NONDISCRIMINATION IN
EMPLOYMENT UNDER THE
REHABILITATION ACT OF 1973
TIMOTHY M. COOK*
I learned that the cripple must be careful to not act differently from
what people expect him to do. Above all they expect the cripple to be
inferior to themselves, and they will become suspicious and insecure if
the cripple falls short of these expectations. It is rather strange, that
the cripple has to play the part of the cripple, just as women have to
be what the men expect them to be, just women; and that Negroes
often have to act like clowns in front of the "superior" white race, so
that the white man shall not be frightened by his black brother.1
INTRODUCTION
In the early 1960's, Congress began moving boldly and swiftly to remedy employment discrimination based upon race,'
national origin, 3 re-
* B.A., M.A., 1975; University of Pennsylvania; J.D. expected 1978, University of Pennsylvania
Law School. The author has worked as Legal Assistant for the Developmental Disabilities Project of
the Public Interest Law Center of Philadelphia, for the Health and Social Welfare Project of the
Center for Law and Social Policy in Washington, D.C., and for the Office for Civil Rights of the
Department of Health, Education and Welfare in Washington, D.C. In addition to the cited authorities, he bases many of his observations on his experiences and perspectives as a member of the
class of disabled individuals.
1. F. CARLING, AND YET WE ARE HUMAN 54-55 (1962) (quoting anonymous case study).
2. See, e.g., Civil Rights Act of 1964, tits. VI & VII, 42 U.S.C. §§ 2000d, 2000e to 2000e-16
(1970 & Supp. V 1975). Similar actions were taken by the executive branch. See, e.g., Exec. Order
No. 11,478, 34 Fed. Reg. 12,985 (1969); Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (1965) as
amended by Exec. Order No. 11,375, 32 Fed. Reg. 14,303 (1967), reprinted in 42 U.S.C. § 2000e
note (1970).
3. See, e.g., Civil Rights Act of 1964, tits. VI & VII, 42 U.S.C. §§ 2000d, 2000e (1970 &
Supp. V 1975).
THE AMERICAN UNIVERSITY LAW REVIEW
[V/ol. 27:31
ligion, 4 sex, 5 and age. 6 It is only in recent years, particularly with the
passage of title V of the Rehabilitation Act of 1973, 7 that the nation's
disabled 8 have also become members of a protected class in the civil
rights movement. 9
The major purpose of this article is to examine the Rehabilitation Act
with a special emphasis on section 504, which prohibits employment discrimination by recipients of federal financial assistance. 1" Initially, this
article will describe the socioeconomic and emotional problems of disabled persons. It will provide an overview of the impact of previous laws
that attempted to increase their limited employment opportunities. A detailed discussion of the regulation recently promulgated by the Department of Health, Education, and Welfare (HEW) for enforcing section 504
will follow. Particular focus will be directed to the employment practices
provisions of that regulation and to the weaknesses therein that cause the
regulation to fall significantly short of the remedy anticipated by the authority of section 504.
I.
THE IMPACr OF EMPLOYMENT DISCRIMINATION
UPON DISABLED PERSONS
Disabled persons, as a whole, are the poorest of the many groups of
impoverished people in this country. 1 Economic prejudice based upon
4. E.g., id. §§ 2000e to 2000e-16.
5. E.g., Equal Pay Act of 1963, 29 U.S.C. §206 (d) (1970); Civil Rights Act of 1964, tit. VII,
42 U.S.C. §§ 2000e to 2000e-16 (1970 & Supp. V 1975); Education Amendments of 1972, Pub. L.
No. 92-318, tit. IX, 86 Stat. 373 (codified at 20 U.S.C. §§ 1681-1686 (Supp. V 1975)). As an
example of executive branch policy see Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (1965).
6. E.g., Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1970 &
Supp. V 1975).
7. Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 791-794 (Supp. V 1975)).
8. Although there is a clear distinction between the terms "handicapped" and "disabled," in
general usage the two are synonomous, and will be employed interchangeably in this article. See text
accompanying note 268 infra. "Handicapped individual" is defined by the Rehabilitation Act as
anyone who "(A) has a physical or mental impairment which substantially limits one or more of such
person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having
such an impairment." 29 U.S.C. § 706(6) (Supp. V 1975). See notes 93-106 & accompanying text
infra.
9. But see note 37 & accompanying text infra.
10. Pub. L. No. 93-112, tit. V, § 504, 87 Stat. 394 (1973) (codified at 29 U.S.C. § 794 (Supp.
V 1975). Well over half of the almost five hundred complaints received by HEW by July 1, 1977,
have involved employment concerns. In addition to employment, the nondiscrimination mandates of
section 504 extend to educational institutions and to those providers of health, welfare, and social
services who accept federal financial assistance. Id. Further, more recent amendments to the Revenue
Sharing Act incorporate the provisions of section 504 by reference. State and Local Fiscal Assistance
Amendments of 1976, Pub. L. No. 94-488 § 122(a), 90 Stat. 2341, 2350 (to be codified in 31
U.S.C. § 1242). A detailed discussion of the ramifications of section 504 that do not concern
employment is beyond the scope of this article.
1977]
NONDISCRIMINATION IN EMPLOYMENT
disability has taken a greater toll than racial or sexual bias. Of the tens of
millions of individuals with physical disabilities, 1 2 perhaps 800,000 are
presently employed. 13 Ninety percent of those with mental disabilities
could live and work more independently if properly trained., 4 ) Furthermore, those who are employed frequently are placed in unskilled, low-
paying positions involving tedious assignments.'
5
persons are not only unemployed but underemployed.'
Thus, disabled
6
Such job dis-
crimination is typically justified by the contention that society traditionally has sought to insulate disabled individuals from the hardships that
others endure. It is this distinctive treatment, however, that obstructs their
access to economic opportunities.
The refusal to allow disabled persons to engage in "normal" social
interaction is the common means of segregating them from the "normal"
society.' 7 Stereotypes of different handicaps frequently lead to the per11. See tenBroek & Matson, The Disabled and the Law of Welfare, 54 CALF. L. REV. 809
(1966). The pattern of discrimination in employment opportunities against disabled persons reflects
the experiences of disabled individuals in other situations.
12. Congress' estimate of the number of adults intended to be reached by section 504 ranges
from 28 million to 50 million and includes those with mental, as well as physical handicaps. S. REP.
No. 1297, 93d Cong., 2d Sess. 34 (1974), reprintedin (1974) U.S. CODE CONG. & AD. NEws 6373,
6406 (1974) [hereinafter cited as S. RaE'. No. 1297]. The sponsors of that legislation seemed most
concerned with their own failure to gather more precise statistics:
There is no more devastating comment on the nature of our public policy or the lives
lived by these [handicapped] individuals than society's inability to provide accurate and
current figures on how many individuals are handicapped, what forms of disability they
have, and what kinds of services they receive or need.
Id. at 28.
13. Id. at 36. Of all handicapped individuals of working age in the U.S., an estimated two-thirds
of the blind, about 53% of all paraplegics, and between 75% and 85% of those with epilepsy are
unemployed. A negligible number of working age persons with cerebral palsy have been able to find
employment. See Burgdorf & Burgdorf, A History of Unequal Treatment: The Qualifications of
HandicappedPersons as a "Suspect Class" Under the Equal Protection Clause, 15 SANTA CLARA
LAW. 855, 865 (1975).
14. S. REP. No. 1297, supra note 12, at 36.
15. Burgdorf & Burgdorf, supra note 13, at 865. See also DIMnINsHED PEOPLE: PROBLEMS AND
CARE OF THE MENTALLY RETARDED 32 (N. Bernstein ed. 1970).
16. S. REP. No. 1297, supra note 12, at 36.
17. Interactions with the disabled instill apprehensions, which, in turn, produce reactions defining
the disabled as a sub-class of social deformity. See E. Scira , LABELING DEVIANT BEHAVIOR: ITS
SOCIOLOGICAL IMPLICATION 109 (1971). See also J. LoFLAND, DEVIANCE AND IDENTrrY 13-15 (1969).
Psychological studies indicate that the reason for such a reaction is simply a fear of the unknown
springing from ignorance or lack of contact with the disabled. B. WRtGHr, PHYSICAL DIsABnLrTY-A
PSYCHOLOGICAL APPROACH 264-65 (1960). See also Barker, The Social Psychology of Physical Disability, 4 J. Soc. IssuEs 28 (1948); Sarbin & Mancuso, Failure of a Moral Enterprise:Attitudes of the
Public Toward Mental Illness, 35 J. CONSULT. & LINICAL PSYCH. 159 (1970). It is easy to classify
all persons evincing conspicuous differences as physically "defective" and sociologically "deviant."
Such classifications represent no more than the vestiges of the more blatant biases of earlier societies.
tenBroek & Matson, supra note 11, at 813.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
ception by able-bodied '8 individuals that disabled persons do not have
the ability to offer rewarding contributions to the community through social interaction. 9 The fact that most associations between disabled and
able-bodied persons are defined as charitable is a clear indication of the
extent to which the disparate expectations are culturally recognized. 2"
The image of inferiority historically 2 ' projected upon disabled individuals is directly attributable to the traditional practice of segregating them
from able-bodied persons.1 2 Yet disabled groups have been politically
18. The term "able-bodied" refers to the class of individuals who are neither physically nor
mentally disabled.
19. See Karst, Foreword, Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L.
REv.I, 9-10 (1977). People select the individuals with whom they desire to interact on the basis of
qualities of social attraction. A relationship is sought only if there is some anticipation that it will be
intrinsically rewarding. The stereotyped beliefs about disabled persons and their lack of power in
social relations are, therefore, interrelated. R. ScoTt, THE MAKING OF BLIND MEN 35 (1969). See
generally P. BLAU, EXCHANGE AND POWER IN SociAL LIFE (1964); G. HOMANS, SocIAL BEHAVIOR
-ITS
ELEMENTARY FORMS (1961).
20. See tenBroek & Matson, supra note 11, at 814. The repugnance that many disabled persons
feel toward the classification of their group as charity cases is conveyed by the slogan "you gave us
your dimes, now give us our rights." Id. See R. ALLEN, LEGAL RIGHTS OF THE DISABLED AND THE
DISADVANTAGED 3-4 (1969).
21. In ancient Greece, physically and mentally disabled children were abandoned in isolated
areas of the countryside to die. Even progressive Athenians prescribed death for deaf offspring,
reportedly with the approval of Plato and Aristotle. See Burgdorf & Burgdorf, supra note 13, at
883-84. During the Middle Ages, disabled persons were either imprisoned or driven to roam the
woodlands. Id. at 884.
In this country, Charles Darwin's teachings of "survival of the fittest" fostered hostility toward
any individual deemed socially deficient. Many disabilities were thought to be transmitted genetically. Mentally disabled individuals were especially held in contempt since they were stereotyped as
promiscuous, and therefore more likely to reproduce. See id. at 887. Drastic measures were thought
to be necessary, and legislation was introduced in various states calling for restrictions on the right to
marry, the removal of defective genes through controlled breeding, and permanent segregation for all
disabled individuals. Id. Many of these proposals were adopted. See S. DAVIES, THE MENTALLY ILL
IN SocIETY 42-48 (1959); N. KrrrRIE, THE RIGHT To BE DIFFERENT 56-58 (1971).
Federal courts have judicially recognized the historical pattern of discriminatory treatment afforded
disabled persons. See Halderman v. Pennhurst State School & Hosp., No. 74-1345, slip op. at 8-9
(E.D. Pa. Dec. 23, 1977) (mentally disabled must be afforded minimally adequate habilitation);
Harrison v. Michigan, 350 F. Supp. 846, 849 (E.D. Mich. 1972) (declaring the specific action moot,
and indicating that if a state law remedying the situation had not been passed, the court would have
ruled that the pattern of failure to provide public education for the handicapped, "the state's most
misfortuned citizens," was discriminatory and a denial of equal protection); Pennsylvania Ass'n of
Retarded Children v. Pennsylvania, 343 F. Supp. 279, 293-96 (E.D. Pa. 1972) (considering due
process and equal protection rights of retarded children in public education, and noting that summary
treatment of retarded children is immediately suspect because of the stigma that society attaches to
the label of mental retardation). See also Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923).
22. Disabled persons have been encouraged to interact only with others of the same class. See
Halderman v. Pennhurst State School & Hosp., No. 74-1345, slip op. at 9-10 (E.D. Pa. Dec. 23,
1977). This segregation has perpetuated the idea that disabled individuals are inferior. Additionally,
observations by able-bodied persons cause disabled individuals to be aware of what others consider
1977]
NONDISCRIMINATION IN EMPLOYMENT
weak and unable to coalesce as a potent force to actively change these
23
perceptions.
Discriminatory activities effectively, if often unconsciously, reduce the
chances of disabled individuals to lead satisfying lives. 24 Disabled persons often find themselves trapped in an "approved disabled role" and
find that their behavior becomes organized around this role. Since they
do not experience the beneficial feedback normally encountered in daily
social intercourse, disabled persons tend to be socially immature and to
become distrustful, dejected, confused, and hostile. 25 Their major concern may become "acceptance" 26 and it is not surprising that disabled
individuals attempt to "pass as normal" if their handicap is not too severe. 27
The general pattern is reflected in the area of employment discrimination. Although architectural barriers play an important role in restricting
an inferior condition. This causes disabled persons to internalize the idea that they are, indeed,
inferior. See E. GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTrY 7 (1963); Karst,
supra note 19, at 6-8. Stigma terms, such as "cripple" are still commonly verbalized as a source of
metaphor and imagery, without thought to their actual definitions. Thus, a wide range of imperfections are imputed on the basis of a single impairment. Id. at 5, 115. Cf. G. ALLPORT, THE NATURE
OF PREJUDICE (1958) (the analysis of the roots and causes of prejudice, its characteristics, and
methods to control its destructiveness).
23. More than any other minority group, individuals with handicaps have been affected by
policy decisions at every level of government which are developed all too frequently without
their continued participation. Until this Nation has the foresight to include in all of its planning
the need to make all areas of society accessible and usable to individuals with handicaps, they
will continue to be excluded and will have little or no opportunity to achieve their basic
human right of full participation in life and society.
S. REP. No. 1297, supra note 12, at 34.
24. See SAiu:os-RoTHscHJ.D, THE SOCIOLOGY AND SOCIAL PSYCHOLOGY OF DISABILITY AND REHABILITATION
110-1i (1970).
25. Since communication is vitally important to a healthy functioning mind, the refusal on the
part of able-bodied persons to interact with disabled individuals leads to chronic emotional suffering.
Feelings of insecurity result in a serious inferiority complex. E. GOFFMAN, supra note 22, at 13. See
also H. PERRY, M. G~AvEL & M. GIBBONS, CLNICAL STUDIEs INPSYCHIATRY 145 (1956).
26. The able-bodied too often fail to give the disabled the respect that the uncontaminated aspects
of their social identity would appear to warrant. The disabled then acquiesce in this denial because
they attribute it to their disabilities. See Farina & Ring, The Influence of Perceived Mental Illness on
Personal Relations, 70 J. ABNORMAL PSYCH. 47 (1965).
27. Achtenberg, "Crips" Unite to Enforce Symbolic Laws: Legal Aid for the Disabled: An Overview, 4 U. SAN. FERN. V.L. REv. 161, 164 (1975). It is the anticipation of rewards that causes many
disabled persons to attempt to pass as "normal" on some occasions. Disabled individuals develop
techniques that enable them to move past the initial hostility that they are likely to receive. For
example, many newly disabled persons balk at utilizing equipment designed to mitigate the "primary" impairment of some handicaps since such devices are viewed as "stigma symbols." E.
GOFFMAN, supra note 22, at 92. Many initiate social interactions on a very personal plane where
their disability will not be a critical factor, a process known as "breaking through." See Davis,
Deviance Disavowal: The Management of Strained Interaction by the Visibly Disabled, 9 SOC. PROB.
120, 127-30 (1961).
THE AMERICAN UNIVERSITY LAW REVIEW
[V/ol. 27:31
employment possibilities, 28 the most important single barrier lies in
employer attitudes. Qualified job applicants or employees often are rejected for positions or promotions solely because of the presence of a
disability. Many employers maintain blanket rules prohibiting the
employment of persons with certain disabilities for some or all positions.
Few employers have any procedures or standards to evaluate either an
individual's capacity and fitness to perform particular job tasks or the
extent to which a disability may interfere with a position. 29 Often medi-
cal examinations are given by company physicians who are untrained in
evaluating ability, unfamiliar with the specifics of various disabilities,
imbued with the same prejudices as the personnel department, and unguided by any job-related criteria. 30 Applicants rarely are permitted to
present evidence to refute the presumption or the decision that they are
incapable of performing a job, and most employers establish no avenue
28. The HEW regulation prohibits recipients of federal funding from excluding handicapped persons from their programs and activities because of the inaccessibility or disutility of program
facilities. 42 Fed. Reg. 22,681 (1977) (to be codified in 45 C.F.R. § 84.21). The regulation recognizes the continuing obligation on the part of employers under section 504 to insure that all immobile
persons who are physically disabled in any way are afforded a meaningful opportunity to engage in
remunerative occupations under federally assisted programs. See 29 U.S.C. § 794 (Supp. V 1975)
See also Note, Equal Employment and the Disabled. A Proposal, 10 COLUM J. L. & Soc. PROB.
457, 488 (1974) [hereinafter cited as Equal Employment].
