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performing the same tasks that others perform on a daily basis. But persons with disabilities are all too often not allowed to participate because of stereotypical notions held by others in society -- notions that have, in large neasure, been created by ignorance and maintained by fear.
It is precisely these sorts of antiquated attitudes that have blocked people with disabilities from entering the mainstream of American life. Certainly attitudinal changes cannot be simply commanded or even legislated out of existence. No particular court order or single piece of legislation can alone change longstanding perception or nisperceptions; . regrettably, attitudes can only be reshaped gradually. One of the keys to this reshaping process, however, is to increase contact between and among people with disabilities and their more able-bodied peers. And an essential component of that effort is the enactment of a comprehensive law that promotes the integration of people with disabilities into our communities, schools, and work places.
Mr. Chairman, the "Americans with Disabilities Act" can be the vehicle that brings persons with disabilities into the mainstream of American life. We have an historic opportunity to move legislation through the Congress given the broad support for its purpose. On behalf of the Administration, I pledge to this Committee and to the Congress our support to produce a bill that can be signed this year.
Mr. EDWARDS. As explained to you, the chairman is unavoidably detained on the floor to handle the American flag bill.
I was pleased to read in the paper when you first endorsed the ADA. As former chairman of the Americans for Democratic Action, does that include that ADA?
Mr. THORNBURGH. I will take the fifth amendment on that.
Mr. EDWARDS. Mr. Attorney General, the chairman is very interested in asking you this question. Would you suggest that additional attention be given to providing more precise statutory definitions of such terms as "readily achievable" and "undue burden" in the law. That has caused some problems and whether or not that will open up different matters to lawsuits.
Mr. THORNBURGH. Various Members in this House and the other House have raised this question with me, Mr. Chairman. I think it is important to note that most of the terms used in the Americans with Disabilities Act that prompt such inquiries, terms such as "reasonable accommodation," "undue hardship," "undue burdens,' "fundamental alteration” derive from already existing legislation, section 504 of the Rehabilitation Act of 1972. The term "readily achievable” is fairly narrowly defined in the legislation, stating that retrofitting, for example, must be undertaken only where it is easily accomplishable and can be carried out without much difficulty or expense.
It seems to me that in the last case it would be difficult to provide a more precise definition of the term "readily achievable" than the act contains and which has been the subject of much discussion.
With regard to the others, what one might call "terms of art," they have acquired in the 15 years or 16 years that they have been part of the accepted meaning in the courts and through regulatory practices that ought to reduce any confusion or litigation to an absolute bare minimum.
Obviously, applying these terms to new factual situations is going to create new questions. But the notion that a whole flood of undefined terms is being loosed on an unsuspecting public, I believe it much exaggerated.
Mr. EDWARDS. Thank you. I believe we would like to send you some very specific questions in writing.
The committee will be operating under the 5-minute rule in order to give all the members the opportunity to question the Attorney General.
The gentleman from New York, Mr. Fish.
I believe we will have to go to vote on the floor before we get to that answer.
The committee will recess now to go vote.
Mr. Fish. Mr. Attorney General, I am sure that you and I agree that this is the most important civil rights legislation of this session of Congress. As I said before, I certainly do appreciate your leadership role. We all do. It is incumbent on us as legislators, however, to do the best of our ability to assure that this comes out the way we want it and that it is clear, as you mentioned.
I would like to raise an issue in this spirit. The term "covered entity" means an employer, employment agency or joint labor management committee. In two major pieces of major legislation, the Immigration Control Act of 1986 and more recently, the Fair Housing Act, we get into this question.
The thought arises, shouldn't a “covered entity" be more site specific and the definition go to the facility rather than a general word like "employer?” What I am thinking is, of course, that as in all cases of discrimination you may have hundreds or thousands of business outlets that do their own hiring and their top management, the employer, would not really know about egregious conduct that may result in a suit by your Department.
So I just raise that issue about the covered entity being more precisely the hiring facility or hiring authority.
Going to the question of your remedies, I am dealing from the Senate bill, section 308, enforcement. It is 308(b), enforcement by the Attorney General: (1/a), duty to investigate. "The Attorney General shall investigate alleged violations of this title, which shall include undertaking periodic reviews of compliance of covered entities under this title.” Now, the rest of this, injunctive relief, pattern and practice, it is language we are all familiar with.
But this particular part I read you was not in the House bill I introduced. It is obviously the Senate edition. It is a novel provision to me.
I wonder if you would comment on the meaning of it and your approval or disapproval of it. Once again, this does not have to be a matter, unless you are prepared to speak to now, it could be a matter like my first question that you could reserve judgment on.
Mr. THORNBURGH. Let me take a try at it, although I perhaps ought to reserve the right to give you a more precise response. In carrying out our responsibilities to see that the laws are obeyed, we sometimes are in a reactive posture and sometimes in a proactive posture.
