Path: utzoo!utgpu!news-server.csri.toronto.edu!cs.utexas.edu!yale!bunker!wtm From: wtm@bunker.uucp (Bill McGarry) Newsgroups: misc.handicap Subject: Entire text of ADA (part 5 of 6) Message-ID: <14981@bunker.UUCP> Date: 13 Oct 90 04:01:53 GMT Expires: 31 Oct 90 23:59:59 GMT Sender: news@bunker.UUCP Reply-To: wtm@bunker.uucp (Bill McGarry) Distribution: misc Lines: 494 Approved: wtm@bunker.UUCP Fidonet: None Index Number: 11118 [Part 5 of 6] SEC. 308. ENFORCEMENT. (a) In General.-- (1) Availability of remedies and procedures.--The remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000a-3(a)) are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this title or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 303. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this title does not intend to comply with its provisions. (2) Injunctive relief.--In the case of violations of sections 302(b)(2)(A)(iv) and section 303(a), injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this title. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this title. (b) Enforcement by the Attorney General.-- (1) Denial of rights.-- (A) Duty to investigate.-- (i) In general.--The Attorney General shall investigate alleged violations of this title, and shall undertake periodic reviews of compliance of covered entities under this title. (ii) Attorney general certification.--On the application of a State or local government, the Attorney General may, in consultation with the Architectural and Transportation Barriers Compliance Board, and after prior notice and a public hearing at which persons, including individuals with disabilities, are provided an opportunity to testify against such certification, certify that a State law or local building code or similar ordinance that establishes accessibility requirements meets or exceeds the minimum requirements of this Act for the accessibility and usability of covered facilities under this title. At any enforcement proceeding under this section, such certification by the Attorney General shall be rebuttable evidence that such State law or local ordinance does meet or exceed the minimum requirements of this Act. (B) Potential violation.--If the Attorney General has reasonable cause to believe that-- (i) any person or group of persons is engaged in a pattern or practice of discrimination under this title; or (ii) any person or group of persons has been discriminated against under this title and such discrimination raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court. (2) Authority of court.--In a civil action under paragraph (1)(B), the court-- (A) may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this title-- (i) granting temporary, preliminary, or permanent relief; (ii) providing an auxiliary aid or service, modification of policy, practice, or procedure, or alternative method; and (iii) making facilities readily accessible to and usable by individuals with disabilities; (B) may award such other relief as the court considers to be appropriate, including monetary damages to persons aggrieved when requested by the Attorney General; and (C) may, to vindicate the public interest, assess a civil penalty against the entity in an amount-- (i) not exceeding $50,000 for a first violation; and (ii) not exceeding $100,000 for any subsequent violation. (3) Single violation.--For purposes of paragraph (2)(C), in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation. (4) Punitive damages.--For purposes of subsection (b)(2)(B), the term "monetary damages" and "such other relief" does not include punitive damages. (5) Judicial consideration.--In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this Act by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability. SEC. 309. EXAMINATIONS AND COURSES. Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals. SEC. 310. EFFECTIVE DATE. (a) General Rule.--Except as provided in subsections (b) and (c), this title shall become effective 18 months after the date of the enactment of this Act. (b) Civil Actions.--Except for any civil action brought for a violation of section 303, no civil action shall be brought for any act or omission described in section 302 which occurs-- (1) during the first 6 months after the effective date, against businesses that employ 25 or fewer employees and have gross receipts of $1,000,000 or less; and (2) during the first year after the effective date, against businesses that employ 10 or fewer employees and have gross receipts of $500,000 or less. (c) Exception.--Sections 302(a) for purposes of section 302(b)(2) (B) and (C) only, 304(a) for purposes of section 304(b)(3) only, 304(b)(3), 305, and 306 shall take effect on the date of the enactment of this Act. TITLE IV--TELECOMMUNICATIONS SEC. 401. TELECOMMUNICATIONS RELAY SERVICES FOR HEARINGIMPAIRED AND SPEECH-IMPAIRED INDIVIDUALS. (a) Telecommunications.--Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding at the end thereof the following new section: "SEC. 225. TELECOMMUNICATIONS SERVICES FOR HEARING-IMPAIRED AND SPEECH IMPAIRED INDIVIDUALS. "(a) Definitions.--As used in this section-- "(1) Common carrier or carrier.--The term 'common carrier' or 'carrier' includes any common carrier engaged in interstate communication by wire or radio as defined in section 3(h) and any common carrier engaged in intrastate communication by wire or radio, notwithstanding sections 2(b) and 221(b). "(2) TDD.--The term 'TDD' means a Telecommunications Device for the Deaf, which is a machine that employs graphic communication in the transmission of coded signals through a wire or radio communication system. "(3) Telecommunications relay services.--The term 'telecommunications relay services' means telephone transmission services that provide the ability for an individual who has a hearing impairment or speech impairment to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing impairment or speech impairment to communicate using voice communication services by wire or radio. Such term includes services that enable two-way communication between an individual who uses a TDD or other nonvoice terminal device and an individual who does not use such a device. "(b) Availability of Telecommunications Relay Services.