continues to operate in any particular site depends on the site's operating results, not the company's. A location which becomes marginal or unprofitable faces likely closing, even when the company is profitable overall, just as an investor with a diversified portfolio does not keep non-performing assets just because the overall portfolio is profitable. Ignoring these site-specific economics - as would be the case if the cost of any accommodation is assessed on the basis of its - impact on the overall company is likely to produce more, not fewer, closings. That result would benefit neither disabled nor able-bodied workers and customers. Take one "real world" example. One IMRA member company operates over 500 very small stores, typically about 6,000 square feet, located in communities with populations of 10,000 or less. The stores average five employees; some have only two or three. For a significant number of stores, the annual gross sales is less than $250,000. Industrywide, the gross pre-tax operating profit is about 2% of sales. This means that an additional $2,000 expense imposed on a facility earning that average return 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 - be heavy enough to wipe out the profitability of one of these stores. Yet since the company is not a small business and shows a profit overall, it might well be required, under ADA's present test for "readily achievable," to undertake major costly changes or stop operating in those locations which are primarily in underserved rural areas. According to the company operating those 500 smalltown stores, analyzing what actions are readily achievable on the basis of the company's overall size, rather than on the size of the facility in question: will force us to close many of the smaller, marginally profitable stores, and reduce the overall economic viability of our company. Thus, while the goal of ADA is to extend access to jobs and retail services to the handicapped, the actual effect will be to reduce the number of jobs and services to everyone, including the handicapped. The hardest hit will be the small rural communities which are often only served by small retail establishments which are part of a larger chain. The same could be said for many older inner-city stores whose closings would have a similar impact on the populations they serve, who may experience special difficulties finding or getting to other places to shop. Applying the "readily achievable" test on an establishment basis, rather than on an enterprise-wide basis, has ample precedent. Regulations under sections 503 and 504, which are the model for much of ADA, use a similarly better-targeted analysis. Under Section 503, the nature and costs of an accommodation are compared to the size of the operation involved in the contract, not to the overall size of the enterprise receiving the contract. The comparison in section 504 is with the size of the program or activity involved, which for most private-sector corporations does not mean the entire corporation (unless the Federal assistance is extended to the corporation as a whole). Section 504 generally applies to "a geographically separate facility receiving Federal assistance, not to the overall enterprise. Likewise, the proper comparison under ADA should be with the affected facility or establishment, rather than with the overall size of the enterprise operating the facility or establishment. The term "facility" already appears several times in ADA; the term ́establishment is well-defined in the Fair Labor Standards Act. practicality and precedent both - - a site For these reasons specific, rather than enterprise-wide, test should apply both to 'readily achievable" and "undue burden analyses in the public accommodations section, and to "undue burden" in section 101(9) of ADA's employment title. Ensuring flexibility on accessibility alternatives A fundamental principle for IMRA's approach to ADA'S provisions on reasonable accommodations is that, where an accommodation is required, sufficient flexibility needs to be provided for the employer or facility operator to accommodate disabled persons in any effective method. This is necessary to avoid forcing more expensive and disruptive methods where alternatives exist that are better-suited to, and less burdensome on, the business involved. IMRA believes that this is ADA's intent, but some statutory and report language needs clarification to give adequate guidance to the Department of Justice and courts. For instance, sections 302 (b)(1)(A)(ii) and (iii) provide that: It shall be discriminatory to subject an individual or to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class... with a good, service, facility, privilege, advantage ΟΙ accommodation, or other opportunity that is as effective as that provided others. In addition, section 302(b)(1)(B) provides that: INTEGRATED SETTINGS. Goods, facilities, privileges, accommodations, and afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual. IMRA believes that these provisions must be more fully and carefully explained so as to make clear that it is not discriminatory, but rather a reasonable accommodation, for a store to employ any effective method of its own choosing to assist disabled customers obtain access to goods and services in areas of a facility that are not completely accessible. For example, the store could designate store clerks, greeters, managers or other personnel to respond to questions or obtain merchandise that a customer is unable to locate or reach. Some establishments may choose to use accessible telephones for such inquiries, while others may prefer other systems allowing customers to signal for and receive assistance. 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 |