Legal Rights of
Persons with Disabilities
November 2003
California Department of Justice
Public Inquiry Unit
P. O. Box 944255
Sacramento, CA 94244-2550
(800) 952-5225
Hearing Impaired: (800) 952-5548
http://ag.ca.gov
OSP 03 80546
1.
1
Page 2
3
"LEGAL RIGHTS OF PERSONS WITH DISABILITIES"
FOURTH EDITION*
PREPARED UNDER THE SUPERVISION OF THE
CALIFORNIA ATTORNEY GENERAL'S
PUBLIC RIGHTS DIVISION
CIVIL RIGHTS ENFORCEMENT SECTION
BILL LOCKYER
Attorney General
RICHARD M. FRANK
Chief Assistant Attorney General
LOUIS VERDUGO, JR
Senior Assistant Attorney General
SUZANNE M. AMBROSE
Supervising Deputy Attorney General
KATHLEEN W. MIKKELSON
REGINA J. BROWN
PHYLLIS W. CHENG
GLORIA L. CASTRO
ANGELA SIERRA
Deputy Attorneys General
For additional information about LEGAL RIGHTS OF PERSONS WITH
DISABILITIES and for copies, please contact the Attorney General's
PUBLIC INQUIRY UNIT, P. O. Box 944255, Sacramento, CA 94244-2550
Telephone: (916) 322-3360; Toll free number: (800) 952-5225; Line for the
hearing impaired: (916) 324-5564; Toll free number: (800) 952-5548.
*Much of the material in this Fourth Edition is an update of the Second and Third
Editions, Marian M. Johnston and Kathleen W. Mikkelson, Deputy Attorneys
General, writers and editors.
2.
2
Page 3
4
TABLE OF CONTENTS
Page
INTRODUCTION i
CHAPTER 1: EMPLOYMENT 1
I. STATE LAW 1
A. Definition of Disability and Medical Condition 1
B. Covered Employers 2
C. Employer Defenses to Discrimination in California 2
D. Employers Must Make Reasonable Accommodations 2
E. Nondiscrimination in Recruitment and Testing 2
F. Complaint Procedures 3
G. Miscellaneous California Employment Discrimination Laws 3
II. FEDERAL LAW 4
A. The Americans With Disabilities Act 4
B. The Federal Rehabilitation Act of 1973 6
CHAPTER 2: HOUSING 10
I. HOUSING DISCRIMINATION 10
II. HOUSING PROGRAMS 11
A. Federal Housing Programs 11
B. California Housing Programs 11
CHAPTER 3: NONDISCRIMINATION IN BUSINESS AND SERVICES 13
I. NONDISCRIMINATION IN PUBLIC ACCOMMODATIONS,
TRANSPORTATION CARRIERS AND BUSINESS
ESTABLISHMENTS 13
A. California Access Law 13
B. Discrimination Based on Disability 14
II. NONDISCRIMINATION IN STATE-SPONSORED PROGRAMS
AND ACTIVITIES AND IN PUBLIC PLACES 14
III. NONDISCRIMINATION IN INSURANCE COVERAGE 14
A. Life, Annuity, or Disability Insurance 14
B. Health Insurance 15
C. Automobile Insurance 15
D. Insurance Appeal Procedures 16
IV. NONDISCRIMINATION IN LICENSING AND LICENSED
SERVICES 16
3.
3
Page 4
5
TABLE OF CONTENTS
Page
CHAPTER 4: ACCESS 17
I. ACCESS TO BUILDINGS AND FACILITIES 17
A. Federal Law 17
B. California Law and Regulations 19
II. ACCESS TO POLLING PLACES AND THE VOTING PROCESS -
STATE AND FEDERAL ELECTIONS 26
A. State Elections 26
B. Federal Elections 27
III. ACCESS TO TRANSPORTATION 27
A. Driving and Parking 27
B. Mass Transit and Interstate Transportation 29
C. Air Travel 34
IV. ACCESS TO TELECOMMUNICATIONS 36
B. Television Broadcasting 38
CHAPTER 5: EDUCATION 39
I. THE RIGHTS OF CHILDREN WITH DISABILITIES IN PRIMARY
AND SECONDARY EDUCATION 39
A. All Children With Disabilities Have a Right to a "Free,
Appropriate, Public Education" 39
B. The Law 39
C. A Free, Appropriate, Public Education 40
D. Eligibility & Procedures 43
E. Administrative & Judicial Review 48
II. PRESCHOOL EDUCATION 51
A. Children Younger Than Five May Be Eligible For Special
Education Benefits 51
B. Eligible Preschool Children Have the Same Rights as School
Age Children 51
III. POST-SECONDARY EDUCATION 52
A. General Law -Section 504 52
B. What is a "Program or Activity?" 52
C. Nondiscrimination in Admissions, Recruitment, and
Accommodation 52
D. Nondiscrimination in Housing 53
E. Nondiscrimination in Financial Aid 53
F. Nondiscrimination in Nonacademic Services 53
A. Telephone Systems 36
4.
4
Page 5
6
TABLE OF CONTENTS
Page
CHAPTER 6: PARENTAL RIGHTS 54
I. PARENTAL FITNESS 54
II. CHILD CUSTODY 54
III. ADOPTION 54
CHAPTER 7: PROGRAMS AND SERVICES 55
I. IN HOME SUPPORTIVE SERVICES (IHSS) 55
II. REHABILITATION SERVICES 55
A. Eligibility for Services 55
B. What Vocational Rehabilitation Services Are 55
C. Application Procedures 56
D. The Rehabilitation Appeal Process 56
III. INDEPENDENT LIVING CENTERS 56
IV. REGIONAL CENTERS 57
A. The Regional Center Appeal Procedure 57
V. COMMUNITY MENTAL HEALTH SERVICES 57
CHAPTER 8: BENEFITS 58
I. INCOME BENEFITS 58
A. Social Security Disability Insurance and Supplemental
Security Income (SSI) 58
B. State Disability Insurance 60
C. Worker's Compensation 60
D. Special Needs Allowance for Persons With Guide Dogs 61
E. Decreased Energy Rates 61
II. TAX AND BUSINESS BENEFITS 61
A. Tax Benefits 61
B. Business Loans & Enterprises to Persons With Disabilities 62
CHAPTER 9: HEALTH CARE 63
I. HEALTH CARE BENEFITS 63
A. Medicare 63
B. MediCal 63
C. Hill-Burton Hospitals 64
5.
5
Page 6
7
TABLE OF CONTENTS
Page
D. California Children's Services (CCS) 64
E. Genetically Handicapped Person's Program 64
II. RIGHT TO MEDICAL TREATMENT 65
A. Medical Care for Newborns With Disabilities 65
B. Infant Care Review Committees 66
III. RIGHT TO CONSENT TO MEDICAL TREATMENT 66
A. Right of a Conservatee to Refuse Medical Treatment 66
B. Durable Power of Attorney for Health Care 66
C. Limited Right to Die 67
D. Sterilization of Persons With Disabilities 67
CHAPTER 10: CIVIL RIGHTS OF PERSONS WITH MENTAL AND DEVELOPMENTAL
DISABILITIES 68
I. CIVIL RIGHTS OF PERSONS WITH DEVELOPMENTAL
DISABILITIES 68
A. Federal and State Rights 68
B. Institutionalization of Persons With Developmental Disabilities 69
C. Rights of Persons With Developmental Disabilities in
Institutions 69
D. Judicial Hearing to End Institutionalization 70
II. CIVIL RIGHTS OF PERSONS WITH MENTAL DISABILITIES 70
A. The Lanterman-Petris-Short (LPS) Act 70
B. Rights of Persons With Mental Disabilities 70
C. Commitment Procedures 71
D. Certification For Intensive Treatment 72
E. Judicial Hearing 72
F. Involuntary Detention Beyond 14 Days 73
G. Conservatorship Procedures 73
H. Mental Health Advocacy Programs 73
DIRECTORY OF SERVICES 75
6.
6
Page 7
8
i
INTRODUCTION
California and Federal Law
This handbook discusses both California and federal laws that protect the rights of individuals
with disabilities. California and federal law should be examined together to get a complete picture of the
law on a particular topic. In some areas California law provides more legal protection or is more
comprehensive; in other areas, federal law is more helpful.
Statutes, Regulations, and Cases
"The law" usually consists of a combination of statutes, regulations, and cases. Statutes are laws
passed by legislators either in the state Capitol or in Congress. Statutes are generally fairly short and
often do not describe the details of how the law will be enforced or what specifically will constitute a
violation of law.
Various government agencies are often charged with developing regulations to carry out the
mandates of statutes. These regulations usually describe the "nuts and bolts" of a statute's
administration.
Finally, when cases go to court, judges issue opinions which resolve disputes in interpreting
statutes and regulations.
An analysis of statutes, regulations, and cases yields the current state of rights and protections,
which change over time as the law changes.
What Action Can Individuals Take?
Complaints -Many agencies are authorized to allow people who believe they have experienced
discrimination or have been denied other rights to file a complaint. The agency may then investigate the
complaint, and if it finds that violations of law have occurred, the agency can impose various sanctions
on the violator and award various remedies to the individual who filed the complaint (complainant).
Lawsuits -Individuals who experience discrimination or other violations of law can often file a
lawsuit in a court. It may be necessary to go through the agency (administrative) complaint process first.
Contact the responsible agency as soon as possible to find out when and if you can file a lawsuit.
Although you may file a lawsuit by yourself without an attorney, you should probably talk with a legal
organization or private attorney if you plan to do so.
7.
7
Page 8
9
1
CHAPTER 1
EMPLOYMENT
This chapter discusses state and federal statutes which promote access to employment
opportunities for individuals with disabilities.
I. STATE LAW
The Fair Employment and Housing Act (FEHA) protects the right of individuals to seek, obtain,
and hold employment without discrimination on the basis of physical or mental disability or medical
condition. It also prohibits retaliation against a person who has opposed unlawful discriminatory
practices under the FEHA or participated in an investigation into unlawful employment practices. (Gov.
Code, § 12940, subd. (h).) The FEHA also prohibits harassment on the basis of a person's disability.
(Gov. Code, § 12940, subd. (j).)
A. Definition of Disability and Medical Condition
1. Disability
The definition of "disability" under the FEHA includes both physical and mental disabilities.
a. Physical disability
Physical disability includes having any physiological disease, disorder, condition, cosmetic
disfigurement or anatomical loss, or having a record of such impairment, or being regarding as having
or having had such an impairment, that:
b. Mental disability
Mental disability includes any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning disabilities that limit a major
life activity, or having a history of such impairment or being regarded as having or having had such an
impairment. Mental disability includes any mental or psychological disorder or condition that requires
special education or related services. (Gov. Code, § 12926, subd. (i).) Mental disability does not
include sexual behavior disorders, compulsive gambling, kleptomania, pyromania or current unlawful
drug use.
8.
8
Page 9
10
2
2. Medical Condition
The FEHA also forbids discrimination in employment on the basis of medical condition.
"Medical condition" refers to 1) any health impairment related to or associated with a diagnosis of
cancer or a record or history of cancer; and 2) genetic characteristics. (Gov. Code, §§ 12926,
subd. (h), and 12940, subd. (a).)
