Untitled

Americans with Disabilities Act

* Act of July 26, 1990 (P.L. 101-336, 104 Stat. 328; 42 U.S.C. 12101 (note), 12101-12102, 12111(note), 12111-12117, 12131(note), 12131-12134, 12181(note); 12181-12185, 12187-12189, 12201-12208, 12210- 12211)

Short Title

Sec. 1. (a) Short Title.-This Act may be cited as the "Americans with Disabilities Act of 1990". (42 U.S.C. 12101(note))

Findings and Purposes

Sec. 2. (a) Findings.-The Con-gress finds that-

(1) some 43,000,000 Ameri-cans 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 discrimina-tion against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabili-ties persists in such critical areas as employ-ment, housing, public accommoda-tions, education, transporta-tion, communication, recreation, institu-tionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national orgin, religion, or age, individuals who have experi-enced discrimina-tion on the basis of disability have often had no legal recourse to re-dress such discrimina-tion;

(5) individuals with disabilities continually encoun-ter various forms of discrimination, including outright intentional exclusion, the discrimina-tory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifica-tions to existing facilities and prac-tices, 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 disad-vantaged socially, vocationally, economi-cally, and educationally;

(7) individuals with disabilities are a discrete and insular minority who have been faced with restric-tions and limitations, subject to a history of purposeful unequal treat-ment, and relegated to a position of political powerlessness in our soci-ety, based on charac-teristics that are beyond the control of such individu-als and resulting from stereotypic assumptions not truly indicative of the individual ability of such indi-viduals to participate in, and con-tribute to, society;

(8) the Nation's proper goals regarding individuals with disabili-ties are to assure equality of oppor-tunity, full participation, indepen-dent living, and economic self-suffi-ciency for such individuals, and

(9) the continuing existence of unfair and unneces-sary discrimina-tion 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 Act-

(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 Act on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amend-ment and to regulate com-merce, in order to address the major areas of discrimination faced day-to-day by people with disabili-ties. (42 U.S.C. 12101)

Definitions

Sec. 3. As used in this Act:

(1) Auxiliary aids and serv-ices.-The term "auxil-iary aids and services" includes-

(A) qualified interpreters or other effective methods of making aurally delivered materials avail-able to individuals with hearing impair-ments;

(B) qualified readers, taped texts, or other effective methods of making visually delivered materi-als available to individuals with visual impairments;

(D) other similar services and actions.

(2) Disability.-The term "disability" means, with respect to an individual-

(A) a physical or mental impairment that sub-stantially limits one or more of the major life activi-ties of such individual;

(B) a record of such an impairment; or

(3) State.-The term "State" means each of the several States, the District of Columbia, the Common-weath of Puerto Rico, Guam, Amer-ican Samoa, the Virgin Islands, the Trust Territory of the Pacific Is-lands, and the Commonwealth of the Northern Mariana Islands. (42 U.S.C. 12102)

TITLE I - EMPLOYMENT

Sec. 101. Definitions.-As used in this title-

(1) Commission.-The term "Commission" means the Equal Employ-ment Opportunity Commis-sion established by section 705 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4).

(2) Covered entity.-The term "covered entity" means an employer, employment agency, labor organi-za-tion, or joint labor manage-ment committee.

(3) Direct threat.-The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminat-ed by reason-able 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 indi-vidual 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 title, 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 govern-ment 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 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 distribu-tion 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.

(B) Drugs.-The term "drug" means a controlled sub-stance, as defined in schedules I through V of section 202 of the Controlled Substanc-es Act.

(7) Person, etc.-The terms "person", "labor organization","em-ployment agency", "commerce", and "industry affecting commerce", shall have the same meaning given such terms in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e).

(8) Qualified individual with a disability.-The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accom-modation, can perform the essential functions of the employment posi-tion that such individ-ual holds or desires. For the purposes of this title, consideration shall be given to the employer's judg-ment as to what functions of a job are essential, and if an employer has prepared a writ-ten description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essen-tial functions of the job.

(9) Reasonable accommoda-tion.-The term "rea-sonable accom-moda-tion" may include-

(A) making existing facili-ties used by employees readily accessible to and usable by individ-uals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisi-tion or modification of equip-ment or devices, appropri-ate adjust-ment or modifications of examina-tions, training materials or policies, the provision of qualified readers or interpreters, and other similar ac-commoda-tions for individu-als 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 consider-ed.-In determining whether an accommo-dation 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 Act;

(ii) the overall financial resources of the facility or facili-ties 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 accom-mo-dation 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 num-ber, type, and location of its facili-ties; and

(iv) the type of operation or operations of the covered entity, including the composition, struc-ture, and functions of the work-force of such entity; the geo-graphic separate-ness, administra-tive, or fiscal rela-tionship of the facility or facilities in question to the covered entity. (42 U.S.C. 12111)

Discrimination

Sec. 102. (a) General rule.-No covered entity shall dis-criminate against a qualified individ-ual with a disability because of the disability of such individual in re-gard to job applica-tion procedures, the hiring, advance-ment, or discharge of em-ployees, employee compensation, job train-ing, and other terms, condi-tions, and privi-leges of employment.

