Your Rights and Responsibilities Under the ADA/504

NASSAU COMMUNITY COLLEGE POLICY ON LEARNING DISABILITIES UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973

Purpose

The purpose of this policy statement is to clarify the existing college policy towards equal education for the disabled as it applies to the learning disabled. This policy statement is intended to provide guidelines to the faculty to assist them in making academic accommodations for learning disabled students while at the same time maintaining a high degree of academic excellence.

Responsibility

Section 504 of the Rehabilitation Act of 1973 states that:

"No otherwise qualified handicapped individual ... shall, solely by reason of handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

This law obligates the College to make certain accommodations to provide qualified handicapped (disabled) persons with opportunities equal to those enjoyed by qualified non-handicapped persons. Section 504 further states that "Modifications as are necessary are designed to insure that academic requirements will not be discriminatory and will not effectively exclude the disabled person from completion of the program because of a lack of accommodations." As a recipient of federal assistance, Nassau Community College complies with the requirements of Section 504.

Definitions

A handicapped person is anyone with a physical or mental impairment that substantially limits one or more major life activities - such as walking, seeing, hearing, speaking or learning and therefore includes the learning disabled student. Persons with learning disabilities are specifically described by the legislation as:

"Those persons who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations. Such disorders include such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Such terms do not include persons who have learning problems which are primarily the result of visual, hearing, or motor handicaps, or mental retardation, emotional disturbance, or environmental, cultural, or economic disadvantage."

It is important to note that learning disabilities do not necessarily preclude students from being able to complete college level work. In fact, learning disabled individuals are of at least average intelligence or above. However, learning disabled students may face frustration trying to cope with the demands of college. The educational process may be impaired because their methods of learning differ. Yet with appropriate accommodations for their learning disabilities, many of these students can and do learn strategies to become successful in college.

College Admissions Policy for Learning Disabled Students

Learning disabled students must meet the same program entrance requirements as every other student at the College.

Documentation

a. Students must identify themselves to Disabled Student Services and provide appropriate documentation that they have a learning disability. Such documentation may include, but is not limited, to the following:

1. Certification by the high school's Special Education Committee or similar body.

2. Psycho-educational evaluation by a licensed practitioner.

b. The College's obligation attaches only to those students who have identified themselves as learning disabled.Academic Policy for Learning Disabled Students

Learning disabled students are required to meet the same standards of academic performance as other students at the College. However, faculty members and academic advisors may need to make certain accommodations (modifications) in exams, for example, which should be designed to reflect the students' mastery of the subject matter rather than reflecting the students' disabilities. The accommodations should be based on the nature of the learning disability and should be applied on an individual basis. Examples of accommodations could include, but are not limited to:

- extension of time to complete an assignment or an exam

- proofreaders for spelling

- note takers- oral presentation of normally written material

- tape recording of lectures or written assignments

- special seating- use of visual aids or calculators, or

- frequently providing written examples of complex lecture materials along with oral presentations.

It is the students' responsibility to make known the need for any such arrangements with the respective faculty members. Faculty are encouraged to seek the advice of the counselors in Disabled Student Services regarding appropriate accommodations.

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YOUR RIGHTS AND RESPONSIBILITIES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND SECTION 504 OF THE REHABILITATION ACT OF 1973

The Americans with Disabilities Act (ADA) calls for providing reasonable accommodations to known physical or mental limitations of qualified individuals with disabilities. Reasonable accommodations also must be made for individuals with disabilities, so they may participate in the employment application process, or the academic process. If you have a disability and are qualified to do a job, the ADA protects you from your disability.

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of a handicap in the College's admission and recruitment process.

The Americans with Disabilities Act (ADA)

The purpose of ADA is to provide a national mandate for the elimination of discrimination against individuals with disabilities in employment, public services provided by governmental agencies and public accommodations and services in the private sector, such as in stores, restaurants, theaters, transportation and public places.

Are You Protected by ADA in the Workplace?