B. Covered Employers
California employment discrimination law covers nearly all employers. An "employer" for
purposes of the FEHA includes anyone regularly employing five or more persons, whether full or part-time;
any person acting as an agent of an employer, directly or indirectly; state and local governments;
employment agencies; and labor organizations. (Gov. Code, § 12926, subd. (d)). For purposes of
harassment, an employer includes anyone regularly employing one or more persons. In comparison,
federal law requires employment of 15 or more employees before an employer will be covered, whether
the disability is physical or mental. (42 U. S. C § 12111( 5)( A).)
C. Employer Defenses to Discrimination in California
An employer may refuse to hire or may discharge a person with a physical disability if the
person is unable to perform the essential functions of the job even with reasonable accommodation.
Also, the employer may refuse to hire or may discharge an individual with a disability who cannot
perform the essential functions of the job in a manner which would not endanger his or her health, or the
health and safety of others even with reasonable accommodation. These two defenses require a case by
case evaluation of each person's abilities and limitations with regard to the specific job in question.
In addition, an employer may discriminate against a whole group of persons with disabilities if
the absence of a particular disability is a bona fide occupational qualification (BFOQ). For example, an
employer may be able to refuse to hire any person with back problems for a job which requires heavy
lifting. However, employers can rely upon a BFOQ defense to exclude a group of people only if the
employer can prove that all or almost all members of the excluded group cannot presently perform the
job in a safe manner. (Sterling Transit Co. v. Fair Employment Practice Commission (1981) 121
Cal. App3d 791.)
D. Employers Must Make Reasonable Accommodations
Employers must make reasonable accommodations for applicants and employees with
disabilities, unless the accommodation would impose an undue hardship on the employer. Examples of
reasonable accommodations include making facilities accessible and restructuring jobs, which might
include reassigning or transferring an employee, developing part-time or modified work schedules,
acquiring or modifying equipment, minor restructuring of the work site, and providing readers or
interpreters. (Cal. Code Regs., tit. 2, § 7293.9.)
E. Nondiscrimination in Recruitment and Testing
Employers must give equal consideration to individuals with disabilities in recruitment activities
and are required to make reasonable accommodations during the recruitment process. For example,
9.
9
Page 10
11
3
during the interview process, employers may be required to provide interpreters for individuals with
hearing impairments or provide rooms which are accessible to wheelchairs. Employers may not ask
general questions about an applicant's physical or mental condition. Specific questions about an
applicant's present physical or mental fitness, medical condition, physical condition or medical history
are permissible only if they are directly related to the job in question. An employer may only make an
inquiry or conduct an examination after an offer of employment has been made, provided that it is job-related
and consistent with business necessity, and that all entering employees in similar positions are
subjected to the same inquiry or exam. An individual who would be disqualified from employment as a
result of a physical exam must be allowed to submit independent medical opinions for consideration
before a final determination is made. The exam results are confidential; however, supervisors may be
informed of restrictions on or accommodations with respect to an individual's duties, and first aid and
safety personnel may be informed of the condition if the condition may require emergency treatment.
(Gov. Code, § 12940, subds. (d), (e), and (f); Cal. Code Regs., tit. 2, § 7294.0.)
Employers may not use testing criteria which discriminate, unless the criteria are job-related and
no alternative testing method is available. The employer must ensure that test results accurately reflect
the applicant's job skills or aptitude for the job, rather than merely reflecting the applicant's disability.
Tests of physical agility or strength cannot be used, unless those physical skills are precisely what the
test is designed to measure. To accomplish this, the employer must reasonably accommodate the
applicant's disability during pre-employment testing, such as by making the site physically accessible.
Other forms of accommodations may include providing readers and interpreters, allowing more time for
test-taking, and administering alternate tests or individualized assessments. (Cal. Code Regs., tit. 2, § 7294.1.)
F. Complaint Procedures
If you believe that you have been discriminated against, you may file a complaint with the
Department of Fair Employment and Housing (DFEH) within one year of the occurrence of the alleged
discriminatory act. If you did not learn of the act of discrimination until after a year had passed, the
period for filing may be extended up to 90 days. After the complaint is filed, two avenues of relief are
available. The DFEH may attempt to resolve the matter through conciliation and, if necessary, an
administrative hearing before the Fair Employment and Housing Commission (FEHC). (Gov. Code,
§§ 12963.7, subd. (a), and 12965.) Alternatively, the DFEH may issue a "right to sue letter" which
allows you to file a lawsuit against the employer directly in court. (Gov. Code, § 12965.) However,
you must file with the DFEH and receive a right-to-sue letter before a court will hear your case.
G. Miscellaneous California Employment Discrimination Laws
In addition to the FEHA, there are a number of other California laws that protect disabled
employees. State agencies must make reasonable accommodations for an otherwise qualified individual's
physical or mental limitations, unless such accommodations would impose a hardship on the agency's
operations. (Gov. Code, § 19230 et seq.) Also, any program or activity funded by the state must not
discriminate against persons with disabilities. (Gov. Code, § 11135 et seq.) Other anti-discrimination
statutes provide that:
II. FEDERAL LAW
A. The Americans With Disabilities Act
The Americans With Disabilities Act (ADA) (42 U. S. C. § 12101, et seq.) is the federal law
equivalent of the FEHA. Title I of the ADA prohibits discrimination on the basis of disability by
employers that employ 15 or more employees with respect to hiring and all terms and conditions of
employment. (42 U. S. C. § 12111( 5)( A).) Title I does not apply to the federal government. (42 U. S. C.
§ 12111( 5)( B).)
The discrimination prohibited by the ADA includes segregating, limiting or classifying any job
applicant or employee because of a disability in a manner adversely affecting the individual's status or
opportunities. (42 U. S. C. § 12112( a) & (b).) Discrimination can include failing to make a reasonable
accommodation for an individual's physical or mental impairments, or using employment tests and
standards that tend to screen out persons with disabilities, unless such tests or standards are shown to be
job-related or consistent with business necessity. (42 U. S. C. §§ 12112 and 12113.)
The ADA prohibits discrimination or retaliation against anyone who has opposed acts or
practices unlawful under the ADA, has asserted a claim under the ADA, or has assisted in the assertion
of such a claim by acting as a witness or aiding in the investigation of ADA violations. (42 U. S. C.
§ 12203.)
1. Definition of Disability
The ADA protects "qualified persons" with a disability. The definition of "disability" under the
ADA includes both physical and mental impairments that substantially limit one or more of the major life
activities, a record of such impairments, or being regarded as having such impairments.
(42 U. S. C. § 12102( 2).) In determining whether an individual is substantially limited in one or more
major life activities, employers may consider the effect of any mitigating measures
For purposes of the ADA's employment protections, employees or applicants currently engaged
in the illegal use of drugs are specifically excluded. (42 U. S. C. § 12114.) Additionally, the definition
of disability does not include homosexuality and bisexuality, transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other
sexual behavior disorders, compulsive gambling, kleptomania, or pyromania. (42 U. S. C. § 12211.)
2. Employers Must Reasonably Accommodate Disabilities
The ADA prohibits covered employers from failing to provide reasonable accommodation to the
known physical or mental limitations of an otherwise qualified individual, unless the employers can
11.
11
Page 12
13
5
demonstrate that such accommodation would impose an undue hardship. (42 U. S. C. § 12112( b)( 5)( A)
and (B).)
a. Reasonable Accommodation
The determination of what constitutes a "reasonable accommodation" required by the ADA will
depend on specific circumstances and might include modified work schedules, job restructuring, changes
to work areas or equipment, and similar adjustments. (42 U. S. C. § 12111( 9)( A) and (B).)
b. Undue Hardship
An employer may be excused from the obligation to make an accommodation where it can be
demonstrated that undue hardship would result to the employer's business. Where undue hardship will
result, the accommodation is not reasonable and will not be required. "Undue hardship" is defined as
any action requiring significant difficulty or expense, taking into account a number of factors, including
cost, complexity and impact on the work performed. (42 U. S. C. § 12111( 10).)
3. Nondiscrimination in Recruitment and Testing
Under the ADA, a covered employer may not conduct pre-employment medical or psychological
examinations, nor can an employer make pre-employment inquiries regarding the existence, nature or
severity of an applicant's disabilities. However, the employer may make inquiries about an applicant's
ability to perform job-related duties. (42 U. S. C. § 12112( d)( 2).)
Once an employer has made an offer of employment, the employer may require a medical
examination or inquiry. Such exams or inquiries may only be required if required of all new employees,
regardless of disability. Medical exams or inquiries which use criteria to screen out employees with
disabilities may only use such criteria if it can be shown that the exclusionary criteria are job-related and
consistent with business necessity. Any information resulting from such examinations or inquiries must
be maintained in a separate confidential file, but may be shared with supervisors and managers for safety
or other significant job performance reasons. (42 U. S. C. § 12112( d)( 3).)
Employers may not require medical exams or make inquiries of an employee regarding the
nature or severity of a disability unless it is shown to be job-related and consistent with business
necessity. (42 U. S. C. § 12112( d)( 4).)
Employment tests that tend to screen out individuals with disabilities are prohibited by the ADA
unless shown to be job-related for the position in question and justified by business necessity. The ADA
requires that employment tests be administered in a manner that ensures a fair reflection of the skills and
aptitudes actually needed to perform the job. (42 U. S. C. § 12112( b)( 6) & (7).)
4. Complaint Procedures
The ADA gives the federal Equal Employment Opportunity Commission (EEOC) the primary
authority to enforce the ADA's prohibitions against discrimination in employment based upon disability
or perceived disability. Accordingly, an individual who believes that he or she has been the victim of
12.
12
Page 13
14
6
employment discrimination because of a disability can file a complaint with the EEOC for investigation.
A complaint must be filed with EEOC before a private lawsuit can be filed. (42 U. S. C. § 12117.)
B. The Federal Rehabilitation Act of 1973
The Rehabilitation Act of 1973 (the "Act") prohibits the federal government, federal contractors,
and employers who receive federal financial assistance from discriminating against "qualified disabled
individuals" in employment. (29 U. S. C. § 701 et seq.) This protection extends to all aspects of
employment, including recruitment, hiring, promotion, benefits, social or recreational programs,
termination, and any other term, condition or privilege of employment.
1. Federal Agencies
The Rehabilitation Act applies to the entire federal government and to all federal agencies in
their capacity as employers. Each agency of the executive branch, including the U. S. Postal Service,
must have an affirmative action plan for the recruitment, hiring, placement, and advancement of
individuals with disabilities. The plan must include a description of the way special needs of persons
with disabilities are being met.
a. Prohibitions
Under the Rehabilitation Act, discrimination against a "qualified individual with a handicap"
who is a federal employee or an applicant for a federal job is prohibited. (29 C. F. R. § 1614.101.)
Federal employees who are hired under an "excepted service" program, that is, certified by a vocational
rehabilitation counselor, are also protected, and must be given the same equal employment rights as
other federal employees.
b. Federal Employer Responsibilities
Federal agencies must make reasonable accommodations for a known limitation of an otherwise
qualified applicant or employee with a disability, unless the agency can demonstrate that the
accommodations would impose an undue hardship. Reasonable accommodations include, but are not
limited to, making facilities accessible, restructuring jobs, changing work schedules, acquiring
equipment or devices, changing exams and providing readers and interpreters. In determining whether
accommodations would impose an undue hardship on the operation of an agency, factors to be
considered include the overall size of the agency's program, the number and type of facilities, the size of
the budget, and the nature and the cost of the accommodations. (29 C. F. R. § 1614.102( a)( 8) and
1614.203( b).)
