blueprints for a building that's going to be built, that is going to be built nonaccessible, instead of waiting until that building is built and then bring the lawsuit, which will be incredibly expensive

Mr. DANNEMEYER. Ms. Feldblum, I don't think there is anybody in this room that objects to a law saying that, for the construction of new buildings, we have to make those buildings accommodating to persons in wheelchairs. There's no quarrel about that. We don't have to spend our time on that.

Mr. Chairman, I appreciate you giving me more time than I deserve, and I thank you for this indulgence. I thank you for your contribution.

Mr. EDWARDS. Thank you, Mr. Dannemeyer.

Mr. James.

Mr. JAMES. I'm a little confused. In dealing with an alcoholic, what would constitute discrimination and what would not? You're a lawyer, correct?

Ms. FELDBLUM. Yes.

Mr. JAMES. You have a 16-man law firm. A man or woman comes in, a person, and says "I'm an alcoholic. I'm trying to handle the problem. I don't know if I will succeed. I've been dry for 7 days and I haven't had a drink.” What if you, as the head of the firm, said "Well, my requirements are that you be dry for 10 years and I won't hire anybody unless they've been dry for 10 years once they have been a demonstrated alcoholic." Is that discrimination?

Ms. FELDBLUM. Yes. In other words, you're not at all looking at an individual case, as to whether the person is qualified.

Mr. JAMES. One year, is that discrimination? I want a demonstration of sobriety, since you're a declared alcoholic, for 1 year.

Ms. FELDBLUM. Sure, if you just had as blanket policy. What is useful is to look at the bill that just came out of the Senate. A lot of these questions were raised

Mr. JAMES. Please. I'm talking facts.

Six months?

Ms. FELDBLUM. But it's going to be the same in terms of a blanket rule. You could, as the employer, say

Mr. JAMES. One week, then? Or 9 days. You've only been dry 7. That would be discrimination, correct, in theory?

Ms. FELDBLUM. You would have-It's interesting. I understand what you're trying to do, but I'm wondering

Mr. JAMES. It is interesting. That's why I'm asking the question. Two days would be theoretically discrimination because I'm setting what, an artificial criteria? Is that what you're suggesting? Ms. FELDBLUM. But you could say "I have a rule that”

Mr. JAMES. Please. Would 2 days, by your definition, be setting an artificial criteria and, therefore, it would be discrimination and

I would be subject to suit, or you would be if you're the head of the firm

or you're not sure?

Ms. FELDBLUM. Well, what's interesting is that you can

Mr. JAMES. Do you know?

Ms. FELDBLUM. Yes. But-

Mr. JAMES. Then answer if you know, or say you don't know. There's two answers possible.

Ms. FELDBLUM. Wait, no. You cannot have an arbitrary rule like that. You can say "You may not come"

Mr. JAMES. Then the answer is you would have at that point in time discriminated because you said the person hasn't been dry for 9 days but dry for only seven?

Ms. FELDBLUM. The person still has to prove that they are qualified for the job.

Mr. JAMES. Is that correct?

Ms. FELDBLUM. Yes, yes.

Mr. JAMES. I'm assuming the person is super qualified for the job, a graduate of Harvard, Princeton, whatever school meets your qualifications, with an IQ of 200, whatever.

Ms. FELDBLUM. And I don't want to hire them?

Mr. JAMES. That, in itself, would be discrimination because you're setting a 2-day criteria.

What if I said you have to go to AA? Would that be arbitrary, too, Alcoholics Anonymous [AA]? As long as you're in that program, I'll hire you. That's arbitrary, isn't it, if you say AA is the standard?

Ms. FELDBLUM. You, as the employer, can prohibit someone from coming to to work under the influence. You can prohibit the use of drugs or alcohol. This is not out of my mind. This is now in the Senate bill. You can prohibit the use of alcohol or illegal drugs in the workplace. You can require that an employee not be under the influence of drugs or alcohol, and you can require that employees conform to all of the requirements of the Drug-Free Workplace Act that was just passed. You can do all of those requirements.

Mr. JAMES. Can I require them to take a breathalyzer each morning when they come in the office?

Ms. FELDBLUM. Yes, because you can require that they not be under the influence of drugs or alcohol in the workplace.

Mr. JAMES. But isn't that discrimination unless, in fact, I require everybody to come in the office to take a breathalyzer?

MS. FELDBLUM. No. What this bill says is that you can require that individuals not be under the influence of drugs or alcohol in the workplace.

Mr. JAMES. And what is the definition of "influence?" Is it 0.1, like it is for driving, or is it one-tenth of that? Do you see what I'm getting at?

Ms. FELDBLUM. Sure. I think that's clearly something that you can have set forth in the regulations, in terms of under the influence.

Mr. JAMES. Have you ever worked with an alcoholic?

Mr. JAMES. Yes.

