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the three of you have been involved in discussions and in drafting and redrafting, but there is-as we approach the bill, there is no reason for any of us, including me, to be defensive about every semicolon in the bill.

There is no act yet. We haven't drafted it, so I am not attacking the act because there is no act. We have a hearing as to how to draft what we intend. The bill does seem to make in this case an exception if it is direct health and safety.

There does seem to be in the rest of the bill no provision to say as a qualification standard that an employer would be allowed to say, "I choose not to hire anyone who uses illegal drugs." There doesn't seem to be that permission in this bill. Perhaps we can draft it in a way that does give that permission-the chairman may be hurrying me alone, but

Chairman OWENS. I really want to make a comment after Mr. Dart.

Mr. DART. If I could, Congressman Bartlett, just clarify my answer and make it more direct that as a former businessman and employer, I certainly would not approve of any law that I thought would force or encourage business people or anybody else to employ persons who were breaking the law and who were probably drug abusers.

It was my understanding that this bill does not do this.
Mr. BARTLETT. I yield to the chairman.

Chairman OWENS. We are going to be, as has been pointed out, discussing numerous aspects of this bill in great detail and this will come up again and again. I just must comment as it has come up several times this morning. An alcoholic or drug abuser must identify himself as being a person with a disability, it seems to me, before the law applies to him.

Persons who have gone to court and been mandated to participate in a drug treatment program need jobs; they are identified as being in a drug treatment program; they are not breaking the law now, but they certainly broke the law when they were mandated to be put into the drug treatment program.

I do not think they should be denied a job, but they are identified as persons with a disability, just as alcoholics who are not seeking treatment certainly deserve no protection under this law. They have not identified themselves as being persons with a disability. They don't own up to it. If they are drinking at the back of a store, doing drugs in the back of the restaurant, they certainly don't fall in the category of this bill. It seems to me that they have to come forward and identify themselves and there are things that go along with that identification.

That may be the way we will have to clarify the law, one direction we can move in terms of clarifying the law. I thank the gentleman for yielding his time.

Mr. BARTLETT. I thank the gentleman. I think the chairman is correct. I think that there are some ways to draft this legislation so that we are certain that it says what we intend and there is a distinction between a current user or abuser of illegal drugs or abuser of alcohol and there is a distinction in someone who is a past user or abuser, and has, in fact, the disability of having been an addict or is a recovering addict and I think that we can draft it that way.

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I want to be certain that we do and I think that we have a ways to go, but with people of goodwill we can and that does relate to the Leadership's testimony in which the Leadership's written testimony called for a quick passage of legislation.

I would add a second requirement and that is, it be a quick and thoughtful passage of the legislation. We only get one chance at this. This subcommittee under Major Owens' leadership has written some excellent pieces of legislation in the last years in consolidation with other subcommittees.

Permanent authorization is streamlining of Section 1619. We had the chance we knew to permanently authorize Section 1619 and we can do that anytime, but we only had one chance to streamline it right and this subcommittee took its time to make sure we did it right.

We had a dozen chances to do it wrong, but this subcommittee persisted until we had the right bill, early childhood intervention. This subcommittee persisted until we did it right and I think we have our work cut out for us. I think we have a good blueprint, a good beginning and a ways to go.

Mr. Chairman, I have some additional questions, but I do have one additional question that I would like to pose to all three of the panel and then I will talk to them all later or submit them for the record of the others and that is the remedy section.

Is it-I ask of all three-there are generally two types of remedies that we could impose and this bill seems to impose both types. One is the remedy through the classic civil rights EEOC kind of administrative action in which you filed a complaint with EEOC or some administrative board says, stop, we find that to be discriminatory. You can't do it; don't do it anymore and if you do it, we are going to file either an injunction or some kind of a penalty or we are going to fine you; that is one type.

The other type which is also included in this bill which is somewhat disturbing is legal action through courts, jury trials, monetary damages and specifically U.S. Code 1981. Now, I would like your judgment as to whether you believe that invoking U.S. Code 1981 in addition to administrative remedies is necessary in all cases and should be left in the mainstream of the remedies in this bill or whether it should be deleted or whether it should be limited only to more owners kinds of cases or extreme cases.

Mr. Dart, have you thought about how would you like to see the bill structured in terms of those two types of remedies, court challenges, Federal court, jury trials, monetary awards versus the administrative remedies?

Mr. DART. Well, again, I am speaking for myself personally and again, I am not an attorney, but I would like to say that in my public forums throughout the nation, the issue of enforcement of present disability rights, legislation and disability services, legislation and regulation was probably the largest issue that came up and there was a reflection that enforcement was not in any way adequate and that the remedies were not adequate.

Now, I am not an attorney. I could not sit here and say that I think that the way the law is written is the only way that it could be written in order to have remedies, but I do know and that we have overwhelming evidence that a right without a remedy is not a

right and I think that there has to be ways that people with disability, most of whom are poor, can afford to have a lawyer and that that attorney will have some incentive to represent that person to implement their rights, not only under the present Act, but for all disability rights.

Mr. BARTLETT. Ms. Feldblum?

Ms. FELDBLUM. Yes, actually, to follow-up. As you of course know, the EEOC which is the administrative agency enforcing Title VII, there was also a private right of action under Title VII that one can go into court and also enforce one's right in courts and that is, of course, is basic in all the civil rights laws even where there is an administrative mechanism, there was always also a private right of action to enforce one's rights in courts, as Mr. Dart said, so that there was a remedy as well as a right.

Once you get into court, of course, it is important that you have the panoply of remedies in order to achieve the vindication of that right which includes not only the remedies of injunction, back pay, front pay, remedies that you would be getting under Title VII, but if, for example, you were a Black person who has been discriminated against or a Jew or an Arab, you can also get damages for the harm that has been done.

