Section 504 of the Rehabilitation Act of 1973 was established to prevent the discrimination of individuals with disabilities in entities that receive federal financial assistance. In 1990, Congress extended these protections to every major business and public place in the country through the Americans with Disabilities Act. The act states:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistant or under any program or activity conducted by any Executive agency or by the U.S. Postal Service. 29 U.S.C. 794(a).
Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act have consistently been interpreted by the courts in the same way, and language in the two acts is very similar.
The Americans with Disabilities Act and Amendments Act of 2008
Congress enacted the Amendments Act to the Americans with Disabilities Act in 2008 in response to what congress felt was an overly strict interpretation of the original act by the Supreme Court of the United States. The changes that went into effect in 2009 impacted both the personnel practices and educational decisions of public schools. This guide addresses the impact on educational settings and programs.
Impairments vs. Disabilities
Section 504, the ADA, and the Amendments Act are consistent in drawing a distinction between individuals with impairments and those with disabilities. According to legislation, a disability is a physical or mental impairment that substantially limits one or more major life activities. The term may also be used to describe an individual who has a record of such an impairment or who is regarded as having such an impairment.
An individual may have an impairment, and many people do have impairments such as poor eyesight or medical conditions or disorders. Unless the impairment substantially limits that individual in a major life activity, however, they are not considered to be “disabled” under the legislation.
Physical or Mental Impairment
In order to be eligible for protections under Section 504 and the ADAAA, an individual must have a physical or mental impairment. A physical or mental impairment may impact bodily systems such as brain or nervous system, endocrine systems, skeletal system, etc. An individual who is “at-risk” for failure in school due to lack of progress would not necessarily be eligible for protections under Section 504 because there are many reasons, including socio-cultural reasons.
Major Life Activities
Regulations include a sample list of “major life activities”, but it also makes it clear that the list is not exclusive. Eligibility should be determined on a case-by-case basis. The list includes:
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. Section 12102(4)(a)(2)(A).
The regulations also include “the operation of bodily function”:
The operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. Section 12102(4)(a)(2)(B).
In order to eligible for protections under the ADA, individuals must have an impairment that “substantially limits” a major activity. The term “substantially limits” means that the individual is limited in comparison to the average person in the general population.
Original legislation accepted the use of mitigating measures when determining a disability. If an individual had implemented mitigating measures such as medications or assistive devices, that information could be used in determining whether the individual was substantially limited in one or more major life activities. With the amendments of 2008, the use of mitigating measures was removed. In determining whether an impairment substantially limits a major life activity, one must consider the condition as it would be without the mitigating measures. The only exception to this rule is the use of eye glasses.