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- Disability Nondiscrimination Law Advisor

Title II, Subtitle A, of the Americans with Disabilities Act

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SUMMARY

The Americans with Disabilities Act (ADA) is a comprehensive Federal nondiscrimination law designed to remove barriers that prevent people with disabilities from accessing and having the same opportunities available to people without disabilities. The law applies specifically to employment, state and local government services, telecommunications, and businesses that are public accommodations or commercial facilities. Title II of the ADA covers programs, activities, and services of public entities. It is divided into two subtitles.

Subtitle A protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, or activities, including employment, that are provided or made available by public entities. Subtitle A essentially extends the disability-related requirements imposed on Federally-assisted programs by Section 504 of the Rehabilitation Act of 1973, as amended to all activities of State and local governments and other specified public entities (regardless of their size), including those that do not receive Federal financial assistance. Regulations implementing subtitle A of Title II have been published by the U.S. Department of Justice (DOJ). These regulations indicate that for employment-related activities, public entities that are also subject to Title I of the ADA must follow the Title I regulations. Public entities that are not subject to Title I, (i.e., those with fewer than 15 employees) must follow the employment-related regulations implementing Section 504 of the Rehabilitation Act that have been issued by the appropriate Federal agency. For more information see the list of Federal agencies and the types of programs over which each agency has jurisdiction. Federal investigations of Title II employment complaints are coordinated on a government-wide basis.

Subtitle B of Title II extends coverage to all public entities that provide public transportation, regardless of whether they receive Federal financial assistance. This section of the ADA establishes standards for the operation of public transit systems, including commuter and intercity rail (AMTRAK). The Department of Transportation is responsible for the implementation of subtitle B of Title II.

The information provided in this Advisor will focus on the obligations under subtitle A of Title II of the ADA. More information concerning subtitle B of Title II of the ADA can be found on the Department of Transportation Web site.

DOJ is the lead agency responsible for enforcing Title II of the ADA. However, eight Federal agencies assist DOJ with enforcement by investigating complaints under Title II and then referring those matters that are unable to be resolved informally to DOJ. The eight designated agencies and their functional areas are:

  • Department of Agriculture: Farming and the raising of livestock, including extension services.
  • Department of Education: Education systems and institutions (other than health-related schools), and libraries.
  • Department of Health and Human Services: Schools of medicine, dentistry, nursing, and other health-related schools; health care and social service providers and institutions, including grassroots and community service organizations and programs; and preschool and daycare programs.
  • Department of Housing and Urban Development: State and local public housing, and housing assistance and referral.
  • Department of the Interior: Lands and natural resources, including parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation, and museums.
  • Department of Justice: Public safety, law enforcement, and the administration of justice, including courts and correctional institutions; commerce and industry, including banking and finance, consumer protection, and insurance; planning, development, and regulation (unless otherwise assigned); State and local government support services; and all other government functions not assigned to other designated agencies.
  • Department of Labor: Labor and the workforce.
  • Department of Transportation: Transportation, including highways, public transportation, traffic management (non-law enforcement), automobile licensing and inspection, and driver licensing.

WHO IS AFFECTED BY TITLE II

Public Entities: Title II covers any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government; or the National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act), regardless of size. See 28 CFR 35.104.

Protected Individuals: Title II protects qualified individuals with disabilities.

PUBLIC ENTITY RESPONSIBILITIES UNDER TITLE II - SERVICES, PROGRAMS AND ACTIVITIES

Subtitle A of Title II of the ADA prohibits discrimination on the basis of disability by public entities, both in the provision of services, programs, and activities and in employment practices. Listed below are the key public entity responsibilities under Title II with respect to the provision of services, programs, and activities. See section on employment practices below for a description of a public entity's key employment-related responsibilities.

  • Nondiscrimination. Public entities must not discriminate against, deny the benefits of, or exclude qualified individuals with disabilities from participation in any service, program, or activity. The aids, benefits, and services provided to persons with disabilities must be equal to those provided to others, and must be as effective in affording equal opportunity to obtain the same results, to gain the same benefit, or reach the same level of achievement as those provided to others. These requirements restate the principles established under Section 504 of the Rehabilitation Act.

    A public entity may develop separate or different aids, benefits, or services when necessary to provide individuals with disabilities with an equal opportunity to participate in or benefit from a public entity's services, programs, or activities, but only when necessary to ensure that the aids, benefits, or services are as effective as those provided to others. However, Title II provides that even when separate or different aids, benefits, or services would be more effective, a qualified individual with a disability still has the right to choose to participate in a program that is not designed to accommodate individuals with disabilities. See 28 CFR 35.130.