(b) Construction.-As used in subsection (a), the term "discrimi-nate" includes-

(1) limiting, segregating, or classifying a job applicant or em-ployee in a way that adversely af-fects the opportunities or status of such applicant or employ-ee because of the disability of such applicant or employee;

(2) participating in a contractu-al or other arrange-ment or relation-ship that has the effect of subjecting a covered entity's qualified appli-cant or employee with a disability to the discrimination prohibited by this title (such relationship includes a relationship with an employ-ment or referral agency, labor union, an organi-zation providing fringe bene-fits 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 con-trol;

(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 associa-tion;

(5)(A) not making reasonable accommodations to the known phys-ical or mental limitations of an other-wise 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 op-portunities to a job applicant or employee who is an otherwise quali-fied individual with a disability, if such denial is based on the need of such covered entity to make reason-able accom-modation to the physical or mental impairments of the em-ployee or applicant;

(6) using qualification stan-dards, 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 job related for the position in question and is consistent with business necessity; and

(7) failing to select and admin-ister 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 appli-cant (except where such skills are the factors that the test purports to measure).

(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 em-ployee in a workplace in a foreign country if compliance with the section would cause such covered entity to violate the law of the for-eign country in which such work-place 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 discrimina-tion under this section and is engaged in by such corpora-tion shall be presumed to be engaged in by such employer.

(B) Exception.-This sec-tion 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 pur-poses of this para-graph, the determination of whether an em-ployer con-trols a corporation shall be based on-

(i) the interrelation of oper-ations;

(ii) the common manage-ment;

(iii) the centralized control of labor relations; and

(iv) the common ownership or financial control, of the em-ployer and the corporation

(d) Medical examinations and inquiries.-

(1) In general.-The prohibi-tion against discrimina-tion as re-ferred to in subsection (a) shall include medical examinations and inquiries.

(2) Pre-employment.-

(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 dis-ability.

(B) Acceptable inquiry.-A covered entity may make pre-em-ploy-ment inquiries into the ability of an applicant to perform job related 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 employ-ment 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 compli-ance with this Act shall be provided rele-vant infor-mation on request; and

(4) Examination and inquiry.-

(A) Prohibited examinations and inquiries.-A covered entity shall not require a medical examina-tion and shall not make inquiries of an employee as to whether such employee is an individual with a disabili-ty or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job re-lated and consis-tent 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 job related 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). (42 U.S.C. 12112)

Defenses

Sec. 103. (a) In general.-It may be a defense to a charge of discrimination under this Act that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or other-wise deny a job or benefit to an individual with a disability has been shown to be job related and consis-tent with business necessity, and such performance cannot be accomplished by reasonable accom-moda-tion, as required under this title.

(b) Qualification standards.-The term "qualification standards" may include a requirement that an indi-vidual shall not pose a direct threat to the health or safety of other indi-viduals in the workplace.

(1) In general.-This title shall not prohibit a religious corporation, association, educational institu-tion, 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, educa-tional institution, or society of its activities.

(2) Religious tenets require-ment.-Under this title, a religious organization may require that all applicants and employees conform to the religious tenets of such orga-nization.

(d) List of infectious and commu-nicable diseases.-

(1) In general.-The Secretary of Health and Human Services, not later than 6 months after 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 infec-tious and communicable diseases which are transmitted through han-dling the food supply;

(D) widely disseminate such information regard-ing the list of diseases and their modes of trans-missi-bility to the general public.

Such list shall be updated annual-ly.

(2) Applications.-In any case in which an individ-ual has an infec-tious 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 Act 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. (42 U.S.C 12113)

Illegal Use of Drugs and Alcohol

Sec. 104. (a) Qualified individu-al with a disability.-For purposes of this title, the term "quali-fied individ-ual with a disability" shall not in-clude any employee or appli-cant who is currently engaging in the illegal use of drugs, when the cov-ered entity acts on the basis of such use.

(b) Rules of construction.-No-thing in subsection (a) shall be

construed to exclude as a qualified individual with a disability an indi-vi-dual 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 super-vised 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 Act for a covered entity to adopt or administer reasonable policies or proce-dures, including but not limited to drug testing, de-signed to ensure that an individual described in para-graph (1) or (2) is no longer engag-ing in the illegal use of drugs.

(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 confor-mance with the requirements established under the Drug Free 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 employ-ment or job perfor-mance and behav-ior that such entity holds other employees, even if any unsatisfacto-ry performance or behavior is relat-ed 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 estab-lished in such reg-ulations of the Department of De-fense, if the employees of the cov-ered entity are employed in an in-dus-try subject to such regula-tions, in-cluding complying with regula-tions (if any) that apply to employ-ment in sensitive positions in such an indus-try, in the case of employ-ees of the covered entity who are employed in such positions (as defined in the regula-tions of the Department of Defense);

(B) employees comply with the standards estab-lished in such regulations of the Nuclear Regulato-ry Commission, if the employees of the covered entity are employed in an industry subject to such regula-tions, including complying with regulations (if any) that apply to employment in sensitive positions in such an indus-try, 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 estab-lished in such regulations of the Department of Trans-portation, if the employees of the covered entity are employed in a transportation industry subject to such regulations, including comply-ing with such regulations (if any) that apply to employment in sensi-tive positions in such an industry, in the case of employees of the cov-ered 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 title, a test to determine the illegal use of drugs shall not be considered a medical examination.

