Applicability of Section 504 of the Rehabilitation Act to Certain Governmental Entities

Applicability of Section 504 of the Rehabilitation

Act to Certain Governmental Entities

Section 504 o f the Rehabilitation A ct o f 1973 prohibits discrimination against qualified handi­

capped individuals in any program or activity conducted by any “Executive agency." The

legislative history o f the 1978 Amendments to the Act makes clear that Congress intended

§ 504 to apply to all “agencies and instrum entalities” in “the Executive branch,” including

independent regulatory agencies performing functions constitutionally committed to the

Executive Branch. The term “Executive agency” as used in § 504 must be construed broadly

to include all government entities which are not within either the legislative or judicial

branches.

All o f the entities listed in the m em orandum are “Executive agencies” under § 504. These are:

the Architectural and Transportation Barriers Com pliance Board, the Civil Aeronautics

B oard, the Com m ission of Fine Arts, the Federal Deposit Insurance Corporation, the Federal

Labor R elations Authority, the Federal M aritim e Commission, the National Transportation

Safety Board, the National L abor Relations Board, the Railroad Retirement Board, the

Securities and Exchange Com mission, the Federal Communications Commission, and the

A dm inistrative Conference of the United States.

May 3, 1983

M em orandum O p in io n for the A s s is t a n t A t t o r n e y G eneral,

C iv il R ig h t s D iv is io n

You have requested the views of this Office with respect to whether certain

entities are “Executive agencies” covered by § 504 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. § 794 (Act).1 Section 504 prohibits, inter alia,

discrimination against qualified handicapped individuals in any program or

activity conducted by any “Executive agency.” Each such agency is required

by § 504 to promulgate regulations to carry out these provisions. Your inquiry

arises in the context of your development of prototype regulations for the use of

Executive agencies in fulfilling their responsibilities under § 504.2 For the

1 T hese entities are: the Architectural and Transportation B arriers Com pliance Board, the Civil Aeronautics

B oard, the C om m ission o f Fine Arts, the Federal D eposit Insurance C orporation, the Federal Labor Relations

A uthority, the Federal M aritim e C om m ission, the Federal R eserve System , the Interstate Commerce C om ­

m ission, the N ational Transportation Safety Board, the N ational Labor Relations Board, the Railroad

R etirem ent B oard, the S ecurities and Exchange Com m ission, the Federal C om m unications Commission, and

the A dm inistrative C onference o f the U nited States.

2U n d er E xecutive O rder N o. 122S0,45 Fed. Reg. 72995 (1980), the A ttorney General has general authority

to coordinate the im plem entation by “Executive agencies” o f various laws prohibiting discrim ination,

including § 504. Because you have decided, as a policy matter, to assist agencies in developing their own

regulations by issuing a prototype set, rather than by issuing a set o f regulations purporting to bind them, we need

not address the m ore difficult questions which would be raised were the regulations to have been made mandatory.

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reasons which follow, we believe that all of the named entities are “Executive

agencies” under § 504.3

We begin with a general analysis of the intended scope of the statutory term

“Executive agency” whose programs and activities are covered by § 504. We

then apply this analysis to the named entities, to determine whether they should

be regarded as falling within that category.

I

Section 504 of the Rehabilitation Act of 1973, as amended, provides in

pertinent part that:

No otherwise qualified handicapped individual in the United

States, as defined in section 706(7) of this title, shall, solely by

reason of his handicap, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance or

under any program or activity conducted by any Executive

agency o r by the United States Postal Service. The head o f each

such agency shall prom ulgate such regulations as may be neces­

sary to carry out the amendments to this section made by the

Rehabilitation, Comprehensive Services, and D evelopm ental

D isabilities Act o f 1978.

29 U.S.C. § 794 (emphasis added). The underscored language was added to

§ 504 by § 119 of the Rehabilitation, Comprehensive Services, and Develop­

mental Disabilities Amendments of 1978, Pub. L. No. 95-602, 92 Stat. 2955,

2982 (1978 Amendments). Although neither § 504 nor any other section of the

Act defines the “Executive agencies” to which § 504 applies, the legislative

history of the 1978 Amendments contains clear evidence of Congress’ intent in

this regard.

As passed by the House, § 119 of H.R. 12467, the Rehabilitation Amend­

ments of 1973, would have extended the nondiscrimination provisions of § 504

to “any program or activity conducted by any Executive agency (as defined in

section 105 of title 5, United States Code).” 124 Cong. Rec. 13892 (1982).

Congressman Brademas, Chairman of the Subcommittee on Select Education

of the reporting Committee on Education and Labor, described this provision

as extending the antidiscrimination provisions of § 504 to “all activities and

programs of the executive branch of the Federal government.” Id. at 13897.

