[Title 28 CFR 41]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 41 - IMPLEMENTATION OF EXECUTIVE ORDER 12250, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseIMPLEMENTATION OF EXECUTIVE ORDER 12250, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS41PART 41JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 41--IMPLEMENTATION OF EXECUTIVE ORDER 12250, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS--Table of Contents
Subpart A--Federal Agency Responsibilities
Sec.
41.1 Purpose.
41.2 Application.
41.3 Definitions.
41.4 Issuance of agency regulations.
41.5 Enforcement.
41.6 Interagency cooperation.
41.7 Coordination with sections 502 and 503.
Subpart B--Standards for Determining Who Are Handicapped Persons
41.31 Handicapped person.
41.32 Qualified handicapped person.
Subpart C--Guidelines for Determining Discriminatory Practices
General
41.51 General prohibitions against discrimination.
Employment
41.52 General prohibitions against employment discrimination.
41.53 Reasonable accommodation.
41.54 Employment criteria.
41.55 Preemployment inquiries.
Program Accessibility
41.56 General requirement concerning program accessibility.
41.57 Existing facilities.
41.58 New construction.
Appendix A to Part 41--Leadership and Coordination of Nondiscrimination
Laws
Authority: Executive Order 12250, 45 FR 72995; sec. 504,
Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 394 (29 U.S.C.
794); sec. 111(a), Rehabilitation Act Amendments of 1974, Pub. L. 93-
516, 88 Stat. 1619 (29 U.S.C. 706).
Source: 43 FR 2132, Jan. 13, 1978, unless otherwise noted.
Redesignated at 46 FR 40686, 40687, Aug. 11, 1981.
Effective Date Note: At 46 FR 40687, Aug. 11, 1981, the application
of part 41 with respect to mass transportation was suspended until
further notice.
Subpart A--Federal Agency Responsibilities
Sec. 41.1 Purpose.
The purpose of this part is to implement Executive Order 12250,
which requires the Department of Justice to coordinate the
implementation of section 504 of the Rehabilitation Act of 1973.
[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686,
40687, Aug. 11, 1981]
Sec. 41.2 Application.
This part applies to each Federal department and agency that is
empowered to extend Federal financial assistance.
[[Page 755]]
Sec. 41.3 Definitions.
As used in this regulation, the term:
(a) Executive Order means Executive Order 12250, titled ``Leadership
and Coordination of Nondiscrimination Laws,'' issued November 2, 1980.
(b) Section 504 means section 504 of the Rehabilitation Act of 1973,
Public Law 93-112, as amended by the Rehabilitation Act Amendments of
1974, Public Law 93-516, 29 U.S.C. 794.
(c) Agency means a Federal department or agency that is empowered to
extend financial assistance.
(d) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of the
assistance.
(e) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement by which the agency provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government.
(f) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686,
40687, Aug. 11, 1981]
Sec. 41.4 Issuance of agency regulations.
(a) Each agency shall issue, after notice and opportunity for
comment, a regulation to implement section 504 with respect to the
programs and activities to which it provides assistance. The regulation
shall be consistent with this part.
(b) Each agency shall issue a notice of proposed rulemaking no later
than 90 days after the effective date of this part. Each agency shall
issue a final regulation no later than 135 days after the end of the
period for comment on its proposed regulation: Provided, That the agency
shall submit its proposed final regulation to the Assistant Attorney
General, Civil Rights Division, Department of Justice, for review at
least 45 days before it is to be issued.
(c) Each such agency regulation shall:
(1) Define appropriate terms, consistent with the definitions set
forth in Sec. 41.3 and with the standards for determining who are
handicapped persons set forth in subpart B of this part; and
(2) Prohibit discriminatory practices against qualified handicapped
persons in employment and in the provision of aid, benefits, or
services, consistent with the guidelines set forth in subpart C of this
part.
The regulation shall include, where appropriate, specific provisions
adapted to the particular programs and activities receiving financial
assistance from the agency.
[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686,
40687, Aug. 11, 1981]
Sec. 41.5 Enforcement.
(a) Each agency shall establish a system for the enforcement of
section 504 and its implementing regulation with respect to the programs
and activities to which it provides assistance. The system shall
include:
(1) The enforcement and hearing procedures that the agency has
adopted for the enforcement of title VI of the Civil Rights Act of 1964,
and
(2) A requirement that recipients sign assurances of compliance with
section 504.