Ms. FELDBLUM. Not that I know of. There might be people who are alcoholics who are very capable of doing their jobs and you don't know that they're alcoholics.

Mr. JAMES. I can assure you of that. They are, for a significant percentage of the time. It's that other remaining percentage that you worry about, if, in fact, they're not successful in handling it. Ms. FELDBLUM. That's right, which is why I think this provision was actually put in, not only can you prohibit the use but prohibit that people not be under the influence. You require that people conform to the requirements of the Drug-Free Workplace Act because you would be concerned about even those situations.

The person is not supposed to be qualified just for 80 percent of the time. The person has to be qualified 100 percent of the time. Mr. JAMES. I understand that. But when someone comes in and says they're an alcoholic and they've only been dry for a week, you have to hire them if—I mean, you can't use that as the reason not to hire them. You have to take a chance and hire them because of this act, and say OK, you've been dry for 7 days, or dry for 2 hours, fine. I'll hire you. Since you don't have it in your system now, I'm forced to hire them, even though they tell you they don't know if they can handle it and they have no history to prove they can stay off the alcohol. You would then be required to hire them under the act.

Ms. FELDBLUM. You are never forced to hire anyone that you're not sure is qualified. If I had someone like that, I would require that there be references, et cetera, to make sure that they are qualified. There are definite ways that you can ensure that you get the qualified person for the job, including someone who has had some disability.

Mr. JAMES. Yes, but they hadn't worked for a year because they were an alcoholic, and they come in and tell you. You get a thousand references that say, up until a year ago, this guy was fantastic.

Ms. FELDBLUM. Obviously, you can require references that will show that the person is qualified to do the job at the time the person is seeking to do the job.

Mr. EDWARDS. Well, if he was drunk 7 days ago, I think it's pretty clear that he wouldn't be qualified.

Ms. FELDBLUM. Exactly. He's not going to have references to show that he is qualified.

Mr. JAMES. In other words, it's only the second employee that's in trouble after the person has been an alcoholic; do you follow what I'm saying? In other words, with the scenario you're setting up, you wouldn't be guilty of discrimination with an alcoholic ifit's that first job that counts. If he gets a good reference with that first job, then the second employer might be guilty of discrimination but not the first because he doesn't have a record of employment and references intervening his alcoholic-

Ms. FELDBLUM. Let me just say in conclusion to this that section 504, which has been on the books since 1973, applies to many, many employers. We have not had troubles with either the cover

in place since 1973 and has extended to numerous employers. I think that history should be applied to this bill as well.

Mr. EDWARDS. Unfortunately, there will be a series of votes, so we will have to bring this very useful hearing to a close. You're such a valuable resource, Ms. Feldblum, that we're going to send you some written questions. Is that OK?

Ms. FELDBLUM. Yes, sir, that's fine.

Mr. EDWARDS. If you could give us the answers within a week or two, we would appreciate it.

Thanks to all the witnesses. This has been a very useful and informative hearing. We are now adjourned.

[Whereupon, at 10:53 a.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]

AMERICANS WITH DISABILITIES ACT OF 1989

WEDNESDAY, OCTOBER 11, 1989

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:40 a.m., in room 2226, Rayburn House Office Building, Hon. Don Edwards (chairman of the subcommittee) presiding.

Present: Representatives Don Edwards, Robert W. Kastenmeier, F. James Sensenbrenner, Jr., and Craig T. James.

Also present: Catherine LeRoy, chief counsel; Ivy L. Davis and Stuart J. Ishimaru, assistant counsels; and Colleen Kiko, minority counsel.

Mr. EDWARDS. The subcommittee will come to order.

Today the subcommittee continues its review of H.R. 2273, the Americans with Disabilities Act. This bill extends civil rights to the 43 million persons in the United States who are disabled. The bill prohibits discrimination on the basis of disability in public accommodations, employment, public services, and telecommunications and has been referred to four committees in the House for consideration.

Since the introduction of this bill in both Houses earlier this year, the Senate passed an administration-backed compromise by a vote of 76 to 8. The compromise which was negotiated between the Bush administration and Senate sponsors goes a long way toward addressing the major concerns raised by the business community regarding the impact of the bill on their operations.

The House sponsors of ADA were not party to the compromise negotiations. Therefore, it is appropriate that we review the implications of the changes encompassed in this new bill. To that end, each of the committees with jurisdiction-Judiciary, Education and Labor, Energy and Commerce, and Public Works and Transportation-have conducted hearings on the compromise bill.

This legislation has widespread bipartisan support-including the Democratic members of the subcommittee and, as we will hear tomorrow from Attorney General Thornburgh, it is strongly supported by President Bush. Indeed, our witnesses today support the bill but ask House sponsors to consider issues which may require further clarification.

As chairman of the Civil and Constitutional Rights Subcommittee, I support the bill's coverage of Congress; however, this chairman_will take steps to ensure such coverage does not conflict with the Constitution's separation of powers provision.