(2) Construction.-Nothing in this title 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 employ-ees.-Nothing in this title shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Department of Trans-portation of authority to-

(1) test employees of such entities in, and appli-cants for posi-tions involving safety-sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and

(2) remove such persons who test positive for illegal use of drugs and on-duty impairment by alcohol pursuant to paragraph (1) from safety-sen-sitive duties in implement-ing subsection (c). (42 U.S.C. 12114)

Posting Notices

Sec. 105. Ev-ery employer, em-ploy-ment agency, labor organiza-tion, or joint labor-management committee covered under this title shall post notices in an accessible format to appli-cants, employees, and mem-bers describing the applicable provisions of this Act, in the manner pre-scribed by section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10). (42 U.S.C. 12115)

Regulations

Sec. 106. Not later than 1 year after the date of enactment of this Act, the Commis-sion shall issue regulations in an accessible format to carry out this title in accordance with subchapter II of chapter 5 of title 5, United States Code. (42 U.S.C. 12116)

Enforcement

Sec. 107. (a) Powers, remedies, and proce-dures.--The powers, reme-dies and proced-ures set forth in sections 705, 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-5, 2000e-6 2000e-8, and 2000e-9) shall be the powers, remedies, and procedures this title 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 Act, or regulations promulgated under section 106, concerning employment.

(b) Coordination.-The agencies with enforcement authority for actions which allege employment discrimination under this title and under the Rehabilitation Act of 1973 shall develop procedures to ensure that admin-istrative complaints filed under this title and under the Reha-bilitation Act of 1973 are dealt with in a manner that avoids duplication of effort and prevents imposi-tion of inconsistent or conflicting standards for the same requirements under this title and the Rehabilita-tion Act of 1973. The Commission, the Attor-ney General, and the Office of Fed-eral Contract Compli-ance 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 Under-standing between the Commis-sion and the Office of Federal Contract Compli-ance Programs dated January 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations implement-ing this title and Rehabilitation Act of 1973 not later than 18 months after the date of enactment of this Act. (42 U.S.C. 12117)

Effective Date

Sec. 108. This title shall become effective 24 months after the date of enactment. (42 U.S.C. 12111 (note))

TITLE II - PUBLIC SERVICES

SUBTITLE A - PROHIBITION AGAINST DIS-CRIMINATION AND OTHER GENERALLY AP-PLICABLE PROVISIONS

Definition

Sec. 201. As used in this ti-tle-

(1) Public entity.-The term "public entity" means-

(A) any State or local gov-ernment;

(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(C) the National Railroad Passenger Corporation, and any com-muter authority (as defined in section 103(8) of the Rail Passen-ger Service Act).

(2) Qualified individual with a disability.-The term "qualified indi-vidual with a disability" means an individual with a disability who, with or without reasonable modifi-cations to rules, policies, or practic-es, the removal of architectural, com-munication, or trans-porta-tion bar-riers, or the provision of auxilia-ry aids and services, meets the es-sential eligibili-ty requirements for the receipt of services or the partici-pation in pro-grams or activities provided by a public entity. (42 U.S.C. 12131)

Discrimination

Sec. 202. Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. (42 U.S.C. 12132)

Enforcement

Sec. 203. The remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability in violation of section 202. (42 U.S.C. 12133)

Regulations

Sec. 204. (a) In general.-Not later than 1 year after the date of enactment of this Act, the Attorney General shall promulgate regulations in an acces-sible format that imple-ment this subtitle. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation under section 223, 229, or 244.

(b) Relationship to other regulations.-Except for "program accessibility, existing facilities", and "communications", regulations under subsection (a) shall be consistent with this Act and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). With respect to "program accessibili-ty, existing facilities", and "com-munications", such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under such section 504.

(c) Standards.-Regulations under subsection (a) shall include stan-dards applicable to facilities and vehicles covered by this subtitle other than facilities, stations, rail passenger cars and vehicles covered by subtitle B. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transpor-tation Barriers Compliance Board in accordance with section 504(a) of this Act. (42 U.S.C. 12134)

Effective Date

Sec. 205. (a) General rule.- Except as provided in subsec-tion (b), this subtitle shall become effec-tive 18 months after the date of enactment of this Act. (b) Exception.-Section 204 shall become effective on the date of enactment of this Act. (42 U.S.C. 12131(note))

* * * *

TITLE III-PUBLIC ACCOM-MODATIONS AND SERVICES OPERAT-ED BY PRIVATE EN-TITIES

Definition

Sec. 301. As used in this title-

(1) Commerce.-The term "commerce" means travel, trade, traffic, commerce, transportation, or communication-

(A) among the several States;

(B) between any foreign country or any territory or posses-sion and any State; or

(2) Commercial facili-ties.-The term "commercial facili-ties" means facilities-

(A) that are intended for nonresidential use; and

(B) whose operations will affect commerce. Such term shall not include railroad locomotives, railroad freight cars, railroad cabooses, railroad cars described in section 242 or covered under this title, railroad rights-of-way, or facil-ities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968 (42 U.S.C. 3601 et seq.).

(3) Demand responsive sys-tem.-The term "de-mand responsive system" means any system of pro-viding transportation of individuals by a vehicle, other than a system which is a fixed route system.