Section 502 of the Rehabilitation Act of 1973 created the Architecture and Transportation Barriers
Compliance Board as a mechanism for enhancing the ability of handicapped persons to integrate
themselves into productive positions in society. 29 U.S.C. § 792 (Supp. V 1975). The HEW regulation is intended to meet the purposes of both sections 502 and 504 of the Rehabilitation Act, and to
create an additional sanction in order to hasten compliance by employers. O'Neill, Discrimination
Against HandicappedPersons:The Costs, Benefits, and Inflationary Impact of Implementing Section
504 of the Rehabilitation Act of 1973 Covering Recipients of HEW FinancialAssistance, 41 Fed.
Reg. 20,312 app. at 20,319-20 (1976) [hereinafter cited as Implementing Section 504].
The regulation establishes two standards for program accessibility in structures-one for new construction and for alteration, 42 Fed. Reg. 22,681 (1977) (to be codified in 45 C.F.R. § 84.23), and
one for existing buildings, 42 Fed. Reg. 22,681 (1977) (to be codified in 45 C.F.R. § 84.22). In
addition, a recipient of government funds must operate each of its programs so that when the programs are taken as a whole they appear readily accessible to handicapped
persons. 42 Fed. Reg. 22,681 (1977) (to be codified in 45 C.F.R. § 84.22(a)).
The subject of architectural barriers, while outside the scope of this article, provides valuable
background material. See generally Com1moima GENERAL OF TE UNrTED STATES, REPORT TO CONGREss: FUmm AcnoN NEEDED To MAKE ALL BuuI
,s ACCESSEBLE TO THE PHYs ALY HMDICAPPED (1975); NATIONAL CONFERENCE ON REIIABILrrAT[oN OF THE DISABLED & DISADVANTAoED, THE
GoAL Is MOBILITY (1969); Farber, The HandicappedPlead For Entrance-WillAnyone Answer? 64
Ky. L.J. 99 (1975); tenBroek, The Right to Live in the World: The Disabledand the Law of Torts,
54 CALiF. L. Ray. 841, 843 (1966); Note, The Forgotten Minority: The Physically Disabled and
Improving Their PhysicalEnvironment, 48 CQ.-KNr L. REV. 215 (1971).
29. See Note, Abroad in ihe Land: Legal Strategies to Effectuate the Rights of the Physically
Disabled, 61 GEO. L.J. 1501, 1512-13 (1973) [hereinafter cited as Abroad in the Land].
30. See notes 184-270 & accompanying text infra.
1977]
NONDISCRIMINATION IN EMPLOYMENT
of appeal or review by an impartial decisionmaker. 31 Employers continue to fear that disabled workers will be unable to perform,3 2 despite
the results of numerous studies demonstrating that in nearly all occupations they perform as well as or better than able-bodied workers. 3 3
Exclusions due to this systematic discrimination have a significant detrimental effect upon societal expectations and evaluations of disabled
classes. It is therefore difficult for disabled individuals to acquire the
financial resources necessary to support themselves or to participate fully
in the daily activities of society. 34 In addition, a disabled person has the
same inherent need for an occupation as an able-bodied individual. 35 A
person's job holds an important place in American society and, as an
institution, yields more than monetary compensation. Work becomes a
form of social identity, an escape from boredom, and a source of happiness. 3 6 For these reasons, the integration of disabled persons into the
existing employment structure of this country is imperative.
II.
THE LEGISLATIVE RESPONSE
A.
Early Efforts
Ironically, it was the perception of disabled persons as a "more deserving" minority that led to congressional action before aid to other
minorities was contemplated. 37 Initially, Congress became interested in
31. The lack of procedures for review of arbitrary judgments in the title VII context has frequently been noted by the Equal Employment Opportunity Commission. See EEOC Dec. No. 720703 [1973] EEOC ComWL. MA. (CCH) 6291 (decided Aug. 6, 1971); EEOC Dec. No. 71-1531,
[1973] EEOC CoaPL. MAN. (CCH) 6227 (decided Mar. 30, 1971).
32. See Rickard, Triandis, & Patterson, Indices of Employer Prejudice Toward Disabled Applicants, 47 J. APPLED PSYCH. 52 (1963); Abroad in the Land, supra note 29, at 1513; Equal Employment, supra note 28, at 458 n.6.
33. The results of several studies are summarized in Lalenik, Myths about Hiring the Physically
Handicapped, 2 JOB SAFETY & HEALTH 9 (Sept. 1974). See also I. WnSON, J. RICHARDS & D.
BRcImN,
DISABLED VETERANS OF THE VIETNAM ERA: EMPLOYMENT PROBLEMS AND PRoSPECTs
156
(1975).
34. Abroad in the Land, supra note 29, at 1512-13.
35. Since individuals are identified by their occupations, disabled persons with no career feel that
they have no identity. See A. LEVENSTEIN, WHY PEOPLE WORK 132-33 (1962). One study has
documented a significant decline in an individual's occupational identity following his discharge from
a mental hospital. Employment of ex-patients is hindered because of the stigma such individuals feel.
See Miller & Dawson, Effects of Stigma in Re-Employment of Ex-Mental Patients, 49 MENTAL
HYGiENE 281 (1965).
36. G. F DMANN, THE ANATOMY OF WORK 122-28 (1961). See F. HERZBERG, B. MAUSNER, &
B. SNYDERtMAN, THE MOTrVATION TO WORK (2d ed. 1959).
37. Historically, it has been presumed that disabled individuals should be dependent upon the
charity of others. During the Middle Ages they were the only "legitimate" mendicants, and were
given an equivalent legal standing. tenBroek & Matson, supra note 11, at 809-10.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
the needs of disabled World War I veterans. These first proposals were
directed at "soldier rehabilitation." Although bills introduced in 1917
and 1918 also contained provisions for the rehabilitation of industrially
disabled workers, Congress decided to proceed only with the veterans'
program.3 8 An increasing interest in the needs of those industrially disabled, however, led to the enactment of a larger scale vocational aid
program in 1920, when President Woodrow Wilson signed the
Smith-Fess Act.3 9 The program offered limited training, counseling, and
placement services for physically handicapped persons. 40 Approximately
41
500 handicapped individuals were rehabilitated in the first year.
The program became permanent with the passage of the Social Security
Act in 1935,42 in which Congress authorized annual appropriations.
Under amendments adopted in 1943, 4 8 Congress extended services to
the mentally ill, the mentally retarded, and made significant changes in
the concept of rehabilitation. "Vocational rehabilitation" and "vocational
rehabilitation services" were defined as "any services necessary to render
a disabled individual fit to engage in a remunerative occupation." 44
Other major amendments to the Act in 1954, 45 1965,46 and 1968 47 increased federal financial support, enlarged the target population, and expanded the scope of available services. The Rehabilitation Act of
1973 48 followed this pattern. It legislated a priority for the "most severely handicapped" in a provision for vocational rehabilitation services 49 and added a new dimension - due process for rehabilitation
clients. 5 0
This country's sixty-year commitment to rehabilitation underlines the
present move toward specific civil rights guarantees for disabled persons.
38. S. REP. No. 318, 93d Cong., 1st Sess. 7 (1973), reprinted in [1973] U.S. CODE CONG. &
AD. NEWS 2076, 2082 [hereinafter cited as S. REP. No. 318].
39. Pub. L. No. 66-236, 41 Stat. 735 (1920) (repealed 1973).
40. S. REP. No. 318, supra note 38, at 7.
41. 119 CoNG. REc. 18,128 (1973) (remarks of Sen. Perkins).
42. Pub. L. No. 74-271, § 1001, 49 Stat. 620 (1935)(current version 42 U.S.C. §§ 1381-1382
(1970 & Supp. V 1975).
43. Vocational Rehabilitation Amendments of 1943, Pub. L. No. 78-113, 57 Stat. 374 (repealed
1973).
44. Id. § 10.
45. Vocational Rehabilitation Amendments of 1954, §§ 2-5, Pub. L. No. 83-565, 68 Stat. 652
(repealed 1973).
46. Vocational Rehabilitation Amendments of 1965, §§ 2-13, Pub. L. No. 89-333, 79 Stat. 1282
(repealed 1973).
47. Vocational Rehabilitation Amendments of 1968, Pub. L. No. 90-391, 82 Stat. 297 (repealed
1973).
48. Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701-794 (Supp. V 1975)).
49. Id. §§ 721(a)(5), 741(a), 750(a), 762(a), 772(b), 774(b).
50. See id. § 721.
1977]
NONDISCRIMINATION IN EMPLOYMENT
What began as a charitable proposition has evolved into a national goal
nothing less than the highest possible level of participation for disabled persons in societal activities and for their integration into the com51
munity.
This goal was first tested in the area of employment discrimination.
Rehabilitation counselors attempted to persuade employers to hire dis-
abled workers by publicizing the capabilities of their clients. It soon became apparent, however, that business recalcitrance was not so easily
overcome. In many instances, employer antagonism was bolstered by
legal barriers to the employment of disabled persons. 52 The new commitment to the policy of integration thus required further legislative action.
In response to the pervasiveness of employer discrimination against
disabled individuals, state legislatures began adopting policy statements. 53
Commissions for furthering fair employment practices 54 and human
51. See tenBroek, supra note 28, at 843. Professor tenBroek documents the courts' failure to
incorporate this integrationist policy into the tort concepts of duty and reasonableness which restaurants, common carriers and similar entities owe to the public. Id.
52. Id. at 846. Clients of rehabilitation agencies often feel that agency personnel lack confidence
in the ability of disabled persons to meet basic employment qualifications. See Mermey, Denying the
Handicapped: The Trap of Hospitalitis, Village Voice, Jan. 18, 1973, at 1, col. 1. Agencies for the
visually disabled especially have a reputation for viewing blindness as an extremely severe disability
and blind individuals as difficult to rehabilitate. Agency personnel ignore how individuals themselves
feel about their disabilities, and what they believe they can achieve. See R. Scowr, 'ia MAKIG OF
BLjND MEN, 73-74 (1969).
53. A policy statement is a notation within a statute stating that nondiscrimination is the official
policy of the state. See, ALASKA STAT. §§ 18.06-.010 (1972); CAL. Gov'T. CODE § 3550 (West
1966); CAL. LAB. CODE § 1411 (West 1971); CoLO. R . STAT. § 24-34-801 (1973); DEL. CODE tit.
16, §§ 9501-9506 (1974); D.C. Code §§ 6-1501 to 6-1508 (Supp. 1977); FLA. STAT. § 413.08
(1976); HAw. Re. STAT. §§ 347-1 to 18 (1976); IDAHo CODE § 56-701 (1976); IND. CODE § 16-7-5-1
(1973); IowA CODE § 601D.1 (1975); KAN. STAT. § 39-1101 (1973); LA. REv. STAT. ANN. § 46-1951
(West 1977); ME. REv. STAT. tit. 17, §§ 1311-1316 (Supp. 1977); MD. ANN. CODE art. 30, § 33
(1976); MINN. STAT. §§ 363.12, 356C.01 (1966); Miss. CODE ANN. §§ 43-3-1 to -93, 43.6-1 to -15
(1972 & Supp. 1977); NEB. RaV. STAT. §§ 20.126-.B, 28.478 (1974); N.H. Rav. STAT. ANN. §§
263.58, 167c, 1-5 (1966 & Supp. 1975); N.M. STAT. ANN. §§ 12-26-1 to -13 (1976); N.C. GEN.
STAT. §§ 168-1 to -10 (1966 & Supp. 1977); N.D. CEN'r. CODE §§ 25-13-01 to -05 (1970); OR. REV.
STAT. § 659.405 (1975); R.I. GEN. LAWS §§ 25-2-13, 28-5-3 (1976); TENN. CODE ANN. §§ 14-627 to
-638 (1973); UTAH CODE ANN. § 26-28-1 (1976); WASH. REV. CODE §§ 70.84.010 -.900 (1975); W.
VA. CODE §§ 5-15-1 to -8 (1971); Wyo. STAT. §§ 42-35.1 to .4. (1975).
54. A fair employment practices commission is a legislatively established body specifically authorized to investigate, review, and resolve complaints of discrimination in hiring, dismissal, and
terms and conditions of employment. Judicial review of decisions by such commissions is allowed.
See CAL. LAB. CODE §§ 1410-1433 (West 1971); HAw. REV. STAT. §§ 378-1 to -10 (1976); ILL.
REV. STAT. ch. 48, §§ 851-867 (1966); MASS. GEN. LAws ANN. ch. 149, § 24K (West Supp. 1977);
Nan. REV. STAT. §§ 48.1101-.1125 (1974); NE. REV. STAT. §§ 613.210 to .430 (1973); OR. REv.
STAT. §§ 659.400 to .435 (1975); Wisc. STAT. §§ 111.31 to .37 (1973).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
rights were established. 5 5 Laws regarding equal opportunity, 56 and civil
service employment, 5 7 were passed, and white cane laws 58 were
55. A human rights or civil rights commission is a legislatively established body dealing with all
facets of employment discrimination, but also resolving complaints of unlawful discrimination in
areas such as housing, public accommodations, and education. Decisions of such commissions are
also subject to judicial review. See ALASKA STAT. §§ 18.80.010 - .300 (1976); CONN. GEN. STAT.
ANN. §§ 31-122 to -128 (West Supp. 1977); IDAHO CODE §§ 67-5901 (1976); IND. CODE § 22-9-1-4
(1973); IOWA CODE §§ 601A.1 -. 17 (1975); KAN. STAT. §§ 44-1001 to -1038 (1973); KY. REV. STAT.
ch. 207 (1972); ME. REV. STAT. tit. 5 §§ 4551-4613 (Supp. 1973); MD. ANN. CODE art. 49B §§ 1-20
(1976); MICH. CONST. art. 5, § 29 (1967); MINN. STAT. §§ 363.01-.14 (1966); MONT. REV. CODES
ANN. §§ 64-301 to -312 (Supp. 1977); N.H. REv. STAT. ANN. §§ 354-A:I to :14 (Supp. 1977); N.J.
REV. STAT. §§ 10:5-1 to -28 (1976); N.M. STAT. ANN. § 4-33-1 to -13 (1976); N.Y. EXEc. LAW §§
18-290 to -297 (McKinney Supp. 1977); OHio REv. CODE ANN. §§ 4112.01-.99 (1973); 43 PA. CONS.
STAT. ANN. §§ 951-963 (Purdon 1964); R.I. GEN. LAWS §§ 28-5-1 to -39 (1976); WASH. R~v. CODE
§§ 49.60.010 - .330 (1976); W. VA. CODE §§ 5-11-1 to -16 (1971).
56. An equal opportunity law is essentially a statute mandating nondiscrimination. Such a law
may provide for administrative enforcement, a criminal penalty, or a private cause of action. See,
ILL. ANN. STAT. ch. 38, §§ 65-21 to -31 (Smith-Hurd 1977); 1976 Ky. Rev. Stat. & Rules Serv.
578; 1976 Tenn. Pub. Acts ch. 4571; TEx. REV. CIV. STAT. ANN. art. 4419e (Vernon 1976); VT.
STAT. ANN. tit. 21 § 498 (Supp. 1977); VA. CODE § 40.1-28.7 (1976). See note 59 infra.
57. A civil service statute mandates nondiscrimination by the state civil service system. See,
GA. CODE § 40-2201 (1975); HAW. REv. STAT. § 76-1 (1976); IDAHO CODE §§ 56-707, 59-1025
(1976); MD. CODE ANN. art. 64A, § 12 (1976); Minn. Gov't Code of Fair Practice (adopted Sept. 1,
1973); MONT. REV. CODES ANN. § 64-317 (Supp. 1977); NEB. REv. STAT. § 128-15.3 (1974); OKLA.
STAT. tit. 74, § 818 (1976); S.C. CODE § 71-300.56 (1977); UrAH CODE ANN. § 26-28-3 (1953); VA.
CODE § 63.1-171.6 (1973); Wts. STAT. §§ 26.14, 63.32 (1973).
58. Although white cane laws are designed primarily to define the rights of blind persons, particularly in relation to the use of white canes and guide dogs, in some states the statutes'have been
broadened to include other disabilities, and sometimes cover specific types of employment discrimination. See ALA. CODE tit. 3, § 6(1), tit. 36, § 58(53) (1975); ALASKA STAT. §§ 18.06-.010 (1972);
ARIz. REV. STAT. §§ 24-411, 28-798, 34-402 to -408 (1972); ARK. STAT. ANN. §§ 75-631, -632
(1947), 82-2901 to -2907 (1976); CAL. Civit CODE §§ 54-55.1 (West 1954); COLO. REv. STAT. §
18-13-107 (1973); CONN. GEN. STAT. ANN. § 53-211 (West 1960); DEL. CODE tit. 16, §§ 9501-9506,
tit. 21, § 2134 (1974); D.C. Code §§ 6-1501 to -1508 (Supp. 1977); RA. SrAT. § 413.08 (Supp.
