The Mayor's Office for People with Disabilities: New York City
Mark H. Leeds, Counsel, Mayor's Office for People with Disabilities with assistance on the 1990 edition from Kathe A. Newman
Table of Contents ..................................
The Mayor's Office for People with Disabilities ....
Rights of People with Disabilities .................
Outline of Rights of People with Disabilities ......
I. Who Has a Disability? ...........................
A. Definition ...................................
B. Who is Qualified Under the Law? ..............
C. Individuals Considered to Have a Disability ..
II. Significant Laws Recognizing Rights of People with Disabilities ...................................
A. Federal .....................................
1. Rehabilitation Act .......................
2. Fair Housing Act .........................
3. Education of the Handicapped Act (EHA)
4. Americans with Disabilities Act (ADA) ....
B. State .......................................
1. Human Rights Law .........................
2. Civil Rights Law .........................
C. City ........................................
1. Human Rights Law .........................
III. What Rights Do These Laws Recognize? ..........
A. Employment ..................................
1. Equal Opportunity ........................
2. Affirmative Action .......................
B. Housing .....................................
1. Federal Fair Housing Act..................
2. Architectural Accessibility ..............
3. City and State Human Rights Laws .........
C. Public Accommodations .......................
1. Generally ................................
2. Program Accessibility ....................
3. Architectural Accessibility...............
4. Educational Facilities ...................
5. Transportation ...........................
6. Hospitals ................................
D. Education ...................................
1. Generally ................................
2. Schools as Public Accommodations .........
IV. How Are These Rights Enforced? .................
A. Federal Rehabilitation Act...................
1. Section 503 ..............................
2. Section 504 ..............................
B. Federal Fair Housing Act ....................
C. Federal Education of the Handicapped Act ....
D. New York State Human Rights Law .............
E. New York State Civil Rights Law .............
F. New York City Human Rights Law ..............
G. Arbitration and Alternative Dispute Resolution
H. Which Forum Should You Choose? ..............
I. Attorney's Fees .............................
Let Us Serve You ...................................
Resource Appendix ..................................
General Information and Assistance ..............
Where to File Complaints ........................
Legal Assistance ................................
Another Helpful Resource ........................
Rights of People With Disabilities
Summer 1990
THE MAYOR'S OFFICE FOR PEOPLE WITH DISABILITIES
The Mayor's Office for People with Disabilities ("MOPD") is the liaison between City government and the disability community. MOPD assists City agencies and the community in efforts to comply with laws recognizing rights of people with disabilities. In addition, the Office provides information, referral and advocacy for people with disabilities. MOPD advises the Mayor about legislative initiatives which would benefit the disability community. Among areas of prime concern are education, employment, housing, as well as general accessibility to and accommodation of people with disabilities. These topics are covered in this book. Additional areas of MOPD's authority include access to transportation, community-based health and social services, home care and entitlements.
RIGHTS OF PEOPLE WITH DISABILITIES
The following outline of rights for people with disabilities in New York City covers some of the most common areas of concern. Of course, in a brief outline such as this, it is not possible to cover, in detail, all aspects of legal protection. MOPD will assist people seeking further information on an individual basis and may be able to provide a speaker for interested groups.
City, State and Federal laws recognize a wide variety of rights for people with disabilities. Frequently, similar rights are covered by all three levels of government, providing alternative enforcement mechanisms and remedies. Enforcement agencies coordinate their efforts to try to achieve the best result for people who claim that their rights have been violated. The Mayor's Office for People with Disabilities is not an enforcement agency, although we can refer people to such agencies when the less formal advocacy which we provide does not secure adequate relief.
OUTLINE OF RIGHTS OF PEOPLE WITH DISABILITIES
I. Who Has a Disability?
A. While definitions vary slightly under different laws, generally, people are considered to have a disability if they:
1) have a physical or mental impairment which substantially limits one or more major life activity(ies), such as walking, talking, seeing, hearing, self care, learning, or working; or
2) have a record of having had an impairment such as a history of cancer, or past mental illness; or
3) are regarded by others as having an impairment, for example, due to a facial scar, limp or positive HIV test.
