The Americans with Disabilities Act of 1990, Titles I and V
EDITOR'S NOTE: The following is the text of Titles I and V of the Americans with Disabilities Act of 1990 (Pub. L. 101-336) (ADA), as amended, as these titles appear in volume 42 of the United States Code, beginning at section 12101. Title I of the ADA, which became effective for employers with 25 or more employees on July 26, 1992, prohibits employment discrimination against qualified individuals with disabilities. Title I will apply to employers with 15 or more employees beginning on July 26, 1994. Title V contains miscellaneous provisions which apply to EEOC's enforcement of Title I. The Civil Rights Act of 1991 (Pub. L. 102-166) (CRA) amends sections 101(4), 102 and 509 of the ADA. These amendments appear in boldface type. In addition, section 102 of the CRA (which is printed elsewhere in this publication) amends the Revised Statutes by adding a new section following section 1977 (42 U.S.C. 1981) to provide for the recovery of compensatory and punitive damages in cases of intentional violations of Title VII, the Americans with Disabilities Act of 1990, and section 501 of the Rehabilitation Act of 1973. Cross references to the ADA as enacted appear in italics following each section heading. Editor's notes also appear in italics.
An Act To establish a clear and comprehensive prohibition of
discrimination on the basis of disability.
Be it enacted by the Senate and House of Representatives of the United
States of America assembled, that this Act may be cited as the
"Americans with Disabilities Act of 1990".
* * *
FINDINGS AND PURPOSES
SEC. 12101. [Section 2]
(a) Findings. - The Congress finds that-
(1) some 43,000,000 Americans have one or more physical or mental
disabilities, and this number is increasing as the population as a whole
is growing older;
(2) historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such forms
of discrimination against individuals with disabilities continue to be a
serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists
in such critical areas as employment, housing, public accommodations,
education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public
services;
(4) unlike individuals who have experienced discrimination on the
basis of race, color, sex, national origin, religion, or age, individuals
who have experienced discrimination on the basis of disability have often
had no legal recourse to redress such discrimination;
(5) individuals with disabilities continually encounter various
forms of discrimination, including outright intentional exclusion, the
discriminatory effects of architectural, transportation, and communication
barriers, overprotective rules and policies, failure to make modifications
to existing facilities and practices, exclusionary qualification standards
and criteria, segregation, and relegation to lesser services, programs,
activities, benefits, jobs, or other opportunities;
(6) census data, national polls, and other studies have documented
that people with disabilities, as a group, occupy an inferior status in
our society, and are severely disadvantaged socially, vocationally,
economically, and educationally;
(7) individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and limitations, subjected
to a history of purposeful unequal treatment, and relegated to a position
of political powerlessness in our society, based on characteristics that
are beyond the control of such individuals and resulting from stereotypic
assumptions not truly indicative of the individual ability of such
individuals to participate in, and contribute to, society;
(8) the Nation's proper goals regarding individuals with
disabilities are to assure equality of opportunity, full participation,
independent living, and economic selfsufficiency for such
individuals; and
(9) the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with disabilities the
opportunity to compete on an equal basis and to pursue those opportunities
for which our free society is justifiably famous, and costs the United
States billions of dollars in unnecessary expenses resulting from
dependency and nonproductivity.
(b) Purpose. - It is the purpose of this chapter-
(1) to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable standards
addressing discrimination against individuals with disabilities;
(3) to ensure that the Federal Government plays a central role in
enforcing the standards established in this chapter on behalf of
individuals with disabilities; and
(4) to invoke the sweep of congressional authority, including the
power to enforce the fourteenth amendment and to regulate commerce, in
order to address the major areas of discrimination faced
daytoday by people with disabilities.
DEFINITIONS
SEC. 12102. [Section 3]
As used in this chapter:
(1) Auxiliary aids and services. - The term ``auxiliary aids and
services'' includes-
(A) qualified interpreters or other effective methods of making
aurally delivered materials available to individuals with hearing
impairments;
(B) qualified readers, taped texts, or other effective methods of
making visually delivered materials available to individuals with visual
impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.
(2) Disability. - The term ``disability'' means, with respect to an
individual-
(A) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
(3) State. - The term ``State'' means each of the several States,
the District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and
the Commonwealth of the Northern Mariana Islands.
DEFINITIONS
SEC. 12111. [Section 101]
As used in this subchapter:
(1) Commission. - The term ``Commission'' means the Equal
Employment Opportunity Commission established by section 2000e-4 of this
title [section 705 of the Civil Rights Act of 1964].
(2) Covered entity. - The term ``covered entity'' means an
employer, employment agency, labor organization, or joint
labormanagement committee.
