September 11, 1989

The Honorable Major R. Owens
Chairperson

Subcommittee on Select Education
Committee on Education and Labor
U.S. House of Representatives
Washington, D.C. 20515

Dear Representative Owens:

Thank you for giving the Leadership Conference on
Civil Rights the opportunity to testify on behalf
of H.R. 2273, the Americans with Disabilities Act
(ADA). As you requested, we are attaching a
response to the Working Paper prepared by the
Disability Rights Working Group on the ADA,
entered into the record during the hearing.

In its Working Paper, the Disability Rights
Working Group (DRWG) presented two threshold
concerns, the resolution of which it identified as
essential to any further consideration of the
bill, four generic concerns to the ADA overall,
and twenty-two concerns specific to different
titles within the ADA. Each of those concerns are
addressed below. In cases in which the compromise
ADA bill, endorsed by President Bush and passed by
the Senate last week, directly addressed the
concern raised, that fact has been noted in the
response. We believe you will find that all
concerns have been adequately met.

Title VII of the Civil Rights Act of 1964 and section 1981 of the Civil Rights Act of 1866, included both injunctive relief and jury trials and monetary damages. The ADA simply incorporated similar relief for people with disabilities.

Because of the concerns raised in this area, however, the compromise bill passed by the Senate and endorsed by President Bush (henceforth "the compromise bill") directly addressed this issue. In the compromise bill, the ADA incorporates the remedies of Title VII for purposes of the employment section of the bill. This change meets the concern raised by the business groups.

2. DRWG concern: The ADA provides relief to individuals who believe they are "about to be" discriminated against. These types of "speculative complaints" are not allowed in other civil rights employment laws and should be eliminated from the ADA.

Response: This concern reflects a misunderstanding of the "about to be discriminated against" provision within the ADA. This provision never allowed plaintiffs to present completely "speculative complaints" for which there was no basis. To the contrary, this provision was derived from case law under Title VII, which incorporates the basic concept of anticipatory discrimination and which establishes specific, strict standards that plaintiffs must meet to prove such discrimination.

The

In any event, in order to address this clear misunderstanding, the compromise bill deleted the term "about to be discriminated against" in the employment section. accompanying Senate Committee Report explained that, because the case law under Title VII already provided protection against the type of discrimination with which the ADA was concerned (without including any specific statutory provision to that effect), there was no need to include such a specific provision in the employment section. This change meets the concern of the business community.

GENERIC ISSUES

1. DRWG concern: A significant number of employers are already subject to section 503 and 504 of the Rehabilitation Act of 1973. The ADA would impose additional, conflicting obligations on such employers.

Response: This is a misplaced concern. In the employment area, the ADA imposes similar requirements to those imposed under section 504, not conflicting requirements. It is section 503, which governs federal contractors, which imposes an additional requirement--that of affirmative action, which is not a component of the ADA. Such employers can easily comply with the basic ADA requirements, and then continue to comply with the additional

affirmative action requirements of section 503, when those apply.

2. DRWG concern: The "lack of distinction between intentional and unintentional discrimination" in the ADA will penalize employers for "inadvertent errors" when they try to abide by the new obligations of the ADA. The ADA should cover only "wilful failure" to act.

Response: This concern reflects a misunderstanding of the ADA, and of Section 504 on which it is modeled. Section 504 does not make any distinction between "intentional and unintentional discrimination." Indeed, one of the Supreme Court.cases dealing with Section 504 (Alexander v. Choate, 469 U.S. 287 (1985)) expressly noted that discrimination against people with disabilities often did not derive from a "wilful" or "malicious" desire to discriminate, but rather was derived from "thoughtlessness" and "benign neglect." The Court noted that, in order to ensure that the protections of Section 504 did not "ring hollow," Congress intended to cover more than just intentional discrimination. Limiting the ADA to cases in which there is a "wilful failure" to act would remove basic substantive protections that have long been in place under Section 504.

3.

DRWG concern: There is not sufficient guidance in the ADA regarding the scope and limits of "reasonable accommodation" and "undue burden." The relevant Section 504 regulations should be codified in the law.