B. Laws, particularly those relating to employment, frequently limit protection to those considered "qualified". To be "qualified", a person with a disability must be able to perform essential job functions (at least with reasonable accommodations by the employer) or to enjoy basic aspects of the program or activity (again, with reasonable accommodation, if needed). (What accommodations are reasonable generally depend on the circumstances of each situation.)
C. People with AIDS, ARC, tuberculosis and other infectious conditions are considered to have a disability and are protected to the extent that their infectiousness does not pose a significant risk of hazard to others. People who abuse alcohol, narcotics and other substances are considered to have disabilities, although current abuse which interferes with safety, job performance or similar factors would deprive them of protection in many cases.
II. Significant Laws Recognizing Rights of People with Disabilities
While many laws affect people with disabilities, several are most significant in recognizing and providing enforcement for basic human rights.
A. Federal
1. Rehabilitation Act
2. Fair Housing Act
3. Education of the Handicapped Act (EHA)
[This law is likely to be renamed the Individuals with Disabilities Education Act (IDEA) in the fall of 1990].
4. Americans with Disabilities Act (ADA)
[The ADA was signed into law on July 26, 1990, but will not be phased into effect until the beginning of 1992 at the earliest. Thus it will not be discussed in detail here. The ADA is a national recognition of the rights of people with disabilities in employment and public accommodations (including transportation and telecommunications). Laws in New York already recognize virtually all of the rights covered by the ADA.]
B. State
1. Human Rights Law
2. Civil Rights Law
C. City
1. Human Rights Law
III. What Rights Do These Laws Recognize?
A. Employment
1. Equal Opportunity
a. Section 504 of the Federal Rehabilitation Act requires recipients of Federal funds to assure qualified people with disabilities an equal opportunity for employment and participation in the recipients' programs and services. All phases of employment are covered -- including recruitment, hiring, training opportunities, rates of pay, benefits, promotion, job assignments, layoff and termination. Recipients may not use employment tests or criteria which are not related to the essential elements of the job or which otherwise tend to screen out qualified people with disabilities. Recipients must make reasonable accommodations to the known disabilities of all qualified employees and job applicants unless providing such accommodations would create an undue hardship for the employer. What accommodations are reasonable generally depends on the circumstances of each situation, but can include:
i) making facilities physically accessible;
ii) job restructuring;
iii) modifying work schedules;
iv) purchasing or modifying equipment; or
v) providing readers, interpreters or other support services.
Most recipients must designate someone to coordinate their compliance with Sec. 504, establish an internal grievance procedure to address discrimination complaints and take other continuing steps to advise employees of employer obligations under Sec. 504.
State and City Human Rights Laws extend equal opportunity protections such as those of Sec. 504 to job applicants and employees of most employers, including those who are not recipients of Federal funds, although appointment of a coordinator and creation of internal grievance procedures are not required. Unions and employment agencies also are prohibited from discriminating under these State and City laws. The State Civil Rights Law also prohibits discrimination against people with disabilities who use a guide, hearing or service dog or a cane. In addition, State Civil Service and Education Laws contain provisions against employment discrimination on the basis of disability, such as in test taking.
2. Affirmative Action
Section 503 of the Federal Rehabilitation Act requires employers with Federal contracts of $2500 or more annually (for services, supplies, use of real property, etc.) to take affirmative action to employ and promote qualified people with disabilities. Employers of 50 or more and those with Federal contracts of $50,000 or more must have a written affirmative action plan and designate responsible employees to carry it out. Federal contractors are recipients of Federal funds and thus are covered under Sec. 504 as well. However, while Sec. 504 generally precludes asking a pro- spective employee whether he or she has a disability (although questions about the ability to perform specific job related functions are permissible), Sec. 503 permits a Federal contractor to ask directly about disabilities, for affirmative action purposes, but only if the questions are properly phrased and confidentiality requirements are met. The nature and extent of such inquiries are limited by State and City Human Rights Laws. Federal agencies have affirmative action obligations to their employees under Sec. 501. Amendments to the City Charter passed in 1989 created an Equal Employment Practices Commission to monitor compliance by City agencies with equal employment and affirmative action requirements.
B. Housing
1. Federal Fair Housing Act
The Federal Fair Housing Act prohibits discrimination against people with disabilities or against those residing or associating with people who have disabilities, in the sale or rental of housing accommodations. Such discrimination also includes refusal to:
a) permit the person with a disability (at that individual's expense) to make reasonable modifications of the premises which would enable that person to more fully enjoy use of the premises; or
b) make reasonable changes in building rules which changes would enhance the enjoyment of the premises by the person with a disability.