(4) Fixed route system.-The term "fixed route system" means a system of providing transportation of individuals (other than by air-craft) on which a vehicle is operated along a prescribed route according to a fixed schedule.

(5) Over-the-road bus.-The term "over-the-road bus" means a bus characterized by an elevated passen-ger deck located over a bag-gage compartment.

(6) Private entity.-The term "private entity" means any entity other than a public entity (as de-fined in section 201(1)).

(7) Public accommoda-tion.-The following private entities are considered public accommoda-tions for purposes of this title, if the operations of such entities affect commerce-

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a build-ing that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the resi-dence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establish-ment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

(8) Rail and railroad.-The terms "rail" and "railroad" have the meaning given the term "railroad" in section 202(e) of the Federal Rail-road Safety Act of 1970 (45 U.S.C. 431(e)).

(9) Readily achievable.-The term "readily achiev-able" means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include-

(A) the nature and cost of the action needed under this Act;

(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facili-ty; the effect on ex-penses and re-sources, or the impact otherwise of such action upon the operation of the facility;

(C) the overall financial resources of the covered entity; the overall size of the business of a cov-ered entity with respect to the num-ber of its employees; the num-ber, type, and location of its facili-ties; and

(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separate-ness, administrative or fiscal rela-tionship of the facility or facilities in question to the covered entity.

(10) Specified public transpor-tation.-The term "specified public transportation" means transportation by bus, rail, or any other convey-ance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.

(11) Vehicle.-The term "vehicle" does not include a rail passenger car, railroad locomotive, railroad freight car, railroad caboose, or a railroad car described in section 242 or covered under this title. (42 U.S.C. 12181)

Prohibition of Discrimination by Public Accommodations

Sec. 302. (a) General rule.-No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

(b) Construction.-

(1) General prohibition.-

(A) Activities.-

(i) Denial of participa-tion.-It shall be discrimi-natory to subject an individual or class of individuals on the basis of a disabil-ity or disabilities of such individual or class, directly, or through con-trac-tual, licensing, or other arrange-ments, to a denial of the opportunity of the individual or class to partici-pate in or bene-fit from the goods, services, facilities, privileg-es, advan-tages, or accommodations of an entity.

(ii) Participation in unequal benefit.-It shall be discriminato-ry to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.

(iii) Separate benefit.-It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other ar-rangements with a good, ser-vice, facility, privi-lege, advan-tage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advan-tage, or accom-modation, or other opportu-nity that is as effective as that pro-vid-ed to others.

(iv) Individual or class of individuals.-For purposes of clauses (i) through (iii) of this subparagraph, the term "individual or class of individuals" refers to the clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement.

(B) Integrated settings.-Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.

(C) Opportunity to participate.-Notwithstanding the existence of separate or different programs or activities provided in accordance with this section, an individual with a disability shall not be denied the opportunity to participate in such programs or activities that are not separate or different.

(D) Administrative methods.-An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration-

(i) that have the effect of discriminating on the basis of disability; or

(ii) that perpetuate the dis-crimination of others who are sub-ject to common administrative con-trol.

(E) Association.-It shall be discriminatory to exclude or other-wise deny equal goods, services, facilities, privileges, advantages, accommoda-tions, or other opportuni-ties to an individual or entity be-cause of the known disability of an individual with whom the individual or entity is known to have a rela-tionship or association.

(2) Specific prohibitions.- (A) Discrimination.-For purposes of subsection (a), discrimi-nation includes-

(i) the imposition or appli-cation of eligibility criteria that screen out or tend to screen out an individ-ual with a disability or any class of individuals with dis-abilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be nec-essary for the provision of the goods, services, facili-ties, privi-leges, advantages, or accommo-dations being offered;

(ii) a failure to make rea-sonable modifications in policies, practices, or procedures, when such modifica-tions are necessary to af-ford such goods, services, facilities, privileges, advantages, or accommo-da-tions to individuals with disabili-ties, unless the entity can demon-strate that making such modifica-tions would fundamen-tally alter the nature of such goods, services, facilities, privi-leges, advantages, or accommo-da-tions;

(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segre-gated or otherwise treated different-ly than other individuals because of the ab-sence of auxiliary aids and ser-vices, unless the entity can dem-on-strate that taking such steps would funda-mentally alter the nature of the good, service, facili-ty, privi-lege, advantage, or ac-commodation being offered or would result in an undue burden;

(iv) a failure to remove architectural barriers, and com-muni-ca-tion barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and

(v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facili-ties, privileges, advantages, or accommo-da-tions available through alternative methods if such methods are readily achiev-able.

(B) Fixed route system.-

(i) Accessibility.-It shall be considered discrimi-nation for a private entity which operates a fixed route system and which is not sub-ject to section 304 to purchase or lease a vehicle with a seating capac-ity in excess of 16 passengers (in-cluding the driver) for use on such system for which a solicitation is made after the 30th day following the effective date of this subpara-graph, that is not readily accessible to and usable by individuals with dis-abilities, including individuals who use wheelchairs.

(ii) Equivalent service.-If a private entity which operates a fixed route system and which is not subject to section 304 pur-chases or leases a vehicle with a seating ca-pacity of 16 passengers- or less (including the driver) for use on such system after the effec-tive date of this subpara-graph that is not readily accessi-ble to or usable by individuals with disabili-ties, it shall be con-sidered discrimi-nation for such entity to fail to operate such system so that, when viewed in its entirety, such system ensures a level of service to individ-uals with dis-abilities, including indi-viduals who use wheelchairs, equiv-alent to the level of service provided to individ-u-als without disabilities.

