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that employers and others understand the bounds of their obligations, reasonable accommodation should be defined not to require fundamental alterations or result in undue financial or administrative burdens and include a definition of "undue burden." Codification of relevant Section 504 regulations and additional information regarding obligations would provide needed guidance.

Incentives. While it is argued that, as a civil rights law, the costs attendant to compliance with the ADA are irrelevant. no other civil rights statute requires a private employer, who is not a federal contractor or grantee, to expend substantial resources on affirmatively accommodating a protected class. In some instances. the costs will be significant and burdensome, particularly on smaller businesses. As introduced, the ADA contains no incentive to encourage and assist employers to make expenditures to increase opportunities for individuals with disabilities. The tax deduction of $35.000/year permitted under $190 of the Internal Revenue Code for removal of achitectural barriers should be increased and expanded to defray the costs incurred in providing reasonable accommodation or auxiliary aids and services that would be required by the ADA.

Drug/Alcohol Abuse. The bill. in $101(b)(2)(A). appears to limit an employer's ability to adopt and imple ment a drug-free workplace policy by protecting current abusers of alcohol/illegal substances except where it can be demonstrated that such use consitutes a direct threat to property and/or safety. In view of federal and Congressional policy on drug-free workplaces, this provision should be revised to eliminate current contradictions. to clarify that nothing in the ADA is intended to protect current abusers, and to protect the right of employers to implement ''zero-tolerance" policies concerning substance abuse.

Overlap Between Titles I and II. It is unclear what additional burdens are imposed on employers in Title I which are not included in Title II which governs the employment relationship. As currently constructed. drafters of the ADA have lifted regulations implementing Section 504 (which are targeted to federal grant recpients) and simply added the term "job" so that they now would apply to employment. In doing so, new. broad and ambiguous terms are used that have no historical interpretation. When, for example, is one job considered "as effective as" another? The term "job" should be deleted wherever it appears in Title I and it should be made clear that employment discrimination is controlled exclusively by Title II.

Discrimination by Assistance. The ADA would hold an employer or other entity liable if the recipient of its charity or assistance discriminates on the basis of disability, whether or not there is knowledge of such discrimination. Section 101(a)(1)(E) should be amended to reflect that such act is illegal only where the provider knows of the discrimination.

Discrimination Based on Association. The ADA would make it illegal to discriminate against an individual because of the "relationship to, or association of, that individual or entity with another individual with a disability. This is unparalled in civil rights law and will invite frivolous lawsuits requiring employers to prove a negative, i.e., that they weren't aware of the associaiton. Section 101(a)(5) should be deleted. Discrimination in Benefits. As drafted. Title I creates incredible new liabilities for employers if they provide disabled persons with a benefit which is less effective than" or "is different or separate" from that provided to others (e.g.. §101(a)(1)(C) & (D)). Group health insurance benefits, which are offered under the same terms and conditions to all employees, may still be less effective" or "separate or different'' for a person with disabilities. Employers should only be obligated to offer the same benefits package to all employees, whether or not they are disabled. To require otherwise, e.g.. provide specific medical coverage or purchase medical insurance with pre-existing condition waivers, would be prohibitively expensive and result in insurance companies being unable to provide and/or underwrite group health policies.

Good Faith Efforts. Despite their good faith efforts, employers will be placed in a "Catch 22" position by the conflicting requirements of $101(a)(1)(d) • provide different or separate" programs/activities that are as effective as (those] provided to others" -- and 101(a)(3) -- a disabled person shall not be denied the opportunity to participate in such programs or activities that are not separate or different.” There should be recognition in the ADA of employer good faith efforts to make accommodations to those with disabilities. It is a well recognized concept under current civil rights law and should be incorporated in the ADA.

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Consistency with Existing Law. Section 101(a)(4) seems to adopt the adverse impact theory for proving discrimination against persons with disabilities. It is not clear whether the authors intend to follow or overturn Alexander v. Choose as it relates to application of the adverse impact theory of discrimination. The Committee Report should indicate the intent of authors to follow Choate, in which Supreme Court Justice Marshall discussed the appropriate application of adverse impact theory.

Defenses. The inclusion in Title I of defenses would seem to limit the defenses that would otherwise be available under the Act. There is a adequate body of law under the Civil Rights and Rehabilitation Acts concerning the defenses available to an employer in cases of discrimination and §101(b)(1) should be deleted. Title II should be amended to provide that the defenses, as well as the procedures and remedies, of the Civil Rights Act of 1964 apply in actions brought under the ADA.

TITLE I - EMPLOYMENT

Coverage. The ADA imposes substantial new burdens on employers, particularly for smaller employers. Coverage under Title II should be phased-in, as it was with the Civil Rights Act of 1964, over a five-year period with the threshold starting at 100 employees the first year and dropping each year. This same approach should be employed with regard to Title IV to provide a reasonable time to make changes to physical and procedural barriers.