An agency may not use employment tests or other ways of selecting employees which tend to
screen out qualified individuals with disabilities, unless the agency can prove that the test score or
selection process is related to the specific job in question and that other testing or selection methods are
unavailable. The employment test must reflect an applicant's or employee's ability to perform the
functions of the job, rather than focusing on an individual's disability, unless the disability is directly
related to the skills being measured for the job. (29 C. F. R. § 1614.203( b).)
Agencies may not ask whether a job applicant is disabled or inquire about the nature and
severity of the disability. An agency may ask whether an applicant is able to meet, with or without
13.
13
Page 14
15
7
reasonable accommodations, the qualifications and responsibilities of the position. A pre-employment
medical exam may be required only if all new employees are required to take such an exam and the
exam results are not used to discriminate unlawfully. (29 C. F. R. § 1614.203( b).)
An agency may ask an applicant to volunteer information about his or her disability if it is made
clear that the information will only be used to monitor the effectiveness of the agency's affirmative
action programs. It must be clear that the information is requested on a voluntary basis and that
information obtained will be kept confidential. However, such information can be provided to managers
and other personnel, where appropriate, to inform them that the individual is eligible for affirmative
action. The information may also be provided to government officials investigating agency compliance
with equal employment opportunity laws. (29 C. F. R. § 1614.203( e).)
c. Complaint Procedure for Discrimination by Federal Agencies
If you are an employee of a federal agency and you believe that you have been discriminated
against in employment because of a physical or mental disability, you may file a complaint with the
EEOC or you may file a lawsuit in federal court. However, you must pursue the administrative
remedies available through your agency before filing a lawsuit or lodging a complaint with the EEOC.
You must bring the matter to the attention of the Equal Opportunity Counselor employed by your agency
within a specified time period. If the matter is not resolved to your satisfaction, you may then appeal to
the EEOC. (29 C. F. R. § 1614.401.) You also have the option to file a lawsuit, which may be filed
within 90 days of your agency's final action or 180 days after the filing of the complaint, if there has
been no decision. (29 C. F. R. § 1614.407.) A lawsuit may also be filed if you are not satisfied with a
decision of the EEOC.
2. Federal Contractors
All government contractors and subcontractors with contracts of $10,000 or more must take
affirmative action in hiring and promoting otherwise qualified individuals with disabilities. 1/ The Office
of Federal Contract Compliance Programs (OFCCP) of the Department of Labor has developed
regulations for complying with this law, located in Section 503 of the Rehabilitation Act. (29 U. S. C.
§ 793; 41 C. F. R. § 60-741 et seq.)
Contractors may conduct a medical exam prior to employment, provided that the exam is given
after an offer of employment is made, all entering employees in the same job class are subjected to the
exam, and the results are not used to discriminate unlawfully. The results of such exams must be kept
confidential, except that supervisors and managers may be informed of work restrictions based on the
disability. First aid and safety personnel may be informed if the condition might require emergency
treatment, and government officials investigating the contractor's compliance with the Rehabilitation Act
may be informed. (41 C. F. R. § 60-741.23.)
Contractors must make reasonable accommodations for an applicant or employee with a
(41 C. F. R. § 60-741.44( d).)
1. But see Adarand Constructors, Inc. v. Pena (1995) 515 U. S. 200, declaring that all racial
classifications in the awarding of contracts are subject to strict scrutiny.
disability, unless accommodation would impose an undue hardship on the contractor's business.
14.
14
Page 15
16
8
a. Complaint Procedure for Discrimination by Federal Contractors
If you believe that you have been discriminated against by a government contractor, you may file
a formal complaint with the U. S. Department of Labor. The complaint must be filed with the Director
of the OFCCP within 300 days of the occurrence of the alleged violation. This time limit may be
extended for good cause. (41 C. F. R. § 60-741.61( b).)
3. Recipients of Federal Funds
The Rehabilitation Act is also designed to eliminate discrimination on the basis of disability in
programs or activities which receive federal financial assistance. (29 U. S. C. § 794.)
a. Protections
No "otherwise qualified" individual with a disability can, solely by reason of his or her
disability, be: 1) excluded from participation in, 2) be denied the benefits of, or 3) be subjected to
discrimination under any program or activity receiving federal money or administered by a federal
agency. An "otherwise qualified" individual with a disability is one who meets a program's
requirements in spite of his or her disability. However, a program may have to justify its requirements
by showing that they are valid and necessary. (29 U. S. C. § 794; 28 C. F. R. § 41.32.)
b. Responsibilities of Employers Who Receive Federal Funds
Recipients of federal financial assistance may not discriminate on the basis of disability in any
area of employment, including recruitment, hiring, promotion, rate of pay, job assignment, or any
terms, conditions or privileges of employment. Employers must make reasonable accommodations for
employees' and job applicants' disabilities.
An employer may not conduct a pre-employment medical exam unless it is required of all
applicants and the results are not used to discriminate. Except as described below, the employer may
not ask whether an applicant is disabled or inquire about the nature and severity of the disability. The
employer may ask whether an individual is able to perform job-related functions.
The employer may ask about disabilities not related to job performance only for affirmative
action or other legitimate purposes. There must be a clear statement explaining that providing the
information is voluntary, that the information will be kept confidential, and that there is no penalty for
withholding information. The employer may give such information to supervisors and managers, first
aid and safety personnel, and government officials investigating compliance with the Act.
A recipient of federal funds may not use criteria which tend to screen out individuals with
disabilities, unless the criteria are job-related and alternative criteria or testing methods are unavailable.
c. Complaint Procedures for Discrimination by Recipients of Federal
Funds
If a funding recipient violates the law, the agency which provided the funds may enforce
compliance by terminating federal funding to the program or activity affected or by any other legally
authorized means. If you believe that you have experienced discrimination, you generally must file a
15.
15
Page 16
17
9
written complaint within 180 days from the date of the alleged discrimination with the agency that
provides funds for the particular employer. If the agency finds that the recipient did not violate the
provisions of the Act, then you may appeal to federal court. In most cases, you can also go directly to
federal court and bypass the entire administrative process.
16.
16
Page 17
18
10
CHAPTER 2
HOUSING
I. HOUSING DISCRIMINATION
STATE LAW
Individuals with physical and mental disabilities have the right under state law to rent, lease, or
buy housing accommodations free from discrimination due to a disability. (See Chapter 1 for definitions
of disability; Civ. Code, § 51, 54, subd.( b), and 54.1; Gov. Code, § 12926, subds. (i) and (k), 12955
and 12955.3.)
A person renting, leasing or providing real property for compensation must use the same criteria
for selection of disabled and non-disabled individuals. An "owner" includes anyone who rents or sells
housing, including another renter with a lease, a real estate agent or broker, a salesperson, or a state or
local government agency. (Gov. Code, § 12927, subd. (e); Civ. Code, § 54.1.) The FEHA also
prohibits disability discrimination by financial institutions and persons making, printing or publishing
advertisements. (Gov. Code, § 12955, subds. (c) and (e).)
It is illegal to refuse to sell, rent, or lease housing to an individual because the person has a
disability, or to assert that housing is not available when it actually is available. All housing
accommodations are covered under state law, except, under certain circumstances, those in which only
one room is rented in a single family residence. (Civ. Code, § 54.1; Gov. Code, § 12927,
subd. (c)( 2)( A).)
Equal access to housing for individuals with disabilities includes the right of a person with a
visual impairment to keep a guide dog, a person with a hearing impairment to keep a signal dog, or any
other person with a disability to keep a service dog, even if pets are not ordinarily allowed in the
residence. (Civ. Code, § 54.1, subd. (b)( 6)( A).) Tenants can be held liable for damages to real and
personal property caused by guide dogs, signal dogs or service dogs. (Civ. Code, § 54.1,
subd. (b)( 6)( B) and 54.2.) Any person who rents, leases or otherwise provides real property to persons
with disabilities may not deny them the right to make reasonable modifications at their expense to
accommodate their disabilities if they agree to restore the premises to its pre-existing conditions. (Civ.
Code, § 54.1, subd. (b)( 3)( A).) An owner may not discriminate against an individual with a disability
who is dependent on a spouse's income if the spouse is included on the rental agreement or lease, but
together a couple must meet the owner's credit and financial requirements. (Civ. Code, § 54.1,
subd. (b)( 7).)
A person discriminated against on the grounds of disability pursuant to Civil Code section 54.1
can ask the local district attorney, city attorney, the Department of Rehabilitation acting through the
Attorney General, or the Attorney General to bring an action to enjoin the violation, or to seek other
remedies, or he or she may bring a private legal action. (Civ. Code, § 55 and 55.1.)
A person can file a complaint with DFEH for a violation of the FEHA within one year from the
date upon which the discrimination occurred or can file a suit on his or her own behalf. (Gov. Code, §
12980 and 12989.1.)
17.
17
Page 18
19
11
FEDERAL LAW
The federal Fair Housing Amendments Act of 1988 (42 U. S. C. § 3601 et seq.) requires a
landlord to permit housing accommodations to be made accessible to individuals with disabilities at the
expense of the renter with a disability if the renter agrees to pay reasonable costs of restoring the
premises to its original condition after the renter leaves and if such modification is necessary to afford
the renter full enjoyment of the premises. However, an owner may not require the renter with a
disability to pay for reasonable wear and tear of the premises. Renting for purposes of this Act includes
leasing, subleasing or otherwise granting for consideration the right to occupy premises not owned by the
occupant. (42 U. S. C. § 3602( e).) There is an exemption in the Act for certain single-family houses and
certain rooms or units in fourplexes. (42 U. S. C. § 3603.) Furthermore, the Act requires that all new
rental housing, ready for occupancy 30 months after September 13, 1988, be designed and constructed
so as to be accessible to individuals with disabilities. New rental housing covered by this section of the
Act includes only buildings consisting of four or more units if such buildings have one or more
elevators; and ground floor units in other buildings consisting of four or more units. (42 U. S. C. §
3604( f)( 7)( A) and (B).)
If you believe that you have experienced discrimination in housing, you may either file a lawsuit
or you may file a complaint with HUD, not later than one year after the discriminatory act has occurred
and HUD may pursue legal remedies on your behalf. (42 U. S. C. §§ 3610 and 3612.)
II. HOUSING PROGRAMS
Both the federal government and the State of California recognize that there is a shortage of
suitable housing and have set national and state goals to provide decent housing for all. Funds are
provided to nonprofit agencies to build low income housing. Eligible individuals with disabilities and
their families may apply for housing constructed through these projects. The federal and state housing
programs are discussed below.
A. Federal Housing Programs
Under federal law, a "disabled household" is defined as one or more persons, at least one of
whom is an adult (18 years of age) who has a disability, or the surviving member or members of any
such household who were living with the deceased member at the time of death. A "person with a
disability" is a person who has a physical, mental, or emotional impairment which is expected to be of
long-continued and indefinite duration, substantially impedes his or her ability to live independently and
is of a nature that such ability could be improved by more suitable housing conditions. A person shall
also be considered to have a disability if such person has a developmental disability. (42 U. S. C.
