July 7, 2021 – According to the Centers for Disease Control and Prevention, one in four adults living in America have a disability,¹ and the United States Census Bureau reported in March 2021 that 4.3 percent of children under the age of 18 have a disability.

This article is intended to provide a broad overview of the three major federal laws for disability rights (the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act), as well as Wisconsin specific laws and resources. Finally, the article will highlight some useful organizations, resources, and publications.

Get to Know the Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. 12101 et seq., and 28 C.F.R. parts 35-37, prohibit discrimination based on disability. Enforcement of the ADA is a carried out by multiple agencies.

There are five titles to the ADA:

• Title I: Employment 42 U.S.C. §§ 12111-12117. This title prohibits discrimination based on disability and also requires covered employers (those with 15 or more employees) to provide “reasonable accommodation”for applicants and employees with disabilities. See employer responsibilities for more information.

• Title II: 42 U.S.C. §§ 12131-12165 and 28 C.F.R. part 35, applies to public services provided by state and local Government agencies including public transportation systems.

• Title III: 42 U.S.C. §§ 12181 – 12189 and 28 C.F.R. part 36, applies to public accommodations and services operated by privately owned business and transportation services.

• Title IV: Telecommunications. This title requires that telephone companies provide telephone relay services for deaf individuals. See also Telecommunications Act of 1996, 47 U.S.C. § 255.

• Title V: Miscellaneous.

Wisconsin statutes and regulations that cover disabilities include:

• Definition of disability: Wis. Stat. section 15.197(4)(a)(2);

• Employment: Wis. Stat. section 111.31 and Wis. Admin. Code ch. DWD 218 Fair Employment;

• Housing: Wis. Stat. section 106.50 Open Housing and Wis. Admin. Code ch. DWD 220 Fair Housing; and

• Public Accommodations: Wis. Stat. section 106.52 Public Accommodations and Places of Amusement and Wis. Admin. Code ch. DWD 221 Public Accommodations.

State agencies in Wisconsin are the Department of Health Services (DHS) and the Department of Workforce Development (DWD), which are the primary agencies for regulation and enforcement.

DHS has individual offices that work with visual, auditory, developments, or physical disabilities. The DWD Equal Rights Division (ERD) is responsible for enforcement/compliance. (Also look at the Equal Rights decision and the Equal Rights Decision Digest.)

And each county in Wisconsin has an Aging and Disabilities Resources Center (ADRC) to help connect individuals to resources.

Other organizations that attorneys and their clients may find useful include:

• Disabilities Rights of Wisconsin; and

• Wisconsin Board for People with Developmental Disabilities.

The Rehabilitation Act of 1973

The Rehabilitation Act of 1973 at 29 U.S.C. § 701 et seq. prohibits discrimination based on disability in federal employment, under programs that receive federal funding and in the employment practices of federal contractors and subcontractors.

• Section 501 29 U.S.C. § 791 prohibits federal executive branch agencies, from discriminating against qualified individuals with disabilities.

• Section 503 29 USC § 793 prohibits discrimination in employment by federal contractors/subcontractors with contracts in excess of $10,000 Related regulations can be found at 41 C.F.R. part 60-741. See also federal contracts and section 503.

• Section 504 29 U.S.C. § 794 Nondiscrimination under Federal Grants and programs. Section 504 also requires websites to be ADA accessible.

Individuals with Disabilities Education Act

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1481, is the federal law that mandates a free appropriate public education (FAPE) for all eligible children with a disability.

In May, the National Center for Education Statistics reported that 7.4 million students ages 3 to 21 received special education services for 2019-20 under IDEA.² IDEA has four parts:

• overview and general information: 20 U.S.C. §§ 1400 - 1409;

• assistance for children with disabilities age 3-21: 20 U.S.C. §§ 1411 -1419 and 34 C.F.R. part 300, §§ 300.1 to 300.818;

• infants and toddlers birth: 20 U.S.C. §§ 1431- 1444 and 34 C.F.R. part 303, Sec 303.1 to 3030.734; and

• activities to improve education of children with disabilities: 20 U.S.C. § 1450.

Under IDEA, each student must have an individualized education program or plan (IEP), which includes the student’s current academic achievement and performance, as well as goals and accommodations. IEPs are reviewed and revised annually (see 20 U.S.C. § 1414(d)).

In Wisconsin, the Department of Public Instruction (DPI) oversees special education and provides some excellent resources such as special education topics and special education in plain language on their website.

Post-secondary education is not subject to IDEA. Attorneys whose clients are moving onto post-secondary education level, may want to download a copy of Students with Disabilities Preparing for Postsecondary Education from the U.S. Department of Education, and also look at:

• Wis. Stat. section 106.56, which prohibits discrimination in post-secondary education on the basis of disability; and

• Wis. Stat. section 106.57, which requires post-secondary institutions to provide instructional materials in formats that are accessible for students with disabilities.

