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approximately 50 words which currently make up section 504.' Section 504 is a very brief provision, which has been explicated by regulations and caselaw over the past years. The sponsors of the ADA wished to draw upon those regulations and caselaw to create a clear and comprehensive statute that would set forth all of the relevant non-discrimination provisions in one place. The intent is still to track section 504 but, at the same time, to create a statute that can stand on its own and not be dependent on incorporation by reference to regulations issued under section 504.

Q #4. Is this bill going to mandate quotas for the disabled

if they are underrepresented? If not, how will the Title VII regulations, policies and court decisions concerning "effects" be changed to insure this does not occur? If not, would you be willing to put a specific exemption in the bill to prevent quotas from being

required? A. The ADA specifically does not mandate quotas for people with disabilities. Section 503 of the Rehabilitation Act, which governs federal contractors, does require that contractors engage in "affirmative action" for people with disabilities. By contrast, both section 504, and the ADA, do not include such a requirement. Thus, even if affirmative action under section 503 could be understood to include the concept of quotas (it has not, in the past), that requirement does not appear in the ADA. The Title VII concept of discriminatory "effects," which has its parallel in ADA, is a separate legal issue from that of quotas. The ADA'S "effects" provision, which directly tracks the provision under section 504, prohibits standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability. This provision does not, in any way. mandate quotas, even if people with disabilities may be underrepresented in a particular employment setting.

Q. #5. Doesn't the broad definition of disability in the ADA

in effect repeal the provision in Title 18 of the U.S. Code, Section 922(g) prohibiting a person who has been "adjudicated as a mental defective" from receiving or

possessing a firearm? A. No.

The public accommodations title of the ADA provides that a covered entity may apply eligibility criteria that screen out people with disabilities it such criteria are necessary to the provision of the goods or services. It would be a valid eligibility criterion for purchase of a firearm that an individual not be "mentally defective" and unable to understand the consequences of owning a firearm. In addition, it is worth

noting that, under the firearms law, anyone who has been denied a firearn because they are in a category that prohibits that person Iron owning a firearm (e.g., a person who has been adjudicated as "nentally detective"), may apply to the Secretary of the Treasury for a waiver, which may be granted if the person can prove that he or she is no longer dangerous and that granting the waiver is in the public interest. This too is consistent with the ADA.

Q. 11.

Section 101(a) (5) prohibits an employer from "aiding or perpetuating discrimination by providing significant assistance to the agency, organization or individual that discriminates. "What is significant assistance". -- a bank loan? A purchase agreement for goods? International trade contract? (Example: II Boeing holds contracts on all the Japanese airlines, which foreign companies are obviously not in-compliance with ADA, would Boeing be open for suit under Section 101(a) (1) (E) by providing significant assistance to an organization that discriminates?)

A. In H.R. 2273, section 101(a) (1) (E) provided that it was discriminatory for entities to aid or perpetuate discrimination *by providing significant assistance to an agency, organization or individual that discriminates." That provision was based on section 504 regulations, 42 C.F.R. $84.4, which provided that a recipient under section 504 could not "aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization or person that discriminates on the basis of handicap in providing any aid, benefit or service to beneficiaries of the recipient's progran." That provision had worked without difficulty under section 504.

During negotiations with the Administration and the business community, however, concerns were-raised that it might be more difficult to apply this provision with regard to private entities which engage in all forms of assistance. In addition, it was noted that, unlike section 504, the ADA would itselt cover most entities directly, without any "assistance provision." In the compromise bill, therefore, the assistance provision was dropped and the bill includes the clearer provision that covered entities may not utilize nethods of administration that "perpetuate the discrimination of others who are subject to common administrative control." See s. 933, section 102 (b) (3) (B).

Q. 12.

How do you see Title I interacting with Title II and the other Titles? Don't you see some potential for

confusion here? Why not put the provisions in the appropriate title to which they relate, even if some redundancy is necessary?

A. H.R. 2273 was based on the format used in the section 504 regulations issued by the Department of Health and Human Services. In those regulations, there was an opening, general section that set forth the forms of discrinination prohibited (42 C.F.R. 584.4), which was followed by specific sections dealing with employment, social services, and education (42 C.F.R. Subparts B-D). H.R. 2273, with its overall title I and its specific titles following. was based directly on that format.

There was never any intention, however, to create · conflicting or confusing requirements. Indeed, no conflicts or confusion had ever arisen under the section 504 regulations. In light of the concern raised by the business community, however, the approach you - suggest was, in fact, adopted in the compromise bili. Title I was dropped completely from that bill and the relevant provisions of that title were incorporated into the other titles. Although, as you point out, that does create a certain amount of redundancy in the legislation, we felt that is was more than offset by the greater confidence covered entities would feel in the clarity of the legislation.

