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I would like to raise an issue in this spirit. The term "covered entity” means an employer, employment agency or joint labor management committee. In two major pieces of major legislation, the Immigration Control Act of 1986 and more recently, the Fair Housing Act, we get into this question.
The thought arises, shouldn't a “covered entity” be more site specific and the definition go to the facility rather than a general word like "employer?” What I am thinking is, of course, that as in all cases of discrimination you may have hundreds or thousands of business outlets that do their own hiring and their top management, the employer, would not really know about egregious conduct that may result in a suit by your Department.
So I just raise that issue about the covered entity being more precisely the hiring facility or hiring authority.
Going to the question of your remedies, I am dealing from the Senate bill, section 308, enforcement. It is 308(b), enforcement by the Attorney General: (1)(a), duty to investigate. “The Attorney General shall investigate alleged violations of this title, which shall include undertaking periodic reviews of compliance of covered entities under this title." Now, the rest of this, injunctive relief, pattern and practice, it is language we are all familiar with.
But this particular part I read you was not in the House bill I introduced. It is obviously the Senate edition. It is a novel provision to me.
I wonder if you would comment on the meaning of it and your approval or disapproval of it. Once again, this does not have to be a matter, unless you are prepared to speak to now, it could be a matter
like my first question that you could reserve judgment on. Mr. THORNBURGH. Let me take a try at it, although I perhaps ought to reserve the right to give you a more precise response. In carrying out our responsibilities to see that the laws are obeyed, we sometimes are in a reactive posture and sometimes in a proactive posture.
I think that is what is contemplated by 308(b)(1)(a), investigating allegations which come to us in the normal course is one thing. Undertaking reviews of compliance is quite another where the initiation would come from the Department of Justice.
That I think is meant to round out the definition of our enforcement responsibilities to ensure that we are not like the Maytag repairman waiting for the phone to ring before we undertake some investigation of compliance. That would be the allegation side. But what this talks about is our own periodic reviews of the compliance with the act.
Mr. Fish. You may wish to think about it since this is a new measure that was not considered in the drafting of the House proposal. Your letter of July 26 to Senator Kennedy, in that you speak of using the pattern and practice authority given the Attorney General in the Fair Housing Act amendments as a model. The Attorney General should be given authority to seek civil penalties concerning egregious violations of the pattern and practice provision in the Senate bill is the usual remedy. I wondered if, well, I talked about A, duty to investigate, and that is the next section,
I wondered whether you felt that the terms "egregious and willful" should be in the statute, should be in the committee report.
Mr. THORNBURGH. Well, this, again, has been the subject of some discussion. I think the use of the term “issue of general public importance" is sufficient to provide adequate guidance to me or any successor in the Attorney General's Office as to the type of relief that should be sought. Obviously, under those guidelines trivial denials or violations would not be encompassed and probably in fact would be restricted to egregious and serious violations, but I am not sure that the addition of that language as a substitute for or in amplification of the issue of general public importance language would add something.
Mr. FISH. It is just that it is language in other laws that we have had in dealing with discrimination.
Mr. THORNBURGH. We have limited resources in this area, Congressman Fish. We obviously are going to be looking only at the most egregious cases. But I am a little worried about trying to put that into a statutory setting in this instance.
Mr. Fish. In the committee report, then, which I think is in the Immigration Act.
Mr. THORNBURGH. Yes, I don't have any problem with that.
Mr. FISH. I have one other question before I yield to my colleagues, who have lots of questions, I know. If I could refer you to section 303, called new construction in public accommodations, potential places of employment, this is just to direct your attention to this, and it says in section 303, "application of term as applied to potential place of employment, the term discrimination shall mean a failure to design and construct facilities for first occupancy later than 30 months after date of enactment of this act that are readily accessible to and usable by individuals with disabilities except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards as set forth or incorporated by reference in regulations issued under this title."
This does not answer the question as to whether every part of a facility, new construction facility, is covered, or whether those parts that might lend themselves to a need for accessibility under the circumstances.
I know this question has been raised as to just a matter of clarifying exactly what we mean in terms of new construction.
Mr. THORNBURGH. Are you referring to the exception language, the term structurally impracticable?
Mr. FISH. Not really, because that I think is clear. That is something a structural answer will answer, whether or not it is structurally impracticable. But I am wondering what is meant, whether or not every single part of a new construction is to be made accessible; and if not, then failure would be a discrimination or whether there is some clarification needed here.
Mr. THORNBURGH. The existing design standards for new buildings talk about reasonable numbers of accessible entrances, toilets, those kinds of things. It doesn't mean that all parts of every building have to be accessible, if that is what you are pointing toward.
Mr. Fish. That is the term that has been raised, yes.
Mr. FISH. I suppose it is when you build any new construction, and depending what it is, it might have food services, maybe employment requirements in the job that would not lend themselves to somebody in a wheelchair, and therefore, you would not need to have accessible entrances.
