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all grocery stores, et cetera, to where it would be-in other words, for someone in a wheelchair to be able to reach all goods in a store.
Could that be a reasonable interpretation to put on this act?
Mr. JAMES. Is the position that this statute could be used for this purpose to say that all shelving could not be more than three feet in height so that you could reasonably reach the shelves? Would that be a possible interpretation under the act or not?
Mr. THORNBURGH. No. I think what you are talking about are reasonable accommodations. If you have the precedents of section 504 to look to and carry those standards forward into ADA, any kind of blanket requirement that those specific undertakings be entered into by a retail store would, to my view, be unthinkable.
Reasonable requirements without undue burdens, it seems to me, would exclude the notion of going into a store and saying you have to lower every shelf to accommodate someone who comes in in a wheelchair.
Mr. JAMES. Could the businessman look to any precedent to define these?
Mr. THORNBURGH. They are defined under section 504, the regulation and cases interpreted over the last 16 years. It is for that reason that I feel confident in recommending them to the Congress because they, as I indicated earlier, are not made up out of the whole cloth. There is a body of law that can provide guidance to an individual.
Mr. JAMES. Then your testimony is that it would be unreasonable to require that.
Mr. THORNBURGH. It sounds unreasonable to me.
Mr. THORNBURGH. A man who acts as his own lawyer has a fool for a client.
Mr. JAMES. I have heard that said, but the Attorney General-
Mr. JAMES. I believe the Attorney General is my lawyer in many instances.
Mr. THORNBURGH. I hope that you don't have a fool for a lawyer.
Mr. JAMES. Indeed, we both hope that. For new establishments, it will be a different standard, would it not?
Mr. THORNBURGH. Yes.
Mr. JAMES. My same question is posed for new establishments, under section 504, under the law pursuant to the advice or research of the Attorney General's Office, what would my answer be then to people who would ask me will the height limitation be changed on new store construction or the grocery story, hardware stores, clothing stores, et cetera. Do you have an answer for that type of thing?
Mr. THORNBURGH. Once again, you are relying upon standards of reasonableness and a desire to avoid undue burdens.
Mr. JAMES. I understand that. Let's pretend you are my lawyer. I come in and I say to you as my attorney and I am a businessman, I
want to build a new store and I want-my shelves are going to be designed x height limitation, that will be the normal height, whatever they are in the store without consideration of this act.
What would the Attorney General's advice be to me as to height on a new store if he were my lawyer, understanding reasonableness is not what I am asking. I want to be reasonable but the question is what is the reasonable height.
Mr. THORNBURGH. I think, again, you have thrown back on prece dent—the ATBCB-I remember the acronym, but not the name, the Access Board will look at those kinds of standards but the simple answer to the particular case you have described is that if there is a clerk there who is willing to assist an individual who might be using a chair, for example, that that is the kind of accommodation that can be made at very little cost and fulfill the reasonable requirements of the act, it seems to me.
These are regulations that will be used to flesh out the bill once passed, but passed in the form that it is presently, I can't conceive of a requirement that would-in particular, the answer to the first question it seems unthinkable that you would cause someone to have to sacrifice half their inventory space to lower the shelves to that level.
In new buildings, I think by that time people will be aware of their obligations under the act and in the case of a person using a chair in the store, saying I want to see something on that shelf, there would be someone to assist them.
If they refuse and say they are not going to make reasonable accommodations, there might be a violation but that seems to me to be unreasonable on the part of the individual who is in charge of this.
Mr. JAMES. On existing establishments—the reason I asked the question is on existing establishments there is a different standard and I can imagine all stores now having a totally different elevation for clothing racks, dropping them a foot. To the extreme if that were required.
Apparently, you don't feel that it is.
Mr. JAMES. You don't think there is a new standard for shelf elevation for new stores, is what you are saying?
Mr. THORNBURGH. I understand that we have a period of time during which regulations would be prepared and drafted and promulgated available for public comment. We intend to carry out aggressive public information and technical advice.
We want to help people comply with the act, not prosecute them for not complying with the act.
Mr. EDWARDS. The time of the gentleman has expired.
Mr. McCOLLUM. I want to clarify some things because there are three or four committees looking at this in the House and our leadership, Democrats and Republicans have looked at clarifying language. I assume that you have no problems with some of the types of things that the leadership has been considering for clarifying when a new clean bill is introduced.
One of them, for example, is the contagious disease area where we have talked about the fact that you don't have to comply if you are hiring a handicapped person if they have a contagious disease and they pose a direct threat to somebody's health-in the Senate, I understand in the report language they equated that to the language of significant risk and it was our intent at the present time to encourage substitution of the word “significant risk” for direct threats, since that seemed to be more simple language.
Mr. THORNBURGH. That is the language that the Supreme Court used in the Arline case.
Mr. McCOLLUM. Second, there was a concern that undue hardship was not always clearly linked to reasonable accommodations. In other words, there are any number of places here we talk about reasonable accommodations and we also talk about undue hardship, but there is a question technically whether or not we really tied that down.
I assume that an undue hardship exception for wherever a reasonable accommodation is a requirement and it would not be a problem if we made that clear.
Mr. THORNBURGH. Those are section 504 terms and have developed an accepted meaning over the years and for that reason I think are useful rather than introducing a different and more detailed definition.
Mr. McCOLLUM. I think there was concern as to what else we might add to undue hardship, but there was simply some concern that the undue hardship language be linked throughout all of this for fear that this would be more litigated than 504.
Two or three substantive concerns. I have been asked by people and I have never gotten a good answer, though I have listened to people argue it a few times, saying basically it is already in 504 and it is no problem and there must be somebody out there covered by it, but in the disability definition, we have three parts, (a) physical or mental impairment of substantial limits of one or more of the major life activities of such individual (b) a record of such an impairment or (c) being regarded as having such an impairment.
