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Rehabilitation Act of 1973 Sections 501 and 505

EDITOR'S NOTE: The following is the text of Sections 501 and 505 of theRehabilitation Act of 1973 (Pub. L. 93-112) (Rehab. Act), as amended, as thesesections will appear in volume 29 of the United States Code, beginning atsection 791. Section 501 prohibits employment discrimination againstindividuals with disabilities in the federal sector. Section 505 containsprovisions governing remedies and attorney's fees under Section 501. Relevantdefinitions that apply to sections 501 and 505 follow these sections.

 

Section 512 of the Americans with Disabilities Act of 1990 (Pub. L. 101-336)(ADA) and the Rehabilitation Act Amendments of 1992 (Pub. L. 102-569) amendeddefinitions applicable to the Rehab. Act. In addition, section 102 of the CivilRights Act of 1991 (Pub. L. 102-166) (CRA) (which is printed elsewhere in thispublication) amended the statutes by adding a new section following section1977 (42 U.S.C. 1981), to provide for the recovery of compensatory and punitivedamages in cases of intentional violations of Title VII, the ADA, and section501 of the Rehab Act. The Americans with Disabilities Act Amendments Act of2008 (Pub. L. 110-325) (ADAAA) further amended the definition of“individual with a disability.”

 

Most recently, the Lilly Ledbetter Fair Pay Act of 2009 (Pub. L. 111-2)amended Title VII, the Age Discrimination in Employment Act of 1967, the ADAand the Rehab Act to clarify the time frame in which victims of discriminationmay challenge and recover for discriminatory compensation decisions or otherdiscriminatory practices affecting compensation.

 

ADAAA amendments and Lilly Ledbetter Fair Pay Act amendments appear inboldface type. Cross references to the Rehabilitation Act as enacted appear initalics following each section heading. Editor's notes also appear initalics.

 

DEFINITIONS

SEC. 705 [Section 7]

 

For the purposes of this chapter:

 

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(10) Drug and illegal use of drugs

 

(A) Drug

 

The term “drug” means a controlled substance, as defined inschedules I through V of section 202 of the Controlled Substances Act (21U.S.C. 812).

 

(B) The term “illegal use of drugs” means the use of drugs, thepossession or distribution of which is unlawful under the Controlled SubstancesAct [21 U.S.C. 801 et seq.]. Such term does not include the use of a drug takenunder supervision by a licensed health care professional, or other usesauthorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or otherprovisions of Federal law.

 

* * *

 

(20) Individual with a disability

 

(B) Certain programs; limitations on major life activities

 

Subject to subparagraphs (C), (D), (E), and (F), the term “individualwith a disability” means, for purposes of sections 701, 711, and 712 ofthis title and subchapters II, IV, V, and VII of this chapter [29 U.S.C. §§ 760et seq., 780 et seq., 790 et seq., and 796 et seq.], any person who has adisability as defined in section 12102 of Title 42.

 

(C) Rights and advocacy provisions

 

(i) In general; exclusion of individuals engaging in drug use

 

For purposes of subchapter V of this chapter [29 U.S.C. § 790 et seq.], theterm “individual with a disability” does not include an individualwho is currently engaging in the illegal use of drugs, when a covered entityacts on the basis of such use.

 

(ii) Exception for individuals no longer engaging in drug use

 

Nothing in clause (i) shall be construed to exclude as an individual with adisability an individual who--

 

(I) has successfully completed a supervised drug rehabilitation program andis no longer engaging in the illegal use of drugs, or has otherwise beenrehabilitated successfully and is no longer engaging in such use;

 

(II) is participating in a supervised rehabilitation program and is nolonger engaging in such use; or

 

(III) is erroneously regarded as engaging in such use, but is not engagingin such use;

 

except that it shall not be a violation of this chapter [29 U.S.C. § 701 etseq.] for a covered entity to adopt or administer reasonable policies orprocedures, including but not limited to drug testing, designed to ensure thatan individual described in subclause (I) or (II) is no longer engaging in theillegal use of drugs.

 

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(E) Rights provisions; exclusion of individuals on basis of homosexuality orbisexuality For the purposes of sections 791, 793, and 794 of this title--

 

(i) for purposes of the application of subparagraph (B) to such sections,the term “impairment” does not include homosexuality orbisexuality; and

 

(ii) therefore the term “individual with a disability” does notinclude an individual on the basis of homosexuality or bisexuality.

 

(F) Rights provisions; exclusion of individuals on basis of certaindisorders

 

For the purposes of sections 791, 793, and 794 of this title, the term“individual with a disability” does not include an individual onthe basis of--

 

(i) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism,gender identity disorders not resulting from physical impairments, or othersexual behavior disorders;

 

(ii) compulsive gambling, kleptomania, or pyromania; or

 

(iii) psychoactive substance use disorders resulting from current illegaluse of drugs.

 

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EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES

SEC. 791. [Section 501]

 

(a) Interagency Committee on Employees who are Individuals withDisabilities; establishment; membership; co-chairmen; availability of otherCommittee resources; purpose and functions

 

