fairly fast. If I run out of time and another member comes in that wants to ask some questions, if you would let me know.

First, my question of the civil rights leadership conference and I am going through the bill and listened carefully to the testimony, Ms. Feldblum, of your predecessor. On the subject of reasonable accommodation, it seems to me that what I heard the testimony to say was that reasonable accommodation should apply to new facilities and not necessarily to retrofitting existing facilities, as I understand the testimony.

My question is in the opening title of the bill on page six and seven, beginning with the paragraph at the bottom of the page. The overriding definition of the bill for all of the title seems to take a different approach and seems to define reasonable accommodation to include making existing-I am quoting from the bill"making existing facilities used by employees readily accessible to and usable by individuals"-implying all individuals, but at least saying individuals with disabilities.

I wonder if you could tell us, is it the intent then of the Leadership Conference to make reasonable accommodation more in line with the current definition of reasonable accommodation under, for example, the Civil Rights Act of 1986 and to make reasonable accommodation a limiting factor or is it the intent of the Leadership Conference to stick with what seems to be in the opening title of the bill and that is, readily accessible, all facilities including existing facilities.

Can you clarify that for us?

Ms. FELDBLUM. I think you might be confusing two aspects of the bill. There is a requirement that new buildings be constructed in a physical, accessible way. One would not use the term "reasonable accommodation" to apply to that area. That is certainly a provision of the bill that you saw from the testimony, looking to the future, any new building you should build physically accessible.

The concept of reasonable accommodation which is in here on the page which you referred to, is a concept of reasonable accommodation that exist under Section 504 right now and it is that concept that is carried over directly into this bill.

That concept is one that comes out usually in the area of employment. Often people with disabilities want to be treated just the same as everybody else. That is the gist of the testimony that you have heard today. However, also what you heard today is that sometimes a person with a disability needs some modification, either some modification in the physical area or some modification in terms of a policy or device in order to then do the essential functions of the job.

The concept that exists under Section 504 is that an employer has a responsibility to make a reasonable accommodation to a person with a disability, be it a physical accommodation, be it a modification of a policy, so long as that accommodation does not impose an undue hardship on the employer and that is the basic concept within 504 as to what would be an undue hardship.

Mr. BARTLETT. Ms. Feldblum, I do pretty well understand that. The title of the bill that I referred to does not mention the word "undue hardship." It says, "making existing facilities used by em

ployees readily accessible to and usable by individual with disabilities."

Now, my question then is it-leaving aside the drafting, is it then the Leadership Conference's position that it should be an undue hardship test or another way, that it should follow the current Section 504 or the Civil Rights Act or are you seeking a more stringent test?

Ms. FELDBLUM. We are not seeking a more stringent test. The intent of the bill is that the definition of reasonable accommodation be read in conjunction with the provision of the bill that describes reasonable accommodation which is on page 13 to 14 of your bill.

The failure to make a reasonable accommodation unless a can demonstrate that the accommodation would impose an undue hardship, so in direct response to your question, you are correct that the definition of reasonable accommodation must be read, obviously, in conjunction with the requirement of providing reasonable accommodation and that should be very clear.

Mr. BARTLETT. Well, if this Committee were to seek ways to make certain that it is more clear, I suppose then that would be acceptable to the Leadership Conference.

Ms. FELDBLUM. That is fine to make it clear that it is consistent with pages 13 and 14.

Mr. BARTLETT. So, it is not your position that the existing facilities-that the bill should be as it seems to be on page 7, that all existing facilities should be readily accessible too, without limitation?

Ms. FELDBLUM. I think the misunderstanding here is the fact that reasonable accommodation

Mr. BARTLETT. I am not misunderstanding; I am reading. Ms. FELDBLUM. No, no, but I mean the misunderstanding the reading might be that the term "reasonable accommodation" is used only in the context of employment, only in Title II.

I wouldn't want you to hear that the concept of undue hardship should be carried over in any way to Title IV which is the concept of building new facilities accessible. The term "reasonable accommodation" never appears in Title IV. It is a term that is used simply in Title-

Mr. BARTLETT. Ms. Feldblum, I don't want to get into a drafting argument with you, but reading from the bill, it states Section III in the preliminary findings and purposes, as used in this Act, reasonable accommodations shall include all existing facilities readily accessible as used in this Act.

