Compliance Procedures

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* CHAPTER EIGHT COMPLIANCE PROCEDURES
This chapter reviews the enforcement procedures for Title II of the Americans With Disabilities Act of 1990 and the remedies available in the event that school districts are found not to be in compliance. It outlines the process for filing complaints in general and describes the specific process for employment-related complaints. Miscellaneous provisions related to such issues as attorney's fees are also discussed.

COMPLAINTS

The Title II regulation provides three ways individuals may seek redress if they believe that they have been discriminated against on the basis of disability: (1) by filing a complaint under the allegedly discriminating institution's own grievance procedures; (2) by filing a complaint with the federal agency responsible for oversight of the type of institution alleged to have discriminated, with any federal agency that funds the institution, or with the Department of Justice; or (3) by filing a lawsuit for injunctive relief and damages. Each of these three methods is discussed below. It is important to note that the regulation does not require an individual with a complaint to exhaust remedies available through the public entity's grievance procedure before filing a complaint with either a federal agency or court, nor does the individual have to exhaust federal administrative remedies before exercising his or her private right of action.

Filing Complaints Under Established Grievance Procedures

Individuals may complain under the institution's grievance procedures. In order to encourage public entities to resolve disputes internally, the Title II regulation requires that public entities with 50 or more employees establish internal grievance procedures for the resolution of complaints [28 C.F.R. ? 35.107(b)]. (See Chapter Three, _Planning _for _Compliance.)

Filing Complaints With the Designated Federal Agency

An individual may file a complaint with any federal agency he or she believes is the designated agency under Title II of the ADA (i.e., the federal agency responsible for overseeing enforcement of Title II for the particular type of public entity alleged to have committed the violation, an agency that provides funding

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to the public entity subject to the complaint, or the Department of Justice) [28 C.F.R. ? 35.170 (c)].

The U.S. Department of Education is the designated agency to enforce both Title II and Section 504 in public elementary and secondary education systems and institutions [28 C.F.R. ? 35.190(b)(2)]. The Office for Civil Rights (OCR) is the agency within the U.S. Department of Education delegated the responsibility to enforce both Title II and Section 504. Accordingly, it is authorized to process complaints against public schools arising under both Section 504 and Title II in the same manner that Section 504 complaints are processed, i.e., through OCR's internal case processing procedures [28 C.F.R. ? 35.171(a)(3)(i)]. Note that _employment-related complaints against public entities with 15 or more employees that are federal fund recipients may be processed differently (see below).

Section 504 prohibits discrimination on the basis of disability in programs and activities, both public and private, that receive federal financial assistance. Because the Civil Rights Restoration Act clarified the application of Section 504 to __all the operations of an institution receiving federal financial _assistance, the programs and activities of virtually all public elementary and secondary education systems and institutions are already covered by Section 504. As a result, for public elementary and secondary systems and institutions, the compliance and enforcement procedures under Title II will be the same as the compliance and enforcement procedures under Section 504.

If the alleged discrimination occurs in a program, service, or activity of an institution that receives federal funding and the agency is therefore subject to Section 504, the procedures for administrative enforcement set forth in Section 504 will be used. This means that the sanctions for discrimination would include the loss of federal funding or referral to the Department of Justice for judicial proceedings. If the alleged discrimination occurs in an institution that does _not receive federal funding, a designated agency will process the complaint and, if voluntary compliance cannot be achieved, refer the case to the Department of Justice for enforcement in accordance with procedures outlined in Subpart F of the Title II regulation. These procedures are similar to OCR's procedures for processing Section 504 complaints: Both establish intake mechanisms that require letters of acknowledgment to the complainant and the public entity, alternative means of dispute resolution, investigation of a complete complaint and resolution where possible, issuance of complaint resolution letters or letters of finding, and voluntary compliance agreements [28 C.F.R. ? 35.171-35.173].

Pursuant to Title II, and/or Section 504, any individual who believes he or she or a class of individuals has been subjected to discrimination on the basis of disability by a public entity may * Print Page 259 file a complaint [28 C.F.R. ? 35.170]. Complainants have 180 days from the date of the alleged discrimination to file a complaint with any federal agency believed to be the appropriate designated agency unless good cause is shown to extend the time for filing.