1977); GA. CODE §§ 79-601, 79-9901 (1975); HAW. REV. SmAT. §§ 347-1 to -18 (1976); IDAHO CODE
§§ 56-701 to -707, 18-5810 to -5812 (1976); ILL. ANN. STAT. ch. 23, §§ 3361-3366 (SmithHurd. Supp. 1977); IND. CODE § 35-29-6-1 (1973); IOWA CODE §§ 321.332-.334 (1966);
KAN. STAT. § 8-1542 (Supp. 1977); Ky. REv. STAT. § 189.575 (1971); LA. REv. STAT. § 32:217
(1963); ME. REV. STAT. tit. 17, 88 1311-1316 (West Supp. 1977); MD. ANN. CODE art. 661/2, § 194
(1976); MASS. GEN. LAws ANN. ch. 90, § 14A (West Supp. 1977); Mica. COw. LAws §§ 28.770(l)-(3)
(1972); MiNN. STAT. § 169.202 (1966); Miss. CODE ANN. §§ 43-6-1 to -15 (Supp. 1977); MO. ANN.
STAT. §§ 304.080-.110 (Vernon 1972); MONT. REV. CODES ANN. §§ 71-1301 to -1309 (Supp. 1977);
NEB. REV. STAT. §§ 20-126 to -131, 28-478 (1974); NEV. REV. STAT. § 426.510 (1973); N.H. REv.
STAT. ANN. §§ 263-58, 167-C:I-5 (1964 & Supp. 1975); N.J. REV. STAT. §§ 10:5-29, -30 (1976);
N.M. STAT. ANN. §§ 12-26-1 to -13 (1976); N.Y. VEH. & TRAF. LAW § 1153 (McKinney
1970); N.C. GEN. STAT. §§ 20-175.1 to .3 (1976); N.D. CENT. CODE §§ 25-13-01 to -05 (1970);
Omo REV. CODE ANN. § 4511.47 (Page 1973); OKLA. STAT. tit. 7, §§ 11-13, 19.1, 19.2 (1966); OR.
REV. STAT. §§ 346.610, 483.214, 487.3 (1975); 75 PA. CONS. STAT. § 1039 (Supp. 1977); R.I.
GEN. LAWS §§ 31-18-13 to -16 (1976); S.C. CODE §§ 43-33.10 to .70 (1977); S.D. COMPILaD LAWS
ANN. 88 32-27-6 to -8 (1976); TENN. CODE ANN. §§ 59-880, -881 (1973); TEx. REv, Civ. STAT.
ANN. art. 4419e, 6701e (Vernon 1976); UTAH CODE ANN. §§ 41-6-80.1 (1953); VT. STAT. ANN. tit.
21, § 498 (Supp. 1977); VA. CODE §§ 63.1-171.1 to -171.7 (1973), 46.1-237 (1974); WASH. REV.
19771
NONDISCRIMINATION IN EMPLOYMENT
adopted. Legislative remedies including private causes of action 59 and
criminal penalties were created. 60 In addition, federal statutes were
passed to aid particular classes of disabled persons.6 1
B.
Section 504
Title V of the Rehabilitation Act of 1973 62 extends the federal policy
of nondiscrimination to disabled persons. The Act transcends and
strengthens the existing body of federal and state law and represents the
most significant legislative step taken thus far to guarantee them equal
employment. Title V of the Act mounts a tripartite attack on employment
CODE §§ 70.84.010 to .900 (1975); W. VA. CODE §§ 5-15-1 to -8 (1971); Wisc. STAT. § 346.26
(1973); Wyo. STAT. §§ 42-35.1 to .4 (1975).
59. A private cause of action is a legislatively created right to bring a suit in state court for
unlawful discrimination. See ALASKA STAT. §§ 18.80.145, 22.10.020(c) (1972); 1976 Ky. Rev. Stat.
& Rules Serv. 578 § 12; ME. REv. STAT. tit. 5 §§ 4611-4613 (Supp. 1977); MINN. STAT. § 363.14
(1966); MONT. REV. CODES ANN. § 64-329 (Cum. Supp. 1977); NEV. REv. STAT. § 613.420 (1973);
N.Y. EXEC. LAW § 18-297(9) (McKinney Supp. 1977); 43 PA. CONS. STAT. ANN. § 962(c) (Purdon
1964); TEX. REV. CIV. STAT. ANN. art. 4419e, § 6(b) (Vernon 1976); VT. STAT. ANN. tit. 21, §
498(b) (Supp. 1977); VA. CODE § 40.1-28.7 (1976); WiSc. STAT. § 346.26 (1971).
60. A criminal penalty is provided in some states, either for the act of discrimination itself or the
violation of a commission order. See CAL. LAB. CODE § 1430 (West 1971); D.C. Code § 6-1506 to
-1508 (Supp. 1977); FLA. STAT. § 413.08(5) (1975); HAW. REv. STAT. § 378-10 (1976); KAN. STAT.
§ 44-1013 (1973); 1976 Ky. Rev. Stat. & Rules Serv. 578 § 13; MASS. GEN. LAWS ANN. ch. 272, §
98 (West 1968); MINN. STAT. ANN. § 363.101 (Supp. 1977); MoNT. REV. CODES ANN. § 64-312
(Supp. 1977); NEB. REV. STAT. § 48.1123 (1974); N.H. REV. STAT. ANN. § 354-A:12 (Supp. 1975);
N.J. REV. STAT. § 10:5-26 (1976); N.Y. EXEC. LAW § 18-299 (McKinney Supp. 1977); OHIO REV.
CODE ANN. § 4112.99 (Page 1973); 43 PA. CONS. STAT. ANN. § 961 (Purdon 1964); TEx. REv. Ctv.
STAT. ANN. art. 4419e, § 6(a) (Vernon 1976); WASH. REV. CODE § 49.60.310 (1975); W. VA. CODE
§ 5-11-14 (1971).
61. See Developmentally Disabled Assistance and Bill of Rights Act, Pub. L. No. 94-103, §
303, 89 Stat. 408 (1975) (codified at 42 U.S.C. §§ 6001 note, 6005 (Supp. V 1975)) (requirement
that each recipient of funds under the Act take affirmative action to employ and advance disabled
persons); Randolph-Sheppard Act Amendments of 1974, Pub. L. No. 93-516, 88 Stat. 1623 (codified
at 20 U.S.C. §§ 107-107f (Supp. V 1975)) (amending 20 U.S.C. §§ 107-107f (1970)) (blind vendors
licensed by state agencies must be given priority in operating facilities on federal property); Vietnam
Era Veterans' Readjustment Act of 1974, Pub. L. No. 93-508, tit. IV, § 402, 88 Stat. 1593 (codified
at 38 U.S.C. § 2012 (Supp. V 1975)) (requirement that federal agencies and employers holding
federal contracts of $10,000 or more take affirmative action in the hiring and advancement of veterans of the Vietnam era and disabled veterans); Wagner-O'Day Act of 1971, Pub. L. No. 92-28, § 1,
85 Star. 77 (codified at 41 U.S.C. §§ 46-48c (Supp. V 1975)) (establishment of a committee to
encourage the purchase of goods and services from the blind and severely disabled persons by the
federal government); Education Amendments of 1972, Pub. L. No. 92-318, tit. IX § 904, 86 Stat.
375 (codified at 20 U.S.C. § 1684 (Supp. V 1975)) (nondiscrimination against blind in admissions);
Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 523 (codified at 5 U.S.C. § 7153 (1970))
(prohibition of discrimination on the basis of physical handicap in employment in the federal civil
service).
62. Pub. L. No. 93-112, tit. V, 87 Stat. 394 (codified at 29 U.S.C. §§ 791-794 (Supp. V
1975)). See Halderman v. Pennhurst State School & Hosp., No. 74-1345, slip op. at 68 (E.D. Pa.
Dec. 23, 1977).
THE AMERICAN UNIVERSITY LAW REVIEW
discrimination. 63
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Section 504 of that title broadly prohibits the exclusion
of qualified handicapped individuals from participation in any program or
activity receiving federal financial assistance and from discrimination
within such programs. 64 Complementing section 504 are sections
501,65 which proscribes discrimination against disabled employees of
the federal agencies, and 503,66 which requires that employers who
contract with the federal government for $2,500 of business take affirmative action to hire disabled persons.
With the passage of section 504, Congress announced its goal of
"complete integration" of disabled persons into society. 67 The rationale
63. 29 U.S.C. §§ 791, 793, 794 (Supp. V 1975).
64. Id. § 794. According to Senator Harrison Williams, a co-sponsor of section 504, "[T]o be a
handicapped American is to be a victim not only of separate treatment, but of unequal treatment as
well." Oversight Hearings on Rehabilitation of the Handicapped Programs and the Implementation
of Same by Agencies under the Rehabilitation Act of 1973: Hearings Before the Subcomm. on the
Handicapped of the House Comm. on Labor and Public Welfare, 94th Cong., 2d Sess. 1502 (1976)
[hereinafter cited as Oversight Hearings]. Congress intended, in passing the legislation, to "bring the
force of the Federal Government to bear in remedying discrimination against handicapped persons."
Id. Senator Randolph noted during debate on section 504 that the provision constituted an attempt to
"expand the vistas of opportunity for the handicapped individuals." 119 CONG. REC. 24587 (1973).
Section 504 had its genesis in an abortive attempt by Congressman Charles Vanik to include the
handicapped within the strictures of title VI and title VII of the Civil Rights Act of 1964. See H.R.
12154, 92d Cong., 1st Sess., 117 CONG. REc. 45945 (1971); H.R. 10962, 92d Cong., Ist Sess., 117
CONG. RE c. 33884 (1971). Since title VII extends to "all persons" and implies substantive rights,
the possibility has been suggested that disabled persons may someday be brought within the protection of that statute. tenBroek, supra note 28, at 853. See also Comment, Potluck Protections for
Handicapped Discriminatees: The Need to Amend Title VII to Prohibit Discrimination on the Basis of
Disability, 8 LoY. Cmt. L.J. 814 (1977).
65. 29 U.S.C. § 791 (Supp. V 1975). In theory, section 501 strengthens present regulations
mandating nondiscrimination in federal agencies. See Civil Service Comm'n, Equal Opportunity
Without Regard to Politics, Marital Status, or Physical Handicap, 5 C.F.R. § 713.401 (1977). Section 501 establishes an Interagency Committee on Handicapped Employees to provide an overview of
the "hiring, placement, and advancement practices" regarding the hiring and promotion of disabled
persons by each agency of the executive branch. A regulation has been proposed for the enforcement
of section 501. 42 Fed. Reg. 46,541 (1977). This proposed regulation, however, falls short of the
remedy envisioned by section 501, and until a more comprehensive regulation is adopted, section 501
will likely be an ineffective means for significantly integrating disabled individuals into positions
within the federal government. See Ryan v. FDIC, [1977] 5 LA. REL. REP. (Fair Empl. Prac. Cas.)
1384, 1385 (D.C. Cir. Oct. 15, 1977) (Federal Deposit Insurance Corp. ordered to make available to
handicapped persons administrative processes for espousing handicap discrimination claims); McNutt
v. Hills, 426 F. Supp. 990, 1006-07 (D.D.C. 1977) (Dept. of Housing and Urban Development's
failure to enact affirmative action hiring policies on a department-wide basis determined to be an
essential part of the discrimination suffered by visually disabled plaintiff).
66. 29 U.S.C. § 793 (Supp. V 1975). Section 503 is being administered by the Office of Federal
Contract Compliance Programs in the Department of Labor. The Secretary of Labor has the power to
cancel present contracts or declare contractors or subcontractors ineligible for future contracts if they
are found guilty of discrimination under the Department of Labor regulation. See 41 Fed. Reg. 16,
147 (1976).
67. See 119 CONG. REc. 24566, 24589 (1973). See also White House Conference on Handicapped Individuals Act of 1974, Pub. L. No. 93-516, 88 Stat. 1631 (codified at 29 U.S.C. §§
19771
NONDISCRIMINATION IN EMPLOYMENT
of section 504 is that a disability is irrelevant to an individual's potential
to contribute to, or benefit from, those activities that the federal government assists. The section was consciously modeled on title VI of the
Civil Rights Act of 1964 1 (title VI) and title IX of the Education
Amendments of 197269 (title IX). Congress intended it to be enforced
in a manner similar to those statutes in order to provide a uniform federal
scheme against discrimination.7 0 Unlike its predecessors, section 504
contains no exemptions. 7 1 Nevertheless, precedents under those titles
should provide strong guidance for the application and enforcement of
section 504.
I.
THE HEW
REGULATION
It was the intention of Congress, if not its express statutory direction,
that a regulation be issued to implement section 504 through the creation
of administrative remedies. 7 2 After a long period of inaction, President
Ford issued an Executive Order on April 28, 1976, providing for a government-wide enforcement scheme of the section's mandate.7 3
The order directed the Secretary of the Department of Health, Education and Welfare to coordinate the goverment's efforts in implementing
the statute, to issue standards for defining the persons covered, and to
establish guidelines for determining the existence of discriminatory practices under section 504.74 The Executive Order also included specific
enforcement procedures and sanctions that were patterned after those of
5
title VI and title IX.7
701-730, 787 (Supp. V 1975)). "[lIt is essential that ... the complete integration of all individuals
with handicaps into normal community living, working, and service patterns be held as the final
objective"). Id. § 301(6) (codified at 29 U.S.C. § 701 note (Supp. V 1975)).
68. 42 U.S.C. § 2000d-3 (1970).
69. 20 U.S.C. §§ 1681-1686 (Supp. V 1975).
70. See 120 CONG. REc. 30551 (1974) (remarks of Sen. Stafford); S. REp. No. 1297, supra note
12, at 18-19.
71. Title VI exempts from its coverage some forms of employment discrimination, while section
504 does not. See 42 U.S.C. § 2000d-3 (1970). Title IX is restricted to federally assisted education
programs. 20 U.S.C. § 1681(a) (Supp. V 1975). Particular schools are exempted. Id. §
1681(a)(2)-(6). There are no such exemptions under section 504, which covers all federally assisted programs. But see notes 110-14 & accompanying text infra.
72. S. REP. No. 1297, supra note 12, at 39-40. Federal courts have recognized that Congress
intended speedy implementation of section 504 through a comprehensive set of regulations. See
Lloyd v. Regional Transp. Auth., 548 F.2d at 1277, 1282 (7th Cir. 1977); Cherry v. Mathews, 419
F. Supp. 922 (D.D.C. 1976).
73. Exec. Order No. 11,914, 3 C.F.R. 117 (1976).
74. Id.
75. Id.
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol. 27:31
HEW twice published drafts of regulation proposals for comment. On
May 17, 1976, HEW published a Notice of Intent to Issue Proposed
Rules to apply to all programs and activities funded by that department.7 6 This Notice included a series of questions concerning section
504, a draft of the proposed regulation, and an analysis of the potential
inflationary and economic impact of the regulation. 7 7 On July 16, 1976,
HEW issued a Notice of Proposed Rulemaking. 78 At the same time, a
federal district court in Cherry v. Mathews,7 9 ordered HEW to insure
that "no further unreasonable delays affect the promulgation of regulations under section 504." 80 Following these events, HEW held a series
of public meetings throughout the country to receive comments on regulation proposals. Approximately 850 written comments were received. 8 1
A final regulation, reflecting an analysis of these comments, was presented to then Secretary of HEW, David Mathews, on January 10,
1977.82 One week later, Secretary Mathews sent the final, but unsigned,
regulation to Congress and requested guidance as to whether it conformed
to congressional intent.8 3 On the same day, the court granted the plaintiffs' motion in Cherry v. Mathews for a temporary restraining order and
directed Secretary Mathews to cease any further delay in issuing the regulation.8 4 The order was stayed on January 19, by the Court of Appeals
for the District of Columbia until the government's appeal could be
heard.8 5 Newly appointed Secretary of HEW, Joseph Califano, rejected
the advice of his Office for Civil Rights staff,8 6 and further delayed the
implementation of the regulation by subjecting it to the analysis of an
intradepartmental task force. 87 The regulation was finally signed on
76. 41 Fed. Reg. 20,296 (1976).
77. Prepared pursuant to Exec. Order No. 11,821, 3 C.F.R. 926 (1975), reprinted in 12 U.S.C.
§ 1904 note (Supp. V 1975), the report documents "all significant costs and benefits, even if they
have no direct links to the prices of goods and services" that enter into the Consumer or Wholesale
Price Index. Thus, the focus is much broader than inflation impact. Implementing Section 504, supra
note 28, at 20,319 app.
78. 41 Fed. Reg. 29,548 (1976).
79. 419 F. Supp. 922 (D.D.C. 1976).
80. Id. at 924. Judge Smith chose to retain jurisdiction over the development of the regulation
rather than to set a deadline for the issuance of a final regulation under section 504. No appeal was
taken from the July 19, 1976 memorandum opinion.
81. Office for Civil Rights, HEW, Briefing Memorandum on section 504, at 1 [hereinafter cited
as Briefing Memorandum]; 42 Fed. Reg. 22,676 (1977).
82. Id.
83. Id. at 2.
84. Cherry v. Mathews, No. 77-0179 (D.D.C. Jan. 17, 1977).
85. Cherry v. Mathews, No. 77-1095 (D.C. Cir. Jan. 19, 1977).
86. Briefing Memorandum, supra note 81, at 4.
87. HEW Press Release (Feb. 17, 1977).
1977]
NONDISCRIMINATION IN EMPLOYMENT
April 28, 1977 88 and will be codified in part 84 of title 45 of the Code
of Federal Regulations.