So, I just want to make sure that the intent then is to not go beyond the current Civil Rights Act of 1986 or the current-I am sorry, the current Civil Rights Act, the Grove City case that we passed in 1988 or Section 504, is not to go beyond that for purposes of private employers.

Ms. FELDBLUM. It does not go beyond Section 504 in the area of employment in all of the places where reasonable accommodation is used. Please do not misunderstand that statement to mean that Title IV, which deals with new construction and making existing facilities readily achievable obviously applies to anything that comes under the definition of a public accommodation.

With that statement, I don't think we have any problem in saying an employment that is consistent with Section 504 is concept of reasonable accommodation.

Mr. BARTLETT. The other part to reasonable accommodation in the opening section of the bill seems to list a series of job restructuring items. I want to go back and compare that again to the Civil Rights Act, the Grove City bill which is also applicable. Would it be your decision-the list in paragraph b on page seven would seem to be a relatively broad in a not particularly limiting list.

Let me say what I am saying. It says it doesn't seem to have any limitation on accommodations that could be required. For example, it would seem to require part-time or modified work schedules. So far, so good, and I think a part-time, modified work schedule is often a way in which an employer makes an accommodation, but there are some employment situations, many, perhaps, in which a part-time or modified work schedule, in fact, imposes an undue hardship on the other employees or the customers or the employer. Would it be the Leadership's intent then to have some kind of limiting language for undue hardship or other kind of limitation or would you seek a requirement for part-time or modified work schedule, for example, or reassignment without limitation?

Ms. FELDBLUM. I think this, in fact, is perhaps a drafting issue as you noted. As I said before, this is simply a definition of reasonable accommodation which must be read in conjunction with the actual requirement, the reasonable accommodation which does say, you don't have to do the accommodation, be it the job restructuring or anything else on the list if it were to impose an undue hardship and I think this sort of a classic way in which one drafts a bill, just set out the construction of the prohibition and then you have a definition section.

Obviously, it is intended to be read with the provision of the bill itself. So, the answer to that is yes, it is intended to be read with that.

Mr. BARTLETT. So, it is your intent to make certain that it does have a modification to it?

Ms. FELDBLUM. That is the way it is in the bill.

Mr. BARTLETT. I understand. Number two, I want to make sure I understand again the intent of the testimony and then I will go back and look at the bill again. It is your intent that the Leadership Conference's intent that only new buses would be required to be wheelchair accessible and not require a retrofitting of existing buses. Is that accurate?

Ms. FELDBLUM. It is not a retrofitting requirement in existing buses. It is new buses and buses that are completely remanufactured.

Mr. BARTLETT. I know, but what period-how long would purchasing of new buses be to accommodate, would it be immediately upon the enactment of the bill, that any new buses would have to have a lift?

Ms. FELDBLUM. There was no time requirement as to when you have to buy new buses. It is simply if and when one buys new buses, those buses have to be accessible.

Mr. BARTLETT. Third, the bill seems to have-in the employment section-a limitation which is disturbing to me, in Title II which

seems to place a-on page 11 at the bottom of the page, section bseems to have an exception for employees of individuals who are elected to public office, including without limitation, all the personal staff or an appointee to public policy making or immediate advi

sor.

I assume all of that is everyone. That is disturbing to me. Does the Leadership Conference endorse that exception that Congress would not be required to eliminate discrimination in their own employment practices?

Ms. FELDBLUM. I don't know if I can speak officially for the entire Leadership Conference at the moment, but I think I could say to you that if an amendment was offered to delete that exception, that the Leadership Conference would be in support of that. That is an exception that is currently in Title VII, but is what it is based on, but I believe▬

Mr. BARTLETT. Maybe we will delete it from Title VII too.

Ms. FELDBLUM. I don't think the Leadership Conference would have an argument with that.

