42 USC CHAPTER 126, SUBCHAPTER IV: MISCELLANEOUS PROVISIONS

From Title 42—THE PUBLIC HEALTH AND WELFARECHAPTER 126—EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES

SUBCHAPTER IV—MISCELLANEOUS PROVISIONS

§12201. Construction

(a) In general

Except as otherwise provided in this chapter, nothing in this chapter 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 chapter 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 chapter. Nothing in this chapter shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment covered by subchapter I, in transportation covered by subchapter II or III, or in places of public accommodation covered by subchapter III.

(c) Insurance

Subchapters I through III of this chapter and title 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 chapter 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 chapter 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 subchapter ¹ I and III.

(d) Accommodations and services

Nothing in this chapter 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.

(e) Benefits under State worker's compensation laws

Nothing in this chapter alters the standards for determining eligibility for benefits under State worker's compensation laws or under State and Federal disability benefit programs.

(f) Fundamental alteration

Nothing in this chapter alters the provision of section 12182(b)(2)(A)(ii) of this title, specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.

(g) Claims of no disability

Nothing in this chapter shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.

(h) Reasonable accommodations and modifications

A covered entity under subchapter I, a public entity under subchapter II, and any person who owns, leases (or leases to), or operates a place of public accommodation under subchapter III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 12102(1) of this title solely under subparagraph (C) of such section.

(Pub. L. 101–336, title V, §501, July 26, 1990, 104 Stat. 369; Pub. L. 110–325, §6(a)(1), Sept. 25, 2008, 122 Stat. 3557.)

Editorial Notes

References in Text

This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables.

The Rehabilitation Act of 1973, referred to in subsec. (a), is Pub. L. 93–112, Sept. 26, 1973, 87 Stat. 355. Title V of the Rehabilitation Act of 1973 is classified generally to subchapter V (§790 et seq.) of chapter 16 of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 701 of Title 29 and Tables.

Title IV of this Act, referred to in subsec. (c), means title IV of Pub. L. 101–336, July 26, 1990, 104 Stat. 366, which enacted section 225 of Title 47, Telecommunications, and amended sections 152, 221, and 611 of Title 47.

Amendments

2008—Subsecs. (e) to (h). Pub. L. 110–325 added subsecs. (e) to (h).

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor.

¹ So in original. Probably should be "subchapters".

§12202. State immunity

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in ¹ Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, 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.

(Pub. L. 101–336, title V, §502, July 26, 1990, 104 Stat. 370.)

Editorial Notes

References in Text

¹ So in original. Probably should be "in a".

§12203. 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 chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

(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 chapter.

(c) Remedies and procedures

The remedies and procedures available under sections 12117, 12133, and 12188 of this title shall be available to aggrieved persons for violations of subsections (a) and (b), with respect to subchapter I, subchapter II and subchapter III, respectively.

(Pub. L. 101–336, title V, §503, July 26, 1990, 104 Stat. 370.)

Editorial Notes

References in Text

This chapter, referred to in subsecs. (a) and (b), was in the original "this Act", meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables.

§12204. Regulations by Architectural and Transportation Barriers Compliance Board

(a) Issuance of guidelines

Not later than 9 months after July 26, 1990, 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 subchapters II and III of this chapter.

(b) Contents of guidelines

The supplemental guidelines issued under subsection (a) shall establish additional requirements, consistent with this chapter, 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 division A of subtitle III of title 54, 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.

(Pub. L. 101–336, title V, §504, July 26, 1990, 104 Stat. 370; Pub. L. 113–287, §5(k)(5), Dec. 19, 2014, 128 Stat. 3270.)

Editorial Notes

References in Text

Amendments

2014—Subsec. (c)(2). Pub. L. 113–287 substituted "division A of subtitle III of title 54" for "the National Historic Preservation Act (16 U.S.C. 470 et seq.)".

§12205. Attorney's fees

In any action or administrative proceeding commenced pursuant to this chapter, 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.

(Pub. L. 101–336, title V, §505, July 26, 1990, 104 Stat. 371.)

Editorial Notes

References in Text

§12205a. Rule of construction regarding regulatory authority

The authority to issue regulations granted to the Equal Employment Opportunity Commission, the Attorney General, and the Secretary of Transportation under this chapter includes the authority to issue regulations implementing the definitions of disability in section 12102 of this title (including rules of construction) and the definitions in section 12103 of this title, consistent with the ADA Amendments Act of 2008.

(Pub. L. 101–336, title V, §506, as added Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558.)