(i) a failure of a private entity which operates a demand responsive system and which is not subject to section 304 to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to indi-viduals without disabilities; and

(ii) the purchase or lease by such entity for use on such sys-tem of a vehicle with a seating capacity in excess of 16 passen-gers (includ-ing the driver), for which solicita-tions are made after the 30th day follow-ing the effec-tive date of this subparagraph, that is not readily accessible to and usable by individ-uals with disabilities (including individuals who use wheelchairs) unless such entity can demonstrate that such system, when viewed in its en-tirety, provides a level of service to individuals with disabilities equivalent to that provided to indi-viduals without disabilities.

(D) Over-the-road bus-es.-

(i) Limitation on applic-abil-ity.-Subparagraphs (B) and (C) do not apply to over-the-road buses.

(ii) Accessibility require-ments.-For purposes of sub-sec-tion (a), discrimination includes

(I) the purchase or lease of an over-the-road bus which does not comply with the regulations issued under section 306(a)(2) by a private entity which provides transportation of individuals and which is not primarily engaged in the business of transporting people, and

(II) any other failure of such entity to comply with such regulations.

(3) Specific construction.-Nothing in this title shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. (42 U.S.C. 12182)

New Construction and Alterations in Public Accommodations and Commercial Facili-ties

Sec. 303. (a) Application of term.-Except as provided in sub-section (b), as applied to public accom-modations and com-mercial facilities, discrimi-na-tion for purpos-es of section 302(a) includes-

(1) a failure to design and construct facilities for first occu-pan-cy later than 30 months after the date of enactment of this Act that are readily accessible to and usable by individuals with disabilities, except where an entity can demon-strate that it is structurally impracti-cable to meet the require-ments of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this title; and

(2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an estab-lishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maxi-mum extent feasi-ble, the altered portions of the facili-ty are readily accessible to and usable by individuals with disabili-ties, including individuals who use wheel-chairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individ-uals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the al-tered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).

(b) Elevator.-Subsection (a) shall not be construed to require the installation of an elevator for facili-ties that are less than three stories or have less than 3,000 square feet per story unless the building is a shop-ping center, a shopping mall, or the professional office of a health care provider or unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities. (42U.S.C. 12183)

Prohibition of discrim-ination in specified public transpor-tation ser-vices provided by private enti-ties

Sec. 304. (a) General rule.-No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transporta-tion ser-vices provided by a private entity that is primarily engaged in the business of transport-ing people and whose operations affect com-merce.

(b) Construction.-For purposes of subsection (a), discrimina-tion includes-

(1) the imposition or applica-tion by a entity described in subsec-tion (a) of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully enjoying the specified public transportation services pro-vided by the entity, unless such cri-teria can be shown to be neces-sary for the provision of the services being offered;

(2) the failure of such entity to-

(A) make reasonable modi-fications consistent with those re-quired under section 302(b)(2) (A)(ii);

(B) provide auxiliary aids and services consistent with the requirements of section 302(b)(2) (A)(iii); and

(C) remove barriers consistent with the requirements of section 302(b)(2)(A) and with the requirements of section 303(a)(2);

(3) the purchase or lease by such entity of a new vehicle (other than an automobile, a van with a seating capacity of less than 8 passengers, including the driver, or an over-the-road bus) which is to be used to provide specified public transportation and for which a solicitation is made after the 30th day following the effective date of this section, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; except that the new vehicle need not be readily accessible to and usable by such individuals if the new vehicle is to be used solely in a demand respon-sive system and if the entity can demonstrate that such system, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service provided to the general public;

(4)(A) the purchase or lease by such entity of an over-the-road bus which does not comply with the regulations issued under section 306(a)(2); and

(B) any other failure of such entity to comply with such regulations; and

(5) the purchase or lease by such entity of a new van with a seating capacity of less than 8 passengers, including the driver, which is to be used to provide specified public transportation and for which a solicitation is made after the 30th day following the effective date of this section that is not readily acces-sible to or usable by individuals with disabilities, including individu-als who use wheelchairs; except that the new van need not be readily accessible to and usable by such individuals if the entity can demon-strate that the system for which the van is being purchased or leased, when viewed in its entirety, pro-vides a level of service to such individuals equivalent to the level of service provided to the general public;

(6) the purchase or lease by such entity of a new rail passenger car that is to be used to provide specified public transportation, and for which a solicitation is made later than 30 days after the effective date of this paragraph, that is not readily accessible to and usable by individ-uals with disabilities, including individuals who use wheelchairs; and

(7) the remanufacture by such entity of a rail passenger car that is to be used to provide specified public transportation so as to extend its usable life for 10 years or more, or the purchase or lease by such entity of such a rail car, unless the rail car, to the maximum extent feasible, is made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(1) Exception.-To the extent that compliance with subsection (b)(2)(C) or (b)(7) would significantly alter the historic or antiquated character of a historical or antiquated rail passenger car, or a rail station served exclusively by such cars, or would result in violation of any rule, regulation, standard, or order issued by the Secretary of Transpor-tation under the Federal Railroad Safety Act of 1970, such compli-ance shall not be required.

