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34 CFR ch. 1 (7-1-88 Edition)
SUBPART B - EMPLOYMENT PRACTICES
104.11 Discrimination prohibited
A. General
1. No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in
employment under any program or activity to which this part applies.
2. A recipient that receives assistance under the Education of the Handicapped Act shall take positive
steps to employ and advance in employment qualified handicapped persons in programs assisted under
that Act.
3. A recipient shall make all decisions concerning employment under any program or activity to which this
part applies in a manner which ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way that adversely affects
their opportunities or status because of handicap.
4. A recipient may not participate in a contractual or other relationship that has the effect of subjecting
qualified handicapped applicants or employees to discrimination prohibited by this subpart. The
relationships referred to in this paragraph include relationships with employment and referral agencies,
with labor unions, with organizations providing or administering fringe benefits to employees of the
recipient, and with organizations providing training and apprenticeship programs.
B. Specific activities
The provisions of this subpart apply to:
1. Recruitment, advertising, and the processing of applications for employment;
2. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from
layoff and rehiring;
3. Rates of pay or any other form of compensation and changes in compensation;
4. Job assignments, job classifications, organizational structures, position descriptions, lines of
progression, and seniority lists;
5. Leaves of absence, sick leave, or any other leave;
6. Fringe benefits available by virtue of employment, whether or not administered by the recipient;
7. Selection and financial support for training, including apprenticeship, professional meetings,
conferences, and other related activities, and selection for leaves of absence to pursue training;
8. Employer-sponsored activities, including social or recreational programs;
9. Any other term, condition, or privilege of employment.
C. A recipient's obligation to comply with this subpart is not affected by any inconsistent term of any
collectively-bargained agreement to which it is a party.
104.12 Reasonable accommodation
A. A recipient shall make reasonable accommodation to the known physical or mental limitations of an
otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its program.
B. Reasonable accommodation may include:
1. Making facilities used by employees readily accessible to and usable by handicapped persons, and
2. Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or
devices, the provision of readers or interpreters, and similar actions.
C. In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue
hardship on the operation of a recipient's program, factors to be considered include:
1. The overall size of the recipient's program with respect to number of employees, number and type of
facilities, and size of budget;
2. The type of the recipient's operation, including the composition and structure of the recipient's
workforce;
3. The nature and cost of the accommodation needed.
D. A recipient may not deny any employment opportunity to a qualified handicapped employee or applicant if
the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations
of the employee or applicant.
104.13 Employment criteria
A. A recipient may not make use of any employment test or other selection criterion that screens out or tends
to screen out handicapped persons or any class of handicapped persons unless
1. The test score or other selection criterion, as used by the recipient, is shown to be job-related for the
position in question, and
2. Alternative job-related tests or criteria that do not screen out or tend to screen out as many
handicapped persons are not shown by the Director to be available.
3. A recipient shall select and administer tests concerning employment so as best to ensure that, when
administered to an applicant or employee who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's or employee's job skills, aptitude, or
whatever other factor the test purports to measure, rather than reflecting the applicant's or employee's
impaired sensory, manual, or speaking skills (except where those skills are the factors that the test
purports to measure).
104.14 Preemployment inquiries
A. Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment
medical examination or may not make preemployment inquiry of an applicant as to whether the applicant is a
handicapped person or as to the nature or severity of a handicap. A recipient may, however, make
preemployment inquiry into an applicant's ability to perform job-related functions.
B. When a recipient is taking remedial action to correct the effects of past discrimination pursuant to 104.6 (a).
when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to 104.6 (b). or when a recipient is taking
affirmative action pursuant to section 503 of the Act, the recipient may invite applicants for employment to
indicate whether and to what extent they are handicapped, provided that:
1. The recipient states clearly on any written questionnaire used for this purpose or makes clear orally if
no written questionnaire is used that the information requested is intended for use solely in connection
with its remedial action obligations or its voluntary or affirmative action efforts;
2. The recipient states clearly that the information is being requested on a voluntary basis, that it will be
kept confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the
applicant or employee to any adverse treatment, and that it will be used only in accordance with this
part.
C. Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a
medical examination conducted prior to the employee's entrance on duty, provided, that:
1. All entering employees are subjected to such an examination regardless of handicap, and
2. The results of such an examination are used only in accordance with the requirements of this part.
D. Information obtained in accordance with this section as to the medical condition or history of the applicant
shall be collected and maintained on separate forms that shall be accorded confidentiality as medical
records, except that:
1. Supervisors and managers may be informed regarding restrictions on the work or duties of handicapped
persons and regarding necessary accommodations;
2. First aid and safety personnel may be informed, where appropriate, if the condition might require
emergency treatment;
3. Government officials investigating compliance with the Act shall be provided relevant information upon
request.
Approved/Adopted: July 13, 2009 Revised: August 29, 2011 |
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