Interview with Jeanne Kincaid

Jeanne M. Kincaid, esq. is an attorney who consults with colleges and universities regarding disability law matters as they pertain to students and employees. She authored "Recent Legal Decisions" for the Association on Higher Education and Disability. This article was reprinted with permission from the author.

What is the major difference between Section 504 and the ADA?

Section 504 only applies to entities that receive federal financial assistance, whereas the ADA covers most establishments whether privately owned or assisted with state and/or federal funds.

If a college or university is in compliance with Section 504, will it automatically be in compliance with the ADA?

In most instances, yes. However, to the extent that the ADA provides greater protection to individuals with disabilities, the college/university must comply with the ADA.

Who is considered to be otherwise qualified under the ADA and Section 504?

• Students who can meet the technical and academic qualifications for entry into the school or program;
• Parents or members of the public who have a disability;
• An employee with a disability who can, with or without reasonable accommodation, meet the essential requirements of the job;
• Persons who are discriminated against because of their association with individuals with disabilities.

Who is an individual with a disability?

A person who:

• Has a physical or mental impairment which substantially limits a major life activity;
• Has a record or history of such an impairment; or
• Is regarded as having such an impairment.

What is considered to be a major life activity?

Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for one-self and performing manual tasks.

What are the obligations of students with disabilities?

The student has an obligation to self-identify that he or she has a disability and that he or she needs accommodation.

What are the college’s obligations under Section 504 and the ADA?

For students, the college must provide reasonable accommodations for the student’s known disability in order to afford an equal opportunity to participate in the college’s programs, courses and activities.

For employees, the college must provide reasonable accommodations to the employees known disability if it would enable him or her to perform the essential functions of the position.

A college may not discriminate against any individual solely on the basis of disability.

What are some examples of reasonable accommodations that a college might be expected to provide its students who have disabilities?

A college must provide a student academic adjustments to ensure that the student receives an equal opportunity to participate. A college must also provide auxiliary aids and services to persons with disabilities such as:

• Qualified interpreters and notetakers;
• Readers, taped texts, and material in Braille;
• Adapted equipment for students with manual impairments.

A college is not required to provide attendants, individually prescribed devices, readers for personal use or study or other devices of a personal nature. A college is only obligated to provide tutorial services to students with disabilities in the same manner as it does to nondisabled students. The college may choose the methods by which the auxiliary aids will be supplied so long as the methods used provide an equal opportunity. The college may not charge the student for necessary accommodations.

Must the college provide the student all the academic adjustments and auxiliary aids he or she needs?

No. A college is not required to provide academic adjustments or auxiliary aids and services if such provision would fundamentally alter the nature of the program or the academic requirements are considered essential to a program of study or to meet licensing requirements.

What does reasonable accommodation mean in the context of employment?

Colleges must make reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant/employee who has a disability unless the accommodation would impose an undue hardship on the operation of the college’s program.

What are some examples of reasonable accommodations expected to be provided by an employer?

• Making facilities readily accessible to and usable by persons with disabilities;
• Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices and the provision of readers or interpreters.

How is undue hardship defined?

The following factors are used to determine if an accommodation would pose an undue hardship on the college:

• The overall size of the college’s program with respect to the number and type of facilities, and size of budget;
• The type of college operation, including the composition and structure its workforce;
• The nature and cost of the accommodation needed.

What are the procedural safeguards of Section 504?

Colleges must provide students and employees with notice of the nondiscrimination requirements of Section 504. Students and employees have a right to file a grievance with the college. The college’s grievance procedures must provide the student/employee with due process. Every college must have a Section 504 and ADA compliance officer. The college may not discriminate against any individual because of his/her exercise of these rights or against individuals who participate in an investigation pursuant to these regulations.

What are the accessibility requirements of Section 504?

Facilities constructed prior to June 3, 1977 need not necessarily be made accessible so long as the program or activity, viewed in its entirety, is readily accessible to persons with disabilities. However, the student must be afforded an equal opportunity to enjoy the full range of services offered by the college. If a college modifies one of these buildings, it must make the modification accessible, to the maximum extent feasible. Buildings constructed after June 3, 1977 must be readily accessible and usable to persons with disabilities. All programs and services must be provided in a manner that affords the student maximum integration with his/her nondisabled peers.