The purpose of part 84 is to "effectuate section 504 of the Rehabilitation Act of 1973." 89 In accordance with this mandate, the regulation
prescribes specific requirements for nondiscriminatory employment practices of all recipients of federal financial assistance. The regulation does
not limit an employer's business judgment as to what qualifications
employees should possess. However, it clearly restricts the utilization of
disability as a factor in the hiring and selection process. 90 The principles
developed in the preceding analysis provide a framework for assessing
the potential effectiveness of the regulation for implementing the explicit
policy of integration mandated by section 504.
A.
Definitions
The introductory sections of the HEW regulation define its terms and
indicate when remedial and affirmative action and assurances of compliance are required. 9 1 The definitions in most cases constitute a
straightforward application of the statute. Certain definitions are important, particularly those dealing with "handicapped individuals" and
"federal financial assistance." 92
The Rehabilitation Act of 1973 originally defined "handicapped individual" as including only those persons who could reasonably be expected to benefit, in terms of employability, from the Act's vocational
rehabilitation services. 93 Congress felt that this definition was particularly troublesome as applied to section 504:
88. 42 Fed. Reg. 22,676 (1977) (to be codified in 45 C.F.R. §§ 84.1.99). Many groups of
disabled persons had feared that Secretary Califano would weaken significantly the regulation drafted
by the Office for Civil Rights. Nationwide demonstrations by such groups may have contributed to
the signing of the regulation in its present form. See N.Y. Times, Apr. 29, 1977, § 1, at 1, col. 1.
89. 42 Fed. Reg. 22,680-81 (1977) (to be codified in 45 C.F.R. § 84.11-.14).
90. The regulation's employment provisions generally follow the regulation implementing title IX
of the Education Amendments of 1972. 45 C.F.R. § 86 (1976). This regulation in turn follows the
Sex Discrimination Guidelines of the Equal Employment Opportunity Commission, 29 C.F.R. § 1604
(1976), created to implement title VII of the Civil Rights Act of 1964, and the regulation of the
Office of Federal Contract Compliance Programs, 41 C.F.R. § 60-20 (1976), created to implement
Executive Order 11,246, 30 Fed. Reg. 12,319 (1965), and Executive Order 11,375, 32 Fed. Reg.
14,303 (1967). See notes 68-71 & accompanying text supra. The section 504 regulation is also
consistent with that of section 503. 41 Fed. Reg. 16,147 (1976). See notes 63-66 & accompanying
text supra.
91. 42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. § 84.3).
92. Compare the definitions in 42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. §§
84.3(h), (j)) with Rehabilitation Act of 1973, 29 U.S.C. § 706 (Supp. IV 1974) and Rehabilitation
Act Amendments of 1974, 29 U.S.C. § 706(6) (Supp. V 1975).
93. Rehabilitation Act of 1973, 29 U.S.C. § 706(6) (Supp. IV 1974).
THE AMERICAN UNIVERSITY LAW REVIEW
[V/ol. 27:31
It was clearly the intent of the Congress in adopting ... Section 504
[nondiscrimination] that the term "handicapped individual" in [that]
section was not to be narrowly limited.
to the individual's potential
benefit from vocational rehabilitation services. ....
Such a test is irrelevant to the many forms of potential discrimination covered by Section
504.94
The 1974 amendments to the Rehabilitation Act changed this unworkable
definition. For the purposes of section 504, "handicapped individual"
was defined as "[A]ny person who (A) has a physical or mental impairment which substantially limits one or more of such person's major life
activities, (B) has a record of such an impairment, or (C) is regarded as
having such an impairment." 95 Congress' understanding of the definition of "handicapped individual" was expressed in the legislative history
of the 1974 amendment:
First, they are discriminated against when they are in fact, handicapped (this is similar to discrimination because of race and sex). Second, they are discriminated against because they are classified or
labeled, correctly or incorrectly, as handicapped (this has no direct
parallel in either race or sex discrimination, although racial and ethnic
factors may contribute to misclassification as mentally retarded).
Third, they are discriminated against if they are regarded as handicapped, regardless of whether they are in fact handicapped (this has a
parallel in race discrimination where a person is regarded as being of a
minority group even though, in fact, he or she is not). 6
Although the 1974 amendments were meant to emphasize that section
504 encompasses factors beyond employment discrimination, it is the
victims of employment discrimination who will benefit from the broader
protection of the revised definition.
"Physical impairment" is defined by the regulation as any disorder of
an enumerated "body system," such as the musculoskeletal or cardiovascular system, rather than by a listing of specific diseases or condi-
94. S. REP. No. 1297, supra note 12, at 16.
95. Rehabilitation Act Amendments of 1974, Pub. L. No. 93-516, § 111(a), 88 Stat. 1619
(codified at 29 U.S.C. § 706(6) (Supp. V 1975)). These provisions, "as clarifying amendments,
have cogent significance in construing Section 504." Lloyd v. Regional Transp. Auth., 548 F.2d
1277, 1285 (7th Cir. 1977). Cf. Red Lion Broadcasting Co., v. FCC, 395 U.S. 367, 380-84 (1969)
(use of amendment's language to construe statute consistently with fairness doctrine standards espoused by FCC).
96. S. REP. No. 1297, supra note 12, at 17.
1977]
NONDISCRIMINATION IN EMPLOYMENT
tions. 7 "Mental impairment" includes mental illness, mental retardation, and specific learning disabilities. 98 Other disorders that are variously characterized as mental, physical, or both are implicitly included. 99
A problem may arise if these definitions are read in such a way that
protection depends upon a finding, or at least a record or perception, of
some medically recognized physical handicap. 10 0 It is thus important
that the definitions be interpreted to include within the protection of the
statute, individuals with disabilities that have no medical etiology, such
as behavioral disorders.
97. 42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. § 84.3(j)(2)(i)(A)).
98. Id. § 84.30j)(2)(i)(B).
99. The need for such inclusion is demonstrated by the controversy concerning whether drug
addicts and alcoholics fall within the class of handicapped persons protected by section 504. The
Office for Civil Rights of HEW has always taken the position that "while it is not clear whether drug
abuse or alcohol abuse can be described as either a physical impairment or a mental impairment, ...
it does seem to fall clearly within the statutory definition .... Oversight Hearings, supra note 64,
at 1513-14 (remarks of John Wodatch, Acting Director of Handicapped Discrimination Branch,
HEW). Former Secretary Mathews accepted the recommendation of the Office for Civil Rights to
include drug and alcohol addicts within the protection of the statute. See Briefing Memorandum,
supra note 88, at 2-3. See also Connecticut Gen. Life Ins. Co. v. Department of Indus., Lab., &
Human Relations, [1976] 13 LAB. RE.L. REP. (Fair Empl. Prac. Cas.) 1811, 1812 (Wis. Cir. Ct.
Nov. 29, 1976) (alcoholism constitutes handicap within meaning of Fair Employment Act). Evidently, however, Secretary Califano was unconvinced, and he requested an advisory opinion on the
matter from the Department of Justice. The advisory opinion agreed with the recommendation of the
Office for Civil Rights. See 42 Fed. Reg. 22,686 (1977).
Those who opposed the inclusion of drug and alcohol addicts argued that such individuals are
protected by other statutes. Laws do mandate nondiscrimination by health care facilities toward drug
and alcohol addicts. See, e.g., Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act Amendments of 1974, Pub. L. No. 93-282, § 121, 88 Stat. 130
(codified at 42 U.S.C. § 4581 (Supp. V 1975)); Drug Abuse Office and Treatment Act of 1972, Pub.
L. No. 92-255, § 407, 86 Stat. 78 (codified at 21 U.S.C. § 1174 (Supp. V 1975)). These laws do not
protect drug and alcohol addicts from employment discrimination. Funds devoted to treatment and
counseling of alcoholics and addicts by these statutes are wasted unless such individuals are granted
the opportunity to vie for job openings on an equal basis. Note, Employment DiscriminationAgainst
RehabilitatedDrug Addicts, 49 N.Y.U.L. REv. 67, 69 (1974).
The significance of maintaining a broad definition of disability is that it precludes arbitrary exclusions of individuals requiring the protection of section 504. Society has traditionally shielded its
disabled population from the need to search for work. The stereotype of a disabled person as one
who is unable to engage in remunerative occupations is so ingrained in the minds of policymakers
that disabled persons are excluded from the usual requirement that an individual must at least attempt
to find a job before becoming eligible for public assistance. The fact that even the most severely
disabled individuals, including drug addicts and alcoholics, must be viewed as capable of moving
toward the status of employability is generally ignored by the community. See Liebman, The Definition of Disability in Social Security and Supplemental Security Income: Drawing the Bounds of Social
Welfare Estates, 89 HARv. L. REv. 833, 863 & n.105 (1976).
100. Individuals are often subjected to discrimination on the basis of classifications that do not
readily lend themselves to medical labels. Employers rarely have the medical resources available to
identify the nature of their employees' disabilities. See Comments of the Children's Defense Fund on
Proposed HEW Regulation for section 504, at 8 (Sept. 14, 1976) [hereinafter cited as CDF Comments].
THE AMERICAN UNIVERSITY LAW REVIEW
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HEW properly interprets the definition of "handicapped individual" to
exclude environmental, cultural, and economic disadvantages. 10 1 The
definition, however, should be interpreted to reflect the fact that the legal
status of disabled persons, like their status in society and in the economy,
is but a reflection of underlying social attitudes and policies concerning
disability. Thus it is the cultural definition of handicapped, rather than
the scientific or medical definition, that is the most instrumental in the
"ascription of capacities and incapacities, roles and rights, status and
security" 102 of disabled individuals. The interpretation of the regulation
should reflect this reality.
Dealing with employer prejudices, the regulation defines "record" so
that both persons with histories of handicaps and persons who have been
misclassified as handicapped are protected against discrimination. 10 3 This
definition recognizes that when a disabled person later becomes ablebodied there remain barriers to regaining "normal" status. The
employer's perspective changes from the view of an individual as one
with a certain imperfection to that of an individual with a record of once
having had an imperfection. 10 4 Formerly disabled persons have serious
difficulty persuading employers that they are "no longer like that." 101
The definition of "regarded as having an impairment" limits the class
of persons included therein to those who are regarded by an employer as
physically or mentally handicapped, and to those whose impairment is a
substantial limitation solely because of others' attitudes toward the impairment. 10 6 A person whose condition need not be a substantial impediment may thus become "handicapped" if labeled and treated as
"handicapped" by members of society. For example, a dwarf or a person
with a facial scar is to be considered handicapped for the purpose of
section 504 if an employer treats the impairment as constituting a handicap.
Many of the regulation's other definitions are the same as those used
by HEW to implement title VI 10 7 and title IX. 10 8 This is a result of the
parallel coverage of the three statutes. 10 9
101. 42 Fed. Reg. 22,686 (1977).
102. tenBroek & Matson, supra note 11, at 814. See E. GOFEMAN, supra note 22, at 7; E.
ScHuR, supra note 17, at 26; Karst, supra note 19, at 5-8.
103. 42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. § 84.3(j)(2)(iii)).
104. E. Gox~mAN, supra note 22, at 9, 50.
105. E. ScHUR, supra note 17, at 73-74. As enforcement of section 504 begins to foster increased
sensitivity on the part of the ablebodied, as well as increased activism on the part of disabled consumers, the emphasis should begin to shift to a response such as, "what if I were like that?"
106. 42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. § 84.3(j)(2)(iv)).
107. 45 C.F.R. § 80.13 (1976).
108. 45 C.F.R. § 86.2 (1976).
109. See notes 67-71, 92 & accompanying text supra.
1977]
NONDISCRIMINATION IN EMPLOYMENT
Reliance on titles VI and IX is not warranted, however, for the defini-
tion of "Federal financial assistance." 110 For the sake of consistency,
the definition under title VI has been incorporated into the regulation, and
thus procurement contracts and contracts of insurance and guaranty have
been exempted from HEW's coverage. 1' Although the specific statutory language of title VI and title IX excludes these contracts, section 504
has no such provision," 2 and there is no justification in the language or
history of the Rehabilitation Act for this exception."13 The limitation is
particularly unfortunate because disabled persons suffer hardships and
discrimination in this area and because no alternative remedies are avail4
able, as there are in the context of race and sex discrimination."1
B.
Discriminatory Activities Prohibited
Early cases involving employment practices that were litigated under
section 504 of the Rehabilitation Act did not have the benefit of the
110. Compare 42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. § 84.3(h)) with 45
C.F.R. §§ 80.13(0, 86.2(g) (1976).
111. See 42 Fed. Reg. 22,685 app. (1977).
112. Compare 42 U.S.C. § 2000d-1 (1970 & Supp. V 1975) and 20 U.S.C. § 1682 (Supp. V
1975) with 29 U.S.C. § 794 (Supp. V 1975).
113. See Comments of the National Center for Law & the Handicapped on Proposed HEW Regulation for section 504, at 3 (Sept. 13, 1976) [hereinafter cited as NCLH Comments]; CDF Comments, supra note 100, at 7. See generally Blumrosen, Toward Effective Administration of New
Regulatory Statutes, 29 AD. L. REv. 87,96-97 (1977).
114. See Civil Rights Act of 1968, tit. VIII, 42 U.S.C. §§ 3601-3619 (1970) (discrimination in
federally subsidized housing); Equal Credit Opportunity Act Amendments of 1976, Pub. L. No.
94-239, 90 Stat. 251 (amending 15 U.S.C. § 1691e) (discrimination in extension of credit).
The exclusion of insurance contractors is a problem, as disabled persons are discriminated against
in obtaining insurance, and such differential treatment is rarely related to actuarial rates and risks for
particular disabling conditions. Such discrimination may also affect a private employer's overall
fringe benefit offering. An employer may offer a relatively small benefits package because such a
package represents the limit that is purchasable. Thus the fault often lies with the insurance company,
not the employer. Under the exemption granted by the regulation, the insurance company cannot be
held accountable even if it transacts a substantial amount of business with the government. See
Comments of the Leadership Conference on Civil Rights on Proposed Regulation for section 504, at
3 (Sept. 14, 1976).
The rationale for this exclusion under title VI renders its adoption under section 504 particularly
inappropriate. In 1964, Congress was preoccupied with the separation of private discrimination from
public, or publicly funded, discrimination. Therefore, Congress was unwilling to extend the coverage
of title VI to include homeowners or banks when the state action involved merely a pledge of credit
by the federal government. See id. Congress shortly afterward became more sophisticated in its
implementation of civil rights statutes. See Civil Rights Act of 1968, tit. VIII, 42 U.S.C. §§ 36013619 (1970) (discrimination in federally subsidized housing); Equal Credit Opportunity Act Amendments of 1976, Pub. L. No. 94-239, 90 Stat. 251 (amending 15 U.S.C. § 1691e) (discrimination in
the extension of credit). The activities that gave rise to the early exclusions under title VI are now
largely covered by other civil rights legislation, but the vestige of the earlier philosophy limits the
protection of section 504 in a way that Congress never anticipated.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
HEW regulation. They dealt with only the clearest violations of the statute. Gurmankin v. Constanzo1 15 was the first reported case regarding
employment discrimination under section 504. In that decision, the federal court found that the Philadelphia School District had violated the
requirements of the law by refusing to hire a blind person to teach in a
classroom of sighted students. The court stated, "A refusal to hire a
blind person as a teacher is the kind of discrimination which that section
was meant to prohibit." 116 Similarly, in Duran v. City of Tampa,III an
applicant for the position of police officer was denied employment because of a history of epileptic seizures. The court held that the city's
presumption of unfitness, based upon a record of a physical examination,
constituted discrimination under section 504.118
115. 411 F. Supp. 982 (E.D. Pa. 1976), aff'd, 556 F.2d 184 (3d Cir. 1977).
116. Id. at 989. See Evans v. Looney, No. 77-6052 (W.D. Mo. Sept. 7, 1977).
117. 430 F. Supp. 75 (M.D. Fla. 1977).
118. Id. at 78. See Drennon v. Philadelphia Gen. Hosp., 428 F. Supp. 809, 814-16 (E.D. Pa.
1977) (epileptic denied employment stated a valid cause of action under section 504).
Despite the holdings of these cases regarding section 504 employment practices, one commentator
has asserted that the statute lacks the authority to regulate employment discrimination. Wright, Equal
Treatment of the Handicapped by Federal Contractors, 26 EMORY L.J. 65, 66-67 n.6 (1977). This
suggestion is based upon a recent district court opinion holding that employment practice coverage
was not authorized by title IX. Romeo Community Schools v. HEW, 438 F. Supp. 1021, 1029-31
(E.D. Mich. 1977). But see United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 883 (5th
Cir. 1966), aff'd en banc, 380 F.2d 385, cert. denied, 389 U.S. 840 (1967) (recipients of federal
financial assistance subject to nondiscrimination in employment on the basis of race under title VI);
Barros & Geyer, What Can Regulatory and Title VI Agencies Do to Increase Equality of and Equal
Opportunity of Employment?, 4 N.C. CENT. L.J. 68 (1973); HEW Staff Memorandum, Coverage of
Employment Discrimination Under Section 504 of the Rehabilitation Act of 1973 (Dec. 3, 1975). In
Romeo, the court looked to the wording of the statute, the availability of alternative remedies, and
the legislative history. The court concluded from all of these factors that title IX provided no valid
basis for dealing with employment discrimination. The wording of section 504, though similar to title
IX, is ambiguous. Thus it does not necessarily follow from the wording that employment discrimination may not be regulated.