(3) Direct threat. - The term ``direct threat'' means a significant
risk to the health or safety of others that cannot be eliminated by
reasonable accommodation.
(4) Employee. - The term ``employee'' means an individual employed
by an employer. With respect to employment in a foreign country, such
term includes an individual who is a citizen of the United States.
(5) Employer. -
(A) In general. - The term ``employer'' means a person engaged in
an industry affecting commerce who has 15 or more employees for each
working day in each of 20 or more calendar weeks in the current or
preceding calendar year, and any agent of such person, except that, for
two years following the effective date of this subchapter, an employer
means a person engaged in an industry affecting commerce who has 25 or
more employees for each working day in each of 20 or more calendar weeks
in the current or preceding year, and any agent of such person.
(B) Exceptions. - The term ``employer'' does not include-
(i) the United States, a corporation wholly owned by the government
of the United States, or an Indian tribe; or
(ii) a bona fide private membership club (other than a labor
organization) that is exempt from taxation under section 501(c) of Title
26 [the Internal Revenue Code of 1986].
(6) Illegal use of drugs. -
(A) In general. - The term ``illegal use of drugs'' means the use
of drugs, the possession or distribution of which is unlawful under the
Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not
include the use of a drug taken under supervision by a licensed health
care professional, or other uses authorized by the Controlled Substances
Act or other provisions of Federal law.
(B) Drugs. - The term ``drug'' means a controlled substance, as
defined in schedules I through V of section 202 of the Controlled
Substances Act [21 U.S.C. 812].
(7) Person, etc. - The terms ``person'', ``labor organization'',
``employment agency'', ``commerce'', and ``industry affecting commerce'',
shall have the same meaning given such terms in section 2000e of this
title [section 701 of the Civil Rights Act of 1964].
(8) Qualified individual with a disability. - The term ``qualified
individual with a disability'' means an individual with a disability who,
with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires. For the purposes of this subchapter, consideration shall be given
to the employer's judgment as to what functions of a job are essential,
and if an employer has prepared a written description before advertising
or interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the job.
(9) Reasonable accommodation. - The term ``reasonable
accommodation'' may include-
(A) making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and
(B) job restructuring, parttime or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations for individuals
with disabilities.
(10) Undue hardship. -
(A) In general. - The term ``undue hardship'' means an action
requiring significant difficulty or expense, when considered in light of
the factors set forth in subparagraph (B).
(B) Factors to be considered. - In determining whether an
accommodation would impose an undue hardship on a covered entity, factors
to be considered include-
(i) the nature and cost of the accommodation needed under this
chapter;
(ii) the overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation; the number of
persons employed at such facility; the effect on expenses and resources,
or the impact otherwise of such accommodation upon the operation of the
facility;
(iii) the overall financial resources of the covered entity; the
overall size of the business of a covered entity with respect to the
number of its employees; the number, type, and location of its facilities;
and
(iv) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the workforce of
such entity; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the covered
entity.
DISCRIMINATION
SEC. 12112. [Section 102]
(a) General rule. - No covered entity shall discriminate against a
qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.
(b) Construction. - As used in subsection (a) of this section, the term
``discriminate'' includes-
(1) limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or status of
such applicant or employee because of the disability of such applicant or
employee;
(2) participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entity's
qualified applicant or employee with a disability to the discrimination
prohibited by this subchapter (such relationship includes a relationship
with an employment or referral agency, labor union, an organization
providing fringe benefits to an employee of the covered entity, or an
organization providing training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration-
(A) that have the effect of discrimination on the basis of
disability; or
(B) that perpetuate the discrimination of others who are subject to
common administrative control;
(4) excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an individual with
whom the qualified individual is known to have a relationship or
association;
(5) (A) not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee
who is an otherwise qualified individual with a disability, if such denial
is based on the need of such covered entity to make reasonable
accommodation to the physical or mental impairments of the employee or
applicant;
(6) using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an individual
with a disability or a class of individuals with disabilities unless the
standard, test or other selection criteria, as used by the covered entity,
is shown to be jobrelated for the position in question and is
consistent with business necessity; and
(7) failing to select and administer tests concerning employment in
the most effective manner to ensure that, when such test is administered
to a job applicant or employee who has a disability that impairs sensory,
manual, or speaking skills, such test results accurately reflect the
skills, aptitude, or whatever other factor of such applicant or employee
that such test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant (except
where such skills are the factors that the test purports to measure).
(c) Covered entities in foreign countries. -
(1) In general. - It shall not be unlawful under this section for a
covered entity to take any action that constitutes discrimination under
this section with respect to an employee in a workplace in a foreign
country if compliance with this section would cause such covered entity to
violate the law of the foreign country in which such workplace is located.