Response: The ADA draws directly on the language and standards of Section 504, which offer guidance on the scope and limits of "reasonable accommodation" and "undue hardship" or "undue burden." For example, contrary to the DRWG's assertion in its Working Paper, the provision of reasonable accommodation in the ADA is expressly limited to those accommodations that would not impose an undue hardship.

In light of concerns raised by the business community, however, the compromise bill expressly codifies Section 504 regulations defining "undue hardship," in order to give yet further guidance to covered entities.

4.

DRWG concern: There are not sufficient incentives in the ADA to help entities comply with the law. The tax deduction of $35,000/year permitted under the Internal Revenue Code for removal of architectural barriers should be expanded.

Response: The issue of providing financial assistance to businesses who make changes for physical access is, and should be, separate from establishing in the law the basic civil rights for people with disabilities. For example, Section 504 of the Rehabilitation Act did not provide extra financial assistance when it established its requirements. The $35,000/year deduction

currently in the tax code is an excellent start for addressing the separate issue of providing assistance to business owners. The Leadership Conference would be happy to work with the business community in exploring other incentives that could be incorporated in future legislation.

The Disability Rights Working Group also listed a number of specific concerns within each title of the ADA. Almost all of these issues were addressed in the compromise bill.

TITLE I-GENERAL PROHIBITIONS

1. Drug/Alcohol Abuse: The compromise bill provides that individuals who are currently using illegal drugs are excluded from the definition of an individual with a "disability" under the ADA. Thus, the ADA presents no impediment to the efforts of employers to establish "zero-tolerance" workplaces. The bill also provides that employers may prohibit the use of alcohol in the workplace, may require that employees not be under the influence of alcohol at the workplace, and may hold individuals who abuse alcohol to the same performance standards as other employees.

2. Overlap Between Titles I and II: The compromise bill deletes Title I and incorporates the relevant provisions of Title I into the remaining titles. This removes any alleged concerns regarding "new, broad and ambiguous" terms that have "no historical interpretation," and creates self-contained titles that are clear and consistent.

3.

Discrimination by Assistance:

The compromise bill deletes the provision creating liability for assistance to entities that discriminate. The bill adopts the clearer provision of the Section 504 regulations which prohibit methods of administration that "perpetuate the discrimination of others who are subject to common administrative control."

4.

Discrimination Based on Association: The compromise bill clarifies that the prohibition of discrimination against those who associate with people with disabilities is limited to situations where the covered entity knows about both the disability and the association. This is identical to the provision that was included last year in the Fair Housing Amendments Act of 1988.

5. Discrimination in Benefits:

The compromise bill includes a

specific provision stating that nothing in the ADA prohibits or

restricts insurers and employers from offering health plans that are based on traditional underwriting risks and classifying risks. Thus, insurance companies and employers can continue to offer plans that include pre-existing condition clauses and specified medical coverage.

6. Good Faith Efforts: The two allegedly "conflicting" requirements of Title I described by the DRWG have been deleted in the employment section of the compromise bill.

7. Consistency with Existing Law: As requested by the DRWG, the Senate Committee Report explicitly notes that the ADA adopts the disparate impact standard of Section 504, as enunciated by the Supreme Court in Alexander v. Choate, 469 U.S. 287 (1985). See Senate Committee Report, p. 30.

8. Defenses: Under the compromise bill, the defenses section has been deleted from Title I (together with the rest of the title). The defense provision in the employment section has been modified to clarify that the defense listed does not preclude other traditional, legitimate defenses (for example, the defense that a particular job does not exist).

TITLE II--EMPLOYMENT

The

1. Coverage: The compromise bill adopts a phase-in period as requested by the Administration and the business community. employment section of the bill does not become effective until 2 years after enactment. Employers with 25 or more employers are covered at that time; there is an additional phase-in period of two more years before employers with 15 or more employees are covered.

2. Discrimination: The Senate Committee Report clarifies that the ADA is simply following the experience of Section 504 regulations and case law in removing the word "solely" from the legislation. See Senate Committee Report, p. 44.

3. Job Applications: The term "job application procedures" covers the same procedures that are currently covered under Section 504. This term, as well as others in this provision, are derived directly from Title VII.

4. Selection Criteria: The compromise bill deletes use of the word "identify" and directly incorporates provisions from existing Section 504 regulations.

5. Notice: The compromise bill provides that notice be posted