§ 8013( k)( 2); 24 C. F. R. § 891.305.) Note that federally financed residences must also meet access
requirements. (24 C. F. R. § 891.500 et seq.) Families which qualify may receive rent supplement
payments. (24 C. F. R. § 891.610.) Income levels for determining eligibility are set by HUD.
(24 C. F. R. § 891.750.) Contact HUD to determine if you may qualify.
B. California Housing Programs
California has implemented several housing programs to further the goals of its housing policy.
Individuals and families that qualify are eligible to rent or buy housing financed by state or federal
funds. Under California law, a "handicapped family" is defined as one in which an individual or the
18.
18
Page 19
20
12
head of a household is suffering from an orthopedic disability which impairs his or her mobility or a
physical disability which affects his or her ability to obtain employment. Also included are individuals
or heads of families with developmental disabilities or mental disorders. To be eligible, an individual
with a disability must also require special facilities or care in the home. (Health and Saf. Code,
§ 50072.) Shared housing arrangements in which at least one person is disabled or elderly are supported
by housing payment assistance. (Health and Saf. Code, § 19902 et seq.)
Funds for housing programs are provided by federal, state, and local agencies. These agencies
will take into account your current income in determining your eligibility for these programs. These
financing programs have been designed to meet the needs of low and moderate income individuals and
families. Contact HUD, the California Department of Housing and Community Development, the
California Housing and Infrastructure Finance Agency and your local housing authority for information
about housing programs in your area.
19.
19
Page 20
21
13
CHAPTER 3
NONDISCRIMINATION IN
BUSINESSES AND SERVICES
I. NONDISCRIMINATION IN PUBLIC ACCOMMODATIONS, TRANSPORTATION
CARRIERS AND BUSINESS ESTABLISHMENTS
A. California Access Law
Under California law, persons with disabilities are entitled to full and equal access to places of
accommodation, transportation carriers, lodging places, recreation and amusement facilities, and other
business establishments where the general public is invited. This rule applies to medical facilities,
including hospitals, clinics and physicians' offices. Persons with both physical and mental disabilities
are protected. (Civ. Code, § 54.1.) A person with a disability or a trainer of guide, signal or service
dogs has the right to be accompanied by a guide dog, signal dog, or service dog without being required
to pay an extra charge or to leave a security deposit, although if with a trainer, the dog must be on a
leash and tagged as a guide, signal or service dog. (Civ. Code, § 54.1, subd. (b)( 6)( A), and 54.2;
Food & Agr. Code, § 30850 and 30852.) However, such persons can be liable for any provable
damage done to the premises or facility by the dog. (Civ. Code, § 54.1, subd. (c), and 54.2,
subds. (a) and (b).) Under this nondiscrimination law, an establishment is not required to make
structural modifications in order to facilitate access by persons with physical disabilities. (Marsh v.
Edwards Theatres Circuit, Inc. (1976) 64 Cal. App3d 881.) However, other laws which mandate
structural modification may apply to these establishments. (See Chapter 4 for an in-depth discussion of
access under the Americans with Disabilities Act (ADA) (42 U. S. C. § 12101 et seq.).)
Civil Code section 54.7 authorizes zoos and wild animal parks to prohibit guide, signal or
service dogs from accompanying persons with disabilities in areas where patrons of the park are not
separated from zoo or park animals by physical barriers. However, any mode of transportation provided
to the general public must be offered free to persons with visual-impairments who would otherwise use a
guide dog or persons in wheelchairs who would otherwise use a service dog.
If you believe that your right of admittance to or enjoyment of one of these facilities has been
violated, you may file a lawsuit. (Civ. Code, § 54.3) The Attorney General, a city attorney, a district
attorney, or the Department of Rehabilitation acting through the Attorney General may also file suit.
(Civ. Code, § 55.1.) The DFEH also has jurisdiction to handle a complaint for violation of Civil Code
sections 51, 51.5, 54, 54.1 and 54.2. (Gov. Code, § 12948.)
It is a misdemeanor to interfere with the right of a person with a disability to be accompanied by
a guide dog, signal dog or service dog in public conveyances or accommodations. (Pen. Code,
§ 365.5.) It is a misdemeanor to intentionally interfere with the use of a guide dog by harassment or
obstruction. (Pen. Code, § 365.6.) It is also a misdemeanor to knowingly or fraudulently represent
yourself to be the owner or trainer of a guide, signal or service dog. (Pen. Code, § 365.7.) It is an
infraction for any person to permit a dog owned, harbored or controlled by him or her to cause injury or
death to any guide, signal or service dog performing its duties. (Pen. Code, § 600.2.)
20.
20
Page 21
22
14
B. Discrimination Based on Disability
Persons with disabilities are protected from discrimination in any business establishment open to
the public. The Unruh Civil Rights Act (Civ. Code, § 51) forbids all arbitrary discrimination by
business establishments on the basis of disability. "Business establishment" has been broadly defined by
the courts and generally includes housing, hotels and motels, theaters, shopping centers, restaurants, and
all forms of transportation. Under this nondiscrimination law, an establishment is not required to make
structural modifications in order to facilitate access by persons with physical disabilities.
A victim of discrimination has several legal remedies under the Unruh Act. You may file a
complaint with the DFEH, which may investigate and litigate violations of the Unruh Act. You may also
file a lawsuit to recover damages. (Civ. Code, § 52.) Finally, if you believe that a person or group of
persons is engaged in a conduct of resistance to any of the rights guaranteed by the Unruh Act, and that
conduct is intended to deny the full exercise of those rights you should contact the Attorney General, city
attorney, or district attorney, who may then file suit. (Civ. Code, § 51 et seq.) A violation of the ADA
is also considered to be a violation of the Unruh Act. (Civ. Code, § 51,
subd. (f).)
II. NONDISCRIMINATION IN STATE-SPONSORED PROGRAMS AND ACTIVITIES AND IN
PUBLIC PLACES
No person may be denied the benefits of, or be unlawfully subjected to, discrimination under any
program or activity either funded directly or assisted financially by the state. (Gov. Code,
§ 11135.) Individuals with disabilities have the same right as the general public to the full and free use
of streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals,
clinics and physician's offices, public facilities and other public places. (Civ. Code, § 54.) A violation
of the ADA will also be a violation of this section, and the DFEH will have jurisdiction to handle a
complaint for violation of this section. (Gov. Code, § 12948.)
III. NONDISCRIMINATION IN INSURANCE COVERAGE
A. Life, Annuity, or Disability Insurance
It is illegal to discriminate against persons with disabilities in life, annuity or disability
insurance. Specifically, insurers providing individual or group life, annuity, or disability insurance
cannot refuse to insure, or limit the amount or kind of coverage available, or charge a different rate for
the same coverage solely because a person is blind, partially blind, or has a physical or mental
impairment. A physical or mental impairment is defined as any physical, sensory, or mental impairment
which substantially limits one or more of a person's major life activities. An insurer may refuse to
insure, limit coverage, or charge different rates only if based on sound actuarial principles or actual and
reasonably anticipated experience. (Ins. Code, § 10144, 10145.)
Every policy of disability insurance which covers hospital, medical, or surgical expenses on a
group basis must offer coverage to members of the group with physical disabilities under the same terms
and conditions as are offered to other group members. The group policies are not required to cover
hospital, medical, or surgical expenses which arise as a direct result of an individual's physical
disability. (Ins. Code, § 10122.1.)
21.
21
Page 22
23
15
Life and disability income insurers are prohibited from making unfair distinctions between
individuals when insuring for the risk of AIDS or AIDS-related conditions (ARC). There are mandatory
and uniform standards for HIV testing and for determining insurability. Strict confidentiality is required
of personal information obtained through testing. (Ins. Code, § 799 et seq.)
B. Health Insurance
No insurance plan or nonprofit hospital service corporation providing individual or group health
care service can limit the extent or kind of coverage available, refuse to cover, or charge a different rate
solely because of an individual's physical or mental impairment. A plan can only refuse to insure, limit
coverage, or charge different rates if based on sound actuarial principles or underwriting practices.
(Health & Saf. Code, § 1367.8; Ins. Code, § 11512.19.)
A group health plan cannot discriminate against individuals with disabilities or groups with
members who have disabilities, although it may reasonably exclude coverage for services related to the
disabling condition. (Health & Saf. Code, § 1373, subd. (f).) Life and disability income insurers are
prohibited from requiring an HIV antibody test if the results would be used to determine eligibility for
hospital, medical or surgical insurance coverage or for coverage under a hospital service plan or health
care service plan. (Ins. Code, § 799.09.)
An insurer may not delay more than 60 days in the payment or provision of hospital, medical or
surgical benefits for AIDS or AIDS-related complex for the purpose of investigating whether the
condition arose prior to commencement of coverage. However, this 60-day period does not include any
time during which the insurer awaits medical information from a health care provider. (Ins. Code, §
790.03, subd. (h)( 16).)
C. Automobile Insurance
Automobile insurers cannot discriminate against persons with disabilities. Insurers cannot refuse
to issue automobile insurance or charge higher rates solely because of a person's disability. A
"handicapped person" is defined for purposes of this law as an individual who has suffered an impairment
of physical ability, hearing, or speech which has been compensated for, when necessary, by vehicle
equipment adaptation or modification. The insurer may require a person with a disability to furnish
proof that he or she has qualified for a new or renewed driver's license since the occurrence of the
disabling condition. (Ins. Code, § 11628.5.)
No insurer may refuse to insure the owner of a motor vehicle solely because the owner is blind.
However, an insurer may exclude from coverage under the policy injuries and damages incurred while
the insured vehicle is operated by an unlicensed owner who is blind. An insurer cannot raise the
premiums or cancel the policy of an insured person who is blind solely because the operators of the
insured vehicle are changed frequently. (Ins. Code, § 11628.7.)
An insurer may cancel or fail to renew an automobile insurance policy only if a premium is not
paid, there is a substantial increase in the hazard insured against, or there is fraud. The criteria by
which an insurer must determine automobile insurance premiums are: the insured's driving safety
record, the number of miles he or she drives annually, and the number of years of driving experience he
or she has had. Good Driver Discount policies may be purchased by anyone whose driving record
22.
22
Page 23
24
16
permits, regardless of disability. (Ins. Code, § 1861.02 and 1861.03.) The insurance industry,
whether life, health, or automobile, must provide full and equal services, regardless of blindness or other
physical disability. (Ins. Code, § 1861.03; Civ. Code, § 51, 53.)
D. Insurance Appeal Procedures
If you believe that you have been discriminated against in health, disability or auto insurance,
you may file a written complaint with the California Insurance Commissioner requesting that the
Commissioner review the manner in which a rate, plan, system or rule has been applied by an insurer.
In addition, you may file a written request for a public hearing before the Commissioner. If you do not
agree with the decision of the Commissioner, then you may appeal the decision in a court of law. (Ins.
Code, § 1858 et seq.)
The Unruh Act also provides legal remedies for those who have been discriminated against by
the insurance industry. (Civ. Code, § 51; Ins. Code, § 1861.03.)