(2) Control of corporation
(A) Presumption. - If an employer controls a corporation whose
place of incorporation is a foreign country, any practice that constitutes
discrimination under this section and is engaged in by such corporation
shall be presumed to be engaged in by such employer.
(B) Exception. - This section shall not apply with respect to the
foreign operations of an employer that is a foreign person not controlled
by an American employer.
(C) Determination. - For purposes of this paragraph, the
determination of whether an employer controls a corporation shall be based
on-
(i) the interrelation of operations;
(ii) the common management;
(iii) the centralized control of labor relations; and
(iv) the common ownership or financial control, of the employer and
the corporation.
(d) Medical examinations and inquiries. -
(1) In general. - The prohibition against discrimination as
referred to in subsection (a) of this section shall include medical
examinations and inquiries.
(2) Preemployment. -
(A) Prohibited examination or inquiry. - Except as provided in
paragraph (3), a covered entity shall not conduct a medical examination or
make inquiries of a job applicant as to whether such applicant is an
individual with a disability or as to the nature or severity of such
disability.
(B) Acceptable inquiry. - A covered entity may make preemployment
inquiries into the ability of an applicant to perform jobrelated
functions.
(3) Employment entrance examination. - A covered entity may require
a medical examination after an offer of employment has been made to a job
applicant and prior to the commencement of the employment duties of such
applicant, and may condition an offer of employment on the results of such
examination, if-
(A) all entering employees are subjected to such an examination
regardless of disability;
(B) information obtained regarding the medical condition or history
of the applicant is collected and maintained on separate forms and in
separate medical files and is treated as a confidential medical record,
except that_
(i) supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
(ii) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) government officials investigating compliance with this
chapter shall be provided relevant information on request; and
(C) the results of such examination are used only in accordance
with this subchapter.
(4) Examination and inquiry. -
(A) Prohibited examinations and inquiries. - A covered entity shall
not require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a disability or
as to the nature or severity of the disability, unless such examination or
inquiry is shown to be jobrelated and consistent with business
necessity.
(B) Acceptable examinations and inquiries. - A covered entity may
conduct voluntary medical examinations, including voluntary medical
histories, which are part of an employee health program available to
employees at that work site. A covered entity may make inquiries into the
ability of an employee to perform jobrelated functions.
(C) Requirement. - Information obtained under subparagraph (B)
regarding the medical condition or history of any employee are subject to
the requirements of subparagraphs (B) and (C) of paragraph (3).
DEFENSES
SEC. 12113. [Section 103]
(a) In general. - It may be a defense to a charge of discrimination
under this chapter that an alleged application of qualification standards,
tests, or selection criteria that screen out or tend to screen out or
otherwise deny a job or benefit to an individual with a disability has
been shown to be jobrelated and consistent with business necessity,
and such performance cannot be accomplished by reasonable accommodation,
as required under this subchapter.
(b) Qualification standards. - The term ``qualification standards'' may
include a requirement that an individual shall not pose a direct threat to
the health or safety of other individuals in the workplace.
(c) Religious entities. -
(1) In general. - This subchapter shall not prohibit a religious
corporation, association, educational institution, or society from giving
preference in employment to individuals of a particular religion to
perform work connected with the carrying on by such corporation,
association, educational institution, or society of its activities.
(2) Religious tenets requirement. - Under this subchapter, a
religious organization may require that all applicants and employees
conform to the religious tenets of such organization.
(d) List of infectious and communicable diseases. -
(1) In general. - The Secretary of Health and Human Services, not
later than 6 months after July 26, 1990 [the date of enactment of this
Act], shall-
(A) review all infectious and communicable diseases which may be
transmitted through handling the food supply;
(B) publish a list of infectious and communicable diseases which
are transmitted through handling the food supply;
(C) publish the methods by which such diseases are transmitted; and
(D) widely disseminate such information regarding the list of
diseases and their modes of transmissibility to the general public.Such
list shall be updated annually.
(2) Applications. - In any case in which an individual has an
infectious or communicable disease that is transmitted to others through
the handling of food, that is included on the list developed by the
Secretary of Health and Human Services under paragraph (1), and which
cannot be eliminated by reasonable accommodation, a covered entity may
refuse to assign or continue to assign such individual to a job involving
food handling.
(3) Construction. - Nothing in this chapter shall be construed to
preempt, modify, or amend any State, county, or local law, ordinance, or
regulation applicable to food handling which is designed to protect the
public health from individuals who pose a significant risk to the health
or safety of others, which cannot be eliminated by reasonable
accommodation, pursuant to the list of infectious or communicable diseases
and the modes of transmissibility published by the Secretary of Health and
Human Services.
