Unlike the Senate. Members in the House of Representatives have the opportunity to carefully review the language contained in the ADA bill. It is well worth the time and energy, since the bill affects virtually every business in America.

Think of the neighborhood dress shop built in a tum-of-the-century building: think of the dry cleaner on a steep incline; think of the hardware store with narrow aisles and goods stacked to the ceiling: think of the delicatessen where the owner is trying to feed, clothe, and educate his children. All of them will be affected in some degree by the ADA bill.

NFIB has listed a number of concerns with the Senate-passed ADA bill. While it is not an exhaustive list, addressing these points will result in an improved bill to accommodate the disabled and to assist the business community in attaining that goal. Several of the suggested changes are simply technical in nature to clarify intent. Others would make broader changes to make the bill more equitable which will better serve everyone.

Without question, the ADA bill is the most sweeping civil rights legislation since the Civil Rights Act of 1964. It is not enough to agree with the goals of the bill. Members of Congress must also reach a balance between noble intentions and the consequences of ill-considered language. NFIB urges Members of Congress to carefully weigh the ramifications of the specific language in the ADA bill to

enact the best legislation possible.

0206G/wl

-15

Mr. EDWARDS. Now, Mr. Hoey.

STATEMENT OF CHRISTOPHER J. HOEY, ASSISTANT TREASURER AND ASSISTANT GENERAL COUNSEL, WOOLWORTH CORP., ON BEHALF OF THE INTERNATIONAL MASS RETAIL ASSOCIATION Mr. HOEY. Thank you.

I am Christopher J. Hoey. I'm assistant secretary and assistant general counsel for the Woolworth Corp., where I deal with personnel and employment law issues.

I am here for the International Mass Retail Association and its 140 major discount retail chain members, who operate over 25,000 stores and employ well over a million individuals. IMRA appreciates this opportunity to express the views of the Nation's mass retail industry on the Americans with Disabilities Act.

ADA's very laudable objective and important goal is bringing disabled persons into the mainstream of American life. We completely share that objective and endorse that goal. Achieving it will not only benefit disabled persons but the entire Nation. By resolving some practical questions about ADA's effects in some areas and by fixing some provisions in the bill that are ambiguous, imperfectly drawn, or have insufficiently considered likely adverse effects, this subcommittee can improve ADA.

IMRA's questions and suggestions on public accommodations fall into four main areas: (1) Identifying ADA's specific requirements for existing buildings and the costs they impose; (2) adopting a sitespecific test for what actions are readily achievable; (3) giving building operators sufficient flexibility to develop the most workable alternatives; and (4) clarifying new construction requirements, particularly in the area of potential places of employment.

Existing buildings-the Senate report stresses that ADA's intent is to require changes to existing buildings used by public accommodations only if they can be achieved without major expense or difficulty. IMRA remains concerned that this intent has been incompletely or imperfectly realized.

One statement in the Senate report has caused considerable concern in retailing. It states that ADA may require the removal of physical barriers, including those created by the arrangement or location of such temporary and movable structures as furniture, equipment, and display racks. For example, a restaurant may need to rearrange tables and chairs or a department store may need to adjust its layout of display racks and shelves in order to permit access to individuals who use wheelchairs where these actions can be carried out without much difficulty or expense.

Layout costs are substantial. My company normally calculates the cost of physically moving merchandise from one location to another within the store, even an adjacent location, at $2.50 per square foot. Thus, in a relatively small outlet of 10,000 square feet of selling space, a reconfiguration could cost the average retailer $25,000, but there are other much larger costs associated with relayouts.

Many stores have at least some aisles that are not wide enough for a wheelchair to navigate. It would be a drastic and, in some cases, a ruinous step to impose 4- or 5-foot aisles on stores which

presently have 2- or 3-foot widths. This would mean that affected areas would lose up to three-fifths of their productive space, with consequent reduction in sales and employment.

Equally profound would be the impact if ADA could be interpreted as limiting the height of merchandise shelves and displays. Mass retailers typically stock merchandise to a height of at least 8 feet. Some go significantly higher. There would be substantial costs in lowering existing shelves so as to be reachable by an individual using a wheelchair-up to $10 per square foot in labor and equipment costs alone, but by far, the largest cost would be in lost productivity, as retailers would forfeit one-half or more of the current shelf space, with corresponding reductions in sales, profits, and employment.

Interpretations that would force across-the-board changes in such key productive factors as aisle width or shelf height would be the functional equivalent of closing a substantial fraction of the Nation's stores or even of outlawing some types of stores. The subcommittee should make clear that advancing the rights and aspirations of disabled persons does not require substantial reformatting of store aisles, shelves, fixtures, and displays so as to provide physical access to every nook and cranny of a store.

