The Power and Scope of Section 504 of the Rehabilitation
Act--Using it to Advocate for Your Rights as a Person with a Disability
by Brian East
What is §504?
The §504 regulations
To whom does §504 apply?
Who is protected under §504?
Definition of discrimination under §504
Affirmative obligations of recipients
Employment provisions of §504
Program access requirements
Health, welfare, and other social services
Enforcement of §504 rights
Some other parts of the Rehabilitation Act
1. What is §504?
a. Text: "No otherwise qualified individual with
a disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United States
b. Citation: 29 U.S.C. §794(a).
2. The §504
a. The statute is written very broadly; the details are in the
enforcing regulations. [For
some history on the regulations, see the story and links at
also Cherry v. Mathews, 419 F.Supp. 922 (D.D.C. 1976) (requiring
federal agency to issue §504 regulations).]
b. Each Federal agency has its own set of §504 regulations
that apply to its own programs.
c. Each agency that provides Federal financial assistance must
issue its own §504 regulations covering entities that receive
Federal aid, and the regulations must be consistent with the coordinating
regulations. 28 C.F.R. §41.4(a) and (c).
d. The "coordinating regulations"
i. The authority to issue "coordinating regulations"
was originally given to the old Dep't of Health, Education &
Welfare (HEW), and these original regulations are now codified
by the Dep't of Health & Human Services at 45 C.F.R. Part
84. These HEW regulations are of particular significance because
of that agency's original role as coordinating agency. Toyota
Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122
S.Ct. 681, 690 (2002).
ii. The coordinating authority was transferred to the Dep't
of Justice (DOJ) by Executive Order 12250 (11/2/80), and the
coordinating regulations now appear at 28 C.F.R. Part 41.
iii. Note that the §504 regulations are important not
just for interpreting §504, but also for interpreting Title
II of the ADA, since Congress required that the Title II regulations
be consistent with those adopted under §504. 42 U.S.C.
§12134(b); Olmstead v. L. C. by Zimring, 527 U.S.
581, 591 (1999).
e. Some other specific agency regulations are found at:
i. Defense Dep't - 32 C.F.R. pt. 56
ii. HUD - 24 C.F.R. pt. 8
iii. Justice - 28 C.F.R. §§42.501-.540
iv. Dep't of Labor - 29 C.F.R. pt. 32
v. Dep't of Transportation - 49 C.F.R. pt. 27
a list of federal agency §504 coordinators, see <http://www.access-board.gov/enforcement/504.htm>.
3. To whom does
a. Any program or activity conducted by any Executive agency
i. The Rehabilitation Act does not apply to the Judicial Branch
or federal courts. For information on the internal
policy of the federal courts to accommodate communications disabilities,
ii. Although the Rehabilitation Act does not by its own terms
apply to the Legislative Branch, the Congressional Accountability
Act of 1995 extended the employment protections of the Act to
employees of the House, Senate, and certain specified arms of
Congress. See 2 U.S.C. §§1301(3) and 1311.
b. Any program or activity conducted by the United States Postal
c. Any program or activity receiving Federal financial assistance.
i. Program or activity means, according to 45 C.F.R. §84.3:
(1) The particular department or agency of State or local
(a) "program or activity" includes the particular
department or agency, special purpose district, or other
instrumentality of a State or of a local government that
receives Federal financial assistance; or
(b) the particular entity of such State or local government
that distributes such assistance, and each such department
or agency or other State or local government entity to which
the assistance is extended.
(c) §504 only applies to the particular department
or agency that receives or distributes federal financial
assistance. Lightbourn v. County of El Paso, Texas,
118 F.3d 421, 427 (5th Cir. 1997). Thus, the state as a
whole is not a "program or activity" under §504,
id., nor is a city as a whole. Micek v. City of Chicago,
1999 WL 966970*2 (N.D.Ill. 1999).
(2) All of the following entities, even if only a portion
of them receive Federal financial assistance:
(a) a college, university, or other post-secondary institution,
or a public system of higher education; or
(b) a local educational agency (i.e., school district),
system of vocational education, or other school system;
(c) a corporation, partnership, or other private organization,
or sole proprietorship.
ii. A recipient of federal financial assistance:
(1) Is defined in 45 C.F.R. §84.3(f) and 28 C.F.R. §41.3(d)
(a) any state or its political subdivision;
(b) any instrumentality of a state or its political subdivision;
(c) any public or private agency, institution, organization,
or other entity; or
(d) 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. But
see, e.g., Berthelot v. Stadler, 2000 WL 1568224*3
(E.D.La. 2000) (individual government officials are not
themselves recipients of federal financial assistance).
(2) Includes public and private entities that receive federal
funding subsidies, either directly or through another recipient.
Grove City College v. Bell, 465 U.S. 555 (1984) (college
was "recipient" of federal financial assistance
to its students); Bartlett v. New York State Board of Law
Examiners, 156 F.3d 321 (2d Cir. 1998), vacated on
other grounds, 527 U.S. 1031 (1999), aff'd on remand
on other grounds, 226 F.3d 69 (2d Cir. 2000) (entity receiving
assistance indirectly through vouchers is covered, even though
it never was given opportunity to turn down federal aid);
Horner v. Kentucky High School Athletic Ass'n, 43 F.3d
265 (6th Cir. 1994) (athletic association, as agent of state
board of education, indirectly received federal funds). See
also 160 A.L.R. Fed. 297.
(3) Does not include those who do not receive Federal
financial assistance, but merely benefit from it. U.S.
Dept. of Transp. v. Paralyzed Veterans of America, 477
U.S. 597 (1986) (§504 did not apply to commercial airlines
by virtue of federal financial assistance provided to airports
or by virtue of nationwide air traffic control system operated
by federal government).
iii. Federal financial assistance:
(1) Includes any grant, loan, contract, or any other arrangement
by which a federal agency provides or otherwise makes available
assistance. 45 C.F.R. §84.3(h); 28 C.F.R. §41.3(e).
(a) Many courts have found that it includes Medicare and
Medicaid recipients. E.g., United States v. Baylor Univ.
Med. Ctr., 736 F.2d 1039, 1042 (5th Cir.1984), cert.
denied, 469 U.S. 1189 (1985); Estate of Alcalde v.