2. Architectural Accessibility
New York City's Building Code, like its State counterpart, requires building owners making renovations to include accessible and adaptable features, leaving tenants who need further adaptations to complete them. New construction, currently under New York law, and after March 13, 1991, under Federal law, must be accessible/ adaptable. The Federal Architectural Barriers Act requires Federally built, leased or assisted housing to meet certain Federal accessibility standards but, except for providing an alternative remedy, the standards required by this law are less stringent than those under either the Fair Housing Act as of 1991 -- or current State and City Building Codes. Most pertinent provisions of New York City's Building Code were added by Local Law 58 of 1987.
3. City and State Human Rights Laws
City and State Human Rights Laws prohibit discrimination against people with disabilities, much as the Federal Fair Housing Act does. Under New York City's Human Rights Law, a building owner is required to permit (and, in some cases, even to make) changes, such as the installation of hand-rails or a ramp. The State Civil Rights Law prohibits discrimination in public and private housing solely because a person has both a disability and is accompanied by a guide, hearing or service dog.
C. Public Accommodations
1. Generally
City and State Human Rights Laws prohibit exclusion of people with disabilities from most public accommodations such as restaurants, hotels, clubs, theatres, recreational facilities and medical clinics. Architectural changes may be required to promote accessibility under these laws. State and City Building Codes, State Public Buildings Law and State Trans-portation Law also contain provisions which promote architectural accessibility in places of public accommodation, as well as in other facilities.
2. Program Accessibility
Section 504 of the Federal Rehabilitation Act requires that direct and indirect recipients of Federal financial assistance operate programs and services in such a way that, when viewed in their entirety, they are accessible to persons with disabilities. No person with a disability may be excluded from programs or services of such recipients because the facilities are inaccessible. New facilities or facilities to be substantially renovated must be made accessible. Existing facilities must be made accessible eventually, but, until they are, recipients must use alternative methods of providing services and/or access to the program, such as alternative sites, home visits, etc. Priority in choosing alternative methods must be given to those which provide the greatest possible integration of people with disabilities. Reasonable accommodations must be made to a person's known disabilities to provide the person with meaningful access to the program.
3. Architectural Accessibility
Public buildings built or bought with Federal funds are required to be accessible to people with physical disabilities, as are Federally leased buildings intended for public use or in which people with physical disabilities might be employed, pursuant to the Federal Architectural Barriers Act. New buildings covered by these laws are to be built in compliance with standards set by the Federal Architectural and Transportation Barriers Compliance Board. Buildings are not to be leased (or leases are not to be renewed) unless the buildings comply with those standards and renovations are to be done in accord with those standards. In addition to the program accessibility requirements described above, the State Public Buildings and Transportation Laws require various public buildings and facilities to be built (or, when existing buildings or facilities are altered, to be altered) so that they are accessible to people with disabilities.
4. Educational Facilities
Public educational facilities are exempt under the State and City Human Rights Laws; however, the State Civil Rights Law bars discrimination there with respect to the use of guide, hearing and service dogs. Federal Rehabilitation Act Sec. 504 and the Education of the Handicapped Act require accessibility, among other things, in most schools not covered by the State and City Human Rights Laws. Private schools (educational corporations or associations) which are or claim to be non-sectarian or tax-exempt are prohibited from denying people with disabilities use of their facilities under both State and City Human Rights Laws. The City and State University systems are among colleges and universities covered by these human rights law provisions.
5. Transportation
State Civil Rights and Transportation Laws require that buses and all other forms of public and private transportation accept guide, hearing and service dogs at no extra charge when accompanying a person with a disability. Air carriers are also prohibited from discriminating against people with disabilities regardless of whether the carrier receives Federal funds. Moreover, airlines are prohibited from limiting the number of people with disabilities on a flight and from requiring special advance notice (except for special equipment, such as respirators).