I think that is what is contemplated by 308(b)(1)(a), investigating allegations which come to us in the normal course is one thing. Undertaking reviews of compliance is quite another where the initiation would come from the Department of Justice.
That I think is meant to round out the definition of our enforcement responsibilities to ensure that we are not like the Maytag repairman waiting for the phone to ring before we undertake some investigation of compliance. That would be the allegation side. But what this talks about is our own periodic reviews of the compliance with the act.
Mr. FISH. You may wish to think about it since this is a new measure that was not considered in the drafting of the House proposal. Your letter of July 26 to Senator Kennedy, in that you speak of using the pattern and practice authority given the Attorney General in the Fair Housing Act amendments as a model. The Attorney General should be given authority to seek civil penalties concerning egregious violations of the pattern and practice provision in the Senate bill is the usual remedy. I wondered if, well, I talked about A, duty to investigate, and that is the next section, "potential violation.
that into gious cave obvio have lion
I wondered whether you felt that the terms “egregious and willful” should be in the statute, should be in the committee report.
Mr. THORNBURGH. Well, this, again, has been the subject of some discussion. I think the use of the term “issue of general public importance" is sufficient to provide adequate guidance to me or any successor in the Attorney General's Office as to the type of relief that should be sought. Obviously, under those guidelines trivial de nials or violations would not be encompassed and probably in fact would be restricted to egregious and serious violations, but I am not sure that the addition of that language as a substitute for or in amplification of the issue of general public importance language would add something.
Mr. FISH. It is just that it is language in other laws that we have had in dealing with discrimination.
Mr. THORNBURGH. We have limited resources in this area, Con. gressman Fish. We obviously are going to be looking only at the most egregious cases. But I am a little worried about trying to put that into a statutory setting in this instance.
Mr. Fish. In the committee report, then, which I think is in the Immigration Act.
Mr. THORNBURGH. Yes, I don't have any problem with that.
Mr. FISH. I have one other question before I yield to my colleagues, who have lots of questions, I know. If I could refer you to section 303, called new construction in public accommodations, potential places of employment, this is just to direct your attention to this, and it says in section 303, "application of term as applied to potential place of employment, the term discrimination shall mean a failure to design and construct facilities for first occupancy later than 30 months after date of enactment of this act that are readily accessible to and usable by individuals with disabilities except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards as set forth or incorporated by reference in regulations issued under this title."
This does not answer the question as to whether every part of a facility, new construction facility, is covered, or whether those parts that might lend themselves to a need for accessibility under the circumstances.
I know this question has been raised as to just a matter of clarifying exactly what we mean in terms of new construction.
Mr. THORNBURGH. Are you referring to the exception language, the term structurally impracticable?
Mr. Fish. Not really, because that I think is clear. That is some thing a structural answer will answer, whether or not it is structurally impracticable. But I am wondering what is meant, whether or not every single part of a new construction is to be made accessible; and if not, then failure would be a discrimination or whether there is some clarification needed here.
Mr. THORNBURGH. The existing design standards for new buildings talk about reasonable numbers of accessible entrances, toilets, those kinds of things. It doesn't mean that all parts of every building have to be accessible, if that is what you are pointing toward.
Mr. Fish. That is the term that has been raised, yes.
Mr. Fish. I suppose it is when you build any new construction, and depending what it is, it might have food services, maybe employment requirements in the job that would not lend themselves to somebody in a wheelchair, and therefore, you would not need to have accessible entrances.
I just presented you with some issues that have been raised by others.
Mr. THORNBURGH. Well, I think the only answer to that is to look at it from the point of view of the standard of reasonableness which excludes the notion that every portion of every building, every service included within the building, must be accessible, under the standard of reasonableness.
If there are a reasonable number of those kinds of necessary components of the public accommodation that are accessible, that fulfills the requirements of the act as it is written.
Mr. Fish. I thank the gentleman. Mr. FRANK (presiding). The chairman of the Subcommittee on Civil and Constitutional Rights, Mr. Edwards, had to go over to the floor, because he had management responsibility on the flag bill.
I want to read a statement Mr. Brooks wanted to put into the record. If there is no objection, I will read it and have it put in the record.
“A long-time friend of mine and the son of a former staff director of my subcommittee, Geoffrey M. Baynard, is here in the audience. Geoffrey suffered a head injury in an automobile collision caused by a drunk driver. He was unconscious for 5 weeks, but survived and made a miraculous recovery, though he has some residual disabilities. Geoffrey has prepared a statement on the Americans with Disabilities Act, which I would ask unanimous consent to insert in the hearing record at the appropriate point.”
There being no objection, that will be put in the record. [The prepared statement of Mr. Baynard follows:]