been made on you to date that makes you believe that you will experience a great hardship if this bill is passed?

Mr. RASMUSSEN. Well, Mr. Chairman, I have had very limited contact with the problem of the handicapped person except in my personal reference that I made earlier in my presentation. Chairman OWENS. You had very limited contact?

Mr. RASMUSSEN. Pardon?

Chairman OWENS. I said you have had very limited contact?
Mr. RASMUSSEN. Very limited-

Chairman OWENS. The company has had limited contact?

Mr. RASMUSSEN. I do recall that at one newspaper I worked at we hired a reporter/photographer who was spastic and who had one arm immobilized, and yet, he was probably one of the best reporters because he had the uncanny ability to handle a speed graphic camera. If you folks remember back to the speed graphic, you really needed two hands for that, but he managed it quite well.

In our particular locality, we have had no person apply with any kind of handicap, I will have to admit. On the other hand, our newspaper association has a clipping service in downtown Minneapolis that they run for all of the individuals in the state and corporations who want clippings from the various newspapers of stories about them.

Our clipping service has tried directly to hire handicapped people, wheelchair-bound people to come in and work as newspaper readers and clippers and has been unable to find anyone to even apply. So I am not sure what our problems are or what they might be down the line, but the fact that this legislation, to our interpretation, indicates that we have to be prepared for anyone who would apply is our concern

Chairman OWENS. Your fear is not based on any experience?
Mr. RASMUSSEN. No.

Chairman OWENS. Your fear is based on your perception that the legislation will put you in a position where you must respond

to

Mr. RASMUSSEN. Well, it tells me that I have to have my building ready, for example, for any of these people before I know that any will apply. I don't mind at all making an accommodation upon hiring someone, but I think that it is a very unreal situation for a small business to have a building retrofitted or ready for anyone who comes down the line.

Chairman OWENS. Mr. Donovan, you have had experience. You have a program. You hire large numbers of people. Do you see the present legislation placing new demands on you that would be unreasonable so that your present program would become more costly?

Dr. DONOVAN. My view of it, and I have to clarify that clearly I am not a lawyer, and so I am not necessarily expert at analyzing legislation, but our experience has been, as I stated earlier, that the key to being successful in the whole endeavor is to develop a setting where you sit down and you work through the practicalities of an issue with all of the parties involved and you deal with the issues as they arise.

I guess some of the discussion that has occurred here and that I've had occur elsewhere concerns me. I have a son who loves to

play the "what if" game, and I constantly have to counsel him on the fact that that is not a realistic way to view the world.

You can develop "what if" scenarios that would essentially paralyze any action that you wanted to take. I think what is important is that you leave yourself open to sitting down and working with an individual situation, and our experience has been that, generally speaking, the great majority of situations can be solved very simply and very inexpensively, and that there is not a critical problem that accrues to us as a result.

I think the key is that what we need is a bill that leads towards the mutual development of practical solutions, as opposed to prescriptive solutions that try to solve all the problems and imagine all the problems from the get go and react to them before they even need to be reacted to.

So, Marriott's experience has been that, in fact, most of the problems aren't nearly as complicated when you actually sit down and deal with practical solutions, and that clearly the benefits far, far outweigh any negatives that may accrue in terms of temporary accommodations and the like.

Chairman OWENS. Anybody else care to comment on the same question?

Mr. RASMUSSEN. Mr. Chairman, if I might go back. I think you indicated what we thought about a source for the technical advice to small businesses, and I referred to the OSHA program which had its difficulties when it started out.

But later on now in Minnesota, the Minnesota OSHA department does the inspections for the Federal Government, but they have a very reasonable approach to OSHA violations in Minnesota, where they will counsel with the business person, advise them of what should be done in the particular violation and how to correct it, and work out a time frame in which to accomplish it and a reasonable way to accomplish it.

I think that some sort of a source to go to for that kind of help is what the small business person needs, because we do not have lawyers, we do not have personnel managers, we do not have specialists of any kind available to us who have delved into this and found the answer.