Editorial Notes

References in Text

The ADA Amendments Act of 2008, referred to in text, is Pub. L. 110–325, Sept. 25, 2008, 122 Stat. 3553, which enacted this section and section 12103 of this title, amended sections 12101, 12102, 12111 to 12114, 12201, and 12206 to 12213 of this title and section 705 and former section 706 of Title 29, Labor, and enacted provisions set out as notes under section 12101 of this title and section 705 of Title 29. For complete classification of this Act to the Code, see Short Title of 2008 Amendment note under section 12101 of this title and Tables.

Prior Provisions

A prior section 506 of Pub. L. 101–336 was renumbered section 507 and is classified to section 12206 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as an Effective Date of 2008 Amendment note under section 705 of Title 29, Labor.

§12206. Technical assistance

(a) Plan for assistance

(1) In general

Not later than 180 days after July 26, 1990, 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 chapter, and other Federal agencies, in understanding the responsibility of such entities and agencies under this chapter.

(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 (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 chapter may render technical assistance to individuals and institutions that have rights or duties under the respective subchapter or subchapters of this chapter for which such agency has responsibility.

(2) Implementation of subchapters

(A) Subchapter I

The Equal Employment Opportunity Commission and the Attorney General shall implement the plan for assistance developed under subsection (a), for subchapter I.

(B) Subchapter II

(i) Part A

The Attorney General shall implement such plan for assistance for part A of subchapter II.

(ii) Part B

The Secretary of Transportation shall implement such plan for assistance for part B of subchapter II.

(C) Subchapter 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 subchapter III, except for section 12184 of this title, 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 chapter 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 chapter no later than six months after applicable final regulations are published under subchapters I, II, and III and title IV.

(d) Grants and contracts

(1) In general

Each Federal agency that has responsibility under subsection (c)(2) for implementing this chapter 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 chapter. Contracts may be awarded to entities organized for profit, but such entities may not be the recipients or ¹ 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 chapter and to provide information and technical assistance about techniques for effective compliance with this chapter.

(e) Failure to receive assistance

An employer, public accommodation, or other entity covered under this chapter shall not be excused from compliance with the requirements of this chapter 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.

(Pub. L. 101–336, title V, §507, formerly §506, July 26, 1990, 104 Stat. 371; renumbered §507, Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558.)

Editorial Notes

References in Text

This chapter, referred to in subsecs. (a)(1), (c)(1), (3), (d), and (e), was in the original "this Act", meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables.

Title IV, referred to in subsec. (c)(2)(D), (3), means title IV of Pub. L. 101–336, July 26, 1990, 104 Stat. 366, which enacted section 225 of Title 47, Telecommunications, and amended sections 152, 221, and 611 of Title 47.

Prior Provisions

A prior section 507 of Pub. L. 101–336 was renumbered section 508 and is classified to section 12207 of this title.

¹ So in original. Probably should be "of".

§12207. 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 July 26, 1990, 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 [16 U.S.C. 1131 et seq.] 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) "Wheelchair" defined

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.

(Pub. L. 101–336, title V, §508, formerly §507, July 26, 1990, 104 Stat. 372; renumbered §508, Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558.)

Editorial Notes

References in Text

The Wilderness Act, referred to in subsecs. (a) and (c)(1), is Pub. L. 88–577, Sept. 3, 1964, 78 Stat. 890, which is classified generally to chapter 23 (§1131 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1131 of Title 16 and Tables.

Prior Provisions

A prior section 508 of Pub. L. 101–336 was renumbered section 509 and is classified to section 12208 of this title.

§12208. Transvestites

For the purposes of this chapter, the term "disabled" or "disability" shall not apply to an individual solely because that individual is a transvestite.

(Pub. L. 101–336, title V, §509, formerly §508, July 26, 1990, 104 Stat. 373; renumbered §509, Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558.)

Editorial Notes

References in Text

Prior Provisions

A prior section 509 of Pub. L. 101–336 was renumbered section 510 and is classified to section 12209 of this title.

§12209. Instrumentalities of Congress

The Government Accountability Office, the Government Publishing Office, and the Library of Congress shall be covered as follows:

(1) In general

The rights and protections under this chapter shall, subject to paragraph (2), apply with respect to the conduct of each instrumentality of the Congress.

(2) Establishment of remedies and procedures by instrumentalities

The chief official of each instrumentality of the Congress shall establish remedies and procedures to be utilized with respect to the rights and protections provided pursuant to paragraph (1).

(3) Report to Congress

The chief official of each instrumentality of the Congress shall, after establishing remedies and procedures for purposes of paragraph (2), submit to the Congress a report describing the remedies and procedures.

(4) Definition of instrumentalities

For purposes of this section, the term "instrumentality of the Congress" means the following:,¹ the Government Accountability Office, the Government Publishing Office, and the Library of Congress,.¹

(5) Enforcement of employment rights

The remedies and procedures set forth in section 2000e–16 of this title shall be available to any employee of an instrumentality of the Congress who alleges a violation of the rights and protections under sections 12112 through 12114 of this title that are made applicable by this section, except that the authorities of the Equal Employment Opportunity Commission shall be exercised by the chief official of the instrumentality of the Congress.

