[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]