Chairman OWENS. Without objection, your addendum would be inserted in the record along with your statement. Mr. WHAREN. Thank you. Chairman OWENS. Ms. Arlene Mayerson, directing attorney for Disability Rights Education and Defense Fund. Ms. MAYERSON. Mr. Chairman and members of the committee. My name is Arlene Mayerson and I am the directing attorney of the Disability Rights, Education and Defense Fund. DREFF is a national disability rights organization which pursues its mission through education, legislative and law reform efforts. The ADA represents a culmination of years of work and vision by members of the disability community, many of whom are here today. I am proud and honored to be here today to testify on the most important piece of disability, civil rights legislation of our time. I have been asked to testify on the employment sections of the bill. In my written testimony, I have cited the numerous studies which document that employment opportunities for persons with disabilities are severely impeded by misconceptions and generalizations about disabilities, unfounded fears about increased cost and decreased productivity and outright prejudice towards disabled people. People with disabilities face discrimination in employment in a variety of ways. Many are excluded from the outset by medical requirements that screen out all people with specific disabilities or by inflated or other job requirements that bear no relationship to the successful performance of the job. Disabled people who are not completely excluded at the outset are often channeled into disabilities stereotyped, dead-ended jobs or denied promotion opportunities. These discriminatory practices affect persons with current disabilities, records of disabilities and people who are perceived as being disabled. We have examples of all these types of cases in our caseload at DREFF. I wanted to take a moment to describe them to you, but I think in the interest of time, I won't. Believe me, the stories of discrimination are endless. People with disabilities are everyday being denied job opportunities because of stereotypes, fears, and overly restrictive job requirements. I could not help but notice that these stereotypes seem to be contained in Mr. Rasmussen's description of his own employment practices. He stated that hearing is necessary for safety in the publishing industry because of the use of warning bells and buzzers. It is ironic that historically many of the only jobs available to deaf people have been in the printing industry. Moreover, safety concerns would likely be easily accommodated by the use of visual alerts. The ADA employment provisions adopt two fundamental principles derived from Section 504 of the 1973 Rehabilitation Act. The first, that selection procedures evaluate the ability of an individual to perform the job and are not based on stereotypes in generalizations about the disability; and two, that persons with disabilities who are able to perform the essential functions of the job with or without reasonable accommodation are not denied employment opportunities. Each provision of the employment title operates to support these two fundamental principles. In the committee's first hearing on the ADA, the business community circulated two working papers outlining their concerns with the ADA. The primary concerns in the employment area address the confusion created by Title I and Title II provisions which seem to apply differently to the same situation. The inclusion of 1981 remedies and employment, the request for a definition of undue burden, the clarification that the ADA did not conflict with drug-free work place policies, and the removal of the word "identify" from the section barring discriminatory selection criteria, every one of these concerns was dealt with in a Senate compromise. The disability community fully supported the 1988 ADA introduced by Senator Weicker and Congressman Coelho, which was stronger in protection than the 1989 ADA before us today. The disability community strongly supported the provisions of S9-33 as reported out of committee and H.R. 2273 as it is today. In the spirit of political compromise, we are willing to support the Senate compromise, but we are not willing to use it as a starting point to whittle down even further. The business community has been more than reasonably accommodated. There is no more compromising to do and still maintain fundamental civil rights protection for persons with disabilities. Let me specifically address the concerns set forth the NFIB's testimony today which I did have the opportunity to read before the hearing. As you will see, some of the concerns stem simply from misunderstandings of the bill's provision and the rest, I am afraid, from a basic unwillingness to be subject to any disability, civil rights legislation. Mr. Rasmussen asked, "How can a business owner make physical changes to the work place even before a specific disabled person begins work?" In employment, the ADA like Section 504 requires the accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability. Reasonable accommodation may include making existing facilities used by the disabled employee accessible. This is done on an individual basis according to the needs of the employee. This is true of all accommodations. Hence, the question posed on page four of the NFIB testimony as to which auxiliary aids are required for deaf or blind employees would again be subject to the needs of the individual and subject to the undue burden defense. I would like to clarify the question asked by Mr. Ballenger about his plant to Mr. Kemp. I don't know if I caught exactly what the plant is, but basically, the procedure in employment is if someone in a wheelchair wants to apply to your firm, the ADA, as 504 requires that the applicant be reasonably accommodated which might mean that you make an alternative site to interview the applicant and to determine if that applicant is otherwise qualified for the job that is open in your plant. If the applicant is otherwise qualified for the job that you have available, the question is whether there are barriers in the work site for that qualified disabled person. Again, the requirement is of reasonable accommodation. If the work site can be made accessible without causing an undue burden to your business, then it must be made accessible. So, again, the question is, the person has to have the right to be judged on the merits by arranging an alternative place for an interview and whatever other procedures you have to hire workers and then the worker must be reasonably accommodated if it does not cause an undue burden on your business. The NFIB testimony then lists several items which he claims are "general, difficult and indefinite." All but one of those terms has been in use under the Section 504 regulations for over a decade and have now produce the catastrophies suggested by NFIB. The one new term in the ADA is readily achievable which is defined in the Senate substitute at the request of the business community as "easily accomplishable and able to be carried out without much difficulty or expense," a definition which clearly reflects the concerns of the businesses. NFIB proceeds to object to what it characterizes as the punitive approach. This is particularly hard to understand in that the business community fought and won the removable of punitive damages in the Senate compromise. They were successful, I suppose at least partially, by their claim that punitive damages encouraged frivolous lawsuits. Now, the NFIB is still complaining about frivolous lawsuits. There is absolutely no basis for this. People with disabilities will not be made whole for the injuries they suffer, because of the discrimination under the Senate compromise. We can only hope that lawyers will be willing to take meritorious cases with the possibility of no damages. It is trying to still be hearing complaints of frivolous lawsuits from the business community after this major compromise was made. Finally, the NFIB asks, "Why must small firms in all kinds of social and geographical areas comply with the same requirements as the large ones and those located in large metro areas?" I want to emphasize small employers "do not" have the same obligations as large ones under the ADA. Employers of under 15 are not even covered by the Employment Provisions of the ADA. Those that are covered, over 15, have different requirements to provide reasonable accommodation in auxiliary aids, depending on the resources they have available under the undue burden defense. The Senate compromise even contains a provision for small businesses in the area of new construction, exempting elevators for two floor buildings and businesses under 3,000 square feet per floor. The ADA fully considers and accommodates the needs of small business. Not all people with disabilities live in large metro areas and those living in towns and rural areas want to work and participate in their communities as much as anyone else. I should add I didn't have a chance to read the comments of the Association of Building and Contractors before the hearing. I do think that the Senate compromise does address all the concerns that were raised by this group as well, and I am also aware as stated by Mr. Wharen that the Senate incorporated legislative history particularly on the work site situation. The time has come for action on the ADA. The Senate compromise represents many 100s of hours of input from concerned parties, including the business community. It has been endorsed by the Bush Administration only because these concerns were addressed. I was extremely encouraged by Mr. Bartlett's comments today that the Senate compromise also has in large part met many of the concerns that he expressed at the first hearing and by his additional comment that any changes should not be of the sort that would in any way jeopardize the historic coalition that has been created for this bill. We urge immediate passage of the ADA, a bill that is fair and just and gravely needed to put an end to loss potential and to open the doors of our country to everyone. Thank you. [The prepared statement of Arlene Mayerson follows:] |