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constructior requirements, in situations in which there were not yet identified tenants in a building that was being constructed, but which was ur.derstood to be designed for commercial (i.e., employment) and not residential use. In order to avoid any misunderstandings, the compromise bill now makes this clear. The definition of "public accommodations" no longer includes the term "potential places of employment." That term appears only in the section regarding new construction, and explicitly defines such places as those that are not covered or exempted under the Fair Housing Amendments Act (i.e., residential buildings.)

To answer your specific question, therefore, a woman who has a personal typing business, in a home which is already built, would not be covered as a "place of potential employment" under the public accommodations title. As noted above, she would also be exempted under the employment title because she has fewer than fifteen employees.

Q. 13.

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?

A. As an initial matter, under the compromise bill, churches have been exempted completely from the public accommodations title of the ADA.

For the entities that are covered, "readily achievable" means that such entities must remove small architectural barriers that are inexpensive and not difficult to remove. This would include, for example, placing a small ramp over one or two steps or adding grab bars to a restroom stall.. If the barrier removal is not readily achievable (for example, there are numerous steps going into a store at a steep incline or the store is on the second floor), the "alternative methods" requirement means that measures must be taken to offer the services of the entity--to the extent those neasures can be taken simply. For example, if there are five steps into the dry cleaners store, and therefore building a ramp is not readily achievable, the "alternative methods provision would require that the staff take a wheelchair

user's clothes from the person at the foot of the stairs and bring them out for pick-up. if called beforehand. In the same manner, the start of a viieo store would be required to bring a specific requested video tape to the bottom step and collect it there when it is returned.

(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 tine, in money, disruption of
current practice? Please refer to case

citations, where applicable. A. The term "able to be carried out without much difficulty or expense, is, in fact, under the compromise bill, the statutory definition of "readily achievable." The term is relative in the sense that the size and nature of the business, and the cost of the removal or action, is taken into account in determining whether an action is readily achievable. This is essentially a form of a "small business exemption, " by allowing the size of the business to be taken into account, even in the "readily achievable" analysis. There are no case citations that one can give in this area. Because of negotiations and compromises that were made even before the ADA was introduced, the term "readily achievable" was adopted as a new term,' not found in Section 504, designed to denote a standard which is lower than any existing section 504 standard. Because it is a new term, designed to establish a more flexible standard, there are no cases interpreting the term. While we would be happy to adopt the established section 504 standard of "undue burden" for the removal of barriers in existing facilities, for which there are various cases citations, I doubt the business community would be pleased with this higher standard. (c) Are there not grounds for exemption,

especially for small businesses, even if we
develop a common understanding of the term?

A. As you can see from the previous discussion, there is already a type of exemption already built in for small businesses. No small business will have to make any changes that cannot be accomplished easiiy and without much difficulty or expense in an analysis that takes into account the size of the business. similarly, the "undue burden" standard takes into account the size of the business. Finally, in the area of new construction and renovations, as part of the compromise with the Administration, the concerns of small businesses were taken into

account by providing an exemption for installing elevators in facilities that are less than three stories high or have less than 3,000 square feet per story. SAE $.933, sec. 302 (b) (2) (A), 302 (b) (2) (A) (vi) and 303 (b).

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

discrimination? A. It is not necessary that there be a distinction between "intentional" versus "unintentional" discrimination. As an initial matter, section 504 never drew such a distinction between "intentional and unintentional discrimination." Indeed, one of the Supreme Court cases dealing with Section 504 (Alexander v. Choate, 469 U.S. 287 (1985)) expressly noted that discrimination against people with disabilities often did not derive from a #wilful" or "malicious" desire to discriminate, but rather was derived from "thoughtlessness" and "benign neglect." The Court noted that, in order to ensure that the protections of Section 504 did not "ring hollow, " Congress intended to cover more than just intentional discrimination. Limiting the ADA to cases in which there is "intentional" discrimination, or a "wilful failure" to act would remove basic substantive protections that have long been in place under Section 504.

In addition, the compromise bill has removed any possible concern regarding remedies. The major compromise sought and achieved by the Bush Administration before it lent its support to the ADA was a change in the available remedies. Under that compromise, the right of individual plaintiffs to bring damage actions against covered entities was removed from the bill. In its place, authority is given to the Attorney General to bring suits where there is a pattern or practice of discrimination. In those cases, limited damages are available: a court may assess defined civil penalties of up to $50,000 for the first violation and up to $100,00 for suhsequent violations, if the court concludes that it would "vindicate the public interest." In addition, if the Attorney General requests it, monetary damages may be given to the aggrieved person. See s. 933, sec. 308. If lyou would like to recommend that compensatory and punitive damages be reinserted in the ADA for individual plaintiffs in cases of intentional discrimination, we would be open to that suggestion.

I hoge these :answers are useful to you as you continue your consideration of the Americans with disabilities Act. I apologize sincerely för my; delay in transmitting these answers to you. Please do not hesitate to let me know if I can be of further assistance.

I look forward to your support and leadership in making this historic piece of legislation a reality for all individuals in this country.

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UNITED STATES HOUSE OF REPRESENTATIVES

JUDICIARY COMMITTEE
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS

TESTIMONY OF JAMES W. ELLIS
PRESIDENT, AMERICAN ASSOCIATION ON MENTAL RETARDATION

PROFESSOR OF LAW, UNIVERSITY OF NEW MEXICO

VISITING PROFESSOR, AMERICAN UNIVERSITY

AMERICANS WITH DISABILITIES ACT

Mr. Chairman and members of the subcommittee: I appreciate

the opportunity to present testimony on behalf of the American Association on Mental Retardation on the important subject of preventing discrimination against citizens on the basis of disability.

My name is James W. Ellis, and I am the President of the American Association on Mental Retardation (AAMR). I am a Professor of Law at the University of New Mexico, where I specialize in constitutional law and legal issues affecting people

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