Congressman Jeffords, who claimed responsibility for adding § 119 to the bill,

3 You have asked fo r our view s w ith respect to w hether the named agencies should be regarded as

“Executive agencies” as that term is employed in Executive O rder No. 12250. In subsequent discussions w ith

the staff o f your C oordination and Review Section, it w as agreed that the advisory nature o f the prototype

§ 504 regulations m ade it more appropriate at this point for us simply to address the question of statutory

coverage. W e note, how ever, that w e believe it w as the President’s intent in issuing the Executive O rder to

delegate to the A ttorney General his authority over all “ Executive agencies” covered by the various nondis­

crim ination laws m entioned in the O rder, including the so-called “ independent" agencies

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described it as “extending] the coverage of section 504 to include any function

or activity of any department or agency of the Federal government.” Id. at

13901.4 He explained that “ [w]hen the original legislation was developed it

was intended to apply to every phase of American life,” but that the Justice

Department had since ruled that “the Federal Government was exempt from the

statute.”5 The proposed amendment to § 504 “removes that exemption and

applies section 504 to the Federal Government as well as State and local

recipients of Federal dollars.” Id.

Notwithstanding these broad statements by the House sponsors of the amend­

ment to § 504, the House-passed version of the amendment to § 504 would by

its terms have limited its coverage to “Executive agencies” as defined in 5

U.S.C. § 105. This definition explicitly excludes the United States Postal

Service and the Postal Rate Commission. It includes, however, an entity ordinarily

considered part of the Legislative Branch, the General Accounting Office.6

The Senate-passed version of H.R. 12467 contained no provision compa­

rable to § 119 of the House-passed bill. The Senate bill contained another

provision, however, which reflected a similar concern over how the Act’s

nondiscrimination provisions were being enforced against the Federal govern­

ment. That provision added a new section to the Act making clear that individu­

als could sue federal agencies for violations of § 501 of the Act, 29 U.S.C.

§ 791, and making available to such individuals the rights and remedies appli­

cable under Title VII of the Civil Rights Act of 1964, including attorneys fees.

See S. Rep. No. 890, 95th Cong., 2d Sess. at 18-19 (1978).7 Section 501(b)

requires, inter alia, that “[e]ach department, agency, and instrumentality (in­

cluding the United States Postal Service and the Postal Rate Commission) in

the executive branch” must submit an affirmative action plan for the employ­

ment of handicapped individuals to the Civil Service Commission.8

4 T he language am ending § 504 w as not contained in the bill w hich was reported out o f the House

C om m ittee on Education and Labor. S e e H.R. Rep. No. 1149, 95th C ong., 2d Sess. (1978). It was added to

H.R. 12467 a t som e point p rio r to its introduction in the H ouse in M ay o f 1978. 124C ong. Rec. 13621 (1978).

5 T he Justice D epartm ent “ ruling” to w hich Congressm an Jeffords was apparently referring was an opinion

issued by th is O ffice on September 23, 1977, to the G eneral Counsel o f the Department o f Health, Education

and W elfare. 1 Op. O .L.C . 210 (1977). In that opinion, th is O ffice concluded that § 504, like Title VI o f the

C ivil R ights A ct o f 1964, did not prohibit discrim ination by recipients o f federal financial support through

program s o f insurance o r guarantee.

6 S e c tio n 105 d e fin e s “ Executive a g e n c y ” to in c lu d e “E x e c u tiv e d e p artm e n t[s],” “ G overnm ent

corp o ratio n [s],” and “ Independent establishm ent[s].” T he “ Executive departm ent[s]” are defined in 5 U.S.C.

§ 101 to include all Cabinet-level agencies. “G overnm ent c o rp o ra tio n ^ ]” are defined in 5 U.S.C. § 103 to

include both governm ent-ow ned and governm ent-controlled corporations. An “independent establishm ent” is

defined in 5 U .S.C . § 104 to mean “an establishm ent in the executive branch (other than the U nited States

Postal Service o r the Postal Rate C om m ission) which is not an Executive departm ent, m ilitary departm ent,

G overnm ent corporation, o r part th ereo f,” and, in addition, the G eneral A ccounting Office. The General

A ccounting O ffice has historically been regarded as a part o f the L egislative Branch both by Congress and by

the Executive Branch. See “ General A cco u n tin g Office — A uthority to Obtain Inform ation in Possession o f

E xecutive B ranch, ” 2 Op. O.L.C. 415, 4 1 6 (1978), and authorities cited therein.

7 T he provision was ultim ately enacted as § 505(a)(1) o f the Act, and is codified at 29 U.S.C. § 794a(a)(l)

and (3).

