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WIA Section 188

Disability Checklist

Introduction to Element 5 –
Compliance with Federal
Disability Nondiscrimination Law
“Equal treatment”
vs. “equal opportunity”
• Disability nondiscrimination laws
are different from other civil rights
 Treating people with disabilities the
same way as people without
disabilities is not enough
 Legal duty to work with people with
disabilities to make sure they have an
equal opportunity to benefit from the
program, activity, or job 5-2
“Nondiscrimination” vs.
“Equal Opportunity”
• Recipients’ obligations include
 actions that are prohibited (things
you must not do) because they are
discriminatory, and
 actions that are required (positive
steps recipients must take) to level
the playing field for people with
disabilities – in other words, provide 5-3
equal opportunity
The overarching principle
of disability nondiscrimination law
is that people with disabilities
must be treated as individuals,
not on the basis
of assumptions and stereotypes
about their disabilities

General principles underlying
disability nondiscrimination laws
• Under these laws, One-Stop
 should focus on:
the individual customer’s/employee’s
the accommodations and auxiliary aids
and services s/he needs in order to use
those abilities
 should not focus on:
the limitations caused by the
customer’s/employee’s disability 5-5
What Federal laws apply?

• Several different Federal

disability nondiscrimination laws
apply to each WIA recipient
• You need to know about all the
laws that apply to each recipient

What Federal laws apply?
• Workforce Investment Act of 1998
(WIA), Section 188 (29 U.S.C. §
 Implementing regulations: 29 CFR
part 37
 Bar disability-based discrimination
 Require equal opportunity for people
with disabilities through:
individualized treatment
positive actions (e.g., reasonable 5-7
What Federal laws apply?
•WIA Section 188 and regs
 Apply to:
All programs and activities:
– offered by One-Stop partners
– through One-Stop delivery system
Doesn’t matter if program/activity
is physically located in One-Stop
What Federal laws apply?
• Other applicable Federal laws:
 Section 504 of the Rehabilitation Act
of 1973, as amended (29 U.S.C. §
Implementing regulations: 29 CFR part
Applies to all recipients of Federal
financial assistance from DOL
 The Americans with Disabilities Act of
1990, as amended (42 U.S.C. § 12101
et seq.) (known as “the ADA”) 5-9
“Handicapped” vs.
“Individual (or Person) with
a Disability”
• DOL’s Section 504 regulations (29 CFR
part 32) have not yet been amended to
replace the term “handicap” with

• However, the term “handicapped” is

unacceptable and should not be used

• Use “people first” language (“person

with a disability,” “people who are
blind”) – not “the blind” or “the
disabled” 5-10
Who’s protected from
discrimination under these
•Three categories of protected
•An individual person who . . .
 has an actual, current disability
 has a record of a past disability
 has been regarded as having a
Category One:
Is the individual a person
with an actual, current
• Does the person have a physical or
mental impairment?
• Does the impairment affect one or
more of his/her major life
• Is the effect a substantial
Term to Know:
“Physical or Mental
Any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more of the following body
• neurological • cardiovascular
• musculoskeletal • reproductive
• special sense organs • digestive
• respiratory (including • genitourinary
speech organs) • hemic and lymphatic
Source: 29 CFR 37.4, • skin
definition of • endocrine
paragraph (1)(i)(A)
Physical or Mental Impairment

• Any mental or psychological

disorder, such as:
• mental retardation
• organic brain syndrome
• emotional or mental illness
• specific learning disabilities
• Source: 29 CFR 37.4,
definition of “disability,”
paragraph (1)(i)(B)
Physical or Mental Impairment

 Various types of • Cancer
impairments: • Heart disease
orthopedic • Diabetes
visual • Mental retardation
speech • Emotional illness
hearing • Specific learning
 Cerebral palsy disabilities
 Epilepsy • HIV
 Muscular • tuberculosis
dystrophy • Drug addiction
 Multiple sclerosis • Alcoholism
Term to Know:
“Major Life Activity”

• Supreme Court says it’s an

activity “of central importance to
daily life”
• Examples: Caring for one’s self,
performing manual tasks,
walking, seeing, hearing,
speaking, breathing, learning
• “Working” is questionable
Term to Know:
“Substantial Limitation”

• Not all “limitations” are

“substantial” enough to constitute
a disability!
• In general, a “substantial
limitation” either:
 Prevents the person from performing
an activity that the average person
can perform, or
 Significantly restricts the person in
performing such an activity (as
compared to the average person) 5-17
What constitutes
a “significant restriction”?

• Look at whether/how much the

impairment restricts:
 the conditions under which the
person can perform the activity
 the manner (way) in which s/he can
perform the activity
 the duration (length of time) for which
s/he can perform the activity

Must take “mitigating
into consideration
• Medication, devices (crutches,
prostheses), anything else that
mitigates (lessens) the effect of
• You must take both positive and
negative effects into consideration

Category Two:
Is the individual a person
with a record of a disability?
• Past history of a genuine disability
• Misclassified as having a disability
• The record or misclassification has
to meet the three elements of an
actual disability (impairment,
major life activity, substantial
Category Three:
Has the person been
regarded as having a
• Has an impairment, but:
 Impairment doesn’t substantially limit
a major life activity, or
 Impairs a major life activity because
of other people’s attitudes
• Doesn’t have an impairment, but is
treated as having one
Exceptions to the Definition
of “Individual with a
• In all contexts:
 Specific sexual / psychological disorders
 Current illegal use of drugs
• In employment context:
 Either:
Current alcohol abuse, or
Currently contagious disease or infection
 That:
Prevents the person from performing job
duties, or
Makes the person a direct threat to
health / safety

Is the person with a
disability “qualified”?

• To be protected from
discrimination (and entitled to
equal opportunity / positive
actions) under Federal law, the
person with a disability must be
qualified for the program, activity,
or job

Term to Know:
“Qualified Person with a
• For aid/benefits/services/training: the
person must meet the essential
eligibility requirements of the program
or activity
• For employment: s/he must be capable
of performing the essential functions of
the specific job
• In either case, take reasonable
accommodations / modifications into
• Don’t pay attention to barriers
(architectural, transportation, etc.) 5-24
Group Exercise:
Is this person protected?
 To identify when an individual is a “qualified
person with a disability”
 You are a member of the EO monitoring
team. You’ve been asked to review several
cases in which a person has filed a
complaint claiming that s/he is a person
with a disability.
 Read the cases. Decide whether each
person is protected from discrimination
under the principles we’ve been discussing
(Federal and State).
 Share your decision about each case with
the class, and explain your reasoning.
Any questions?