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mobility or grip impairments; and for people who are subject to seizures. The list goes on and on.

I would like to make three points. First there is an immense cost to society of excluding disabled people. Further, medical science is not going to cure disability. Medical science has yet to cure the lasting effects of most disabling conditions. In fact, when medicine is properly practiced, many more lives of critically injured people are saved, resulting in more people with disabling conditions.

And lastly, we as a society have to acknowledge the fact that the disabled are not just a small, identifiable, and vocal group. Any of us could become disabled. We have to acknowledge that 51.9% of

us can become pregnant; 100% of us have been children; and many of us will be elderly.

We have to stop thinking of disability as a charity or a soft news issue. It is an issue for all ages, for all of us.

Chairman OWENS. I would say that person at the White House asked the right question. He understood that it was a bright idea. Mr. KEMP. No, he didn't approve of it.

Chairman OWENS. I yield to Mr. Bartlett for an opening statement and for questions.

Mr. BARTLETT. Thank you, Mr. Chairman. I do have a couple of comments and then it will lead into question, Mr. Kemp of you. First, I want to say to Commissioner Kemp how much I admire his work and his leadership on this legislation.

The legislation has been a long time in coming. I have shared with others in the past that I reached the conclusion, a tortuous conclusion from one who has never been a fan of new Federal laws, but a conclusion, nevertheless, about a year ago that there is today and has been for some time a need to extend civil rights protections to persons with disabilities.

I am glad to see that it looks like we are going to be able to achieve that in this session of Congress. Having said that, my second conclusion was that the version of the ADA as introduced in the House and in last year's session was replete with overstatements and overdone and did a good deal more than extend the civil rights protections to persons with disabilities.

The good news from that is that the President and the Senate concluded some non-political but very intense and substantive discussions and negotiations on what should be in a bill that extends civil rights protections to persons with disabilities. In essence, and this is oversimplifying it, but in essence, they concluded that for purposes of employment, the Congress would extend the 504 protections to everyone in the private sector after a certain threshold for small business and for purposes of public accommodations we would extend the Civil Rights Act of 1964 protections with obvious requirements of modifications based on the uniqueness of disabilities and undue hardship and reasonable accommodations and such that are well-established in law.

I have just been told that I couldn't be heard in the back, so I only know a little bit of sign, so I probably will speak louder then. The Senate-passed bill was, in fact, the result of rather intense negotiations by all parties. It is not a watered-down version, in my opinion. It is a version that does accomplish the goal which is extending those civil rights protections.

The Senate-passed bill, in my judgment, gives the Congress and the United States the opportunity to pass this law, to pass a bill into law, and make it stick, and make it work. Thus, I would have several admonitions.

First, I think the House bill, as introduced, has been helpful in moving the process along. At this point, my conclusion is that we should then begin to deal with the Senate-passed-bill as the mark that we then work from.

I have never been one, as a legislator, to believe that any bill is perfect and, therefore, I think everyone on each of the committees should have the opportunity to amend or alter the bill as it comes through the committee obviously with the recognition that any alteration, major alteration, has to be careful to make sure that it doesn't drive one of the other members of the coalition away from the bill.

So, the alterations I would be thinking of would be areas in which all sides could generally agree that there was a semicolon in the wrong place or that we used a set of words that were different than what we intended.

For example, the Senate passed a bill, that as I recall opposes the direct threat or safety to the public or consumers in the case of an exception. One might want to convert that to significant risk language as in the Arline decision, and I am not suggesting when I say we do that, I would just suggest that would be the nature of the types of alterations that we would make.

I do have a couple of specifics and let me ask them in a form of a question. That is really the first. Mr. Kemp, in your knowing everything you know about Congress and the substance of all of the legislation, would you recommend that we use the Senate-passed bill as a mark to proceed from or would you recommend that we use the House bill, the introduced bill, as a mark or something in between?

Mr. KEMP. I would recommend the Senate bill. ADA has gone through a lot of different stages. The first ADA was introduced in April of 1988. It was quite different than the bill that was introduced on May 10th of this year and the bill that came out of the negotiations between the Senate and the White House is quite different from the bill that was introduced in May.

I think that it does represent the hard work of a group of people in the Senate and the hard work of a group in the White House. I think this is the first bill concerning disabled people that has been taken seriously by Congress and by the White House.

The President set up a working group in March of this year to include most of the departments and agencies in the Federal Government. You had to be an assistant secretary or above to attend.

This group learned about the ADA, learned about mainstreaming disabled people in society and learned an awful lot. I think that they contributed to the compromise that came out on August 2nd. So, I think I guess I would use the Senate bill as the mark.

Mr. BARTLETT. Are you happy with the Senate bill in substance as well as in procedure?

Mr. KEMP. Yes, I think so. I don't want to be in a position of saying, "Gosh, the House should just automatically okay the bill," because I do think that the House has a duty to look at it and consider it and learn about it. I do think it could do it in a very quick time.

I remember the President of Turkey, who is a dictator at Attaturk. He wanted to westernize the Turkish language and he brought up some of the best linguists in the world to Istanbul and some said, well, it would take thirty years and some people said it would take fifty years and he said he didn't want to wait that long. He put everyone in a room and said, "You can't come out until you come up with a western language," and they did it in two weeks. I think that the House could really look at this bill, really consider it, really understand disability, and have a decision by the end of this month.

