Mr. BARTLETT. Mr. Chairman, I have one additional, essential question, but my time has expired. I would be happy to wait for the second round if the members are waiting or ask it now. It is the chairman's choice.

Chairman OWENS. You may proceed.

Mr. BARTLETT. Mr. Kemp, now, the Senate passed an amendment that said that nothing in this bill can be construed to include homosexuals as a disabled group. That is the subject of some amount of controversy, at least in limited groups.

My question of you is, in your opinion, is there anything in the bill, leaving aside that amendment, if that amendment were not in there, is there anything in the proposed legislation that would include sexual preference in any back door or front door way as a disability, A, and, B, should we, regardless of your answer to the first question, should we include that exception, or that clear statement that sexual preference is not a disability under this bill?

Mr. KEMP. I don't think that-no to the first question, Mr. Bartlett. The second

Mr. BARTLETT. On the record, the answer is, there is nothing in the bill that includes, in your opinion, at all, that includes sexual preference as a disability or a protected class of individuals?

Mr. KEMP. Yes. I don't think there is anything in the bill that includes sexual preference as a disability.

Mr. BARTLETT. Nothing at all, all right.

Mr. KEMP. I think the definition that the doctors have does not include them as being disabled or as behavior that should be considered a disability.

I think that there is this concern, because of the whole AIDS controversy, that a person that is a homosexual might claim that he is perceived as having the AIDS virus, and I think that the amendment that was added in the Senate version of the bill clearly addresses that problem.

Mr. BARTLETT. So, if you were in our shoes, would you keep that amendment in the bill?

Mr. KEMP. Yes, I would.

Mr. BARTLETT. Thank you. Thank you, Mr. Chairman.

Chairman OWENS. Mr. Commissioner, I neglected to congratulate you on your promotion to the position of Chairman designate of the EEOC. Congratulations.

Mr. KEMP. Thank you.

Chairman OWENS. Relating to that, let me ask, will the passage of the ADA bill, in your opinion, require the use of additional resources for the EEOC to enforce its provisions?

Mr. KEMP. It certainly will. We were asked to estimate the increased cost and we figured it would be about $27 million dollars. Chairman OWENS. The increased cost would be $27 million?

Mr. KEMP. Million dollars, yes, which does not come close to the $169 billion dollars it cost to exclude disabled people. I think that we need it quite quickly, or at least the start of that money, because there is going to be a lot to be done between the time of the passage of the law and the time that we get jurisdiction.

On every other act that has been passed, we always get behind the eight ball and we are always in a position of trying to catch up.

So, with that experience in mind, I think that Congress should be willing to increase our budget right now.

Yesterday they cut it from a $189 million dollars down to $183 million overnight, which I think is a great shame.

Chairman OWENS. You have a blueprint to make your case if the bill is passed?

Mr. KEMP. Oh, yes. We have used the Federal sector, and drew from the Federal sector and made, I think, very honest estimates of the increased cost. Twenty-seven million dollars just wasn't pulled out of the sky.

Chairman OWENS. Where did you get the $169 billion from? I have heard a variety of figures given as the amount spent annually on persons with disabilities. Is this an official figure that has some backup?

Mr. KEMP. Oh, yes, Ed Berkowitz wrote a book on disability policy and his estimate of Federal, state, and private payments to disabled people to keep them out of the work force was $169 billion. In my prepared

Chairman OWENS. That is a combination of Federal, state, and private.

Mr. KEMP. Private. In my statement, which I hope has become part of the record, I use the Department of Labor estimate that it roughly costs society $300 billion a year to exclude disabled people. Chairman OWENS. I know that we, for practical reasons, are talking about moving the Senate version of the bill. Would you comment on the enforcement provisions, and maybe cease to be practical for a little while and talk about what they ought to be, or what amendments might be made in the future?

Mr. KEMP. The disability community did back down on the remedies that they wanted, and I think there are fewer remedies than the original bill had, the one that was introduced on May 10th.

