Disabilities Guidebook: How to Protect or Enforce Your Rights under Section 504 of the Rehabilitation Act

Disabilities Guidebook: How to Protect or Enforce Your Rights under Section 504 of the Rehabilitation Act

Last updated: February 2004

(Chapter 1 Section 3 from Guidebook of Laws and Programs for People with Disabilities)

Enforcement Procedures By Federal Agencies

In General

Section 504 of the Rehabilitation Act, (29 U.S.C. § 701 et seq.), usually is just called  "§ 504." It prohibits discrimination against you, on the basis of your disability, by certain businesses, organizations, or government agencies that are "recipients" of "federal financial assistance."

For the definition and examples of "recipients" and "federal financial assistance," see the section in this Chapter titled "Are You an "Otherwise Qualified Individual With a Disability" Under Section 504 of the Rehabilitation Act."

At various places in this guidebook, we discuss your rights under § 504.
Examples:
(1) In Chapters 2, 5, 10 and 15, we describe your rights to be free from discrimination by recipients that provide services for people with disabilities, such as programs of federal agencies, educational services provided by schools, housing (both public and subsidized), and transportation services.
(2) In Chapter 6, we describe your rights against job discrimination by employers who receive federal funds.

When you read about your § 504 rights in any of those chapters, you should refer back to this section to see what you can do if those rights are violated.

If a "recipient" of federal funds has violated your rights under § 504, you must be careful to take the proper steps.

Each Federal Agency Has Its Own Procedures for Enforcement

When the federal government provides funding or other assistance to a recipient, that assistance may come from any one of a number of different federal departments or agencies.
Examples: School districts get money from the U.S. Department of Education. Doctors receive Medicare funds from the U.S. Department of Health and Human Services.

Each federal agency has established ways to enforce § 504 as to the programs and activities it funds. This system includes:

  • A requirement that recipients sign promises of compliance with § 504; and

  • Complaint and hearing procedures.

Federal Agency Procedures to Determine Compliance with § 504

Before a federal agency can approve federal funding, the recipient must sign a document promising to comply with Section 504 in various ways. The agency also must review data sent in by the recipient. From time to time, the agency must continue to review whether or not each recipient is complying in the proper way.

If the agency finds cases of probable discrimination under § 504, it must promptly notify the Civil Rights Division of the Department of Justice.

Complaints You Can Make Against Recipients For Discrimination

Each federal agency has its own procedures for processing and resolving your complaints. If you feel you have been discriminated against in violation of § 504, you should consult the regulations of the appropriate federal agency. A list of those agencies and the location of their regulations can be found below.

If you want to file a complaint, you must check the regulations for the agency that provided the funding to find out what information should be included in your complaint. You will need to know what must be included in the complaint, where to file the complaint, and deadlines to file the complaint.

The procedures for each federal agency must require that a written notice be sent to you and to the recipient about their decision on your complaint. If complaints are not investigated, there must be a good reason, which has to be stated in the notice.

The federal agency may require or permit the recipient to process the complaint itself. In this situation, the agency must make sure the recipient's procedures for processing the complaints are adequate. Also, the federal agency must get a written report of each complaint and investigation from the recipient. The federal agency has the responsibility to make sure the investigation is complete and to make the final decision on each complaint.

Where the federal agency decides that the recipient is probably not in compliance with § 504 (i.e., discriminating against you), there are different methods of resolving the situation. First, the agency can try to get the recipient to agree to follow the law. If necessary, the agency can terminate the federal funding, after giving the recipient an opportunity for a hearing.

The Recipient Can Comply Voluntarily

After a complaint has been made, and the federal agency intervenes, the recipient can agree to take steps to fix the problem. Any such agreement or "plan" must be in writing. It must be signed by the recipient and by the federal agency. The plan must specify the action necessary to correct the problem. It will be made available to the public.

What Happens If the Recipient Does Not Comply?

Where the federal agency fails to get the recipient to fix the problems, the federal agency must start appropriate enforcement proceedings. If negotiations with the recipient continue for more than 60 days after the agency decides that the recipient probably is acting illegally, then the agency must notify the Civil Rights Division of the Department of Justice. They can take action to terminate funding for the recipient.

The Recipient Can Seek Judicial Review of the Agency Decision

If the federal agency decides to deny or terminate the recipient's federal funding, that decision can be reviewed in court. A court has the power to force the federal agency to provide the funding if it was unlawfully withheld.

When You File A Charge Under the ADA And a Complaint Under  § 504

In a case of job discrimination, it is possible that the recipient's discrimination may violate both the Americans with Disabilities Act (ADA) and § 504. If you think that is the case, you can make a "dual filing." This means you can file a charge with the Equal Employment Opportunity Commission (EEOC) under the ADA, but you also can file a § 504 complaint with the particular federal agency providing the funding to the recipient.

///Note: We discuss how to file a charge under the ADA in the section of this Guidebook titled "Reasonable Accommodations and Freedom From Discrimination" in Chapter 6, Employment.///

In cases of "dual filing," the federal agency has procedures to avoid duplication of effort, and to prevent the application of inconsistent or conflicting standards. In some cases, the § 504 agency will keep a complaint for investigation and in other cases it will refer the complaint to the EEOC for initial processing under the ADA.