ILLEGAL USE OF DRUGS AND ALCOHOL
SEC. 12114. [Section 104]
(a) Qualified individual with a disability. - For purposes of this
subchapter, the term ``qualified individual with a disability'' shall not
include any employee or applicant who is currently engaging in the illegal
use of drugs, when the covered entity acts on the basis of such use.
(b) Rules of construction. - Nothing in subsection (a) of this section
shall be construed to exclude as a qualified individual with a disability
an individual who-
(1) has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
such use;
(2) is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(3) is erroneously regarded as engaging in such use, but is not
engaging in such use;except that it shall not be a violation of this
chapter for a covered entity to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to ensure
that an individual described in paragraph (1) or (2) is no longer engaging
in the illegal use of drugs.
(c) Authority of covered entity. -
A covered entity-
(1) may prohibit the illegal use of drugs and the use of alcohol at
the workplace by all employees;
(2) may require that employees shall not be under the influence of
alcohol or be engaging in the illegal use of drugs at the workplace;
(3) may require that employees behave in conformance with the
requirements established under the DrugFree Workplace Act of 1988
(41 U.S.C. 701 et seq.);
(4) may hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for employment or
job performance and behavior that such entity holds other employees, even
if any unsatisfactory performance or behavior is related to the drug use
or alcoholism of such employee; and
(5) may, with respect to Federal regulations regarding alcohol and
the illegal use of drugs, require that-
(A) employees comply with the standards established in such
regulations of the Department of Defense, if the employees of the covered
entity are employed in an industry subject to such regulations, including
complying with regulations (if any) that apply to employment in sensitive
positions in such an industry, in the case of employees of the covered
entity who are employed in such positions (as defined in the regulations
of the Department of Defense);
(B) employees comply with the standards established in such
regulations of the Nuclear Regulatory Commission, if the employees of the
covered entity are employed in an industry subject to such regulations,
including complying with regulations (if any) that apply to employment in
sensitive positions in such an industry, in the case of employees of the
covered entity who are employed in such positions (as defined in the
regulations of the Nuclear Regulatory Commission); and
(C) employees comply with the standards established in such
regulations of the Department of Transportation, if the employees of the
covered entity are employed in a transportation industry subject to such
regulations, including complying with such regulations (if any) that apply
to employment in sensitive positions in such an industry, in the case of
employees of the covered entity who are employed in such positions (as
defined in the regulations of the Department of Transportation).
(d) Drug testing. -
(1) In general. - For purposes of this subchapter, a test to
determine the illegal use of drugs shall not be considered a medical
examination.
(2) Construction. - Nothing in this subchapter shall be construed
to encourage, prohibit, or authorize the conducting of drug testing for
the illegal use of drugs by job applicants or employees or making
employment decisions based on such test results.
(e) Transportation employees. - Nothing in this subchapter shall be
construed to encourage, prohibit, restrict, or authorize the otherwise
lawful exercise by entities subject to the jurisdiction of the Department
of Transportation of authority to-
(1) test employees of such entities in, and applicants for,
positions involving safetysensitive duties for the illegal use of
drugs and for onduty impairment by alcohol; and
(2) remove such persons who test positive for illegal use of drugs
and onduty impairment by alcohol pursuant to paragraph (1) from
safetysensitive duties in implementing subsection (c) of this
section.
POSTING NOTICES
SEC. 12115. [Section 105]
Every employer, employment agency, labor organization, or joint
labormanagement committee covered under this subchapter shall post
notices in an accessible format to applicants, employees, and members
describing the applicable provisions of this chapter, in the manner
prescribed by section 2000e-10 of this title [section 711 of the Civil
Rights Act of 1964].
REGULATIONS
SEC. 12116. [Section 106]
Not later than 1 year after July 26, 1990 [the date of enactment of
this Act], the Commission shall issue regulations in an accessible
format to carry out this subchapter in accordance with subchapter II of
chapter 5 of title 5 [United States Code].
ENFORCEMENT
SEC. 12117. [Section 107]
(a) Powers, remedies, and procedures. - The powers, remedies, and
procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and
2000e-9 of this title [sections 705, 706, 707, 709 and 710 of the Civil
Rights Act of 1964] shall be the powers, remedies, and procedures this
subchapter provides to the Commission, to the Attorney General, or to any
person alleging discrimination on the basis of disability in violation of
any provision of this chapter, or regulations promulgated under section
12116 of this title [section 106], concerning employment.