Deaton Specialty Hosp. Home, Inc., 133 F.Supp.2d 702,
708 (D.Md. 2001); Lesley v. Chie, 81 F.Supp.2d 217,
222 (D.Mass. 2000), aff'd, 250 F.3d 47 (1st Cir.
(b) Includes colleges whose students receive federal aid
such as Pell grants. Grove City College v. Bell,
465 U.S. 555, 569-570 (1984) (Title IX coverage is not foreclosed
because federal funds are granted to college's students
rather than directly to one of the college's educational
(2) Does not include procurement contracts, Mass v. Martin
Marietta, 805 F.Supp. 1530, 1542 (D. Colo. 1992), or contracts
of insurance or guaranty. 45 C.F.R. §84.3(h); 28 C.F.R.
§41.3(e). See Muller v. Hotsy Corp., 917 F.Supp.
1389, 1417-1418 (N.D.Iowa 1996) (holding that a private corporation
does not receive Federal financial assistance unless it "receives
a subsidy;" contract with GSA was insufficient).
4. Who is protected
a. Definition of disability
i. §504 uses the same definition of disability as that
of the ADA. 29 U.S.C. §§705(9)(B) and 705(20)(B);
28 C.F.R. §41.31; 45 C.F.R. §84.3(j).
ii. For more on this definition, see "The
Definition of Disability Under the ADA and §504,"
a previous ILRU webcast online at <http://www.ilru.org/online/handouts/2002/East/handout.html>.
b. Qualified person with a disability means:
i. With respect to employment, a person with a disability who,
with reasonable accommodation, can perform the essential functions
of the job in question. 28 C.F.R. §41.32; 45 C.F.R. §84.3(k)(1).
ii. With respect to services, a person with a disability who
meets the essential eligibility requirements for the receipt
of such services. 28 C.F.R. §41.32; 45 C.F.R. §84.3(k)(4).
iii. With respect to public preschool elementary, secondary,
or adult educational services, see 45 C.F.R. §84.3(k)(2).
iv. With respect to post-secondary and vocational education
services, see 45 C.F.R. §84.3(k)(3).
Definition of discrimination under §504.
a. Prohibition against discrimination generally. 29 U.S.C. §794(a);
45 C.F.R. §84.4(a); 28 C.F.R. §41.51(a).
b. No discrimination against a class of disabilities, or based
on severity of disability. 45 C.F.R. §84.4(b)(1)(iv); 28
C.F.R. §41.51(b)(1)(iv); Hahn ex rel. Barta v. Linn County,
130 F.Supp.2d 1036, 1050 (N.D.Iowa 2001) (and cases cited); Winkler
v. Interim Services, Inc., 36 F.Supp.2d 1026, 1030 (M.D.Tenn.
1999) ("Several courts have concluded that the severity of
one's disability can itself be disability and that denial of services
based on the severity of a handicap would contravene Section 504.").
c. No discrimination in "siting" decisions. 45 C.F.R.
§84.4(b)(5); 28 C.F.R. §41.51(b)(4). See also 45 C.F.R.
Part 84 App. A(a)(6).
d. No surcharges.
i. There is no express provision prohibiting surcharges as
there is under ADA Title II. See 28 C.F.R. § 35.130(f).
ii. DOJ has recognized that imposition of surcharges (e.g.,
the cost of interpreter services) is impermissible under §504.
See 28 C.F.R. Part 35 App. §35.130(f).
e. No discrimination through contracting. 45 C.F.R. §84.4(b)(1)
and (b)(4); 28 C.F.R. §41.51(b)(1) and (b)(3).
f. No discrimination through licensing or certification programs.
45 C.F.R. §84.4(b)(1); 28 C.F.R. §41.51(b)(1).
g. Prohibits certain disparate impact discrimination. See, e.g.,
28 C.F.R. §41.51(b)(3); 45 C.F.R. Part 84 App. A(b)(17).
i. Disparate impact discrimination involves rules or policies
that are neutral on their face, but that have a discriminatory
effect on persons with disabilities.
ii. In Alexander v. Choate, 469 U.S. 287 (1985), the
Court explained that members of Congress made numerous statements
during passage of §504 regarding eliminating architectural
barriers, providing access to transportation, and eliminating
discriminatory effects of job qualification procedures. The
Court then noted: "These statements would ring hollow if
the resulting legislation could not rectify the harms resulting
from action that discriminated by effect as well as by design."
Id. at 297 (footnote omitted).
iii.While the Court rejected the argument that all disparate-impact
showings violate §504, it assumed that §504 reaches
at least some conduct that has an unjustifiable disparate impact
on persons with disabilities. Id. at 299.
iv. The recent Supreme Court decision in Sandoval (restricting
disparate impact claims brought under Title VI) does not affect
the right to bring a disparate impact claim under §504.
Robinson v. State of Kansas, ___ F.3d ___, 2002 WL 1462856*1
(10th Cir. 2002).
h. Discrimination includes the failure to:
i. Provide effective communications. See, e.g., 28 C.F.R. §41.51(e);
45 C.F.R. §84.44(d) (regarding post-secondary education);
45 C.F.R. §84.52(d) (regarding health, welfare, or other
social services or benefits).
ii. Make reasonable modifications of policies, practices, and
procedures if necessary to avoid discrimination. Southeastern
Community College v. Davis, 442 U.S. 397 (1979).
(1) Fundamental alteration defense. Id.
(2) See also Olmstead v. L. C. by Zimring, 527 U.S.
581, 591 (1999).
iii. Provide aids, benefits, and services "in the most
integrated setting appropriate to the person's needs."
45 C.F.R. §84.4(b)(2); 28 C.F.R. §41.51(d).
(1) This is the so-called "integration mandate."
See also Olmstead v. L. C. by Zimring, 527 U.S. 581,
591 (1999) (interpreting substantially similar provision in
ADA Title II regulations).
(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."
28 C.F.R. §41.51(b)(2).
(3) The provision of unnecessarily separate or different
services is discriminatory. 45 C.F.R. Part 84 App. A(a)(6).