Chairman OWENS. Thank you. Mr. Rochlin, do you want to make a comment?

Mr. ROCHLIN. Yes, Mr. Chairman, I would. There is one phrase in the law that I think that has not gotten its due share of attention, and that is "qualified individual with the disability."

I think what we must remember is that we are talking about people who are qualified for the jobs. There sometimes appears to be a concern that the law is going to require employers to hire all people with disabilities. That is not the case. The law is going to require that people who are qualified and have a disability be hired.

One of the things that I have found in my past experience is that the reasonable accommodation process protects the employer as much as it does the individual, if the employer follows the process as it has been currently used in 503 and I think would be used under the ADA, and that simply is that you first consider the

person as an individual and focus on that person's qualifications, not on the disability.

What happens too often with employers is that they immediately focus on the disability. If they put the disability aside, except as they may have to accommodate it in the employment process, and focus first on the individual's qualifications.

If the individual does not have the qualifications to do the job for which they are applying, the employer does not have to hire them, and the decision is made on that basis.

If the person has the qualifications, then the employer is able to say to that person, "You are qualified to do this job. Now will the limitations caused by your disability create the need for any accommodation?"

Together the employer and the individual can discuss what may or may not be needed to accommodate that person in the work force. That also protects the employer relative to litigation.

If the first thing the employer focuses on is the disability and then ultimately learns that the person isn't qualified and doesn't hire them, yes, I would agree they would have a difficult time in a court of law protecting themselves against a charge of discrimination when the first thing they talked about was the individual's disability.

If they focus first on qualifications, and the person isn't qualified, and they don't hire them for that reason, and the person files a complaint saying, "They didn't hire me because I am disabled," the employer is in a position then of defending themselves on the basis of saying, "Disability had nothing to do with that. This job requires qualifications a, b, and c, and this individual did not have those qualifications." So, the reasonable accommodation process, if followed as it has been used under 503, I believe, provides protection for all individuals involved.

Chairman OWENS. Thank you. My time is up. Mr. Bartlett?

Mr. BARTLETT. Thank you, Mr. Chairman. First, Mr. Chairman, I want to say that I think that this panel has been an excellent panel at really focusing on the issues, and this hearing today, I think, has made as much or more progress than all of the hearings that have gone on in the past.

One of the changes that I note just in terms of tone and content, both with this panel and with the original witness, is that we're now, with the Senate-passed bill, we are now beginning to treat this legislation as disability legislation or access for persons with disabilities.

There had been fear of some risk in previous hearings that the legislation was being viewed as either political legislation or as civil rights legislation, with a view towards changing other civil rights laws that apply to other groups of individuals.

Those laws may or may not be changed or be needed to be changed by Congress, but I do think it is important to keep the focus of this legislation on disability legislation.

Ms. Mayerson, let me begin with you and say that I agree with several of the things that you said and disagree with one or two others.

What I agree with, and I want to be very gentle-I was about to raise the issue of the hearing-impaired in the publishing plant also

because I know better, and I know Mr. Rasmussen is in the business, so I don't want to dispute someone who is actually out there publishing and printing, but that is a good example, it seems to me, of how much the world has changed and how easily, or in the words of the proposed law, "readily achievable," an accommodation can and often is to a person with a disability.

There are, amazingly enough now, incredibly bright and noticeable red lights that will go off on safety equipment to indicate a problem that are typically used in the work place to accommodate a hearing-impaired person.

Mr. Rasmussen is right, though, this bill, it seems to me, should not be interpreted, nor is it written this way, in any way that would require an employer to hire someone whose safety would be jeopardized merely because of his disability by work place on the job.

So, let me use another example that was used earlier, and, Ms. Mayerson, we may get your response or Mr. Wharen and Mr. Rasmussen. Later a question was asked, "Would a construction site, therefore, be required to hire someone for high rise-work who has a disability that may cause him to fall?"