IV. NONDISCRIMINATION IN LICENSING AND LICENSED SERVICES
It is unlawful for a licensing board to require any examination or establish any other qualification
for licensing that has an adverse impact on persons with disabilities, unless the practice can be
demonstrated to be job related. (Gov. Code, § 12944, subd. (a).) Complaints of discrimination can be
filed with the Department of Fair Employment and Housing. (Gov. Code, § 12960.)
The Department of Consumer Affairs licenses many professions and services. Architects,
nurses, physicians, auto repair persons, beauticians, and funeral directors are all licensed professionals.
People who hold licenses issued by the state are subject to disciplinary action if they discriminate against
persons with disabilities. The holder of the license is not required to permit an individual to participate
in, or benefit from, the licensed activity where the individual poses a direct threat to the health or safety
of others. A "direct threat" is defined as a significant risk to health or safety of others that cannot be
eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids
and services. (Bus. & Prof. Code, § 125.6.)
Complaints of discrimination can be made to the board or commission within the Department of
Consumer Affairs, which is charged with the regulation of the particular profession. To file a complaint
to any board or commission within the Department of Consumer Affairs, contact the Consumer
Information Division at (916) 445-1254 or (800) 952-5210.
23.
23
Page 24
25
17
CHAPTER 4
ACCESS
Access is a critical issue for persons with disabilities. Lack of access to buildings and other
facilities is an obstacle in obtaining employment, education, housing, entertainment, health care and
other services. Lack of access to polling places and the voting process denies persons with disabilities
the opportunity to participate in one of the most important rights of citizenship. Lack of access to
transportation services hinders the ability of persons with disabilities to live independent lives. Lack of
access to telecommunications services limits the ability of persons with disabilities to obtain information
and has often posed a threat to safety.
I. ACCESS TO BUILDINGS AND FACILITIES
Both California and federal laws address the goal of increasing physical access and removing
architectural barriers. California law requires that publicly funded buildings and facilities and privately
funded public accommodations be accessible to persons with disabilities. (Civ. Code, § 4450 et seq., and
Health & Saf, Code, § 19955 et seq.) In 1968, Congress passed the Architectural Barriers Act (ABA) (42
U. S. C. § 4151, et seq.), which marked the beginning of a new federal policy toward individuals with
disabilities. The Americans with Disabilities Act (ADA) further expands the right to accessible public
buildings and public accommodations under federal law. In the case of the ADA, there is also
an affirmative obligation to make access improvements to existing facilities, even though no remodeling has
occurred, where it is readily achievable to do so.
A. Federal Law
1. Federal Buildings
The ABA is based in part on earlier laws passed to ensure that individuals with disabilities were
not excluded from access to federal buildings and facilities or discriminated against in services or
programs. The ABA was passed to ensure that persons with disabilities would have access to buildings
and structures designed, altered, or built with federal funds after August 12, 1968. Coverage extends to
any portion of a building or facility, including access routes, doors, common use areas, telephones, curb
ramps, drinking fountains, seating, and restroom facilities. Roads, walks, parking lots, parks, and other
outdoor areas are also included. Public housing is also included, although most privately owned residences are not.
The Act is enforced by the Architectural and Transportation Barrier Compliance Board
("AATBCB"), which has developed guidelines for accessible design. You may complain to the ATBCB
about noncompliance with the ABA. The Board will investigate the complaint, and if a violation is found,
the Board can take action to correct the violation. If you are not satisfied with the Board's action, you may
seek review of the case in court. (29 U. S. C. § 792.)
All public works projects receiving federal grants must have proper accessibility standards
incorporated into their plans. The ATBCB is authorized to ensure that any construction or renovation
complies with these standards. (42 U. S. C. § 6705( g).)
24.
24
Page 25
26
18
2. State and Local Government Buildings
The ADA provides that no qualified individual with a disability shall be excluded from
participation in, or denied the benefits, services, programs, or activities of a public entity. Also, a public
entity may not discriminate in any other manner against an individual due to a disability. This means that
no state or local government, governmental agency, or other instrumentality of government may
discriminate on the basis of a disability where the individual is otherwise qualified to receive a benefit or
service or to participate in a program. (42 U. S. C. §§ 12131 and 12132.) It is considered discrimination
under the ADA for a governmental organization to fail to provide physical access for individuals with
disabilities to its buildings and facilities, public transportation services, and other services.
State and local governments must provide access to their facilities and services. However, a state
or local government does not necessarily have to make every facility accessible. If alterations would
threaten the historic nature of a facility, fundamentally alter the nature of a service or program, or present
an undue financial or administrative burden, then other methods of compliance may be used. Some
examples of other methods of compliance include redesigning equipment, making structural modifications,
delivering services at alternate accessible sites, making home visits, assigning of aides to beneficiaries,
using accessible rolling stock or other conveyances, or constructing new facilities.
If you feel that you are being discriminated against by a state or public entity, you may file a
complaint with the United States Department of Justice. The United States Attorney General will either
investigate the complaint or will refer your complaint to an appropriate government agency. If the
complaint cannot be resolved, then the United States Attorney General may file a civil action to force the
state or public agency to comply. (42 U. S. C. § 12133; 29 U. S. C. § 794( a); 28 C. F. R. § 35.170 et seq.;
Duvall v. County of Kitsap (9 th Cir. 2001) 260 F. 3d 1124, 1138.) You may also file your own lawsuit.
(See Hason v. Medical Board of California (2002) 279 F. 3d 1167 [holding that Congress validly
abrogated state sovereign immunity in enacting Title II of the ADA, thus allowing suits by private
individuals in federal court against states and their agencies. However, this issue continues to be the
subject of litigation nationwide. Therefore, the holding in Hason may be affected by future litigation.].)
3. Privately-Owned Buildings
The ADA further provides that no individual shall be discriminated against on the basis of
disability by any person who owns, leases or operates a place of public accommodation. A person with
a disability is entitled to full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations offered at any place of public accommodation. (42 U. S. C. § 12182.)
The term "public accommodation" refers to any business or establishment open to the public.
(28 C. F. R. § 36.104.) For example, restaurants, movie theaters, hotels, shops, amusement parks,
hospitals, and bowling alleys are all considered public accommodations. A place of public
accommodation is required to facilitate access by modifying policies, practices, or procedures, providing
auxiliary aids and services, and removing architectural barriers where such removal is "readily
achievable" (easily accomplished and able to be carried out without much difficulty or expense).
Modifying policies, practices or procedures may not be required if a place of public
accommodation can show that such modification would fundamentally alter the nature of the goods,
25.
25
Page 26
27
19
services, facilities, privileges, advantages or accommodations being offered. Additionally, the provision
of auxiliary aids and services is not required if it is established that it would result in an undue burden
(significant difficulty or expense). Where a public accommodation can demonstrate that barrier removal
is not readily achievable, it shall make its services available through alternate methods, if those are
readily achievable. Examples of alternatives are curb service or home delivery; retrieving merchandise
from inaccessible shelves or racks; or relocating activities to accessible locations.
(28 C. F. R. § 36.301 et seq.)
Examples of actions that may be required to be taken to remove architectural barriers include:
installing ramps and curb cuts; repositioning shelves, telephones, bathroom dispensers, vending
machines, display racks or furniture; adding raised markings on elevator control buttons; installing
flashing alarm lights; widening doors; installing offset hinges to widen doorways; eliminating turnstiles
or providing alternative accessible paths; installing accessible door hardware and grab bars in toilet
stalls; rearranging toilet partitions to increase maneuvering space; insulating lavatory pipes under sinks
to prevent burns; installing raised toilet seats and full length bathroom mirrors; repositioning paper towel
dispensers in bathrooms; creating designated accessible parking spaces; installing an accessible paper cup
dispenser at an existing inaccessible water fountain; removing high pile, low density carpeting; and
installing vehicle hand controls. (28 C. F. R. § 36.304.)
All new facilities must be designed so that they are readily accessible and usable by persons with
disabilities unless structurally impracticable. If an alteration is made to a facility, then the area altered
must be made accessible. Whenever a facility is altered so that an area containing a primary function is
affected, the alteration must also be made in such a manner that the path to the bathrooms, telephone,
and drinking fountains serving the altered area are readily accessible. However, an exception to this rule
is where the alterations to the path of travel, telephones, bathrooms or drinking fountains would be
disproportionate in cost and scope to the planned alteration. Also, an elevator is not required for
facilities of less than three stories or which have less than 3,000 square feet per story unless the building
is a shopping center or mall, professional office of a health care provider, or unless the United States
Attorney General otherwise determines. (42 U. S. C. § 12183.) A public accommodation is required to
maintain in operable condition the facilities and equipment required to be readily accessible to and usable
by persons with disabilities, although isolated or temporary interruptions in service due to maintenance
or repairs are allowed. (28 C. F. R. § 36.211.)
If you feel that you have been discriminated against by a place of public accommodation, then
you may file a complaint with the United States Department of Justice or you may file your own lawsuit.
(42 U. S. C. §§ 12188, 2000a-3( a); 28 C. F. R. § 36.501 et seq.)
B. California Laws and Regulations
1. State and Local Government Buildings and Facilities
California law requires that all buildings, structures, sidewalks, curbs, and related facilities,
constructed with public funds and, under certain circumstances, buildings and facilities leased by state or
local government, must be accessible to and usable by persons with disabilities. (Gov. Code, § 4450 et
seq.) Buildings constructed before 1968 are not required to be accessible unless structural alterations or
repairs are made. If a building is altered, the area of alteration as well as the path of travel to and from
key facilities (such as restrooms) serving the area must be made accessible.
26.
26
Page 27
28
20
Complaints alleging that a public building or facility which was constructed or altered with state
funds is inaccessible should be lodged with California Division of the State Architect. Complaints
alleging that a public building constructed with local funds is inaccessible should be lodged with the
appropriate local government, usually through the building official or public works director, in the
jurisdiction where the building or facility is located. Any unauthorized deviations from state building
standards that are detected at a state or local government building or facility must be corrected within 90
days of confirmation of the violation. (Gov. Code, § 4452.)
A district attorney, city attorney, or the California Attorney General may bring an action to
enforce compliance with this law. (Gov. Code, § 4458.) However, as a general rule, the Attorney
General will not consider a complaint lodged against a local government unless it is established that the
complaint was first lodged with the appropriate local authority, the local authority has failed to respond
appropriately within a reasonable period of time, and the complaint alleges a significant pattern or
practice of non-compliance with state access laws and regulations.
California law also prohibits state and local governments from holding public meetings in
buildings or facilities that are inaccessible to persons with disabilities. (Gov. Code, § 11131 and
54961, subd. (a).) Violations of these laws should, in the first instance, be brought to the attention of
the state or local agency that has conducted or intends to conduct a meeting in an inaccessible facility. In
the case of a local agency, if the local agency continues to hold meetings in an inaccessible facility, a
complaint may be lodged with the California Attorney General.
2. Privately Funded Public Accommodations
California law also requires that public accommodations constructed with private funds after
July 1, 1970, be accessible to individuals with disabilities. Facilities constructed before July 1, 1970,
must be made accessible when any alterations, structural repairs, or additions are made. Similar to the
ADA, state law requires that the altered area and the path of travel and key facilities serving the area
being altered be made accessible.
