SD24 - The Provision of the Virginians with Disabilities Act Which Exempts Employees Covered by the Federal Rehabilitation Act of 1973

  • Published: 1989
  • Author: Secretary of Health and Human Resources
  • Enabling Authority: Senate Joint Resolution 14 (Regular Session, 1988)

Executive Summary:
The 1988 Virginia General Assembly was concerned that some Virginians with disabilities have access to courts for employment related grievances while others do not. Employers who are covered by the federal Rehabilitation Act of 1973 are expressly exempt from coverage by the Virginians with Disabilities Act. The General Assembly directed the Secretary of Health and Human Resources to study the exemption, its effect on persons with disabilities and the potential effect on employers should the exemption be removed.

Section 503 of the Rehabilitation Act requires contractors and subcontractors with federal contracts in excess of 2,500 for goods or non-personal services including construction not to discriminate against, and to take affirmative action to employ and advance in employment, qualified handicapped persons. A handicapped person who believes that a contractor or subcontractor has failed to take affirmative action or has discriminated against him or her may file a complaint with the U.S. Department of Labor. The remedies available under Section 503 are debarment of the contractor from future contracts, termination of present contracts and individual remedies such as back pay and front pay. There is no access to the courts.

Section 504 of the Rehabilitation Act precludes discrimination against qualified handicapped persons in federally assisted programs whether operated by public agencies or private concerns. Each federal agency administering federal assistance programs have responsibility to issue regulations implementing Section 504 in its programs. A person seeking redress of a violation of Section 504 has access to federal court as well as an administrative remedy available.

The study included a legal analysis, statistics on grievances and meetings with representation from business, local government and the disability community.

Findings

1. Despite the patchwork of protection, all aggrieved parties have access to court except those whose employers were federal contractors covered by Section 503 of the Rehabilitation Act of 1973.

2. Persons covered by Section 503 of the Rehabilitation Act of 1973 only have federal administrative remedies.

a. Redress against federal contractors covered under Section 503 of the federal Rehabilitation Act of 1973 was sought by 89 individuals through the Virginia Department for Rights of the Disabled during its first three years. Of those, 32 individuals filed grievances with the Office of Federal Contract Compliance Programs within the Department of Labor.

3. Persons covered by Section 504 of the Rehabilitation Act of 1973 have a federal administrative remedy and access to federal court.

4. The number of employers covered under Section 504 of the Rehabilitations Act of 1973 was greatly expanded by the Civil Rights Restoration Act in March, 1988.

a. Private employers who received federal financial assistance and who were covered by Section 504 of the Rehabilitation Act of 1973 had 57 complaints lodged against them with DRD during the three-year period.

b. Forty-one persons with disabilities brought complaints to DRD against local government employers.

c. Redress against the state in employment matters was sought by 53 people through DRD.

5. Dispute resolution assistance from the Virginia Department for Rights of the Disabled (DRD) was sought by 649 individuals who had employment related complaints between July 1, 1985 and June 30, 1988. Of that number, 359 were covered by the Virginians with Disabilities Act. Suits were filed by the Department in only four cases.

Conclusions

It has been concluded that there is no need, at this time, to pursue further the removal of the exemption for employers covered by Section 504 as the aggrieved Virginian with a disability has access to federal court as well as the availability of an administrative remedy.

The lack of access to any court for aggrieved individuals with disabilities whose employer or potential employer is covered by Section 503 requires additional study.