Discrimination. The definition of discrimination in §202(a) is inconsistent with that in Section 504. To conform the ADA, an employment action is not discriminatory against an "otherwise" qualified individual unless it is solely" based on an individual's disability. The term "solely" appears in Section 504 itself. Its absence in the ADA will be interpreted by the courts as a deliberate change in the law.

Job Applications. Section 202(a) uses a new term. "job application procedures," which differs from the language found in regulations issued under Section 504 concerning the application process, "processing applications for employment." Absent some specific reason for changing the language of Section 504 regulations. this raises questions about whether it will require something other than the Rehabilitation Act. This is particularly important because under Section 503. employers are required to follow certain procedures that permit an applicant with a disability to identify themself to the employer and to discuss the possible need for an accommodation. The new wording suggests that the ADA might prohibit or limit these same procedures. Selection Criteria. Section 202(b) goes beyond Section 504 regulations by limiting an employer's use of qualification standards, tests, etc.. that "identify individuals with disabilities, such as physicals, even if the identification doesn't lead to an adverse employment decision. The word "identify" must be deleted. Use existing Section 504 language to permit use of selection criteria but insure that the criteria don't discriminate against individuals solely on the basis of their disability unless the criteria are job-related.

Norice. Section 203 requires notices to be "posted." This is somewhat problematic, for example. for a vision impaired person. The requirement that notice be provided in accessible formats would allow flexibility

to use the best means available.

TITLE IV - PUBLIC ACCOMMODATIONS AND

SERVICES OPERATED BY PRIVATE ENTERPRISES

Public Accommodations. As defined in §401(1)(A)(II), a public accommodation includes "potential places of employment." Since there is no limitation based on employment size in Title IV, the definition would extend almost universal coverage to the requirement of accessibility. As with Title II, the scope should be phasedin consistent with the scope of the Civil Rights Act and the ADA as introduced in the 100th Congress.

Readily Achievable. Section 402(b)(4)(A) & (B) introduces a new and undefined term not found in existing law, **readily achievable." A definition of readily achievable should be added to §401.

Retrofitting Existing Structures. Under §402(b)(5). there is no threshold as to when an existing structure must be retrofined, a process limited only by structural impractability that is prohibitively expensive

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and for which existing tax code provisions (§190) only allow a deduction of $35.000 per year. Further, there is no indication to whom the liability for retrofitting accrues, i... the lessee or lessor, and the timeframe of one year for changes is unrealistic. It is unreasonable to require the retrofit of structures that were originally built to code unless the requirement is limited to instances where renovations of a certain magnitude, ... 50% of building vaule, are contemplated. Section 190 of the Internal Revenue Code should be revised, not only in terms of the dollar maximum but also expanded to include all expenditures associated with accommodating those with disabilities.. Finally, a realistic phase-in period must be established together with placing responsibility for retrofitting on the building owner.

Transportation. The requirement that all new vehicles with capacity in excess of 12 passengers be fully accessible ignores reality and fails to provide for paratransit. In most instances, the situations addressed are services such as hotel to airport limos which can readily accommodate the needs of the disabled through on-demand paratransit. Section 402(b)(7)(B) should be eliminated.

Public Transportation. The requirements of $403 to make all intercity transportation fully accessible are not based on any demonstrated need and are unwarranted. Rather than preordain the demise of this sector of the transportation industry, the Department of Transportation or some other agency of the executive or legislative branch of government should be directed to first determine if there is a need that is not currently being met. Standards. Section 404(c) requires the Architectural and Transportation Barriers Compliance Board to establish minimum guidelines and requirements for accessibility standards. In the spirit of building on experience under Section 504, the standards should not impose greater obligations than those contained in standards issued by the American National Standards Institute (ANSI A117.1) and be consistent with Section 504 requirements at 45 CFR 84.23.

Enforcement. As with the enforcement mechanism under Title II, the remedies available under Title IV, §405. should be limited to those avaiable to other protected classes, i.e., Civil Rights Act of 1964 and Rehabilitation Act of 1973.

Effective Date. As set forth in 1606 of the ADA, the Act would become effective on date of enactment and provide no time for employers and other entities to familiarize themselves with its provisions. The Act should have a delay in the effective date of one year and provide for education and technical assistance programs.

Insurance Underwriting. In its present form, the ADA does not directly address insurance and questions or ambiguity may arise regarding its application to the insurance industry, particularly as it concerns employee benefit plans. Section 601 should be amended to make clear that the intent of Congress is not to disrupt the current nature of insurance underwriting. Specifically, the new subsection would (1) clarify that insurers could continue to sell to and underwrite individuals applying for life/health insurance on an individual basis, and (2) reflect, as does the Age Discrimination in Employment Act, the need for employers to establish and observe the terms of employee benefit plans so long as the plans are not a subterfuge to evade the terms of the ADA.