Mr. BARTLETT. So, you would regard that as an improvement in the legislation. Mr. Dart, and Mr. Nelan, as a follow-up if you would like, tell me, if you were writing the bill with regard to drug abusers and alcohol abusers, how would you structure the ability of, just in laymen's terms, how would you structure the ability of an employer to deny employment to users of either abusers of alcohol or users of illegal drugs.

Would you give an employer the right to deny employment to someone who uses illegal drugs or abuses alcohol or would you require that it only be if it poses a threat to the health and safety of other workers in the work place? Mr. Dart?

Mr. DART. Mr. Congressman, if you will pardon me, I would like to preface my answer with another statement that my colleague, Ms. Sandra Parrino, asked me to apologize to the chairman that she had to leave in order to meet a very high level person in this government about ADA and a person whose schedule did not accommodate another time, another

Mr. BARTLETT. Another group of high leveled persons, I suppose. Mr. DART. Yes, certainly. You got me there. I am not an attorney. I am not a bill writer and I really am not sure I can answer your question adequately, Mr. Congressman. Any answer which I would give, of course, would have to be from myself personally and not for the Task Force, which I represent, but it is my understanding that no employer under the act would be required to employ anyone who was unfairly unqualified to do the job and I could certainly envision circumstances under which substance abuse would render somebody not qualified to do almost any job.

I am not really-if I understand the bill correctly and that is what it means, and it is simply would imply that one is not allowed to discriminate against a person with disabilities, simply on the unproven allegation or suspicion that the person might be a drug abuser or an alcohol abuser that if I were drafting it, I maybe would draft it in the same way.

Mr. BARTLETT. Let me pose-we now get when we draft a bill, you get down to very specific instances and many persons with dis

abilities tell me, again, without trying to make it reference the bill because we do have bill writers that can draft it the right way.

Many persons with disabilities tell me that they object to being lumped in as a category with chronic drug abusers, persons who do cocaine on their lunch hour or smoke pot in the back of the restaurant as they are cleaning up. That doesn't seem to them to be in the same category as other persons with disabilities that that the bill is designed to get to.

So, the bill is currently drafted so that it would say that an employer could only have a no-drug policy if it poses-it seems to anyway-not hiring someone who is a drug abuser if it poses a direct threat to the health and safety of the work place.

That is, in the back of a restaurant, for example, when you are cleaning up, that is relatively difficult to prove. My question is, should we draft it that way or should we make certain that what we mean is that an employer who has a policy-I will pose it differently-should an employer be allowed to have a policy that says, “I am not going to hire someone who is a user of illegal drugs?"

Mr. DART. I certainly am oppose to the use of illegal drugs personally and I assume that all the members of my Task Force are, but I was not aware that the Act would force an employer to employ a person who was probably doing something against the law or who was probably an alcohol abuser to the extent that they would not be able to perform the functions of the job.

Mr. BARTLETT. I understand.

Ms. FELDBLUM. Mr. Congressman, can I just add a clarification. From the legal prospective, I think that there is often a misunderstanding that because one qualification standard was put forward as an example, and I am just repeating that Mr. Dart's analysis is, in fact, correct, from now the legal prospective.

There is an example that someone would pose a direct threat, for example, to the health and safety property of others is an example of a qualifications standard that an employer can use. However, it is simply an example. Employers still can have all other types of qualification standards such as Mr. Dart said that an employee must be able to do his or her job effectively, must be able to comply with all the other requirements of the employer in terms of being qualified for the job.

Those qualification standards could be applied to everybody, all people with or without disabilities and all people with disabilities including people who are drug addicts or alcoholics. I mean, it is also important to clarify for the record that the bill is not inconsistent with, for example, the drug free work place which allows employers to have a rule that drugs or alcohol may not be consumed on the work place.

What is in this bill here is what has been is what has been under Section 504 for years. Under Section 504, you can have a requirement that someone not use illegal drugs at the work place and there would be no recourse under either Section 504 or this bill, so I am just lending a legal clarification to the▬▬

Mr. BARTLETT. Let me say-I know the chairman may want to go to the next round-let me say, what I want to avoid here and in subsequent hearings, what I want to encourage is an acknowledgement that this is the first hearing. I know many of us, including