(b) Coordination. - The agencies with enforcement authority for actions
which allege employment discrimination under this subchapter and under the
Rehabilitation Act of 1973 [29 U.S.C. 701 et seq.] shall develop
procedures to ensure that administrative complaints filed under this
subchapter and under the Rehabilitation Act of 1973 are dealt with in a
manner that avoids duplication of effort and prevents imposition of
inconsistent or conflicting standards for the same requirements under this
subchapter and the Rehabilitation Act of 1973. The Commission, the
Attorney General, and the Office of Federal Contract Compliance Programs
shall establish such coordinating mechanisms (similar to provisions
contained in the joint regulations promulgated by the Commission and the
Attorney General at part 42 of title 28 and part 1691 of title 29, Code of
Federal Regulations, and the Memorandum of Understanding between the
Commission and the Office of Federal Contract Compliance Programs dated
January 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations
implementing this subchapter and Rehabilitation Act of 1973 not later than
18 months after July 26, 1990 [the date of enactment of this Act].
CONSTRUCTION
SEC. 12201. [Section 501]
(a) In general. - Except as otherwise provided in this chapter,
nothing in this chapter shall be construed to apply a lesser standard than
the standards applied under title V of the Rehabilitation Act of 1973 (29
U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant
to such title.
(b) Relationship to other laws. - Nothing in this chapter shall be
construed to invalidate or limit the remedies, rights, and procedures of
any Federal law or law of any State or political subdivision of any State
or jurisdiction that provides greater or equal protection for the rights
of individuals with disabilities than are afforded by this chapter.
Nothing in this chapter shall be construed to preclude the prohibition of,
or the imposition of restrictions on, smoking in places of employment
covered by subchapter I of this chapter [title I], in
transportation covered by subchapter II or III of this chapter [title
II or III], or in places of public accommodation covered by subchapter
III of this chapter [title III].
(c) Insurance. - Subchapters I through III of this chapter [titles I
through III] and title IV of this Act shall not be construed to
prohibit or restrict-
(1) an insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that administers benefit
plans, or similar organizations from underwriting risks, classifying
risks, or administering such risks that are based on or not inconsistent
with State law; or
(2) a person or organization covered by this chapter from
establishing, sponsoring, observing or administering the terms of a bona
fide benefit plan that are based on underwriting risks, classifying risks,
or administering such risks that are based on or not inconsistent with
State law; or
(3) a person or organization covered by this chapter from
establishing, sponsoring, observing or administering the terms of a bona
fide benefit plan that is not subject to State laws that regulate
insurance.
Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade
the purposes of subchapter I and III of this chapter [titles I and
III].
(d) Accommodations and services. - Nothing in this chapter shall be
construed to require an individual with a disability to accept an
accommodation, aid, service, opportunity, or benefit which such individual
chooses not to accept.
STATE IMMUNITY
SEC. 12202. [Section 502]
A State shall not be immune under the eleventh amendment to the
Constitution of the United States from an action in Federal or State court
of competent jurisdiction for a violation of this chapter. In any action
against a State for a violation of the requirements of this chapter,
remedies (including remedies both at law and in equity) are available for
such a violation to the same extent as such remedies are available for
such a violation in an action against any public or private entity other
than a State.
PROHIBITION AGAINST RETALIATION AND COERCION
SEC. 12203. [Section 503]
(a) Retaliation. - No person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by
this chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
or hearing under this chapter.
(b) Interference, coercion, or intimidation. - It shall be unlawful to
coerce, intimidate, threaten, or interfere with any individual in the
exercise or enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged any other
individual in the exercise or enjoyment of, any right granted or protected
by this chapter.
(c) Remedies and procedures. - The remedies and procedures available under
sections 12117, 12133, and 12188 of this title [sections 107, 203 and
308] shall be available to aggrieved persons for violations of
subsections (a) and (b) of this section, with respect to subchapter I,
subchapter II and subchapter III, respectively, of this chapter [title
I, title II and title III, respectively].
REGULATIONS BY THE ARCHITECTURAL AND TRANSPORTATION BARRIERS
COMPLIANCE BOARD
SEC. 12204. [Section 504]
(a) Issuance of guidelines. - Not later than 9 months after July 26,
1990 [the date of enactment of this Act], the Architectural and
Transportation Barriers Compliance Board shall issue minimum guidelines
that shall supplement the existing Minimum Guidelines and Requirements for
Accessible Design for purposes of subchapters II and III of this chapter
[titles II and III].
(b) Contents of guidelines. - The supplemental guidelines issued under
subsection (a) of this section shall establish additional requirements,
consistent with this chapter, to ensure that buildings, facilities, rail
passenger cars, and vehicles are accessible, in terms of architecture and
design, transportation, and communication, to individuals with
disabilities.
(c) Qualified historic properties. -
(1) In general. - The supplemental guidelines issued under
subsection (a) of this section shall include procedures and requirements
for alterations that will threaten or destroy the historic significance of
qualified historic buildings and facilities as defined in 4.1.7(1)(a) of
the Uniform Federal Accessibility Standards.
