity enjoyed by others receiv rented, or otherwise acquired, in whole ing an aid, benefit, or service.

or in part, with Federal financial as(2) For purposes of this part, aids,

sistance. benefits, and services, to be equally ef

(c) Aid, benefits, or services limited by fective, are not required to produce the

Federal law. The exclusion of nonhandiidentical result or level of achievement

capped persons from aid, benefits, or for handicapped and nonhandicapped

services limited by Federal statute or persons, but must afford handicapped executive order to handicapped persons persons equal opportunity to obtain

or the exclusion of a specific class of the same result, to gain the same ben- handicapped persons from aid, benefits, efit, or to reach the same level of or services limited by Federal statute achievement, in the most integrated

or executive order to a different class setting appropriate to the person's of handicapped persons is not prohibneeds.

ited by this part. (3) Despite the existence of separate or different aid, benefits, or services (45 FR 30936, May 9, 1980, as amended at 65 provided in accordance with this part,

FR 68054, Nov. 13, 2000) a recipient may not deny a qualified handicapped person the opportunity to

$ 104.5 Assurances required. participate in such aid, benefits, or (a) Assurances. An applicant for Fedservices that are not separate or dif eral financial assistance to which this ferent.

part applies shall submit an assurance, (4) A recipient may not, directly or on a form specified by the Assistant through contractual or other arrange Secretary, that the program or activments, utilize criteria or methods of ity will be operated in compliance with

this part. An applicant may incor- for financing construction of new, or porate these assurances by reference in improvement of existing, facilities on subsequent applications to the Depart- the property for the purposes for which ment.

the property was transferred, the As(b) Duration of obligation. (1) In the sistant Secretary may, upon request of case of Federal financial assistance ex the transferee and if necessary to actended in the form of real property or complish such financing and upon such to provide real property or structures conditions as he or she deems approon the property, the assurance will ob priate, agree to forbear the exercise of ligate the recipient or, in the case of a such right to revert title for so long as subsequent transfer, the transferee, for the lien of such mortgage or other enthe period during which the real prop cumbrance remains effective. erty or structures are used for the pur

[45 FR 30936, May 9, 1980, as amended at 65 pose for which Federal financial assist

FR 68054, Nov. 13, 2000) ance is extended or for another purpose involving the provision of similar serv $ 104.6 Remedial action, voluntary acices or benefits.

tion, and self-evaluation. (2) In the case of Federal financial as (a) Remedial action. (1) If the Assistsistance extended to provide personal ant Secretary finds that a recipient has property, the assurance will obligate discriminated against persons on the the recipient for the period during basis of handicap in violation of secwhich it retains ownership or posses- tion 504 or this part, the recipient shall sion of the property.

take such remedial action as the As(3) In all other cases the assurance sistant Secretary deems necessary to will obligate the recipient for the pe overcome the effects of the discriminariod during which Federal financial as tion. sistance is extended.

(2) Where a recipient is found to have (c) Covenants. (1) Where Federal fi- discriminated against persons on the nancial assistance is provided in the basis of handicap in violation of secform of real property or interest in the tion 504 or this part and where another property from the Department, the in- recipient exercises control over the restrument effecting or recording this cipient that has discriminated, the Astransfer shall contain a covenant run sistant Secretary, where appropriate, ning with the land to assure non may require either or both recipients discrimination for the period during to take remedial action. which the real property is used for a (3) The Assistant Secretary may, purpose for which the Federal financial where necessary to overcome the efassistance is extended or for another fects of discrimination in violation of purpose involving the provision of section 504 or this part, require a resimilar services or benefits.

cipient to take remedial action (1) with (2) Where no transfer of property is respect to handicapped persons who are involved but property is purchased or no longer participants in the recipiimproved with Federal financial assist ent's program or activity but who were ance, the recipient shall agree to in- participants in the program or activity clude the covenant described in para when such discrimination occurred or graph (b)(2) of this section in the in (ii) with respect to handicapped perstrument effecting or recording any sons who would have been participants subsequent transfer of the property. in the program or activity had the dis

(3) Where Federal financial assist crimination not occurred. ance is provided in the form of real (b) Voluntary action. A recipient may property or interest in the property take steps, in addition to any action from the Department, the covenant that is required by this part, to overshall also include a condition coupled come the effects of conditions that rewith a right to be reserved by the De sulted in limited participation in the partment to revert title to the prop- recipient's program or activity by erty in the event of a breach of the cov- qualified handicapped persons. enant. If a transferee of real property (c) Self-evaluation. (1) A recipient proposes to mortgage or otherwise en- shall, within one year of the effective cumber the real property as security date of this part:

(1) Evaluate, with the assistance of to postsecondary educational instituinterested persons, including handi- tions. capped persons or organizations representing handicapped persons, its cur

