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Mr. EDWARDS. I believe Mr. Dannemeyer has some questions.
Mr. DANNEMEYER. I notice in your presentation, Ms. Feldblum, that you mentioned nothing about making the provisions of the act available to drug addicts, alcoholics, and persons with communicable diseases. I gathered from the sense of your testimony that you used the constant illustration of making it available for those who are in need of assistance because of being in a wheelchair or disabled for that reason.
Let me ask this question. If we would, by amendment, delete within the definition the extension of, in this instance, qualification standards, if we would strike out the availability of persons with communicable disease, would you still support the act?
Ms. FELDBLUM. There is no reason to strike out people with communicable-
Mr. DANNEMEYER. That's not my question. You can answer yes or no. Would you still support the act if we struck out its applicability for coverage of persons with communicable diseases?
Ms. FELDBLUM. The class of disability-Mr. DANNEMEYER. That can be answered yes or no. Ms. FELDBLUM. No. The class of disability standsMr. DANNEMEYER. My next question is, if we struck out the application and availability and coverage of the act to drug addicts and alcoholics, would you still support the act?
Ms. FELDBLUM. To that, one has to give a slightly long answer because
Mr. DANNEMEYER. It can be answered yes or no.
Mr. DANNEMEYER. Ms. Feldblum, the question can be answered yes or no. Would you still support the act if we struck from the definition of the coverage drug addicts and alcoholics?
Ms. FELDBLUM. I would not support it if you struck it out. Now I will explain what the bill does and doesn't do.
Let me also go back to your first point, which I thought was a very interesting point. You said that when I talked I wasn't using examples of contagious diseases or drug addicts.
Mr. DANNEMEYER. I noted that.
Ms. FELDBLUM. I think that was not intended because such individuals either don't need coverage or it's not important. In fact, when the President's Commission on the HIV Epidemic, which was a Commission appointed by President Reagan, came out with their recommendation, they recommended a broad-based disability rights bill as a means of protecting the HIV individuals.
Mr. DANNEMEYER. Do you remember what the vote was on making that available for persons with communicable disease?
Ms. FELDBLUM. Excuse me, sir?
Mr. DANNEMEYER. It was a split vote of the Commission itself on that issue, wasn't it?
Ms. FELDBLUM. No.
Mr. DANNEMEYER. A shift of two votes would have tilted the judgment the other way on making the act available to persons with communicable disease.
Ms. FELDBLUM. I think what came out of that Commission was a very clear mandate toward having a nondiscrimination mandate.
Mr. DANNEMEYER. Let me ask you this question. On page 11, where it deals with qualification standards, lines 3 and 4, who has the burden of proof, the applicant, the employee, or the employer?
Ms. FELDBLUM. The burden of proof in this bill follows exactly the burden of proof that exists in section 504. Under that system, the individual has to show that they are covered under the act; that is, that they are a person with a disability. They then have to show they meet the basic qualification standards for the job; that is, that apart from their disability, they meet whatever the requirements are.
For example, some jobs require that you have a college education
Mr. DANNEMEYER. Let me be a little more precise, Ms. Feldblum. On line 7, under the definition of drug addict or alcoholic, this is the section requiring that the current use of alcohol or drugs by an alcoholic or drug abuser not pose a direct threat. Who has the burden of proving as to whether or not the current use of alcohol or drugs is a direct threat to a coworker, the employee or the employer?
Ms. FELDBLUM. Here I'm thinking about the 504 case-
Mr. DANNEMEYER. Two possibilities, Ms. Feldblum, the employer or the employee.
Ms. FELDBLUM. I guess, being a lawyer, doing some of the litigation in these cases, you can see that that's not the way it operates in terms of the judge thinking
Mr. DANNEMEYER. Ms. Feldblum, the question can be very simply answered. You helped write this act, didn't you?
Ms. FELDBLUM. Well, there were a number of people involved in putting this together.
Mr. DANNEMEYER. Were you involved in putting it together?
Mr. DANNEMEYER. Based on your involvement, who has the burden of proof, the employer or the employee?
Ms. FELDBLUM. What this bill says is that it is a valid qualification standard that someone not pose a direct threat to
Mr. DANNEMEYER. Are you telling me you don't know?
