not very familiar with because I haven't been here a long time like my colleagues, my learned colleagues on the right. I am new and I am just learning about ADA, and I am going to try to get to 503 and 504. But I do know that we would not have those terms of "readily available," and "reasonable accommodation," and "readily achievable," if we could really have stronger language. I believe that punitive damages are out. I think that people should be penalized for what they do wrong, and if they discriminate against someone, they should be penalized, but that is out. That, is un-American. So it is easier now. You can discriminate. If someone takes a grievance through the court system and it is found out that you did discriminate, from what I understand, there are no punitive damages. As I understand it, the predecessor bill that went nowhere in 1988 had punitive damages in there. However, evidently, it was taken out in order to move the bill right along. These are just basic points that I wanted to make. Specifically, Mr. Rasmussen, the equipment that we used when we had deaf persons working-I don't know if you use the same type. The old ditty-glazer, which was slower than the Schreiber, and finally the Mustang Hamilton, which is a very, very fast rotary type of equipment which makes a tremendous amount of noise were the types that we used in the business of manufacturing computer forms. This is the same process using laser printer that you use for your industry. I do want to indicate that we had very successful deaf and handicapped persons who worked for us. I think we did a good job for safety because everyone was more alert. Many injuries are from forklifts and things of that nature, in the normal work place, and we really made sure that everyone was aware that the lift was moving around. I don't have any specific questions, but I appreciate the opportunity to just listen. It has been very educational, especially from my senior colleagues here, and hopefully we can get this little step for mankind in. We went to the moon; it was a big giant step for mankind. Here, we are making a small step. I hope that we can have a bill that goes further in the future, but let's try to get this one through. Thank you, Mr. Chairman. Chairman OWENS. I want to thank all of the panelists. At this point, the hearing is adjourned. [Whereupon, the hearing concluded at 11:40 a.m.] STATEMENT BY THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA то THE EMPLOYMENT OPPORTUNITIES AND SELECT EDUCATION SUBCOMMITTEES ОР THE HOUSE COMMITTEE ON EDUCATION AND LABOR ON THE AMERICANS WITH DISABILITIES ACT OF 1989 More than 32,500 firms, including 8,000 of America's leading general contracting firms, responsible for the employment of 3,500,000-plus employees; 102 chapters nationwide; More than 80% of America's contract construction of commercial buildings, highways, industrial and municipal-utilities facilities. The Associated General Contractors of America (AGC) welcomes the opportunity to comment on H.R. 2273, "The Americans with Disabilities Act of 1989." AGC supports the goals of this bill, and its Senate companion, S. 933. AGC cannot, however, lend its support to all of the specific provisions of the proposed legislation, because some provisions could have a negative impact could on the construction industry's effort to stop unlawful drug use, and to ensure jobsite safety. AGC is also concerned that vague language will waste resources on litigation. DRUG USE First, AGC believes that it remains important to ensure that the legislation will not hinder the business community's efforts to discourage unlawful drug use. The construction industry has found that drug users not only cut productivity, but also increase accident rates. Recent studies reveal that as many as 23% of all American workers use drugs on the job, and that drug use may account for over half of all accidents in the workplace. Some AGC members have found that 30% to 50% of their job applicants cannot pass preemployment drug tests. One AGC member recently found that 40% of its employees tested positive for drug use after workplace accidents. Responding to its members' concern, AGC has adopted a "zero tolerance" policy that does not tolerate any level of unlawful drug use by anyone in the construction industry. S. 933 appears to protect the employer's right to test for unlawful drug use, but H.R. 2273 does not. AGC urges the members of the subcommittee to take the Senate's approach, in order to avoid the problem that the Rehabilitation Act of 1973 has created for federal contractors and certain others. Within the last month, a federal court has held that the 1973 statute forbids the Immigration and Naturalization Service to discharge a drug-addicted attorney arrested for cocaine use and possession of narcotics paraphernalia. Nisperos v. Buck, Case No. CC-88-4039-WWS (N.D. Cal. September 12, 1989). CONSTRUCTION JOBSITES AGC's second concern is that the proposed legislation will compromise sound employment decisions made in the interest of jobsite safety. The unique nature of the temporary construction jobsite, with its ever-changing structure, makes it impractical, if not impossible, to guarantee the safety and health of all disabled Americans who might seek employment on construction jobsites. The proposed definition of "disability" is extremely broad. The U.S. Supreme Court has held that elementary school teachers with contagious tuberculosis fit within the similar definition in the 1973 statute. Nassau County School Board v. Arline, 480 U.S. 273 (1987). More importantly, the courts have held that The construction workers with congenital back anomalies fit within that definition, even though they risk injury from routine lifting, and other physical work required on construction jobsites. E.E. Black, Ltd. Y. Marshall, 497 F.Supp. 1088 (D. Haw. 1980). construction industry simply cannot afford to employ a helper for everyone susceptible to physical injury from lifting or other work required on construction jobsites. Most employers have at least the opportunity to amortize the cost of accommodating a disabled individual over a long period of time, or to build the cost into their price structure. Construction employers, however, have neither of these advantages. Construction employers have to amortize the cost of making an accommodation over the short time available to complete a particular project. Construction employers cannot build the cost into their price structure because the cost is not foreseeable at the time when bids are due. Other terms used in the proposed legislation, such as "reasonable accommodation" and "undue hardship," are simply too vague to assist construction employers in their efforts to comply with the law. These terms are subjective, and will tend to waste resources on litigation. AGC is cognizant of the recent colloquy between Senator Hatch and Senator Harkin on "reasonable accommodation" and "undue hardship." On September 7, 1989, during the Senate debate on S. 933, Senator Hatch questioned whether that bill takes "the nature of a particular industry into account," and Senator Harkin |