(2) Definition.-As used in this subsection, the term "historical or antiquated rail passenger car" means a rail passenger car-

(A) which is not less than 30 years old at the time of its use for transporting individuals;

(B) the manufacturer of which is no longer in the business of manufacturing rail passenger cars; and

(i) has a consequential association with events or persons significant to the past; or

(ii) embodies, or is being restored to embody, the distinctive characteristics of a type of rail passenger car used in the past, or to represent a time period which has passed. (42 U.S.C. 12184)

Study

Sec. 305. (a) Purposes.-The Office of Technology Assessment shall undertake a study to determine-

(1) the access needs of individ-uals with disabilities to over-the-road buses and over-the-road bus service; and

(2) the most cost-effective methods for providing access to over-the-road buses and over-the-road bus service to individuals with disabilities, particularly individuals who use wheelchairs, through all forms of boarding options.

(b) Contents.-The study shall include, at a minimum, an analysis of the following:

(1) The anticipated demand by individuals with disabilities for accessible over-the-road buses and over-the-road bus service.

(2) The degree to which such buses and service, including any service required under sections 304(b)(4) and 306(a)(2), are readily accessible to and usable by individ-uals with disabilities.

(3) The effectiveness of vari-ous methods of providing accessibil-ity to such buses and service to individuals with disabilities. (4) The cost of providing accessible over-the-road buses and bus service to individuals with dis-abilities, including consideration of recent technological and cost saving developments in equipment and devices.

(5) Possible design changes in over-the-road buses that could enhance accessibility, including the installa-tion of accessible restrooms which do not result in a loss of seating capacity.

(6) The impact of accessibility requirements on the continuation of over-the-road bus service, with particular consideration of the im-pact of such requirements on such service to rural communities.

(c) Advisory committee.-In conducting the study required by subsection (a), the Office of Tech-nology Assessment shall establish an advisory committee, which shall consist of-

(1) members selected from among private operators and manu-fac-turers of over-the-road buses;

(2) members selected from among individuals with disabilities, particularly individuals who use wheelchairs, who are potential riders of such buses; and

(3) members selected for their tech-nical expertise on issues includ-ed in the study, including manufac-turers of boarding assistance equip-ment and devices. The number of mem--bers selected under each of par-agraphs (1) and (2) shall be equal, and the total number of members sel-ected under paragraphs (1) and (2) shall exceed the number of mem-bers selected under paragraph (3).

(d) Deadline.-The study required by subsection (a), along with recommendations by the Office of Technology Assessment, including any policy options for legislative action, shall be submitted to the President and Congress within 36 months after the date of the enactment of this Act. If the President determines that com-pliance with the regulations issued pursuant to sec-tion 306(a)(2)(B) on or before the applicable deadlines specified in section 306(a)(2)(B) will result in a significant reduction in intercity over-the-road bus service, the Presi-dent shall extend each such deadline by 1 year.

(e) Review.-In developing the study required by subsection (a), Office of Technology Assessment shall provide a preliminary draft of such study to the Architectural and Transportation Barriers Compli-ance Board established under section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792). The Board shall have an opportunity to comment on such draft study, and any such com-ments by the Board made in writing within 120 days after the Board's receipt of the draft study shall be incorporated as part of the final study required to be submitted under subsection (d). (42 U.S.C. 12185)

* * * *

Exemptions for Private Clubs and Religious Organi-zations

Sec. 307. The provisions of this title shall not apply to private clubs or establishments exempted from coverage under title 11 of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e)) or to religious organiza-tions or entities controlled by reli-gious orga-nizations, including places of wor-ship. (42 U.S.C. 12187)

Enforcement

Sec. 308. (a) In general.-

(1) Availability of remedies and procedures.-The remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000a-3(a)) are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this title or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 303. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a per-son or organization covered by this title does not intend to comply with its provisions.

(2) Injunctive relief.-In the case of violations of sections 302(b)(2)(A)(iv) and section 303(a), injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabili-ties to the extent required by this title. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this title.

(b) Enforcement by the Attorney General.-

(1) Denial of rights.-

(A) Duty to investigate.-

(i) In general.-The Attor-ney General shall investigate alleged violations of this title. and shall undertake periodic reviews of com-pliance of covered entities under this title.

(ii) Attorney General certifi-cation.-On the applica-tion of a State or local government, the Attor-ney General may, in consul-tation with the Architectural and Transpor-tation Barriers Compli-ance Board, and after prior notice and a public hearing at which persons, including individu-als with disabilities, are provided an opportunity to testify against such certification, certify that a State law or local building code or similar ordinance that estab-lishes accessibility requirements meets or exceeds the minimum require-ments of this Act for the accessi-bility and usability of cov-ered facilities under this title. At any enforcement proceeding under this section, such certification by the Attorney General shall be rebutta-ble evidence that such State law or local ordinance does meet or exceed the minimum requirements of this Act.

(B) Potential violation.-If the Attorney General has reasonable cause to believe that-

(i) any person or group of persons is engaged in a pattern or practice of discrimination under this title; or

(ii) any person or group of persons has been discriminated against under this title and such discrimination raises an issue of general public importance. The Attorney General may commence a civil action in any appropriate United States district court.

