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Disability Nondiscrimination Law Advisor

Section 504 of the Rehabilitation Act of 1973, as amended

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Summary

The Rehabilitation Act of 1973 was the first Federal law prohibiting discrimination against individuals with disabilities. It became the foundation for later disability nondiscrimination laws, including the Americans with Disabilities Act (ADA). Section 504 is the part of the Rehabilitation Act that prohibits discrimination against, and requires positive actions to assist, qualified individuals with disabilities in all programs, services and activities that receive Federal financial assistance or are conducted by Federal agencies. See 29 CFR 32.4. Each Federal agency issues, administers and enforces its own set of Section 504 regulations that are tailored to its programs, although all such regulations share common requirements. The Department of Labor's (DOL) Section 504 regulations are enforced by the agency's Civil Rights Center, and they apply to all employers, businesses and organizations that receive financial assistance from DOL. If your business or organization receives financial assistance from another Federal agency, be sure to consult that agency's 504 regulations. If your business or organization does not appear to receive financial assistance from DOL, but offers programs or activities through or otherwise participates in the One-Stop Career Center service delivery system, see Section 188 of the Workforce Investment Act.

Note that the information provided in this Advisor will focus on a covered entity's obligations under Section 504 in conducting programs or activities supported with DOL financial assistance. This Advisor will not address the part of Section 504 that governs programs conducted by DOL or other Federal agencies. For links to other Federal agencies' Section 504 regulations, please refer to the Resources section below.

Who is Affected by Section 504

Covered Entities: Section 504 generally applies to all employers, agencies, businesses, organizations and programs that receive Federal financial assistance.

Protected Individuals: Section 504 protects qualified individuals with disabilities who are job applicants and employees and those individuals with disabilities who are applicants, participants and/or beneficiaries of the covered entities' Federally financed programs or activities.

Covered Entities' Responsibilities Under Section 504 – Employment Practices and Employment-Related Training Under Any DOL Financially Assisted Program or Activity

Section 504 and its implementing regulations include specific requirements for covered entities with regard to employment practices and employment-related training under any DOL financially assisted program or activity. Listed below are the key responsibilities. For a complete list, see DOL's regulations implementing Section 504 at 29 CFR Part 32.

  • Nondiscrimination. Covered entities may not discriminate against qualified individuals with disabilities in any of their employment and personnel practices, including recruitment, job application procedures, hiring, compensation, promotion and career advancement, demotion or termination, job assignments, training, leaves of absence, fringe benefits and all other terms, conditions and privileges of employment. In addition, covered entities may not discriminate against qualified participants with disabilities in employment-related training financed in whole or in part with DOL financial assistance. See 29 CFR 32.12.
  • Reasonable Accommodations. Covered entities must provide reasonable accommodations that enable qualified job applicants and employees with disabilities to participate in the application process, to perform essential job functions, and receive benefits and privileges equal to those of job applicants and employees without disabilities. In addition, covered entities must provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified registrant, eligible registrant, or participant with a disability in order to enable the individual to enjoy the benefits and privileges equal to those of other registrants, eligible registrants, and participants without disabilities. Covered entities are not required to provide any accommodation that would impose an undue hardship on the operation of their organization. See 29 CFR 32.13.
  • Medical Examinations and Pre-Employment Inquiries. Covered entities must ensure that all medical examinations and pre-employment medical inquiries are limited to those allowed under the law. Before extending a job offer, covered entities generally may not require pre-employment medical examinations or make disability-related inquiries (questions that are likely to reveal whether an applicant is an individual with a disability or the nature or severity of a disability). Covered entities may, however, make pre-offer inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the essential functions of the job. See 29 CFR 32.15.

    Covered entities may also require a medical examination or make a disability-related inquiry after making an offer of employment but before the applicant begins his or her duties, and may condition the employment offer on the results of such an inquiry or examination, if all entering employees into the same job category are subjected to such an examination or inquiry, regardless of disability. If a job offer is withdrawn because of a disability, the selection criteria used must be job-related and consistent with business necessity. In addition, the covered entity may require a medical examination or make an inquiry of a current employee if the examination or inquiry is job-related and consistent with business necessity. See 29 CFR 32.15.