Other Resources, Items of Interest

Disability laws also address issues of accessibility, disability benefits, housing, service animals, and assistive technology. Some additional websites and resources worth mentioning include those below.

For summary and general information, go to:

• ADA.gov, including its compilation of cases;

• Guide to Disability Rights Laws;

• DOL.gov for Department of Labor resources;and

• the ADA National Network’s fact sheet on the ADA.

For accommodations, accessibility, and assistive technology, check out:

• Job Accommodation Network – provides information on accommodation resources for employees and employers (a great feature on the site is the searchable online accommodations resources);

• The Architectural and Transportation Barriers Compliance Board provides links to accessibility standards (vehicles, architectural barriers, information, and communications and more);

• ADA Standards for Accessible Design on ADA.gov;

• Assisted Technology Act of 1998, 29 U.S.C. §§ 3001- 3007;

• Assisted Technology Act (AT3) Center’s webpage; and

• DHS’s Wisconsin Assistive Technology Program (WisTech).

Resources on benefits, Social Security, Medicaid, and Medicare:

• Social Security Disability;

• Wisconsin DHS Medicaid Programs for People with Disabilities; and

• Wisconsin DHS Benefits Specialists.

Information on service animals and housing:

• service animals housing accommodations and exclusion for animals that assist, support, or provide service to persons with disabilities 24 C.F.R. § 5.303;

• the 50-state Table of Service Animal Laws;

• Frequently Asked Questions about service animals and the ADA;

• Wis. Stat. section 106.50(2r)(bg) Discrimination against persons with disabilities with service animals prohibited;

• Wis. Stat. section174.06 Exemption of dogs for blind, deaf and mobility impaired; and

• Wisconsin Legislative Council Issue Brief on Service and Support Animals (October 2019).

Books and Treatises

Treatises are great resources on topics. State Bar of Wisconsin PINNACLE® has several titles that address disabilities. Check out the following on WisBar Marketplace in print or via a Books Unbound online subscription:

• A Guide to Wisconsin Employment Discrimination Law covers accommodations, enforcement, and the WFEA.

• Advising Older Clients & Their Families has discussions of Social Security Disability Insurance, Medicare, Medicaid, veterans’ benefits, substitute decision-making, and community-based long-term care programs.

• Guardianship and Protective Placement for the Elderly in Wisconsin offers checklists and discusses guardianship and protective placement statutes.

• The new Mental Health Law in Wisconsin: A Guide for Legal and Healthcare Professionals includes discussions of discrimination, guardianships, and parity and benefits for people with mental disabilities.

• Commercial and Consumer Transactions in Wisconsin discusses the ADA and websites.

• The Guardian Ad Litem Handbook is a thorough resource and has a chapter on adults with mental disabilities.

• Wisconsin Condominium Law Handbook addresses accessibility and accommodations.

• Wisconsin Attorney’s Desk Reference has chapters on fair employment and prohibited bases of discrimination.

• Wisconsin Employment Lawcovers employee benefits, worker’s compensation, employment discrimination, and other related topics.

In addition, PINNACLE holds regular CLE programs that cover topics related to the ADA, worker’s compensation, and related subjects. You can find both books and current programs on this link to the WisBar Marketplace on the State Bar website.

Research Services

Many of the commercial subscription services such as Westlaw, Lexis, Bloomberg Law, and Wolters Kluwer Cheetah, generally include treatises under the secondary resources tabs of their service. Special education attorneys should consider a subscription to LRP’s Special Education Connection.

These services, as well as Fastcase (which is free for State Bar members), are also excellent sources for case law research.

Not sure if you have secondary sources in your online subscription service? Contact your firm librarian (if you have one) or your account rep.

Further Resources

There’s a lot more out there for you. Still have questions or need additional research assistance? Contact a law librarian, such as the State Law Library Reference desk at (608) 267-9696 or wsll.ref@wicourts.gov.

Endnotes

¹ Disability Impacts All of Us, Center for Disease Control, Sept. 16, 2020: 13.7% have a mobility disability, 10.8% have a cognitive disability, 6.8% have an independent living disability, 5.9% have a hearing disability (either serious hearing loss or total deafness), 4.6% have a vision disability (blindness or serious difficulty seeing even when wearing glasses) and 3.6% have a self-care disability with difficulty dressing or bathing.

² Students with Disabilities, National Center for Education Statistics, May 2021: 33% had a specific learning disability, 19% speech or language impairments, 15% health impairment due to chronic or acute health problems like epilepsy, asthma, heart condition, etc., 5-11% students with autism, intellectual disability, or emotional disability, and 2% or less had multiple disabilities, visual or hearing impairments, and brain injuries.