I just presented you with some issues that have been raised by others.
Mr. THORNBURGH. Well, I think the only answer to that is to look at it from the point of view of the standard of reasonableness which excludes the notion that every portion of every building, every service included within the building, must be accessible, under the standard of reasonableness.
If there are a reasonable number of those kinds of necessary components of the public accommodation that are accessible, that fulfills the requirements of the act as it is written.
Mr. Fish. I thank the gentleman.
Mr. FRANK (presiding). The chairman of the Subcommittee on Civil and Constitutional Rights, Mr. Edwards, had to go over to the floor, because he had management responsibility on the flag bill.
I want to read a statement Mr. Brooks wanted to put into the record. If there is no objection, I will read it and have it put in the record.
"A long-time friend of mine and the son of a former staff director of my subcommittee, Geoffrey M. Baynard, is here in the audience. Geoffrey suffered a head injury in an automobile collision caused by a drunk driver. He was unconscious for 5 weeks, but survived and made a miraculous recovery, though he has some residual disabilities. Geoffrey has prepared a statement on the Americans with Disabilities Act, which I would ask unanimous consent to insert in the hearing record at the appropriate point.”
There being no objection, that will be put in the record. [The prepared statement of Mr. Baynard follows:]
October 12, 1989
STATEMENT OF GEOFFREY M. BAYNARD BEFORE THE
WITH DISABILITIES ACT OF 1989 (ADA).
I am a thirty-five year old survivor of
very serious head injury. I received my injury when an unlicensed, uninsured drunk driver, with prior convictions, ran a red light while
he being pursued by police at a high rate of speed. He was driving a Cadilac in excess of 70 miles per hour when he smashed into my compact car broadside, shearing off my door with me being thrown twenty feet landing on my head in the other lane of traffic.
My scalp was was split open from ear to ear. The massive blow to the head has caused permanent brain stem injury. I also had a fractured pelvis from knocking over a 4-by inch sign post, nd an exploded disc in the shoulder area of my back from landing my head.
For five weeks I was unconscious with the doctors telling my family I had little chance to live and if I lived I would have little chance of walking, talking or even remembering my name. In other words, I would be a basket case. I was in a coma for five weeks and sure enough when I became conscious I couldn't walk at all, nor talk coherently.
So, for the first time in my life, I was a member of minority group I was now physically disabled. I
to become handicapped as well - not directly from my injuries but from alcohol, and more important, people's attitudes. My physical disabilities made me appear as though I were impaired by alcohol - by the way I walked and talked. I talked with a slur and walked with an uneven gait even when I had not been drinking.
The accident occurred in February, 1974, which
the virtual dark ages in the rehabilitation of the head injured
because of the lack of awareness about the epidemic proportions of this type of injury in our Society. The staggering statistics are that one out of every 200 people in our population is directly affected or involved in some form of head injury.
Because of the absence of visible disability, i. e. braces, walkers or crutches, I have personally experienced more forms of discrimination than one would think possible. Most important, I have experienced discrimination in my efforts to obtain suitable employment.
My first experience
with the federal
are classified as "handicapped" regardless of whether they have a physical or mental impairment. I was given a job as laborer and told to
perform tasks which were beyond my physical capabilities. When I complained, I was told to be grateful for the subpar wage I received. Meanwhile, within the agency there were many positions that were within my physical capacities which were denied me because I was under the "handicapped" program.
I had to leave government to survive because I could not perform the physical tasks required for me to do, Then I did two things. I enrolled in college and applied for disability from Social Security. Satisfactory completion of two years of college work established that I have a "level" of capability, despite a permanent lesion on my brain stem..
In other words, I am not a complete dummie. Also, my long three and a half year battle with Social Security proved conclusively that I also have a serious spinal injury which limits my capacity to perform physical labor. As one bone specialist suggested, of my shoulder vertebra looks like it been smashed with a sledge hammer.
But I say to you
this is not the whole story, fashioned frustration, having nothing to do with our plays an important part.
for old injury,
First, of course, is the lack effective state and federal programs to assist those of us with these problems. And then there is discrimination. Let me give you some examples.
In 1986. I applied for a job with the Commonwealth of Virginia in the Department of Rehabilitative Services working with newly head injured persons. The Commonwealth, in
masterpiece of bureaucratic splendor, simply withdrew the job
announcement citing economic concern rather than employing head injured survivor.
I have submitted more than fifty applications with the city of Alexandria. I have been interviewed only once. No jobs have been offered me.
In summary, in the years since my injury, I have applied for more than a thousand positions. I have only been interviewed for ten or twenty. Because of strong political backing I was offered two in the federal
government requiring strenuous labor and totally unsuitable for a person in my physical condition.
And then there has also been the attitude of people.
As example, recently at a foodstore checkout counter, I was treated in an awkward manner by the checkout clerk. After leaving the store, my companion expressed her outrage at the attitude of the clerk. As so often before, a slurred word or two and my uneven