    In the context of selecting applicants for employment-related training, whether a covered entity may make disability-related inquiries generally depends on whether an offer of training has been made to the individual and whether the training has begun. Generally, covered entities may not make disability-related inquiries prior to making an offer of training. Once an offer of training has been made but before the training has started, covered entities may make disability-related inquiries, provided that all individuals selected for the training are subjected to the same questions regardless of disability. In addition, covered entities may require a medical examination or make an inquiry of a current trainee if the examination or inquiry is related to the training and is consistent with business necessity. See 29 CFR 32.15.

    Medical information must be kept confidential. This includes requiring that such information be collected and stored separately from other personnel information. Section 504 permits employers to disclose medical or disability-related information about a particular individual to specifically listed persons or entities for specific reasons. See 29 CFR 32.15(d).
  • Assurances. Covered entities must include a specific assurance in each of their applications for Federal financial assistance that the program or activity for which they are seeking Federal financial assistance will operate in compliance with 29 CFR Part 32. See 29 CFR 32.5.
  • Self-evaluations. Within a year of first receiving Federal financial assistance, a covered entity must, with the assistance of interested persons, including individuals with disabilities and organizations representing individuals with disabilities, evaluate its current policies and procedures (and the effects of those policies and procedures) to ensure compliance with Section 504 and its implementing regulations. If needed, the entity must then modify any policies or procedures that do not meet the requirements of Section 504 or the regulations, and take appropriate remedial steps to eliminate the effects of any discrimination that resulted from those policies and procedures. See 29 CFR 32.6(c).
  • Disability Coordinator. Covered entities that are not small recipients must designate a Disability Coordinator to coordinate compliance with Section 504 and its implementing regulations. See 29 CFR 32.7.
  • Notice. Covered entities must notify participants, beneficiaries, referral sources, applicants for employment and employment-related training, and employees, including those with impaired vision or hearing, that they do not discriminate against qualified individuals with disabilities on the basis of disability. For covered entities that are not small recipients, this notice must identify the entity's Disability Coordinator. Permissible methods of notification include posting; disseminating in internal memoranda and other written communications; and publishing in newspapers, magazines, or publications. See 29 CFR 32.8.
  • Recordkeeping. Covered entities are required to keep personnel and employment records and records regarding complaints and actions taken regarding them for at least three years. See 29 CFR 32.49.
  • Listing of Employment Openings. Covered entities must ask State employment security agencies to refer qualified individuals with disabilities for consideration for employment. See 29 CFR 32.16.
  • Job Qualifications/Selection Criteria. Covered entities must develop and follow schedules for regularly reviewing job qualifications, tests, and other criteria used to select employees for employment, training, and other changes in employment status, such as promotion, demotion or training. These reviews must be conducted to ensure that the criteria are not inappropriately screening out qualified individuals with disabilities (either individually or collectively) solely because of those disabilities. Selection criteria that disproportionately exclude individuals with disabilities are allowed in the employment context only if they can be proven to be job-related and consistent with business necessity. See 29 CFR 32.14.
  • Compliance Reviews. Covered entities are subject to periodic compliance reviews and must provide compliance reports to DOL when requested. Such reports must include information necessary to allow DOL to determine whether the entity is in compliance with Section 504. For example, covered entities should have data showing the extent to which known individuals with disabilities are beneficiaries and participants in DOL financially-assisted programs and activities. See 29 CFR 32.44 and 29 CFR 32.45.
  • Complaint Procedures. Covered entities must adopt and publish procedures for resolving complaints alleging any violation of DOL's Section 504 regulations. See 29 CFR 32.45.
  • Architectural Accessibility. Covered entities must ensure that their facilities or portions of their facilities comply with specific Federal architectural accessibility standards if the construction or alteration of the specific facility or part of a facility began after the receipt of Federal financial assistance. See 29 CFR 32.28 and Resources section below for additional information regarding architectural accessibility.
  • Program Accessibility. In addition to the architectural accessibility obligations, covered entities must ensure that their DOL financially assisted programs and activities, including employment-related training, are readily accessible to qualified individuals with disabilities, when each program and/or activity is viewed in its entirety. Under the program accessibility requirements, a covered entity must set up each of its programs and activities in advance to be accessible to qualified persons with disabilities when looked at as a whole. This requirement is separate and apart from the requirement to provide a specific individual with a reasonable accommodation. The requirement does not mean that every facility or part of a facility that is used to provide a program or activity, and that is not required to comply with Federal architectural accessibility standards, must be accessible to and usable by qualified people with disabilities. However, if a particular program or activity is offered at only one site that is not subject to Federal architectural accessibility standards, that site must be made accessible, or the program or activity must be made available at an alternative, accessible site or sites. In addition, every aspect of a program or activity (such as intake, assessment, or training) must be accessible.

