October 12, 1989

STATEMENT OF GEOFFREY M. BAYNARD BEFORE THE
HOUSE JUDICIARY COMMITTEE ON THE PROPOSED AMERICANS
WITH DISABILITIES ACT OF 1989 (ADA).

I am a thirty-five year old survivor of a very serious head injury. I received my injury when an unlicensed, uninsured drunk driver, with prior convictions, ran a red light while he was being pursued by police at a high rate of speed.

He was driving a Cadilac in excess of 70 miles per hour when he smashed into my compact car broadside, shearing off my door with me being thrown twenty feet landing on my head in the other lane of traffic.

My scalp was was split open from ear to ear. The massive blow to the head has caused permanent brain stem injury. I also had a fractured pelvis from knocking over a 4-by-4 inch sign post, and an exploded disc in the shoulder area of my back from landing on my head.

For five weeks I was unconscious with the doctors telling my family I had little chance to live and if I lived I would have little chance of walking, talking or even remembering my name. In other words, I would be a basket case. I was in a coma for five weeks and sure enough when I became conscious I couldn't walk at all, nor talk coherently.

So, for the first time in my life, I was a member of a minority group I was now physically disabled. I was to become handicapped as well - not directly from my injuries but from alcohol, and more important, people's attitudes. My physical disabilities made me appear as though I were impaired by alcohol - by the way I walked and talked. I talked with a slur and walked with an uneven gait even when I had not been drinking.

The accident occurred in February, 1974, which was the virtual dark ages in the rehabilitation of the head injured because of the lack of awareness about the epidemic proportions of this type of injury in our Society. The staggering statistics are that one out of every 200 people in our population is directly affected or involved in some form of head injury.

Because of the absence of visible disability, i. e. braces, walkers or crutches, I have personally experienced more forms of discrimination than one would think possible. Most important, I have experienced discrimination in my efforts to obtain suitable employment.

My first experience with the federal

government where persons

are classified

as "handicapped" regardless of whether they have a physical or mental impairment. I was given a job as a laborer and told to perform tasks which were beyond my physical capabilities. When I complained, I was told to be grateful for the subpar wage I received. Meanwhile, within the agency there were many positions that were within my physical capacities which were denied me because I was under the "handicapped" program.

I had to leave government to survive because I could not perform the physical tasks required for me to do. Then I did two things. I enrolled in college and applied for disability from Social Security. Satisfactory completion of two years of college work established that I have a "level" of capability, despite a permanent lesion on my brain stem..

In other words, I am not a complete dummie. Also, my long three and a half year battle with Social Security proved conclusively that I also have a serious spinal injury which limits my capacity to perform physical labor. As one bone specialist suggested, one of my shoulder vertebra looks like it been smashed with a sledge hammer.

But I say to you this is not the whole story, for old fashioned frustration, having nothing to do with Our injury, plays an important part.

First, of course, is the lack of effective state and federal programs to assist those of us with these problems. And then there is discrimination. Let me give you some examples.

In 1986. I applied for a job with the Commonwealth of Virginia in the Department of Rehabilitative Services working with newly head injured persons. The Commonwealth, in a masterpiece of bureaucratic splendor, simply withdrew the job announcement citing economic concern rather than employing a head injured

survivor.

I have submitted more than fifty applications with the city of Alexandria. I have been interviewed only once. No jobs have been offered me.

In summary, in the years since my injury, I have applied for more than a thousand positions. I have only been interviewed for some ten or twenty. Because of strong political backing I was offered two in the federal government requiring strenuous labor and totally unsuitable for a person in my physical condition.

And then there has also been the attitude of people. As an example, recently at a food store checkout counter, I was treated in an awkward manner by the checkout clerk. After leaving the store, my companion expressed her outrage at the attitude of clerk. As so often before, a slurred word or two and my uneven

the

gait had lead to the conclusion that I was drunk. After 15 years of such treatment, I let such occurrences slide but my friend did not have as tough an attitude as I have developed an attitude I have developed to protect myself from the discrimination that seems to come upon head injured and other disabled persons from every side.

What does all this have to do with the ADA that is, the proposed Americans with Disabilities Act of 1989? The answer everything. There is no equal opportunity employment except in the mind of the person that thought up this three word phrase. In the 1980's, as this country was trying to recover economic backslide, the disabled people took it on the

an

from chin and

lost not only opportunity to work but opportunity to even move about freely in our Society. Furthermore, many disabled have been been denied the freedom they deserve because of the lack of public accommodations and services.

In my many years as a disabled person in contrast with my non-disabled life, I have learned that the disabled when deprived of the opportunity of freedom of movement and adequate accommodations often lose the respect of our fellow citizens. They are prisoners in an otherwise free Society in practical

terms as caged in as the criminal inmates in our highest security penal institutions.