Complaints filed under either Title II or Section 504 will be analyzed under both Section 504 and Title II if both are applicable. In assessing compliance, OCR must apply Title II standards, to the extent that Title II provides greater protection than Section 504. Additionally, Title II cannot be construed to adopt a lesser standard than Section 504 [28 C.F.R. ? 35.103(a)].

28 C.F.R. ? 35.103 Relationship to other laws. (a) _Rule _of _interpretation. Except as provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.

If efforts to attain a settlement in a case under both Section 504 and Title II are not successful, OCR may seek termination of federal funds or refer the case to the Department of Justice, which may then file suit against the public entity in federal district court. Complaints filed only under Title II are referred to the Department of Justice for enforcement only if OCR's efforts to achieve voluntary compliance are unsuccessful [28 C.F.R. ? 35.174].

Filing Lawsuits Through the Court System

In addition to using an institution's grievance procedures or filing an administrative complaint with a federal agency, individuals have the right to file a lawsuit in federal district court. In any action or administrative proceeding, a court or agency in its discretion may allow the prevailing party (other than the U.S.) reasonable attorney's fees, in addition to any other relief. The prevailing party is the party that is successful and may be either the complainant (plaintiff) or the covered entity against which action is brought (defendant). The United States is liable for attorney's fees in the same manner as any other party, but is not entitled to them when it is the prevailing party. Attorney's fees include litigation expenses such as expert witness fees, travel expenses, and costs.

EMPLOYMENT-RELATED COMPLAINTS

Complaints filed by job applicants or employees who believe they have been discriminated against in employment on the basis of disability by public elementary and secondary institutions may be processed by the U.S. Equal Employment Opportunity Commission (EEOC) or OCR. The EEOC enforces Title I of the ADA, which prohibits job discrimination by employers with at least 15 employees [29 C.F.R. ? 1630.2(e)(1)]. The EEOC follows case procedures which, like OCR, involve fact-finding, informal resolution, and possible referral for enforcement to the Department of Justice if voluntary compliance cannot be achieved.

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The EEOC processes all complaints of employment discrimination that arise under Titles I and II where there is no Section 504 jurisdiction. (Virtually all school districts are covered by Section 504.) OCR processes all complaints of employment discrimination that arise under Title II and Section 504 where there is no Title I jurisdiction. (Virtually all school districts are covered by Title I.)

A complaint that is covered by Title I and Section 504, whether or not it is covered by Title II, and that alleges only individual allegations of employment discrimination, will generally be processed by the EEOC. If the complaint is filed with the EEOC, that agency will handle it and it will be generally considered as filed under Title I only [59 Fed. Reg. 39906 (1994) (to be codified at 28 C.F.R. ? 37.7 and 29 C.F.R. ? 1640.7)]. If a complaint is filed with OCR,

it will be referred to the EEOC, which has greater expertise in employment discrimination cases, unless the complainant specifically requests that OCR retain the case [59 Fed. Reg. 39905-06 (1994) (to be codified at 28 C.F.R. ? 37.6(c) and 29 C.F.R. ? 1640.6(c))]. When an employment discrimination complaint is filed with OCR that alleges a pattern or practice of employment discrimination, or that includes allegations of discrimination in non-employment benefits and services, it will be retained by OCR [59 Fed. Reg. 39906 (1994) (to be codified at 28 C.F.R. ? 37.6(d) and 29 C.F.R. ? 1640.6(d))].

Since the substantive protections provided by Title I and Section 504 are now identical, an individual's rights against discrimination in employment on the basis of disability can be vindicated under either statute [59 Fed. Reg. 39902 (1994)]. Complainants should be aware that available remedies may possibly differ depending upon whether they file a complaint with the EEOC or OCR. (For further information regarding available remedies, please contact the OCR regional office that serves your state. See _Resources.) Also, it is important to note that an individual who files a complaint with a Section 504 agency, such as OCR, and who alleges discrimination both in employment and other services or a pattern or practice of discrimination, or who specifically requests Section 504 processing, does not preserve a private right of action under Title I of the ADA, unless the individual also files a charge with the EEOC under Title I of the ADA [59 Fed. Reg. 39902 (1994)].

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