There is established within the Federal Government an Interagency Committeeon Employees who are Individuals with Disabilities (hereinafter in this sectionreferred to as the “Committee"), comprised of such members as thePresident may select, including the following (or their designees whosepositions are Executive Level IV or higher): the Chairman of the EqualEmployment Opportunity Commission (hereafter in this section referred to as the“Commission"), the Director of the Office of Personnel Management, theSecretary of Veterans Affairs, the Secretary of Labor, the Secretary ofEducation, and the Secretary of Health and Human Services. Either the Directorof the Office of Personnel Management and the Chairman of the Commission shallserve as co-chairpersons of the Committee or the Director or Chairman shallserve as the sole chairperson of the Committee, as the Director and Chairmanjointly determine, from time to time, to be appropriate. The resources of thePresident’s Committees on Employment of People With Disabilities and onMental Retardation shall be made fully available to the Committee. It shall bethe purpose and function of the Committee (1) to provide a focus for Federaland other employment of individuals with disabilities, and to review, on aperiodic basis, in cooperation with the Commission, the adequacy of hiring,placement, and advancement practices with respect to individuals withdisabilities, by each department, agency, and instrumentality in the executivebranch of Government and the Smithsonian Institution, and to insure that thespecial needs of such individuals are being met; and (2) to consult with theCommission to assist the Commission to carry out its responsibilities undersubsections (b), (c), and (d) of this section. On the basis of such review andconsultation, the Committee shall periodically make to the Commission suchrecommendations for legislative and administrative changes as it deemsnecessary or desirable. The Commission shall timely transmit to the appropriatecommittees of Congress any such recommendations.

 

(b) Federal agencies; affirmative action program plans

 

Each department, agency, and instrumentality (including the United StatesPostal Service and the Postal Regulatory Commission) in the executive branchand the Smithsonian Institution shall, within one hundred and eighty days afterSeptember 26, 1973, submit to the Commission and to the Committee anaffirmative action program plan for the hiring, placement, and advancement ofindividuals with disabilities in such department, agency, instrumentality, orInstitution. Such plan shall include a description of the extent to which andmethods whereby the special needs of employees who are individuals withdisabilities are being met. Such plan shall be updated annually, and shall bereviewed annually and approved by the Commission, if the Commission determines,after consultation with the Committee, that such plan provides sufficientassurances, procedures and commitments to provide adequate hiring, placement,and advancement opportunities for individuals with disabilities.

 

(c) State agencies; rehabilitated individuals, employment

 

The Commission, after consultation with the Committee, shall develop andrecommend to the Secretary for referral to the appropriate State agencies,policies and procedures which will facilitate the hiring, placement, andadvancement in employment of individuals who have received rehabilitationservices under State vocational rehabilitation programs, veterans’programs, or any other program for individuals with disabilities, including thepromotion of job opportunities for such individuals. The Secretary shallencourage such State agencies to adopt and implement such policies andprocedures.

 

(d) Report to Congressional committees

 

The Commission, after consultation with the Committee, shall, on June 30,1974, and at the end of each subsequent fiscal year, make a complete report tothe appropriate committees of the Congress with respect to the practices of andachievements in hiring, placement, and advancement of individuals withdisabilities by each department, agency, and instrumentality and theSmithsonian Institution and the effectiveness of the affirmative actionprograms required by subsection (b) of this section, together withrecommendations as to legislation which have been submitted to the Commissionunder subsection (a) of this section, or other appropriate action to insure theadequacy of such practices. Such report shall also include an evaluation by theCommittee of the effectiveness of the activities of the Commission undersubsections (b) and (c) of this section.

 

(e) Federal work experience without pay; non-Federal status

 

An individual who, as a part of an individualized plan for employment undera State plan approved under this chapter, participates in a program of unpaidwork experience in a Federal agency, shall not, by reason thereof, beconsidered to be a Federal employee or to be subject to the provisions of lawrelating to Federal employment, including those relating to hours of work,rates of compensation, leave, unemployment compensation, and Federal employeebenefits.

 

(f) Federal agency cooperation; special consideration for positions onPresident’s Committee on Employment of People With Disabilities

 

(1) The Secretary of Labor and the Secretary of Education are authorized anddirected to cooperate with the President’s Committee on Employment ofPeople With Disabilities in carrying out its functions.

 

(2) In selecting personnel to fill all positions on the President’sCommittee on Employment of People With Disabilities, special considerationshall be given to qualified individuals with disabilities.

 

(g)Standards used in determining violation of section

 

The standards used to determine whether this section has been violated in acomplaint alleging nonaffirmative action employment discrimination under thissection shall be the standards applied under title I of the Americans withDisabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions ofsections 501 through 504, and 510, of the Americans with Disabilities Act of1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate toemployment.

 

[42 U.S.C. § 2000e-5 note]

 

(b) REHABILITATION ACT OF 1973.— The amendments made bysection 3 [Lilly Ledbetter Fair Pay Act of 2009, PL 111-2, 123 Stat. 5] shallapply to claims of discrimination in compensation brought under sections 501and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794), pursuantto—

 

(1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g),794(d)), respectively, which adopt the standards applied under title I of theAmericans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.] fordetermining whether a violation has occurred in a complaint alleging employmentdiscrimination; and

 

(2) paragraphs (1) and (2) of section 505(a) of such Act (29 U.S.C.794a(a)) (as amended by subsection (c)).

 

REMEDIES AND ATTORNEYS’ FEES

SEC. 794a. [Section 505]

 

(a)(1) The remedies, procedures, and rights set forth in section 717 of theCivil Rights Act of 1964 (42 U.S.C. 2000e-16), including the application ofsections 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k)) (andthe application of section 706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to claims ofdiscrimination in compensation), shall be available, with respect toany complaint under section 791 of this title, to any employee or applicant foremployment aggrieved by the final disposition of such complaint, or by thefailure to take final action on such complaint. In fashioning an equitable oraffirmative action remedy under such section, a court may take into account thereasonableness of the cost of any necessary work place accommodation, and theavailability of alternatives therefore or other appropriate relief in order toachieve an equitable and appropriate remedy.

 

(2) The remedies, procedures, and rights set forth in title VI of the CivilRights Act of 1964 (42 U.S.C. 2000d et seq.) (and in subsection (e)(3)of section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of discrimination in compensation) shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.

 

(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

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