(2) Sites eligible for listing in National Register. - With respect
to alterations of buildings or facilities that are eligible for listing in
the National Register of Historic Places under the National Historic
Preservation Act (16 U.S.C. 470 et seq.), the guidelines described in
paragraph (1) shall, at a minimum, maintain the procedures and
requirements established in 4.1.7(1) and (2) of the Uniform Federal
Accessibility Standards.
(3) Other sites. - With respect to alterations of buildings or
facilities designated as historic under State or local law, the guidelines
described in paragraph (1) shall establish procedures equivalent to those
established by 4.1.7(1)(b) and (c) of the Uniform Federal Accessibility
Standards, and shall require, at a minimum, compliance with the
requirements established in 4.1.7(2) of such standards.
ATTORNEY'S FEES
SEC. 12205. [Section 505]
In any action or administrative proceeding commenced pursuant to this
chapter, the court or agency, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney's fee,
including litigation expenses, and costs, and the United States shall be
liable for the foregoing the same as a private individual.
TECHNICAL ASSISTANCE
SEC. 12206. [Section 506]
(a) Plan for assistance. -
(1) In general. - Not later than 180 days after July 26, 1990
[the date of enactment of this Act], the Attorney General, in
consultation with the Chair of the Equal Employment Opportunity
Commission, the Secretary of Transportation, the Chair of the
Architectural and Transportation Barriers Compliance Board, and the
Chairman of the Federal Communications Commission, shall develop a plan to
assist entities covered under this chapter, and other Federal agencies, in
understanding the responsibility of such entities and agencies under this
chapter.
(2) Publication of plan. - The Attorney General shall publish the
plan referred to in paragraph (1) for public comment in accordance with
subchapter II of chapter 5 of title 5 [United States Code]
(commonly known as the Administrative Procedure Act).
(b) Agency and public assistance. - The Attorney General may obtain the
assistance of other Federal agencies in carrying out subsection (a) of
this section, including the National Council on Disability, the
President's Committee on Employment of People with Disabilities, the Small
Business Administration, and the Department of Commerce.
(c) Implementation. -
(1) Rendering assistance. - Each Federal agency that has
responsibility under paragraph (2) for implementing this chapter may
render technical assistance to individuals and institutions that have
rights or duties under the respective subchapter or subchapters of this
chapter for which such agency has responsibility.
(2) Implementation of subchapters. -
(A) Subchapter I [Title I]. - The Equal Employment
Opportunity Commission and the Attorney General shall implement the plan
for assistance developed under subsection (a) of this section, for
subchapter I of this chapter [title I].
(B) Subchapter II [Title II]. -
(i) Part A [Subtitle A]. - The Attorney General shall
implement such plan for assistance for part A of subchapter II of this
chapter [subtitle A of title II].
(ii) Part B [Subtitle B]. - The Secretary of Transportation
shall implement such plan for assistance for part B of subchapter II of
this chapter [subtitle B of title II].
(C) Subchapter III [Title III]. - The Attorney General, in
coordination with the Secretary of Transportation and the Chair of the
Architectural Transportation Barriers Compliance Board, shall implement
such plan for assistance for subchapter III of this chapter, except for
section 12184 of this title [section 304], the plan for assistance
for which shall be implemented by the Secretary of Transportation.
(D) Title IV. - The Chairman of the Federal Communications
Commission, in coordination with the Attorney General, shall implement
such plan for assistance for title IV.
(3) Technical assistance manuals. - Each Federal agency that has
responsibility under paragraph (2) for implementing this chapter shall, as
part of its implementation responsibilities, ensure the availability and
provision of appropriate technical assistance manuals to individuals or
entities with rights or duties under this chapter no later than six months
after applicable final regulations are published under subchapters I, II,
and III of this chapter [titles I, II, and III] and title IV.
(d) Grants and contracts. -
(1) In general. - Each Federal agency that has responsibility under
subsection (c)(2) of this section for implementing this chapter may make
grants or award contracts to effectuate the purposes of this section,
subject to the availability of appropriations. Such grants and contracts
may be awarded to individuals, institutions not organized for profit and
no part of the net earnings of which inures to the benefit of any private
shareholder or individual (including educational institutions), and
associations representing individuals who have rights or duties under this
chapter. Contracts may be awarded to entities organized for profit, but
such entities may not be the recipients or grants described in this
paragraph.
(2) Dissemination of information. - Such grants and contracts,
among other uses, may be designed to ensure wide dissemination of
information about the rights and duties established by this chapter and to
provide information and technical assistance about techniques for
effective compliance with this chapter.