(b) Each agency regulation shall also include requirements that
recipients:
(1) Notify employees and beneficiaries of their rights under section
504,
(2) Conduct a self-evaluation of their compliance with section 504,
with the
[[Page 756]]
assistance of interested persons, including handicapped persons or
organizations representing handicapped persons, and
(3) Otherwise consult with interested persons, including handicapped
persons or organizations representing handicapped persons, in achieving
compliance with section 504.
Sec. 41.6 Interagency cooperation.
(a) Where each of a substantial number of recipients is receiving
assistance for similar or related purposes from two or more agencies or
where two or more agencies cooperate in administering assistance for a
given class of recipients, the agencies shall:
(1) Coordinate compliance with section 504, and
(2) Designate one of the agencies as the primary agency for section
504 compliance purposes.
(b) Any agency conducting a compliance review or investigating a
compliant of an alleged section 504 violation shall notify any other
affected agency upon discovery of its jurisdiction and shall inform it
of the findings made. Reviews or investigations may be made on a joint
basis.
Sec. 41.7 Coordination with sections 502 and 503.
(a) Agencies shall consult with the Architectural and Transportation
Barriers Compliance Board in developing requirements for the
accessibility of new facilities and alterations, as required in
Sec. 41.58, and shall coordinate with the Board in enforcing such
requirements with respect to facilities that are subject to section 502
of the Rehabilitation Act of 1973, as amended, as well as to section
504.
(b) Agencies shall coordinate with the Department of Labor in
enforcing requirements concerning employment discriminination with
respect to recipients that are also federal contractors subject to
section 503 of the Rehabilitation Act of 1973, as amended.
Subpart B--Standards for Determining Who Are Handicapped Persons
Sec. 41.31 Handicapped person.
(a) Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
(b) As used in paragraph (a) of this section, the phrase:
(1) Physical or mental impairment means:
(i) 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.
(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 is treated by a
[[Page 757]]
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 paragraph (b)(1) of
this section but is treated by a recipient as having such an impairment.
Sec. 41.32 Qualified handicapped person.
Qualified handicapped person means:
(a) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question and
(b) With respect to services, a handicapped person who meets the
essential eligibility requirements for the receipt of such services.
Subpart C--Guidelines for Determining Discriminatory Practices
General
Sec. 41.51 General prohibitions against discrimination.
(a) No qualified handicapped person, 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 financial assistance.
(b)(1) A recipient, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an agency, organization,
or person that discriminates on the basis of handicap in providing any
aid, benefit, or service to beneficiaries of the recipient's program;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) A recipient may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped persons
to discrimination on the basis of handicap,
(ii) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program
with respect to handicapped persons, or
(iii) That perpetuate the discrimination of another recipient if
both recipients are subject to common administrative control or are
agencies of the same state.
(4) A recipient may not, in determining the site or location of a
facility, make selections:
(i) That have the effect of excluding handicapped persons from,
denying them the benefits of, or otherwise subjecting them to
discrimination under any program or activity that receives
[[Page 758]]
or benefits from federal financial assistance or
(ii) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to handicapped persons.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by federal statute or executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by federal statute or executive order to a different
class of handicapped persons is not prohibited by this part.
(d) Recipients shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
(e) Recipients shall take appropriate steps to ensure that
communications with their applicants, employees, and beneficiaries are
available to persons with impaired vision and hearing.
Employment
Sec. 41.52 General prohibitions against employment discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be subjected to discrimination in employment under any program or
activity that receives or benefits from federal financial assistance.
(b) A recipient shall make all decisions concerning employment under
any program or activity to which this part 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) The prohibition against discrimination in employment applies to
the following activities:
(1) Recruitment, advertising, and the 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 leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and 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 or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(d) 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, with labor unions, with
organizations providing or administering fringe benefits to employees of
the recipient, and with organizations providing training and
apprenticeship programs.
Sec. 41.53 Reasonable accommodation.
A recipient shall make reasonable accommodation to the known
physical or mental 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.
Sec. 41.54 Employment criteria.