(2) Authority of court.-In a civil action under paragraph (1)(B,), the court-

(A) may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this title-

(i) granting temporary, preliminary, or permanent relief;

(ii) providing an auxiliary aid or service, modification of policy, practice, or procedure, or alternative method; and

(iii) making facilities readily accessible to and usable by individuals with disabilities;

(B) may award such other relief as the court considers to be appropriate, including monetary damages to persons aggrieved when requested by the Attorney General; and

(i) not exceeding $50,000 for a first violation; and

(ii) not exceeding $100,000 for any subsequent violation.

(3) Single violation.-For purposes of paragraph (2)(C), in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation.

(4) Punitive damages.-For purposes of subsection (b)(2)(B), the term "monetary damages" and "such other relief" does not include puni-tive damages.

(5) Judicial consideration.-In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any, is appropriate, shall give consider-ation to any good faith effort or attempt to comply with this Act by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have rea-sonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability. (42 U.S.C. 12188)

Examinations and Courses

Sec. 309. Any person that offers examina-tions or courses relat-ed to applica-tions, licensing, certifi-cation, or credentialing for second-ary or post-secondary education, profes-sional, or trade purposes shall offer such examinations or courses in a place and manner accessible to per-sons with disabilities or offer alter-native accessible arrangements for such individuals. (42 U.S.C. 12189)

Effective Date

Sec. 310. (a) General rule.-Ex-cept as provided in subsections (b) and (c), this title shall become effec-tive 18 months after the date of the enact-ment of this Act.

(b) Civil actions.-Except for any civil action brought for a violation of section 303, no civil action shall be brought for any act or omission described in section 302 which occurs-

(1) during the first 6 months after the effective date, against businesses that employ 25 or fewer employees and have gross receipts of $1,000,000 or less; and

(2) during the first year after the effective date, against businesses that employ 10 or fewer employees and have gross receipts of $500,000 or less.

(c) Exception.-Sections 302(a) for purposes of section 302(b)(2) (B) and (C) only, 304(a) for purpos-es of section 304(b)(3) only, 304(b)(3), 305, and 306 shall take effect on the date of the enactment of this Act. (42 U.S.C. 12181 (note))

* * * *

TITLE V-MISCELLANEOUS PROVISIONS

Construction

Sec. 501. (a) In general.-Except as other-wise provided in this Act, nothing in this Act shall be con-strued to apply a lesser standard than the standards applied under title V of the Rehabil-itation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agen-cies pursuant to such title.

(b) Relationship to other laws.-Nothing in this Act 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 Act. Nothing in this Act shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment covered by title I, in transportation covered by title II or III, or in places of public accommo-da-tion covered by title III.

(1) an insurer, hospital or medical service company, health mainte-nance 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 Act from establishing, sponsoring, observing or admin-istering the terms of a bona fide benefit plan that are based on under-writing risks, classifying risks, or adminis-ter-ing such risks that are based on or not inconsistent with State law; or

(3) a person or organization covered by this Act from establish-ing, sponsoring, observing or admin-istering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance. Para-graphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of title I and III.

(d) Accommodations and ser-vices.-Nothing in this Act shall be construed to require an individual with a disability to accept an ac-commoda-tion, aid, service, opportu-nity, or benefit which such individu-al chooses not to accept. (42 U.S.C. 12201)

State Immunity

Sec. 502. A State shall not be immune under the eleventh amend-ment to the Constitu-tion of the United States from an action in Federal or State court of competent jurisdiction for a viola-tion of this Act. In any action against a State for a violation of the requirements of this Act, 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. (42 U.S.C. 12202)

Prohibition against retaliation and coer-cion

Sec. 503. (a) Retaliation.-No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or be-cause such individ-ual made a charge, testified, assist-ed, or partici-pated in any manner in an investiga-tion, proceeding, or hearing under this Act.

(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 exer-cised or enjoyed, or on account of his or her having aided or encour-aged any other individual in the exercise or enjoyment of, any right granted or protected by this Act.

(c) Remedies and proce-dures.-The remedies and proce-dures available under sections 107, 203, and 308 of this Act shall be available to aggrieved persons for violations of subsections (a) and (b), with respect to title 1, title II and title III, respectively. (42 U.S.C. 12203)

Regulations by the Architectural and Transportation Barriers Compliance Board

Sec. 504. (a) Issuance of guide-lines.-Not later than 9 months after the date of enactment of this Act, the Architec-tural and Transportation Barriers Compliance Board shall issue mini-mum guidelines that shall supple-ment the existing Minimum Guide-lines and Requirements for Accessi-ble Design for purposes of titles II and III of this Act.

(b) Contents of guidelines.-The supplemental guidelines issued under subsection (a) shall establish additional requirements, consistent with this Act, to ensure that build-ings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transpor-tation, and communi-cation, to indi-viduals with disabilities,

(1) In general.-The supple-mental guidelines issued under subsection (a) shall include proce-dures and requirements for alter-ations 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 Accessi-bility Standards.