Affirmative obligations of recipients.
a. Notice requirements - The recipient shall adopt and implement
procedures to ensure that interested persons, including persons
with impaired vision or hearing, can obtain information as to
the existence and location of services, activities, and facilities
that are accessible to and usable by handicapped persons. 28 C.F.R.
b. Grievance procedures. 45 C.F.R §84.7(b).
i. Required for recipients that employ 15 or more persons
ii. Must incorporate appropriate due process standards and
that provide for the prompt and equitable resolution of complaints
alleging any action prohibited by 45 C.F.R. Part 84.
iii. Need not be established for
(1) complaints from applicants for employment, or
(2) complaints from applicants for admission to post-secondary
c. For the §504 requirements regarding self-evaluations
and transition planning, see ¶8(b) and ¶9(c)(ii) below.
provisions of §504.
a. The 1992 Amendments to the Rehabilitation Act expressly adopt
the liability standards in Title I of the ADA. 29 U.S.C. §794(d).
See also 29 C.F.R. §1614.203.
b. Some advantages of §504 over the ADA include:
i. No administrative exhaustion requirement against non-federal
defendants (see ¶14(d) below);
ii. No damage caps in §504 employment cases (see ¶15(b)(v)
iii. Waiver of state's 11th amendment immunity (see ¶15(b)(vi)
iv. Applies to recipient employers no matter how small.
(1) See, e.g., Schrader v. Ray, ___ F.3d ___, 2002
WL 1554451 (10th Cir. July 16, 2002); 28 C.F.R. Part 35 App.
(2) This is in contrast to Title I of the ADA, which only
covers employers with 15 or more employees.
c. General antidiscrimination provisions. 45 C.F.R. §84.11;
28 C.F.R. §41.52(a).
d. Employer must provide reasonable accommodations if necessary.
45 C.F.R. §84.12; 28 C.F.R. §41.53.
i. Examples of accommodations in the regulations are not exhaustive.
45 C.F.R. App. A(b)(16).
ii. Definition of reasonable accommodation does not mention
reassignment, but reassignment may also be accommodation under
Rehabilitation Act, at least after 1992 amendments adopting
ADA liability standards. Gile v. United Airlines, Inc.,
95 F.3d 492, 496-497 (7th Cir. 1996).
iii. Defense of undue hardship.
e. Disparate impact discrimination.
i. Prohibits certain employment tests or selection criteria
that screen out, or tend to screen out, persons with disabilities.
45 C.F.R. §84.13; 28 C.F.R. §41.54.
ii. See also Alexander v. Choate, 469 U.S. 287 (1985),
cited in ¶5(g) above.
f. Pre-employment inquiries restricted. 45 C.F.R. §84.14;
28 C.F.R. §41.55.
i. By its language, §504 prohibits discrimination "solely"
on the basis of disability. This is in contrast to the ADA,
which requires the plaintiff to prove only that the discrimination
was "because of" disability (meaning that disability
need not be the only cause of the discrimination). Parker
v. Columbia Pictures Industries, 204 F.3d 326, 337 (2d Cir.
2000); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300,
1301 (8th Cir. 1995); Newman v. GHS Osteopathic, Inc.,
60 F.3d 153, 158 (3d Cir. 1995).
ii. In 1992, Congress amended §504 to clarify that it
is to be construed consistently with the ADA. 29 U.S.C. §794(d).
Any apparent difference in the causation standards of the two
statutes should now be eliminated. Newman v. GHS Osteopathic,
Inc., 60 F.3d 153, 157-158 (3d Cir. 1995); Biddle v.
Ruben, 1995 WL 382961 (N.D.Ill. 1995) (1992 amendments to
§501 incorporate liability standards of ADA, and plaintiff
need only show that adverse employment action was "because
of" disability); Ryan v. City of Highland Heights,
1995 WL 584733 (N.D.Ohio 1995) (substantive standards of ADA
and §504 are same; causation standard is "because
of"). See also Myers v. Hose, 50 F.3d 278, 281 (4th
Cir. 1995) (substantive liability standards same); Johnson
v. New York Hospital, 897 F.Supp. 83 (S.D.N.Y. 1995) (same).
But cf. Leary v. Dalton, 58 F.3d 748, 752 (1st Cir. 1995)
(§504 causation standard an open question).
iii. Even so, judicial opinions that do not seem aware of the
1992 amendments continue to cause confusion. See, e.g., Soledad
v. U.S. Dept. of Treasury, 116 F.Supp.2d 790, 797-799 (W.D.Tex.
2000) (holding that Rehabilitation Act requires sole cause,
and finding that jury charge using ADA causation standard was
h. Question of applicability to federal employees
i. Although §504 apparently overlaps §501 in its
application to federal employees, the courts are split as to
whether individuals may sue federal agencies under §504
for employment discrimination.
(1) Allowing employment claims to be brought against the
federal government under §504: Spence v. Straw,
54 F.3d 196 (3d Cir. 1995); Doe v. Garrett, 903 F.2d
1455, 1459-1460 (11th Cir. 1990), cert. denied, 499
U.S. 904 (1991); Prewitt v. United States Postal Service,
662 F.2d 292, 302-304 (5th Cir. 1981).
(2) Holding or suggesting that employment cases may not be
brought against the federal government under §504, but
must be brought under §501: Rivera v. Heyman,
157 F.3d 101, 104 (2d Cir. 1998) (recognizing split in circuits,
but holding that §501 is exclusive remedy for disability
discrimination in employment claims by federal employees);
Newland v. Dalton, 81 F.3d 904, 905 n.1 (9th Cir. 1996);
Johnson v. Runyon, 47 F.3d 911, 916-917 n.5 (7th Cir.
