food, and places of entertainment. £/ These are the places which presented the most significant problems of racial segregation during the period in which the Civil Rights Act of 1964 was passed and therefore these were the places on which that law specifically focused. By contrast, people with disabilities face discrimination in a range of other public accommodations--in supermarkets, barber shops, laundromats, and in other service providers. It makes no sense to restrict the range of coverage of public accommodations to a definition that was developed at a different time, for a different purpose. Certainly, if we wish to build a truly accessible country in the future by requiring that all new buildings be constructed in an accessible fashion, it makes no sense to restrict artificially the definition of those buildings that should be covered.7/ 6. The following types of establishments are covered by Title II: "Any inn, hotel, motel, or other establishment which provides lodging to transient guest..." 42 U.S.C. § 2000a (b) (1); "any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises..." 42 U.S.C. § 2000a (b) (2); "any motion picture house, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment..." 42 U.S.C. 2000a (b) (3). 7. It should also be noted that individuals who have been discriminated against on the basis of race or ethnicity have legal recourse under 42 U.S.C. § 1981, as well as recourse under Title II of the Civil Rights Act of 1964. Section 1981 prohibits any discrimination on the basis of race or ethnicity in the making of a contract. See 42 U.S.C. § 1981 ("All persons within the jurisdiction of the United States shall have the same right...to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens..."); Saint Francis College v. AlKhazraii, 95 L. Ed. 2d 582 (1987). Thus, much of what is covered under the ADA's definition of a public accommodation would also Title V of the ADA requires common carriers to provide telecommunication relay services. The provision of such services will be a significant step forward in communications for deaf individuals. The relay system will allow such individuals, who have access to their own telecommunication devices for the deaf, to communicate with others who do not own and use such devices. The provision of such services is an important first step forward in meeting the communication needs of deaf individuals. Finally, the bill includes well-established provisions with regard to remedies for discrimination. an effective remedy system are the availability of a private right of action, access to injunctive relief and damages, and availability of jury trials. These are elements that are available to other minorities under the combination of various other civil rights statutes that currently exist. The ADA appropriately incorporates these elements. In conclusion, we would like to reiterate our strong support for the Americans with Disabilities Act of 1989. We look forward to working with you closely as you pass this historic piece of civil rights legislation. be covered under Section 1981. See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976) (prohibits private, commercially operated, nonsectarian schools from excluding children because of race); Jennings v. Patterson, 488 F.2d 436 (5th Cir. 1974) (protects right to use public streets); Hernandez v. Erlenbusch, 368 F.Supp. 752 (D. Or. 1973) (protects right to speak Spanish in a bar). 10 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 stands Mr. 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. Ms. FELDBLUM. There is a clear 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 require ments 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? Ms. FELDBLUM. Sure, yes, together with various other individuals. 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 toMr. DANNEMEYER. Are you telling me you don't know? Ms. FELDBLUM. Oh, no. I'm telling you the way it often is in law. Mr. DANNEMEYER. Or you don't want to say? 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 example, if you are someone with HIV, you would have to put in evi dence 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 threat" is now in section 504? |