Let me just suggest that it seems to me the way I interpret this proposed law, as I interpret currently 504, would be that, therefore, an employer would not be required to, and, indeed, should not hire a person with vertigo or with an unsteady walk that causes him to sway back and forth from the path.

But an employer would not be allowed nor should be allowed to automatically dismiss from employment or dismiss from prospective employment persons with other disabilities whose disabilities don't affect whether they would fall off the walk or not.

It seems to me to be that is the way to interpret this law as current 504. Now, Mr. Wharen or Ms. Mayerson, have I missed something in that definition? Is that the way you read it, or is there another danger here?

Ms. MAYERSON. No, I think you are correct. As Mr. Rochlin was stating that, this law like 504, only covers qualified handicapped people for employment. You have to be qualified for the job in order to get the job.

Mr. BARTLETT. Mr. Wharen?

Mr. WHAREN. I agree. If we use qualified people as the main criteria for hiring, there would be no problem with that.

Mr. BARTLETT. Mr. Rasmussen, is that what you think this bill says. or do you think it should say that, or do you think it shouldn't even be to that limit? That is to say, should a-the fundamental question is, should a private employer be prohibited from discriminating against someone because of their disability, if their disability does not affect their job performance or the business necessity?

Mr. RASMUSSEN. I agree with that essentially. Just as a point of correction of the impression I may have given in my statement. I was speaking of our operation of our rotary press. It is quite essential that the operators have their ears cleared. We don't allow radios playing. We don't allow the headsets, anything like that because they have to hear every little click that goes on in that press

because it is the sounds that the press gives off that tip off the operator as to impending problems.

In that kind of an operation, even the bells and the whistles or lights, the problem has occurred often before the bell goes off, so you hope that they hear that. In many operations of putting on a newspaper, of course, there is no problem with deaf people working or other handicapped people.

I think the primary purpose of the legislation ought to be to allow everybody to be considered on an equal basis for hiring, without consideration of the handicap, except that if you reach a point where the handicap cannot be accommodated in some way, that, obviously the employer then, I think, has to have the reservation to make the decision of what should be done.

Mr. BARTLETT. And that is, it seems to me, both the intent and the result of the Senate-passed bill, likely not the result of the original House bill, but at least the result of the Senate-passed bill. Mr. RASMUSSEN. It could be, yes.

Mr. BARTLETT. I appreciate you clarifying that. You do leave yourself open to misinterpretation by even coming before the committee and testifying on such an emotional subject, and I want to tell you I appreciate your candor and your help.

So, if it is important to the job to hear each click and whir and buzz and the whine of the machine, then one could reasonably assume that is a job qualification; but if that is not important to the job, then that wouldn't be a job qualification. Ms. Mayerson, is that the way you would read it?

Ms. MAYERSON. I would agree with that, but I would caution that oftentimes things are considered essential in a job that you really have to look very closely to examine that and often get assistance, maybe from places like the President's Committee, to see what other people in the industry are doing in the area.

Mr. BARTLETT. I think that is correct. The world is changing, and it is going to change even faster with the ADA. I walked through a fair number of both manufacturing and distribution plants in Texas and watched for these things.

Within two days this summer, I recall walking through a plant and finding in the shipping department two individuals working there, one who is profoundly deaf and had been working there for about, I don't know, ten years, and then in a similar department, not seeing anyone who was disabled in a similar company.

So, I asked each employer afterwards, I asked the person who had the shipping clerk who was profoundly deaf whether they had made any reasonable accommodation, to use the terms of the law, to hire him.

The employer looked at me with a blank stare and he said, "Well, no, not especially. He came in, he applied, he looked like he had a good work record, looked like he could understand the job, real smart, so we hired him. So, we didn't have any reasonable accommodation.”

So, I pursued it and I said, "Well, how do you communicate with him?" The employer said, "Well, we write little notes. He has a note pad by his work station and his supervisor has a note pad, and he writes out a note if he has to communicate, and the supervisor has through the years learned a little bit of sign."