You are protected from discrimination if you have a disability covered by the law and are qualified to perform the tasks of a job with or without reasonable accommodations for your disability.

A disability is defined as "having a physical or mental impairment that substantially limits a major life activity." The ADA also protects you if you have a history of such a disability.

Your Responsibilities

To be protected under the ADA, you must have a disability record or be regarded as having a substantial impairment, as opposed to a minor impairment. A substantial impairment is one that significantly limits or restricts a major life activity, such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

What Is Reasonable Accommodation?

Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things. First, you must satisfy the employer's requirements for the job, such as education, employment experience, skills or licenses. Second, you must be able to perform the essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job. An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship -- that is, it would require a significant difficulty or expense.

Section 504 of the Rehabilitation Act of 1973

Section 504 provides that you cannot be denied admission to, be subject to discrimination, or be denied the full participation in any educational program which receives federal funds simply because you have a disability. Nassau Community College and virtually all of the colleges in the United States are covered by this legislation.

Are You Protected by 504 at the College?

The law contains several specific provisions similar to those prohibiting sex discrimination in the College's Admissions Policy. These provisions prohibit (1) the imposition of limitations on the number or proportion of handicapped persons who may be admitted; (2) the use of any admissions' criterion or test that has a disproportionate, adverse effect on the handicapped, and (3) any preadmission inquiry about whether the applicant is handicapped, unless the recipient needs the information in order to correct the effects of past discrimination or to overcome past conditions which resulted in limited participation by the handicapped.

These prohibitions apply to discrimination directed against "qualified handicapped" persons. A handicapped person is qualified, with respect to college and vocational services, if he or she meets the academic and technical standards required for admission or participation in the education program or activity. While the regulations do not prohibit an institution from denying admission to a handicapped person who does not meet the institution's academic and technical admissions' standards, they do prohibit an institution from denying admission on the basis of the handicap. After a student is admitted, however, the institution may make a confidential inquiry concerning his/her handicap(s). The College may obtain advance information concerning a student's handicap(s) that may require accommodation.

The College also has a duty to ascertain that its admissions' tests are structured to accommodate applicants with handicaps that impair sensory, manual, or speaking skills, unless the test is intended to measure these skills. Such adapted tests must be offered as often and in as timely a way as other admissions' tests, and must be administered in facilities that, on the whole, are accessible to the handicapped.

Definition of ‘Person With Disability’, Section 504, Rehabilitation Act of 1973

Section 504 protects people with disabilities from discrimination based on their disability. A person has a disability (see Fig. 211, Disability Defined) within the meaning of Section 504 if he or she:

has a mental or physical impairment that substantially limits one or more major life activities;

has a record of such impairment; oris regarded as having such an impairment.

“Physical or mental impairments” that fall within discrimination prohibitions include:

any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculosketal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The law does not list the diseases or conditions that are considered impairments. The Rehabilitation Act does list conditions that are not covered, however, including homosexuality, bisexuality, transvestism, transsexualism, compulsive gambling, kleptomania, pyromania, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders and psychoactive substance use disorders resulting from the current illegal use of drugs (29 U.S.C. §705(20)(F)). The law also does not cover individuals who currently are engaging in the illegal use of drugs (29 U.S.C. §705(20)(C)). The ADA provides a similar list of exempted conditions.

Fig. 211, Overview of Section 504, Disability Defined“Person with disability” means an individual who: has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.

 

Source: Overview of Section 504

Section 504 Compliance Handbook

Major life activity

To have a disability under Section 504, an individual must have an impairment that substantially limits a major life activity, which is an everyday activity an average person can perform with little or no difficulty. The EEOC includes the following in its list of major life activities under the ADA: walking; seeing; speaking; hearing; breathing; learning; performing manual tasks; caring for oneself; working; sitting; standing; lifting; reaching; thinking; concentrating; interacting with others; and sleeping (29 C.F.R. Part 1630 App. §1630.2(i) and EEOC Enforcement Guidance: The ADA and Psychiatric Disabilities). After amendments to the Rehabilitation Act in 1992, the substantive standards of Title I of the ADA became the Section 504 employment standards. Note however, not all courts agree with all of the items on the EEOC’s list.