July 1989

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DISABILITY RIGHTS
WORKING GROUP

THE ADA ENFORCEMENT PROCESS

Issue Paper #2

The enforcement provision in the proposed ADA has been the subject of much criticism because of the manner in which claims of discrimination would be resolved. The focus of the criticism has been the fact that the ADA would incorporate, by reference, the ''procedures and remedies" of Section 1981, a post-civil war act aimed at prohibiting and punishing race discrimination.

Unlike the equal employment opportunity laws passed during the past 25 years. Section 1981 was not specifically designed to deal with issues of employment discrimination. Incorporating the procedures and remedies of that statute into the enforcement section of the ADA would create a law which differs in three significant ways from modern EEO laws.

First, Section 1981 provides for litigation as the initial step in resolving a dispute. This is different from modern EEO laws which generally require a litigant to first proceed through an administrative process in an effort to promote voluntary resolution of the matter, with lawsuit being the avenue of last

resort.

Second, Section 1981 provides for an award of damages which goes well beyond the back pay damages common to employment discrimination cases under modern laws such as Tide VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, national origin, and religion. This potential for windfall damages tends to discourage litigants from accepting reasonable settlement offers, and it encourages lawyers and their clients to take their chance at trial in the hope of winning a million dollar verdict.

Finally, once in court. Section 1981 provides the option for a jury trial, unlike Title VII, which provides for trial before a judge in cases alleging employment discrimination.

THE COURT HOUSE IS THE FIRST STOP

By including section 1981 procedures in the ADA, the drafters provide individuals with a means of circumventing the administrative process which has been critical to the success of Title VII of the Civil Rights Act of 1964, believed by many to be the most effective employment discrimination law on the books. The "procedures" under Section 1981 are simple: A person needs only to walk into the court house and file a lawsuit. This approach is in sharp contrast to Title VII which requires litigants to at least give the administrative process a chance to resolve the dispute before it becomes a lawsuit. The Title VII procedures are built upon the practical notion that the primary intent of an EEO law is the creation of employment opportunities. Thus, under Title VII it is considered preferable to resolve disputes through a prompt, fair conciliation which leads to a job opportunity than to resolve matters through a lawsuit which, years after the incident, provides a windfall monetary verdict as a way of punishing the employer.

THE TRIAL AS A LOTTERY

Recent news reports have highlighted the fact that in certain states plaintiffs are now selling shares to those who wish to "invest" in the lawsuit in the hope of sharing in the plaintiff's verdict or settlement award. The ADA, by including Section 1981 procedures and remedies, would promote a similar "'lottery" or **windfall" anirude with respect to litigation of disability discrimination claims.

The Section 1981 remedies would allow a litigant to win a full range of compensatory damages -- such as an award of money for pain and suffering -- as well as punitive damages. designed solely for the purpose of punishing the employer.

Typically, in awarding such damages, the añorney seeking a large damage award asks the jury to envision the injury the plaintiff has had to endure and to then try to calculate a sum that will adequately compensate

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the individual for that injury. The jury may then be asked to award punitive damages, based upon the defendant's overall net worth. The results can be staggering. In a well-publicized case several years ago in Colorado, a jury returned a $17 million verdict against a large retailer in an age discrimination case. That decision was subsequently overturned on appeal. But, nonetheless, it demonstrates the "sky is the limit" attitude which compensatory and punitive damages can bring to employment discrimination lawsuits.

The simple availablility of such damages, and the mere possibility of such a windfall award, is a significant factor long before the case reaches the trial stage. The potential for a windfall encourages the litigant and his or her attorney to reject reasonable settlement offers in favor of "taking a shot" at the brass ring and winning millions of dollars. This is in contrast to the Title VII approach which focuses on creating employment opportunities and providing back pay for an individual who was the victim of illegal discrimination.

SYMPATHY/PREJUDICE IN THE COURTROOM

Under Section 1981 procedures, the case may be decided, and the damages may be awarded by a jury, rather than a judge. While our society recognizes the value which a jury can bring to the process of deciding lawsuits, it is also recognized that in certain situations the facts before a jury can have an emotional impact so strong that it is likely to interfere with the jury's deliberations and prejudice one of the litigants. Clearly, in the area of disability cases, the potential for such prejudice is high. In this area of the law. plaintiffs obviously will be individuals with disabilities. Is it realistic to think that jurors will be able to decide the case without being affected one way of the other by the fact? The only sensible approach is the approach followed by Title VII. In those cases where the parties are unable to work out their differences through the administrative process and end up in court, such decisions are best left to judges who can bener view the facts without any cloud of sympathy for or prejudice against the litigants.

July 1989