The building department of every city and county is required to enforce state access laws and
regulations with respect to privately funded public accommodations located in their jurisdictions.
(Health & Saf. Code, § 19958.) Complaints alleging that a privately funded accommodation is out of
compliance with state access laws and regulations should be lodged with the local building official in the
jurisdiction where the public accommodation is located. Violations that are confirmed to exist must be
corrected within 90 days of such confirmation.
A district attorney, city attorney, the Department of Rehabilitation, or the Attorney General can
bring an action to enforce California's laws requiring that privately funded public accommodations be
accessible to individuals with disabilities. (Health & Saf. Code, § 19958.5.) However, here again, as
a general rule, the Attorney General will not consider a complaint unless it is established that the
complaint was first lodged with the appropriate local building department and that the local building
department has failed to respond appropriately within a reasonable period of time. The Attorney
General may review the decision of the local building department to determine whether it has abused its
discretion in resolving a complaint. Additionally, the Attorney General may investigate complaints that
allege a local building department is engaged in a pattern or practice of failing to adequately enforce
state access laws and regulations against privately funded public accommodations. The Attorney
27.
27
Page 28
29
21
General may file a civil action if he determines that a building department is engaged in such a pattern or
practice. Lastly, private parties may also enforce compliance with state access laws and regulations
against privately funded public accommodations. (Donald v. Café Royale, Inc., supra, 218 Cal. App. 3d
168, 183 (held that an individual may initiate an action to enforce compliance with the standards set forth
in Health and Safety Code, section 19955, et seq.).
3. California Access Regulations
In addition to the general state access statutes discussed above, California regulations provide a
comprehensive set of requirements covering almost all important areas of accessibility for persons with
physical and sensory disabilities. California's regulations are found at Volume 1, Chapter 11, of the
1998 California Building Code and are designed to comply with the requirements of the ADA. A copy
of the relevant portion of the California Building Code may be acquired through the Division of the State
Architect or may be found in your local law library in the California Building Code. In addition, your
city or county building department should have a copy available, and helpful guides may also be
purchased from private publishers. Tax deductions are available for individuals who repair or remodel
buildings or vehicles in order to increase access for persons with disabilities, as long as they comply with
state or federal access standards. Deductions shall not exceed $15,000 for any taxable year and may also
cover emergency egress/ safe area refuge systems in compliance with state or federal regulations. (Rev.
and Tax Code, § 24383.)
These regulations, some of which are discussed below, set specific accessibility requirements
which apply to buildings and facilities covered by the access statutes. Exceptions may be granted from
some of the requirements, but only if compliance would pose an unreasonable hardship. Even when
unreasonable hardship is demonstrated, some form of "equivalent facilitation" must usually be provided
to make the facility usable by persons with disabilities.
In addition to the regulations, California has enacted specific statutes directed at providing access
to various types of facilities. For example, stadiums, public parks and gas stations are all addressed by
specific laws.
a. Restrooms, Drinking Fountains and Public Telephones Must Be
Accessible
Buildings open to the public must have signs posted which indicate the location of restroom
facilities accessible to persons with disabilities. Signs on restroom doors must be in the shape of a circle
for women's restrooms, a triangle for men's restrooms, and a triangle interposed upon a circle for
unisex restrooms. (1998 California Building Code, hereafter "CBC", § 115B. 5; see also 1998 California
Plumbing Code, section 1501 et seq. for additional accessibility requirements involving water closets,
urinals, lavatories, showers, bathtubs, drinking fountains and sinks.)
Toilet facilities must have sufficiently wide doorways and must have grab bars. Restroom
components, such as waste paper baskets and sinks, must be accessible. Where bathing facilities are
provided for the public, clients, or employees, at least one such facility (and not less than one percent of
all facilities) must be accessible. A certain number of lockers must also be accessible. (CBC
§§ 1115B. 4, 1115B. 4.1, 1115B. 8, 1115B. 9 and 1115B. 6.)
28.
28
Page 29
30
22
At least half but not less than one of the water fountains must be accessible and must be placed
so that they do not pose a danger to persons with visual impairments. (CBC §§ 1105.4.1; 1117B. 1, 2.)
On floors where public telephones are provided, at least one must be accessible. On any floor
where two or more banks of multiple telephones are provided, at least one in each bank shall be
accessible. A reasonable number of public telephones provided, but always at least one on each floor or
bank, shall be equipped with a volume control which is hearing-aid compatible and which is signed.
Text telephones must be also provided under certain circumstances. (CBC § 1117B. 2.9 et seq.)
b. Entrances and Paths of Travel Must Be Accessible
All primary and exterior ground-floor exit doors to buildings and facilities shall be made
accessible to individuals with disabilities. (CBC § 1120A. 1.1.) Both doors of double doors designated
as a public entrance must be kept unlocked during normal business hours. (Health & Saf. Code,
§ 13011.)
Paths of travel must be accessible. There are also accessibility requirements for handrails;
ramps; striping for persons with visual impairments; level landings; wheel guides; detectable warnings;
and door pressure, surfaces and hardware. (CBC §§ 1102A et seq.; 1102B; 1114B. 1.2; 1127B. 1 et
seq.; and 1133B. 2.5 et seq.; Gov. Code, § 4460.)
c. Stadiums, Grandstands, Sports Facilities, Auditoriums, Theaters, and
Related Entertainment Facilities Must Be Accessible
Any entertainment facility approved for construction after January 1, 1985, must provide seating
or accommodations for persons with disabilities in a variety of locations to allow for a range of
admission prices, to the extent that this variety can be provided while meeting fire and public safety
requirements of the State Fire Marshall. Both private and public entertainment centers are covered by
this law, including theaters, concert halls, and stadiums. No lesser standard of accessibility or usability
shall be applied than under the ADA. (Health & Saf. Code, § 19952.) A district attorney, city attorney,
the Department of Rehabilitation acting through the Attorney General, or the California Attorney
General can bring an action to correct a violation of this section. In addition, if you believe that you
have been denied access required by this law, you can bring an action in court. (Health & Saf. Code, §
19953 and 19954.)
In stadiums and other sports facilities, spectator seating, the customer side of ticket booths,
participation areas, clubrooms and locker rooms must satisfy accessibility requirements, with certain
exceptions for hardships when equivalent facilitation is provided. (CBC §§ 1104B. 4 and 1115B. 6.4.)
In auditoriums and theaters, seating and toilet facilities for persons with disabilities must be
accessible from the lobby or from a primary entrance.
Seating spaces must be available for both individuals who use wheelchairs and individuals who
are semi-ambulant. All such seating must comply with fire and public safety requirements. Assistive
listening systems must be installed in stadiums, theaters, auditoriums, lecture halls and similar areas
when these areas have fixed seats and where audible communications are integral to the use of the space.
(CBC §§ 1104B. 3.2; 1104B. 3.8; 1104B. 4.2; and 1105B. 4.8.2.)
29.
29
Page 30
31
23
Stages and orchestra pits must be accessible to persons with physical disabilities, and ticket
booths and refreshment stands must be accessible on both the customer and employee sides. (CBC
§ 1104B. 3.10-12.)
d. Curbs and Sidewalks Must Be Accessible
Any curb or sidewalk intended for public use that is constructed with public or private funds
must be accessible, regardless of where it is located. (Health & Saf. Code, § 19956.5; Gov. Code,
§ 4450; 57 Ops. Cal. Atty. Gen. 186 (1974).) The curb or sidewalk must be easily accessible by means of
ramps or other devices. To ensure that the ramp is easily accessible, no one may park within three feet
of any sidewalk access ramp which is next to a crosswalk and is designated by either a sign or by red
paint. (Veh. Code, § 22522.)
A major concern for individuals with disabilities who use wheelchairs is the availability of curb
ramps. Alterations to the curb, sidewalk, or street require the removal of barriers or the construction of
ramps or other devices to aid accessibility. If the government, or a private entity, builds a new street or
sidewalk, then it must be made accessible to individuals with disabilities if it is to be used by the public.
Whenever a local government resurfaces a street, the government has made an alteration and is
therefore required to alter the curb to provide ramps or slopes at the intersections if they do not already
exist.
e. Historical Buildings
Historical buildings may be subject to case-by-case review when alterations are planned, rather
than a strict application of standard access regulations. Alternative building regulations have been
developed for use when an historical building is restored or relocated. (Health & Saf. Code, § 18950 et
seq.; CBC § 1135 B.)
f. Gas Stations
Gas stations must provide persons with disabilities with refueling service at the self-service
price, unless only one employee is on duty or only two employees are on duty, one of whom is assigned
exclusively to the preparation of food. Individuals must display a disabled plate or placard from the
Department of Motor Vehicles in order to receive this benefit. In addition to other remedies available, a
gas station owner or employee who disregards this law commits an infraction and may be fined. Gas
stations must post signs indicating whether or not they provide fueling services for persons with
disabilities. These signs shall include toll-free numbers maintained by the Department of Rehabilitation
for the purpose of seeking information about enforcement of the laws. Card readers at gasoline fuel
dispensing facilities are also required to be accessible. (See CBC § 1101C et seq.) Local law
enforcement agencies are authorized to investigate violations, upon the verified complaint of an
individual or public agency, and to levy the above-mentioned fines. An individual with a disability or
public agency may file a complaint with the California Attorney General, a district attorney, or a city
attorney, who may bring an action to correct a violation. (Bus. & Prof. Code, § 13660.)
g. Outdoor Recreation, Parks and Recreational Facilities
California's policy is to increase accessibility to the state's scenic, natural, historic, and cultural
resources. The policy includes, but is not limited to, walking trails, bikeways, horseback riding trails,
30.
30
Page 31
32
24
public roads, boat docks, picnic areas, cross-country ski trails, and heritage corridors. (Pub. Resources
Code, § 5070.5.)
Access regulations require that campsites, beaches, picnic areas, boat docks and fishing piers,
parking lots, highway rest areas and portions of trails and paths be usable by persons with disabilities.
Nature and educational trails must be made accessible to persons with vision impairments by the
provision of rope guidelines, raised Arabic numerals or symbols, and accessible information and guide
signs. Where the natural environment would be materially damaged by compliance with these
regulations, such areas will be subject to the regulations only to the extent that such damage will not
occur. If permanent facilities are provided, then at least one kind of permanent functional area or
facility, as applicable, shall be accessible to persons with disabilities, including a sanitary facility for
each sex; at least one picnic table and one table for each 20 tables, or fraction thereof provided;
information and display areas; drinking fountains; at least one parking space; and curb ramps at
pedestrian ways, where appropriate. Automobile access and accessible path of travel shall not be
provided if compliance would create an unreasonable hardship. (CBC § 1132B. 2.)
Individuals with disabilities who receive state aid may be eligible for a Golden Bear Pass
allowing free day use access to most state parks for the individuals with disabilities and his or her
spouse. The pass is available from the Department of Parks and Recreation. (Pub. Resources Code,
§ 5011.)
At least a portion of playground equipment purchased by public agencies operating playgrounds
as of January 1, 1979, shall be accessible and usable to all persons, regardless of physical condition,
whenever equipment is available at a comparable cost and quality to standard equipment. (Pub.