-- "(1) In general.--In order to carry out the purposes established under section 1, to make available to all individuals in the United States a rapid, efficient nationwide communication service, and to increase the utility of the telephone system of the Nation, the Commission shall ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States. "(2) Use of General Authority and Remedies.--For the purposes of administering and enforcing the provisions of this section and the regulations prescribed thereunder, the Commission shall have the same authority, power, and functions with respect to common carriers engaged in intrastate communication as the Commission has in administering and enforcing the provisions of this title with respect to any common carrier engaged in interstate communication. Any violation of this section by any common carrier engaged in intrastate communication shall be subject to the same remedies, penalties, and procedures as are applicable to a violation of this Act by a common carrier engaged in interstate communication. "(c) Provision of Services.--Each common carrier providing telephone voice transmission services shall, not later than 3 years after the date of enactment of this section, provide in compliance with the regulations prescribed under this section, throughout the area in which it offers service, telecommunications relay services, individually, through designees, through a competitively selected vendor, or in concert with other carriers. A common carrier shall be considered to be in compliance with such regulations-- "(1) with respect to intrastate telecommunications relay services in any State that does not have a certified program under subsection (f) and with respect to interstate telecommunications relay services, if such common carrier (or other entity through which the carrier is providing such relay services) is in compliance with the Commission's regulations under subsection (d); or "(2) with respect to intrastate telecommunications relay services in any State that has a certified program under subsection (f) for such State, if such common carrier (or other entity through which the carrier is providing such relay services) is in compliance with the program certified under subsection (f) for such State. "(d) Regulations.-- "(1) In general.--The Commission shall, not later than 1 year after the date of enactment of this section, prescribe regulations to implement this section, including regulations that-- "(A) establish functional requirements, guidelines, and operations procedures for telecommunications relay services; "(B) establish minimum standards that shall be met in carrying out subsection (c); "(C) require that telecommunications relay services operate every day for 24 hours per day; "(D) require that users of telecommunications relay services pay rates no greater than the rates paid for functionally equivalent voice communication services with respect to such factors as the duration of the call, the time of day, and the distance from point of origination to point of termination; "(E) prohibit relay operators from failing to fulfill the obligations of common carriers by refusing calls or limiting the length of calls that use telecommunications relay services; "(F) prohibit relay operators from disclosing the content of any relayed conversation and from keeping records of the content of any such conversation beyond the duration of the call; and "(G) prohibit relay operators from intentionally altering a relayed conversation. "(2) Technology.--The Commission shall ensure that regulations prescribed to implement this section encourage, consistent with section 7(a) of this Act, the use of existing technology and do not discourage or impair the development of improved technology. "(3) Jurisdictional separation of costs.-- "(A) In general.--Consistent with the provisions of section 410 of this Act, the Commission shall prescribe regulations governing the jurisdictional separation of costs for the services provided pursuant to this section. "(B) Recovering costs.--Such regulations shall generally provide that costs caused by interstate telecommunications relay services shall be recovered from all subscribers for every interstate service and costs caused by intrastate telecommunications relay services shall be recovered from the intrastate jurisdiction. In a State that has a certified program under subsection (f), a State commission shall permit a common carrier to recover the costs incurred in providing intrastate telecommunications relay services by a method consistent with the requirements of this section. "(e) Enforcement.-- "(1) In general.--Subject to subsections (f) and (g), the Commission shall enforce this section. "(2) Complaint.--The Commission shall resolve, by final order, a complaint alleging a violation of this section within 180 days after the date such complaint is filed. "(f) Certification.-- "(1) State documentation.--Any State desiring to establish a State program under this section shall submit documentation to the Commission that describes the program of such State for implementing intrastate telecommunications relay services and the procedures and remedies available for enforcing any requirements imposed by the State program. "(2) Requirements for certification.--After review of such documentation, the Commission shall certify the State program if the Commission determines that-- "(A) the program makes available to hearing-impaired and speech-impaired individuals, either directly, through designees, through a competitively selected vendor, or through regulation of intrastate common carriers, intrastate telecommunications relay services in such State in a manner that meets or exceeds the requirements of regulations prescribed by the Commission under subsection (d); and "(B) the program makes available adequate procedures and remedies for enforcing the requirements of the State program. "(3) Method of funding.