A recipient may not use employment tests or criteria that
discriminate against handicapped persons and shall ensure that
employment tests are adapted for use by persons who have handicaps that
impair sensory, manual, or speaking skills.
Sec. 41.55 Preemployment inquiries.
A recipient may not conduct a preemployment medical examination or
make a preemployment inquiry as to whether an applicant is a handicapped
[[Page 759]]
person or as to the nature or severity of a handicap except under the
circumstances described in 28 CFR 42.513.
[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686,
40687, Aug. 11, 1981]
Program Accessibility
Sec. 41.56 General requirement concerning program accessibility.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity that
receives or benefits from federal financial assistance.
Sec. 41.57 Existing facilities.
(a) A recipient shall operate each program or activity so that the
program or activity, when viewed in its entirety, is readily accessible
to and usable by handicapped persons. This paragraph does not
necessarily require a recipient to make each of its existing facilities
or every part of an existing facility accessible to and usable by
handicapped persons.
(b) Where structural changes are necessary to make programs or
activities in existing facilities accessible, such changes shall be made
as soon as practicable, but in no event later than three years after the
effective date of the agency regulation: Provided, That, if the program
is a particular mode of transportation (e.g., a subway system) that can
be made accessible only through extraordinarily expensive structural
changes to, or replacement of, existing facilities and if other
accessible modes of transportation are available, the federal agency
responsible for enforcing section 504 with respect to that program may
extend this period of time, but only for a reasonable and definite
period, such period to be set forth in the agency's regulation.
(c) In the event that structural changes to facilities are necessary
to meet the requirement of paragraph (a) of this section, a recipient
shall develop, within a definite period to be established in each
agency's regulation, a transition plan setting forth the steps necessary
to complete such changes. The plan shall be developed with the
assistance of interested persons, including handicapped persons or
organizations representing handicapped persons.
[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686,
40687, Aug. 11, 1981]
Effective Date Note: At Order No. 1301-88, 53 FR 37754, Sept. 28,
1988, the application of Sec. 41.57(b) to public housing timeframes was
suspended.
Sec. 41.58 New construction.
(a) Except as provided in paragraph (b) of this section, new
facilities shall be designed and constructed to be readily accessible to
and usable by handicapped persons. Alterations to existing facilities
shall, to the maximum extent feasible, be designed and constructed to be
readily accessible to and usable by handicapped persons.
(b) The Department of Transportation may defer the effective date
for requiring all new buses to be accessible if it concludes on the
basis of its section 504 rulemaking process that it is not feasible to
require compliance on the effective date of its regulation: Provided,
That comparable, accessible services are available to handicapped
persons in the interim and that the date is not deferred later than
October 1, 1979.
Appendix A to Part 41--Leadership and Coordination of Nondiscrimination
Laws
Executive Order 12250, Nov. 2, 1980
By the authority vested in me as President by the Constitution and
statutes of the United States of America, including section 602 of the
Civil Rights Act of 1964 (42 U.S.C. 2000d-1), section 902 of the
Education Amendments of 1972 (20 U.S.C. 1682), and section 301 of title
3 of the United States Code, and in order to provide, under the
leadership of the Attorney General, for the consistent and effective
implementation of various laws prohibiting discriminatory practices in
Federal programs and programs receiving Federal financial assistance, it
is hereby ordered as follows:
1-1. Delegation of Function.
1-101. The function vested in the President by section 602 of the
Civil Rights Act of 1964 (42 U.S.C. 2000d-1), relating to the approval
of rules, regulations, and orders of general applicability, is hereby
delegated to the Attorney General.
[[Page 760]]
1-102. The function vested in the President by section 902 of the
Education Amendments of 1972 (20 U.S.C. 1682), relating to the approval
of rules, regulations, and orders of general applicability, is hereby
delegated to the Attorney General.
1-2. Coordination of Nondiscrimination Provisions.
1-201. The Attorney General shall coordinate the implementation and
enforcement by Executive agencies of various nondiscrimination
provisions of the following laws:
(a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.).
(b) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et
seq.).
(c) Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794).
(d) Any other provision of Federal statutory law which provides, in
whole or in part, that no person in the United States shall, on the
ground of race, color, national origin, handicap, religion, or sex, be
excluded from participation in, be denied the benefits of, or be subject
to discrimination under any program or activity receiving Federal
financial assistance.