$104.8 Notice. rent policies and practices and the ef (a) A recipient that employs fifteen fects thereof that do not or may not or more persons shall take appropriate meet the requirements of this part; initial and continuing steps to notify

(ii) Modify, after consultation with participants, beneficiaries, applicants, interested persons, including handi and employees, including those with capped persons or organizations rep- impaired vision or hearing, and unions resenting handicapped persons, any or professional organizations holding policies and practices that do not meet collective bargaining or professional the requirements of this part; and agreements with the recipient that it

(iii) Take, after consultation with in does not discriminate on the basis of terested persons, including handi- handicap in violation of section 504 and capped persons or organizations rep this part. The notification shall state, resenting handicapped persons, appro

where appropriate, that the recipient priate remedial steps to eliminate the

does not discriminate in admission or effects of any discrimination that re

access to, or treatment or employment sulted from adherence to these policies

in, its program or activity. The notifiand practices.

cation shall also include an identifica(2) A recipient that employs fifteen

tion of the responsible employee desor more persons shall, for at least three

ignated pursuant to $104.7(a). A recipiyears following completion of the eval

ent shall make the initial notification uation required under paragraph (c)(1)

required by this paragraph within 90 of this section, maintain on file, make

days of the effective date of this part. available for public inspection, and

Methods of initial and continuing notiprovide to the Assistant Secretary

fication may include the posting of noupon request:

tices, publication in newspapers and (i) A list of the interested persons

magazines, placement of notices in reconsulted,

cipients' publication, and distribution

of memoranda or other written com(ii) A description of areas examined

munications. and any problems identified, and

(b) If a recipient publishes or uses re(iii) A description of any modifica

cruitment materials or publications tions made and of any remedial steps

containing general information that it taken.

makes available to participants, bene[45 FR 30936, May 9, 1980, as amended at 65 ficiaries, applicants, or employees, it FR 68054, Nov. 13, 2000)

shall include in those materials or pub

lications a statement of the policy de$ 104.7 Designation of responsible em scribed in paragraph (a) of this section.

ployee and adoption of grievance A recipient may meet the requirement procedures.

of this paragraph either by including (a) Designation of responsible employee. appropriate inserts in existing mateA recipient that employs fifteen or rials and publications or by revising more persons shall designate at least and reprinting the materials and publione person to coordinate its efforts to cations. comply with this part.

[45 FR 30936, May 9, 1980, as amended at 65 (b) Adoption of grievance procedures. A FR 68054, Nov. 13, 2000) recipient that employs fifteen or more persons shall adopt grievance proce $ 104.9 Administrative requirements dures that incorporate appropriate due

for small recipients. process standards and that provide for The Assistant Secretary may require the prompt and equitable resolution of any recipient with fewer than fifteen complaints alleging any action prohib- employees, or any class of such recipiited by this part. Such procedures need ents, to comply with $$ 104.7 and 104.8, not be established with respect to com in whole or in part, when the Assistant plaints from applicants for employ- Secretary finds a violation of this part ment or from applicants for admission or finds that such compliance will not

significantly impair the ability of the fringe benefits to employees of the rerecipient or class of recipients to pro- cipient, and with organizations provide benefits or services.

viding training and apprenticeships.

(b) Specific activities. The provisions $ 104.10 Effect of state or local law or of this subpart apply to: other requirements and effect of

(1) Recruitment, advertising, and the employment opportunities.

processing of applications for employ(a) The obligation to comply with ment; this part is not obviated or alleviated (2) Hiring, upgrading, promotion, by the existence of any state or local award of tenure, demotion, transfer, law or other requirement that, on the layoff, termination, right of return basis of handicap, imposes prohibitions from layoff and rehiring; or limits upon the eligibility of quali (3) Rates of pay or any other form of fied handicapped persons to receive compensation and changes in comservices or to practice any occupation pensation; or profession.

(4) Job assignments, job classifica(b) The obligation to comply with tions, organizational structures, posithis part is not obviated or alleviated tion descriptions, lines of progression, because employment opportunities in and seniority lists; any occupation or profession are or (5) Leaves of absense, sick leave, or may be more limited for handicapped any other leave; persons than for nonhandicapped per (6) Fringe benefits available by virsons.

tue of employment, whether or not ad

ministered by the recipient; Subpart B-Employment Practices (7) Selection and financial support

for training, including apprenticeship, $ 104.11 Discrimination prohibited. professional meetings, conferences, and (a) General. (1) No qualified handi

other related activities, and selection capped person shall, on the basis of

for leaves of absence to pursue trainhandicap, be subjected to discrimina

ing; tion in employment under any program

(8) Employer sponsored activities, inor activity to which this part applies.

