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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 against because of her association with her husband. For example,
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 some one 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
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 actual. interesting in terms of businesses. If you find out that there are
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. 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. Yes.
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.
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. 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?
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 pro gram, 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 coverage of alcoholism or drug addiction under that law, which has been