Ms. FELDBLUM. No, no. The way it is often in law, that the question is not, for example, a yes or no issue.
Mr. DANNEMEYER. Are we finessing legislative history for some judge to resolve?
Ms. FELDBLUM. No.
How about this. Why don't I finish and explain to you how I believe it would work under the law, and then we'll see whether you think it's finessing it or not.
Mr. DANNEMEYER. Well, wait just a minute. I only have limited time, Ms. Feldblum. You can answer if you want to. My question again is, who has the burden of proof—it's very simple—the employee or the employer, or the prospective employee or the prospective employer?
Ms. FELDBLUM. The person has to make a prima facie case that they are qualified for the job. Now, that would include, for examdence in your prima facie case that HIV in that situation would not pose a direct threat to others; that is, that there isn't a significant risk of you transmitting that infection. That's a burden on the employee. That's a burden on the plaintiff, as part of making that prima facie case.
Once you make that prima facie case, then the burden would shift to the employer to prove that that wasn't the case.
Mr. DANNEMEYER. In other words, if the employee who is HIV positive-how would they carry that burden of proof? Do you believe the burden of proof could be carried under the unilateral assertion of the employee, who is the HIV carrier?
Ms. FELDBLUM. That should carry that, but in a number of cases, the way that proof is carried is by placing into evidence materials from the Centers for Disease Control, from public health officials, to establish the fact that HIV infection would be transmittable.
Mr. DANNEMEYER. How about an amendment which would require, in order to carry the burden of proof, that the employee would have to have a doctor's certificate saying the employee's presence on the job would not cause a health threat to coworkers? Would you support that?
Ms. FELDBLUM. I'm not sure I would support an amendment saying that. I would tell you that that would be part of what would be put into evidence. Often it's the person's own physician who will testify, as well as evidence from general medical information. That's exactly what's going on in the cases right now.
Mr. DANNEMEYER. We know from history that some of these persons have, you know, cytomegalo virus, some of them manifest dementia, and a fairly large percentage of persons who are afflicted with AIDS have a form of tuberculosis. You know, these are opportunistic diseases that are present in persons who are HIV and/or with fully developed AIDS that are a direct threat to coworkers. For this country to adopt a law that extends the coverage of what this act seeks to do to persons in that class is a major policy step with ramifications that I suspect you understand precisely what you're about, but I suspect there are many proponents of this legislation who have no idea of the implications of what this law seeks to do.
Ms. FELDBLUM. You see, that's a very interesting point, to present it as a major policy change. That is sort of confusing to me because, in fact, section 504 has been on the books since 1973. Section 504 has been used in many cases by people who have AIDS or HIV who have been unjustifiably discriminated from their jobs, unjustifiably tossed out of places where they don't pose a threat to others. That's a law that has been in place since the time when Congress has-
Mr. DANNEMEYER. Ms. Feldblum, you're confusing apples and oranges. There is nothing in section 504 that uses the term "direct threat.”
Ms. FELDBLUM. Oh, yes. It was amended in the Civil Rights Restoration Act of 1988. Concerns were raised that you are raising: They said we have a law that covers such individuals. That can't be. Well, Congress then amended section 504—
Mr. DANNEMEYER. Are you saying that the language "direct
Ms. FELDBLUM. Yes, it is. It's been in there-Mr. DANNEMEYER. That's contrary to what my understanding is. Maybe I'm learning something today.
Ms. FELDBLUM. Well, what happened was, 2 years ago, when concerns were
Mr. DANNEMEYER. There's another concern I want to ask you about and get your assessment, Ms. Feldblum. We have a definition of persons who fit within the coverage of section 504. We also know that last year the Congress adopted an amendment to the Fair Housing Act dealing with this issue of discrimination, and now this is the ADA. Each of these three subsequent pieces of legislation has different language defining the definition of a person who fits within the coverage of the act.
Is that sound public policy?
Ms. FELDBLUM. The definition of disability in each of those actssection 504, the Fair Housing Amendments Act and this act-is the same. It's the same definition of—
Mr. DANNEMEYER. Maybe I don't know how to read the English language. But when I read the definition of qualification standards on page 11, lines 3 through 12, and then I read the definition of the Fair Housing Act on page 67, section 802, there is not a small difference, Ms. Feldblum, but there is a substantial difference.