Resources Code, § 5411.)
h. Signs and Identification
The International Symbol of Accessibility must be displayed at accessible building entrances and
in the lobbies of buildings which have been remodeled to provide accessible sanitary facilities. (CBC §§
1114A and 1117A. 3.)
i. Clear Floor or Ground Space
Building design must allow for the clear movement and maneuvering of wheelchairs. (CBC
§ 1118B.) Objects protruding from walls (for example, telephones) may not obstruct the movement of
wheelchairs. Building design must also take into consideration the needs of individuals with vision
impairments. This helps ensure that an individual with a visual impairment will avoid hazards
undetectable by standard cane technique. (CBC § 1121B.)
j. Dining, Banquet and Bar Facilities
Wheelchair access must be provided in dining, banquet and bar facilities. Access must be
provided to all areas where each type of functional activity occurs. There must be a certain number of
wheelchair seating spaces. Food service aisles, tableware areas, restrooms and food preparation areas
must also be accessible. (CBC § 1104B. 5; People ex rel. Deukmejian v. CHE, Inc. (1983)
150 Cal. App. 3d 123.)
31.
31
Page 32
33
25
k. Religious Facilities
The sanctuary areas, raised platforms, choir rooms, choir lofts, performing areas, assembly
areas, classrooms and offices and sanitary facilities of religious facilities must be accessible and must
provide wheelchair seating spaces. Hardship exceptions can be granted where equivalent facilitation is
provided. (CBC § 1104B. 6.)
l. Office Buildings and Personal and Public Service Facilities
Facilities covered by these regulations include all those used by the public as customers, clients,
or visitors, or facilities which may be places of employment. Included are all types of business and
professional offices, including insurance, real estate and attorneys' offices, all types of sales
establishments, and all personal and public service facilities, including banks, laundromats, hospitals,
police stations, courtrooms, fire stations, automated teller machines, point of sale machines, and vending
machines. (CBC §§ 1105B et seq.; 1109B et seq.; 1117B. 7 et seq.; and 1126B; Donald v. Sacramento
Valley Bank (1989) 209 Cal. App. 3d 1183.)
In business and professional offices, areas to be made accessible include client and visitor areas,
toilet facilities, conference rooms, and employee work areas. (CBC § 1105B. 3 et seq.) In sales
establishments, sales and display areas must be accessible, as well as employee work areas and some
check-out stations. Where fitting or dressing rooms are provided, at least one must be accessible. (CBC
§ 1110B. 1 et seq.) Finally, with certain exceptions, client and visitor areas and employee work areas
must be accessible in personal and public service facilities. Factories and warehouses must also comply
with broad accessibility requirements. (CBC §§ 1105.4.4. et seq. and 1107B et seq.)
m. Educational and Library Facilities
In educational facilities, laboratory rooms must provide a certain number of work stations usable
by students with physical disabilities, and a certain percentage of study carrels and teaching facility
cubicles must be accessible. General use areas in libraries must be accessible, and open book stacks
must allow wheelchair access to the aisle. (CBC § 1106B. 1 et seq.)
n. Hotels, Motels, and Publicly-Funded Living Accommodations
A certain number of guest rooms in private lodging facilities must be accessible, including
sanitary facilities. Public rooms and recreational facilities in private lodging must also comply with
certain accessibility requirements. Some publicly-funded living accommodations must meet accessibility
requirements although arguably they must be publicly-funded and open to the general public. (CBC §
111B. 1 et seq.; Berkeley Center for Independent Living v. Coyle (1996) 42 Cal. App. 4th 874.)
o. Courtrooms
Individuals with hearing impairments are entitled to the use of assistive listening systems or
computer-aided transcription equipment to assist their participation in any civil or criminal court
proceeding, alternate dispute resolution or public agency administrative hearing, if they provide at least
five days' notice. Each county is required to have at least one portable listening device for use by the
32.
32
Page 33
34
26
courts. Signs must be posted indicating how to request these systems. In any civil or criminal
proceeding where an individual with a hearing impairment is a participant, the court proceeding shall not
be allowed to commence until the requested listening assistance equipment has been provided. In
addition, jury boxes, judges' benches, witness stands, counsel tables, public seating areas, jury rooms
and other court facilities must be made accessible in all new or remodeled facilities. No lesser standard
of accessibility or usability shall be applied than is applicable under the ADA. (CBC § 1105B. 3.5.)
An individual who is deaf or hearing impaired and cannot participate in court, administrative or
alternative dispute resolution proceedings through the use of an assistive listening system or computer-aided
transcription equipment is entitled to a free qualified interpreter to interpret the proceedings in a
language understood by the individual. A free intermediary interpreter will be appointed if the appointed
interpreter is not familiar with the use of particular signs or sign language used by the individual. The
proceeding cannot commence until the interpreter is present. Individuals with hearing impairments are
also entitled to interpreters when they are interviewed in a criminal or quasi-criminal investigation or
proceeding. (Evid. Code, § 754.)
p. Elevators
Elevators must be designed so as to accommodate wheelchairs. Elevators must stop within one-half
inch of the building floor level, and elevator floor buttons must be within reach of a wheelchair
user. Passenger elevators must be located near a major path of travel. All new elevators must have
braille and raised arabic numbers next to the buttons designating each floor. Existing elevators must also
satisfy this requirement, unless an unreasonable hardship would result. The number of the floor must
appear both in braille and in raised arabic numbers on the outside of the elevator door. (CBC § 1105.3;
Gov. Code, § 4455.5.) Lifts are only allowed in limited circumstances. (CBC § 1116B. 2 et seq.)
q. Miscellaneous
II. ACCESS TO POLLING PLACES AND THE VOTING PROCESS -STATE AND FEDERAL
ELECTIONS
A. State Elections
California law requires that notice of a polling site must state whether the location is accessible.
Election officials must try to select accessible voting sites. If a site is not accessible, a person with a
disability can vote in a nearby accessible location or by absentee ballot.
33.
33
Page 34
35
27
If a voter is unable to mark a ballot, he or she must be permitted to vote with the assistance of
not more than two persons, excluding the voter's employer, or an officer or agent of the union of which
the voter is a member. The voter must declare under oath to a member of the precinct board present at
the time that he or she is unable to mark the ballot. No person assisting a voter shall divulge any
information regarding the marking of the ballot. (Elec. Code, § 12280 and 14282.)
B. Federal Elections
Any voter requiring assistance because of blindness or disability to vote in a federal election may
receive assistance from a person of the voter's choice, other than the voter's employer or an agent of the
employer or an officer or agent of the voter's union. (42 U. S. C. § 1973aa-6.) State and political
subdivisions must ensure that registration and polling places for federal elections are accessible to
persons with disabilities and elderly persons, or that alternative means for casting ballots are provided.
The chief election officer of each state shall provide timely notice of the availability of aids and
assistance and the procedures for voting by absentee ballot. Registration and voting aids which are
required include:
If a state or political subdivision does not comply with this law, the United States Attorney
General or anyone potentially aggrieved by the noncompliance can bring a lawsuit for declaratory or
injunctive relief in the appropriate district court. (42 U. S. C. § 1973ee-4.)
III. ACCESS TO TRANSPORTATION
A. Driving and Parking
1. Driver's Licenses
The right to a driver's license is not absolute, and licensing standards vary from state to state.
In California, a person with a physical or mental disability may not be refused a driver's license if the
Department of Motor Vehicles (DMV) decides the disability does not affect the individual's ability to
operate a vehicle. By statute, the DMV may not issue a license to a person with a disorder characterized
by lapses of consciousness, or marked confusion, but the DMV must usually make license determinations
on a case-by-case basis and must issue licenses to persons capable of safe driving. The DMV shall not
issue or renew a driver's license of any person whose best corrected visual acuity is 20/ 200 or worse in
that person's better eye, as verified by an optometrist or ophthalmologist. No person may use a bioptic
telescope or similar lens to meet the acuity standard. (Veh. Code, § 12805 and 12806; Smith v. DMV
(1984) 163 Cal. App. 3d 321.)
34.
34
Page 35
36
28
The DMV may require a person to use special adaptive devices, if necessary to assure safe
driving. (Veh. Code, §12813.)
2. Parking Privileges
California has enacted a number of provisions granting special parking privileges to persons with
disabilities who drive upon receipt of medical certification, unless the disability is readily observable and
uncontested. In order to take advantage of most of these privileges, a person's vehicle must display
either a distinguishing license plate or distinguishing placard, both of which can be obtained on a
permanent or temporary basis from the DMV. (Veh. Code, § 5007 and 22511.55 et seq.) The plates
and placards cannot be loaned to others, unless that person is in the presence or reasonable proximity of
the person with a disability for purposes of transporting him or her. Violations of this code section are
misdemeanors punishable by a fine and/ or jail time. (Veh. Code, § 4461.) A civil penalty of $1,500
can be imposed in addition to or instead of the fine. (Veh. Code, § 4461.5.) If lost or stolen, the
placards can be replaced without recertification of eligibility. The placards have a fixed expiration date
of June 30 every two years. The plates and placards shall be returned to the DMV not later than 60 days
after the death of the person to whom it was issued. No person is eligible for more than one placard at a
time, although organizations involved in the transportation of persons with disabilities may apply for a
placard for each vehicle used for that purpose. (Veh. Code, § 22511.55.)
Upon receipt of the required applications and documents, the DMV will also issue temporary
distinguishing placards for persons temporarily disabled for a period of not more than six months. This
placard expires after six months, or the termination of the disability, whichever occurs first. There are
also placards available for shorter periods of time for purposes of travel. (Veh. Code, § 22511.59.)
Any person using a distinguishing placard for parking in permitted areas shall present
identification and evidence of the issuance of the placard to that person upon request by a person
authorized to enforce parking laws, ordinances or regulations. Failure to present the identification and
evidence gives rise to a rebuttable presumption that the placard is being misused, and the placard may be
confiscated. (Veh. Code, § 22511.56.) The plates and placards allow disabled persons to park in certain
restricted zones, and to park in metered spaces for free. (Veh. Code, § 22511.5.) California Vehicle
Code section 22507.8 precludes persons without disabled placards or plates to park in stalls or spaces
reserved for the disabled. Vehicles can be towed if parked in violation of this section if the posting
requirements set forth in Vehicle Code section 22511.8 have been met. (Veh. Code, § 22652.)
California Vehicle Code section 42001.5 requires the court to impose a fine on any person convicted of
specified disabled parking violations, which can only be suspended if the person convicted possessed a
placard or plate but failed to display it.
Parking spaces identified with blue curb paint are exclusively for the use of persons with
disabilities. (Veh. Code, § 21458, subd. (a)( 5).) Vehicle Code section 22522 prohibits parking a
vehicle within three feet of a sidewalk access ramp for the disabled adjacent to a crosswalk if the area
adjoining the ramp is designated with a sign or red paint. Local authorities generally decide where
special parking spaces will be located. In addition to designating reserved parking spaces on streets and
in public lots, local authorities may require private parking facilities which are open to the public to
reserve a certain number of spaces for the vehicles of persons with disabilities. Any parking facility
controlled by a state agency must reserve a certain number of spaces for persons with disabilities and
35.
35
Page 36
37
29
provide appropriate signage. If a state agency does not have its own parking facility, the agency must
ask local authorities to reserve on-street spaces immediately adjacent to the agency property for the use
of persons with disabilities. (Veh. Code, § 22511.7 and 22511.8; Gov. Code, § 14679.)