6. Hospitals
The State Hospital Code requires hospitals to "manage a resource of skilled interpreters and persons skilled in communicating with vision and hearing impaired individuals and ... [to] provide translations/transcriptions of significant hospital forms, instructions and information in order to provide visual, oral and written communication with all persons receiving treatment in the hospital regardless of a patient's language or impairment of hearing or vision.... [I]nterpreters and persons skilled in communicating with vision and/or hearing impaired individuals ... [must] be available to patients in the inpatient and outpatient setting within twenty minutes and to patients in the emergency service within ten minutes of a request ...." Treatment is to be provided without discrimination as to disability; patients are to be informed of these rights.
D. Education
1. Generally
The Federal Education of the Handicapped Act (sometimes commonly referred to as P.L. 94-142 or as the EHA -- but soon to be renamed the Individuals with Disabilities Education Act (IDEA)) requires that a free appropriate elementary and secondary education be provided for children with disabilities between ages 5 and 21; preschool programs for children ages 3-5 were added in 1989. Required features include:
a) programs to identify and evaluate all children with disabilities;
b) an Individualized Education Program ("IEP") designed to meet the needs of each disabled child in the most integrated setting possible;
c) related services (such as transportation, testing, diagnosis and treatment).
Parents have the right to:
a) be consulted before the school makes a decision about their child;
b) be involved in the planning of IEPs;
c) see all records relating to their child's evaluation, placement and education;
d) object to the school's decision about their child, have a formal hearing about such objections; and
e) obtain an independent educational evaluation which the school district (for New York City, the Board of Education) will pay for under certain circumstances, such as when the district's professionals are unable to evaluate the child in a timely manner.
2. Schools as Public Accommodations
As discussed more fully under Public Accommodations, although public schools generally are excluded from coverage under public accommodations provisions of State and City Human Rights Laws, protection is provided -- to students, parents, teachers, other employees and others -- by Sec. 504 and (as to people with disabilities who use guide, hearing of service dogs) by the State Civil Rights Law and by a separate provision of the State Human Rights Law. As described above, private non-sectarian and tax-exempt schools are prohibited from denying use of their facilities to people with disabilities under the State and City Human Rights Laws. The protections mentioned in this paragraph apply to training programs and post-secondary education (colleges and universities), as well as to elementary and secondary schools.
IV. How Are These Rights Enforced?
A. Federal Rehabilitation Act
1. Section 503
a. Complaint Procedure
(1) Discuss complaint with affirmative action officer; or
(2) file an internal grievance with the employer; or
(3) file complaint with the U.S. Department of Labor Office of Federal Contract Compli- ance Programs ("OFCCP"), 201 Varick Street, NYC 10014 ((212) 337-2218) within 180 days of the alleged violation.
b. Penalties can include reinstatement of employee, back pay, termination of Federal contracts.
2. Section 504
a. Complaint Procedure
(1) Discuss with Sec. 504 Coordinator; or
(2) file an internal grievance (if procedure available); or
(3) file Sec. 504 complaint with the Federal agency which funded the program, service (or, where no funding is provided to the particu- lar program or service involved, with the Federal agency providing funding to the recipient generally) within 180 days of the alleged violation; or
(4) file a private lawsuit.
b. Penalties can include reinstatement of employee, back pay, withdrawal of Federal funding, attorney's fee and other relief.
B. Federal Fair Housing Act
The U.S. Department of Housing and Urban Development ("HUD") is empowered to attempt conciliation and, failing that, to proceed to administrative hearings; either side, however, has the right to bring a dispute under the law into Federal court. Complaints may be filed with HUD's Fair Housing and Equal Opportunity Office, Region II, 26 Federal Plaza - Room 3532, NYC 10278 ((212) 264-1290).
1. Complaint Procedures
a. Administrative Proceedings - File complaint with HUD within 1 year after alleged discrimina- tory housing practice has occurred or ceased.
b. Judicial Proceedings
(1) If HUD files a charge based on your complaint, but you would prefer judicial action, you may ask HUD to have the U.S. Justice Department file a civil lawsuit on your behalf.
(2) File a private lawsuit within 2 years after alleged discriminatory housing practice has occurred or ceased, or after a concilia- tion agreement has been violated.
2. Penalties may include injunctive relief, money damages, civil fines (up to $50,000 for a first offense; up to $100,000 thereafter) and attorney's fees and costs. Bona fide sales or leases made before relief is granted will not be disturbed, however.
