\365\365 102.131-102.139 3 CFR Ch. I (1-1-2003 Edition) (4) The agency may not, in deter- Commission in 29 CFl\177 part 1613, shall mining the site or location of a facil- apply to employment in federally con- ity, make selections the purpose or ef- ducted programs or activities. fect of which would- (i) Exclude individuals with handi- \365102.141-102.148 [Reserved] caps from, deny them the benefits of, or otherwise subject them to discrimi- \365 102.149 Program accessibility: Dis- nation under any program or activity criminaLion prohibited. conducted by the agency; or Except as otherwise provided in (ii) Defeat or substantially impair \365102.150, no qualified individual with the accomplishment of the objectives handicaps shall, because the agency's of a program or activity with respect facilities are inaccessible to or unus- to individuals with handicaps. able by individuals with handicaps, be (5) The agency, in the selection of denied the benefits of, be excluded from procurement contractors, may not use participation in, or otherwise be sub- criteria that subject qualified individ- jected to discrimination under any pro- uals with handicaps to discrimination gram or activity conducted by the on the basis of handicap. agency. (6) The agency may not administer a licensing or certification program in a \365 102.150 Program accessibility: Exist- manner that subjects qualified individ- ing facilities. uals with handicaps to discrimination (a) General. The agency shall operate on the basis of handicap, nor may the each program or activity so that the agency establish requirements for the program or activity, when viewed in its programs or activities of licensees or entirety, is readily accessible to and certified entities that subject qualified usable by individuals with handicaps. individuals with handicaps to disctirol- This paragraph does not-- nation on the basis of handicap. How- (1) Necessarily require the agency to ever, the programs or activities of enti- make each of its existing facilities ac- ties that are licensed or certified by cessible to and usable by individuals the agency are not, themselves, cov- with handicaps; ered by this regulation. (2) In the case of historic preserva- (c) The exclusion of nonhandicapped tion programs, require the agency to persons from the benefits of a program take any action that would result in a limited by Federal statute or Execu- substantial impairment of significant tive order to individuals with handi- historic features of an historic prop- caps or the exclusion of a specific class erty; or of individuals with handicaps from a (3) l\177equire the agency to take any program limited by Federal statute or action that it can demonstrate would Executive order to a different class of result in a fundamental alteration in individuals with handicaps is not pro- the nature of a program or activity or hibited by this regulation. in undue financial and administrative (d) The agency shall administer pro- burdens. In those circumstances where grams and activities in the most inte- agency personnel believe that the pro- grated setting appropriate to the needs posed action would fundamentally of qualified individuals with handicaps. alter the program or activity or would result in undue financial and adminis- \365\365102.131-102.139 [Reserved] trative burdens, the agency has the burden of proving that compliance with \365102.140 Employment. \365102.150(a) would result in such alter- No qualified individual with handi- ation or burdens. The decision that caps shall, on the basis of handicap, be compliance would result in such alter- subject to discrimination in employ- ation or burdens must be made by the ment under any program or activity agency head or his or her designee conducted by the agency. The defini- after considering all agency resources tions, requirements, and procedures of available for use in the funding and op- section 501 of the l\177ehabilitation Act of eration of the conducted program or 1973 (29 U.S.C. 791), as established by activity, and must be accompanied by the Equal Employment Opportunity a written statement of the reasons 346
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