--Except as provided in subsection (d), the Commission shall not refuse to certify a State program based solely on the method such State will implement for funding intrastate telecommunication relay services. "(4) Suspension or revocation of certification.--The Commission may suspend or revoke such certification if, after notice and opportunity for hearing, the Commission determines that such certification is no longer warranted. In a State whose program has been suspended or revoked, the Commission shall take such steps as may be necessary, consistent with this section, to ensure continuity of telecommunications relay services. "(g) Complaint.-- "(1) Referral of complaint.--If a complaint to the Commission alleges a violation of this section with respect to intrastate telecommunications relay services within a State and certification of the program of such State under subsection (f) is in effect, the Commission shall refer such complaint to such State. "(2) Jurisdiction of commission.--After referring a complaint to a State under paragraph (1), the Commission shall exercise jurisdiction over such complaint only if-- "(A) final action under such State program has not been taken on such complaint by such State-- "(i) within 180 days after the complaint is filed with such State; or "(ii) within a shorter period as prescribed by the regulations of such State; or "(B) the Commission determines that such State program is no longer qualified for certification under subsection (f).". (b) Conforming Amendments.--The Communications Act of 1934 (47 U.S.C. 151 et seq.) is amended-- (1) in section 2(b) (47 U.S.C. 152(b)), by striking "section 224" and inserting "sections 224 and 225"; and (2) in section 221(b) (47 U.S.C. 221(b)), by striking "section 301" and inserting "sections 225 and 301". SEC. 402. CLOSED-CAPTIONING OF PUBLIC SERVICE ANNOUNCEMENTS. Section 711 of the Communications Act of 1934 is amended to read as follows: "SEC. 711. CLOSED-CAPTIONING OF PUBLIC SERVICE ANNOUNCEMENTS. "Any television public service announcement that is produced or funded in whole or in part by any agency or instrumentality of Federal Government shall include closed captioning of the verbal content of such announcement. A television broadcast station licensee-- "(1) shall not be required to supply closed captioning for any such announcement that fails to include it; and "(2) shall not be liable for broadcasting any such announcement without transmitting a closed caption unless the licensee intentionally fails to transmit the closed caption that was included with the announcement.". TITLE V--MISCELLANEOUS PROVISIONS SEC. 501. CONSTRUCTION. (a) In General.--Except as otherwise provided in this Act, nothing in this Act shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title. (b) Relationship to Other Laws.--Nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act. Nothing in this Act shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment covered by title I, in transportation covered by title II or III, or in places of public accommodation covered by title III. (c) Insurance.--Titles I through IV of this Act shall not be construed to prohibit or restrict-- (1) an insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (2) a person or organization covered by this Act from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (3) a person or organization covered by this Act from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance. Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of title I and III. (d) Accommodations and Services.--Nothing in this Act shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to accept. SEC. 502. STATE IMMUNITY. A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State. SEC. 503. PROHIBITION AGAINST RETALIATION AND COERCION. (a) Retaliation.--No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act. (b) Interference, Coercion, or Intimidation.--It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this Act. (c) Remedies and Procedures.--The remedies and procedures available under sections 107, 203, and 308 of this Act shall be available to aggrieved persons for violations of subsections (a) and (b), with respect to title I, title II and title III, respectively. SEC. 504. REGULATIONS BY THE ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD. (a) Issuance of Guidelines.--Not later than 9 months after the date of enactment of this Act, the Architectural and Transportation Barriers Compliance Board shall issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of titles II and III of this Act. (b) Contents of Guidelines.--The supplemental guidelines issued under subsection (a) shall establish additional requirements, consistent with this Act, to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities. (c) Qualified Historic Properties.-- (1) In general.--The supplemental guidelines issued under subsection (a) shall include procedures and requirements for alterations that will threaten or destroy the historic significance of qualified historic buildings and facilities as defined in 4.1.7(1)(a) of the Uniform Federal Accessibility Standards. (2) Sites eligible for listing in national register.--With respect to alterations of buildings or facilities that are eligible for listing in the National Register of Historic Places under the National Historic Preservation Act (16 U.S.C. 470 et seq.), the guidelines described in paragraph (1) shall, at a minimum, maintain the procedures and requirements established in 4.1.7 (1) and (2) of the Uniform Federal Accessibility Standards. (3) Other sites.