cluding those that are social or rec(2) A recipient that receives assist

reational; and ance under the Education of the Handi

(9) Any other term, condition, or capped Act shall take positive steps to privilege of employment. employ and advance in employment

(c) A recipient's obligation to comply qualified handicapped persons in pro

with this subpart is not affected by any grams or activities assisted under that

inconsistent term of any collective Act.

bargaining agreement to which it is a (3) A recipient shall make all deci party. sions concerning employment under [45 FR 30936, May 9, 1980, as amended at 65 any program or activity to which this FR 68055, Nov. 13, 2000) part applies in a manner which ensures that discrimination on the basis of

$ 104.12 Reasonable accommodation. handicap does not occur and may not (a) A recipient shall make reasonable limit, segregate, or classify applicants accommodation to the known physical or employees in any way that ad or mental limitations of an otherwise versely affects their opportunities or qualified handicapped applicant or emstatus because of handicap.

ployee unless the recipient can dem(4) A recipient may not participate in onstrate that the accommodation

contractual or other relationship would impose an undue hardship on the that has the effect of subjecting quali- operation of its program or activity. fied handicapped applicants or employ (b) Reasonable accommodation may res to discrimination prohibited by include: this subpart. The relationships referred (1) Making facilities used by employso in this paragraph include relation ees readily accessible to and usable by ships with employment and referral handicapped persons, and agencies, with labor unions, with orga (2) Job restructuring, part-time or nizations providing or administering modified work schedules, acquisition

or modification of equipment or de $104.14 Preemployment inquiries. vices, the provision of readers or inter

(a) Except as provided in paragraphs preters, and other similar actions.

(b) and (c) of this section, a recipient (c) In determining pursuant to paragraph (a) of this section whether an ac

may not conduct a preemployment

medical examination or may not make commodation would impose an undue

preemployment inquiry of an applicant hardship on the operation of a recipi

as to whether the applicant is a handient's program or activity, factors to be considered include:

capped person or as to the nature or se(1) The overall size of the recipient's however, make preemployment inquiry

verity of a handicap. A recipient may, program or activity with respect to number of employees, number and type job-related functions.

into an applicant's ability to perform of facilities, and size of budget; (2) The type of the recipient's oper

(b) When a recipient is taking reme

dial action to correct the effects of ation, including the composition and

past discrimination pursuant to $104.6 structure of the recipient's workforce;

(a), when a recipient is taking voland

untary action to overcome the effects (3) The nature and cost of the accom

of conditions that resulted in limited modation needed.

participation in its federally assisted (d) A recipient may not deny any employment opportunity to a qualified

program or activity pursuant to handicapped employee or applicant if $104.6(b), or when a recipient is taking the basis for the denial is the need to

affirmative action pursuant to section make reasonable accommodation to

503 of the Act, the recipient may invite the physical or mental limitations of

applicants for employment to indicate

whether and to what extent they are the employee or applicant.

handicapped, Provided, That: [45 FR 30936, May 9, 2000, as amended at 65 (1) The recipient states clearly on FR 68054, Nov. 13, 2000]

any written questionnaire used for this

purpose or makes clear orally if no $ 104.13 Employment criteria.

written questionnaire is used that the (a) A recipient may not make use of information requested is intended for any employment test or other selection use solely in connection with its remecriterion that screens out or tends to dial action obligations or its voluntary screen out handicapped persons or any or affirmative action efforts; and class of handicapped persons unless: (2) The recipient states clearly that

(1) The test score or other selection the information is being requested on a criterion, as used by the recipient, is voluntary basis, that it will be kept shown to be job-related for the position confidential as provided in paragraph in question, and

(d) of this section, that refusal to pro(2) Alternative job-related tests or vide it will not subject the applicant or criteria that do not screen out or tend employee to any adverse treatment, to screen out as many handicapped per and that it will be used only in accordsons are not shown by the Director to ance with this part. be available.

(c) Nothing in this section shall pro(b) A recipient shall select and ad hibit a recipient from conditioning an minister tests concerning employment offer of employment on the results of a so as best to ensure that, when admin medical examination conducted prior istered to an applicant or employee to the employee's entrance on duty, who has a handicap that impairs sen Provided, That: sory, manual, or speaking skills, the (1) All entering employees are subtest results accurately reflect the ap jected to such an examination regardplicant's or employee's job skills, apti less of handicap, and tude, or whatever other factor the test (2) The results of such an examinapurports to measure, rather than re tion are used only in accordance with flecting the applicant's or employee's the requirements of this part. impaired sensory, manual, or speaking (d) Information obtained in accordskills (except where those skills are ance with this section as to the medthe factors that the test purports to ical condition or history of the applimeasure).

cant shall be collected and maintained

« PreviousContinue »