businesses make up a large percentage of the establishments that provide services and goods on a daily basis; to cut them out of the ADA would seriously undermine the bill's goal of opening up our society to people with disabilities on an equal basis. In many contexts, small business is business in America today. The approach of the ADA is not to eliminate small businesses from the requirements of the bill, but rather to tailor the requirements of the Act to take into account the needs and resources of small businesses to require what is reasonable to require and not to impose obligations that are unrealistic or debilitating to businesses. - Not creating a total exemption for small public accommodations is consistent with Title II of the Civil Rights Act of 1964, which covers all such public accommodations regardless of size. There, as here, it would defeat a major purpose of the Act to permit small restaurants, lunchrooms, theaters, service stations, etc., to continue to discriminate. If nondiscrimination is to have any real meaning, it is essential that local neighborhood businesses be prohibited from engaging in such discrimination. Each of the major sections and requirements of the ADA takes into account the fact that some businesses are very small local enterprises that may have very limited resources. In each area, either the size and resources of establishments are explicitly required to be taken into account in determining what is required, or some amelioration for small businesses is built into the substantive requirement itself. My testimony is focusing upon the public accommodations requirements of the ADA, but I will mention in passing that small business concerns are wellaccounted for in other parts of the bill as well, as for example, in the employment Title and various requirements regarding transportation. The following are some of the ways in which the public accommodations provisions of the ADA provide great deference for the characteristics and needs of small businesses: The readily achievable limitation As noted previously in my testimony, the ADA places a very modest requirement for removing architectural and communication barriers in existing public accommodations -- such barriers need not be removed unless doing so is "readily achievable," i.e., is "easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, the ADA lists as the first two factors to be considered: "the overall size of the covered entity with respect to number of employees, number and type of facilities, and the size of budget," and "the type of operation of the covered entity, including the composition and structure of the entity" (Sec. 301(5)(B)). (The "nature and cost of the action needed" is the other factor listed.) The size and budget of a business are, therefore, explicitly considered in determining what is readily achievable. A Mom-and Pop store is clearly held to a much lower standard than is a highly financed, big national concern. A struggling small business will be required to do much less than a bigger, more well-to-do establishment. The readily achievable standard takes into account the particular physical and financial realities of each individual establishment and requires more of those realistically able to do more and less of those who are only able to do less. Undue Burden Limitation Regarding Auxiliary Aids and Services The requirement that places of public accommodation make available "auxiliary aids and services" under section 302(b)(2)(A)(iii) of the bill does not apply in circumstances where the provisions of such aids and services would *fundamentally alter" or would "result in undue burden." The Senate Report notes that the term "undue burden" is analogous to the phrase "undue hardship" in the employment section of the ADA, and that "The determination of whether the provision of an auxiliary aid or service imposes an undue burden on a business will be made on a case-by-case basis, taking into account the same factors used for purposes of determining 'undue hardship'" (Id., p. 63). The factors to be taken into account (see section 101 (9) (B)) are nearly identical to the factors I have discussed just above in connection with the readily achievable standard. In determining whether providing an auxiliary aid or service amounts to an undue burden, the size, budget, and circumstances of a business are expressly relevant. A struggling small business will be excused from providing an auxiliary aid or service in circumstances where a larger, more prosperous business might be required to provide it. The Elevator Exception for New Construction and Alterations As noted above, the inclusion of accessibility features in the design and construction of new facilities and in renovation projects can usually be accomplished at relatively little expense. To further protect small businesses, however, the Senate compromise bill incorporated a specific exception to accessibility requirements with regard to elevators in small buildings. While the previous version of the bill would have required elevators where necessary for accessibility of upper floors in new construction and certain major renovations, the Senate compromise specifically provides that elevators are not required for facilities that are less than three stories or that have less than 3,000 square feet per story." Arguably, elevators in such circumstances might make up only a small and manageable percentage of overall building and renovation costs, but to make absolutely sure that small building owners and builders would not be unduly burdened, the bill excepts small buildings from the elevator requirement accessibility feature. - the only potentially significantly costly The Readily Accessible to and Usable by Accessibility Standard The ADA does not require total or universal accessibility, even in regard to newly constructed buildings subject to its requirements. The bill incorporates a standard of accessibility developed under federal statutes and regulations accessible to and usable by." This standard imposes "readily accessibility obligations that are tailored to the type and use of each particular facility. The Senate report notes that "the term does not necessarily require the accessibility of every part of every area of a facility" (Id., p. 69), and further: The term is not intended to require that all parking spaces, bathrooms, stalls within bathrooms, etc. are accessible; only a reasonable number must be accessible, depending on such factors as their location and number. (Ibid.) The term is intended to enable people with disabilities "to get to, enter, and use a facility." Making facilities readily accessible to and usable by persons with disabilities is a facility-by-facility process that involves consideration of the physical structure and of the nature of the activities that take place or will take place there. A small facility may have fewer areas and services and therefore will have fewer areas and services to make accessible. Complying with the readily accessible to and usable by requirement of the ADA will require a business to make its services and facilities accessible to persons with disabilities, but will not require it to add additional features not made |