[Code of Federal Regulations]
[Title 29, Volume 1, Part 0 to 99]
[Revised as of July 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR33]
[Page 343-351]
TITLE 29--LABOR
PART 33--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF LABOR--Table of Contents
Sec.
33.1 Purpose.
33.2 Application.
33.3 Definitions.
33.4 Self-evaluation.
33.5 Notice.
33.6 General prohibitions against discrimination.
33.7 Employment.
33.8 Program accessibility: Discrimination prohibited.
33.9 Program accessibility: Existing facilities.
33.10 Program accessibility: New construction and alterations.
33.11 Communications.
33.12 Complaint handling procedures.
33.13 Intimidation and retaliation prohibited.
Authority: 29 U.S.C. 794, as amended by sec. 103, Pub. L. 99-506,
100 Stat. 1810.
Source: 52 FR 11606, Apr. 9, 1987, unless otherwise noted.
Sec. 33.1 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of
[[Page 344]]
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
Sec. 33.2 Application.
This part applies to all programs or activities conducted by the
Department of Labor.
Sec. 33.3 Definitions.
For purposes of this part, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Assistant Secretary for Administration and Management (ASAM) means
the Assistant Secretary for Administration and Management in the
Department of Labor.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the Department of Labor. For example, auxiliary
aids useful for persons with impaired vision include readers, brailled
materials, audio recordings, and other similar services and devices.
Auxiliary aids useful for persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunications devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Persons with manual impairments may need other specially adapted
equipment.
Complete complaint means a written statement that contains the
complainant's name and address and describes the actions in sufficient
detail to inform the Department of the nature and date of the alleged
violation of section 504. It shall be signed by the complainant or by
someone authorized to do so on his or her behalf. Complaints filed on
behalf of classes or third parties shall describe or identify (by name,
if possible) the alleged victims of discrimination.
Department means the Department of Labor.
Director means the Director, Directorate of Civil Rights (DCR),
Office of the Assistant Secretary for Administration and Management,
U.S. Department of Labor, or his or her designee.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(a) Physical or mental impairment includes--
(1) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(b) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(c) Has a record of such an impairment means that the individual has
a history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.
(d) Is regarded as having an impairment means--
(1) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Department as
constituting such a limitation;
[[Page 345]]
(2) Has a physical or mental impairment that substantially limits
major life activities only as a result or the attitudes or others toward
such impairment; or
(3) Has none of the impairments defined in paragraph (a) of this
definition but is treated by the Department as having such an
impairment.
Qualified individuals with handicaps means--
(a) With respect to any program or activity of the Department under
which a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Department can demonstrate would result in a fundamental alteration in
its nature;
(b) With respect to any other Department program or activity, an
individual with handicaps who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that
program or activity, and
(c) For purposes of employment, a Qualified handicapped person as
that term is defined in 29 CFR 1613.702(f) which is made applicable to
this part by Sec. 33.7.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Act of 1978 (Pub. L. 95-602, 92 Stat. 2955), and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
[52 FR 11606, Apr. 9, 1987, as amended at 52 FR 23967, June 26, 1987]
Sec. 33.4 Self-evaluation.
(a) The Department shall, by May 11, 1988, evaluate, with the
assistance of interested persons, including individuals with handicaps
or organizations representing individuals with handicaps, its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the Department shall
proceed to make the necessary modifications.
(b) The Department shall, for at least three years following
completion of the evaluation required under paragraph (a) of this
section, maintain on file and make available for public inspection--
(1) A list of the interested persons consulted;
(2) A description of areas examined and any problems identified; and
(3) A description of any modifications made.
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]
Sec. 33.5 Notice.
The Department shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the Department, and make such
information available to them in such manner as the ASAM finds necessary
to apprise such persons of the protections against discrimination
assured them by section 504 and this regulation.
Sec. 33.6 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the Department.
(b)(1) The Department, in providing any aid, benefit, or service,
may not, directly or through contractual, licensing, or other
arrangements, on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Deny a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit,
[[Page 346]]
or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aids, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The Department may not deny a qualified individual with
handicaps the opportunity to participate in programs or activities
despite the existence of permissibly separate or different programs or
activities.
(3) The Department may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps .
(4) The Department may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the Department; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The provisions of paragraph (b)(4) of this section do not apply
to sites or locations at which the Department owns or leases buildings
on the date the regulations in this part become effective.
(6) The Department, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(7) The Department may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the Department
establish requirements for the programs or activities of licensees or
certified entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. This part does not apply to the
programs or activities of non-departmental entities that are licensed or
certified by the Department of Labor.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to persons with
handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The Department shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with handicaps.
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]
Sec. 33.7 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the Department. The definitions, requirements
and procedures of section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), as established in 29 CFR part 1613 (subpart G), shall apply
to employment in federally conducted programs or activities.
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]
Sec. 33.8 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Secs. 33.9 and 33.10 of this part,
no qualified individual with handicaps shall, because the Department's
facilities are
[[Page 347]]
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the Department.
