Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts
Who is protected by disability nondiscrimination laws?
2. Who is considered a person with a disability under Title II of the ADA and Section 504?
Answer: The ADA and Section 504 protect the rights of individuals with disabilities.40 A “disability” is defined as a physical or mental impairment that substantially limits a major life activity, such as caring for oneself, performing manual tasks, breathing, standing, lifting, bending, speaking, walking, reading, thinking, learning, concentrating, seeing, hearing, eating, sleeping, or working.41 Major life activities also include the operation of major bodily functions, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, or bladder, neurological, brain, and respiratory, circulatory, endocrine, and reproductive functions.42
Congress has made clear that the definition of disability in the ADA and Section 504 is to be interpreted broadly.43 Even if an individual’s substantially limiting impairment can be mitigated through the use of medication; medical supplies, equipment, and devices; learned behavioral or adaptive neurological modifications; assistive technology (e.g. a person with a hearing disability who uses hearing aids that substantially restores the sense of hearing); or reasonable modifications to policies, practices, or procedures, the individual is still protected by the ADA and Section 504.44 The ADA and Section 504 also apply to people who have a record of having a substantial impairment (e.g., medical, military, or employment records denoting such an impairment), or are regarded as having such an impairment, regardless of actually having an impairment.45
An “individual with a disability” under the ADA and Section 504 does not include an individual who is currently engaged in the illegal use of drugs, when the state or local government program or program receiving Federal financial assistance acts on the basis of the illegal drug use.46 However, an individual is not excluded from the definition of disability on the basis of the illegal use of drugs if he or she (1) has successfully completed a drug rehabilitation program or has otherwise been successfully rehabilitated and is no longer engaging in drug use, or (2) is participating in a supervised rehabilitation program and is no longer engaging in drug use.47
To be eligible, an individual with a disability must be “qualified.” An individual with a disability is qualified if he or she meets the essential eligibility requirements of a service, program, or activity, with or without the provision of reasonable modifications, the provision of appropriate auxiliary aids and services, or the removal of architectural and communication barriers.48
40 42 U.S.C. § 12132; 29 U.S.C. § 794(a).
41 42 U.S.C. § 12102(1), (2)(A); 29 U.S.C. § 705(9)(B).
42 42 U.S.C. § 12102(2)(B).
43 42 U.S.C. § 12102(4)(A); 29 U.S.C. § 705(9)(B).
44 42 U.S.C. § 12102(4)(E)(i); 29 U.S.C. § 705(9)(B); see also Equal Employment Opportunity Commission, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, at www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.
45 42 U.S.C. § 12102(2)(1)(B)-(C); 29 U.S.C. § 705(9)(B). The ADA Amendments Act of 2008 amended the definition of disability for Titles I, II, and III of the ADA as well as Section 504. Pub. L. No. 110 ‐ 325, 122 Stat. 3553 (2008). For a discussion of the United States Department of Justice’s (DOJ’s) interpretation of the changes to the definition, see DOJ’s Notice of Proposed Rulemaking to Implement ADA Amendments Act of 2008, 79 Fed. Reg. 4839 (January 30, 2014). See also Equal Employment Opportunity Commission, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, at www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.
46 42 U.S.C. § 12210(a); 29 U.S.C. § 794(d).
47 42 U.S.C. § 12210(b)(1)-(2); 29 U.S.C. § 794(d).
48 42 U.S.C. § 12131(1); 28 C.F.R. § 35.104; see also 45 C.F.R. § 84.3(l)(4) (defining “qualified handicapped person” under HHS’ Section 504 regulation).
3. Who do Title II of the ADA and Section 504 protect in child welfare programs?
Answer: Title II of the ADA and Section 504 protect qualified individuals with disabilities, which can include children, parents, legal guardians, relatives, other caretakers, foster and adoptive parents, and individuals seeking to become foster or adoptive parents, from discrimination by child welfare agencies and courts.49 Title II also protects individuals or entities from being denied or excluded from child welfare services, programs or activities because of association with an individual with a disability.50 For example, Title II prohibits a child welfare agency from refusing to place a child with a prospective foster or adoptive parent because the parent has a friend or relative with HIV.
Title II and Section 504 also protect “companions” of individuals involved in the child welfare system when the companion is an appropriate person with whom the child welfare agency or court should communicate. A companion may include any family member, friend, or associate of a person seeking or receiving child welfare services.51 For instance, when a child welfare agency communicates with an individual’s family member who is deaf, appropriate auxiliary aids and services to the family member must be provided by the agency to ensure effective communication.52
Finally, the ADA and Section 504 protect individuals from any retaliation or coercion for exercising their right not to experience discrimination on the basis of disability. Individuals enjoy this protection whether or not they have a disability.53
49 For a discussion of a “qualified individual with a disability,” see discussion supra at Q&A 2.
50 28 C.F.R. § 35.130(g); 28 C.F.R. pt. 35, App. B.
51 28 C.F.R. § 35.160(a)(2).
52 28 C.F.R. § 35.160(a)(1); 28 C.F.R. pt. 35, App. A., Subpt. E (2010).
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