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life for people with AIDS and HIV infection, they are as the Presidential

Commission and the Institute of Medicine have reported, the linchpin of our

nation's effort to control the HIV epidemic.

Thousands of Americans who would seek voluntary counseling and testing services and many who need life prolonging medical treatment will not come forward if

they believe that doing so could result in the loss of their job or lack of access to

public accommodations. Legislation that is based not only on compassion, but

sound public health principles, is a must if we are to reach and assist these

individuals.

We are extremely pleased that the majority of the United States Senate and the
White House have made a bi-partisan commitment to enact the Americans with

Disabilities Act. We oppose any effort to reduce the scope of coverage of the present bill, particularly in respect to HIV, the specific focus of this Commission.

The ADA will provide a cicar and comprehensive mandate to greatly extend discrimination protections for people with disabilities. We are proud to endorse

this landmark legislation."

A diagnosis of HIV infection and its related discases is clearly a devastating event in a

person's life. The subsequent acts of irrational discrimination that occur have beca onc

of the unfortunate hallmarks of our nation's response to the HIV epidemic A review of

the front page headlines over the past eight years will awaken in most of us the urgent need for a bill like the Americans with Disabilities Act. Remember: Ryan White

denied entry to school; the Ray family -- burned from their home; a woman with

AIDS

denied entry with her children to a public swimming pool; a bright young

attorney forced into poverty because he was fired from his job. The ADA will not be able to address all forms of private discrimination, but it will provide protection in !

the critical areas of private employment and public accommodation.

Mr. Chairman, you may wonder how a Baptist minister from Texas sojourned through local ministry to families affected by AIDS, to city and state task forces and finally to the national level and Congressional testimony on this bill. The answer is simple: I have seen first hand the dual tragedy of HIV infection and illness and the cruelty of discrimination. I walk with people on a daily basis who encounter the cruelty of discrimination. I have listened to their words of bewilderment as to how a society such as ours could be so callous to a person who is sick. I have seen families living in absolute fear at the thought that one of their family member's HIV positive status might be disclosed. I have witnessed people who are HIV positive, and who are healthy contributing members of our society, lose their jobs, their homes, and their medical insurance due to discrimination. The question always arises, "How can people be so mean...and how can our society be so cruel?" With the passage of the Americans with Disabilities Act, Congress will be able to lead our societal structures in providing a compassionate response of equal protection to the people with disabilities in nation, including the people with HIV infection.

These stories and hundreds like them provide the impetus for action for
the National Commission on AIDS and for millions of compassionate and
concerned Americans.

The wonderful work of the many commissions and task forces that have addressed the AIDS epidemic have virtually expressed unanimous agreement that anti-discrimination protections are the cornerstone to addressing the complex public policy issues presented by AIDS. The good work of these dedicated and concerned citizens has moved many city and state legislatures to enact anti-discrimination measures, but a great deal more needs to be done. In my own experience, neither the city councils of Dallas County, nor !

the Texas state legislature, have formally adopted the recommendations made by the commissions established to advise them. The action by the U.S. Senate last month was the first hopeful and direct statement that perhaps the Congress will take the leadership and move the ADA, with the blessing of President Bush, in a timely manner. Please be assured that for myself, the Commission and, most importantly, the persons in the HIV community, this action is enthusiastically welcomed.

In conclusion, Mr. Chairman, our nation's public policy, is dependent on the responsible and informed actions of the Congress. The ADA is a bill that utilizes fifteen years of anti-discrimination protections for people with disabilities in federally assisted programs and extends those protections to the private sector. The bill's inclusion of people with HIV infection, AIDS, and those who care for them is a hallmark in our fight against the epidemic. There may yet be challenges against inclusion of such individuals. Exclusion would be a tragic mistake. As Sec. Louis Sullivan, a fellow commissioner, has stated

discrimination against individuals infected with the virus is unacceptable. This administration is committed to enacting Icgislation that will prohibit such discrimination. Therefore, I urge you to remember that this bill has the strong support of the President; bipartisan leaders of the Congress; a multitude of national organizations including public health professionals, religious communities, service organizations and advocacy groups and particularly of the National Commission on

AIDS.

We have as a nation the blessings of wealth and resources. We pride ourselves on our compassion and spirit. lo passing the ADA, the Congress will embody the best of the American spirit and send a needed message that cqual rights and compassion are standards this nation will uphold with pride and vigilance.

Thank you.

Mr. EDWARDS. Mr. Sensenbrenner.

Mr. SENSENBRENNER. Thank you very much. Ms. Cooper, I would like to add my voice to the chairman's in commending you for your testimony. I think that you have come up with some very concrete examples as to the effects of discrimination on people who are disabled and those who are severely disabled and how counterproductive that discrimination is.

