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out and displays).



Any accommodations that employers must undertake in these nonpublic workplace

best handled by ADA's employment provisions, which require employers to tailor accomodations to the specific needs of the actual job applicant or employee. Imposing public accommodations standards on non-public work space could result in facilities being required to make expensive but unneeded changes (such as installing elevators going only to non-public work areas when no employees require them). If qualified disabled job applicants apply, or employees needing such as accommodation are

later hired

or transferred,

or employees at

the site become

disabled, they would have the protections of ADA's provisions on


IMRA wishes to make brief comments on several provisions of

ADA in areas other than public accommodations.

These include:

Pattern or practice": In finding a 'pattera or practice* of discrimination, multi-site operations should not be found to have multiple violations' for unrelated occurences at physically separate sites. Mass retailers typically operate in many locations, often far-flung and usually with a large degree of decentralization. Typically, store managers or assistant managers handle hiring interviews and decisions on-site, and nearly any manager or employee in a store may come into contact with members

36-873 0-91-5

of the public. When facility managers have operating authority, separate instances should not automatically be charged against the company as a 'pattern or practice. Several years ago, the Judiciary Committee recognized this principle in the Immigration

Reform and control Act.

This is especially true since ADA at present lacks a requirement, found elsewhere in Title VII, that violations be intentional, and that 'pattern or practice" violations be wilful or egregious. IMRA suggests that ADA likewise adopt the requirement of intent generally, and set an even higher standard of intent for its 'pattern or practice" provisions.

Exclusive remedies: ADA does not pre-empt differing state or local government requirements in these areas, leaving employers and operators of public accommodations subject to being sued in several different forums. The bill should either pre-empt differing state and local requirements in the area of discrimination and the disabled, or at a minimum, provide that the remedies provided by ADA are the exclusive remedies for alleged violations of ADA. In states and local jurisdictions where tort actions may be brought for violations of public policy, making ADA remedies exclusive will prevent litigants from bypassing the intent of Congress and, by referring to ADA, availing themselves of procedures -- such as jury trials -- or penalties -- such as punitive damages -- which ADA does not contemplate.

Mr. EDWARDS. We will now recess for a very few minutes for a vote in the chamber.

Brief recess. Mr. EDWARDS. I apologize for the delay. The subcommittee will come to order and we will now hear from the third member of the panel, Mr. James A. DiLuigi.



Mr. DıLUIGI. Good morning, Mr. Chairman. My name is James DiLuigi. I'm executive director of technical information, specifications and quality assurance for the Architectural and Construction Division of the Marriott Corp. I'm an architect. I'm a member of the American Institute of Architects. Prior to joining Marriott 10 years ago, I was engaged in private practice for 11 years. I'm pleased to be here this morning on behalf of the American Hotel and Motel Association to present this testimony on the Americans with Disabilities Act.

The American Hotel and Motel Association has approximately 9,000 member properties; 1.5 million rooms; and, we represent all the major hotel chains, as well as many independent properties of all sizes. In that respect, I think it's important to understand, even though we do represent chains and I'm a member of a chain, each property in that chain kind of has to stand alone. It's an independent business and it has to sink or swim.

AH&MA is and has been for quite some time committed to expanding opportunities for individuals with disabilities, both in employment and in public accommodations. According to statistics, some cited in your reports and some cited in other places, there are somewhere between 37 million and 45 million people with disabilities and apparently 8 million of those folks are looking for jobs. So we have a specific interest.

Also, it's important to understand that one in every two people over the age of 65 has some sort of disability. So we are looking to accommodate disabilities both for those who would be our potential customers, and for those who would be our potential employees. Mark Donovan, one of my associates at Marriott, spoke highly of the employment aspects of this bill before the Labor Committee previously. So today we are going to kind of focus on title III, which are the public accommodations aspects, and on title V of the enabling legislation.

On a little bit of a sadder note and personal note, I'd like to state that there is some sadness in our industry this week. Our President, who I am representing here, Elaine Etess, lost her son, who is also in the hotel business, in an unfortunate accident yesterday. Our President, Bill Marriott, had a heart attack last week. So we ask for your prayers and thoughts for their well-being.

On the issue of the bill, there are three things I'd like to speak about. These are not presented this way in the testimony. This will be a little bit of a more candid discussion. One is the need to understand exactly what is being required. Another is the methodology for developing the design guidelines to help us implement the legislation. The third is balancing costs against return.