(e) Failure to receive assistance. - An employer, public accommodation, or
other entity covered under this chapter shall not be excused from
compliance with the requirements of this chapter because of any failure to
receive technical assistance under this section, including any failure in
the development or dissemination of any technical assistance manual
authorized by this section.
FEDERAL WILDERNESS AREAS
SEC. 12207. [Section 507]
(a) Study. - The National Council on Disability shall conduct a study
and report on the effect that wilderness designations and wilderness land
management practices have on the ability of individuals with disabilities
to use and enjoy the National Wilderness Preservation System as
established under the Wilderness Act (16 U.S.C. 1131 et seq.).
(b) Submission of report. - Not later than 1 year after July 26, 1990
[the date of enactment of this Act], the National Council on
Disability shall submit the report required under subsection (a) of this
section to Congress.
(c) Specific wilderness access. -
(1) In general. - Congress reaffirms that nothing in the Wilderness
Act [16 U.S.C. 1131 et seq.] is to be construed as prohibiting the use of
a wheelchair in a wilderness area by an individual whose disability
requires use of a wheelchair, and consistent with the Wilderness Act no
agency is required to provide any form of special treatment or
accommodation, or to construct any facilities or modify any conditions of
lands within a wilderness area in order to facilitate such use.
(2) Definition. - For purposes of paragraph (1), the term
``wheelchair'' means a device designed solely for use by a
mobilityimpaired person for locomotion, that is suitable for use in
an indoor pedestrian area.
TRANSVESTITES
SEC. 12208. [Section 508]
For the purposes of this chapter, the term ``disabled'' or
``disability'' shall not apply to an individual solely because that
individual is a transvestite.
COVERAGE OF CONGRESS AND THE AGENCIES OF THE LEGISLATIVE BRANCH
SEC. 12209. [Section 509]
(a) Coverage of the Senate. -
(1) Commitment to Rule XLII. - The Senate reaffirms its commitment
to Rule XLII of the Standing Rules of the Senate which provides as
follows:
``No member, officer, or employee of the Senate shall, with
respect to employment by the Senate or any office thereof-
``(a) fail or refuse to hire an individual;
``(b) discharge an individual; or
``(c) otherwise discriminate against an individual with respect to
promotion, compensation, or terms, conditions, or privileges of
employment on the basis of such individual's race, color,
religion, sex, national origin, age, or state of physical
handicap.''
(2) Matters other than employment. -
(A) In general. - The rights and protections under this chapter
shall, subject to subparagraph (B), apply with respect to the conduct of
the Senate regarding matters other than employment.
(B) Remedies. - The Architect of the Capitol shall establish
remedies and procedures to be utilized with respect to the rights and
protections provided pursuant to subparagraph (A). Such remedies and
procedures shall apply exclusively, after approval in accordance with
subparagraph (C).
(C) Proposed remedies and procedures. - For purposes of
subparagraph (B), the Architect of the Capitol shall submit proposed
remedies and procedures to the Senate Committee on Rules and
Administration. The remedies and procedures shall be effective upon the
approval of the Committee on Rules and Administration.
(3) Exercise of rulemaking power. - Notwithstanding any other
provision of law, enforcement and adjudication of the rights and
protections referred to in paragraph (2)(A) shall be within the
exclusive jurisdiction of the United States Senate. The provisions of
paragraph (1), (2) are enacted by the Senate as an exercise of the
rulemaking power of the Senate, with full recognition of the right of the
Senate to change its rules, in the same manner, and to the same extent, as
in the case of any other rule of the Senate.
(b) Coverage of the House of Representatives. -
(1) In general. - Notwithstanding any other provision of this
chapter or of law, the purposes of this chapter shall, subject to
paragraphs (2) and (3), apply in their entirety to the House of
Representatives.
(2) Employment in the House. -
(A) Application. - The rights and protections under this chapter
shall, subject to subparagraph (B), apply with respect to any employee in
an employment position in the House of Representatives and any employing
authority of the House of Representatives.
(B) Administration. -
(i) In general. - In the administration of this paragraph, the
remedies and procedures made applicable pursuant to the resolution
described in clause (ii) shall apply exclusively.
(ii) Resolution. - The resolution referred to in clause (i) is
House Resolution 15 of the One Hundred First Congress, as agreed to
January 3, 1989, or any other provision that continues in effect the
provisions of, or is a successor to, the Fair Employment Practices
Resolution (House Resolution 558 of the One Hundredth Congress, as agreed
to October 4, 1988).
(C) Exercise of rulemaking power. - The provisions of subparagraph
(B) are enacted by the House of Representatives as an exercise of the
rulemaking power of the House of Representatives, with full recognition of
the right of the House to change its rules, in the same manner, and to the
same extent as in the case of any other rule of the House.