In speaking of alternative remedies, the court in Romeo emphasized that Congress did not intend to
affect sex discrimination in employment through title IX, as that statute was part of a larger legislative scheme that included title VII employment protections. Title VII does not reach handicap discrimination. Therefore, disabled persons denied employment by recipients of federal financial assistance have no legislative protection other than section 504. Clearly, section 504 is not part of the
same legislative scheme and, therefore, the decision in Romeo is inapposite. Furthermore, the basic
legislative scheme into which section 504 neatly fits has historically dealt with the training for and
provision of employment opportunities for disabled persons. See notes 38-47 & accompanying text
supra.
Throughout the legislative history of section 504 it is noted that the law is designed to deal with
the problem of employability of disabled workers. See, e.g., S. REP. No. 1297, supra note 12, at
16-19; 119 CONG. REc. 24563, 24566, 24568 (1973). The congressional purpose was judicially
recognized in Drennon v. Philadelphia Gen. Hosp., 428 F. Supp. at 815. The Rehabilitation Act was
amended in 1974 to emphasize that the nondiscrimination provisions were meant to deal with more
than merely employment problems. See notes 94-96 & accompanying text supra. See also S. CONF.
NONDISCRIMINATION IN EMPLOYMENT
1977]
The section 504 regulation extends this case law one step further and
provides a comprehensive analysis of the types of activities that result in
discrimination against disabled individuals. It prohibits the use of criteria
or methods of administration that have the effect of discriminating on the
basis of handicap, that impair the accomplishment of program objectives
with respect to handicap, or that perpetuate discrimination among other
funding recipients. 119 In order to establish a violation of section 504, it
is not necessary to prove any intent to discriminate against handicapped
20
persons. 1
This interpretation of the legislation is based upon concordant cases
decided under titles VI and VII of the Civil Rights Act of 1964. In
Griggs v. Duke Power Co.,121 the Supreme Court scrutinized allegedly
neutral employment requirements that tended to exclude a disproportionate number of black applicants. The Court indicated that employment
criteria such as the attainment of a given score on an intelligence test, or
the completion of a high school education, could not be utilized without
showing a "manifest relationship" between the criteria and job performance. 12 2 It was the effect of the policy, rather than the discriminatory
23
intent, that caused the violation of title VII.1
REP. No. 455, 94th Cong., 1st Sess. 54 (Education for All Handicapped Children Act, 20 U.S.C. §
1405 (Supp. V 1975)):
It is clear that qualified handicapped individuals who, because of their handicaps, are
refused employment by recipients of assistance under the Act are fully covered by the
prohibition in section 504 of the Rehabilitation Act of 1973. The conferees expect that
the Department of Health, Education and Welfare regulations implementing sections 504
will cover employees of such recipients of Federal Assistance under this Act.
Id.
119. 42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. § 84.4(b)(4)).
120. The Supreme Court has distinguished constitutional mandates of nondiscrimination, which
require intent, from statutory proscriptions, such as section 504, which require only a showing of
discriminatory effect. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S.
252, 265-66 (1977); Washington v. Davis, 426 U.S. 229, 246-48 (1976).
121. 401 U.S. 424 (1971).
122. Id. at 436.
123. Id. at 432. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1974). Additionally, the
court in Griggs demanded "great deference" to the administrative guidelines of the Equal Employment Opportunity Commission, the administrative agency charged with enforcing title VII. Id. at
434. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279-80 (1976).
The Griggs case confirmed a series of decisions by that Commission as well as by the lower
federal courts that had employed the discriminatory effect concept under title VII. These prior cases,
which concerned disproportionate exclusions of minorities from jobs because of departmental seniority systems, exhibited an awareness that practices which put certain groups at a disadvantage will not
be sustained under title VII. See, e.g., United States v. Sheet Metal Workers Local 36, 416 F.2d
123, 131 (8th Cir. 1969); Local 189, United Papermakers & Paperworkers v. United States, 416
F.2d 980, 988 (5th Cir. 1969), cert. denied, 397 U.S. 919 (1970); Dobbins v. BEW Local 212, 292
F. Supp. 413 (S.D. Ohio 1968) (inequitable seniority rights in union referral systems); Quarles v.
Phillip Morris, Inc., 279 F. Supp. 505, 518 (E.D. Va. 1968); [1973] EEOC DECsIONS (CCH)
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
Similarly, in Lau v. Nichols, 2 4 the Supreme Court affrned the validity of the broad construction of discriminatory activity. Relying on title
VI, the Court determined that a school system had violated the rights of
Chinese-speaking students by failing to teach them English. Reversing the
prior decision by the Ninth Circuit, the Court stated: "Discrimination is
barred which has that effect even though no purposeful design is present." 125
Although there has been no judicial construction of section 504 dealing
with discriminatory effect, it is clear that the HEW regulation is designed
to follow these precedents. Indeed, in Lloyd v. Regional Transportation
Authority, 12 6 a unanimous panel of the Seventh Circuit, following Lau
v. Nichols,'127 held section 504 applicable to a cause of action which
alleged that federally financed transportation systems must be made accessible to physically disabled persons in order to avoid a discriminatory
effect. 12 81 In NAACP v. Wilmington Medical Center,129 plaintiffs from
6223 (1971) (height requirements); [1973] EEOC DECiSIONS (CCH) 6164 (1970) (refusals to hire
unwed mothers).
It may be possible to use the disparate impact theory even where a single discriminatory act is
alleged. See Stallings v. Container Corp. of America, No. 46-46 (D. Del. July 15, 1977).
124. 414 U.S. 563 (1974).
125. Id. at 568. Accord, Morales v. Shannon, 516 F.2d 411, 415 (5th Cir. 1975), cert. denied,
423 U.S. 1034 (1975); Serna v. Portales Mun. Schools, 499 F.2d 1147, 1153-54 (10th Cir. 1974);
Shannon v. HUD, 436 F.2d 809, 820 (3d Cir. 1970); ASPIRA of New York v. Board of Educ., 423
F. Supp. 647, 648 (S.D.N.Y. 1976); Soria v. Oxnard School Dist., 386 F. Supp. 539, 544-45 (C.D.
Cal. 1974).
Low income housing cases brought under title VIII, Civil Rights Act of 1968, 42 U.S.C. §§
3601-3619 (1970), also support this view. See Garrett v. City of Hamtramck, 503 F.2d 1236, 1246
(6th Cir. 1974); United Farm Workers v. City of Delray Beach, 493 F.2d 799, 808 (5th Cir. 1974);
Barrick Realty, Inc. v. City of Gary, 491 F.2d 161, 163 (7th Cir. 1974); United States v. Pelzer
Realty Co., 484 F.2d 438, 443 (5th Cir. 1973), cert. denied, 416 U.S. 936 (1974); Resident Advisory Bd. v. Rizzo, 425 F. Supp. 987, 1019-20 (E.D. Pa. 1976) aft'd, 564 F.2d 136 (3d Cir. 1977);
United States v. Hughes Memorial Homes, 396 F. Supp. 544, 548 (W.D. Va. 1975); Zuch v.
Hussey, 394 F. Supp. 1028, 1Q47 (E.D. Mich. 1975); United States v. Real Estate Dev. Corp., 347
F. Supp. 776, 782 (N.D. Miss. 1972). Judge Broderick's description of the trial in Rizzo is relevant:
Mayor Rizzo asserted in his testimony that his policy is racially neutral and that his
actions are taken without a view toward any particular race. He candidly stated in connection with the potential effects of his action on racial minorities that:
I would have to say that never entered my mind. But thinking it over, I
would say there is a possibility that that might affect the minorities, that
they might be shortchanged, but it would not change my position.
Such "color-blindness" does not comply with the mandates of ... Title VIII.
425 F. Supp. at 1019 (1976) (citation omitted).
126. 548 F.2d 1277 (7th Cir. 1977).
127. 414 U.S. 563 (1974).
128. 548 F.2d at 1284. The recent decision in Halderman v. Pennhurst State School and Hospital
found that the separation of mentally retarded patients from other patients, and their inadequate
treatment violated section 504. No. 74-1345, slip op. at 69 (E.D. Pa. Dec. 23, 1977). Accord,
United Handicapped Fed'n v. Andre, 558 F.2d 413 (8th Cir. 1977).
129. 426 F. Supp. 919 (D. Del. 1977).
19771
NONDISCRIMINATION IN EMPLOYMENT
various Delaware community groups sued HEW to require enforcement
of its site location regulations under title VI and section 504.130 The
court did not reach the question of whether discrimination would exist if
the Wilmington Medical Center were permitted to relocate. However, it
did order HEW to undertake an investigation to determine whether a
violation had occurred. In setting the standard of proof that it expected
the HEW review team to utilize, the court stated:
No party suggests that WMC can select a site for a new hospital which
will have the effect of discriminating against ... the handicapped.
Instead, much commotion has been raised over the proper method of
determining discriminatory consequences. Through the smoke of the
battle between plaintiffs and the Secretary, which obviously has farranging significance, WMC asserts that [the new hospital location] will
not have a discriminatory effect on . . . the handicapped. . . . If the
[new] hospital will not be built because of a finding of a discriminatory effect, an alternative solution may then be quickly developed....
131
The foregoing cases suggest that any facially neutral requirement that
applies to beneficiaries of programs receiving government funding will be
held discriminatory if its effect is to burden disabled individuals. 132 It is
implied that even facially neutral policies and regulations are within the
regulatory power of HEW under section 504. Thus a rule or practice
130. See 45 C.F.R. §§ 80.3(b)(2)-(3) (1976); 42 Fed. Reg. 22,678-79 (1977) (to be codified in 45
C.F.R. §§ 84.4(b)(4)-(5)).
131. 426 F. Supp. 919, 923-24 (emphasis added). See Chrysler Outboard Corp. v. Department of
Indus. Lab. & Hum. Rel., [1976] 14 LA. REL. RE. (Fair Empl. Prac. Cas.) 344, 345 (Wis. Cir.
Ct. 1976) (refusal to hire person solely on the basis of a handicap constitutes discrimination regardless of the employer's intent).
132. A recent authoritative gloss on this area was provided by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), which set forth the criteria for establishing a prima
facie case of employment discrimination. The Court indicated that a title VII complainant met the
initial burden of establishing a discriminatory effect by showing that he belonged to a racial minority,
had applied and was qualified for a position that the employer was seeking to fill, was rejected for
that position, and that following the rejection, the position remained available while the employer
continued to seek candidates from persons with the complainant's qualifications. The burden shifted
at that point to the defendant to "articulate" some legitimate, nondiscriminatory justification for the
rejection. Id. at 802.
Courts have extended the standard in Green beyond the protection of job applicants to include the
discharge of employees. See, e.g., Wilson v. Seaitest Foods, Div. Kraftco Corp., 501 F.2d 84 (5th
Cir. 1974). The burden of proving that there is no discriminatory effect falls on the employer once a
prima facie showing of employment discrimination has been made. Id. at 86. See Holthaus v.
Compton & Sons, 514 F.2d 651, 652 (8th Cir. 1975); Rodriguez v. East Tex. Motor Freight Co.,
505 F.2d 40, 58 (5th Cir. 1974), vacated and remanded on other grounds, 97 S. Ct. 1891 (1977);
Gates v. Georgia-Pacific Corp., 492 F.2d 292, 295-96 (9th Cir. 1974); Vulcan Soc'y v. Civil Serv.
Comm'n, 490 F.2d 387, 393 (2d Cir. 1973). The same standard should be applied to allegations of
discriminatory effect brought by complainants under section 504.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
having a disparate impact on disabled persons may be found violative of
section 504 unless funding recipients can demonstrate that the goal sought
by the rule or practice is a valid one and cannot be achieved by any other
means.
The regulation establishes procedures for discerning the presence of
discrimination. There is a mandatory requirement of assurances from
funding recipients 13 3 that they will not discriminate in their use of federal financial assistance or in their operation of any part of the facility to
which the assistance is applied. 13 4 Recipients are bound by their assurances for as long as the assistance continues. 1 35 When assistance is in
the form of real property, a recipient is bound as long as the property is
used for the purpose for which the assistance is extended. 13 6 In addition, the regulation requires that transfers of assistance in the form of real
property from the federal government to a recipient contain covenants of
7
nondiscrimination. 13
In many instances, discriminatory practices exist because the employer
is unaware that such practices are continuing. The regulation attempts to
solve such situations by requiring each recipient of federal financial assistance to evaluate itself under the regulation, 3 8 to modify practices
that do not meet the regulation's requirements, 13 9 and to take remedial
steps to alleviate the effects of past discrimination. 140 Consultations with
interested persons, including disabled individuals, are required as an integral part of each of these processes. 141 A recipient may not await a
review by HEW before eliminating discriminatory practices. Upon completion of the self-evaluation, the recipient is required to place on file a
description of modifications and remedial actions that have been taken.' 4 2
The information must be given to the Director of the Office for Civil
Rights of HEW, and it must be made available for public inspection upon
request. 1 43 When a recipient is found to be in violation of section 504,
it is required to take whatever remedial action the Director deems neces1 44
sary.
133. 42 Fed. Reg. 22,619 (1977) (to be codified in 45 C.F.R. § 84.5).
134. Id. § 84.5(a).
135. Id. § 84.5(b).
136. Id. § 84.5(b)(1).
137. Id. § 84.5(c).
138. Id. § 84.6(c)(1)(i).
139. Id. § 84.6(c)(1)(ii).
140. Id. § 84.6(c)(1)(iii).
141. Id. §§ 84.6(c)(1)(i)-(iii).
142. Id. § 84.6(c)(2). Recipients of federal funds who employ less than fifteen persons are
exempted from the recordkeeping requirement. Id.
143. Id.
144. Id. § 84.6(a).
1977]
NONDISCRIMINATION IN EMPLOYMENT
The regulation encourages, but does not require, affirmative action to
correct conditions that foster limited participation by handicapped persons
in federally financed programs. 4 ' This position seems inconsistent with
the legislative history of the Rehabilitation Act as evidenced by the report
of the Senate Committee on Labor and Public Welfare which states,
"[W]here applicable, section 504 is intended to include a requirement of
affirmative action as well as a prohibition against discrimination." 146
The apparent contradiction stems from the definition of "affirmative
action." The concept is popularly understood as the planned process of
changing the composition of groups, particularly employees or union
members, in order to achieve a desired rate of participation by minority
members. When the exclusion of disabled persons is unrelated to discrimination, section 504 cannot be the basis for ordering that one receive
a preference on account of disability; however, when the exclusion is
directly caused by past discriminatory practices, it is apparent that had
the rights of disabled persons not been violated there would be no need
for affirmative action. The effects of past violations upon disabled persons' rights, therefore, cannot be ameliorated merely by prohibiting future discrimination. Such a solution amounts to only a partial remedy.
145. Id. § 84.6(b).
146. S. REP. No. 1297, supra note 12, at 18. The institution of quota hiring practices is a common remedy for discriminatory hiring practices. See, e.g., Carter v. Gallagher, 452 F.2d 315, 324
(8th Cir. 1971), modified on rehearing en banc, 452 F.2d 327, 330-31, cert. denied, 406
U.S. 950 (1972). The regulation neither prohibits nor directs the use of goals or timetables as remedial actions. See 42 Fed. Reg. 22,679 (1977) (to be codified in 45 C.F.R. § 84.6(a), (b)). Once it
becomes clear that more indeterminate measures are not effectively remedying any particular instance
of discrimination, however, HEW must not delay in mandating goals and timetables for that
employer to hire disabled persons. See Note, Affirmative Action Toward Hiring Qualified Handicapped Individuals, 49 S. CAL. L. REv. 785, 792 (1976) [hereinafter cited as Affirmative Action].
In situations in which goals and timetables constitute inappropriate remedies for any reason,
employers should still be mandated to stress affirmative action in hiring and promoting disabled
persons who may be somewhat less qualified than their able-bodied counterparts, as long as the
disabled workers are fully capable of filling available positions. Such a mandate would provide
redress for past discriminatory activities while aiding the creation of role models and opportunities for
other disabled individuals in the community. The selection of the disabled for positions formerly held
only by the ablebodied will help in breaking down stereotypes and encouraging the disabled to
aspire to and train for such occupations.
Administering affirmative remedies may present problems if employers attempt to hire or promote
workers with relatively minor handicaps, and label such efforts as remedial action. Consistent with
the emphasis of the Rehabilitation Act, HEW must make certain that employers required to take
affirmative action establish programs for the hiring of the severely disabled. See note 52 & accompanying text supra. See also Sape, The Use of Numerical Quotas to Achieve Integration in Employment, 16 WM. & MARY L. REv. 481, 486 (1975). See generally H. BECKER, EMPLOYMENT SERVICES
FOR Dis ALED PERSONS (1965).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
In such situations, affirmative action is essential. 14 7 Thus, where a
recipient has traditionally sponsored programs specifically designed to attract able-bodied applicants, affirmative action is appropriate.1 48 This
remedy is consistent with Congress' intended definition of "affirmative
action" in section 504, in the sense that recipients have a continuing
obligation to integrate fully disabled persons into their programs. 14 9
The regulation requires those recipients of federal financial support
with fifteen or more employees to designate an employee to coordinate
efforts to comply with section 504.150 Employers are further obligated
to adopt grievance procedures to resolve complaints. 151 Each employer
must take specific and continuing steps to inform interested persons that
it does not discriminate on the basis of handicap. 1 52 General materials
which a recipient uses or distributes to his employees must include such
notification, and specific notices must be distributed to the present pro15 3
gram participants.