(3) Even those courts allowing federal employment claims
to proceed under §504 generally require exhaustion of
§501 administrative requirements. See, e.g., Prewitt,
supra. (Those administrative requirements are mentioned
at ¶16(b)(ii) below.)
ii. The substantive prohibitions against discrimination are
similar under §501 and §504, although there are a
few differences, some of which are very briefly mentioned in
a. "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 to which this part applies." 45 C.F.R. §84.21;
28 C.F.R. §41.56.
b. Self-evaluation requirements. 45 C.F.R. §84.6(c). See
also 28 C.F.R. §41.5(b)(2).
i. A public entity must evaluate its services, policies, and
practices, and the effects thereof, that do not or may not meet
the requirements of 504
ii. Must provide an opportunity for input from the public and
people with disabilities
iii. The entity must make all required modifications to its
services, policies, and practices
iv. The evaluation was to be done within 1 year of the effective
date of this part. (The effective date is referenced in ¶9(a)
a. The effective date of the original HEW §504 regulations
regarding accessibility standards was June 3, 1977. 42 FR 22676
(5/4/77); McGregor v. Louisiana State University Bd. of Sup'rs,
3 F.3d 850, 861 (5th Cir. 1993).
b. New construction and alterations:
i. Each facility or part of a facility constructed by, on behalf
of, or for the use of a recipient shall be designed and constructed
in such manner that the facility or part of the facility is
readily accessible to and usable by handicapped persons, 28
ii. Each facility or part of a facility which is altered by,
on behalf of, or for the use of a recipient in a manner that
affects or could affect the usability of the facility or part
of the facility shall, to the maximum extent feasible, be altered
in such manner that the altered portion of the facility is readily
accessible to and usable by handicapped persons, 28 C.F.R. §41.58(a);
(1) Originally the §504 regulations required compliance
with the American National Standards Institute (ANSI) standards
A117.1-1961 (R 1971).
(2) Effective January 18, 1991, ANSI was replaced by the
Uniform Federal Accessibility Standards (UFAS); after that
date, the design, construction, or alteration of buildings
in conformance with UFAS was deemed to comply with the requirements
of §504. 45 C.F.R. §84.23(c)(1). The
UFAS are available online at <http://www.access-board.gov/ufas/ufas-html/ufas.htm>.
Deviations from UFAS are permitted if substantially equivalent
or greater access to and usability of the building is provided.
(3) Compliance with ADAAG is also acceptable. See, e.g.,
19 IDELR ¶694 (OCR Memo 12/1/92).
c. Older, "existing facilities"
i. "Program access" standard
(1) "A recipient shall operate each program or activity
to which this part applies so that the program or activity,
when viewed in its entirety, is readily accessible to handicapped
persons." 45 C.F.R. §84.22(a); 28 C.F.R. §41.57(a).
(2) Program access does not necessarily "require a recipient
to make each of its existing facilities or every part of a
facility accessible to and usable by handicapped persons."
45 C.F.R. §84.22(a); 28 C.F.R. §41.57(a). A recipient
is not required to make structural changes in existing facilities
where other methods are effective in achieving compliance.
(3) According to 45 C.F.R. §84.22(b), a recipient may
comply with program access requirements through such means
(a) redesign of equipment,
(b) reassignment of classes or other services to accessible
(c) assignment of aides to beneficiaries,
(d) home visits,
(e) delivery of health, welfare, or other social services
at alternate accessible sites,
(f) alteration of existing facilities and construction
of new facilities in conformance with the requirements of
(g) any other methods that result in making its program
or activity accessible.
(4) On the other hand, a school district or university system
cannot just make one campus or school accessible, if the result
is to segregate persons with disabilities in a single setting.
45 C.F.R. Part 84 App. A(c)(20). Program access may not result
in segregation. Id.
(5) Consistent with longstanding interpretation of §504,
carrying an individual with a disability is considered an
ineffective and therefore an unacceptable method for achieving
program accessibility. See 28 C.F.R. Part 35 App. §35.150(b)(1)
(ADA Title II regulations), citing Office of Civil Rights,
Policy Interpretation No. 4, 43 Fed. Reg. 36035 (HEW August
(6) In choosing among available methods for meeting the program
access requirement, a recipient shall give priority to those
methods that offer programs and activities to persons with
disabilities in the most integrated setting appropriate. 45
(7) Changes necessary to meet program access standards must
be developed and implemented within 60 days of the effective
date of this part [referenced in ¶9(a) above], unless
structural changes are required. 45 C.F.R. §84.22(d).
ii. Transition plan requirement
(1) Applies if structural changes to facilities are necessary
to meet program access, 28 C.F.R. §41.57(c); 45 C.F.R.
(2) Must be developed within 6 months of the effective date
[referenced in ¶9(a) above] of this part, 45 C.F.R. §84.22(e);
(3) Structural changes pursuant to the plan shall be made
as expeditiously as possible, but in any event within 3 years
of the effective date. 28 C.F.R. §41.57(b); 45 C.F.R.
§84.22(d). (The effective date is referenced in ¶9(a)
above.) Outside ramps to buildings can usually be built easily
and cheaply, and thus should be built promptly. 45 C.F.R.
Part 84 App. A(c)(20).
(4) Must at a minimum:
(a) Identify physical obstacles in the recipient's facilities
that limit the accessibility of its program or activity
to handicapped persons, 45 C.F.R. §84.22(e)(1);
(b) Describe in detail the methods that will be used to
make the facilities accessible, 45 C.F.R. §84.22(e)(2);
(c) Specify the schedule for taking the steps necessary
to achieve full program accessibility and, if the time period
of the transition plan is longer than one year, identify
the steps of that will be taken during each year of the
transition period, 45 C.F.R. §84.22(e)(3); and
(d) Indicate the person responsible for implementation
of the plan, 45 C.F.R. §84.22(e)(4).
(5) Must be developed with the assistance of persons with
disabilities or organizations representing them. 28 C.F.R.
§41.57(c); 45 C.F.R. §84.22(e).
(6) According to the DOJ, §504 treats newly leased buildings
as subject to the "existing facility" "program
accessibility" standard. 28 C.F.R. Part 35 App. §35.151.
iii. Small provider exception. 29 U.S.C. §794(c); 45 C.F.R.
§84.22(c); 45 C.F.R. Part 84 App. (c)(20).
(1) Applies to recipient with fewer than fifteen employees
that provides health, welfare, or other social services;
(2) Applies if provider finds, after consultation with the
persons with a disability seeking its services, that there
is no method of providing program access other than by making
a significant structural alteration in its existing facilities;
(3) In such case the recipient may, as an alternative, refer
the handicapped person to other providers of those services
that are accessible.
a. In addition to the coordinating regulations cited below, the
similar regulations issued by the Education Department are
online at <http://www.ed.gov/offices/OCR/regs/34cfr104.html>.
b. Preschool, Elementary, and Secondary Education
i. "Child find" obligation. 45 C.F.R. §84.32.
ii. Obligation to provide "free, appropriate public education"
(FAPE). 45 C.F.R. §84.33(a); 45 C.F.R. Part 84 App. A(d)(23).
iii. Inclusion mandate - the school district must provide for
the education of, each qualified student with a disability "with
persons who are not handicapped to the maximum extent appropriate."