C. Federal Education of the Handicapped Act
Parents should work with the Committee on Special Education of their Community School Board. If parents need Federal assistance in securing their rights under the Education of the Handicapped Act, they should contact the Office of Special Education and Rehabilitative Services in the U.S. Department of Education, which administers the law with help from that Department's Office for Civil Rights, Region II, 26 Federal Plaza - Room 33130, NYC 10278 ((212) 264-2906) (The U.S. Department of Education also handles complaints of discrimination in higher education.)
D. New York State Human Rights Law
1. Complaint Procedures
a. Administrative Proceedings - File complaint with New York State Division of Human Rights, (see addresses telephone numbers in Appendix) (or with the New York City Division of Human Rights, 52 Duane Street, NYC 10007 ((212) 566-5050)) within 1 year of the alleged violation; or
b. Judicial Proceedings - File a private law-suit.
2. Penalties may include reinstatement, back pay, damages or other remedial action. The State Division may impose fines; failure to comply with State Division orders may be deemed a misdemeanor, carrying an additional fine of between $100 and $500.
E. New York State Civil Rights Law
1. File a private lawsuit.
2. Seek enforcement by Attorney General, 163 West 125th Street, NYC 10027 (or District Attorney).
3. Criminal sanctions may be imposed for viola tions.
F. New York City Human Rights Law
1. File charge with New York City Commission on Human Rights, 52 Duane Street, NYC 10007 ((212) 566-5050) within 1 year of the alleged violation.
2. Remedies may include reinstatement, back pay, damages and other remedial action.
G. Arbitration and Alternative Dispute Resolution
Some statutes, collective bargaining agreements and other programs provide for arbitration or some other alternative dispute resolution mechanism which may be faster, easier and less expensive than waiting for administrative action or proceeding to a lawsuit. However, these approaches have their limitations as well and should be considered carefully in comparison with more traditional procedures.
H. Which Forum Should You Choose?
1. Whether you choose to file charges with a City, State or Federal government agency, to file a State or Federal lawsuit, or to seek arbitration or some other form of alternative dispute resolution, depends on a variety of factors which may best be weighed in consultation with one of the enforcement agencies or with a private attorney. Effectiveness, promptness and cost of the various alternatives may be among the factors to explore.
2. It is important to decide early whether you want to follow administrative procedures, rather than pursuing private litigation, since pursuit of one course may bar another. A court may defer to arbitration or to an administrative proceeding when one of these alternatives has been commenced before you go to court; an administrative proceeding may be stopped when you go to trial in court.
I. Attorney's Fees
Frequently, people with disabilities, like others seeking legal assistance to enforce their rights, do not have the money to pay a lawyer. Fortunately for those with disabilities, many of the laws setting forth their rights also provide for the award of attorney's fees. Other statutes and court decisions provide for the award of attorney's fees as well.
LET US SERVE YOU
The Mayor's Office for People with Disabilities is here to serve you -- to help you understand your rights, to help others recognize those rights and to refer you to appropriate enforcement agencies when necessary. As mentioned earlier, this brief outline cannot cover all details nor discuss how these laws may apply to your particular situation. For further information and assistance, call MOPD's Information, Referral and Advocacy Unit (IRA) at 52 Chambers Street, Room 206, NYC 10007 ((212) 566-3913) (voice and TTY).
RESOURCE APPENDIX
General Information and Assistance
New York City Mayor's Office for People with Disabilities 52 Chambers Street - Room 206 New York, New York 10007 (212) 566-3913 (voice/TTY) (212) 566-0972 (voice) (212) 566-0046 (TDD only)
New York State Office of the Advocate for the Disabled 116 West 32nd Street - 14th Floor New York, New York 10001 (212) 502-0877 (800) 522-4369 (voice/TDD) (Albany - Main Office)
New York State Commission on Quality of Care for the Mentally Disabled 80 Maiden Lane - Room 320B New York, New York 10038 (212) 804-1639
Library for the Blind and Physically Handicapped The New York Public Library 166 Avenue of the Americas New York, New York 10013 (212) 925-1011
Where to File Complaints
Federal Rehabilitation Act Section 503 (Employment - Federal Contractors)
Office of Federal Contract Compliance Programs United States Department of Labor 201 Varick Street New York, New York 10014 (212) 337-2006
Section 504 (Employment/Programs - Federal Fund Recipients)
File with Federal agency funding the entity about which complaint is being made; Federal agencies handling most complaints include:
United States Department of Education Office of Civil Rights 26 Federal Plaza - Room 33130 New York, New York 10278 (212) 264-2906
United States Department of Health and Human Services Office of Civil Rights 26 Federal Plaza - Room 3312 New York, New York 10278 (212) 264-3313
United States Department of Housing & Urban Development Office of Fair Housing and Equal Opportunity 26 Federal Plaza - Room 3532 New York, New York 10278 (212) 264-1290
United States Department of Labor Regional Office of Civil Rights 201 Varick Street New York, New York 10014 (212) 337-2218
Federal Fair Housing Act
File with the United States Department of Housing and Urban Development, listed under Sec. 504, above.
