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available to persons without disabilities. For example, a business that does not provide drinking fountains or restroom facilities for the use of its customers will not be forced to add
accessible fountains or toilets for customers with disabilities.
Under this standard, small businesses with the fewest "frills"
will have fewer such services and conveniences to make
Allowing Alternative Means to Serve Customers When Readily Achievable changes Are Not Sufficient to provide Accessibility
Where the removal of an access barrier is not required under the ADA because such removal is not readily achievable, the ADA permits businesses to make goods, services, etc., available "through alternative methods“ (Sec. 302(b)(2)(A)(v)). The Senate Report cites examples of such alternative methods :
coming to the door to receive or return drycleaning;
(Id., p. 66)
hurting their businesses or incurring extensive expenses.
event do the readily achievable and alternative methods requirements require a small business to make structural changes
to existing buildings to achieve accessibility beyond what is
Title IV of the bill provides for the establishment of a system of telecommunications relay services for individuals with speech or hearing impairments. While it may not be apparent on its face, the development of this relay service is an accommodation to the interests of small businesses. In prior versions of the ADA where there was ao relay service requirement, one of the potential obligations upon places of public accommodation was the purchase and operation of a Telecommunications Device for the Deaf (TDD) so that customers and potential customers could call on their TDDs to make
reservations, purchase tickets, inquire about products and
prices, check on store hours, etc. While portable TDDs are
relatively inexpensive (a good unit can usually be purchased for
around $200), there was some concern that it was too burdensome
on small businesses to require that all such businesses must have TDDs. As an alternative, the relay service provisions were developed. Under the requirements of Title IV, each area and locality of the country will be served by a telecommunications relay service, and individuals using TDDs will be able to call the relay service and have their inquiries, reservations, etc.. passed on by voice to the business. In this way, shall businesses were spared the requirenent that all of them incur the nodost costs of obtaining TDDs.
Absence of compensatory and Punitive Damages
Previous versions of the ADA would have permitted successful complainants to have recovered monetary amages, both compensatory and punitive, from public accommodations found to
have discriminated against a person with a disability. Members of the business community expressed strong objections to such
damages provisions in regard to public accommodations.
felt that these monetary remedies were too harsh, and that some
small businesses would not be able to afford legal counsel to
advise them and so would risk serious financial liability. In negotiations with the Administration, these damages provisions
The compromise bill allows monetary damages and civil fines only in cases where the Attorney General successfully proves a
case of "pattern or practice" discrimination.
Such a remedial
scheme is highly advantageous to small businesses.
The most that
they risk in situations where they are unclear about their duties under the Act or otherwise engage in prohibited discrimination is that if they are successfully sued they could be subjected to an injunction ordering that they stop discriminating. It would be a rare case indeed where a Ma-and-Pa operation or other small business would engage in a "pattern or practice" of discrimination egregious enough to catch the attention and merit the litigative might of the Attorney General of the United States. For all practical purposes, an injunction ordering that
discriminatory conduct cease is the worst risk that a small business faces under the bill.
For all of these reasons it is clear that the ADA has been
carefully crafted with an eye toward protecting (perhaps overprotecting) the interests of small businesses. The passage of this bill will have no dire consequences for America's small businesses, and yet it would provide an important advance toward assuring that these and other places of public accommodation will begin to include people with disabilities as full and equal parts of the public" they serve.
Thank you for your consideration of my testimony.
forward to your deliberations, and am hopeful that you will take positive action to make the Americans with Disabilities Act of
Mr. EDWARDS. Mr. Sensenbrenner.
Mr. EDWARDS. Well, you think it is a pretty good bill then, Professor?
Mr. BURGDORF. I think on balance, it is an excellent bill. I probably would have drawn some lines in different places. I think perhaps it leans over a little too far in trying to accommodate to the needs of small businesses.
I would like to have seen a bit more required, but on balance, as a compromise, I think it is a fine piece of legislation.
Mr. EDWARDS. Do you know anything about the Pennsylvania law that Mr. Lynch described?
Mr. BURGDORF. There are lots of good things about the Pennsylvania law. I am not an expert on it, but let me respond to what I think is the major point of AIA's suggestion about that law. It is the ratio that is established to determine what is a major alteration.
It compares the overall cost of an alteration with the value of the building. We think that is problematic. We think it defeats one of the basic purposes of this bill, which is that over time, as buildings are renovated, they should become accessible.
Let me give you an example: If a building was originally built for $50,000 some years ago, it may today be worth $1 million. The major alteration, major structural alterations language, if it were to adopt the Pennsylvania approach, would have to be $500,000 before it triggered any requirement to make paths of travel accessible in such a building.
The percentage requirement creates a motive for those who are doing alterations to keep it just below that level, so they do a $499,000 alteration, do not make changes in the path of travel, and then the building now is worth $1,499,000.
So, next year, if they do another renovation project, it can cost $700,000 and still not trigger the path of alterations requirement. We don't think that is what they are intending or what the bill is intending. We would rather see it done in terms of what the bill does, to talk about what is major, what is structural. We are not talking about painting a wall.
We are talking about moving a wall. I think the bill and the Senate report language does a nice job of spelling out what is intended. If it does not affect usability, it does not trigger that requirement anyway.
Mr. EDWARDS. Thank you. I think where we are going to have a problem is explaining to members, what we mean in the bill by, terms such as "readily achievable," "reasonable accommodation, "undue burden," "auxiliary aids," et cetera.
I wonder if you think these terms soften the bill too much, give loopholes?
Mr. BURGDORF. That is a good question. One example that I raised before is the readily achievable standard. It requires in existing facilities, already constructed, only easy changes to be made.
Last year's bill would have called for retrofitting of buildings to make them accessible. This would threaten the existence of the business itself. That was a high standard, and the business commu