Site-specific analysis in public accommodations-for multisite companies, such as mass retailers, whether or not an accommodation is "readily achievable" or creates an "undue burden" is judged on a very different basis than ADA currently provides. It defines "readily achievable" as easily accomplishable and able to be carried out without much difficulty or expense.

Up to this point, we can support this section fully, as long as architectural barriers mean a building's major structural features, such as walls, roofs, stairways, entranceways, and interior supports, but not its nonstructural items, such as merchandise displays, counters, or shelves, but the current definition of "readily achievable" raises one major difficulty that, if not remedied, will have significant and unfortunate consequences.

ADA defines the factors to be considered in determining whether an action is "readily achievable" as including the overall size of the covered entity.

Our company has analyzed the continued economic liability of any particular facility not on the basis of the company's overall size but on the basis of the particular site's performance. The same is true for assessing a change in operation, such as remodeling. Whether a company continues to operate at any particular site depends on the site's operating results, not the company's. A location which becomes marginal or unprofitable faces closing, even when the company is profitable overall.

Ignoring these site-specific economics is likely to produce more, not fewer, closings. That result would not benefit disabled or nondisabled workers and customers.

Our testimony gives the real world of a company which operates over 500 very small stores located in communities with populations of 10,000 or less. For a significant number of stores, the annual gross sales is less than $250,000. An additional $2,000 expense figured on a facility earning an industrywide pretax average return of 2 percent of sales would need an additional $100,000 in sales to

offset the added $2,000 expense. Some types of alterations-for example, being required to retrofit an electric-eye door, which costs. about $8,000-would wipe out one of these stores.

This example in the testimony dealt with small rural communities, but the same could be said for many older, inner-city stores, whose customers may experience special difficulties finding or getting other places to shop.

Applying the "readily achievable" on an establishment basis rather than on an enterprisewide basis has ample precedent under sections 503 and 504. Section 503 compares the nature and cost of an accommodation with the size of the operation involved in the contract, not to the overall size of the enterprise received in the contract. Section 504 uses the size of the program activity in the geographically separate facility, not the overall size of the enterprise. ADA should also use site-specific rather than enterprise-wide comparisons in analyzing "readily achievable" and "undue burden" and "undue hardship."

Ensuring flexibility on accessibility alternatives-where an accommodation is required, an employer or facility operator needs flexibility to accommodate disabled persons in any effective method. This avoids forcing more expensive and disruptive methods where better, less burdensome alternatives exist.

We believe this is ADA's intent, but it needs clarification to make clear it is not discriminatory but, rather, reasonable accommodation for a store to employ any effective method of its own choosing to assist disabled customers to obtain access to goods and services in areas of a facility that are not completely accessible. Where not all merchandise is readily accessible to some disabled customers, the facility needs to have the flexibility to respond in a systematic fashion that is most appropriate for its type and size of operation, and our testimony gives some examples.

The point is that the facility should have the freedom to provide an alternative method of accommodation that effectively serves disabled customers.

New construction-the dramatic and, we believe, unintended impact of restricting such key operational factors as aisle width, counter height and shelf height, which I have already outlined, would remain true for new construction. We believe that its accessibility requirements properly deal with structural factors, not store layout.

In addition, there needs to be practical alternatives to completely restructuring fixtures and equipment used in normal operation. For instance, a snack bar or lunch counter should have the alternative of making some, not all, of its spaces of a height and width suitable for wheelchairs or its customers.

Finally, "potential places of employment" should be removed from section 303(a)(1). If it remains, it may have the effect of bringing under the public accommodations sections nonpublic working areas, such as backrooms and behind checkout and displays.

Any accommodations that employers must undertake in these nonpublic workplace areas are best handled by ADA's employment provisions, which require employees to tailor accommodations to the specific needs of the actual job applicant or employee.

ADA speaks of alterations or major structural operations but nowhere defines either term. IMRA suggests adopting the sensible delineations used in the Pennsylvania statute enacted last year which ties the degree of accessibility required to the percentage of the building's value affected by the remodeling or renovation.

In the area of auxiliary aids and services, we have three comments and suggestions.

First, "readily achievable” ought to be the standard for provision of aids and devices in employment and public accommodations, as well; second, a site-specific analysis is the most realistic and productive way of addressing needed accommodations; and finally, the discussion of auxiliary aids and devices should explicitly take into account how frequently the service is needed, the size of the particular facility or establishment, and the economic benefits.

IRMA greatly appreciates this opportunity to share with the subcommittee our suggestions for making ADA as workable and costeffective as possible in ending discrimination against the Nation's disabled.

Mr. EDWARDS. Thank you, Mr. Hoey.

[The prepared statement of Mr. Hoey follows:]