(3) Matters other than employment. -
(A) In general. - The rights and protections under this chapter
shall, subject to subparagraph (B), apply with respect to the conduct of
the House of Representatives regarding matters other than employment.
(B) Remedies. - The Architect of the Capitol shall establish
remedies and procedures to be utilized with respect to the rights and
protections provided pursuant to subparagraph (A). Such remedies and
procedures shall apply exclusively, after approval in accordance with
subparagraph (C).
(C) Approval. - For purposes of subparagraph (B), the Architect of
the Capitol shall submit proposed remedies and procedures to the Speaker
of the House of Representatives. The remedies and procedures shall be
effective upon the approval of the Speaker, after consultation with the
House Office Building Commission.
(c) Instrumentalities of Congress. -
(1) In general. - The rights and protections under this chapter
shall, subject to paragraph (2), apply with respect to the conduct of each
instrumentality of the Congress.
(2) Establishment of remedies and procedures by instrumentalities.
- The chief official of each instrumentality of the Congress shall
establish remedies and procedures to be utilized with respect to the
rights and protections provided pursuant to paragraph (1). Such remedies
and procedures shall apply exclusively, except for the employees who
are defined as Senate employees, in section 201(c)(1) of the Civil Rights
Act of 1991.
(3) Report to Congress. - The chief official of each instrumentality
of the Congress shall, after establishing remedies and procedures for
purposes of paragraph (2), submit to the Congress a report describing the
remedies and procedures.
(4) Definition of instrumentalities. - For purposes of this
section, instrumentalities of the Congress include the following: the
Architect of the Capitol, the Congressional Budget Office, the General
Accounting Office, the Government Printing Office, the Library of
Congress, the Office of Technology Assessment, and the United States
Botanic Garden.
(5) Construction. - Nothing in this section shall alter the
enforcement procedures for individuals with disabilities provided in the
General Accounting Office Personnel Act of 1980 [31 U.S.C. 731 et
seq.] and regulations promulgated pursuant to that Act.
ILLEGAL USE OF DRUGS
SEC. 12210. [Section 510]
(a) In general. - For purposes of this chapter, the term ``individual
with a disability'' does not include an individual who is currently
engaging in the illegal use of drugs, when the covered entity acts on the
basis of such use.
(b) Rules of construction. - Nothing in subsection (a) of this section
shall be construed to exclude as an individual with a disability an
individual who-
(1) has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
such use;
(2) is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(3) is erroneously regarded as engaging in such use, but is not
engaging in such use; except that it shall not be a violation of this
chapter for a covered entity to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to ensure
that an individual described in paragraph (1) or (2) is no longer engaging
in the illegal use of drugs; however, nothing in this section shall be
construed to encourage, prohibit, restrict, or authorize the conducting of
testing for the illegal use of drugs.
(c) Health and other services. - Notwithstanding subsection (a) of this
section and section 12211(b)(3) of this title [section 511(b)(3)],
an individual shall not be denied health services, or services provided in
connection with drug rehabilitation, on the basis of the current illegal
use of drugs if the individual is otherwise entitled to such services.
(d) Definition of illegal use of drugs. -
(1) In general. - The term ``illegal use of drugs'' means the use
of drugs, the possession or distribution of which is unlawful under the
Controlled Substances Act (21 U.S.C. 812). Such term does not include the
use of a drug taken under supervision by a licensed health care
professional, or other uses authorized by the Controlled Substances Act or
other provisions of Federal law.
(2) Drugs
The term ``drug'' means a controlled substance, as defined in schedules I
through V of section 202 of the Controlled Substances Act [21 U.S.C.
812].
DEFINITIONS
SEC. 12211. [Section 511]
(a) Homosexuality and bisexuality. - For purposes of the definition of
``disability'' in section 12102(2) of this title [section 3(2)],
homosexuality and bisexuality are not impairments and as such are not
disabilities under this chapter.
(b) Certain conditions. - Under this chapter, the term ``disability''
shall not include-
(1) transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current
illegal use of drugs.
AMENDMENTS TO THE REHABILITATION ACT
[Section 512 of Title V of the ADA (42 U.S.C. 12115) amended two
subsections of section 7 of the Rehabilitation Act of 1973 (29 U.S.C.
706(8)). These amendments are printed elsewhere in this publication.]
ALTERNATIVE MEANS OF DISPUTE RESOLUTION
SEC. 12212. [Section 513]
Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement
negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, is encouraged to resolve disputes arising
under this chapter.
SEVERABILITY
SEC. 12213. [Section 514]
Should any provision in this chapter be found to be unconstitutional
by a court of law, such provision shall be severed from the remainder of
the chapter, and such action shall not affect the enforceability of the
remaining provisions of the chapter.
[Approved July 26, 1990]