Mr. BARTLETT. That raises then two specific questions. Should you be required to go to EEOC_first_before you go to court or should you be allowed to go straight to Federal courts?

Ms. FELDBLUM. Well, under Title VII, one goes to EEOC if one is suing under Title VII. Of course, if one chooses, if one has been discriminated against on the basis of race or ethnicity, one does not have to go to EEOC; one can file a claim in court under Section 1981.

However, if you were filing under Title VII, one does have to go to EEOC first through the administrative process.

Mr. BARTLETT. When we pass this legislation, should we require that someone use their administrative remedies first before they go to court or should we allow them to go straight to court without making use of the administrative remedies?

Ms. FELDBLUM. At this point, the bill parallels what would be available to people who have been discriminated on the basis of race, or ethnicity which would allow them to go into court if they chose to do that.

Mr. BARTLETT. Should we also allow that for unintentional discrimination in addition to intentional discrimination, in your opinion?

Ms. FELDBLUM. Unintentional, I know, had been raised before. That is a basic concept within Section 504, has been throughout the time, and, therefore, it is incorporated within the ADA as well. There should be a difference in terms of one's ability to go into court and vindicate one's rights, whether it is intentional discrimination or some set of neutral room that has had an adverse effect. Under Section 1981, one would not get damages for something that had a desperate impact and I think that was the intent of this legislation.

Mr. BARTLETT. It is eliminate the damages, but not the injunctive relief for unintentional discrimination. Is that what you are saying?

Ms. FELDBLUM. Correct, yes.

Mr. BARTLETT. Brother Nelan, do you have a response then to the

Brother NELAN. I feel that I have no confidence in this field of making these distinctions, but it would seem to me from common sense, that it would be better to have administrative remedies before going to the full panoply of jury and all of the rest.

Mr. BARTLETT. Brother Nelan, you said in your testimony that in your opinion, there were some specific problems with the ADA that you and others in the business community you have worked with have identified, not in the concept of '88 but in the drafting.

I know that you had shared earlier, but it was not part of your testimony, a draft of a document entitled "Concerns with the Americans with Disabilities Act, the Disability Rights Working Group." Would that be a draft that this subcommittee could use to sort of walk through some of the issues that you have found?

Brother NELAN. Yes, I would like to submit that draft.

Mr. BARTLETT. I would ask unanimous consent that that draft be submitted as part of this record, Mr. Chairman.

Chairman ÖWENS. Without objection, it will be accepted. I would like to ask the Leadership Conference to take a look at it and submit any comments on it also.

[The material follows:]

DISABILITY RIGHTS
WORKING GROUP

Working Paper #1

INTRODUCTION

Concerns with the Americans With Disabilities Act

The Americans with Disabilities Act, introduced on May 9, 1989, is comprehensive legislation whose expressed objective is to extend the same protections against discrimination enjoyed by other protected groups to those with disabilities.

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Though supportive of many of the concepts embodied in the ADA, the Disability Rights Working Group -- a coalition of businesses and trade associations is opposed to the ADA in its present form. Discussions have been held with representatives of the disability community, Congress and the Administration in an effort to fashion legislation we can all embrace. However, unless changes are made, particularly in the area of remedies, the Group will seek to defeat S. 933/H.R. 2273.

CONCERNS WITH LEGISLATION

Listed below are summaries highlighting some of the Group's concerns with the ADA, all of which have been communicated to the parties. There are two levels of concern with the legislation: first, the issues relating to enforcement and remedies; and second, all others. We have made it clear that resolution of the former is absolutely essential to further negotiation, without which the Group will seek defeat of the bills. That should not, however, be interpreted to mean that resolving the threshold concerns alone would be acceptable.

THRESHOLD ISSUES

Enforcement/Remedies. In addition to the remedies, administrative procedures and defenses available under Title VII of the Civil Rights Act of 1964 -- for which there is an extensive body of law and successful experience regarding cases alleging discrimination based on race, sex, religion and national origin -- the ADA. in $205, provides a second, separate track of enforcement that would permit a jury trial, and punitive and compensatory damages, ite., pain and suffering. The second track must eliminated.

Anticipatory Discrimination. Section 205 of the ADA would also provide relief to individuals who believe they "are about to be" discriminated against. Such speculative complaints and attendant litigation are not permined in any other civil rights in employment legislation and should be eliminated from the ADA.

GENERIC ISSUES

Enforcement Duplication/Consistency with Rehabilitation Act. A significant number of employers are currently subject to Sections 503 and/or 504 of the Rehabilitation Act of 1973, as amended, that prohibit discrimination against persons with disabilities. The ADA would impose additional, in some cases, conflicting obligations on these employers. The ADA is silent as to situations where employers are faced with inconsistent standards and duplicative enforcement by various federal agencies. Compliance with Section 503 or 504 standards should be deemed to be in compliance with the ADA.

Failure versus Refusal to Act. The lack of distinction between intentional and unintentional discrimination will penalize employers for inadvertent errors in their attempts to abide by new, affirmative obligations imposed by the ADA. Discrimination should be defined as "refusal'' or ''willful failure" to act.

Reasonable Accommodation and Undue Burden. As defined in §1, there is no limitation on the lengths to which one must go to provide reasonable accommodation, though it is limited in §101 (b) (Defenses) as not requiring an undue burden." which itself is undefined. In the absence of the definition, does this connote that **undue burden" means anything that threatens a firm's existence? Further, under §202(b)(2), it would be discriminatory not to hire an individual on the basis of the need for reasonable accommodation, not limited in this context by a defense of "`undue burden." Thus, an employer could not offer the defense of undue burden in response to an allegation of refusal of hire because on the need for reasonable accommodation. In order

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