can seriously affect the economic viability of the business before a

decision is rendered.

Access Incentives

Many businesses want to accommodate the disabled, both as employees and as patrons. While many small businesses provide access as they become more economically sound, the Federal government can aid directly in this process. According to the Senate floor debate, the Federal government spends roughly $70 billion in support payments to the disabled - clearly, a large amount of money.

Unfortunately, the only Federal assistance available to businesses to accommodate the disabled is a maximum $35,000 tax deduction that currently exists in the Internal Revenue Code to make structural

alterations. If this nation really wants to accommodate the disabled to the greatest extent possible, the cap should be lifted and the deduction should be expanded to cover physical alterations and auxiliary aids and services, as well as the currently covered structural alterations.

While an expanded deduction would be useful for profitable businesses, a tax credit is necessary for those businesses that do not make enough money to take advantage of a deduction. A small tax credit limited to small businesses would encourage greater access for the disabled and a cooperative, creative spirit among struggling businesses to serve disabled employees and patrons. Such an

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Incentive is a better approach to increase accessibility than the punitive approach currently contained in the ADA bill.

Enforcement Provisions in Title III

While NFIB has serious problems with the requirements of the ADA bill, of no less concem is the enforcement scheme currently included in Title III. Unlike Title I, Title III (the public accommodations section) provides no administrative procedure to correct cases of discrimination.

If a disabled individual has a complaint, that Individual can

attempt to receive injunctive relief (basically, correction of the situation), certain other costs, and attorney's fees. The case would be decided by a federal court.

If the Attorney General has reason to believe that a 'pattern or practice of resistance to compliance (more than one occurrence) has taken place, he can bring a civil action against a business owner. Penalties would include correction of the problem, civil penalties of up to $50,000 for the first violation and $100,000 for subsequent violations, monetary damages, and attorney's fees.

The judge can consider certain defenses on the part of the business owner, including cost of the modification, size of the business. and good faith efforts to comply. These are important defenses for small businesses, but they don't solve the basic problem. Even

relatively modest fines will have serious consequences for many small businesses.

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Keep in mind that one half of all new businesses start up with less than

$20,000 in total capital. And as noted before, the majority of small businesses take out less than $30,000 in income each year.

To ensure fair, reasonable treatment under the law, several changes in the enforcement provisions are necessary. Of primary importance is a clear definition of "pattern or practice' of discrimination. Currently, this phrase is defined differently in various laws. A reasonable definition would be to define pattern or practice as suggested by Attorney General Thornburgh in his recent letter to Senator Kennedy. He states that the term pattern or practice should refer to egregious and willful acts of discrimination.

Small businesses, particularly, may unintentionally commit acts of discrimination due to the vague language of the ADA bill. Remember that small business owners do not have access to civil rights attorneys and personnel managers to advise them on the complexities of this type of legislation which has never before applied to them. They do not have access to the Federal Register to get an idea of what they are required to do. And they frequently do not belong to organizations that can adequately inform them of what their specific type of business must do to approach compliance.

It would be naive to think that innocent violations of the law will not occur, despite the best intentions of business owners. Therefore, it would be reasonable and correct to reserve the civil actions brought by the Attomey General to those cases where discrimination was truly egregious and willful.

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The original intent of civil rights legislation was to "make a victim whole". By providing injunctive relief, victims will be made whole. For those cases where discrimination is egregious, the civil penalties will still apply.

Also of concem in the enforcement section of Title III is the

undefined phrase 'monetary damages". To NFIB's knowledge, this term has not previously been defined in case law. While the Senate committee report indicates that monetary damages are not punitive, it does not state what is intended.

The chief Senate sponsor provided some light to this issue by stating firmly and repeatedly that "damages' could not be awarded under the ADA bill. This would seem to imply that damages for pain and suffering. which can be large damage awards, are not to be included. However, neither the business community nor the courts have a specific definition upon which to understand potential liability without a clarification of 'monetary damages". Therefore, NFIB strongly urges that monetary damages be specifically defined to mean out-of-pocket expenses incurred by a plaintiff as a result of the actions of a business. Such clear direction would provide consistency and understanding of the law.

Another concem with respect to the enforcement procedures in both Title I and Title III of the ADA bill is a result of a recent Federal court decision regarding jury trials. In the past, jury trials were not permitted except in cases brought under one particular law written in the post-civil war era. For civil rights laws written since 1964

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(Including the Civil Rights Act and the Rehabilitation Act used as bases for the ADA bill), no jury trials were allowed. However, In Beesley v. Hartford Fire Insurance Company, the court overturned the prohibition against jury trials, leaving a question about procedures for current civil rights cases.

A specific prohibition against jury trials in cases involving the disabled is important to maintain fairness. Unlike other types of civil rights, the determination on whether an individual is disabled under the provisions of the ADA bill will be very difficult to make. In addition, because of the subjective standards and vague language in the ADA bill, it will take many years of interpreting past civil rights laws, the legislative history of the ADA bill, and the regulations to make fair. balanced decisions.

Conclusion

As with all civil rights laws, fairness should be the overriding issue in the ADA bill. However, to date, the bill has moved much too fast for careful, thoughtful, responsible consideration. The Senate was held to artificial time deadlines that did not permit full and careful

consideration by Senators. In fact, the ADA bill was marked up just days before the August recess, and the committee report was not available until near the end of the recess. Yet the bill was brought to the floor only two days after Senators returned to Washington, and it passed the same day.

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