8 In hearings held during 1976 and 1977, the Subcom m ittee on the H andicapped o f the Senate Com m ittee

on H um an R esources had received evidence o f the difficulties which the Civil Service Commission was

C ontinued

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In Conference, the House conferees agreed to the Senate’s proposed strength­

ening of § 501, and the Senate conferees agreed to the House bill’s proposed

extension of § 504, in a slightly modified form. As modified, the provision

amending § 504 extended the antidiscrimination provisions of that section to

“any program or activity conducted by any Executive agency or by the United

States Postal Service.” H.R. Rep. No. 1780, 95th Cong., 2d Sess. 29 (1978).

According to the Conference Report, this modification was intended to make

§ 504’s proposed new coverage of federal agencies consistent with the existing

coverage of § 501(b). See id. at 93.9 In short, the amended § 504 would apply,

like § 501, to “each department, agency, and instrumentality . . . in the Execu­

tive branch,” including the Postal Service, but would no longer apply to the

General Accounting Office.10

Urging passage of the conference bill on the floor of the House, Congress­

man Jeffords again emphasized that the amended § 504 was intended to extend

that section’s antidiscrimination provisions to “any function or activity in

every department or agency of the Federal Government.” 124 Cong. Rec.

38551 (1978). See also id. at 38552 (legislation extends the provisions of § 504

to “each department, division, and agency of the Federal Government”) (re­

marks of Rep. Sarasin).

With no objections to or comments on the conference amendment to § 504’s

new coverage, the bill passed the House by an overwhelming margin. Id. at

8 ( . . . continued)

encountering in trying to enforce agency com pliance w ith § 501(b) o f the Act. D uring those hearings,

representatives o f em ployee advocacy groups charged, and governm ent w itnesses conceded, that few federal

agencies h ad made any progress in enhancing em ploym ent opportunities for handicapped persons. See, e.g.,

Rehabilitation o f the H andicapped Programs: H earings before the Subcomm. on the H andicapped o f the

Senate Comm, on Labor and Public Welfare, 94th Cong., 2d Sess., Part 3 (1976); Rehabilitation Extension

Am endm ents o f 1977: H earings on S. 1712 a n d S. 1596 before the Subcomm. on the H andicapped o f the

Senate Comm, on Human Resources, 95th C ong., 1st Sess. at 387-415 (1977) (1977 Senate H earings). In

Decem ber o f 1978, responsibility for enforcem ent o f § 501(b) was transferred by the President to the Equal

Em ploym ent O pportunity Com m ission, pursuant to R eorganization Plan No. 1 o f 1978, 92 Stat. 3781. See

Executive O rder No. 12106, 44 Fed. Reg. 1053, 3 C.F.R. 263 (1978 Comp ), reprinted m 42 U S.C. 2000e-4

note (1978).

9 The language which appears in the Conference Report is d ifficult to parse, and som ew hat confusing: “The

Senate recedes w ith an am endm ent adding coverage o f the provision covered by Section 5 0 1(b).” Id. In light

o f the purpose o f both the H ouse and Senate to facilitate the A ct's enforcem ent against Executive Branch

agencies, w e think the conclusion is inescapable that this language was intended to mean that the coverage of

the two sections w ould be coextensive.

10 We do not believe that C ongress’ failure to include an explicit reference in § 504 to the Postal Rate

C om m ission indicates an intent to exclude that entity from coverage. It is true th at § 501(b) refers explicitly

to both the U nited States Postal Service and the Postal Rate C om m ission. H ow ever, that reference shows that

C ongress regarded them both as entities already “included” as agencies or instrum entalities in the Executive

Branch. See also § 501(a) (jurisdiction o f the Interagency Com m ittee on Handicapped Em ployees described

in term s o f “each departm ent, agency, and instrum entality o f G overnm ent,” without reference to either the

Postal Service o r the Postal Rate C om m ission, although a representative o f the Postal Service sits on the

C om m ittee). A ccordingly, we do not believe that a failure to single out either the Postal Service or the Postal

Rate Com m ission for special m ention in § 504 would establish a legislative intent not to include those entities

as “ Executive agencies” for purposes o f that law. M oreover, it would be anom alous to conclude that C ongress

intended to extend § 504 to the Postal Service but not to the Postal Rate Commission. A ccordingly, we

believe that the Postal Rate C om m ission must be regarded as an “ Executive agency” for purposes o f § 504.

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38553. The conference bill was debated and passed by the Senate on the same

day, with no discussion of the amendment to § 504. Id. at 37504-10.

It is clear from the legislative history of the 1978 Amendments, as set forth

above, that Congress intended the amended § 504 to have the broadest possible

coverage within the Executive Branch. In the House, both before and after the

conference amendments, the provision’s sponsors emphasized its intended

application to “any” activity of “every” federal entity."