Difficulty with repetitive work assignments

Someone who has difficulty with repetitive work assignments unique to a particular job is not substantially limited in a major life activity if he or she performs common daily tasks as easily as most individuals, according to the Supreme Court (Toyota Motor Manufacturing v. Williams, Appendix IV:921).

Working as major life activity

Working is included in the EEOC’s list of major life activities, but the commission cautions in its Technical Assistance Manual on Title I that the question of whether an individual is substantially limited in working does not arise if there is a substantial limitation to another major life activity. Moreover, an individual is substantially limited in the major life activity of working only if an impairment significantly restricts the person’s ability to perform either a class of jobs or a broad range of jobs in various classes when compared to the average person with comparable training, skills and abilities.

An individual is not substantially limited in working if he or she is unable to perform only a single job (29 C.F.R. §1630.2(j)). For example, a person who cannot qualify as a commercial airline pilot because of a correctable vision impairment but who can fly in other capacities, a pitcher who can no longer pitch or a quarterback who can no longer throw would not be substantially limited in working if it were only those specialized jobs they could no longer perform. Courts look not just at what jobs the employees cannot do, but what jobs they can do.

An individual need not be totally unable to work to be considered substantially limited in working. The following factors generally are considered:

the geographical area to which the individual has reasonable access; and

the job from which the individual has been disqualified because of an impairment and the number and types of jobs that use similar training, knowledge, skills or abilities in the geographical area from which the individual also is disqualified due to the impairment. This is the class of jobs (29 C.F.R.§1630.2(j)).

The U.S. Supreme Court has questioned whether working is a major life activity at all, but has not ruled specifically on the issue (Sutton v. United Air Lines, Appendix IV:914). Appeals courts since Sutton have held that working is a major life activity (EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999)).

Section 504 Coordinator

Under Title II of the Americans With Disabilities Act, all public entities that employ 50 or more people, whether or not they receive federal funding, must name a coordinator to oversee compliance with the ADA. Analyzing its ADA Title II regulations, the Department of Justice notes that the ADA coordinator should serve the same role as it does under Section 504 – to be familiar with the requirements of the law and communicate those requirements to others within the organization who may not be aware of their responsibilities (28 C.F.R. Part 35 App. §35.107). The same person may act as a coordinator overseeing compliance with Section 504 and the ADA. Nassau Community College’s Coordinator is the Assistant to the President for Affirmative Action and Diversity/ADA/504 Coordinator, located in the Tower Building, Rooms 818-819.

Additional Questions and Answers on the Americans with Disabilities Act

Q. What is the relationship between the ADA and the Section 504 of the Rehabilitation Act of 1973?

A. The Rehabilitation Act of 1973 prohibits discrimination on the basis of handicap by the federal government, federal contractors and by recipients of federal financial assistance. If you were covered by the Rehabilitation Act prior to the passage of the ADA, the ADA will not affect that coverage. Many of the provisions contained in the ADA are based on Section 504 of the Rehabilitation Act and its implementing regulations. If you are receiving federal financial assistance and are in compliance with Section 504, you are probably in compliance with the ADA requirements affecting employment, except in those areas where the ADA contains additional requirements. Your nondiscrimination requirements as a federal contractor under Section 503 of the Rehabilitation Act will be essentially the same as those under the ADA; however, you will continue to have additional Affirmative Action requirements under Section 503 that do not exist under the ADA.

Q. Am I obligated to provide a reasonable accommodation for an individual if I am unaware of his/her physical or mental impairment?