--With respect to alterations of buildings or facilities designated as historic under State or local law, the guidelines described in paragraph (1) shall establish procedures equivalent to those established by 4.1.7(1) (b) and (c) of the Uniform Federal Accessibility Standards, and shall require, at a minimum, compliance with the requirements established in 4.1.7(2) of such standards. SEC. 505. ATTORNEY'S FEES. In any action or administrative proceeding commenced pursuant to this Act, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. SEC. 506. TECHNICAL ASSISTANCE. (a) Plan for Assistance.-- (1) In general.--Not later than 180 days after the date of enactment of this Act, the Attorney General, in consultation with the Chair of the Equal Employment Opportunity Commission, the Secretary of Transportation, the Chair of the Architectural and Transportation Barriers Compliance Board, and the Chairman of the Federal Communications Commission, shall develop a plan to assist entities covered under this Act, and other Federal agencies, in understanding the responsibility of such entities and agencies under this Act. (2) Publication of plan.--The Attorney General shall publish the plan referred to in paragraph (1) for public comment in accordance with subchapter II of chapter 5 of title 5, United States Code (commonly known as the Administrative Procedure Act). (b) Agency and Public Assistance.--The Attorney General may obtain the assistance of other Federal agencies in carrying out subsection (a), including the National Council on Disability, the President's Committee on Employment of People with Disabilities, the Small Business Administration, and the Department of Commerce. (c) Implementation.-- (1) Rendering assistance.--Each Federal agency that has responsibility under paragraph (2) for implementing this Act may render technical assistance to individuals and institutions that have rights or duties under the respective title or titles for which such agency has responsibility. (2) Implementation of titles.-- (A) Title i.--The Equal Employment Opportunity Commission and the Attorney General shall implement the plan for assistance developed under subsection (a), for title I. (B) Title ii.-- (i) Subtitle a.--The Attorney General shall implement such plan for assistance for subtitle A of title II. (ii) Subtitle b.--The Secretary of Transportation shall implement such plan for assistance for subtitle B of title II. (C) Title iii.--The Attorney General, in coordination with the Secretary of Transportation and the Chair of the Architectural Transportation Barriers Compliance Board, shall implement such plan for assistance for title III, except for section 304, the plan for assistance for which shall be implemented by the Secretary of Transportation. (D) Title iv.--The Chairman of the Federal Communications Commission, in coordination with the Attorney General, shall implement such plan for assistance for title IV. (3) Technical assistance manuals.--Each Federal agency that has responsibility under paragraph (2) for implementing this Act shall, as part of its implementation responsibilities, ensure the availability and provision of appropriate technical assistance manuals to individuals or entities with rights or duties under this Act no later than six months after applicable final regulations are published under titles I, II, III, and IV. (d) Grants and Contracts.-- (1) In general.--Each Federal agency that has responsibility under subsection (c)(2) for implementing this Act may make grants or award contracts to effectuate the purposes of this section, subject to the availability of appropriations. Such grants and contracts may be awarded to individuals, institutions not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual (including educational institutions), and associations representing individuals who have rights or duties under this Act. Contracts may be awarded to entities organized for profit, but such entities may not be the recipients or grants described in this paragraph. (2) Dissemination of information.--Such grants and contracts, among other uses, may be designed to ensure wide dissemination of information about the rights and duties established by this Act and to provide information and technical assistance about techniques for effective compliance with this Act. (e) Failure to Receive Assistance.--An employer, public accommodation, or other entity covered under this Act shall not be excused from compliance with the requirements of this Act because of any failure to receive technical assistance under this section, including any failure in the development or dissemination of any technical assistance manual authorized by this section. SEC. 507. FEDERAL WILDERNESS AREAS. (a) Study.--The National Council on Disability shall conduct a study and report on the effect that wilderness designations and wilderness land management practices have on the ability of individuals with disabilities to use and enjoy the National Wilderness Preservation System as established under the Wilderness Act (16 U.S.C. 1131 et seq.). (b) Submission of Report.--Not later than 1 year after the enactment of this Act, the National Council on Disability shall submit the report required under subsection (a) to Congress. (c) Specific Wilderness Access.-- (1) In general.--Congress reaffirms that nothing in the Wilderness Act is to be construed as prohibiting the use of a wheelchair in a wilderness area by an individual whose disability requires use of a wheelchair, and consistent with the Wilderness Act no agency is required to provide any form of special treatment or accommodation, or to construct any facilities or modify any conditions of lands within a wilderness area in order to facilitate such use. (2) Definition.--For purposes of paragraph (1), the term "wheelchair" means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area. SEC. 508. TRANSVESTITES. For the purposes of this Act, the term "disabled" or "disability" shall not apply to an individual solely because that individual is a transvestite. [End of part 6]