45 C.F.R. §84.34.
and placement obligations. 45 C.F.R. §84.35. See also
v. Procedural safeguards. 45 C.F.R. §84.36.
(1) required for actions regarding identification, evaluation,
or educational placement.
(2) must include notice, an opportunity for the parents or
guardian of the person to examine relevant records, an impartial
hearing with opportunity for participation by the person's
parents or guardian and representation by counsel, and a review
(3) Compliance with the procedural safeguards of IDEA is
one means of meeting this requirement.
vi. Non-academic services - schools must provide an equal opportunity
for participation not only in academic settings, but also in
non-academic and extracurricular services, physical recreational
athletics, transportation, health services, recreational activities,
special interest groups or clubs sponsored by the recipients,
referrals to agencies which provide assistance to handicapped
persons, and employment of students. 45 C.F.R. §84.37.
vii. Preschool and adult education programs - recipients may
not, on the basis of disability, exclude qualified persons with
disabilities from preschools, or from adult education programs
operated by elementary and secondary schools, and shall take
into account the needs of such persons in determining the aid,
benefits, or services to be provided under the program or activity.
45 C.F.R. §84.38; 45 C.F.R. Part 84 App. A(d).
viii. Private education programs.
(1) Private programs receiving federal financial assistance.
45 C.F.R. §84.39.
(a) Such programs may not, on the basis of disability,
exclude a qualified person with a disability if the person
can, with minor adjustments, be provided an appropriate
(b) Such programs may not charge more for the provision
of an appropriate education to persons with disabilities,
except to the extent that any additional charge is justified
by a substantial increase in cost to the recipient;
(c) A recipient that operates special education programs
shall operate such programs in accordance with ¶10(b)(iii)-(vii)
(2) According to 45 C.F.R. Part 84 App. A(a)(1), private
programs that do not themselves receive Federal financial
(a) Are not covered just because their students may participate
in federally funded programs;
(b) May be indirectly subject to these requirements under
45 C.F.R. §84.4(b)(4) (prohibiting contracting with
those who discriminate).
c. Post-secondary Education
i. These provisions apply to post-secondary education programs
and activities, including post-secondary vocational education
programs and activities. 45 C.F.R. §84.41.
ii. The regulations include provisions regarding:
(1) Admissions and recruitment. 45 C.F.R. §84.42.
(2) Treatment of students. 45 C.F.R. §84.43.
(3) Academic adjustments. 45 C.F.R. §84.44.
(4) Housing. 45 C.F.R. §84.45.
(5) Financial and employment assistance to students. 45 C.F.R.
aids and services. See, generally, <http://www.ed.gov/offices/OCR/docs/auxaids.html>.
d. For some answers to frequently
asked questions about §504 and the education of children
with disabilities, see <http://www.ed.gov/offices/OCR/504faq.html>.
Health, welfare, and other social services. 45 C.F.R. §84.52.
a. In providing health, welfare, or other social services or
benefits, a recipient may not, on the basis of disability:
i. Deny a qualified person those benefits or services;
ii. Give unequal opportunities to receive benefits or services;
iii. Provide benefits or services that are not as effective
as the benefits or services provided to others;
iv. Provide benefits or services in a manner that limits or
has the effect of limiting the participation of qualified persons
with disabilities; or
v. Provide different or separate benefits or services except
where necessary to provide benefits and services that are as
effective as those provided to others.
b. Notice - a recipient shall take such steps as are necessary
to ensure that effective notice is not denied because of a disability.
c. Emergency treatment for the hearing impaired - hospitals that
provide health services or benefits shall establish procedures
for effective communication with persons with impaired hearing.
d. Auxiliary aids - a recipient that employs 15 or more people
shall provide appropriate auxiliary aids where necessary to afford
such persons an equal opportunity to benefit from the service
in question. See Davis v. Flexman, 109 F.Supp.2d 776, 787
e. Drug and alcohol addicts - A recipient that operates a general
hospital or outpatient facility may not discriminate in admission
or treatment against a drug or alcohol abuser or alcoholic who
is suffering from a medical condition, because of the person's
drug or alcohol abuse or alcoholism. 45 C.F.R. §84.53.
f. Education of institutionalized persons - A recipient that
operates or supervises a program or activity for persons who are
institutionalized because of disability shall ensure that each
person in its program or activity is provided a free, appropriate
education. 45 C.F.R. §84.54.
g. Although the regulations included provisions regarding health
care for infants with disabilities, see 45 C.F.R. Part 84 App.
C, these were struck down in a series of cases, including Bowen
v. American Hosp. Ass'n, 476 U.S. 610 (1986). But not all
medical treatment decisions are immune from scrutiny under the
Rehabilitation Act. See, e.g., Zamora-Quezada v. HealthTexas
Medical Group of San Antonio, 34 F.Supp.2d 433, 445 (W.D.Tex.
a. Standards applicable to New Construction, Substantial Alterations,
and certain public housing projects:
i. New Construction - all new multifamily housing projects
containing five or more dwelling units:
(1) Shall be designed and constructed to be readily accessible
to and usable by individuals with handicaps. 24 C.F.R. §§
8.3 and 8.22(a). "Accessible" means that the unit
is located on an accessible route and can be approached, entered,
and used by individuals with physical handicaps. 24 C.F.R.
(2) Shall have:
(a) A minimum of 5% of total dwelling units (at least one)
accessible (or adaptable) for individuals with mobility
impairments, 24 C.F.R. §8.22(b);
(b) An additional 2% of total dwelling units (at least
one) accessible to persons with hearing or vision impairments,
24 C.F.R. §8.22(b);
(c) A higher percentage of accessible units if HUD determines,
based on census or other available data, that more accessible
units are needed, 24 C.F.R. §8.22(c);
(3) Compliance with sections 3-8 of the Uniform Federal Accessibility
Standards (UFAS) shall satisfy these accessibility requirements.