Drivers with disabilities must still observe parking regulations which prohibit all stopping,
parking or standing, or which reserve spaces for special types of vehicles. (Veh. Code, § 22511.5,
subd. (a)( 3).)
B. Mass Transit and Interstate Transportation
1. State Law
a. Accessibility of Equipment and Structures
California law provides that state agencies, boards, and departments, local governmental
subdivisions, districts, public and quasi-public corporations, local public agencies and public service
corporations, cities, counties and municipal or county corporations in awarding contracts for operations,
equipment or structures shall require that all fixed-route transit equipment and public transit structures be
built so that individuals with disabilities shall have ready access to, from, and in them. (Gov. Code, §
4500; 70 Ops. Cal. Atty. Gen. 70 (1987).) This section also provides that if state standards are higher
than the ADA, those state standards shall be complied with.
Section 99220 of the Public Utilities Code sets forth a legislative finding that since public
transportation systems provide an essential public service, they should be designed and operated so as to
encourage maximum utilization by "handicapped persons." A "handicapped person" is defined as "any
individual who by reason of illness, injury, age, congenital malfunction, or other permanent or
temporary incapacity or disability, including, but not limited to, any individual confined to a wheelchair,
is unable, without special facilities or special planning or design, to utilize public transportation facilities
and services as effectively as a person who is not so affected. A temporary incapacity or disability is
one which lasts more than 90 days. (Pub. Util. Code, § 99206.5.) Cities or counties are authorized
pursuant to section 99260.7 of the Public Utilities Code to file a claim for state funds to provide
transportation services using vehicles for the exclusive use of "handicapped persons."
2. Federal Law
a. General Provisions
i. Public Entities, Recipients of Federal Funding, and the Federal
Government
The ADA provides that public entities must make all services, programs and activities accessible
to individuals with disabilities. This general provision extends to transportation services, such as buses,
trains, and other conveyances provided by state and local government. It also extends to the facilities
and stations which provide access to these services. (42 U. S. C. §§ 12132 and 12142-12165.) In
addition, the Rehabilitation Act of 1973 ensures that all recipients of federal financial assistance and
federal agencies themselves provide access to transportation services and facilities.
(29 U. S. C. §§ 794 and 794b.)
36.
36
Page 37
38
30
ii. Private Entities
The ADA also provides that all public accommodations operated by private entities be accessible
to individuals with disabilities, although there are exceptions for certain private clubs and religious
entities. (42 U. S. C. § 12187.) Private entities include all privately-owned businesses and organizations
which offer services to the public. This means that public transportation provided by private entities,
such as buses, trains and taxi cabs, is subject to accessibility requirements. (42 U. S. C. §§ 12181-
12189.)
The ADA makes a distinction between private entities which are primarily engaged in the
business of transportation and private entities which provide transportation services incidental to other
types of business. Private entities which are primarily engaged in the business of transportation are held
to strict accessibility requirements. They must make reasonable modifications to their vehicles and must
provide auxiliary aids and services which will aid in creating accessibility. Reasonable modifications
may include removing existing barriers where such modifications are readily achievable and if not, using
readily achievable alternative methods. (42 U. S. C. §§ 12182 and 12184.)
iii. Exceptions
While all forms of transportation offered to the public must be accessible, this does not mean
that structural alterations must necessarily be made to all transportation vehicles. Instead, transportation
systems must be accessible in a manner that provides individuals with disabilities with service
comparable to that offered to persons without disabilities. Accessibility regulations take into account the
need to balance the cost of altering existing transportation systems with the goal of achieving full
accessibility. The regulations and exceptions which apply to the various modes of transportation are set
out in more detail below.
b. Buses, Rapid and Light Rail Vehicles
i. Buses, Rapid and Light Rail Vehicles Operated By Public
Entities
All new buses, rapid and light rail vehicles operated by public entities must be designed so that
they are readily accessible and usable by individuals with disabilities, including individuals who use
wheelchairs. This applies to all new vehicles which were ordered after August 25, 1990. Used vehicles
purchased or leased after that date must also be readily accessible and usable by individuals with
disabilities, unless the public entity can show that it used good faith efforts to purchase or lease
accessible used buses and that none were available. Vehicles which are remanufactured so that they will
last at least another 5 years are also required to be readily accessible and usable by persons with
disabilities, including individuals who use wheelchairs. (42 U. S. C. § 12142.)
If a remanufactured vehicle has been made to be accessible to the maximum extent possible,
then such a vehicle will comply with accessibility requirements. Historic vehicles operating on fixed
route systems, any segment of which is included on the National Register of Historic Places, need only
be made accessible to the maximum extent feasible, if modifications would significantly alter the
historic character of the vehicle. (42 U. S. C. § 12142( c)( 2).) Some transit systems which are
considered "demand responsive" and do not have fixed routes may continue to purchase and lease non-
37.
37
Page 38
39
31
accessible vehicles, but they must operate a system which, when viewed in its entirety, provides an
equivalent level of service for individuals with disabilities. (42 U. S. C. § 12144; 49 C. F. R. § 37.171.)
They must compensate passengers with disabilities if they fail to provide certain services. (49 C. F. R.
§ 37.199.)
In addition, systems which do not provide fully accessible vehicles are required to provide
paratransit and other special services in order to provide a level of service which is comparable to the
service provided individuals without disabilities. Paratransit must also be comparable to the extent
practical with the response time provided to individuals without disabilities. However, systems
providing solely commuter bus service are exempt from this requirement. (42 U. S. C. § 12143.)
The ADA also mandates that a public entity provide at least one car per train, where two or
more vehicles operate as a train by a light or rapid rail system, which is readily accessible and usable by
persons with disabilities, including individuals who use wheelchairs. (42 U. S. C. § 12148.)
Public entities operating fixed route systems shall permit service animals to accompany
individuals with disabilities in vehicles and facilities. (49 C. F. R. § 37.167( d).)
ii. Over-the-Road Buses Operated By Private Entities
Over-the-road buses operated by private entities are generally subject to the same accessibility
rules as those applied to government-funded bus systems. Private entities may not purchase or lease new
buses which are not readily accessible and usable by individuals with disabilities. They are to remove
transportation barriers in existing buses where such removal is readily achievable; they are not required
to retrofit buses or to install hydraulic lifts. (42 U. S. C. § 12186; 49 C. F. R. §§ 37.167( d); 37.181 et
seq., and 38.151 et seq.; 28 C. F. R. § 36.310.)
"Over the road buses," which are buses with baggage compartments located underneath the
passenger section, are not required to provide accessible bathrooms if this would result in a loss of
seating capacity. However, they are required to be accessible in all other aspects, such as by providing
handrails, lighting and slip-resistant floors where wheelchairs or mobility aid users are to be
accommodated. (42 U. S. C. § 12186; 49 C. F. R. § 38.151 et seq.)
Private entities which are primarily engaged in the business of transportation must make
reasonable modifications to existing buses, must provide auxiliary aids and services and, under certain
circumstances, must remove barriers in order to create accessibility. Where an entity uses vehicles with
a carrying capacity of eight passengers or less, it is required to purchase accessible vehicles, unless the
entity provides the same level of service to passengers with disabilities when the system is viewed in its
entirety. The same level of service means that the frequency, response time, and destinations covered
must be equivalent. (42 U. S. C. § 12184; 28 C. F. R. § 36.202; 49 C. F. R. §§ 37.103 and 37.105.)
Private entities which are not primarily engaged in the transportation business and which
operate a fixed route system are required to purchase new buses which are readily accessible and
usable by individuals with disabilities, including persons who use wheelchairs. However, if the vehicle
has a carrying capacity of 16 passengers or less, then the vehicle is not required to be accessible, but
only if the private entity operates a system which provides the same level of service to users with
--
38.
38
Page 39
40
32
disabilities when viewed in its entirety. Public entities which operate a purely demand responsive
system -where there is no fixed route -are required to purchase accessible vehicles, unless they can
show that the system, when viewed in its entirety, provides the same level of service to users with
disabilities. (42 U. S. C. § 12182; 49 C. F. R. §§ 37.101 and 37.105.)
c. Trains, Street Cars and Other Rail Vehicles
i. Intercity and Commuter Rail Operated By Public Entities
The same general rules apply to larger trains that apply to rapid and light rail transportation.
Public entities, such as Amtrak or local commuter authorities, must purchase or lease readily accessible
or usable vehicles subject to the same general exceptions allowed for rapid and light rail.
On intercity trains, there must be at least one space to park and one space to store and fold a
wheelchair for every passenger coach. Accessible bathrooms are required on coaches which provide
wheelchair spaces. On trains which provide food service in either single or bi-level cars, auxiliary aids
and services must be provided to ensure that passengers with disabilities are provided equivalent food
service to that provided to other passengers. A single-level dining car providing food service must meet
certain accessibility requirements if purchased after July 26, 1990. The one-accessible-car-per-train rule
also applies to intercity and commuter rail service. (42 U. S. C. § 12162; 49 C. F. R. §§ 37.91 and
37.93.)
ii. Rail Operated By Private Entities
Rail operated by private entities is subject to the same accessibility rules as other businesses
providing public accommodations. Private entities have an obligation to remove structural barriers and
to make alterations where readily achievable. If such alterations are not readily achievable, then the
public entity has the duty to use alternative methods of providing services if they are readily achievable.
However, public entities are not required to retrofit cars for hydraulic lifts. (42 U. S. C.
§ 12182( b)( 2)( A)( iv).)
Private rail is also subject to the same rules as rail provided by public entities; for example, all
new passenger cars must be readily accessible to and usable by persons with disabilities, to the maximum
extent feasible. This applies to used cars not already owned or leased by an entity and to cars
remanufactured to extend their life ten years. (42 U. S. C. § 12184.) Historic cars are granted the same
exceptions given to those operated by public entities. (Ibid.)
d. Stations and Terminals
i. Facilities Operated By Public Entities
Transportation facilities are subject to the same types of accessibility requirements as other
buildings. New facilities must be built so that they are readily accessible and usable by persons with
disabilities, and any alterations to existing buildings must be done so that they are made accessible and
usable to the maximum extent feasible. Whenever an area containing a primary function is altered, the
bathrooms, telephones, drinking fountains, and path of travel must also be made accessible to persons
with disabilities, including persons who use wheelchairs, unless disproportionate in cost and scope to the
overall alterations. (42 U. S. C. §§ 12146 and 12147, subd. (a); 49 C. F. R. §§ 37.41-37.45.)
39.
39
Page 40
41
33
In addition to the general rules, "key stations" serving rapid and light rail must be made
accessible no later than July 26, 1993. Public entities may apply for extensions of up to 30 years where
making a station accessible would involve extraordinarily expensive structural changes to or replacement
of existing facilities. By July 26, 2010, at least two-thirds of such key stations must be readily accessible
to and usable by individuals with disabilities. (42 U. S. C. § 12147( b); 49 C. F. R. § 37.41 et seq.)
"Key stations" are chosen by the public entity based on various criteria including stations where
passenger boarding exceeds 15% of the average, transfer stations, connections to other modes of
transportation, end stations, and stations serving major activity centers. (49 C. F. R. §§ 37.47-37.51.)
ii. Facilities Oper