A lot of my disabled community said we don't know why you need being regarded as having such an impairment since they can't imagine a case where there wouldn't actually be a physical or mental impairment and that would actually be covered, you have it or you don't have it.
Isn't that excess language just to appease somebody who is worried that we have to have everything but the kitchen sink and we might overlook something? Is there an example where that comes into play?
Mr. THORNBURGH. It draws, as you note, on section 504, and I think probably the best reason for that is in the Arline case, where the court said, “By amending the definition of handicapped individual to include not only those who are actually physically impaired, but also those who are regarded as impaired and who as a result are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapped as are the physical limitations that flow from actual impairment.
Mr. McCOLLUM. But I can't imagine, Mr. Attorney General, even though that is true, that we acknowledge that, that we can do that in a sense of Congress where you would have a case where somebody could be regarded as, and that would be the handicap, when they didn't have a handicap already. In other words, it is a myth or a fear, but it presents a lot of heartburn to people looking at this, not knowing what might some day be litigated over this, even though we have had language on the books for 10 years and nobody has done it.
Mr. THORNBURGH. I don't suggest that heartburn is disabling or gives rise to being regarded as impaired, but certainly cancer does. Someone may have cancer, they are perfectly capable of doing the job, but there may be persons who think they cannot do it because of this disease.
A person with a limp may not be handicapped in any substantial way, but people, because of the myths and misunderstandings and fears that have grown up about this whole aspect of our culture and the desire, I think that the court has stressed that is embodied in section 504 is aimed at buttoning up these kinds of cases where a disability may not meet the first two
Mr. McCOLLUM. I understand-
Mr. McCOLLUM. I understand where you are coming from. I haven't been able to see it myself. The question we have had as to essential functions comes from concerns businesses have with regard to who is going to decide the qualifications of an individual with a disability, whether or not that person can perform the essential functions of the employment position.
I know that language is in 504, and there are a couple of cases on what essential functions mean. My concern is that with the broad sector of the public, rather than just Government contractors having the law apply, there is likely to be a lot of litigation over individual cases, because essential functions can be in dispute.
A lot of folks can disagree on what the essential functions of a job are. In a restaurant business, somebody could be the busboy or whatever. Does everybody have to have a job description that includes every conceivable thing when they are hired? Businessmen say we don't want to have to do that, we don't do that now.
If somebody is going to come over our shoulder afterwards and say that the guy can do the essential functions of this job, and we decided what those functions were, somebody else is going to disagree what they are. How do we answer that? And do we need regulations to specifically spell this out, or can we better refine it in law-what do you think?
Mr. THORNBURGH. I think that some of the people who raise questions of this kind are suspicious of the Congress and the executive branch as seeking to foist some kind of unreasonable requirement upon them.
I don't happen to think that there is anything inherently potentially harassing in the use of the term “performing essential functions.” The Supreme Court has made it clear in a whole line of cases dealing in this area that they don't want to engage in a wholesale second-guessing of employers regarding what is demanded by a particular job, and I can certainly subscribe to that.
We have enough today dealing with the egregious type of situation that was referred to earlier on, patterns and practices where someone on a wholesale basis decides they are simply not going to hire people with handicaps.
I would-certainly you have to take a look at each of these phrases and terms, and I don't mean to denigrate their importance, but I think the notion that we in the Department of Justice are going to support any kind of harassing or second-guessing of employers in this regard, I think the vast majority, the overwhelming majority of employers are perfectly willing to consider people with disabilities who can perform a job, and those that aren't deserve a nudge in the right direction, and will get it from this legislation.
I just-I am afraid I don't fear the, what I would characterize as sometimes hypertechnical assessments of some of these terms. I understand them, but don't
Mr. McCOLLUM. The only reason I raised this one as opposed to others is I have heard it more than anything else. Mr. THORNBURGH. These acquire a life of their own.
Mr. McCOLLUM. If litigation really takes hold in this area, we will both be second-guessing them. One other thing I would like to ask, and I would like to submit questions for details, in the broad policy question area, intentional versus unintentional.
That runs throughout the questioning of the business community, the pattern of practice is here, but there is a great concern expressed over the fact that somebody can do a lot of this unintentionally and get just as much punishment as someone who does it intentionally.
Shouldn't there be more punishment for the guy who says, “I know what the rule is, but I am going to refuse to remove the barrier?” Why should you have a $50,000 fine
Mr. THORNBURGH. As a practical matter, the only one subject to a $50,000 fine is going to be the intentional egregious violator. We don't support the concept that legislation should lay traps for the unwary. That person needs guidance on how to comply, not a crackdown due to some-
Mr. McCOLLUM. But the law does allow you to?
Mr. THORNBURGH. It does. It allows me to act unreasonably. I think I would have to answer to you and your colleagues and my boss if I were to do so, but I hope Representative Frank's characterization didn't fall on deaf ears, that we have an intention of seeing that this law, a new law
Mr. McCOLLUM. You have reassured me, and I believe you, but this law is going to be around for a lot of Attorneys General and other administrations?
Mr. THORNBURGH. Probably some more reasonable than I.
I think this is an appropriate place in the record, Mr. Attorney General, to state that the discussion that you two have had has been very helpful and being regarded as having an impairment as the third prong of the term “disability” is discussed in some detail on pages 23 and 24 of the Senate report, and where it gives examples such as a severe burn victim or somebody who might be discriminated against in employment with controlled diabetes or epilepsy or wearing a hearing aid or somebody refused entry into a restaurant because of having cerebral palsy.