24 C.F.R. §8.32(a). The
UFAS are available online at <http://www.access-board.gov/ufas/ufas-html/ufas.htm>.
ii. The above requirements also apply to all newly constructed
public housing, public housing developed through rehabilitation,
and all alterations to public housing. 24 C.F.R. §8.25(a)(1)
(1) The above requirements also apply to Substantial Alterations,
meaning alterations undertaken to a project that has 15 or
more units and the cost of the alterations is 75 percent or
more of the replacement cost of the completed facility. 24
(2) Standards Applicable to Other Alterations:
(a) Other alterations to housing facilities with five (5)
or more units must ensure that all elements affected by
the scope of work are designed to provide accessibility
to the maximum extent feasible. If the alterations to portions
of a dwelling unit together amount to alteration of the
entire unit, the unit must be made accessible.
(b) A minimum of 5% of units in a project must be made
accessible (adaptable) for individuals with mobility impairments,
unless 5% of the units are already accessible or adaptable.
An additional 2% of total dwelling units (at least one)
must be made accessible to persons with hearing or vision
impairments. HUD may increase this percentage on the basis
of data showing a greater need. Until 5% and 2% of the units
are made completely accessible to people with mobility and
sensory impairments, respectively, each alteration made
in every unit must meet accessibility requirements. 24 C.F.R.
(c) Alterations to common areas (such as entrances, lobbies,
etc.) must, to the maximum extent feasible, be made accessible
to and usable by individuals with disabilities.
b. Other Provisions.
i. In developing public housing through the purchase of existing
properties, public housing authorities shall give priority to
facilities that are readily accessible to and usable by individuals
with disabilities. 24 C.F.R. §8.25(a)(3).
ii. Accessible dwelling units referenced in ¶¶12(a)(i)-(iii)
and (b)(i) above shall, to the maximum extent feasible and subject
to reasonable health and safety requirements, be distributed
throughout projects and sites, and shall be available in a comparable
range of sizes and amenities. 24 C.F.R. §8.26.
iii. When rehabilitating a unit, the resident and Contract
Administrator may request alterations to units or common areas
where no alterations were contemplated. If the request is reasonable
in the context of the individual's disability, the owner must
address the need through either reasonable accommodations or
structural modifications unless it constitutes an undue financial
and/or administrative burden.
iv. Existing housing must meet the "program access"
standard, and comply with the transition plan requirements and
deadlines described in 24 C.F.R. §8.24. In choosing among
available methods for meeting "program access," priority
must be given to methods that offer programs and services in
the most integrated setting possible. It is not required that
each existing facility be accessible if other methods are effective
(i.e, when the property is viewed in its entirety, it
must be readily accessible to and usable by individuals with
disabilities). 24 C.F.R. §§8.21(c) and 8.24(a) and
c. Special Programs.
i. Homeownership programs. 24 C.F.R. §8.29.
(1) Units must be made accessible if the expected occupant's
disability so requires;
(2) The buyer may be permitted to depart from applicable
accessibility standards to accommodate his/her disability;
(3) Costs for making the home comply with accessibility standards
(UFAS) may be included in the mortgage amount;
(4) Costs above the limit may be passed on to the buyer.
ii. Rental rehabilitation programs - each grantee or state
recipient must give priority to the selection of projects that
will result in accessible dwelling units. 24 C.F.R. §8.30.
iii. Historic properties - accessibility need not be provided
if alterations would substantially impair the significant historic
features of the property or result in undue financial and administrative
burdens. 24 C.F.R. §8.31.
iv. Housing certificate/voucher programs. 24 C.F.R. §8.28.
Compare 24 C.F.R. §92.209.
(1) The recipient must insure that the notice of availability
of housing assistance reaches individuals with disabilities;
(2) Owners having accessible units should be actively encouraged
(3) When considering requests for extensions from individuals
with disabilities, grantees should take into account the special
problems associated with locating an accessible unit;
(4) Exceptions to the fair market rents may be necessary
to allow Section 8 certificate holders to rent accessible
(5) Grantees must enter into HUD-approved contracts with
participating owners that include assurances of non-discrimination
on the basis of disability.
a. DOJ suspended the coordinating prohibiting disability discrimination
in transportation programs and activities. 46 FR 40687-01 (Aug.
b. Current Dep't of Transportation regulations require, among
i. Compliance with ADA Title II transportation regulations.
49 C.F.R. §27.19;
ii. Accessible airport facilities, 49 C.F.R. §27.71, aircraft
boarding assistance by airport personnel and equipment, 49 C.F.R.
§27.72, and appropriate actions with regard to service
animals, Guidance Concerning Service Animals in Air Transportation,
61 FR 56409, 56420 (11/1/96); and
iii. Accessible highway facilities such as rest areas, curb
cuts, and pedestrian walkways. 49 C.F.R. §27.75.
of §504 rights.
a. Administrative enforcement.
i. Each agency is responsible for enforcing its own regulations.
ii. Administrative complaints must be filed within 180 days
of the action complained of. See 28 C.F.R. §42.107(b) (Title
iii. Other information on how to file §504 complaints
with the appropriate agency may be available from the Disability
Rights Section, Civil Rights Division, U.S.
Department of Justice, P.O. Box 66738, Washington, D.C.
20035-6738, (800) 514-0301 (voice), (800) 514-0383 (TTY), info
iv. Special rules apply in employment cases against federal
v. Administrative remedies can include termination of Federal
financial assistance, 29 U.S.C. §794a, for the particular
program or part thereof that is not in compliance, 28 C.F.R.
b. Section 504 may also be enforced through private lawsuits.