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]
Sec. 33.9 Program accessibility: Existing facilities.
(a) General. The Department shall operate such program or activity
so that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the Department to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) Require the Department to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
program or activity or in undue financial and administrative burdens.
(b)(1) If a Department official believes that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the official shall prepare a
report for the Secretary of Labor which objectively considers and
evaluates these issues based on the nature of the program and all
departmental resources available for use in the funding and operation of
the conducted program or activity. In preparing the report, the
Department official shall make reasonable efforts to ensure that the
person(s) requesting accommodation in the particular program or activity
has an opportunity to provide any relevant information. The report shall
specifically address any such information. Upon completion, the report
and all information before the program official shall be transmitted to
the Secretary for a decision to be made in accordance with paragraph
(b)(2) of this section.
(2) The Secretary shall decide, after considering the material
submitted by the program official and all departmental resources
available for use in the funding and operation of the conducted program
or activity, whether the proposed action would fundamentally alter the
program or result in undue financial and administrative burdens. A
decision that compliance would result in such alteration or burdens must
be accompanied by a written statement of the reasons for reaching that
conclusion and shall be transmitted to the person(s) requesting
accommodation. This decision represents the final administrative action
of the Department.
(3) The Department has the burden of proving that compliance with
paragraph (a) of this section would result in such alteration or undue
burdens.
(c) If an action would result in such an alteration or such burdens,
the Department shall take any other action that would not result in such
an alteration or such a burden but would nevertheless ensure that
qualified individuals with handicaps receive the benefits and services
of the program or activity.
(d) Methods. The Department may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The Department is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. Alterations to
existing buildings shall be made in accordance with the provisions of
Sec. 33.10 of this part. In choosing among available methods for meeting
the requirements of this section, the Department shall give priority to
those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(e) Time period for compliance. The Department shall comply with the
obligations established under this section within sixty days of the
effective date of this part except that where structural changes in
facilities are undertaken, such changes shall be made within three years
of the effective date
[[Page 348]]
of this part, but in any event as expeditiously as possible.
(f) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Department shall develop, within six months of the effective date of
this part, a transition plan setting forth the steps necessary to
complete such changes. The plan shall be developed with the assistance
of interested persons, including individuals with handicaps and
organizations representing individuals with handicaps. A copy of the
transition plan shall be made available for public inspection. The plan
shall, at a minimum--
(1) Identify physical obstacles in the Department's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period;
(4) Indicate the official responsible for implementation of the
plan; and
(5) Identify the persons or groups with whose assistance the plan
was prepared.
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]
Sec. 33.10 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
after the effective date of this part by, on behalf of, or for the use
of the Department shall be designed, constructed, or altered so as to be
readily accessible to and usable by individuals with handicaps in
accordance with the requirements of the Uniform Federal Accessibility
Standards adopted by the General Services Administration at 41 CFR
Secs. 101-19.600 to 101-19.607 (1984).
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]
Sec. 33.11 Communications.
(a) The Department shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The Department shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the Department.
(i) In determining what type of auxiliary aid is necessary, the
Department shall give primary consideration to the requests of the
individual with handicaps.
(ii) The Department need not provide individually prescribed
devices, readers for personal use or study, or other devices of a
personal nature.
(2) Where the Department communicates with applicants and
beneficiaries by telephone, telecommunications devices for deaf persons
(TDDs), or equally effective telecommunications systems shall be used.
(b) The Department shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The Department shall provide signage at a primary entrance to
each of its accessible facilities, directing users to a location at
which they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) The Department shall take appropriate steps to provide
individuals with handicaps with information regarding their section 504
rights under the Department's programs or activities. If the Department
uses recruitment materials, informational publications, or other
materials which it distributes or makes available to participants,
beneficiaries, referral sources, applicants, employees, or the public,
it shall include in those materials or publications a statement of the
policy described in Sec. 33.6 of this part and information as to
complaint procedures. The requirements of this paragraph
[[Page 349]]
may be met either by including applicable inserts in existing materials
and publications or by revising and reprinting such materials, as
appropriate.
(e) This section does not require the Department to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens.
(1) If a Department official believes that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the official shall prepare a
report for the Secretary of Labor which objectively considers and
evaluates these issues based on the nature of the program and all
departmental resources available for use in the funding and operation of
the conducted program or activity. In preparing the report, the
Department official shall make reasonable efforts to ensure that the
person(s) requesting accommodation in the particular program or activity
has an opportunity to provide any relevant information. The report shall
specifically address any such information. Upon completion, the report
and all information before the program official shall be transmitted to
the Secretary for a decision to be made in accordance with paragraph
(e)(2) of this section.
(2) The Secretary shall decide, after considering the material
submitted by the program official and all departmental resources
available for use in the funding and operation of the conducted program
or activity, whether the proposed action would fundamentally alter the
program or result in undue financial and administrative burdens. A
decision that compliance would result in such alteration or burdens must
be accompanied by a written statement of the reasons for reaching that
conclusion and shall be transmitted to the person(s) requesting
accommodation. This decision represents the final administrative action
of the Department.