More specifically, the legislative history shows that Congress intended

§ 504 to apply coextensively with § 501(b). Thus Congress’ understanding of

the intended coverage of § 504 as it emerged from conference can also be

gauged by reference to its understanding of the coverage of § 501(b). This in

turn is illuminated by the reports on § 501’s enforcement, which Congress had

received each year since 1973 from the Civil Service Commission. These

reports include statistics showing the progress made in hiring the handicapped

by each Executive Branch agency responsible for submitting an affirmative

action plan to the Commission under § 501(b). The 1977 hearing record of the

Senate Committee on Human Resources incorporates a listing of agencies

which had submitted such reports, and an analysis by the Civil Service Com­

mission of their performance in hiring the handicapped. See 1977 Senate

Hearings, supra note 8, at 401-08. The agencies reporting under § 501(b)

include, in addition to the Cabinet level agencies, all of the independent

regulatory agencies and many boards, commissions and councils which per­

form only advisory functions.12

In sum, the legislative history of the 1978 Amendments makes clear that

Congress intended § 504 to apply, like § 501(b), to all “agencies and instru­

mentalities” in “the Executive [BJranch” of government. Those “agencies and

instrumentalities” were understood by Congress to include independent regula­

tory agencies performing functions constitutionally committed to the Execu­

tive Branch, as well as entities more closely subject to the President’s day-to-

day supervisory authority. Accordingly, we believe that the term “Executive

agency” as used in § 504 must be construed broadly to include all governmen­

tal entities which are not within either the Legislative or Judicial Branches.

II

Applying the broad construction of “Executive agency,” which we believe

Congress intended for § 504 to the named entities, we conclude that all of them

11 N otw ithstanding these broad statem ents by the p ro v isio n 's sponsors, apparently no one proposed that it

should apply to en tities in either the L egislative or Judicial Branch.

12 The C ivil S ervice C om m ission's 1978 Report shows that all but tw o o f the named entities had subm itted

affirm ative action plans u n d er §501. S e e “Em ploym ent o f H andicapped Individuals Including Disabled

V eterans in th e Federal G overnment," A pp. A (Sept. 30, 1978). O ne o f the tw o m issing agencies, the Federal

L ab o r R elations A uthority, w as not established until O ctober o f 1978. See Pub. L. No. 9 5 -4 5 4 ,9 2 Stat. 1196

(1978). The oth er, the A rchitectual and Transportation B arriers C om pliance Board, was at that time com ­

posed entirely o f agency heads and staffed by personnel from the D epartm ent o f Health, Education and

W elfare. See Pub. L. No. 93 -1 1 2 , § 502, 87 Stat. 355, 391 (1973) (codified at 29 U .S.C. § 792(a) (1976)).

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fall within that category. It is true that a number of these entities fall under the

definition of “independent regulatory agencies” contained in the Paperwork

Reduction Act of 1980, 44 U.S.C. § 3502(10). However, as discussed in the

preceding section, in order to find these entities outside the scope of § 504’s

coverage, we would have to conclude either that they are within one of the

other two exempted branches of government, or that they are not within the

government at all. Notwithstanding the arguments that several of these entities

have made in submissions to you, we do not think it constitutionally possible,

in light of their clearly executive functions, to regard any of them as legislative

entities. Cf. Buckley v. Valeo, 424 U.S. 1, 137—43 (1976). Nor do we under­

stand any of the named agencies to argue that they are not governmental

entities at all.13 Consequently, we believe that all of them fall within the broad

category of “Executive agencies” for purposes of § 504, and that they are

therefore required to issue regulations to carry out the provisions of § 504

which apply to the programs and activities they conduct.

Although we conclude that Congress intended to bring all of the named

entities within the category of “Executive agencies” covered by § 504, we have

not addressed the related, but distinct question of the President’s authority to

direct coordination of § 504’s enforcement through an Executive order. See

supra note 2. We would prefer to address this question, if necessary, in the

context of specific agencies, should any fail to adopt adequate regulations as

required by § 504.

T heodore B. O lso n

Assistant Attorney General

Office o f Legal Counsel

13 One o f the entities named in your list, the Commission o f Fine A rts, concedes that it is w ithin the

Executive B ranch, but argues that, because it is subject to the Federal A dvisory Committee A ct (FACA), it is

not an “agency” and therefore not subject to § 504. It is true that the C om m ission would not be considered an

“agency” under the A dm inistrative Procedure A ct (APA), 5 U.S C. § 551, unless it were an “authority” o f the

governm ent. W e do not believe, how ever, that an entity’s status under the APA or the FACA was intended by

C ongress to determ ine its coverage by § 504. The legislative history o f that Act shows that it was intended to

apply to all p rogram s and activities conducted within the Executive Branch, not ju s t those conducted by

entities with p a rticu la r statutory attributes.

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