New Federal Nondiscrimination Regulations Define "Qualified Handicapped Persons
Lombardo, Paul A., Developments in Mental Health Law
Two federal agencies have issued final regulations implementing provisions for nondiscrimination on the basis of handicap mandated by Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). The Department of Justice. whose regulations pertain to discrimination in all Federally conducted programs, and the Federal Election Commission (FEC), whose regulations cover the more narrow area of election law, published expanded directions on general prohibitions against discrimination in Section 504 and also clarified issues that had arisen in the areas of employment discrimination, program accessibility and compliance procedures.
Apart from the generally more expansive scope of Justice's regulations, the major point of contrast between the two agencies had to do with their definitions of a "qualified handicapped person." The earlier definition designating those to whom the 504 prohibition of discrimination applied (see 28 CFR 41-32, July 1, 1984) had defined a qualified handicapped person as: "(a) with respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question and (b) with respect to services, a handicapped person who meets the essential eligibility requirements for the receipt of such services."
That definition was revised in light of the Supreme Court's decision in Southeastern Community College v. Davis. 442 U.S. 397 (1979), in which a hearing impaired applicant to a nursing education program was excluded from Section 504 protection as not a "qualified handicapped person" because her handicap would not allow her to participate in the clinical component of the nursing program. In Davis the Court reasoned that Section 504 did not require the school, as a recipient of federal funding, "'to make such modifications that would result in a fundamental alteration in the nature of the program," 442 U.S. at 410.
The Justice Department's own definition of "qualified handicapped person" made use of the distinction drawn in Davis to allow exclusion of some handicapped people from federally assisted programs if accommodation to their handicaps would require major changes in program goals or structure. The new definition reads as follows:
"Qualified handicapped person" means--
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity. …