Madison, WI Disability Non-Discrimination

Type: Municipal Code

Status: Adopted on 8/18/92

Source File: http://www.ci.madison.wi.us/dcr/documents/MGO3.72.pdf

Text:

3.72 NONDISCRIMINATION BASED ON DISABILITY IN CITY FACILITIES AND CITY-ASSISTED PROGRAMS AND ACTIVITIES.

(1) Nondiscrimination. No qualified person with a disability shall, by reason of such disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination by City facilities, or under any program or activity which receives or benefits from City financial assistance.

(2) Declaration of Policy. It is the intention of the Mayor and Common Council to impose upon City facilities and upon recipients of City financial assistance, nondiscrimination requirements which are the same as, and consistent with, the nondiscrimination requirements which are imposed upon recipients of federal funding by the Rehabilitation Act of 1973, as amended, and applicable federal regulations.

The Council intends that the complaint procedure provided in Subsections (10) to (13) of this ordinance shall constitute the grievance procedure required by applicable federal regulations, and further intends that any time limits required by applicable federal regulations for complaints to federal agencies be tolled when a complainant pursues the complaint procedure provided in this ordinance, provided the complaint is timely under Subsection (10). Subsections (11) to (17) shall not apply to complaints filed with federal agencies. Subsections (14) to (17) shall not apply to complaints filed with the Department of Affirmative Action against federally funded City facilities.

(3) Disability Rights Coordinator. There is hereby created the position of Disability Rights Coordinator, who shall work under the supervision of the Director of Affirmative Action. The Disability Rights Coordinator shall assist the Director of Affirmative Action in carrying out her/his responsibilities under this ordinance, and shall perform such other duties as the Director of Affirmative Action may direct, including the provision of staff support to the Commission on People with Disabilities.

(4) Definitions.

(a) “City facilities” includes all property owned or leased by the City, all operations of City departments and divisions, and all services rendered by the City for the welfare of its inhabitants, except that it does not include City employment.

(b) “City financial assistance” means any grant, cooperative agreement, loan, contract (other than a public works contract, a supply procurement contract, a contract of insurance or guaranty or a collective bargaining agreement) or any other arrangement by which the City provides or otherwise makes available assistance, in the form of

1. Funds

2. Services of City personnel

3. Real and personal property or any interest in or use of such property, including:

a. Transfers or leases of such property for less than the fair market value, or for reduced consideration; and

b. Proceeds from a subsequent transfer or lease of such property if the City’s share of its fair market value is not returned to the City.

4. The sale and lease of, and the permission to use (on other than a casual or transient basis) City property or any interest in such property, the furnishing of services without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by the sale, lease or furnishing of services to the recipient, and

5. Any City agreement, arrangement or other contract which has as one of its purposes the provision of financial assistance, including purchase of service agreements.

(c) “Program or activity” includes any program, project, or activity for the provision of facilities or services, financial aid, or other benefits to individuals (including education or training, health, welfare, cultural activities, rehabilitation, housing, or other services), whether provided through an employee of the grantee or provided by others through contracts or other arrangements with the grantee, and including the provision of facilities, for furnishing services, financial aid, or other benefits to individuals, but not including employment.

(d) “A Person with a Disability” is a person who either:

1. Has a physical or mental impairment which substantially limits one or more of such person’s major life activities;

2. Has a record of such an impairment; or

3. Is regarded as having such an impairment.

(e) “Qualified Person with a Disability” means a person with a disability who, with or without reasonable modifications to rules, policies, and practices, the removal of architectural, communication, and transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities or facilities provided by the City, or by a recipient of City financial assistance.

(f) “Recipient” means any public or private agency, institution, organization, or other entity, or any person to which City financial assistance is extended for any program or activity, directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.

(5) Discriminatory Actions Prohibited.

(a) The City, in its facilities, and recipients in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability:

1. Deny a qualified person with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

2. Afford a qualified person with a disability an opportunity to participate in or benefit from the aid, benefit, or service, or the City facility, that is not equal to that afforded others;

3. Provide a qualified person with a disability with a City facility or an aid, benefit, or service that is not as effective as that provided to others;

4. Provide different or separate City facilities, or aid, benefits, or services to persons with a disability or to any class of persons with disabilities unless such action is necessary to provide qualified persons with a disability with City facilities, aid, benefits, or services that are as effective as those provided to others;

5. Aid or perpetuate discrimination against a qualified person with a disability by providing significant assistance to any agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the recipient’s program;

6. Deny a qualified person with a disability the opportunity to participate as a member of planning or advisory boards; or

7. Otherwise limit a qualified person with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service from a recipient, or by others using City facilities.