Please reweave the safety net for disabled people by approving this legislation.

Mr. FRANK. Mr. Sangmeister.

Mr. SANGMEISTER. I understand the provision to remove illegal drug users from the protection of the legislation. I have no doubt that you support that. Subsequently, I have been advised that an amendment was added that would grant protection to illegal drug users if they have some other recognized disability.

If the opportunity arises in the House to delete that language, would you support that?

Mr. THORNBURGH. I think and I hope I made clear in my statement that this administration does not want to see legislation designed to deal with persons with disabilities becoming a loophole for providing protection to persons who are using illegal drugs or illegally using legal drugs.

To the extent that any ambiguity in that regard can be removed, we would certainly support a technical amendment, addressing the point that you raised.

Mr. SANGMEISTER. Thank you.

Mr. FRANK. Mr. McCollum.

Mr. MCCOLLUM. Thank you, Mr. Chairman.

It is good to see you, Mr. Attorney General. I think all of us support the basic premise of this act. The ADA has been long needed in this country to establish civil rights for those who are handicapped. There have been numerous cases raised over the last few weeks, especially since the Senate passed what I think were improvements which I congratulate you for achieving.

I want to ask about a couple of them. One of the things the business community has been particularly concerned with has been in the public accommodations section. They have been very concerned that there is no exemption for small business there, as there has for small business in the employment section.

In title III, in other words, if you have 14 or 25 or fewer employ-... ees, you still have to abide by it. They give examples and say, despite the fact of undue hardship language and that sort of thing, it is not a very practical matter for little businesses that have, oh, a stand with teeshirts like you see in stores in the malls or shopping areas, they have very limited square footage, and you and I could not walk between the aisles, let alone somebody who is handicapped.

They suggest there ought to be a small business exemption altogether for small enough businesses, either by size of employers or another determination, or there ought to be a provision that allows a clear-cut, not litigable way to go about doing this, to help the handicapped, such as providing a separate area within the small store that they have for all the samples to be, or something like that, so somebody could come to that area.

Has there been thought given to that? Is that of any concern to you at all?

Mr. THORNBURGH. There has been a great deal of thought given to that, Representative McCollum. Let me mention, first of all, one difficulty that was immediately encountered in talking about transporting the small business exemption in the employment section into the public accommodations section.

The small business exemption in the employment section, which we wholeheartedly support and which is consistent with title VII of

36-873 0-91-8

the Civil Rights Act of 1964, results in the exemption of about 20 percent of the employers who would otherwise be subject to the act without the exemption.

That is the best figure that we can come up with. To use that same exemption in the public accommodations section, however, would result in the exemption of well over 90 percent of the public accommodations, and in certain categories such as doctors' and dentists' offices, drugstores, laundry and cleaning services, the very mainstream-oriented types of public accommodation that we are most concerned about, close to 100 percent of the establishments would be exempt.

Accordingly, the requirements with regard to public accommodations have been drafted to provide for minimizing the burden on small businesses. The barriers are required to be removed in a very narrow area of cases where that removal is readily achievable and can be carried out without much difficult or expense.

That, it seems to me, would be a very, very limited area where retrofitting or removal might be called for on occasion and is in recognition of the very points that you raised with regard to a number of small businesses.

Mr. MCCOLLUM. May I interrupt and suggest that despite the fact that I agree with you, the problem with using the same definition, if you have that little store where you can envision all those teeshirts in just two racks on a narrow lane and you squeeze between the two, there is no barrier to be removed. They would have to take out some of their stock.

I realize by regulation we can maybe do something. But there are a lot of folks concerned about that kind of situation. That has been raised to me.

Mr. THORNBURGH. If it cannot be done easily or without difficulty or expense, it is not obliged to be done.

Mr. MCCOLLUM. There is expense, the cost to that little business. It may be that he takes out half his inventory, then.

Mr. THORNBURGH. It seems to me the requirement that it be done without much difficulty or expense, if you are going to have to sacrifice half the room devoted to your inventory, that would constitute to me a substantial cost or expense or difficulty.

Mr. MCCOLLUM. I want to at least put that on the record that that is your view, so we have a way to interpret that, because I have a great concern in that area.

Mr. THORNBURGH. You are grappling with the same types of problems we looked at in fashioning the legislation on the Senate side. It may deserve some study, but I think we felt that having found the transportation from one section to another of the exemption relating to employment, the number of employees was not a workable feature, so we tried to agree upon a way to otherwise minimize any prospective burden on these very small businesses.

Mr. MCCOLLUM. I realize my time has expired. I hope we will have a second round on this.

Mr. FRANK. I will take my question now.

General, I want to express my very deep appreciation to the President and to yourself for taking such an active role on this legislation. I think it is extremely important. I think we ought to be very clear about what we are saying.