The Director of the Office for Civil Rights may require an employer
with fewer than fifteen employees to comply with the grievance procedure and notice requirements when this would not significantly impair
that employer's ability to provide benefits or services.' 54 The obligation
of a funding recipient to comply with the provisions of the regulation,
however, can never be avoided merely because employment opportunities
for handicapped persons are limited in a particular occupation, 55 or
because a state or local law allows or requires that limits be placed upon
56
the eligibility of qualified handicapped persons.'
The regulation particularizes the general mandate of nondiscrimination
in the employment area. 15 Employers who receive assistance under the
Education for All Handicapped Children Act' 5 8 are required to take
147. The requirement of affirmative action therefore properly falls within the remedial action section of the regulation. See 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.6(a)).
148. Such "sponsorship" could occur, for example, if an employer has always operated a physically inaccessible worksite.
149. See Affirmative Action, supra note 146, at 803.
150. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.7(a)).
151. Id. § 84.7(b).
152. Id. § 84.8(a).
153. Id. § 84.8(b).
154. Id. § 84.9.
155. Id. § 84.10(b).
156. Id. § 84.10(a). If state or local laws and section 504 conflict, the supremacy clause dictates
that section 504 take precedence. Therefore, state and local laws cannot be utilized as defenses to
section 504 actions. U.S. CONST. art. VI, cl. 2. See Rosenfeld v. Southern Pac. Co., 444 F.2d 1219,
1226 (9th Cir. 1971) (state female protective statute conflicting with title VII).
157. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.11(a)(1)).
158. 20 U.S.C. § 1405 (Supp. V 1975).
1977]
NONDISCRIMINATION IN EMPLOYMENT
positive steps to employ and advance qualified handicapped individuals. 1 5 9 Funding recipients under that Act are held to a higher standard of
affirmative action because their programs affect handicapped persons
more directly than other programs.
Employers are required to make all employment-related decisions, including those concerning classification of employees, in a manner that
insures that discrimination on the basis of disability does not occur.' 60
They are prohibited from having any relationship with groups whose
programs have a discriminatory effect, such as employment and referral
agencies, labor unions, or organizations administering fringe benefits or
training. 16
The regulation lists specific employment-related activities to which
section 504 applies, including, but not limited to, recruitment, advertising, hiring, upgrading, promotion, tenure, assignment, leave, and social
or recreational programs.' 62 Employers may not establish, or maintain
lines of progression, seniority systems, position descriptions, or similar
schemes on the basis of handicap.'
63
In addition, employers are prohi-
bited from adopting or applying any policy or practice that results in the
payment of handicapped employees at a lesser rate than nonhandicapped
employees even though both groups perform jobs that require similar
skills and responsibilities.'
64
Employment fringe benefits must be pro-
159. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.11(a)(2)).
160. Id. § 84.11(a)(3).
161. Id.§ 84.11(a)(4).
162. Id.§ 84.11(b).
163. Id.§ 84.11(b)(4).
164. Id. § 84.1 1(b)(3). The problem to which this provision is addressed arises in mental institutions in which patients are used as laborers for menial tasks. This institutional peonage occurs most
often in those facilities which, given their meager amount of funding, cannot afford to pay outside
employees for these categories of jobs. See MENmAL HEALTH LAW PRojEcr, BAsIC RIGHTS OF THE
MENTALLY HANDICAPPED 32 (1973). HEW must also make certain that institutions do not attempt to
circumvent the regulation by labeling mandatory work programs as "therapeutic" or "voluntary":
Although institutions may claim that they do not force their residents to work, incentives
tend to be substantial and serve to coerce residents to conform to the work norm of the
facility. Refusal to work can result in staff antagonism, restrictions on mobility and
other privileges, or increased medication. A patient will frequently be accused of being
uncooperative, with negative effects on his efforts to be released, if he fails to participate in a "voluntary" work program.
Id. at 32-33. See Souder v. Brennan, 367 F. Supp. 808, 812-14 (D.D.C. 1973).
Another area in which the compensation provision of the regulation can have a significant impact
is that of sheltered workshops. Such employees are currently exempt from national minimum wage
requirements. National Labor Relations Act, 29 U.S.C. § 214(d) (1970). Courts have held, however,
that federal laws governing labor matters must be construed so as not to frustrate civil rights legislation. See, e.g., United Packinghouse Workers Union v. NLRB, 416 F.2d 1126, 1133-38 (D.C. Cir.
cert. denied, 396 U.S. 903 (1969). In any event, it is clear that the protective reach of the
regulation includes not only disabled individuals deemed to be fully employable, but also those
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
vided in a nondiscriminatory fashion regardless of who administers
them.' 6 5 The list of regulated activities ends by extending the nondis-
crimination provisions to "any other term, condition, or privilege of
employment." 166
C.
Reasonable Accommodation
The most distinctive feature of the employment practices provisions 167
is the requirement that employers make reasonable accommodation for
the physical or mental limitations of a handicapped person, unless the
employer can demonstrate that the accommodation would impose an
undue hardship on the firm's operation, or that the accommodation would
not neutralize the disadvantage of the disabled worker. 168 The concept
of reasonable accommodation is necessary to enable handicapped workers
to be placed in hospitable worksites and to reduce the competitive disadvantage that disabled persons suffer. As a result of their handicaps, however, the burden of arranging for the accommodation belongs not to the
disabled worker but to the employer. 169 Employment opportunities may
whose employability is only marginal. See Oversight Hearings, supra note 64, at 1505 (remarks of
Martin Gerry, Director, Office for Civil Rights, HEW); Friedman, The Mentally HandicappedCitizen
and InstitutionalizedLabor, 87 HARv. L. REV. 567, 571-79 (1974).
165. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.11(b)(6)). The fringe benefits
provision could be the vehicle for eliminating insurance policy exclusions related to pregnancy and
childbirth. Such exclusions have been held not to constitute sex discrimination within the meaning of
title VII. Nashville Gas Co. v. Satty, 46 U.S.L.W. 4026, 4028 (Dec. 6, 1977); General Elec. Co. v.
Gilbert, 429 U.S. 125 (1976). Pregnancy, however, is clearly a disability, as that term is broadly
defined by the Rehabilitation Act. See notes 93-106 & accompanying text supra.
The widespread myth that employing disabled workers will increase disability and life insurance
rates has once more been enunciated without any supporting documentation. See Wright, supra note
118, at 77, 86. A multitude of studies, including a recent survey sponsored by HEW, have demonstrated that employing handicapped workers does not have this effect. See Implementing Section
504, supra note 28, at 20,324 app.; EILERS & MALONE, Tm UNDERwRrriNG AND RATING OF WORKMEN'S COMPENSATION INSURANCE wrrH PARTICULAR REFERENCE TO THE COVERAGE OF EMPLOYEES
AFFLICTED wITH EPILEPSY (1976); Fabing & Barrow, Encouragement of Employment of the Handicapped-Extension of Second Injury Fund Principlesto Persons Having Latent Impairments, 8 VAND.
L. REv. 575, 576 (1955); Herlick, Rehabilitationof IndustriallyInjured Workers, 25 HAsT. L.J. 165,
172 (1973).
166. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.11(9)).
167. PRESIDENr's COMMITEE ON EMPLOYMENT OF THE HANDICAPPED, AFFIRMATIVE ACTION TO
EMPLOY HANDICAPPED PEOPLE 3 (1975). See Delury, Equal Job Opportunity for the Handicapped
Means Positive Thinking & Positive Action, 26 LAB. L.J. 679, 680 (1975). Discussions of the
reasonable accommodation requirement have a tendency to couch this mandate in terms of "affirmative action." However, it is clear that "reasonable accommodation" differs from special efforts to
initially hire or promote disabled persons. See notes 145-50 & accompanying text supra. Indeed,
"reasonable accommodation" is not triggered until disabled persons have been hired, at which point
a determination regarding particular requirements is made.
168. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.12(a)).
169. S. REP. No. 1297, supra note 12, at 99. See note 230 infra.
NONDISCRIMINATION IN EMPLOYMENT
not be withheld solely because a reasonable accommodation would be
required to enable an individual to perform a particular job.170
"Reasonable accommodation"includes such adaptations as the restructuring of particular job requirements, the adjustment of work
schedules, the establishment of part-time positions, and the acquisition
and modification of equipment. 71' For the majority of employers, accommodation will involve little more than the abandonment of
stereotypes 172 and outmoded job specifications that assume that the
employment of handicapped workers will have a negative effect on the
agency or institution.17 3 If outlays are required, small initial capitalization, rather than major, ongoing investments will be the rule.17 4
170. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.12(d)).
171. Id. § 84.12(b). See generally Asher & Asher, How to Accommodate Workers in Wheelchairs,
4 JOB SAFETY & HEALTH 35 (Oct. 1976).
172. Implementing Section 504, supra note 28, at 20,322 app.
173. Id.
174. There are parallel requirements regarding accommodations for the non-handicapped. Under
title VII, employers are required to make reasonable accommodation to the religious needs of their
employees. 42 U.S.C. §§ 2000e(j), 2000e-2(a)(l) (1970 & Supp.V 1975). See TWA v. Hardison, 97
S. Ct. 2264, 2267-68 (1977); Cummins v. Parker Seal Co., 516 F.2d 544, 545 (6th Cir. 1975), aff'd
by an equally divided Court, 429 U.S. 65 (1976).
In Hardison, a case involving a discharge of a worker for refusing to report on his Saturday
Sabbath, the Supreme Court significantly limited the scope of employer accommodation in the religious discrimination context. The Court ruled that the petition for accommodation, in addition to
breaching a valid collective bargaining agreement, would have amounted to unequal treatment of
employees because of their religious beliefs. To ignore the considerations of others who may have
had strong nonreligious reasons for not wanting to work on weekends, or to require the employer to
incur more than de minimus costs to hire a replacement, was held to constitute discriminatory action
on the basis of religion. 97 S. Ct. at 2275-77.
Reasonable accommodation in the handicap discrimination context is easily distinguishable. Unlike
title VII, section 504 affords no special treatment to seniority systems. Compare 42 U.S.C. §
2000e-2(h) (1970) with 29 U.S.C. § 794 (Supp. V 1975). More importantly, however, accommodations required to ameliorate handicap discrimination differ in kind from those required in the area of
religious discrimination. Section 504 enables a handicapped worker to perform, whereas title VII
allows a worker to take time off. See notes 182-83 & accompanying text infra. The types of job
restructuring necessary should rarely infringe upon the rights of able-bodied employees. Further,
although the costs of accommodating the needs of disabled employees may rise above the de
minimus level, the incursion of such costs will not result in the types of discrimination disapproved
by the Supreme Court in Hardison.
The expenditure of funds to accommodate the needs of disabled employees under section 504 is no
more than a function of the nondiscrimination requirements of that statute. See also Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974), aft'd, 550 F.2d 1122 (8th Cir. 1977). The legislative
history of section 504 indicates that Congress was acutely aware that failure to accommodate the needs
of handicapped workers would result in a severe discriminatory effect on those individuals. See S.
REP. No. 1297, supra note 12, at 34. In Barnes v. Converse College, 436 F. Supp. 635, 638-39
(D.S.C. 1977), the court granted a temporary restraining order mandating that the school provide an
interpreter to enable a deaf student to participate fully in classroom activities. The school was required to pay the cost of hiring the interpreter. Accord, Holland v. Boeing Co., 12 Fair Empl. Prac.
Cas. 975 Wash. Super. Ct. Apr. 9, 1976).
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The HEW regulation requires a case-by-case determination of "reasonableness." Such a decision must include a consideration of whether an
accommodation will impose an undue hardship upon the recipient in light
of the overall size of the recipient's program, 17 5 the type of operation the
77
recipient conducts, 176 and the nature and cost of the accommodation.1
There is a particular danger in delineating specific factors that should
be examined to determine whether "undue hardship" exists. An
employer may be encouraged to use those factors as exemptions, thereby
thwarting the rule of "reasonable accommodation." In order to avoid
such practices, the test for undue hardship must be applied restrictively
78
and on a case-by-case basis.'
The regulation's criteria direct a disproportionate amount of emphasis
toward the status of the employer rather than to that of the worker. To
achieve a better balance, the availability and desirability of similar
employment to those of particular disabilities should be considered in the
granting of "undue hardship" status to the employer. These elements
would take into account the costs of the choices and decisions that are
often forced upon handicapped persons.' 7 9 Thus, the actual needs of
disabled persons could be determined.' 8 0 As the need for accommodation arises each time an applicant or employee requires such an adaptation, prior meritorious efforts by an employer in the areas of hiring and
providing adequate work conditions should not be relevant.' 8 '
The regulation directs that no discrimination may result because auxiliary aides or job restructuring is necessary.' 8 2 The diversity of
economic opportunities and the variety of disabilities should ensure that
rewarding and remunerable positions can be made available to accommo83
date all disabled individuals.'
175. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.12(c)(l)).
176. Id. § 84.12(c)(2).
177. Id. § 84.12(c)(3). Utilization of such elements must be made with the impact of federal
financial assistance as a cost-absorbing mechanism in mind. See Affirmative Action, supra note 146,
at 823 n.184.
178. This is consistent with the principle that costs alone can never frustrate the vindication of an
individual's civil rights. See, e.g., Wyatt v. Stickney, 344 F. Supp. 387, 392 (M.D. Ala. 1972).
179. See Affirmative Action, supra note 158, at 823.
180. Note, Lowering the Barriersto Employment of the Handicapped:Affirmative Action Obligations Imposed on Federal Contractors, 81 DicK. L. REv. 174, 184 (1976) [hereinafter cited as
Lowering Barriers].
181. See id. at 185.
182. See 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.12(d)).
183. Implementing Section 504, supra note 28, at 20,324 app.
19771
NONDISCRIMINATION IN EMPLOYMENT
D. Employment Criteria
The HEW regulation prohibits employers from using selection criteria
for hiring and promotion that screen out some or all classes of handicapped persons, unless the criteria are job related and the Director of the
Office for Civil Rights has found that alternative criteria are unavailable. 184 This standard is based upon the one established for racial discrimination under title VII in Griggs v. Duke Power Co.185 In Griggs,
Chief Justice Burger noted, "The touchstone is business necessity. If an
employment practice which operates to exclude Negroes cannot be shown
to be related to job performance, the practice is prohibited." 186
It is difficult to understand how employment criteria screening out
"qualified handicapped persons" can ever be "job-related." A "qualified handicapped person" as specifically defined within the regulation,
"can perform the essential functions of the job." 187 It is important that
the regulation be enforced in a manner that tests the relation between the
job requirements and those qualifications which, as a whole, tend to
exclude disabled workers. 88 If there is a pattern of discriminatory results, there is a violation of section 504.189
Two defenses to the establishment of discriminatory employment practices have arisen from employment discrimination cases. Both are
amplifications of the "business necessity" exception. The "neutral
employment practices" rule allows the establishment of uniform standards for all employees, so long as the need for the practices outweighs
any discriminatory effect on protected groups. 190 The "bona fide occupational qualification" exception is a defense to overt discrimination if
the job qualification must preclude hiring members of a protected
class. 191
1. Neutral employment practices
An otherwise discriminatory employment criterion may be found valid
under the business necessity standard if its requirements are essential to
184. 42 Fed. Reg. 22,680 (1977) (to be codified in 45 C.F.R. § 84.13(a)).
185. 401 U.S. 424 (1971). The Griggs standard is cited with approval in HEW's analysis of the
regulation. See 42 Fed. Reg. 22,688 app. (1977).
186. 401 U.S. at 431.
187. The regulation defines "qualified handicapped person" to mean "[w]ith respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question .
42 Fed. Reg. 22,678 (1977) (to be codified in 45 C.F.R. §
84.3(k)(1)).
188. See also Lowering Barriers, supra note 180, at 181.
189. See Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of
Employment Discrimination, 71 MICH. L. REV. 59 (1972).
190. See notes 192-222 & accompanying text infra.
191. See notes 223-70 & accompanying text infra.
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the job. Employment as an airline pilot, for instance, requires the ability
to fly an aircraft, and such a qualification will be upheld despite the
adverse effect upon some disabled persons.' 92 Application of the business necessity test, however, demands reevaluation of employment standards traditionally assumed to be "necessary" in order to determine
whether the evidence justifies the exclusion of handicapped individu193
als.
Although federal courts have not examined the neutral employment
rule with respect to disabled persons, those courts have dealt with that
rule as it affects the similar topic of racial discrimination. Federal courts
have indicated that a discriminatory practice must do more than serve
legitimate management functions in order to constitute a business necessity.
In United States v. Bethlehem Steel Corp. ,194 the validity of a seniority
and transfer system that negatively affected blacks was at issue. The
court construed the scope of "necessity" to include only those cases in
which the firm's need to implement the questionable practice was in response to an "irresistible demand." 195 The court held that besides a
showing that a discriminatory action is fundamental to the safe and efficient operation of an employer's program or activity, there must be evidence that no reasonable, available alternatives can serve the same
96
legitimate needs with less discriminatory effect.'