A. No. An employer's obligation to provide reasonable accommodation applies only to known physical or mental limitations. However, this does not mean that an applicant or employee must always inform you of a disability. If a disability is obvious, e.g., the applicant uses a wheelchair, the employer "knows" of the disability even if the applicant never mentions it.Q. How do I determine whether a reasonable accommodation is appropriate and the type of accommodation that should be made available?A. The requirement generally will be triggered by a request from an individual with a disability, who frequently can suggest an appropriate accommodation. Accommodations must be made on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the job will vary. The principal test in selecting a particular type of accommodation is that of effectiveness, i.e., whether the accommodation will enable the person with a disability to perform the essential functions of the job. It need not be the best accommodation, or the accommodation the individual with a disability would prefer, although primary consideration should be given to the preference of the individual involved. However, as the employer, you have the discretion to choose between effective accommodations, and you may select one that is least expensive or easier to provide.

Q. What are my responsibilities as an employer for making my facilities accessible?

A. As an employer, you are responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this would cause undue hardship. Accessibility must be provided to enable a qualified applicant to participate in the application process, to enable a qualified individual to perform essential job functions and to enable an employee with a disability to enjoy benefits and privileges available to other employees. However, if your business is a place of public accommodation (such as a restaurant, retail store or bank) you have different obligations to provide accessibility to the general pubic, under Title III of the ADA. Title III also will require places of public accommodation and commercial facilities (such as office buildings, factories and warehouses) to provide accessibility in new construction or when making alterations to existing structures. Further information on these requirements may be obtained from the U.S. Department of Justice, which enforces Title III.

Q. Does the ADA require public posting of a notice explaining its requirements?

A. The ADA requires that you post a notice in an accessible format to applicants, employees and members of labor organizations, describing the provisions of the Act. EEOC will provide employers with a poster summarizing these and other federal legal requirements for nondiscrimination. EEOC will also provide guidance on making this information available in accessible formats for people with disabilities.

What Do I Do If I Think That I'm Being Discriminated Against?

Speak to Nassau Community College's Affirmative Action Officer. You may choose to let the Affirmative Action Officer know at any stage, before, or after you speak to anyone else, about the nature of your complaint. You may file an alleged charge of discrimination with the College's Affirmative Action Officer, who shall make every effort to resolve the problem by attempting to facilitate a resolution of the alleged incident either informally or through a formal, fact-finding procedure.

You may also elect to speak with the College's Center for Students with Disabilities. Students are also eligible for services from the Center for Students with Disabilities if they have a physical, visual, hearing or learning disability and have been accepted by the College. The program is voluntary and students must initiate contact with the office. They can do this by letting the office know that they have a disability and want such services on the College's Application for Admissions Form, or by letter.

The Center for Students with Disabilities advocacy support services are tailored to fit each individual student's need. Each student is assigned a Counselor, and the Counselor will advise the student throughout the resolution process, as well as personal concerns, or necessary accommodations. The center does not act as an investigative unit of the College.

If you think you have been discriminated against in employment on the basis of a disability after July 26, 1992, you can also contact the Equal Employment Opportunity Commission (EEOC). A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, at times it is recommended to contact EEOC promptly if discrimination is suspected.

The Commission will investigate and initially attempt to resolve the charge through conciliation, following the same procedures used to handle charges of discrimination filed under Title VII of the Civil Rights Act of 1964. The ADA also incorporates the remedies contained in Title VII. These remedies include, hiring, promotion, reinstatement, back pay, and attorney's fees. Reasonable accommodation is also available as a remedy under the ADA.

While the EEOC can only process ADA charges based on actions occurring on or after July 26, 1992, you may already be protected by state or local laws or by other current federal laws. EEOC field offices can refer you to the agencies that enforce those laws.

For more specific information about ADA requirements affecting employment, contact:

U.S. Equal Employment Opportunity Commission
33 Whitehall Street, 5th Floor
New York, NY 10004-2167

For more specific information about ADA requirements affecting public accommodations and state and local government services, contact:

U.S. Department of Justice
Civil Rights Division
Disability Rights Section
950 Pennsylvania Avenue NW
Washington, DC 20530-0001

For more specific information about requirements for accessible design in new construction and alterations, contact:

U.S. Access Board
Federal Agency Committed to Accessible Design
1331 F. Street, Suite 1000
Washington, DC  20004-1111