tive. So that's-I don't see how that could be discerned as being someone who has a physical impairment-just being homosexual. So I don't see how that could be part of the decision process. My concern is that we do exclude many people that want to volunteer, want to be a part of care. It is absolutely crucial in this strategy to get people in their homes, out of hospitals, and we need help and churches can help in a significant way and others can help but if it's found out that you're helping someone and you lose your job, then that's going to diminish the potentiality of getting individuals to care.

So I believe that's a very crucial element of this legislation.

Ms. COOPER. I would just add that if somebody's operating on the assumption that all homosexuals are HIV positive, that's a pretty irrational fear and it seems like that's exactly what the "regarded as" category is designed to address-irrational fears that employers have. To the extent that the decision is based strictly on homosexuality, it's not covered explicitly by this bill.

To the extent that the decision is based on the irrational fear that all homosexuals are HIV positive, that's another matter altogether and then somebody's being discriminated against based on the perceived status of a disability that doesn't in fact exist, that doesn't in fact limit their capability to perform on the job or that doesn't make them otherwise unqualified for the position and I think that that would be a legitimate basis for raising a complaint. Ms. KIKO. It just seems a fairly fine line to attempt to understand if there is discrimination going on, if it is basically because someone has an irrational fear against homosexuality in general or if they have an irrational fear that all homosexuals may have the AIDS virus and I think that-it just makes me wonder whether there is in fact an exclusion for homosexuality in the bill.

Ms. COOPER. I don't see that line as being so fine. I think that there's a difference between facts and perceptions that aren't grounded in facts. To the extent that somebody excludes somebody from a job because they're HIV positive and they represent a direct threat, therefore, they're not otherwise qualified, then there is a ground for excluding them from the work force.

To the extent that somebody believes somebody is HIV positive and they're not and therefore there is no grounds for thinking they're a direct threat, then there is a basis for a complaint. To the extent that somebody only voices, look, you're homosexual, we don't hire homosexuals. There's no basis for a complaint. To the extent they say, you're a homosexual and we all know homosexuals are HIV positive and therefore I'm not going to hire you, there's a basis for a complaint.

The real test is and I think this is pretty bright, it's a pretty bright line, if it's an irrational fear based on the status of being HIV positive or an irrational fear and a direct threat based on the status of being HIV positive, it falls within the provisions of the statute.

If somebody is hired or not hired simply by virtue of the fact that they're a homosexual, it's not covered by the statute. To the extent an employer gets those mixed up, if their mixup is grounded in fact, they don't have a problem. If it's not grounded in fact, they might.

I don't see a fine line there at all. I mean, all we're doing is asking people to use their heads when they make hiring decisions. I don't see that it's a fine line.

Mr. EDWARDS. Well, both of you have been very helpful and it's been a great pleasure to have you testify. Thank you very much. [Whereupon, at 11:43.a.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]

36-873 0-91-7

AMERICANS WITH DISABILITIES ACT OF 1989

THURSDAY, OCTOBER 12, 1989

HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,

Washington, DC.

The committee met, pursuant to notice, at 10:22 a.m., in room 2141, Rayburn House Office Building, Hon. Jack Brooks (chairman of the committee) presiding.

Present: Representatives Jack Brooks, Robert W. Kastenmeier, Don Edwards, John Conyers, Jr., William J. Hughes, Mike Synar, Patricia Schroeder, Barney Frank, Bruce A. Morrison, Edward F. Feighan, Howard L. Berman, Harley O. Staggers, Jr., George E. Sangmeister, Hamilton Fish, Jr., Henry J. Hyde, F. James Sensenbrenner, Jr., Bill McCollum, George W. Gekas, Michael De Wine, William E. Dannemeyer, Howard Coble, D. French Slaughter, Jr., Lamar S. Smith, Chuck Douglas, and Craig T. James.

Also present: Representative Steny H. Hoyer.

Staff present: William M. Jones, general counsel; Robert H. Brink, deputy general counsel; Daniel M. Freeman, counsel; and Alan F. Coffey, Jr., minority general counsel.

OPENING STATEMENT OF CHAIRMAN BROOKS

Mr. BROOKS. The committee will come to order.

I have called this morning's hearing of the full Committee on the Judiciary to receive the testimony of the Attorney General of the United States on the bill, H.R. 2273, the Americans with Disabilities Act [ADA]. The fact that this hearing is being held before the full committee underscores the importance of this legislation and the eminence of our witness this morning.

Over the past several decades, our Nation has made some measure of progress in protecting the rights of those with physical or mental conditions that limit their activities and full participation in our society.

The Rehabilitation Act of 1973, which outlaws discrimination in federally funded programs, and the Fair Housing Amendments Act of 1988, which was shaped by this committee, are important steps in the process of ensuring equitable treatment to the disabled.