Barnes v. Gorman, ___ U.S. ___, 122 S.Ct. 2097, 2100 (2002).
i. A common formulation of the elements of a case involving
discrimination in services under §504, as described in
Lesley v. Chie, 250 F.3d 47, 53 (1st Cir. 2001), might
include proof that the plaintiff:
(1) has a disability;
(2) sought services from a federally funded entity;
(3) was "otherwise qualified" to receive those
(4) was denied those services "solely by reason of her
ii. A common formulation of the elements of an employment discrimination
case under §504, as described in Chandler v. City of
Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), includes proof
that the plaintiff:
(1) has a disability;
(2) was otherwise qualified to perform the position in question;
(3) worked for a "program or activity" that received
federal financial assistance;
(4) was adversely treated solely because of his handicap.
iii. Statute of limitations
(1) There is no express statute of limitation in §504,
so the most analogous state law statute of limitations applies,
typically the statute of limitations for personal injury claims.
E.g., Hickey v. Irving Independent School Dist., 976
F.2d 980, 982-983 (5th Cir. 1992) (Texas two-year personal
injury statute applied).
(2) State tolling rules (excusing delays beyond the limitations
period) are also applicable. Daviton v. Columbia/HCA Healthcare
Corp., 241 F.3d 1131 (9th Cir. 2001) (involving ADA Title
III and §504 claims); Harris v. Hegmann, 198 F.3d
153, 156-157 (5th Cir. 1999) (§1983 case); Wagner
v. Texas A & M University, 939 F.Supp. 1297, 1316-1317
(S.D.Tex. 1996) (similar).
c. Intent is not necessary to state a claim under §504,
Washington v. Indiana High School Athletic Ass'n, Inc.,
181 F.3d 840, 847 (7th Cir.), cert. denied, 528 U.S. 1046
(1999), and discrimination may be established by evidence that:
i. The defendant intentionally acted on the basis of the disability;
ii. The defendant refused to provide a reasonable modification;
iii. The defendant's rule disproportionally impacts disabled
d. Exhaustion of administrative remedies.
i. It is generally not necessary to file a complaint with a
Federal agency or to receive a "right-to-sue" letter
before going to court. See, e.g., Freed v. Consolidated Rail
Corp., 201 F.3d 188 (3d Cir. 2000); Smith v. Barton,
914 F.2d 1330, 1338 (9th Cir. 1990); Camenisch v. University
of Texas, 616 F.2d 127 (5th Cir. 1980), vacated on other
grounds, 451 U.S. 390 (1981). See also Education & Labor
report at 98; S. Rep. No. 116, 101st Cong., 1st Sess., at 57-58
ii. Some exceptions exist:
(1) Employment claims against federal agencies. See ¶7(h)(i)(3)
above, and ¶16(b)(ii) below.
(2) The Prison Litigation Reform Act requires administrative
exhaustion of certain claims against prisons. See, e.g., Hicks
v. Monteiro, 2002 WL 654086 (N.D.Cal. Apr. 11, 2002).
(3) According to some courts, exhaustion of due process rights
under IDEA must be completed prior to suing public schools.
See, e.g., Polera v. Board of Educ. of Newburgh Enlarged
City School Dist., 288 F.3d 478 (2d Cir. 2002).
(4) According to some courts, administrative remedies must
be exhausted in cases against the federal government. See,
e.g., Poynter v. U.S., 55 F.Supp.2d 558, 563 (W.D.La.
a. Generally, §504 expressly provides the same remedies
as Title VI of the Civil Rights Act of 1964. 29 U.S.C. §794a(a)(2);
Barnes v. Gorman, ___ U.S. ___, 122 S.Ct. 2097, 2100 (2002).
b. Actual damages
i. In Franklin v. Gwinnett County Public Schools, 503
U.S. 60, 66 (1992), the Supreme Court held that, where a private
right of action exists, "any appropriate relief" is
available under federal statutes (specifically Title IX), expressly
including compensatory damages. Since Title IX, like §504,
adopts the remedies of Title VI, the applicability of Franklin
to §504 cases is clear. Compare Barnes v. Gorman,
___ U.S. ___, 122 S.Ct. 2097 (2002).
ii. The great majority of §504 cases since Franklin
to decide the issue have held that compensatory damages are
available. See, e.g., Moreno v. Consolidated Rail Corp.,
99 F.3d 782, 789 (6th Cir. 1996) (en banc) (every circuit that
has reached issue after Franklin has held that compensatory
damages are available under §504); Kilroy v. Husson
College, 959 F.Supp. 22 (D.Maine 1997); DeLeo v. City
of Stamford, 919 F.Supp. 70 (D.Conn. 1995). See also 145
ALR Fed. 353.
iii.Most courts require proof of intentional conduct. See,
e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1138-1139
(9th Cir. 2001) (using deliberate indifference standard); Powers
v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir.
1999) (same); Bartlett v. New York State Board of Law Examiners,
156 F.3d 321 (2d Cir. 1998) (same), vacated on other grounds,
527 U.S. 1031 (1999); Bravin v. Mount Sinai Med. Center,
58 F.Supp.2d 269, 273-274 (S.D.N.Y. 1999). Compare Ferguson
v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998) (finding
no evidence of intent in part because of lack of notice to defendant,
and its diligent efforts to remedy problems once it was notified);
Schultz v. YMCA, 139 F.3d 286 (1st Cir. 1998) (YMCA is
not automatically immune simply because its standards were adopted
in good faith or based on widespread assumptions, but court
rejects awarding damages for emotional distress in a debatable
case on the merits with no animus or other concrete impact).
iv. Note that none of the above are employment cases, which
have their own formulas for proving "intentional"
conduct. See, e.g., Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 142-143 (2000) (ADEA case describing
"pretext" method of proving intentional discrimination).
v. While there are caps on the damages recoverable in employment
cases brought under §501, there are no caps on damages
in cases under §504. 42 U.S.C. §1981a(a)(2); Roberts
v. Progressive Independence, Inc., 183 F.3d 1215, 1223-1224
(10th Cir. 1999).
vi. States' generally do not have immunity from claims
for money damages under §504.
(1) The vast majority of courts to consider the issue have
ruled that §504, as Spending Clause legislation conditioning
receipt of federal funds on a waiver of immunity, is constitutional.
See, e.g., Robinson v. State of Kansas, ___ F.3d ___,
2002 WL 1462856*3 (10th Cir. 2002); Carten v. Kent State
University, 282 F.3d 391, 398 (6th Cir. 2002); Douglas
v. California Dept. of Youth Authority, 271 F.3d 812,
819-821 (9th Cir. 2001) (and cases cited); Bowers v. National
Collegiate Athletic Ass'n, 171 F. Supp.2d 389, 408 (D.N.J.