    Public entities may not either directly or through contracts utilize criteria or methods of administration that have the effect of discriminating. A public entity may impose neutral rules and criteria that screen out or tend to screen out individuals with disabilities if the criteria are necessary for the safe operation of a program. See 28 CFR 35.130.
  • Reasonable Modifications. Public entities must reasonably modify any policies, practices, and/or procedures to avoid discrimination. If a public entity can demonstrate, however, that the modifications would fundamentally alter the nature of its services, program, or activity, it is not required to make the modification. See 28 CFR 35.130(b)(7).
  • Disability-Related Inquiries. Public entities must limit disability-related inquiries to those allowed by the law. Very rarely is it legitimate to make disability-related inquiries. However, in the context of providing aid, benefits, services, and training, disability-related inquiries may be lawful if they are limited to tailoring services to the needs of the individual. When making such disability-related inquiries, it would be prudent for a public 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.
  • Personal Services and Devices. Public entities are not required by Title II to provide personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature, such as assistance in eating to individuals with disabilities. See 28 CFR 35.135.
  • Program Accessibility. Public entities must ensure that their services, programs, and activities are readily accessible to and usable by individuals with disabilities, when each service, program, and/or activity is viewed in its entirety. Under the program accessibility requirements, a public entity must set up each of its services, programs, and activities in advance to be accessible to qualified individuals 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. It does not mean that every facility when used to provide a service, program, or activity, or every part of such a facility, must be accessible to and usable by qualified individuals with disabilities. Nor does it mean that a public entity must take any action that would threaten or destroy the historic significance of an historic property. However, if a particular service, program, or activity is offered at only one site, that site must be made accessible, or the service, program, or activity must be made available at an alternative, accessible site or sites. In addition, every aspect of a service, program, or activity (such as intake, assessment, or training) must be accessible.

    Under the program accessibility requirements, a public entity is not obligated to make structural changes to its facility 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:
    • Public entities must provide services, programs, and activities to people with disabilities in the most integrated setting possible; and
    • Public entities may be required to alter or renovate its facilities if there is no other possible way of providing program accessibility.
    Public entities are prohibited from placing a surcharge on individuals or groups of individuals with disabilities to cover the costs of program accessibility.
    See 28 CFR 35.149; 28 CFR 35.150; 28 CFR 35.130(f).

  • Architectural Accessibility. Public entities must ensure that their facilities are constructed and altered in such a manner that the facilities or parts thereof are readily accessible to and usable by individuals with disabilities, if the construction or alteration began after January 26, 1992. See 28 CFR 35.151.
  • Communications. Public entities must take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. A public entity must provide appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and benefit from, a service, program, or activity conducted by a public entity. In determining what type of auxiliary aid and service is necessary, a public entity must give primary consideration to the requests of the individual with a disability. Public entities may not charge individuals or groups of individuals with disabilities for the use of an auxiliary aid. See 28 CFR 35.160;28 CFR 35.130(f).
  • Illegal Use of Drugs. Public entities may not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully or is participating in a supervised rehabilitation program. A public entity may not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services. See 28 CFR 35.131.

    Title II does not prohibit a public entity from adopting or administering reasonable policies or procedures including, but not limited to, drug testing that are designed to ensure that an individual who formerly used drugs illegally is not now engaging in current illegal drug use See 28 CFR 35.131.
  • Maintenance of Accessible Features. Public entities must maintain, in operable working condition, those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities. See 28 CFR 35.133.
  • Retaliation or Coercion. Public entities may not retaliate against any individual who exercises his or her right to oppose any act or practice made unlawful by the ADA. Subtitle A of Title II of the ADA also provides that a public entity may not coerce, intimidate, threaten, or interfere with any individual in the exercise of his or her rights under this part or because that individual aided or encouraged any other individual in the exercise or use of any right granted or protected by the ADA. See 28 CFR 35.134.
  • Notice. Public entities must make available to applicants, participants, beneficiaries, and other interested persons information regarding the provisions of subtitle A of Title II and it applicability to the services, programs, or activities of the public entity, and make this information available in a manner necessary to apprise such persons of the protections against discrimination. See 28 CFR 35.106.
  • Designation of Responsible Employee and Adoption of Grievance Procedures. Public entities that employ 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under ADA Title II, including any investigation of any complaint communicated to the public entity alleging its noncompliance or alleging any actions that are prohibited. The public entity must make available to all interested individuals the name, office address, and telephone number of the Designated Responsible Employee(s). See 28 CFR 35.107.
  • Complaint Procedures. Public entities that employ 50 or more persons must adopt and publish grievance procedures providing for prompt and fair resolution of complaints alleging any action that would be prohibited by Title II of the ADA. See 28 CFR 35.107.

PUBLIC ENTITY RESPONSIBILITIES UNDER TITLE II - EMPLOYMENT PRACTICES

Listed below are the key public entity responsibilities under Title II with regard to employment practices.

