CODI: Cornucopia of Disability Information

Rights and Responsibilities of Persons with Disabilities

				ENFORCEMENT


     As discussed at the outset, the Mayor's Office for People with
Disabilities has been made responsible by Executive Order and Mayoral
Memoranda for overseeing and coordinating agency compliance with the
various laws and regulations discussed above.  We have prepared this manual
to both ease and enhance compliance.  In the preceding pages we have
focussed on substantive requirements.  Below we deal with procedures
necessary to ensure that (1) people with disabilities are being
appropriately accommodated and (2) your agency continues to be eligible to
receive Federal financial assistance.  Please do not hesitate to contact the
City Disability Rights Coordinator at MOPD for further assistance.


Section 504 

Assurances 

     In order to receive Federal financial assistance, an applicant for
funding must submit assurances that the agency or institution administers
its programs and activities in compliance with Sec. 504.  Most Federal
agencies provide a form on which to present such assurances.  A subrecipient
must submit assurances to the primary recipient, also on a form supplied by
the Federal funding agency.  This statement must accompany applications for
Federal funding for new programs as well as for extensions of Federal
financial assistance for continuing programs.  The assurances obligate the
recipient for the period of time during which Federal financial assistance
is extended.[93]

     Copies of all agency assurances (as well as a copy of each assurance
form signed by subrecipients) should be forwarded to the City Disability
Rights Coordinator at MOPD.


Self-evaluation and Transition Plan 

     If your agency receives Federal financial assistance, you are required
to consult with interested persons, including individuals with
disabilities and organizations representing individuals with disabilities
(such as MOPD or individuals and organizations to which MOPD may refer you),
in the process of:

     * evaluating current policies and practices to 
       determine whether they meet the requirements; 

     * modifying any policies and practices that do not meet 
       the requirements; 
           
     * taking appropriate corrective steps to remedy any 
       discrimination revealed by the self-evaluation.[94] 

     While most Federal agencies require a self-evaluation, the results do
not have to be submitted to the Federal agency, although the evaluation must
be available for inspection by Federal agency officials reviewing compliance
and by the general public.  It should, however, be submitted immediately
upon completion to MOPD.  The evaluation is an effective way for
identifying areas of noncompliance and developing methods to comply.
Recipients may be held liable for subrecipient violations;[95] therefore,
programs conducted by subrecipients should also be reviewed as part of the
self-evaluation process.

     As discussed above, where architectural modifications are required, a
transition plan must be prepared and submitted to MOPD for review.

     The following records must be maintained and made available for public
inspection for at least three years following completion of the evaluation:

     * a list of interested persons consulted; 

     * a description of areas examined and problems 
       identified; and 

     * a description of modifications and remedial action 
       taken.[96]


Grievance Procedures 

     Agencies must adopt grievance procedures to provide for prompt and
equitable resolution of complaints alleging any action prohibited by the
Sec. 504 regulations.[97] These procedures also should encompass complaints
that City and State laws have been violated.  The nature of the grievance
procedure will be affected by the size and structure of your agency.  Among
common elements in such procedures, however, should be discussion of the
grievance with your agency's Disability Rights Coordinator, the opportunity
for an internal appeal to another senior executive or group of such
executives, as well as communication concerning this grievance procedure
(including information about the right to file a complaint with the Federal
funding agency -- and/or with the New York City Commission on Human Rights
or New York State Division of Human Rights) to all employees.  The grievance
procedure must allow people whose disabilities affect their written or oral
communications an alternative methods of filing a grievance.  A review of
the regulations issued by the Federal agency(ies) from which your agency
receives financial assistance should prove helpful in drafting an
appropriate procedure.  MOPD will lend further technical assistance on
request and should in any event receive a copy of your agency's final
grievance procedure.


Enforcement by Federal Agencies and Private Litigation 

     Debarment -- the withholding of Federal funds and the disqualification
from receipt of future Federal financial assistance -- is the key
administrative remedy for noncompliance.  Thus it is extremely important
that you contact your agency Counsel or, if your agency has none, the City's
Law Department, as soon as a Federal agency contacts you concerning a
complaint of noncompliance.  MOPD also should be notified promptly.  We can
provide guidance in demonstrating compliance or in correcting
deficiencies.

     Federal inquiries concerning compliance may be prompted by a complaint
filed with the Federal funding agency either by or on behalf of a person who
believes himself/herself to be harmed by failure of a recipient to comply
with Sec. 504 regulations.  Alternatively, such inquiries may be part of a
Federal agency's periodic investigation of recipients' practices.  In any
event, your agency Counsel, the Law Department and MOPD should be notified
immediately upon a Federal inquiry.  Where noncompliance is revealed, a
Federal agency will attempt to correct the situation through informal
means.  Where informal means are insufficient, the Federal agency may
notify the recipient that it proposes to

     * suspend, 

     * terminate, or 

     * refuse to provide further 

Federal financial assistance to the recipient.  

