The Department of Energy has released a new rule, “Rescinding New Construction Requirements Related to Nondiscrimination in Federally Assisted Programs or Activities.” This new rule is open to public comment until June 16th, at https://www.regulations.gov/document/DOE-HQ-2025-0015-0001

This new rule states that § 1040.73 New construction is unnecessary due to the presence of § 1040.71 Discrimination prohibited. The new rule considers § 1040.73 to be “unnecessary and unduly burdensome.” Let’s take a look at both sections.

§ 1040.73 New construction.
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient is to be designed and constructed in a manner that the facility or part of the facility is readily accessible to, and useable by, handicapped persons, if the construction was commenced after the effective date of this subpart.
(b) Alteration. Each facility or part of a facility which is altered by, on behalf of, or for the use of a recipient after the effective date of this subpart in a manner that affects or could affect the usability of the facility or part of the facility is, to the maximum extent feasible, to be altered in a manner that the altered portion of the facility is readily accessible to and useable by handicapped persons.
(c) Conformance with Uniform Federal Accessibility Standards….

This section lays out in plain language that any building must be constructed so that it is accessible to people with disabilities, in compliance with Federal Accessibility Standards. So far, so good. Here’s the section that the new rule claims makes § 1040.73 unnecessary:

§ 1040.71 Discrimination prohibited.
No handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or be subjected to discrimination under any program or activity that receives or benefits from Federal financial assistance from DOE.

This section does not actually have any requirements for a building to be constructed so that it is accessible. All it requires is that the program or activity that takes place in the building extend opportunities to people with disabilities. This means that, for example, as long as a federal assistance program is willing to serve people with disabilities by phone or other means, their building does not need to be accessible. This would allow federal programs to be based out of spaces where people with disabilities can’t even access the front door or reception desk. We’ve all spent enough time on hold on the telephone with various services to know that it’s often easier and more efficient to go to an office in person. This rule would strip that option from people with disabilities, essentially making them second-class citizens when it comes to accessing federal programs.

Furthermore, how are the requirements of § 1040.73 “unduly burdensome?” When a new building is built, it is not more expensive to make it accessible to people with disabilities. It should be done anyway under the ADA, but due to federal attacks on civil rights laws, we need all of the layers of protection that we can get for people with disabilities.

This brings me to my next point: On April 23, 2025, President Donald Trump issued Executive Order 14115 entitled "Restoring Equality of Opportunity and Meritocracy". This order is an attempt to eliminate the use of disparate-impact liability. Disparate impact is the idea that discrimination does not always require intent – a single rule for everyone can affect minorities in a discriminatory way. For example, an office rule that forbids head coverings for all staff can be discriminatory because of how it affects Muslim women who wear the hijab, even though the rule was not intended to discriminate against this group.

If this Executive Order is taken as valid, it further undercuts the protections in § 1040.71. It would mean that only intentional discrimination is prohibited, meaning that constructing an inaccessible building is acceptable as long as it wasn’t done with the express purpose of excluding people with disabilities. And how can we prove intent? Disparate impact is a keystone of civil rights law, because we can’t legislate intent, all we can do is legislate specific actions.

In summary, in the current legislative landscape, § 1040.71 Discrimination prohibited is insufficient to protect the rights of people with disabilities. § 1040.73 New construction must be kept on the books to safeguard architectural accessibility, so that people with disabilities are able to access all federal programs.

- Rachael Cowan, System Change Advocate