Mr. BARTLETT. So, it is your conclusion that we can proceed faster, significantly faster, if we proceed from the Senate

Mr. KEMP. Yes, I think so.

Mr. BARTLETT. Second question, the Senate did not deal with the issue of a pre-emption, that is to say, the bill was silent as is the House on the possibility of a defendant being sued under the ADA, the Rehabilitation Act state statutes, and other legislation.

Now, conceptually, do you think that we should have some sort of a preemption section in the bill so that if you are sued under the ADA, if it is the same set of facts, then that is going to be the basis of all litigation on that subject?

Mr. KEMP. I think that the courts have handled questions like this in the past and where there is inconsistency between the ADA and state law, the ADA would be the law.

There are some states that have done a whole lot better job of mainstreaming disabled people than other states and probably their laws are a lot better than the ADA.

I don't think that we should preclude those states that want to have a higher standard.

Mr. BARTLETT. So, perhaps, not preempt state statutes, but other Federal statutes. Let me ask you specifically. Currently the bill in both versions says that ADA does not preempt 504, so that a Federal contractor would be required to comply with both.

Now, since they are both virtually identical, if not identical-the intent is that they be identical or on the same track-do you think that we should have ADA preempt a complaint or a suit under ADA, preempt a future complaint or suit under 504 or 503, based on the same set of circumstances, obviously?

Mr. KEMP. I think that the ADA is probably going to be the dominant bill in this area. I think that judges and lawyers, just like all of us, are lazy and are going to use the ADA as their model.

I think in a few years that we can speak about 504 still being in existence, still being a way to go, but most people probably would be proceeding under the Americans with Disabilities Act.

I think to clarify your first question, Steve, I don't think thatwhere it is inconsistent, why don't we follow the pattern that is done under Title VII of the Civil Rights Act?

If it is inconsistent, Title VII is in control. If the states have a better system, we allow that to be the dominant law.

Mr. BARTLETT. So, you would follow the Title VII preemption approach?

Mr. KEMP. Yes.

Mr. BARTLETT. All right, that is very helpful. Thank you.

The second question is one that is a new question, so I phrase it with the understanding that you may or may not have thought about it because it is one that I just uncovered or discovered yesterday, and, again, it is a relatively modest question on the Senatepassed bill.

The Senate-passed bill states as undue hardship-essentially sets the test of undue hardship for accommodation, for reasonable accommodation-sets the test of undue hardship on a per employer basis, that is, the size of the employer.

The Parental Leave Act and the Plant Closings Act-by the Parental Leave bill, proposal and Plant Closings bill-by contrast set the meaning of undue hardship on a per site basis. What that means, as I understand it, is that if a restaurant in a chain of a 1,000 restaurants, that individual restaurant could and should be

required to make accommodations, so long as it didn't propose an undue hardship-so far, so good.

An undue hardship might be defined for an individual restaurant at $2,000 or $2,500 or $10,000 or some dollar amount, but an individual restaurant, if you view undue hardship as its impact on the parent company, then one could at least contemplate a million dollar reasonable accommodation at one restaurant because it is a large company even though all the million dollars would only be spent at one site.

Would you think it would productive to explore the site specific definition of undue hardship?

Mr. KEMP. No, I don't think so. I think the Plant Closing Bill is really talking about a particular plant that is closing, a site, so I can see the site approach there. The ADA is talking about mainstreaming disabled people.

If only the one restaurant site is required to make those accommodations, it would limit a disabled person who might be very successful as a manager and would be promoted to being district manager, but he could not get that promotion because the other parts of the company were still inaccessible to him.

Mr. BARTLETT. I understand your answer. As I said, this is a new topic. My question may have bypassed your answer or maybe not. Let me try to rephrase it.

The question is, how do you define the level of expenditures on a company that would be regarded as an undue hardship? You can't define it in dollar amount because it depends on how big the revenue source is for that company. That is to say, building a ramp for an individual company is clearly not an undue hardship.

Building into the wall a breathing machine may well be if it is just simply one employment site. So, the question is, should you measure the size of expenditures based on the size of the employment site or based on the total revenues of the parent company? Mr. KEMP. I think I understand your question, and I have always felt that until you take the economics out of employment decisions, the more severely disabled in our society won't get jobs.

Now, the Europeans passed their integration laws during the first World War in 1917. There were two basic approaches. The German approach placed a quota on each corporation.

The British approach gave the company a tax credit for any accommodation that was used. My feeling is that in a couple of years, Congress will pass a law giving a tax credit to corporations for their reasonable accommodations, so we really won't have to answer this question.

If the accommodation is too expensive for a corporation, if the corporation is anti-disability, they are going to find a way to say. that this is not a qualified disabled person.

Mr. BARTLETT. So you would expand it as much as possible then, as far as

Mr. KEMP. Yes, right now, and I think that the tax credit is needed. People talk about the cost of this bill, but the one thing that we keep forgetting is the cost of excluding disabled people from society runs about $169 billion a year.

We can spend an awful lot of money before we even come close to that $169 billion.