The need to understand exactly what is required kind of falls into four stages, and the two gentlemen to my left spoke a little bit about them. The term readily achievable is defined as easily accomplishable, able to be done without much difficulty or expense. These are rather subjective statements and are easily argumentative statements and are the kinds of things that one of the gentlemen on the council mentioned earlier that can lead us into lots of legal arguments and not get the job done that we're looking to try to accomplish.

If, for instance, one owner has more debt than another, if one makes less profit, if one has less occupancy, is he or she less compelled to act than the person next to them that has another property with different circumstances and maybe a similar property? Some items that may appear to be easily accomplishable may be more difficult than first perceived. For instance, if we were to put grab bars in all of the guest baths, the grab bars maybe cost $25 to $100, but to put them in correctly to preserve the safety of the people using them, you have to remove walls and you have to put support in behind them, and that can cost easily $2,000 or more per unit.

Now, we should have enough units; that's not a point of argument here; but we should not go off haphazardly and say we should put them in all the units if we know that the cost is a significant factor. Alterations; make accessible to the maximum extent feasible is the terminology used in the legislation. We would ask what does that mean? What are the priorities? What should our priorities be? We want to help develop the priorities.

Where should we invest our dollars in order to get the benefit of the maximum extent feasible that's asked for? Can routine maintenance and replacement costs be excluded in the definition of spending money for alterations? I don't believe that is addressed in the legislation. And can there be an incentive? For example, if we were to have a 10-year deadline tax credit for implementing certain standards with a diminishing return where, if you were to do it within the first couple of years, you would get a full credit. If you were to delay certain things that needed to be done, you would get a diminishing credit. To be an incentive to take care of these issues that we need to put in our properties.

The third term is major structural alterations. That is addressed in the same language as alterations, but it's not clear where they divide. It is clear that it requires we address passive travel, bathrooms and water fountains in major structural alterations. That particular issue was addressed by my colleague to the left, suggesting that we look at the Pennsylvania statutes which say that 50 percent of the building cost formula might be used in identifying what is a major structural alteration.

Lastly, new construction. We have questions in regard to what is the intent for nonpublic work areas. There are certain work areas that pose a threat or a danger to both able and disabled people and for people with certain disabilities, there are higher risks than those who are fully able. I believe that should be looked at carefully.

The second item, methodology for developing the design guidelines. Here we request the balanced approach with representation of all affected parties. I'm happy to say in the testimony we refer to this particular publication, Design for Hospitality. The AH&MA, the Marriott Corp. and other hotel corporations worked for 2 years with the Paralyzed Veterans of America to develop this design guideline which addressed the public areas in hotels and motels.

It was a struggle; it wasn't simple. We addressed many different kinds of disabilities. We're not just talking about wheelchairs. We're talking about many types of disabilities. As I said earlier, the elderly population, which I will be one of in the not too distant future, of over 65 will be one in two of those people who will have some sort of disability.

So we request a balanced approach. We request to be able to participate and all industry members be encouraged to participate. This is a new territory. There's going to be a lot of exploration needed. There's going to be a lot of testing needed. There's going to be a lot of attitudinal adjustments to be made in solving these problems.

The National Fire Protection Association, which started about 1913, creates some standards aimed at our life safety. They didn't go from fire safe building products to fire proof roofing and building materials to smoke detectors to sprinkler systems in 6 months. It takes a lot longer than that and it's an ongoing process and there are standards that need to be updated approximately every 3 years to be effective.

There are many types of disabilities to be addressed. I would like to stress that. We're not just talking about people who have difficulty because they are in wheelchairs. They maybe have the biggest difficulty in terms of certain aspects of making a facility accessible, but there are people with hearing, with vision, with tactile senses, with range of motion, hand function, with strength and stamina, with mobility and with cognitive ability problems and these can all be addressed through design, but it takes a lot of research and a lot of work and a lot of cooperation.

Lastly, balancing costs against priorities. Perhaps in the design guidelines that are required to be set up, a first objective would be to develop a prioritized list of barriers to be removed. Those lists might be developed according to building types and according to new versus retrofitted construction. These lists don't have to have these solutions, but at least the need should be established so that we know how to work and where to start.

If I had a sum of money available, I'd like to know best how to use it. If I had $10,000, if I had $100,000, or if I had $1 million, I'd like to know where to put that money to best satisfy these needs. I don't want to do A if B is better and I don't want to do B if it has no value unless C is done along with it.

Retrofit costs can be significant; more so for existing buildings than old. For my company, we have approximately 125,000 guest rooms, 55,000 of those were put into service 10 years ago. We didn't know what we know now. We know a lot more today and the buildings today reflect that. It's going to be expensive to go back and we need to know what things are most critical. We would expect for a combination of new and retrofit construction to spend $45 to $116

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