    Under the program accessibility requirements, a covered entity is not obligated to make structural changes to a facility or part of a facility that is not subject to Federal architectural accessibility requirements if other ways of providing access for individuals with disabilities (such as redesigning equipment, moving classes or other services to accessible locations, or assigning aides to work with individuals with disabilities) are possible. However, two specific legal requirements apply to such alternative arrangements:
    • Every covered entity must provide programs and activities to people with disabilities in the most integrated setting possible; and
    • Covered entities may be required to alter or renovate its facilities if there is no other possible way of providing program accessibility.
    See 29 CFR 32.27.
  • Retaliation, Intimidation, and Interference. Covered entities must take all necessary actions to ensure that no one intimidates or discriminates against any individual for taking certain actions, such as filing a complaint, opposing an unlawful action, or participating in an investigation or any other activity, related to the administration of Section 504. See 29 CFR 32.45.

Covered Entities’ Responsibilities Under Section 504 - Provision of Aid, Benefits, Services, and Training

Section 504 and its implementing regulations include specific requirements for covered entities with regard to the provision of aid, benefits, services and training. Listed below are the key responsibilities for recipients of DOL financial assistance that operate programs or activities.

  • Nondiscrimination. Covered entities may not discriminate against qualified individuals with disabilities in the provision of aid, benefits, services, and training (including the application process for any of these) and are required to take positive action such as providing auxiliary aids or services. In addition, covered entities may not, either directly or through contracts, utilize criteria or methods of administration that have the effect of discriminating against persons with disabilities. See 29 CFR 32.4.
  • Disability-Related Inquiries. Covered entities may make certain disability-related inquiries. Unlike in the employment context, in the context of providing aid, benefits, services, and non-employment related training, disability-related inquiries are lawful and may be helpful in providing services tailored to the needs of the individual. When making such disability-related inquiries, it would be prudent for a covered entity to explain that providing any information is voluntary, that the information will be kept confidential, that refusal to provide information will in no way affect the services or benefits received and that any information provided will be used only in accordance with the law. Although disability-related inquiries necessary to providing appropriate services are permissible, inquiries that have the effect of discriminating are not. See 29 CFR 32.4.
  • Assurances. Covered entities must include a specific assurance in each of their applications for Federal financial assistance that the program or activity for which they are seeking Federal financial assistance will operate in compliance with 29 CFR Part 32. See 29 CFR 32.5.
  • Self-Evaluations. Within a year of first receiving Federal financial assistance, a covered entity must, with the assistance of interested persons, including individuals with disabilities and organizations representing people with disabilities, evaluate its current policies and procedures (and the effects of those policies and procedures) to ensure compliance with Section 504 and its implementing regulations. If needed, the entity must then modify any policies or procedures that do not meet the requirements of Section 504 or the regulations, and take appropriate remedial steps to eliminate the effects of any discrimination that resulted from those policies and procedures. See 29 CFR 32.6(c).
  • Disability Coordinator. Covered entities that are not small recipients must designate a Disability Coordinator to coordinate compliance with Section 504 and its implementing regulations. See 29 CFR 32.7.
  • Notice. Covered entities must notify participants and beneficiaries that they do not discriminate against qualified individuals with disabilities on the basis of disability. For covered entities that are not small recipients, this notice must identify the entity's Disability Coordinator. Permissible methods of notification include posting; disseminating in internal memoranda and other written communications; and publishing in newspapers, magazines, or publications. See 29 CFR 32.8.
  • Recordkeeping. Covered entities are required to keep records regarding complaints and actions taken regarding them for at least three years. See 29 CFR 32.49.
  • Compliance Reviews. Covered entities are subject to periodic compliance reviews and must provide compliance reports to DOL when requested. Such reports must include information necessary to allow DOL to determine whether the entity is in compliance with Section 504. For example, covered entities should have data showing the extent to which known individuals with disabilities are beneficiaries and participants in DOL financially assisted programs and activities. See 29 CFR 32.44 and 29 CFR 32.45.
  • Complaint Procedures. Covered entities must adopt and publish procedures for resolving complaints that allege violation of DOL's Section 504 regulations. See 29 CFR 32.45.
  • Architectural Accessibility. Covered entities must ensure that their facilities or portions of their facilities comply with specific Federal architectural accessibility standards if the construction or alteration of the specific facility or part of a facility began after the receipt of Federal financial assistance.  See 29 CFR 32.28 and Resources section below for additional information regarding architectural accessibility.
  • Program Accessibility. In addition to the architectural accessibility obligations, covered entities must ensure that their DOL financially assisted programs and activities, including employment-related training, are readily accessible to qualified individuals with disabilities, when each program and/or activity is viewed in its entirety. Under the program accessibility requirements, a covered entity must set up each of its programs and activities in advance to be accessible to qualified persons with disabilities when looked at as a whole. This requirement is separate and apart from the requirement to provide a specific individual with a reasonable accommodation. The requirement does not mean that every facility or part of a facility that is used to provide a program or activity, and that is not required to comply with Federal architectural accessibility standards, must be accessible to and usable by qualified people with disabilities. However, if a particular program or activity is offered at only one site that is not subject to Federal architectural accessibility standards, that site must be made accessible, or the program or activity must be made available at an alternative, accessible site or sites. In addition, every aspect of a program or activity (such as intake, assessment, or training) must be accessible.