(3) Other sites.-With respect to alterations of buildings or facili-ties 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 Accessi-bility Standards, and shall require, at a minimum, compliance with the require-ments established in 4.1.7(2) of such standards. (42 U.S.C. 12204)

Attorney's Fees

Sec. 505. In any action or ad-ministrative pro-ceeding commenced pursuant to this Act, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attor-ney's fee, includ-ing litigation ex-penses, and costs, and the United States shall be liable for the forego-ing the same as a private individual. (42 U.S.C. 12205)

Technical Assistance

Sec. 506. (a) Plan for assis-tance.-

(1) In general.-Not later than 180 days after 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 Act, and other Federal agencies, in understanding the responsibility of such entities and agencies under this Act.

(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 Proce-dure Act).

(b) Agency and public assist-ance.-The Attorney General may obtain the assistance of other Feder-al agencies in carrying out subsec-tion (a), including the National Council on Disability, the Presi-dent's Committee on Employ-ment of People with Disabilities, the Small Business Administration, and the Department of Commerce.

(1) Rendering assist-ance.-Each Federal agency that has responsibility under paragraph (2) for implementing this Act may render technical assistance to indi-viduals and institutions that have rights or duties under the respective title or titles for which such agency has responsibility.

(2) Implementation of titles.-

(A) Title I.-The Equal Employment Opportunity Commis-sion and the Attorney General shall implement the plan for assistance developed under subsection (a), for title I.

(B) Title II.-

(i) Subtitle A.-The Attor-ney General shall implement such plan for assistance for subtitle A of title II.

(ii) Subtitle B.-The Secre-tary of Transportation shall im-ple-ment such plan for assistance for subtitle B of title II.

(C) Title III.-The Attorney General, in coordination with the Secretary of Transportation and the Chair of the Architectural Transpor-ta-tion Barriers Compliance Board, shall implement such plan for assis-tance for title III, except for section 304, the plan for assistance for which shall be implemented by the Secretary of Transportation.

(D) Title IV.-The Chair-man of the Federal Communications Commission, in coordination with the Attorney General, shall imple-ment such plan for assistance for title IV.

(3) Technical Assistance Man-uals.-Each Federal agency that has responsibility under paragraph (2) for implementing this Act 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 Act no later than six months after applicable final regulations are published under titles I, II, III, and IV.

(d) Grants and Contracts.-

(1) In general.-Each Federal agency that has responsibility under subsection (c)(2) for implementing this Act may make grants or award contracts to effectuate the purposes of this section, subject to the avail-ability of appropriations. Such grants and contracts may be award-ed to individuals, institutions not organized for profit and no part of the net earnings of which inures to the benefit of any private sharehold-er or individual (including educa-tional institutions), and associations represent-ing individuals who have rights or duties under this Act. Con-tracts may be awarded to entities organized for profit, but such enti-ties may not be the recipients or grants described in this paragraph.

(2) Dissemination of informa-tion.-Such grants and contracts, among other uses, may be designed to ensure wide dissemina-tion of information about the rights and duties established by this Act and to provide informa-tion and technical assistance about techniques for effective compliance with this Act.

(e) Failure to receive assist-ance.-An employer, public accom-modation, or other entity covered under this Act shall not be excused from compliance with the requirements of this Act 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. (42 U.S.C. 12206)

Federal Wilderness Areas

Sec. 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 the enactment of this Act, the National Council on Disability shall submit the report required under subsection (a) to Congress.

(1) In general.-Congress reaffirms that nothing in the Wilderness Act 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 "wheel-chair" means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedes-trian area. (42 U.S.C. 12207)

Transvestites

Sec. 508. For the purposes of this Act, the term "disabled" or "disability" shall not apply to an individual solely because that individual is a transvestite. (42 U.S.C. 12208)

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Illegal Use of Drugs

Sec. 510. (a) In general.-For pur-poses of this Act, the term "indi-vidual with a disability" does not in-clude an indi-vidual who is cur-rently en-gaging in the illegal use of drugs, when the covered entity acts on the ba-sis of such use.

(b) Rules of construction.-No-thing in subsection (a) shall be con-strued to exclude as an individu-al with a disability an individual who-

(1) has successfully completed a supervised drug rehabilitation pro-gram and is no longer engaging in the illegal use of drugs, or has oth-erwise been rehabilitated success-fully and is no longer engaging in such use;

(2) is participating in a su-per-vised 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 Act 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 para-graph (1) or (2) is no longer engag-ing in the illegal use of drugs; how-ever, nothing in this section shall be con-strued to encourage, prohibit, re-strict, or authorize the conducting of testing for the illegal use of drugs.

(c) Health and other ser-vices.-Notwithstanding subsec-tion (a) and section 511(b)(3), an indi-vidual shall not be denied health ser-vices, or services provided in con-nection 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 "ill-egal use of drugs" means the use of drugs, the possession or distribu-tion of which is unlawful under the Con-trolled Substances Act (21 U.S.C. 812). Such term does not include the use of a drug taken under super-vision by a licensed health care pro-fes-sional, or other uses autho-rized by the Controlled Substances Act or other provisions of Federal law.

(2) Drugs.-The term "drug" means a controlled substance, as de-fined in schedules I through V of sec-tion 202 of the Controlled Sub-stanc-es Act. (42 U.S.C. 12210)

Definitions

Sec. 511. (a) Homosexuality and bisexuality.-For purposes of the definition of "disability" in section 3(2), homosexuality and bisexuality are not impairments and as such are not disabilities under this Act.

(b) Certain conditions.-Under this Act, 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. (42 U.S.C. 12211)

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