Your statement that your getting the job has saved the Federal Government $40,000 to $50,000 per year. I think if we can just multiply that by all of the other people who are in the situation that you were in prior to your employment, we would be able to make our society better as well as reduce the Federal budget deficit a bit.

I can say that, in my family, with my wife having disability, probably the thing that has stood out the most since we got married is, 3 years ago when President Reagan appeared in my district, she had to be taken to the stage alone for 1/2 hours prior to the President's appearance, with the other elected officials and their spouses. She stood up there underneath the hot television lights in front of a crowd of several thousand people for 1/2 hours before the President arrived and the show came on, and you can imagine what that did to her makeup, among other things.

I'd like to ask a question or two, if I could, to you, Reverend Allen. Now, as you know, the Senate, when it passed the bill, passed a provision that specifically excluded homosexuality from the definition of a disability. While HIV-related diseases are not exclusively homosexual, I think that it is fair to say that the preponderance of those who are HIV positive are homosexual by sexual preference.

Given that basic framework, how do we deal in the context of the Senate-passed bill with someone who is an admitted homosexual and, thus, not disabled by definition and one who has tested HIV positive, particularly in the employment discrimination provisions?

Mr. ALLEN. I think it should be emphasized that we're dealing with illness. We're dealing with someone who is disabled. So one's sexuality should not be an issue in this decision process of an employer. So that's how we deal with it. Is this individual able to do the work? That's how I would deal with it.

Mr. SENSENBRENNER. I guess I'm looking for both a legally acceptable and a politically acceptable clarification of what I think is probably a contradiction in terms. Obviously, with the exemption for homosexuality in the Senate bill-and let's face it, that's the way the bill is going to pass-an employer could simply turn down an application on the basis of admitted homosexuality of the applicant and be exempt from any kind of sanctions, and we do not get into whether the person has tested HIV positive or not. Now, how do we get out of this conundrum?

Ms. COOPER. May I jump in here for a moment, sir?
Mr. SENSENBRENNER. Sure.

Ms. COOPER. I think that part of the answer to that problem lies in the burden of proof under the model 504 case. In the 504 case, the plaintiff, the person who is claiming that they have been discriminated against based on their disability, has to show enough evidence to at least raise an inference that the category in which they fall, that falls under the qualified disability label, if that-I mean- let me back up for a minute.

In order to make out a 504 case, somebody would have to show that they, in fact, meet the definition of a disabled person within the statute. Homosexuality is excluded, but being an HIV positive person is not. If there was enough evidence to show that the employer's action was calculated based on the presence of HIV positivity, that would then make outMr. SENSENBRENNER. Then the complainant has met his burden?

Ms. COOPER. That's right. In other words, the fact that somebody is a homosexual wouldn't make out that prima facie case.

Mr. SENSENBRENNER. In other words, what you're saying, Ms. Cooper, is that we don't need to change the definitional sections of the Senate-passed bill in order to get ourselves out of the conundrum which I have asked in my question to Reverend Allen.

Ms. COOPER. No. You would have the same problem with somebody who had another characteristic that is specifically exempted, but also perhaps had a disability. If the employment decision was based on some acceptable criteria, such as the use of illegal drugs, then that does not raise the issue of discrimination based on disability under this statute. There would have to be some other additional indicia, enough evidence to at least raise an inference that the decision was, in fact, calculated based on a covered disability for there to be a prima facie case.

Mr. SENSENBRENNER. In other words, this is basically a determination that is made by the trier of fact.

Ms. COOPER. Well, I don't think you would necessarily say that it's a determination based on the trier of fact, because you can-a judge can grant a directed verdict if the inference hasn't been raised and the plaintiff hasn't made out his case and the defendant doesn't even have to go forward. You wouldn't necessarily have to have the judge sitting as trier of fact at the end of the case making that determination. It comes very quickly.

Mr. SENSENBRENNER. Thank you very much.

Mr. EDWARDS. Ms. Cooper, you were here when the representatives of various businesses testified and the witness for small businesses felt that there was really too much of a burden on small businesses; the mom-and-pop store, the two or three employees, and so forth. Do you think that this bill puts too much burden on small businesses?

Ms. COOPER. I don't, and I think that there is a principal difference between the sections in public accommodations and the section in employment. The employment section exempts small business, but the exemption of businesses that employ 15 or fewer people wouldn't preclude employment opportunities for persons with disabilities. There would be other businesses out there that persons with disabilities could go to.

But if you turn around and you look at the issue of access, if you exempt small businesses, then access is really what is lost. The very purpose of the public accommodation section is undermined by any exemption based specifically on the size of the business. I think it's a legitimate consideration in some instances to consider more than just size, but size alone is not enough of an indicia of an

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