(6) Enforcement of rights to public services and accommodations

The remedies and procedures set forth in section 2000e–16 of this title shall be available to any qualified person with a disability who is a visitor, guest, or patron of an instrumentality of Congress and who alleges a violation of the rights and protections under sections 12131 through 12150 of this title or section 12182 or 12183 of this title that are made applicable by this section, except that the authorities of the Equal Employment Opportunity Commission shall be exercised by the chief official of the instrumentality of the Congress.

(7) Construction

Nothing in this section shall alter the enforcement procedures for individuals with disabilities provided in the General Accounting Office Personnel Act of 1980 and regulations promulgated pursuant to that Act.

(Pub. L. 101–336, title V, §510, formerly §509, July 26, 1990, 104 Stat. 373; Pub. L. 102–166, title III, §315, Nov. 21, 1991, 105 Stat. 1095; Pub. L. 104–1, title II, §§201(c)(3), 210(g), Jan. 23, 1995, 109 Stat. 8, 16; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; renumbered §510, Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558; Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014, 128 Stat. 2537.)

Editorial Notes

References in Text

This chapter, referred to in par. (1), was in the original "this Act", meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables.

The General Accounting Office Personnel Act of 1980, referred to in par. (7), is Pub. L. 96–191, Feb. 15, 1980, 94 Stat. 27, which was classified principally to section 52–1 et seq. of former Title 31, and which was substantially repealed by Pub. L. 97–258, §5(b), Sept. 13, 1982, 96 Stat. 1068, and reenacted by the first section thereof principally in subchapters III (§731 et seq.) and IV (§751 et seq.) of chapter 7 of Title 31, Money and Finance.

Prior Provisions

A prior section 510 of Pub. L. 101–336 was renumbered section 511 and is classified to section 12210 of this title.

Amendments

2004—Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in introductory provisions and in par. (4).

1995—Pub. L. 104–1, §201(c)(3)(F), amended section catchline generally.

Pub. L. 104–1, §201(c)(3)(A), struck out subsecs. (a) and (b) which related to coverage of Senate and House of Representatives with respect to bans on employment discrimination and other discriminatory practices against individuals with disabilities.

Pub. L. 104–1, §201(c)(3)(B), substituted "The General Accounting Office, the Government Printing Office, and the Library of Congress shall be covered as follows:" for subsec. (c) heading and designated subsec. (c) as entire section.

Par. (2). Pub. L. 104–1, §201(c)(3)(C), struck out at end "Such remedies and procedures shall apply exclusively, except for the employees who are defined as Senate employees, in section 1201(c)(1) of title 2."

Par. (4). Pub. L. 104–1, §201(c)(3)(D), struck out "the Architect of the Capitol, the Congressional Budget Office" after "the following:", inserted "and" before "the Library of Congress", and struck out "the Office of Technology Assessment, and the United States Botanic Garden" before period at end.

Pub. L. 104–1, §201(c)(3)(D), which in part directed the substitution of "the term 'instrumentality of the Congress' means" for "the instrumentalities of the Congress include", was executed by making the substitution for "instrumentalities of the Congress include" to reflect the probable intent of Congress.

Par. (5). Pub. L. 104–1, §201(c)(3)(E), added par. (5). Former par. (5) redesignated (7).

Par. (6). Pub. L. 104–1, §210(g), which directed amendment of this section by adding par. (6), was executed by adding par. (6) after par. (5) to reflect the probable intent of Congress.

Par. (7). Pub. L. 104–1, §201(c)(3)(E), redesignated par. (5) as (7).

1991—Subsec. (a)(2). Pub. L. 102–166, §315(1), redesignated par. (6) as (2) and struck out former par. (2) which read as follows: "Application to Senate employment.—The rights and protections provided pursuant to this chapter, the Civil Rights Act of 1990 (S. 2104, 101st Congress), the Civil Rights Act of 1964 [42 U.S.C. 2000a et seq.], the Age Discrimination in Employment Act of 1967 [29 U.S.C. 621 et seq.], and the Rehabilitation Act of 1973 [29 U.S.C. 701 et seq.] shall apply with respect to employment by the United States Senate."

Subsec. (a)(3). Pub. L. 102–166, §315(1), redesignated par. (7) as (3), substituted "(2)(A)" for "(2) and (6)(A)" and "(2)" for "(3), (4), (5), (6)(B), and (6)(C)", and struck out former par. (3) which read as follows: "Investigation and adjudication of claims.—All claims raised by any individual with respect to Senate employment, pursuant to the Acts referred to in paragraph (2), shall be investigated and adjudicated by the Select Committee on Ethics, pursuant to S. Res. 338, 88th Congress, as amended, or such other entity as the Senate may designate."