For instance, the Fair Housing Act includes within its coverage persons who are drug addicts but not alcoholics. In the ADA, we're making the coverage available to drug addicts and alcoholics, and we have a new term in there, "direct threat," which is not in the act relating to fair housing.
What's the rationale for this?
Ms. FELDBLUM. The Fair Housing Act does have the same “direct threat" provision later on in the bill. You are correct, that there was a modification made in the definition in fair housing with regard to drug addicts. But I think that also reflects another issue that is very important in this bill, very important. You have to be, as was mentioned before, qualified to do a job. For someone who is a recovered drug addict or recovered alcoholic, that's often no problem at all. For someone who currently uses drugs or alcohol, they are also covered, but they still have to be qualified to do the job, which might be a lot more difficult in certain situations.
Mr. DANNEMEYER. Who has the burden of proof for a recovered alcoholic or drug addict?
Ms. FELDBLUM. It's the same as with any other person with a disability. The person with the disability has to make a prima facie case. They make the prima facie case and then the burden shifts to the employer.
Mr. DANNEMEYER. Another question that really boggles the mind about the reach of this act is, if we take the case of the gentleman who was here previously, the veteran, he didn't describe his wife and I don't know whether she's disabled or not-he's shaking his head no. This legislation would also extend to this wife because she's associated with somebody who is disabled.
That's a unique thing in our law, isn't it? What's the rationale and necessity for doing that?
Ms. FELDBLUM. It would extend to her if she was discriminated if she went to apply for a job and the employer found out that she had a husband who uses a wheelchair and said "I don't think someone with a wheelchair will fit into our social functions" and she doesn't get the job because of her known association with a person with a known disability, it's a natural extension of the prohibition against disability. In fact, it's not new policy in this act. That was put into the Fair Housing Act last year.
Mr. DANNEMEYER. As you describe this act, it's possible that there isn't anybody in America that doesn't come within the coverage. It's a brilliant political move about which you're engaged. All of us are disabled.
Ms. FELDBLUM. But you only come under the coverage, of course
Mr. DANNEMEYER. You should hear some of the things about which they say of me. I mean, people have sincerely questioned not only my judgment but my thinking capacity. I probably would come within the definition of this act. Wouldn't you agree?
Ms. FELDBLUM. You would have to prove that you were mentally disabled in order to get under the protection.
Ms. FELDBLUM. I don't know if you want to come into court and do that.
Mr. DANNEMEYER. It's obvious, isn't it, really?
Ms. FELDBLUM. I do want to reiterate that you are protected only if you've been discriminated against because of your association with a person with a disability, and that was a provision that was placed in the Fair Housing Amendments Act last year by this subcommittee. So, in fact, it's not a new policy at all. It's an extension of the policy that was just put into place and passed overwhelmingly by Congress last year.
Mr. DANNEMEYER. How about this phrase in the act-as a lawyer and a legislator, I don't know that I have ever seen this before in proposed statute form. It gives a cause of action to one who is being or about to be subjected to discrimination. Just on the mere suspicion that somebody is discriminated against, you have a cause of action to go to court to bring some employer into the docket.
Is that good policy?
Ms. FELDBLUM. I often find it interesting that that's raised as something new in this bill, because, in fact, the Fair Housing Act that was passed in 1968 and the Public Accommodations Act that was passed in 1964 both had provisions that said, if someone is engaging or one has reasonable cause that someone is about to engage in an act of discrimination, then those acts can be stopped by an injunction, by a cause of action
Mr. DANNEMEYER. Doesn't that really get the law into analyzing the mental processes of a prospective employer, a prospective landlord, far beyond anything the laws should ever be doing?
Ms. FELDBLUM. What it is is within the context of general injunctive relief; that is, it is not at all something that can sort of be out in the air, that if you somehow speculate that some discrimination can happen you can bring a lawsuit. You have to prove that discrimination is going to occur.
It's a very good example to bring up in disability, and it's actually interesting in terms of businesses. If you find out that there are