A strict construction was also applied by the Court of Appeals for the
Second Circuit in Robinson v. Lorillard Corp. ,'9 where plaintiffs alleged
that a departmental seniority system violated title VII. The court held that
discriminatory practices would be allowed only in those rare cases in
which an "overriding legitimate business purpose such that the practice is
necessary to the safe and efficient operation of the business" could be
found.198
The defenses offered by the employer for retaining the seniority system
were held insufficient to meet this test. The company had attempted to
justify its seniority policy as the most efficacious means of avoiding labor
disputes, as well as of assuring high levels of employee productivity. In
192. Equal Employment, supra note 28, at 476.
193. See generally Cooper & Sobol, Seniority & Testing Under Fair Employment Practice Laws:
A General Approach to Objective Criteria of Hiring & Promotion, 82 HARV. L. REV. 1598, 1673
(1969).
194. 446 F.2d 652 (2d Cir. 1971).
195. Id. at 662.
196. Id.
197. 444 F.2d 791 (4th Cir.), cert. denied, 404 U.S. 1006 (1971).
198. Id. at 798.
NONDISCRIMINATION IN EMPLOYMENT
edition, the employer made a showing that the system conformed with
,e usual business practices of other companies in the industry. These
mitigating factors could not outweigh the harm done by the maintenance
of a seniority policy that resulted in the discriminatory placement of
minority workers. 19 9
Similarly, in Johnson v. Pike Corp. of America,21°0 the court found that
the termination of a worker because his wages had been garnished constituted a discriminatory impact on blacks. The company asserted that the
administrative expense and inconvenience resulting from salary attachments justified this practice. The court acknowledged the existence of a
business necessity defense to a title VII complaint, but felt that the explanation offered by the employer was too insignificant to be considered
a serious defense. 2 ' The challenged classification could be justified
only if it were causally linked to the ability to perform a job effec20 2
tively.
Physical requirements such as height,2 0 3 weight, 20 4 and weight-lifting
ability 2 0 5 have been challenged successfully as sexually or racially discriminatory. These criteria have failed to qualify as business necessities
to outweigh their discriminatory effects.
Often, employers establish job qualifications that have discriminatory
effects 'upon disabled applicants. A more blatant example of such a practice is the frequent requirement that applicants undergo comprehensive
physical examinations. These general physicals are irrelevant for the
majority of positions, yet the validity of the examination results are
commonly accepted without question. 20 6
The regulation requires that an employer utilize employment tests that
depend upon only those sensory or manual skills that are necessary for
job performance. 2 0 7 If such skills are essential to the particular position
and are the precise talents that the tests accurately measure, 2 0 8 the
199. Id. at 799-800.
200. 332 F.Supp. 490 (C.D. Cal. 1971).
201. Id. at 495.
202. Id. at 493, 496.
203. See, e.g., [1973] EEOC DEcISIONS (CCH) 6223 (1971).
204. See, e.g., Meadows v. Ford Motor Co., 62 F.R.D. 98, 100 (W.D. Ky. 1973), modified on
other grounds, 510 F.2d 939 (6th Cir. 1975).
205. See, e.g., Nance v. Union Carbide Corp., 397 F. Supp. 436, 454 (W.D.N.C. 1975).
206. Equal Employment, supra note 28, at 458.
207. 42 Fed. Reg. 22,689 (1977). The term "test" is used broadly here to denote any criterion or
procedure by which candidates for hiring and promotion are evaluated. See 29 C.F.R. § 1607.2
(1977).
208. It is possible that technical experts can foster compatibility between testing systems and the
requirements of section 504 by eliminating from employment tests irrelevant items that may discrimi-
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criteria's use may be upheld. For example, deafness, or a quadraplegc
condition affecting the ability to write, may render a person unable t
complete successfully an oral or written test. In such a situation, examination results should be irrelevant as they do not predict job performance,
but measure impaired hearing or writing abilities. 0 9
In deciding whether the test for particular physical or mental criteria
validly predicts potential job performance, employers may not rely solely
on their own discretion if the use of the criteria would result in the exclusion of disabled job applicants. In order to justify the use of employment
criteria tests that foster exclusion, an employer should be required to produce substantial empirical evidence of the link between the administered
tests' results and the job qualification. 2 10
Significant difficulties occur when one attempts to relate specific test
results to particular job performance criteria. Such a process is especially
burdensome when general job efficiency ratings are utilized. For example, strength, agility, spelling, and grammar tests may be valid indicators
for the selection of competent policemen. The accuracy of these tests,
however, might be measured better by correlating the results with the
precise components of the job that utilizes the tested skills, instead of
setting each particular result against general efficiency ratings. The
strength and agility test results could be correlated with the features of
job performance that require those specific physical abilities. Similarly,
results of the spelling and grammar tests could be correlated with report writing ability and like facets of job performance. 2 1 '
In Chance v. Board of Examiners,212 the court applied the high standard of business necessity employed in Griggs 113 to an aptitude test used
to rate subjective job skills. In Chance, the court recognized that an interviewer or tester may be totally unaware that subjective judgments place
candidates at a disadvantage. Even though no proof of discriminatory
intent was introduced, the court noted that the critical question was
"whether discrimination against Blacks and Puerto Ricans is not being
unconsciously practiced by white interview examiners." 214
nate against disabled applicants. See Hunt, Civil Service Testing and Affirmative Action, 44 U. aN.
L. REV. 690, 696 (1975).
209. It is likely in such situations that employers will be required to utilize probation as a substitute for testing.
210. See United States v. Jacksonville Terminal Co., 451 F.2d 418, 453-54 (5th Cir. 1971).
211. Hunt, supra note 205.
212. 330 F. Supp. 203 (S.D.N.Y. 1971), aff'd, 458 F.2d 1167 (2d Cir. 1972).
213. See note 186 & accompanying text supra.
214. 330 F. Supp. at 223 (emphasis in original).
19771
NONDISCRIMINATION IN EMPLOYMENT
65
Potential for abuse is inherent in the ambiguous delineations of subjective job qualification. 21 5 An employer's right to utilize imprecise criteria
and to determine the weight of the criteria in the hiring or promotion
process may create unlawful "built-in headwinds" for disabled persons,
although the criteria are equally applied to all applicants and
employees. 21 6 Even if an employer is not cognizant of the discriminatory features of these subjective practices, these "neutral" elements of
the hiring or promotion process nevertheless may become vehicles for
discrimination.
Stereotyping a profession or a particular position within a profession,
similarly may cause discrimination. Those who review disabled applicants
for a job that traditionally has been filled by able-bodied personnel unintentionally may measure these applicants' abilities against the stereotype
of the able-bodied worker and conclude that the disabled worker is missing some of the intangible qualities necessary for success within the particular profession. The view by a profession's clientele that its workers
2 17
must be able-bodied may reinforce such hiring techniques.
This type of discriminatory activity occurred in Leisner v. New York
Telephone Co. 2 18 There, the defendant accepted for its Management
Development Program only those candidates who could show leadership
abilities. The employer considered military experience an indication of
leadership capacities, but granted no similar credit for educational experience such as teaching. Thus, many female applicants' managerial qualifications were limited.2 19 Plaintiffs showed that, in at least one instance,
the military experience consisted of a short period of duty by the male
applicant as a clerk-typist in the reserves.2 20 This approach to defining a
necessary business component, such as "leadership" would also constitute a violation of section 504.
To the extent that an employer's discretion in employee selection diminishes, the potential for discrimination against the disabled will also
decline. Decisions concerning the hiring of higher level personnel, however, often will continue to depend upon the results of interviews. Yet,
courts have been very receptive to inferences that interviews may be in221
struments of discrimination.
215. Note, Title VII and Employment Discrimination in "Upper Level" Jobs, 73 COLUM. L. REv.
1614, 1630 (1973) [hereinafter cited as Upper Level Jobs].
216. Griggs v. Duke Power Co., 401 U.S. at 432 (1971).
217. Upper Level Jobs, supra note 215, at 1629.
218. 358 F. Supp. 359 (S.D.N.Y. 1973).
219. Id. at 365.
220. Hearing Transcript at 398.
221. In Leisner, the court recognized, "Given the wide discretion that interviewers and supervisors have to measure the 'total person,' and waive some criteria if other criteria are satisfied, it is
THE AMERICAN UNIVERSITY LAW REVIEW
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Subjective decisionmaking processes result in discrimination against
disabled persons chiefly because employment criteria are applied disparately. Often, employers overlook unfavorable factors if the applicant is
able-bodied, while they unconsciously use the same factors to disqualify
disabled applicants. This practice clearly constitutes an unlawful discriminatory effect under section 504. Employers must attempt to identify
and use those qualifications that disabled persons can meet and that, at
the same time, satisfy business necessity standards. The failure of an
employer to make such attempts should enable a disabled complainant to
establish a prima facie case of discrimination under section 504.222
2. Bona fide occupational qualifications
Under title VII, a bona fide occupational qualification (bfoq) is a defense to overt discrimination when the job qualifications preclude hiring
members of a certain sex, religion, or ethnic group.2 2 3 A similar defense is implicit in the nondiscrimination policy promulgated under section 504. Once a bfoq is established, an employer is explicitly permitted
to exclude otherwise protected classes from the employment process. For
this reason, both the courts and the Equal Employment Opportunity
Commission (EEOC) have allowed very few employers to justify discriminatory treatment by using the bfoq concept. More evidence is required to prove the validity of a bfoq than to prove that a neutral
224
employment practice adversely affects a protected group.
In recent years, development of the bfoq concept has taken place in the
sex discrimination forum chiefly because of the EEOC guidelines promulgated in that area. 225 Complaints of sex discrimination frequently
have arisen from refusals to hire women because of stereotyped assumptions regarding their capacity to perform. 22 6 Since disabled individuals
possible that, at least in some cases', the criteria have been applied more stringently with respect to
women." 358 F. Supp. at 369. See also Rowe v. General Motors Corp., 457 F.2d 348, 358-59 (5th
Cir. 1972); Hester v. Southern Ry. Co., 349 F. Supp. 812, 818 (N.D. Ga. 1972).
222. See Upper Level Jobs, supra note 215, at 1631.
223. 42 U.S.C. § 2000e-2(e) (1970).
224. The burden of proof in attempting to show the existence of an exception to an overall statutory scheme rests on the party benefiting from that exception, in this case, the employer. Philips Co.
v. Walling, 324 U.S. 490, 493 (1952). See Fellows v. Medford Corp., 431 F. Supp. 199, 202 (D.
Ore. 1977).
225. 29 C.F.R. § 1604.2(a) (1976).
226. See, e.g., Gillin v. Federal Paper Bd. Co., 479 F.2d 97, 102 (2d Cir. 1973); Jurinto v.
Edwin L. Wiegand Co., 477 F.2d 1038, 1044 (3d Cir. 1973); Bowe v. Colgate-Palmolive Co., 416
F.2d 711, 717 (7th Cir. 1969); Vogel v. TWA, 346 F. Supp. 805, 819 (W.D. Mo. 1971); Cheatwood v. South Central Bell Tel. & Tel. Co., 303 F. Supp. 754, 758-59 (M.D. Ala. 1969).
1977]
NONDISCRIMINATION IN EMPLOYMENT
are confronted with similar biases, bfoq cases and administrative
guidelines used in the sex discrimination area are relevant.
Early cases construing the bfoq defense under title VII interpreted the
2 27
phrase "bona fide" to mean good faith on the part of the employer.
This interpretation required employers to demonstrate that the exclusionary hiring policy was not based upon any discriminatory intent.
The test was narrowed, however, by the Fifth Circuit in Weeks v.
Southern Bell Telephone and Telegraph Co. 2 1 8 There an employer discriminated against a female worker by refusing to assign her to a switchman's position because he believed that the job was too strenuous for
her. The court strictly limited the application of the bfoq defense by
holding that an employer could indulge in such intentional discrimination
only upon a factual showing of "a reasonable cause to believe . . . that
all or substantially all women" were unable to perform the relevant
job.2 2 9 Weeks therefore mandated a very high standard of proof for the
establishment of a bfoq defense.
The Supreme Court specifically grappled with the bfoq defense for the
first time in Dothard v. Rawlinson. 230 In that case, a woman was denied
employment as a correctional counselor in the Alabama prison system.
The Court found a valid defense stemmed from the "real risk" that male
inmates, including sex offenders and those deprived of a normal
heterosexual environment, might attack female guards solely because of
their womanhood. The employee's gender itself would detract from her
23 1
ability to maintain prison security.
At the same time, the Court approved the Weeks "all or substantially
all" test, noting that "the bfoq exception was in fact meant to be an
extremely narrow exception to the general prohibition of discrimination
... , 232 The finding of a bfoq was prompted by the shockingly inhuman conditions in Alabama penitentiaries.2 3 3 Thus, the decision was
carefully limited to the facts of that particular case. However, Dothard
makes clear the general principle that, in order to meet the "all or substantially all" test in establishing a bfoq defense, an employer may con-
227 See, e.g., Ward v. Firestone Tire & Rubber Co., 260 F. Supp. 579, 581 (W.D. Tenn. 1966).
228. 402 F.2d 228 (5th Cir. 1969).
229. Id. at 235.
230. 97 S. Ct. 2720 (1977).
231. Id. at 2730.
232. Id. at 2729.
233. Id. A federal district judge found conditions in Alabama prisons so "barbaric and inhumane"
as to be violative of the eighth amendment. See James v. Wallace, 406 F. Supp. 318, 329, 331
(M.D. Ala. 1976), aff'd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
sider the particular characteristics that place one within a protected class,
234
but not the abilities generally associated with that class.
The narrow reading of the bfoq exception under title VII supports a
similar approach under section 504. Employers may not evaluate the
same characteristics or conditions differently for able-bodied and disabled
groups. Although stereotyped assumptions may hold true for some handicapped individuals, they will not be valid for all. Decisions based upon
such class stereotypes perpetuate discrimination. 33
The rationale of Weeks, countenanced by the Supreme Court in
Dothard, demands that employment decisions be based on individual
capabilities, rather than on stereotyped conceptions, and will have a significant impact upon the hiring and placement of disabled individuals. An
employer's perception of the limitations imposed by a handicap often
does not include the problems with which disabled persons can effectively deal. 23 6 The application of a bfoq test, however, demands a factual basis be shown to support the employer's fear that disabled workers
will create safety problems or will be unable to perform job assignments
23 7
before that fear will be judicially sanctioned.
Similarly, it is invalid to refuse employment to handicapped persons
because of the fear that disabled workers in the employment situation
may be a "danger to themselves." 238 Such paternalism is a clear
example of the discriminatory treatment section 504 aims to abolish. Several title VII cases stand for the principle that sex discrimination cannot
be justified by reliance on the stereotype of women "as peculiarly delicate and impressionable creatures in need of protection from the rough
and tumble of unvarnished humanity." 239 And the Supreme Court held
in Dothard that "the argument that a particular job is too dangerous" is
rebutted by the "purpose of title VII to allow the individual woman to
234. For example, the Court dismissed as irrelevant a contention that some women might not be
able to protect themselves adequately. 97 S. Ct. at 2729, 2730. See Rosenfeld v. Southern Pac. Co.,
444 F.2d 1219, 1224 (9th Cir. 1971).
235. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (Marshall, J. concurring).
236. Equal Employment, supra note 28, at 475.
237. Id. at 475-76.
238. By overruling "female protective" statutes, courts have indicated that paternalistic attitudes
related to employment will be scrutinized in order to separate stereotypes from reality. For example,
a Louisiana ordinance preventing women telephone operators from working eight hours a day has
been held to constitute a stereotyped classification failing to meet the requirements of a bfoq. LeBlanc v. Southern Bell Tel. & Tel. Co., 333 F. Supp. 602, 608-09 (E.D. La. 1971), cert. denied,
409 U.S. 990 (1972).
239. Seidenberg v. McSorley's Old Ale House, Inc., 317 F. Supp. 593, 606 (E.D.N.Y. 1970).
See United States ex rel. Robinson v. York, 281 F. Supp. 8, 16 (D. Conn. 1968); White v. Crook,
251 F. Supp. 401, 408-09 (M.D. Ala. 1966).
NONDISCRIMINATION IN EMPLOYMENT
make that choice for herself." 240 Similarly, in a case arising under the
Fair Employment Law in Wisconsin, 4 1 the court, finding no persuasive
justification for the employer's defense that fumes in the work area endangered the employee's health, refused to allow the employer to dismiss
24 2
an asthmatic worker.
The refusal to hire disabled workers because of peer or customer preference for able-bodied workers also constitutes unlawful discrimination
under section 504. In Diaz v. Pan American, Inc. ,243 an analogous title
VII case, an employer attempted to justify its policy of discrimination
against males on the ground that it desired to satisfy the wishes of its
customers for female stewardesses. 2 44 The court determined that the
justification offered by the employer was insufficient. The company was
required to show that "the essence of the business operation" would be
damaged if the discriminatory policy were discontinued. 2 45
Although the factual basis approach toward the establishment of a bfoq
defense seems firmly implanted in title VII case law, the test has been
diluted somewhat in cases brought under the Age Discrimination in
Employment Act. 2 46 In Hodgson v. Tamiami Trail Tours, Inc. ,247 the
defendant refused to consider job applicants over fifty years of age. The
court held that the company could justify its selection policy by showing
that age was the best available method for screening applicants.2 48 Although the substantive test of Weeks, which requires the defendant to
have an objective factual basis for its belief, was not specifically repudiated, the court decided that an employer need not consider each
240. 97 S. Ct. at 2729-30.