1-202. In furtherance of the Attorney General's responsibility for
the coordination of the implementation and enforcement of the
nondiscrimination provisions of laws covered by this Order, the Attorney
General shall review the existing and proposed rules, regulations, and
orders of general applicability of the Executive agencies in order to
identify those which are inadequate, unclear or unnecessarily
inconsistent.
1-203. The Attorney General shall develop standards and procedures
for taking enforcement actions and for conducting investigations and
compliance reviews.
1-204. The Attorney General shall issue guidelines for establishing
reasonable time limits on efforts to secure voluntary compliance, on the
initiation of sanctions, and for referral to the Department of Justice
for enforcement where there is noncompliance.
1-205. The Attorney General shall establish and implement a schedule
for the review of the agencies' regulations which implement the various
nondiscrimination laws covered by this Order.
1-206. The Attorney General shall establish guidelines and standards
for the development of consistent and effective recordkeeping and
reporting requirements by Executive agencies; for the sharing and
exchange by agencies of compliance records, findings, and supporting
documentation; for the development of comprehensive employee training
programs; for the development of effective information programs; and for
the development of cooperative programs with State and local agencies,
including sharing of information, deferring of enforcement activities,
and providing technical assistance.
1-207. The Attorney General shall initiate cooperative programs
between and among agencies, including the development of sample
memoranda of understanding, designed to improve the coordination of the
laws covered by this Order.
1-3. Implementation by the Attorney General.
1-301. In consultation with the affected agencies, the Attorney
General shall promptly prepare a plan for the implementation of this
Order. This plan shall be submitted to the Director of the Office of
Management and Budget.
1-302. The Attorney General shall periodically evaluate the
implementation of the nondiscrimination provisions of the laws covered
by this Order, and advise the heads of the agencies concerned on the
results of such evaluations as to recommendations for needed improvement
in implementation or enforcement.
1-303. The Attorney General shall carry out his functions under this
Order, including the issuance of such regulations as he deems necessary,
in consultation with affected agencies.
1-304. The Attorney General shall annually report to the President
through the Director of the Office of Management and Budget on the
progress in achieving the purposes of this Order. This report shall
include any recommendations for changes in the implementation or
enforcement of the nondiscrimination provisions of the laws covered by
this Order.
1-305. The Attorney General shall chair the Interagency Coordinating
Council established by section 507 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794c).
1-4. Agency Implementation.
1-401. Each Executive agency shall cooperate with the Attorney
General in the performance of the Attorney General's functions under
this Order and shall, unless prohibited by law, furnish such reports and
information as the Attorney General may request.
1-402. Each Executive agency responsible for implementing a
nondiscrimination provision of a law covered by this Order shall issue
appropriate implementing directives (whether in the nature of
regulations or policy guidance). To the extent permitted by law, they
shall be consistent with the requirements prescribed by the Attorney
General pursuant to this Order and shall be subject to the approval of
the Attorney General, who may require that some or all of them be
submitted for approval before taking effect.
1-403. Within 60 days after a date set by the Attorney General,
Executive agencies shall submit to the Attorney General their plans for
implementing their responsibilities under this Order.
[[Page 761]]
1-5. General Provisions.
1-501. Executive Order No. 11764 is revoked. The present regulations
of the Attorney General relating to the coordination of enforcement of
title VI of the Civil Rights Act of 1964 shall continue in effect until
revoked or modified (28 CFR 42.401 to 42.415).
1-502. Executive Order No. 11914 is revoked. The present regulations
of the Secretary of Health and Human Services relating to the
coordination of the implementation of section 504 of the Rehabilitation
Act of 1973, as amended, shall be deemed to have been issued by the
Attorney General pursuant to this Order and shall continue in effect
until revoked or modified by the Attorney General.
1-503. Nothing in this Order shall vest the Attorney General with
the authority to coordinate the implementation and enforcement by
Executive agencies of statutory provisions relating to equal employment.
1-504. Existing agency regulations implementing the
nondiscrimination provisions of laws covered by this Order shall
continue in effect until revoked or modified.
Jimmy Carter
The White House,
November 2, 1980.
[47 FR 32421, July 27, 1982]