    Under the program accessibility requirements, a covered entity is not obligated to make structural changes to a facility or part of a facility that is not subject to Federal architectural accessibility requirements if other ways of providing access for people with disabilities (such as redesigning equipment, moving classes or other services to accessible locations, or assigning aides to work with individuals with disabilities) are possible. However, two specific legal requirements apply to such alternative arrangements:
    • Every covered entity must provide programs and activities to people with disabilities in the most integrated setting possible; and
    • A covered entity may be required to alter or renovate its facilities if there is no other possible way of providing program accessibility.

    See 29 CFR 32.27.
  • Retaliation, Intimidation, and Interference. Covered entities must take all necessary actions to ensure that no one intimidates or discriminates against any individual for taking certain actions, such as filing a complaint, opposing an unlawful action, or participating in an investigation or any other activity, related to the administration of Section 504. See 29 CFR 32.45(g).

Section 504 and Other Federal Disability Nondiscrimination Laws

Most employers are covered by more than one Federal law prohibiting discrimination against job applicants and employees with disabilities. For example, some are covered by Section 504 and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA).

The general principles underlying all the Federal disability nondiscrimination laws are consistent, although the disability-related requirements imposed by some of the laws may be more detailed or specific than an agency's Section 504 rules. Complying with the disability-related obligations imposed under the other nondiscrimination laws will not cause organizations to violate Section 504 rules and, in many situations, will actually satisfy the Section 504 requirements. For example, organizations that have Federal contracts or subcontracts may be covered by Section 503 of the Rehabilitation Act. DOL's Section 504 regulations state that if covered contractors comply with the Section 503 regulations, DOL will consider them in compliance with DOL's Section 504 regulations as well.

It is important to note that some state laws also mandate additional responsibilities for organizations or provide additional protections for job applicants and employees with disabilities. Organizations need to be familiar with all of the disability nondiscrimination requirements that apply to their business or organization.

Resources

Applicable Law

Federal Agencies with 504 Enforcement Responsibilities

Information on Architectural Accessibility

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UNITED STATES
DEPARTMENT OF LABOR