(b) For purposes of this ordinance, City facilities, aids, benefits, and services, to be equally effective, are not required to produce the identical result for disabled and nondisabled persons, but must afford persons with a disability an equal opportunity to obtain the same result, or to gain the same benefit. In choosing among available methods for meeting the requirements of this ordinance, the City facility or recipient of City financial assistance shall give priority to those methods that offer programs and activities to qualified persons with disabilities in the most integrated setting appropriate to the person’s needs.

(c) Despite the existence of separate or different programs or activities provided in accordance with this ordinance, recipients and City facilities may not deny a qualified person with a disability the opportunity to participate in such programs or activities that are not separate or different.

(d) A recipient or City facility may not, directly or through contractual or other arrangements, utilize criteria or methods of administration

1. That have the effect of subjecting qualified persons with a disability to discrimination because of such disability.

2. That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the City facility or the recipient’s program with respect to persons with a disability, or

3. That perpetuate the discrimination of another recipient if both recipients are subject to common administrative control.

(e) In determining the site or location of a facility, the City, or an applicant for City financial assistance or a recipient may not make selections

1. That have the effect of excluding persons with a disability from, denying them the benefits of, or otherwise subjecting them to discrimination under any City facility or any program or activity that receives or benefits from City financial assistance or

2. That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the City facility or of the program or activity with respect to persons with a disability.

(f) As used in this section, the aid, benefit, or service provided under a program or activity receiving or benefiting from City financial assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased or rented, or otherwise acquired, in whole or in part, with City financial assistance for the period during which the facility is used for a purpose for which the City financial assistance is extended, or for another purpose involving the provision of similar services or benefits.

(g) Nothing in this ordinance is to be construed as affecting any landmark, as that term is defined in Section 33.01(2) of these ordinances or as affecting wilderness areas.

(h) Programs limited to persons with a disability . The exclusion of persons without disabilities from the benefits of a program limited to persons with disabilities, or the exclusion of a specific class of persons with a disability from a program limited to a different class of persons with a disability is not prohibited by this ordinance.

(i) Recipients and City facilities shall post notices in an accessible format to applicants, beneficiaries and other persons, describing the applicable provisions of this ordinance, in the manner prescribed by section 711 of the Civil Rights Act of 1964 (42 USCA sec. 2000e-10).

(6) Program Accessibility and Existing Facilities.

(a) City facilities and recipients of City financial assistance shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by persons with disabilities. This paragraph does not:

1. Necessarily require the City facility or recipient of City financial assistance to make each of its existing facilities accessible to and usable by persons with disabilities;

2. Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where a City department head or the Board of Directors of a recipient of City financial assistance believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the Department head or recipient has the burden of proving that compliance with this ordinance would result in such alterations or burdens.

(b) The City facility or recipient of City financial assistance may comply with the requirement of this ordinance through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to clients, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, or any other methods that result in making its programs or activities readily accessible to and usable by persons with disabilities. The City facility or recipient of City financial assistance is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this ordinance.

(7) Standards. A building or structure is readily accessible to and usable by persons with disabilities if it fulfills the applicable standards, guidelines and requirements issued by the federal Architectural and Transportation Barriers Compliance Board, including such amendments as the Board may issue from time to time.

(8) Assurances Required. Applicants for City financial assistance shall submit a written assurance of compliance with this subsection on a form specified by the Director of Affirmative Action or her/his designee. The assurance shall be incorporated into any contract between the recipient and the City. No City financial assistance shall be granted unless such an assurance is provided by the applicant or recipient prior to the granting of the City financial assistance. The foregoing requirement does not apply to City financial assistance provided without a written contract, but all of the other provisions of this ordinance do apply to such financial assistance.

(9) Compliance Reviews. The City’s Director of Affirmative Action or designee may periodically review the practices of recipients to determine whether they are complying with this ordinance, and may require recipients to provide relevant information.

(10) Complaints. Any person who believes this section has been violated by a City facility or a recipient of City financial assistance may bring the alleged violation to the attention of the Department of Affirmative Action. Such complaints shall be filed within three hundred (300) days of the alleged violation. The Director of Affirmative Action shall post notices in accessible format of the complaint procedure. Any complaint shall be a public record available to any person for inspection and copying.

(11) Investigation. The Director of Affirmative Action shall promptly investigate whenever a compliance review or complaint indicates a possible violation of this section. The Commission on shall establish rules governing complaint processing and compliance review procedures, and such rules shall be approved by the Common Council.