(3) The Department has the burden of proving that compliance with
paragraphs (a) through (d) of this section, as applicable, would result
in such alteration or undue burdens.
(f) If an action required to comply with this section would result
in such an alteration or such burdens, the Department shall take any
other action that would not result in such an alteration or such a
burden but would nevertheless ensure that, to the maximum extent
possible, individuals with handicaps receive the benefits and services
of the program or activity.
[52 FR 11606, Apr. 9, 1987; 52 FR 24367, June 30, 1987]
Sec. 33.12 Complaint handling procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by DOL.
(b)(1) Complaints alleging violations of section 504 with respect to
employment shall be processed according to the procedures established in
29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791).
(2) Complaints based upon program inaccessibility in violation of
section 504 will be governed by the procedures at Secs. 33.9(b) and
33.11(e) of this part, as applicable.
(c) Responsibility for implementation and operation of this section
shall be vested in the Director, Directorate of Civil Rights (DCR).
Complaints may be delivered or mailed to the Director, Directorate of
Civil Rights, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room N-4123, Washington, DC 20210.
(d) All complaints must be filed within 180 days of the alleged act
of discrimination. The Director may extend this time period for good
cause.
(e) Where a complaint contains insufficient information, the
Director shall seek the needed information from the complainant. If the
complainant is unavailable after reasonable means have been utilized to
locate him or her, or the information is not furnished within 30 days of
the date of such request, the complaint may be dismissed upon notice
sent to the complainant's last known address.
(f) If the Director receives a complaint over which the Department
does not have jurisdiction, he or she shall
[[Page 350]]
promptly notify the complainant and shall make reasonable efforts to
refer the complaint to the appropriate government entity.
(g) The Director shall accept and investigate all complete
complaints which are timely filed, are within the Department's
jurisdiction, and state an allegation(s) which, if true, would violate
section 504 or its implementing regulations.
(1) Where the Director determines that the complaint will be
investigated, he or she will notify the complainant(s) and the
appropriate Department official(s).
(2) Such notification will advise the parties that a determination
on the merits of the complaint will be issued within 180 days of the
date of notification unless the matter is resolved informally prior to
that time.
(3) If, during the course of the investigation, the Department
official states that he or she believes that resolution of the complaint
would require a fundamental alteration of the program or undue financial
and administrative burdens, the complaint will proceed in accordance
with Secs. 33.9(b) and 33.11(e) of this part, as applicable.
(h) At any time prior to the issuance of the determination the
parties to the complaint may resolve the complaint on an informal basis.
For this purpose, the Director shall furnish, to the extent permitted by
law, a copy of the investigative file to the complainant and the
appropriate Department official. If the complaint is resolved, the terms
of the agreement shall be reduced to writing and entered as part of the
official file by the Deputy Assistant Secretary for Administration and
Management (Deputy ASAM).
(i) If informal resolution is not achieved, the Deputy ASAM shall
issue a determination on the merits which notifies the parties to the
complaint of the results of the investigation and includes--
(1) The findings of fact and conclusions of law;
(2) A remedy and/or corrective action, as appropriate, for each
violation found; and
(3) A notice of the right to appeal to the Assistant Secretary for
Administration and Management (ASAM).
(j)(1) An appeal of the Deputy ASAM's determination may be filed
with the ASAM by any party to the complaint. Such appeal must be filed
within 30 days of receipt of the determination. The ASAM may extend this
time for good cause.
(2) Timely appeals shall be accepted and processed by the ASAM. The
ASAM's determination shall be based upon the written record which may
include, but is not limited to, the determination made by the Deputy
ASAM, the investigative file, and any other materials submitted by the
parties pursuant to a request from the ASAM.
(k) The ASAM shall notify all parties of his or her determination on
the appeal within 90 days of the receipt of the appeal. The ASAM's
determination represents the final administrative decision by the
Department.
(l) The time limits cited in paragraphs (g)(2) and (k) of this
section may be extended with the permission of the Assistant Attorney
General.
(m) The Department may delegate its authority for conducting
complaint investigations to other Federal agencies, except that the
authority for making the final determination may not be delegated.
(n) The Director shall respond to requests by the Architectural and
Transportation Barriers Compliance Board for information on the status
of any complaint alleging that buildings that are subject to the
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or
section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C.
792), are not readily accessible and usable to individuals with
handicaps.
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]
Sec. 33.13 Intimidation and retaliation prohibited.
No person may discharge, intimidate, retaliate, threaten, coerce or
otherwise discriminate against any person because such person has filed
a complaint, furnished information, assisted or participated in any
manner in an investigation, review, hearing or any other activity
related to the administration of, or exercise of authority
[[Page 351]]
under, or privilege secured by section 504 and the regulations in this
part.