241. Wis. STAT. ANN. §§ 111.31-.37 (West 1974).
242. Chicago, M., St. P. & Pac. R.R. Co. v. Wisconsin Dep't of Indus. Lab. & Human Rel.
[1972] 4 EmPL. PRAC. GUIDE (CCH)(Empl. Prac. Dec.) 7573 (Wis. Cir. Ct. 1971), modified, 62
Wis. 2d 392, 215 N.W. 2d 443 (1974). See Equal Employment, supra note 28, at476.
In Neeld v. American Hockey League, 439 F. Supp. 459, 462 (W.D.N.Y. 1977), a federal judge
issued a preliminary injunction preventing the application of a league rule that precluded teams from
signing players with vision in only one eye. The court indicated that players could not be denied the
opportunity to compete unless sight in both eyes were shown to be a bfoq.
243. 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950 (1971).
244. Id. at 387.
245. Id. at 388. In itsSex Discrimination Guidelines, the EEOC specifically indicates thatthe
preferences of employers, co-workers, or customers cannot determine whether a person of a particular sex can be hired for a particular position. 29 C.F.R. § 1604.2(a)(l)(iii) (1976). See Fesel v.
Masonic Homes of Del., Inc., [1977] 14 LAB. REL. REP. (Fair Empl. Prac. Cas.) 860, 864-65 (D.
Del. Mar. 14, 1977) (objections of female nursing home residents to male nurse not valid justification
for failure to hire).
246. 29 U.S.C. §§ 621-634 (1970 & Supp. V 1975).
247. [1972] EMPL. PRAC. GUIDE (CCH) 1 7795, at 6047 (S.D. Fla. 1972), aff'd sub nom. Usery
v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976).
248. Id. at 6050.
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applicant's qualifications. 24 9 In Hodgson v. Greyhound Lines, Inc. ,21 a
case involving similar facts, the Court of Appeals for the Seventh Circuit
required the employer to show only a rational basis to support its belief
that elimination of the maximum hiring age would result in an increased
1
25
risk of harm to its passengers.
Although the court of appeals in Greyhound noted that it was not applying the test used in Weeks, its dictum was similar to that of
Weeks. 252 The difference was that in Greyhound, the court directed that
the company offer some factual evidence in support of its contention that
age was a bfoq, while the test in Weeks would require proof that "all or
substantially all" older employees could not perform.253 In contrast, the
statement in Dothard would seem to require that age itself, rather than
factors that might be associated with a driver's age, be proven a valid
factor to preclude hiring drivers.
Two recent federal district court decisions appear to repudiate the standard utilized in Tamiami and Greyhound. In Rodriguez v. Taylor,25 4 the
City of Philadelphia would not hire security officers older than age forty
for reasons of safety. In addition to rejecting the city's argument that age
constituted a bfoq, the court adopted a factual basis test, noting that it
was possible for an individual over forty to have the requisite qualities of
strength and physical alertness. 25 5 Similarly, in Aaron v. Davis,2 56 the
court specifically refused to follow the Greyhound precedent, which had
been cited by the employer, and stated, "[L]egislation . .. can pro-
hibit practices which might pass muster under the Equal Protection
Clause .... ",257
Age discrimination cases are easily distinguishable, however, from disability discrimination cases. The former frequently result from inaccurate
employer estimates of the effects of aging on competency, rather than
from antagonism or indifference toward older workers.258 On the other
249. Id.
250. 499 F.2d 859 (7th Cir. 1974), rev'g 354 F. Supp. 230 (N.D. Ill. 1973), cert. denied, 419
U.S. 1122 (1975).
251. Id. at 863.
252. Compare Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d at 235 ("reasonable cause to
believe") with Hodgson v. Greyhound Lines, Inc., 499 F.2d at 863 ("rational basis in fact to
believe").
253. 408 F.2d at 235.
254. 428 F. Supp. 1118 (E.D. Pa. 1976).
255. Id. at 1120, 1121.
256. 424 F. Supp. 1238 (E.D. Ark. 1976).
257. Id. at 1241 n.2, 1242. See note 262 & accompanying text infra.
258. Note, The Age Discrimination inEmployment Act of 1967, 90 HARv. L. REv. 380, 384
(1976).
19771
NONDISCRIMINATION IN EMPLOYMENT
hand, discrimination based upon disability finds its source in past segregation, cultural deprivation, and similar historical factors. 25 9 Thus an
employer may exhibit discomfort or hostility toward disabled workers and
so refuse to hire them on that basis alone.
For these reasons, the adoption of a deferential test, resembling the
minimal scrutiny characteristic of the rational relation test of equal protection cases, 260 cannot be acceptable in the context of disability. To
approve such a test would allow the employer's good faith justifications
to be routinely accepted even when conclusive data to the contrary is
available. It is critical that courts do not erroneously apply the "lower
level" bfoq standard adopted in Greyhound and Tamiami to disability
discrimination to allow employer rationalizations to quell legitimate complaints of discrimination. The consequence of such a development would
be that courts enforcing section 504 would be flooded with exceptions to
26 1
the statute.
Judicial review of classifications within the protection of section 504
must use a higher standard than "minimal rationality." 262 The protec259. It has been asserted that discrimination against disabled workers is not based upon judgments
of inferiority, but rather on observations of actual physical differences. Wright, supra note 118, at
101-02. See Rogers v. Frito-Lay, Inc., 433 F. Supp. 200, 203 (N.D. Tex. 1977). This theory is
contrary to the historical evidence as well as to current sociological findings. See notes 16-30 &
accompanying text supra. Studies designed to measure the degree of social distance that people keep
between themselves and particular groups have found a strong association between intolerance toward
ethnic minorities and intolerance toward disabled persons. See, e.g., J. SaMMONs, DEVIANTs 27-32
(1969). As Justice William 0. Douglas once wrote: "Man, being filled with intense likes and dislikes, seems to have an infinite capacity for discrimination." Douglas, Some Dicta on Discrimination, 3 LOY. L.A. L. REv. 207 (1970).
260. See note 262 & accompanying text infra.
261. It would be extremely ironic to construe an act of Congress intended to make the benefits of
government grants available to all disabled people in such a way as to deprive them of that very
commodity. Section 504 should not be so construed unless it is clear on its face that the result is
what Congress intended. The legislative history indicates quite the contrary. See notes 76-79 &
accompanying text supra. Moreover, it is well established that civil rights statutes should "be accorded a sweep as broad as [their] language." United States v. Price, 383 U.S. 787, 801 (1966). See
Griffin v. Breckenridge, 403 U.S. 88, 97 (1971); Blumrosen, supra note 113.
262. The "minimal rationality" standard of equal protection review requires that a policy will be
upheld as long as it is rationally related to the achievement of a valid state objective; e.g., Williams
v. Lee Optical Co., 348 U.S. 483, 489 (1955). But see Trimble v. Gordon, 430 U.S. 762, 767
(1977) (classification based upon illegitimacy to receive "less than strictest scrutiny"); Craig v.
Boren, 429 U.S. 190, 197 (1976) (classification based upon gender must serve important government
objectives and must be substantially related to the attainment of those objectives).
Under the more vigorous "strict scrutiny" standard of equal protection review, a policy will be
invalidated unless the defendant can demonstrate a "compelling state interest" for maintaining the
discriminatory classification. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634-35 (1969).
The congressional debates and committee reports on section 504 identify obligations similar to
those under the equal protection guarantees of the fifth and fourteenth amendments to the Constitution. If a recipient of federal financial assistance administers a program in a discriminatory manner,
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol. 27:31
tions of the statute go beyond the requirements of the equal protection
clause of the fourteenth amendment.263 Under section 504, a practice
that in effect treats the disabled in a different manner from others must be
presumed to do so invidiously. 2 64 If employers are permitted to base
their actions upon traditional assumptions about disabled workers'
abilities, without proving that these assumptions are justified by the facts,
then section 504 will have virtually no impact upon employment discrimination.
A disabled individual must be permitted to overcome any presumption
of incapacity. This position was taken by a Wisconsin court in Fraser
Shipyards, Inc. v. Department of Industry, Labor, and Human Relations. 265 In that case the court held that a refusal to hire diabetics as
welders violated the state nondiscrimination statute.2 6 6 The employer's
contention that because some diabetics might present a hazard to other
employees, all diabetics could be disqualified from potential employment
as welders in that industry, was held to be "precisely the type of
rationale that the Wisconsin Fair Employment Law is designed to overcome." 267
Whether a disability is in fact a handicap to job performance or is a
real threat to others' safety is the question to be determined in each case
brought under section 504. The "handicap" of being blind, for instance,
must be treated as congruent with the visual limitations imposed by
blindness, without the superimposition of other perceived inabilities. 2 68
In establishing criteria for bfoq's, courts must force employers to dem-
see, e.g., Board of Public Instruction v. Finch, 414 F.2d 1068, 1078 (5th Cir. 1969), the discrimination may be considered so inextricably bound to the federal assistance as to constitute federal
discrimination. See, e.g., Norwood v. Harrison, 413 U.S. 455, 466 (1973).
Charges of disability discrimination have been brought directly under the equal protection clause of
the fourteenth amendment. Although commentators have argued that disabled persons are a "suspect
class," see Equal Employment, supra note 28, at 468-71; Burgdorf & Burgdorf, supra note 13, at
903-08, thus meriting "strict scrutiny," courts are divided on the issue. Compare In re G.H., 218
N.W. 2d 441, 446-47 (N.D. 1974) with Cuyahoga County Ass'n for Retarded Children & Adults v.
Essex, 411 F. Supp. 46, 52 (N.D. Ohio, 1976).
263. See note 257 & accompanying text supra. See also Cheatwood v. South Central Bell Tel, &
Tel. Co., 303 F. Supp. 754, 759 (in asserting the validity of a bfoq, employers face "a more
substantial burden" than simply showing it is " 'rational' ...
to discriminate against women as a
class .... ").
264. But see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (no strict scrutiny
for age qualifications).
265. 13 Fair Empl. Prac. Cas. 1809 (Wis. Cir. Ct. Nov. 29, 1976).
266. Wisc. STAT. ANN. § 111.32(5) (West 1974).
267. 13 Fair Empl. Prac. Cas. at 1810.
268. tenBroek & Matson, supra note 11, at 814.
19771
NONDISCRIMINATION IN EMPLOYMENT
onstrate a handicapped person's inability2 6 9 to perform in a wide variety
of jobs and settings within the relevant occupation. A different construc-
tion of the bfoq concept would frustrate Congress' attempt to guarantee
equal employment opportunities to disabled persons. The most efficacious
way of changing employer attitudes is through direct contact with disabled workers in the job situation. Such contact will occur only if section
504 is enforced to compel employers to adopt employment practices that
270
ignore traditional stereotypes of the disabled.
E. Pre-Employment Inquiries
Employment application forms commonly contain questions concerning
an applicant's physical and mental condition. As a result of these in-
quiries applicants may be excluded from consideration for employment
before their particular abilities have been determined. 2 7 1 The cruel
paradox of the pre-employment inquiry is that job applicants may be rejected from further consideration if they answer completely, yet their
failure to answer all inquiries or to give truthful responses may lead to
2 72
the same result.
269. The concept of "inability" finds constitutional support. The twenty-fifth amendment concems the removal of a disabled President from office. If it should arise that a disabled President
"transmit . .. his written declaration that no inability exists," then the cabinet officers and, ultimately, Congress must decide whether "the President is unable to discharge the powers and duties of
his office .... " U.S. CONST. amend. XXV, § 4 (emphasis added).
270. Equal Employment, supra note 28, at 483. The fear that courts may incorrectly apply the
bfoq concept in the disability context was recently brought to light in Davis v. Southeastern Community College, 424 F. Supp. 1341 (E.D.N.C. 1976), a case involving a hearing impaired woman
denied entrance to a nursing program. The court held that good hearing was a bfoq for the position
of registered nurse without granting the plaintiff the opportunity to demonstrate that she could successfully fulfill the requirements of such a position despite her disability. 424 F. Supp at 1345-46.
The opinion ignored the possibility of restructuring job requirements under the mandate of reasonable
accommodation. See notes 167-83 & accompanying text supra.
271. See PRESIDENT'S COMMITTEE ON EMPLOYMENT OF THE HANDICAPPED, WHAT EMPLOYERS THINK
OF THE MENTALLY RETARDED (1968); Olshansky, Grub, & Malamud, Employers' Attitudes & Practices in the Hiring of Ex-Mental Patients, 42 MENTAL HYGIENE 391 (1958).
272. In a case settled by the New Jersey Division on Civil Rights, an epileptic suffered a seizure
while working as a computer operator and was dismissed. The employer claimed that the dismissal
was justified because the worker had falsified his pre-employment application by not listing any
"physical impairments" or any "serious illness or injury during the past 5 years." The Division on
Civil Rights made a probable cause finding for the employee:
Because of the well known and long standing discrimination against epileptics, the failure of an epileptic to note his condition on a pre-employment application cannot, in lieu
of other factors, be considered an acceptable reason for the discharge of a person with a
physical handicap. This is especially true since there is no indication that the respondents have reviewed the applications of other employees to determine if similar falsifications exist.
Milkosky v. American Smelting & Ref. Co., No. EV034B-8297 (N.J. Dep't of Law & Pub. Safety,
Feb. 15, 1974).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:31
It has been judicially recognized that the conduction of pre-employment inquiries hinders disabled persons' employment prospects and
may discourage such individuals from seeking treatment for fear of stigmatization.27 3 The dilemma presented by employment application questions causes handicapped persons confusion and consternation.
The HEW regulation limits pre-employment inquiries regarding an
applicant's handicap to those necessary to carry out affirmative and remedial obligations. 27 4 An employer must clearly indicate that such information need only be provided on a totally voluntary and confidential
basis, and that refusal to provide information will not subject an applicant
or employee to any adverse treatment. 2 75 Section 504 thus is useful
particularly in checking discrimination against persons with disabilities
that are not apparent. Applications that force epileptics, diabetics, and the
emotionally disabled to reveal their conditions frequently hinder those
persons' job searches. For example, a diabetic who qualifies for a promotion may not apply for it because the revelation of the disability would
require the employer to make a reasonable accommodation. Such a demand raises the possibility of dismissal from a current position. Although
the employer might be required to implement the accommodation, the
6
individual's potential for promotion is effectively reduced.Y1
Employers are permitted to conduct a medical examination of a disabled prospective employee if all prospective employees are subject to
such an examination regardless of handicap. 27 7 Employers are required
to keep medical information on separate forms that are to be treated as
confidential medical records.2 7 8 Exceptions to this confidentiality requirement are provided for supervisors who may be informed of both
restrictions on the work requirements or duties of handicapped persons
and the need for accommodations, 7 9 for first aid and safety personnel
who may be informed if a condition might require emergency treatment, 28 0 and for government compliance officials who must be provided
81
relevant information upon request.1
One impact of the limitations on pre-employment inquiries is that
employers may place increased reliance on personal interviews to gain
273.
274.
275.
276.
277.
278.
279.
280.
281.
Spencer v. Toussaint, 408 F. Supp. 1067, 1073 (E.D. Mich. 1976).
42 Fed. Reg. 22,681 (1977) (to be codified in 45 C.F.R. § 84.14).
Id. § 84.14(b)(2).
See Implementing Section 504, supra note 28, at 20,321-22 app.
42 Fed. Reg. 22,681 (1977) (to be codified in 45 C.F.R. § 84.14(c)).
Id. § 84.14(d).
Id. § 84.14(d)(1).
Id. § 84.14(d)(2).
Id. § 84.14(d)(3).
19771
NONDISCRIMINATION IN EMPLOYMENT
information about an applicant. Although this will eliminate many of the
fears engendered by the written job application, employers must recognize that they may not substitute therefor subjective, non job-related
employment criteria that may have a discriminatory effect upon disabled
individuals. 28 2 Many of the problems to which pre-employment inquiries
are addressed might be solved by requiring more comprehensive job descriptions for particular positions. Under such a system, disabled persons
would make the basic determinations of their qualifications for specific
28 3
jobs.
CONCLUSION
Section 504 of the Rehabilitation Act of 1973 is a potential vehicle for
integrating disabled persons into the nation's work force. As handicapped
citizens become cognizant of their ability to achieve appropriate societal
status, they will build upon the experiences of other minorities and utilize
section 504 to secure their rights to equal employment opportunities.
There are several provisions of the section 504 regulation that significantly restrict the impact of the statute. The restrictions illustrate HEW's
failure to construe section 504 consistently with the congressional intent
to integrate disabled individuals into all facets of the nation's economy.
There may be a need for judicial intervention to extend the mandates of
the regulation to implement fully section 504.
The function of HEW's Office for Civil Rights is to translate the statute into action by creating effective means for conducting compliance
reviews, providing a sense of direction for other agencies, and institutionalizing section 504 enforcement proceedings. As in other areas of
discrimination where ethical and utilitarian arguments are ignored, the
threat of termination of federal financial assistance may have to be invoked in order to insure equal access to jobs. The federal government has
been assigned to speedily remove unneccessary restrictions placed upon
disabled persons in America.
282. See notes 215-22 & accompanying text supra.
283. Social attitudes have significantly progressed since a nineteenth century court concluded that
"the blind have sources of knowledge not available to others." Davenport v. Ruckman, 37 N.Y. 568
(1868). This statement, of course, represents nothing more than a superstition of the time, although
such beliefs often continue today. In another sense, the court's statement cogently enunciates a basic
truth: Familiarity with one's disability provides the most valuable source of information about that
disability. See tenBroek, supra note 28, at 917.