2001), appeal pending; Frederick L. v. Dep't of Pub. Welfare,
157 F. Supp.2d 509, 523 (E.D. Pa. 2001); Lieberman v. Delaware,
2001 WL 1000936, at *5-6 (D.Del. Aug. 30, 2001). See also
Kvorjak v. Maine, 259 F.3d 48, 50 n.1 (1st Cir. 2001)
(stating that employment claim could proceed under §504
after Garrett, though without analysis). Compare Garrett
v. University of Alabama at Birmingham Bd. of Trustees,
276 F.3d 1227, 1228-1229 (11th Cir. 2001) (remanded for consideration
of the issue).
(2) Compare also Garcia v. SUNY Health Sciences Center
of Brooklyn, 280 F.3d 98, 113-115 (2d Cir.2001) (no knowing
waiver because at the time the state accepted funds [pre-Seminole
decision in 1995], Title II was reasonably understood to abrogate
state's sovereign immunity under Commerce Clause authority,
so a state accepting federal funds conditioned on a waiver
of immunity from §504 claims, which proscribed the same
conduct, could not have understood that it was actually giving
(3) The Fifth Circuit has not yet decided the issue, Reickenbacker
v. Foster, 274 F.3d 974, 984 (5th Cir. 2001) (issue not
preserved), but the issue is currently pending before the
Court in several cases. See, e.g., Miller v. Texas Tech
University Health Sciences Ctr., No. 02-10190 (5th Cir.
2002) (appeal pending); August v. Mitchell, 2002 WL
188406 (E.D. La. 2002) (appeal pending, No. 02-30369); Johnson
v. State of Louisiana, 2002 WL 83645, at *5 (E.D. La.
2002) (appeal pending, No. 02-30318).
vii. Damages are not available, however, against the federal
government or its agencies under §504, because the Rehabilitation
Act does not waive the federal government's sovereign immunity
from damage claims. Lane v. Pena, 518 U.S. 187 (1996).
c. No punitive damages. Barnes v. Gorman, ___ U.S. ___,
122 S.Ct. 2097 (2002).
d. Injunctive relief. E.g., Layton v. Elder, 143 F.3d
469, 472 (8th Cir. 1998) (trial court abused its discretion by
not ordering mandatory injunctive relief after finding violations
of the ADA and the Rehabilitation Act at the county courthouse;
once success on the merits is shown, three factors should be considered
in determining whether injunctive relief is appropriate: the threat
of irreparable harm to the plaintiff, the harm to be suffered
by the defendant if the injunction is granted, and the public
interest at stake); Chalk v. United States Dist. Court Cent.
Dist. of California, 840 F.2d 701 (9th Cir. 1988); Jackson
v. State of Maine, 544 A.2d 291, 299 (Me. 1988).
e. In employment cases:
i. Back pay. Consolidated Rail Corp. v. Darrone, 465
U.S. 624, 630 (1984).
ii. Reinstatement. Chalk v. United States Dist. Court Cent.
Dist. of California, 840 F.2d 701 (9th Cir. 1988).
iii. Front pay. Arline v. School Board of Nassau County,
692 F.Supp. 1286 (M.D. Fla. 1988) (opinion on remand).
f. Attorneys fees
i. Available to prevailing party. 29 U.S.C. §794a(b).
ii. Supreme Court has restricted "catalyst" attorneys
fees, purportedly based on Congressional intent. Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human
Res., 532 U.S. 598 (2001).
16. Some other parts of the
a. Title I
i. Title I of the Rehabilitation Act authorizes grants to assist
states in helping handicapped individuals prepare for and engage
in gainful employment. 29 U.S.C. §720(a).
ii. Title I requires states that wish to obtain federal funds
to submit a plan for vocational rehabilitation (VR) services
that provides, at a minimum, for the specified VR services listed
in 29 U.S.C. §721(a)(8).
iii. Some courts have held that Title I VR clients are entitled
to bring claims under 42 U.S.C. §1983 to ensure compliance
with these federal requirements, especially in light of the
fact that there is no private right of action under Title I.
See, e.g., Doe v. Pfrommer, 148 F.3d 73, 78 (2d Cir.
1998); Mallett v. Wisconsin Div. of Vocational Rehabilitation,
130 F.3d 1245 (7th Cir. 1997).
i. Section 501 requires affirmative action and nondiscrimination
in employment by Federal agencies of the executive branch.
ii. Exhaustion of administrative remedies required, through
an EEO/EEOC process. 29 C.F.R. Part 1614. Alternatively, a federal
employee can got through the Merit System Protection Board (MSPB),
5 U.S.C. §§7701 et seq.; 5 C.F.R. Part 1201, or a
collectively bargained grievance and arbitration process.
i. Section 503 requires affirmative action and prohibits employment
discrimination by Federal government contractors and subcontractors
with contracts of more than $10,000.
ii. Most of the cases interpreting §503 hold that there
is no private right of action under it. See, e.g., Ortega
v. Rhone-Poulenc of Wyoming, L.P., 842 F.Supp. 488 (D.Wyo.
is enforced by Office of Federal Contract Compliance Programs,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room
C-3325 Washington, D.C. 20210, (202) 693-0106 (voice/relay),
info at <http://www.dol.gov/dol/esa/public/ofcp_org.htm>.
i. Applies to electronic and information technology developed,
maintained, procured, or used by the Federal government
ii. Requires Federal electronic and information technology
to be accessible to people with disabilities, including employees
and members of the public.
iii. For more information on §508, contact:
(a) U.S. General
Services Administration, Center for IT Accommodation (CITA),
1800 F Street, N.W., Room 1234, MC:MKC, Washington, DC 20405-0001,
(202) 501-4906 (voice), (202) 501-2010 (TTY), info at <http://www.itpolicy.gsa.gov/cita>.
(b) U.S. Architectural
and Transportation, Barriers Compliance Board, 1331 F
Street, N.W. Suite 1000, Washington, DC 20004-1111, 800-872-2253
(voice), 800-993-2822 (TTY), info at <http://www.access-board.gov>.
© Brian East
July 31, 2002