Federal Agencies With Regulations About Complaints of Discrimination Under § 504

A number of federal agencies have § 504 regulations, which describe how recipients cannot discriminate on the basis of disability. The regulations for those agencies are as follows:

 

Private Lawsuits

Private Right to Sue In Court

The administrative complaint process discussed above gives recipients a strong motive to comply with § 504. If they do not, they face the threat of funding termination. However, if they do not comply, the administrative process gives you no way to obtain a personal remedy.

In order to get a personal remedy under § 504, you have the right to bring your own lawsuit against any recipient violating § 504. This includes both private recipients and state or local governments receiving federal funding.

In Illinois, lawsuits brought under § 504 (or under the ADA) must be filed within 2 years of the date of the discriminatory act.

Where to Bring the Lawsuit

Your lawsuit can be brought either in federal court or in state court. The lawsuit may be brought in any of the following judicial districts in Illinois:

  • The district in which the unlawful practice was committed;

  • The district in which the records about the practice are maintained;

  • The district in which you would have worked were it not for the unlawful employment practice.

A Lawsuit Can Be Filed Without First Having To File A Complaint with the Federal Agency:

In a discrimination case brought under § 504 against a recipient, you do not have to first go through the administrative complaint process with the federal agency before bringing a private lawsuit. In other words, you can choose whether you want to use either the administrative complaint process, or the court system. If you prefer, you can use both.

If you do file a complaint with the federal agency, and the recipient offers to fully solve the problem, you cannot bring a lawsuit in federal court. You must either accept the relief or abandon the claim.

What You Must Prove At a Trial

At trial, you must prove a case of discrimination under § 504. You have the burden to prove that the discrimination happened solely because of your disability. You must prove that you are qualified despite the disability. If the recipient claims that it cannot provide you with a requested accommodation, then the recipient must prove it.

In employment discrimination cases, the employer may say that your disability prevented you from physically being able to do the job. The recipient must then try to show that it was okay to consider your disability because the physical condition was "job related." You would then have to show that you could efficiently perform on the job despite your disability. You also could try to show that you could overcome your impairment if you were given a reasonable accommodation.

The recipient might try to show that no reasonable accommodation could have been made in your case. You must then show evidence of your capabilities and offer suggestions for possible accommodations.

In some cases, the recipient denies that your disability was a basis for taking action against you. The recipient must state some legitimate, non-discriminatory reason for its acts. You then have the burden to prove that so-called legitimate reason was a "mere pretext."

You can prove "mere pretext" by proving that:

  • The recipient was more likely than not motivated by a discriminatory reason; or

  • The recipient's explanation is not credible.

Your Remedies If You Win the Lawsuit

If you can prove a violation of § 504, the Court has power to give you relief appropriate to the situation, including:

1. Injunctive and Declaratory Relief. The court can announce the rights of the parties and order the recipient to stop its discrimination or reverse its effects.
Examples:
(1) A cadet was separated from the marine academy after contracting diabetes. The court can order that the cadet be allowed to attend the academy.
(2) A city and its zoning board are interfering with the issuance of a building permit to a drug and alcohol rehabilitation facility. The court can enter an order forcing them to stop doing that.

2. Reinstatement, Promotion, or other job benefits. In cases of job discrimination, the court can order that you get your job back, you get promoted, or order some other job benefits to remedy the discrimination.

3. Back pay. If you are refused a job promotion in violation of § 504, you are entitled to back pay for the difference between the pay for the two jobs. If you are denied any job, you will be entitled to an award of the pay you would have received had you gotten the job.

4. Compensatory Damages. This refers to an award of money to pay you back for any other types of losses you suffered as a result of the discrimination.
Example: A deaf patient may be entitled to reimbursement of money he spent for a qualified interpreter which was not provided by his doctor.

To get this type of damages, you might have to prove that the recipient actually intended to discriminate against you. Some courts, but not all, will award damages for emotional suffering.

5. Punitive Damages. This refers to an award of money to punish the recipient for violations of § 504 which were done with malice or with reckless indifference to your rights.   However, a unanimous U.S. Supreme Court in a case titled Gorman v. Barnes (June 17, 2002) has held that punitive damages are not recoverable in cases under Title II of the ADA and Section 504 of the Rehab Act.

6. Interest. You also can get interest on the amount of compensatory damages that the recipient is ordered to pay. Interest is calculated from the date that you made demand for payment until the start of trial. However, interest is not allowed on a back pay award.

7. Costs of the lawsuit. Your costs are awarded if you win. This includes your filing fees, long- distance telephone charges, copying costs, deposition and transcription costs.

8. Attorney's fees. If you win, the Court has the discretion to allow you a reasonable attorney's fee as part of the costs.

If you settle the case, without a trial, you still can get your attorney's fees when the trial court determines that:

  • Your lawsuit accomplished at least one major result that was intended, and
  • The favorable outcome for you was required by law.

If you lose, you can be ordered to pay the recipient's attorney's fees only if the court finds that your claim was frivolous, unreasonable, or groundless.

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