  • Nondiscrimination. Public entities cannot discriminate against qualified individuals with disabilities in any of their employment and personnel practices, including recruitment, hiring, promotion, demotion, layoff and return from layoff, compensation, job assignments, job classifications, paid or unpaid leave, fringe benefits, training, and employer-sponsored activities, including recreational or social programs. See 28 CFR 35.140.
  • Reasonable Accommodations. Public entities must provide reasonable accommodations when requested for people with disabilities, in all aspects of employment, so that qualified job applicants and employees with disabilities may participate in the application process, perform essential job functions, and have equal opportunity to the rights and privileges of employment. Public entities are not required to provide a requested accommodation if that accommodation would impose an undue hardship on the operation of its program. See 28 CFR 35.140 (incorporating the requirements of Title I of the ADA or Section 504, depending on the circumstances, to the employment practices of public entities); 29 CFR 1630.9 (Title I of ADA).
  • Nondiscrimination in Selection Criteria and the Administration of Tests. Public entities must not use employment selection criteria that screen out or tend to screen out individuals with disabilities or a class of individuals with disabilities on the basis of disability, unless the public entity can show that a particular selection criterion is job-related to the position at issue and required by business necessity. If a particular selection criterion is required by business necessity, the public entity may have to provide reasonable accommodation if that would enable the applicant to meet the criterion. Public entities also have a duty to provide reasonable accommodation so that an employment test accurately measures an applicant's skills, aptitude, or whatever the test purports to measure rather than the individual's impaired sensory, manual, or speaking skills (unless the test is designed to measure such skills). See 28 CFR 35.140 (incorporating the requirements of Title I of the ADA or Section 504, depending on the circumstances, to the employment practices of public entities); 29 CFR 1630.10 (Title I of ADA) and 29 CFR 1630.11 (Title I of ADA).
  • Medical Examinations and Pre-Employment Inquiries. Public 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, public entities generally may not require 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). Public 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.

    Public entities may 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, a public entity may require a medical examination or make a disability-related inquiry of a current employee if the examination or inquiry is job-related and consistent with business necessity.

    Medical information must be kept confidential. This includes requiring that such information be collected and stored separately from other personnel information. Title I of the ADA permits employers to disclose medical or disability-related information about a particular individual to specifically listed persons or entities for specific reasons.

    See 28 CFR 35.140 (incorporating the requirements of Title I of the ADA or Section 504, depending on the circumstances, to the employment practices of public entities); 29 CFR 1630.13 (Title I of ADA) and 29 CFR 1630.14 (Title I of ADA).
  • Notice. Public entities must notify applicants for employment and employees, including those with impaired vision or hearing, that it does not discriminate against qualified individuals with disabilities on the basis of a disability. See 28 CFR 35.106.
  • Recordkeeping. Public entities must maintain certain records.  Any personnel or employment record made or kept by a public entity must be maintained by the public entity for a period of one year from the date of the making of the record or the personnel action, whichever occurs later. This includes, but is not necessarily limited to, requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. Where a charge of discrimination has been filed against a public entity, the public entity must maintain all personnel records relevant to the charge or action until final disposition of the charge or action. See 28 CFR 35.140; 29 CFR 1602.14.
  • Designation of Responsible Employee. Public entities that employ 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under ADA Title II, including any investigation of any complaint communicated to the public entity alleging its noncompliance or alleging any actions that are prohibited. The public entity must make available to all interested individuals the name, office address, and telephone number of the Designated Responsible Employee(s).  See 28 CFR 35.107.
  • Complaint Procedures. Public entities that employ 50 or more people must adopt and publish grievance procedures for prompt and fair resolution of complaints alleging a violation of Title II of the ADA. See 28 CFR 35.107.
  • Retaliation and Coercion. Public entities must not retaliate, coerce, intimidate, or threaten individuals who oppose any act or practice made unlawful by Title II or who file discrimination charges, testify, or participate in any way in an ADA investigation, proceeding, or litigation. See 28 CFR 35.134.

TITLE II AND OTHER Federal NONDISCRIMINATION LAWS

Title II of the ADA provides protections to individuals with disabilities that are at least equal to those provided by the nondiscrimination provisions of Title V of the Rehabilitation Act. Title V includes Section 504, which covers all programs receiving Federal financial assistance and all the operation of Federal Executive agencies. Title II may not be interpreted to provide a lesser degree of protection to individuals with disabilities than is provided under these laws.

Title II does not disturb any State laws that provide protection for individuals with disabilities at a level greater or equal to that provided by the ADA. It does, however, prevail over any conflicting State laws.

RESOURCES

Applicable Law and Regulations

Compliance Assistance Information

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