     The recipient (your agency, as represented by the Law Department) has
the opportunity to present its case at a hearing before an administrative
law judge.  The judge makes a recommended decision to the Secretary of the
Federal agency, who may accept, reject, or modify the recommended decision.
The Secretary's orders remain in effect until the recipient comes into
compliance with regulations.  Alternatively, after investigation the
Federal agency may make a referral to the Department of Justice with a
recommendation that appropriate proceedings be brought in Federal court.
The Justice Department is responsible for overseeing compliance with Sec.
504.[98] Funds will not be suspended or terminated until a hearing has been
held and express findings of noncompliance have been made.[99]

     As part of the enforcement system, recipients should keep records of
complaints received.  Complaints received by subrecipients also should be
monitored.  Record retention requirements vary significantly among the Sec.
504 regulations.  The objective of the Federal agencies is that recipients
maintain sufficient records so that, if a formal complaint is filed with the
funding agency in a timely fashion, the relevant documentation will be
available.[100]

     It is important to keep in mind that your agency could suffer debarment
due to the noncompliance of its subrecipient if your agency has not taken
all appropriate steps to monitor and ensure compliance by its
subrecipient.[101]
 
     Administrative remedies are not the only ones under Sec. 504.  Within
180 days of the alleged discriminatory act, an aggrieved person must file a
complaint with the Federal funding agency and/or file a private lawsuit.
Among remedies available in court are reinstatement in employment, back pay
and attorney's fees.  As with administrative proceedings, it is important
to contact your agency Counsel, the Law Department and MOPD as soon as your
agency receives notice of a lawsuit under Sec. 504.


Retaliation Prohibited 

     Retaliation is prohibited under Sec. 504.  Recipients must ensure that
no person intimidates, threatens, coerces or discriminates against any
individual because he or she filed a complaint or has cooperated in the
investigation of a complaint.[102]


Section 503 

     As noted earlier, Sec. 503 is enforced by the United States Department
of Labor's Office of Federal Contract Compliance Programs (OFCCP), a unit of
the United States Department of Labor's Employment Standards
Administration.  OFCCP has a procedure for enforcing compliance with Sec.
503 regulations which is similar to that employed by Federal agencies which
provide financial assistance.[103] An aggrieved person may file a complaint
with OFCCP within 180 days of the alleged discriminatory act.[104] OFCCP
will notify a contractor that a complaint has been filed.  Notices of
complaints are to be maintained for one year from receipt.  Contractors and
subcontractors should maintain relevant employment records for not less than
one year, so that, if OFCCP conducts a compliance review, the proper
documentation will be available.[105] Upon receiving a complaint, OFCCP will
conduct an investigation and, where there is a determination that a
violation has occurred, OFCCP may

     * withhold progress payments; 

     * terminate the contract or subcontract; and/or 

     * bar the contractor or subcontractor from receiving 
       future contracts.[106]

     Where an investigation reveals noncompliance, efforts will be made to
achieve compliance through conciliation.  To come into compliance, the
contractor or subcontractor must make a specific written commitment to take
corrective action within a specified time frame.  Where the complaint is not
resolved informally, OFCCP will provide opportunity for a hearing.[107]
Additionally or alternatively, OFCCP may seek appropriate judicial action
to enforce the affirmative action clause.[108] Unlike Sec. 504, an aggrieved
person has no right to bring a private lawsuit under Sec. 503.
                              
     With severe penalties available, it is just as important to notify
your Counsel, the City's Law Department and MOPD of inquiries from OFCCP as
it is when you learn of complaints under Sec. 504.

     Contractors and subcontractors also have an obligation to ensure that
no person intimidates, threatens, coerces, or discriminates against any
individual for filing a complaint.[109]

      
New York City Human Rights Law 

     New York City's Human Rights Law is enforced by the New York City
Commission on Human Rights.[110] An aggrieved individual may file a
complaint with the Commission within one year after the alleged act of
discrimination.  Assistance also may be sought from the Commission by an
employer whose employees refuse or threaten to refuse to cooperate with the
provisions of City Human Rights Law; for example, an employer could file a
complaint against an employee who refuses to work with a co-worker who has a
disability.[111] Of course, your agency should not take such action without
first consulting the Law Department and Office of Municipal Labor Relations.
After a complaint has been filed the Commission will conduct an
investigation to determine whether or not probable cause exists for
crediting the allegations of the complaint.  Where probable cause is found
the Commission may attempt to eliminate the discriminatory practice through
informal means such as conciliation.[112] Alternatively, or where informal
resolution fails, the Commission may conduct a hearing, make findings and
issue a cease and desist order.  Reinstatement, back pay and payment of
other damages are among the possible remedies.  Fines of up to $500 and
imprisonment for up to one year also may be imposed.  The Commission may
seek judicial enforcement of its orders.[113]

     No employer may discharge, expel or otherwise discriminate against
an individual because that person has filed a complaint, testified or
assisted in a proceeding conducted under the City Human Rights Law.[114]


New York State Human Rights Law       

     An aggrieved individual may file a complaint with the New York State
Division of Human Rights within one year of the alleged discriminatory
action, or the aggrieved individual may file a lawsuit in the New York
State Supreme Court within three years of the action..[115] Generally, the
time period runs from the time an employee learns (or reasonably should have
learned) of the discrimination.  The Division of Human Rights will
investigate the claim.  Where appropriate it will conduct a hearing and make
findings.  Where a violation is found the State Division may grant
appropriate relief such as reinstatement or back pay, or impose fines.

     Any person who interferes with the investigation or other proceedings
of the State Division may be found guilty of a misdemeanor, being imprisoned
for up to one year and/or fined up to $500.[116]

     The City Commission on Human Rights also has jurisdiction to handle
complaints under the State Human Rights Law within New York City.[117]


        
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