Please explain the purpose and coverage of 101(a) (5)
which would prohibit discrimination based on
"association." Is this concept in the 504 regulations?
If not, please tell me from where it was derived and
how it would be applied and interpreted? Is there a
body of case law interpreting such a concept. If so,
please give citations to appropriate cases.

A. The prohibition against discrimination against those who associate with people with disabilities is based on an identical provision included in H.R. 1158, the Fair Housing Amendments Act of 1988 (currently codified at 42 U.S.C. secs. 3601-3619). The Fair Housing Act, as amended, makes it illegal to:

"discriminate in the sale or rental of a dwelling, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of -

(A) that buyer or renter;

. (B) a person residing in, or intending to reside in that dwelling after it is so sold, rented, or made available; or

(c) any person associated with the buyer or renter." (emphasis added)

Sec. 804(E) (1), as amended.

Although the disability provisions in the Fair Housing Anendments Act were essentially patterned after Section 504, this new provision was specifically added to address the fact that discrimination often occurs against non-disabled people because of their association with people with disabilities. The provision was added in the ADA for the same reason. Because of concerns raised by the business community, however, two changes were made in the ADA provision which do not appear in the Fair Housing Act provision. Based on business requests, the ADA provision now provides that discrimination includes --"excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." (The underlined words are new.) Business owners were concerned that lawsuits could be filed by individuals whom they never even knew had associations with people with disabilities. The additional statutory words make it clear that this provision extends only to situations in which the covered entity knows that the non-disabled person has an association with a person with a known disability, and in which discrimination has occurred on that basis.

Q. 14.

What exactly is the purpose of Section 101(b) (2) (A) and (B)? How would this wording affect the current definition of "handicapped" in the Fair Housing Act amendments?

A. Section 101(b) (2) (A) of H.R. 2273 provided that a valid qualification standard under the ADA could include requiring that "the current use of alcohol or drugs by an alcoholic or drug abuser not pose a direct threat to the property or safety of others." This provision directly tracks the provision that exists under Section 504 with regard to alcoholics and drug addicts. With regard to current users.of illegal drugs, this provision is different from that which appears in the Fair Housing Amendments Act, in which such individuals are excluded Iron coverage.

We believe that the provision which appears in H.R. 2273 is the appropriate policy approach to drug addicts. It does not require an employer to hire any drug addict unless he or she is completely qualified to do the job, and specifically notes threat to the property or safety of others as one, although certainly not the exclusive, example of a qualification standard that such individuals may perhaps not neet.

In any event, however, this provision was substantially changed in the compromise bill. The bill that was brought up on the Senate floor included a list of actions that an employer is

allowed to take against employees, including prohibiting use of alcohol arid illegal drugs in the workplace and requiring tnat employees not be under the influence of alcohol or illegal drugs in the workplace. On the Senate floor, three additional amendments regarding current drug addicts were accepted. Two of these amendments explicitly excluded individuals who currently use illegal drugs from coverage under the Act. The third amendment did the same with regard to coverage under Section 504. The compromise bill, therefore, is now consistent with the Fair Housing Amendments Act with regard to exclusion of current users of illegal drugs.

Section 101(b) (2) (B) of H.R. 2273 provides that a qualification standard may include requiring that "an individual with a currently contagious disease or infection not pose a direct threat to the health or safety of other individuals." This provision is identical to one that was included in the Democratic version of the civil Rights Restoration Act amending section 504, as well as in the Administration version of the civil Rights Restoration Act which you sponsored. It also appears in the Fair Housing Amendments Act. The provision is designed to address any concerns that covered entities may have regarding individuals with contagious diseases or infections.

Q. 15.

Under 101(b) (2) (A), who defines "alcoholic or "drug
abuser"? By the way that (it) is worded, it appears
that it is o.k. for an individual who uses drugs as
long as they do not pose a direct threat to the
property or safety of others? If that is the case,
wouldn't you say that totally contradicts the drug free
workplace concept?

A. Under the ADA, as under Section 504, an individual must have a medical disability in order to be covered. Thus, an individual who simply uses alcohol or drugs, and does not have the medically disabling condition of drug or alcohol abuse, was never, covered under either Section 504 or the ADA. As noted in my previous answer, however, under the. compromise bill, an individual who either uses or is addicted to illegal drugs is now excluded from coverage under the Act.

Q. 16.

Again, with respect to the drug abuser exemption, what
relationship will this section have with the current
drug tasting programs that are being instituted in many
of the agencies? For instance, if an individual came
back with a negative drug test or a drug test that
indicated he had been using drugs, is there any way
that person could be fired from his position if he did
not, at that point, pose a "direct threat" to property
or the safety of others in the workplace?

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