Nevertheless, under current law, disabled Americans are not accorded the same protection against discrimination that the law provides to racial minorities, religious groups, or others who in the past have been denied the chance to participate on an equal basis in our society's activities.

The Americans with Disabilities Act is intended to redress this shortcoming in the law. It would prohibit discrimination against the disabled in the areas of employment, public transportation services, public accommodations, and telecommunications.

It is clear that there is a strong consensus in the Congress, in the executive branch, and in the Nation in favor of this legislation. The Senate passed S. 933, a companion version of the bill which is before us today, by a vote of 76 to 8 on September 7. The administration has announced its support of the measure as passed by the Senate. H.R. 2273 itself has 230 cosponsors.

As we work to move the ADA through the legislative process, it is important for us to put into place a structure that preserves this consensus in favor of the rights of the disabled, at the same time that it seeks to protect those rights.

In order to do this, we must ensure that the legislation we enact is as clear and precise as possible, so that those who are affected by its provisions understand what their duties are under the law and can comply with them.

This will be the focus of the testimony of our witness this morning, and the questions that the members of the committee pose to him. As the chief law enforcement officer of the Nation, it will ultimately be the Attorney General who bears the responsibility for ensuring that the Americans with Disabilities Act works effectively and consistently with the intent of Congress.

This is Attorney General Dick Thornburgh's second appearance before the committee during this session of Congress. As all of you know, this former Governor of Pennsylvania and former U.S. attorney is a lead player in some of the most important issues facing our Nation, including the war against drugs, our immigration policy, and our efforts to control street crime.

General, we welcome you and we appreciate your taking the time to meet with us this morning.

Now, I will yield to the distinguished ranking member from New York, Hamilton Fish.

Mr. FISH. Thank you, Mr. Chairman.

I want to join with you in welcoming the Attorney General, and particularly to thank him for his leadership role in this legislation, his important statements and letters going back to July, and more recently to newspapers, clarifying comments made about this legislation, have at all stages shown a thorough analysis and understanding and strong support for this legislation, which has meant a lot to its sponsors.

Thank you.

Mr. BROOKS. I also want to recognize the distinguished whip of the Democratic Party, Steny Hoyer from Maryland, who has graced us with his presence here this morning. He has been interested in this legislation.

Mr. HOYER. Thank you very much.

Mr. BROOKS. Mr. Attorney General, I want to assure you, I am going to stay here just as long as I can. But I believe we are going to have the flag bill on the floor this morning, and I will need to be over there to manage that bill.

Mr. THORNBURGH. What time does the flag go up?

Mr. BROOKS. I need to go over shortly. You can proceed.

Mr. THORNBURGH. I understand.

STATEMENT OF DICK THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

Mr. THORNBURGH. Thank you, Mr. Chairman.

Mr. Chairman, distinguished members of this committee, it is a great pleasure for me to be able to present to you the administration's views on the proposed Americans with Disabilities Act. It is exciting to be a part of a process which, this year, will see the passage of legislation that will extend the Nation's civil rights guarantees to Americans with disabilities.

Persons with disabilities have already made enormous contributions to American society, and can and will contribute even more as legislation goes forward in this Congress to increase their access into the social and economic mainstream of American life. We want America to be an opportunity society for all Americans, and that requires taking actions to make opportunities available to Americans with disabilities.

Despite the best efforts of all levels of government and the private sector, and the tireless efforts of concerned citizens and advocates everywhere, many persons with disabilities in this Nation still lead their lives in an intolerable state of isolation and dependence.

Over 15 years have gone by since the Rehabilitation Act of 1973 conferred on Federal and federally assisted programs the responsibility to accommodate Americans with disabilities. In that time, the doors of opportunity have been opened to persons with disabilities.

Nevertheless, persons with disabilities are still too often shut out of the economic and social mainstream of American life. The unreasonable and, in most cases, unthinking failure to eliminate attitudinal, architectural, and communications barriers in employment, transportation, public accommodations, public services, and telecommunications denies persons with disabilities an equal opportunity to contribute to and benefit from the richness of American society.

The continued maintenance of these barriers imposes staggering economic and social costs and inhibits our sincere and substantial Federal commitment to the education, rehabilitation and employment of persons with disabilities. The elimination of these barriers will enable society to benefit from the skills and talents of persons with disabilities and will enable persons with disabilities to lead more productive lives.

On June 22, 1989, I testified on the Americans with Disabilities Act before the Senate Committee on Labor and Human Resources. At that time, the administration endorsed the concept of comprehensive legislation in the disability rights area and viewed S. 933, the Senate analog to H.R. 2273, as the appropriate vehicle for such landmark legislation.

My testimony did, however, raise areas of concern that needed to be addressed before the administration could specifically endorse the Americans with Disabilities Act. During this past summer, representatives of the administration engaged in prolonged negotia