(12) Determination. After investigating, the Director of Affirmative Action shall issue a written determination of compliance or noncompliance and shall provide copies of the determination to the Commission on People with Disabilities, to the recipient or City Department or Division head responsible for the City facility and to the complainant, if any. Any determination of noncompliance shall contain a proposal for a reasonable remedy, and a reasonable deadline for compliance with the remedy. The written determination shallbe a public record available to any person for inspection and copying.

(13) Voluntary Compliance. If, after investigation, the Director of Affirmative Action or designee has found the recipient or the City facility not to be in compliance with this Section, the Director of Affirmative Action and the recipient, or, in the case of a City facility, the responsible Department head, may agree upon an informal resolution of the matter by a voluntary compliance agreement. Informal resolutions shall remedy any violation of the rights of a complainant and shall assure elimination of the violation and the prevention of its recurrence. Such voluntary compliance agreements shall be in writing, and shall be approved by the Commission on People with Disabilities. The agreement shall be signed by the recipient and by the Mayor, or, in the case of a City facility, by the Mayor and the responsible Department head. It shall be available for public inspection and copying.

(14) Enforcement Procedure. If a recipient, after receiving a written determination of noncompliance, fails to meet the deadline established for compliance and remedy, and fails to enter into a voluntary compliance agreement, or fails to comply with such an agreement, the Director of Affirmative Action or designee shall notify the City Attorney. The City Attorney shall proceed to terminate and, if she/he deems it necessary and appropriate, to recoup the recipient’s financial assistance. The City Attorney may also seek other remedies. The City Attorney shall inform the recipient of the action proposed to be taken, the matters of fact and law asserted as the basis for the action, and shall inform the applicant that a hearing may be requested by notifying the City Clerk within fifteen (15) days. The City Attorney shall also attempt to negotiate a voluntary compliance agreement. Such an agreement shall remedy any violation of the rights of a complainant and shall assure elimination of the violation and the prevention of its recurrence. Such a voluntary compliance agreement shall be in writing, shall be signed by the Mayor, approved by the Commission on People with Disabilities, and shall be reported to the Common Council.

(15) Hearing Committee. If a hearing is requested, the City Clerk shall notify the Mayor and a Hearing Committee shall be constituted. The Hearing Committee shall consist of three (3) members of the Common Council, designated by the Mayor; three (3) persons designated by the Chair of the Commission on People with Disabilities; and the Chair of the Equal Opportunities Commission, or her/his designee. The Mayor shall establish rules governing hearing procedures.

(16) Hearing. At the hearing, the Director of Affirmative Action or designee shall have the burden to persuade the Committee that the recipient has violated this Section, or the provisions of a voluntary compliance agreement. Each party shall have the right to appear in person and by counsel, to call and examine all witnesses, and to introduce exhibits. The Committee shall determine both fact and law, and shall issue a written decision and order, including, in case it finds that the recipient has violated this Section,an appropriate remedy. The Committee’s decision shall be a final administrative determination, subject to appeal as by law may be provided. The City Attorney may institute court action to enforce the Committee’s order.

(17) Enforcement Procedure for City Facilities. If a Department head, after receiving a written determination that a City facility for which she/he is responsible is not in compliance with this ordinance, fails to meet the deadline for compliance and remedy, fails to enter into a voluntary compliance agreement, or fails to comply with such an agreement, the Director of Affirmative Action or designee shall notify the Commission on People with Disabilities, and the Mayor. The Commission on People with Disabilities shall submit to the Board of Estimates awritten report on the noncompliance, and such report shall contain a recommendation for action. The Mayor shall convene a special meeting of the Board of Estimates to consider the issue, and shall publish a notice at least twenty-one (21) days prior to the meeting. At the meeting, the Board shall hear the Department head, other City officials and employees, and members of the public. The meeting may be adjourned and reconvened as the Board may deem appropriate. The meeting shall be considered legislative and not quasi-judicial and shall be conducted in open session. The Board of Estimates shall recommend a resolution of the issue to the Common Council for its approval.

(18) Enforcement Procedure for Federally Funded City Facilities. If a Department head, after receiving a written determination that a federally funded City facility for which s/he is responsible is not in compliance with this ordinance, fails to meet the deadline for compliance and remedy, fails to enter into a voluntary compliance agreement with the Director of Affirmative Action or designee, or fails to comply with such an agreement, the Director of Affirmative Action or designee shall promptly notify the federal agency, from which the funds are provided, of the complaint. The complaint will then be addressed in accordance with the federal agency’s Rehabilitation Act of 1973 complaint procedure. (Sec. 3.72 Am. by Ord. 10,498, Adopted 8-18-92)