I think that we have got to see what happens in the next few years. If truly we are getting disabled people into the work force, if discrimination lessens in our society, maybe this is the scheme that works.

Again, you know, this bill is more a statement of policy to the whole world. It is saying, "We are not going to exclude disabled people anymore. We are not going to consider them second-class citizens. We are going to bring them into society."

It is not something that is going to happen overnight. It is going to take time. I know in my argument for this bill I said it is like changing the course of the Queen Elizabeth going across the ocean, and that going across the ocean now means going towards segregation of disabled people, keeping us in sheltered workshops, special schools, keeping us out of society.

What this bill does is turn us around toward independence, selfsufficiency, true integration, and you don't do that overnight. So, let's just wait and see what happens on the enforcement part.

Chairman OWENS. In the opening remarks of your testimony you made a very personal and moving statement. Let me ask you this. In your view, has there been any attitudinal shift on the part of the general public since the passage of the Education of the Handicapped Act, of the Rehabilitation Act of 1973; that is, a shift toward viewing people with disabilities for what they can do and

not just for what they cannot do, or do you think we penetrated the public conscience?

Mr. KEMP. I think the younger generation has. I remember little kids would rush up to me and ask me why I was in the wheelchair and things like that and the parents would be very embarrassed and say, "You can't ask questions like that."

The people who assume that I am not working are older people, people over 40. People who assume that any opinion I have is clouded because I am in a wheelchair are people over 40. Younger people, I think, accept what I say, think that I do have a job and can work. So it is a very generational attitude.

Chairman OWENS. Thank you very much. Mr. Jontz.

Mr. JONTZ. Thank you, Mr. Chairman. Commissioner, I am sorry I was not present for your opening statement, but I have had a chance to read it and appreciate your testimony.

I would like to ask you two or three questions that relate to some of the concerns that have been raised by various parties, and may be raised later this morning, and get your response, based on your experience with the EEOC.

Your own personal experience, I think, puts you in a unique position to be able to respond to some of these questions, and I would like to raise them and hear your comments. One of the concerns that many have expressed about this legislation is the use of various phrases which appear in different statutes and also appear in this statute, such as "undue burden," "readily available," "reasonable accommodation," "readily achievable," "essential functions," and so forth.

What response can you make to the criticism that those words are indefinite in their meaning? What response can you make to the allegation that these sort of words just make work for attorneys and courts? As one who has experience in this area, what assurance or consolation can you give to the business owner, or the citizen, who fears the indefinite nature of words of this sort?

Mr. KEMP. Well, there is a history for all the words except for "readily achievable." We have had the Rehabilitation Act of 1973 for the last 16 years. "Undue hardship" is used in that, "reasonable accommodations" is used in that. Your other terms are also used there.

I think the one thing that the Act does is it asks employers to look at the disabled person as an individual, look at his strengths and his weaknesses, and look at the job that the employer wants filled and see if that person can fill the job.

I think that it is a process statute. I can be qualified for a job with one company and not qualified for a job with another company, even though its the same job. Under Title VII, that wouldn't occur. If I were qualified for one job, generally I would be qualified for the same job in different corporations. I wouldn't not get the job because the corporation was a new corporation or was in worse financial shape than another one.

So, it is basically a process that this statute comes down to. It says that the employer looks at the individual, looks at his disability, determines whether the disabled person can do that job with or without an accommodation.

If it was with an accommodation, will the accommodation-is one available? If there is one available, is it a hardship on the employer? So, this talk about it being indefinite, I think, is thinking of group approaches to things.

When you talk about the individual approach, the terms aren't indefinite. It is a revolutionary statute. I mean, it is telling people that you have got to go and look at the individual, stop looking at the group, stop having stereotypes about the groups.

Mr. JONTZ. I appreciate that answer. Let me follow up with another set of concerns that I have heard from the business community. Perhaps you have already answered the question in your first answer, but I think a lot of business people will want to know what they specifically have to do to avoid injunctions or fines or what have you. They would like to know, "Will we have to put in this sort of a ramp, or this sort of a door, or what sort of training has to be implemented?"

