2.

9

What is your understanding of the intent and effect of
the inclusion of the phrase "potential places of

employment" in Title IV of the ADA? Why is it needed,

given the scope and construction of the employment
Title in the ADA?

(a)

With that in mind, what about the woman who has a
typing business in her home? This appears to be a
"personal business" under the 402(2)(B) definition
of establishment and is also a "potential place of
employment whose operations affect commerce."
Without a small business exception, couldn't that
person be liable for punitive damages if a

disabled person were not able to utilize those
services?

(b)

If your answer suggests that it would
probably fall within the "undue hardship",
provision, how would that person prove undue
hardship?" Costs spent? Is there case law?

If so, please cite specific case examples.

(c), If the "readily achievable" language is cited,

how would that person prove "not readily achievable?" Please reference case citations defining this term.

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3.

Section 402 (b) defines, "discrimination against" as
"a failure to remove architectural and communication
barriers that are structural in nature and existing
facilities where such removal is "readily achievable;
and (B) where an entity can demonstrate that the
removal of a barrier...is not readily achievable, a
failure to make such good services, facilities,
privileges, advantages and accommodations available
through alternative methods, if such methods are
readily achievable."

(a) Could you give examples of what would and would not be required under this section; for example, doctor's office; a video store; a dry cleaners; a church?

(b)

I understand that the term "readily achievable" has been used as synonym for "easily accomplished with little difficulty and at little expense". Is "little difficulty in expense" a relative concept? If so, how are the threshold/cutoff points measured in time, in money, disruption of current

practice? Please refer to case citations,
where applicable.

(c)

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Are there not grounds for exemptions,
especially for small businesses, even if we
develop a common understanding of the term?

Assuming that a common understanding of the term
"readily achievable" is possible and that such an
understanding includes relative dimensions, should
not the remedies available reflect a distinction for
intentional versus unintentional acts of discrimina-

tion?

CDK:c:8/7/89

As you requested, I am responding to the questions that you raised in your letter regarding H.R. 2273, the "Americans with Disabilities Act of 1989" (ADA). I will answer the questions by reference to the House bill, H.R. 2273. However, in cases in which the compromise ADA bill, which was passed by the Senate on September 7th and which reflects compromises requested by the Bush Administration and the business community, directly addresses and resolves a concern that you raise, I note that fact in my response. I hope you will find that all of your concerns have been adequately met.

GENERAL

Q #1.

A.

Why does neither the Section 101 (b) "Defenses" nor the
Section 202 (b) (2), "Denial of equal employment
opportunities," provision contain an "undue hardship"
defense? What defenses are there to these provisions?

The defense that a reasonable accommodations is not required if it would impose an undue hardship is applicable in both provisions to which you refer. Under the substantive provisions of the bill, an employer does not have to provide a reasonable accommodation if "such entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business." See Sec. 202(b)(1). This substantive

requirement of "undue hardship" applies in every situation in
which the provision of a reasonable accommodation by the employer
is at issue. Thus, for example, when the defenses action refers
to "applicable reasonable accommodation," the accommodation being
referred to is one which would not create an undue hardship.
(That is, the "applicable" reasonable accommodation is the
accommodation which appears in the substantive section of the
bill, section 202 (b) (2), in which the requirement of undue
hardship is clearly incorporated.)

The same is true for the other provision to which you refer, section 202 (b) (2). That provision directly tracks a section 504 regulation, 42 C.F.R. 84.12 (d), which states: "A recipient may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant." As in the ADA, the section 504 regulation does not state "which does not impose an undue hardship" after the term "reasonable accommodation," because that is understood from the rest of the regulation, which clearly states that an accommodation need not be provided if it would impose an undue hardship. See 42 CFR 84.12 (a). The point of this provision, in both the ADA and section 504, is that an employer may not deny an employment opportunity to an individual because of that individual's need for a reasonable accommodation, if that accommodation could be provided without an undue hardship.

Q #2.

How are employee benefits treated under this bill?
Would an employer be able to continue insurance
coverage with a carrier that excluded preexisting
conditions?

A. The Senate compromise ADA bill (henceforth "compromise bill") directly addressed this issue. It was never the intent of the ADA to prohibit traditional insurance underwriting policies, such as the inclusion of pre-existing condition clauses in health insurance policies. In order to make that clear, however, the compromise bill includes a new section on insurance which explicitly states that nothing in the ADA is to be construed to prohibit or restrict insurance companies or employers from sponsoring, establishing, observing or administering benefit plans that are based on underwriting risks or classifying risks. See S. 933, sec. 501(c). This would include allowing employers to contract for benefit plans that incorporate preexisting condition exclusions.

Q #3.

A.

In the employment context, do you view the ADA as, in effect, simply extending 504 of the Rehabilitation Act to employers not now covered by that provision or are we even broadening coverage for the disabled? If we are broadening coverage, can you please explain what the specific differences are? If not, why not just extend 504 and add no further language?

You are correct in stating that, in the employment section, the ADA basically extends the provisions of section 504 of the Rehabilitation Act to private entities. However, a thoughtful and deliberate decision was made on the part of the drafters of this legislation not to simply add "and private entities" to the