Federal Education of the Handicapped Act
File with the United States Department of Education, listed under Sec. 504, above.
New York State Human Rights Law
New York City Commission on Human Rights 52 Duane Street New York, New York 10007 (212) 566-5050
New York State Division of Human Rights New York City Offices:
Main Office 55 West 125th Street New York, New York 10027 (212) 870-8400
Upper Manhattan & Queens State Office Building 163 West 125th Street New York, New York 10027 (212) 870-8650
Lower Manhattan State Office Building 270 Broadway, Ninth Floor New York, New York 10007 (212) 587-5041
Brooklyn & Staten Island 1360 Fulton Street Brooklyn, New York 11216 (718) 622-4600
New York State Civil Rights Law New York State Attorney General 163 West 125th Street New York, New York 10027 (212) 870-4475
New York City Human Rights Law
New York City Commission on Human Rights 52 Duane Street New York, New York 10007 (212) 566-5050
Legal Assistance
(Note: Several of these agencies have multiple offices; only main offices are listed below. Most agencies listed below can only assist people with low incomes. Offices which are most involved in providing legal services to people with disabilities are indicated in bold letters).
Bronx Legal Services 579 Courtlandt Avenue Bronx, New York 10451 (212) 993-6250
Brooklyn Legal Services Corporation "A" 260 Broadway Brooklyn, New York 11211 (718) 782-6195
Brooklyn Legal Services Corporation "B" 105 Court Street - 3rd Floor Brooklyn, New York 11201 (718) 237-5500
Gay Men's Health Crisis, Inc. 129 West 20th Street New York, New York 10011 (212) 337-3504
Harlem Legal Services, Inc. 144 West 125th Street New York, New York 10027 (212) 222-7800
Lambda Legal Defense and Education Fund, Inc. 666 Broadway - 12th Floor New York, New York 10012 (212) 995-8585
Legal Action Center of the City of New York 153 Waverly Place New York, New York 10014 (212) 243-1313
Legal Aid Society Civil Legal Assistance Information 11 Park Place New York, New York 10007 (212) 227-2755
Legal Services for New York City (formerly Community Action for Legal Services (CALS)) 350 Broadway New York, New York 10013 (212) 431-7200
MFY Legal Services, Inc. 41 Avenue A New York, New York 10009 (212) 475-8000
New York Lawyers for the Public Interest, Inc. 135 East 15th Street New York, New York 10003 (212) 777-7707
Queens Legal Services Corporation 89-02 Sutphin Boulevard Jamaica, New York 11435 (718) 657-8611
Legal Referral Service
Legal Referral Service The Association of the Bar of the City of New York 42 West 44th Street New York, New York 10036 (212) 382-6625 (voice)/(212) 768-1466 (TDD)
Law School Clinics
BLS Legal Services Corporation Federal Litigation Program Brooklyn Law School One Boerum Place Brooklyn, New York 11201 (718) 780-7994
Bet Tzedek Legal Clinic Cardozo School of Law The Brookdale Center 55 Fifth Avenue New York, New York 10003 (212) 790-o240
Federal Litigation Clinic New York Law School 57 Worth Street New York, New York 10013 (212) 431-2312
Another Helpful Reference
Rights of People with Disabilities The Association of the Bar of the City of New York 42 West 44th Street New York, N.Y. 10036 (212) 382-6600
900601
ALAW0022
Reproduced with permission.
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