I guess they look at the breadth of the possible things that they could have to do, and it just seems so immense. Employers would have less fear if they knew specifically that they have to do a, b, c and d, in order to satisfy the conditions of the law. Many people very honestly and sincerely want to satisfy the conditions of the law.

Perhaps you have already answered the question by saying it really is a process that the employer has to go through, but would you respond to the concerns of the employer who says, "I want to meet the requirements of the law, but I just don't know exactly what I have to do?"

Mr. KEMP. I think this is one of the revolutionary aspects of this bill. There are no really a, b, c, d, e answers that a corporation can do. I think what a corporation has to do is to start thinking of the individual and not the group, to really make the whole employment process meaningful to both himself and the individual that he is hiring.

As a matter of fact, I think that what we do in the disability area should be done across the board. Corporations that have a policy right now of taking an individual approach to able-bodied people and have a very structured process of interviewing and determining whether to hire somebody, I think have good work records, have good records with the EEOC.

Those that take the group approach, I think, have bad employer/ employee relationships. As a matter of fact, this law, if anything, I think will help corporations to make that change from bad relationships with their employees to good relationships with their employees. It probably would save them a great deal of money.

Mr. JONTZ. So, your advice to the businesses would be, rather than worry about all sorts of possibilities, look at the individual, look at your own specific situation, and, in fact, the requirements of the law will not be burdensome if you look at the individuals. Is that your response to those businesses?

Mr. KEMP. Yes, and you have to do away with your stereotypes. A person in a wheelchair just has a mobility impairment. It doesn't mean that he can't hear, can't see, can't reason.

A person that is mentally retarded can see and hear and often doesn't have a mobility impairment. Just look at the individual,

and don't come to the interview with stereotypes. That is my best advice.

Mr. JONTZ. It would be your judgment, if a business takes that approach, it shouldn't make any difference whether they are a small business in a rural community or a bigger business in a large city. It makes no difference if they look at the individual and look at the process.

The smaller business shouldn't feel like they are unreasonably burdened by the requirements of this law.

Mr. KEMP. Yes. Also, we have got to take in the demographics, that we are going to have an acute labor shortage by the end of this century, the early part of the next century, and the small business is the one that is creating the jobs in our economy today.

If they don't start hiring disabled people, they are going to have to go either raid other companies, use bribes to get them to come work for them, or import foreign labor. I think that this country, the real answer to it is to start to hire disabled people.

The last time we were really hired in numbers was during the Second World War, when 12 million people were fighting, and we were needed, but as soon as the war ended, we were out of a job.

Mr. JONTZ. Just one last question, with the indulgence of the chair. Does ADA make a distinction between intentional and unintentional action by the employer, or does it make any difference? How would you respond to that question?

Mr. KEMP. There was an amendment, I think, in the Senate that said that if there was a good faith effort by the employer, that they wouldn't be penalized. I have yet to-though I was down in the anteroom last Thursday from 4:00 to 10:30, I am probably the last person in the world to ask what amendments were passed and not passed.

It was a very confusing seven hours, but I think there was an amendment that would differentiate between a good faith effort and a non-good faith effort at least.

Mr. JONTZ. What would be your response to whether that is desirable or not, based on your experience with EEOC and some of the problems relating to this whole area?

Mr. KEMP. I think that we have to realize that it is a process, that the first determination is whether the person is a handicapped person. Then you make a determination of whether he is a qualified handicapped person.

To do this you look at his limitations and look at the job and see if he can do the job with or without an accommodation. Then you determine if the accommodation can be given or is it available, and if it is available, is it an undue burden.

So, it is a process, and I don't think that corporations which can show that they go through that process will be held liable for anything. But if they think that a person in a wheelchair is mentally retarded and has one foot in the grave and another on a banana peel and don't hire him for that reason, and don't look at the individual, then I think they should be held liable.

Mr. JONTZ. I thank you for your comments.

Chairman OWENS. Did Smith and Ballenger walk in at the same time? I think so. Mr. Ballenger?