Subsec. (a)(4), (5). Pub. L. 102–166, §315(1), struck out pars. (4) and (5) which read as follows:

"(4) Rights of employees.—The Committee on Rules and Administration shall ensure that Senate employees are informed of their rights under the Acts referred to in paragraph (2).

"(5) Applicable Remedies.—When assigning remedies to individuals found to have a valid claim under the Acts referred to in paragraph (2), the Select Committee on Ethics, or such other entity as the Senate may designate, should to the extent practicable apply the same remedies applicable to all other employees covered by the Acts referred to in paragraph (2). Such remedies shall apply exclusively."

Subsec. (a)(6), (7). Pub. L. 102–166, §315(1), redesignated pars. (6) and (7) as (2) and (3), respectively.

Subsec. (c)(2). Pub. L. 102–166, §315(2), inserted ", except for the employees who are defined as Senate employees, in section 1201(c)(1) of title 2" after "shall apply exclusively".

Statutory Notes and Related Subsidiaries

Change of Name

"Government Publishing Office" substituted for "Government Printing Office" in introductory provisions and par. (4) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 1995 Amendment

Amendment by section 201(c)(3) of Pub. L. 104–1 effective 1 year after Jan. 23, 1995, see section 1311(e) of Title 2, The Congress.

Amendment by section 210(g) of Pub. L. 104–1 effective 1 year after transmission to Congress of study under section 1371 of Title 2, see section 1331(i)(2) of Title 2.

Effective Date of 1991 Amendment

Amendment by Pub. L. 102–166 effective Nov. 21, 1991, except as otherwise provided, see section 402 of Pub. L. 102–166, set out as a note under section 1981 of this title.

¹ So in original. The comma probably should not appear.

§12210. Illegal use of drugs

(a) In general

For purposes of this chapter, the term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

(b) Rules of construction

Nothing in subsection (a) shall be construed to exclude as an individual with a disability an individual who—

(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engaging in such use;

except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs; however, nothing in this section shall be construed to encourage, prohibit, restrict, or authorize the conducting of testing for the illegal use of drugs.

(c) Health and other services

Notwithstanding subsection (a) and section 12211(b)(3) of this title, an individual shall not be denied health services, or services provided in connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services.

(d) "Illegal use of drugs" defined

(1) In general

The term "illegal use of drugs" means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

(2) Drugs

The term "drug" means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act [21 U.S.C. 812].

(Pub. L. 101–336, title V, §511, formerly §510, July 26, 1990, 104 Stat. 375; renumbered §511 and amended Pub. L. 110–325, §6(a)(2), (3), Sept. 25, 2008, 122 Stat. 3558.)

Editorial Notes

References in Text

The Controlled Substances Act, referred to in subsec. (d)(1), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, which is classified principally to subchapter I (§801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables.

Prior Provisions

A prior section 511 of Pub. L. 101–336 was renumbered section 512 and is classified to section 12211 of this title.

Amendments

2008—Subsec. (c). Pub. L. 110–325, §6(a)(3), made technical amendment to reference in original act which appears in text as reference to section 12211(b)(3) of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor.

§12211. Definitions

(a) Homosexuality and bisexuality

For purposes of the definition of "disability" in section 12102(2) ¹ of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

(b) Certain conditions

Under this chapter, the term "disability" shall not include—

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegal use of drugs.

(Pub. L. 101–336, title V, §512, formerly §511, July 26, 1990, 104 Stat. 376; renumbered §512, Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558.)

Editorial Notes

References in Text

Section 12102 of this title, referred to in subsec. (a), was amended generally by Pub. L. 110–325, §4(a), Sept. 25, 2008, 122 Stat. 3555, and, as so amended, provisions formerly appearing in par. (2) are now contained in par. (1).

Prior Provisions

A prior section 512 of Pub. L. 101–336, which amended former section 706 of Title 29, Labor, was renumbered section 513.

¹ See References in Text note below.

§12212. Alternative means of dispute resolution

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under this chapter.

(Pub. L. 101–336, title V, §514, formerly §513, July 26, 1990, 104 Stat. 377; renumbered §514, Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558.)

Editorial Notes

References in Text

Prior Provisions

A prior section 514 of Pub. L. 101–336 was renumbered section 515 and is classified to section 12213 of this title.

§12213. Severability

Should any provision in this chapter be found to be unconstitutional by a court of law, such provision shall be severed from the remainder of the chapter, and such action shall not affect the enforceability of the remaining provisions of the chapter.

(Pub. L. 101–336, title V, §515, formerly §514, July 26, 1990, 104 Stat. 378; renumbered §515, Pub. L. 110–325, §6(a)(2), Sept. 25, 2008, 122 Stat. 3558.)