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Title III

The public accommodations provision of the ADA is the most sweeping of its kind. As a result, the private sector faces new and unknown obligations. Therefore, it is essential that the ADA provide as much specific guidance as possible. In particular:

Affirmative obligations are placed on public accommodations. However, the ADA does not address, in a landlord/tenant situation, who bears the responsibilities. Clarification here is necessary so that landlords and tenants know the rules. Otherwise, the ADA will become a vehicle that fosters unnecessary litigation between landlords and tenants.

When a facility is "altered" or when a "major structural
alteration" is undertaken, the facility must make the altered area
accessible to the "maximum extent feasible." The ADA fails to
define what must be undertaken to establish an alteration, makes
no distinction between "altered" and a "major structural
alteration," and gives no guidance as to the meaning of "maximum
extent feasible." This ambiguity could be easily eliminated by
following the example of Pennsylvania. Under state law, an
alteration is deemed to trigger the accessibility requirements if
the alteration affects 50% or more of the value of the building.

Title III provides that accommodations need not be made if they would "fundamentally alter" the nature of the good, service, etc. being provided. No meaning is given to the phrase "fundamentally alter." It would be appropriate to leave this discretion within the purview of the employer.

Without clarity, the court system will determine many of the obligations. Unfortunately, this will be done at the expense of the business community particularly small businesses, which can least afford this

expense.

ENFORCEMENT

There are times when the enforcement scheme for ensuring compliance with a law needs to be punitive, and other times when it merely needs to be corrective. The ADA fails to make this distinction. To be truly effective, the ADA should shift its focus from confrontation to conciliation.

Title I

Disputes surrounding the employment relationship and discrimination historically have focused on making the aggrieved individual whole, e.g., back pay, front pay, and reinstatement. Although Title I of the ADA embraces this concept, a few disturbing questions remain:

The original version of S.933, the Senate's ADA bill, and the
current version of H.R. 2273 allow individuals to bring suit if
they believe they are "about to be" discriminated against
(anticipatory discrimination). Although this language was
excluded from S. 933 as passed, the concept was left in the Senate
committee report language. In practical terms, this means that
what one person thinks another is thinking becomes actionable in
court. Any reference to this idea should be eliminated.

The ADA does not preempt any civil rights protections for the
disabled at any level federal, state, or local. Many employers
are already covered by the antidiscrimination/reasonable
accommodation provisions of the Vocational Rehabilitation Act of
1973. Laws at the federal, state, and local levels are not
uniform; and in many instances, there are additional and/or
conflicting obligations. An employer could be faced with multiple
lawsuits at the same time on the same set of facts. At a minimum,

a provision should be included in the ADA providing that
compliance with the ADA is deemed compliance with the
Rehabilitation Act.

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Title III

The public accommodations provision requires any entity used by customers, clients, or visitors to be accessible. Despite the best intentions, there will be businesses that fail to do so either through a misinterpretation of their obligations or through a lack of knowledge. The enforcement scheme for this section, however, is punitive, even though one course of action is the appropriate "make-whole" process discussed above. · Specific concerns in this area include:

The lack of definition of what constitutes a "pattern and
practice" of discrimination. For example, does it apply in cases
of intentional and/or unintentional acts of discrimination? Is
the finding based on site-specific instances or full company
instances, e.g., a company with approximately 3,000 stores
nationwide? The answers to these questions, respectively, should
be "only in intentional situations" and only on a "site-specific
basis."

o In these "pattern and practice" cases, monetary damages and civil
penalties are available at the discretion of the Attorney General
and the court. First, monetary damage should be defined as
actual, out-of-pocket expenses only. Second, a distinction should
be made between intentional and unintentional violations of the
ADA. Third, it should be made clear that civil penalties may be
imposed in cases of intentional violations only.

o A cause of action for anticipatory discrimination is expressly included in Title III. In the situation where new construction is taking, or is about to take place that is not in compliance with the ADA, it is appropriate that injuctive relief be available. In all other situations, however, this cause of action is inappropriate it will be frivolous and reference to anticipatory discrimination should be deleted.

For those entities that willfully and intentionally violate the provisions of the ADA, punitive sanctions are appropriate. But to punish those who commit errors unintentionally in the same way as willful violators is not only inappropriate but also unfair.

SMALL BUSINESS NEEDS

Any time the federal government imposes a mandate on businesses, the unique needs of small businesses should be addressed. Small businesses, generally, do not have extra money available for the financial obligations of new mandates and often operate on a very narrow profit margin. These special needs were adequately addressed in the employment section of the ADA through the small business exemption yet were not appropriately recognized in the public accommodations provision.

There was an attempt to provide some relief for small businesses in Title III through limitations on obligations, such as requiring only what is "readily achievable." Definitions of terms, however, remain unclear and subjective and, therefore, do not provide the necessary relief. Lawsuits will arise over what is required; and the cost of these lawsuits, both direct and indirect, will be very burdensome to small businesses. It would be appropriate to provide a small business exemption in Title III similar to that in Title I.

Additionally, financial incentives would go far in helping small businesses to comply with the ADA, and perhaps even encourage compliance where a small business might not otherwise be required to comply, 1.e., because a particular accommodation is beyond what would be considered to be "readily achievable." Section 190 of the Internal Revenue Code should be expanded to allow deductions for all expenditures made to accommodate the disabled. Currently, this section permits a business to deduct a maximum of $35,000 annually for structural alterations.

CONCLUSION

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Ensuring that all individuals have the opportunity to participate fully in society is a laudable and necessary goal one that the Chamber supports.

Indeed, integration into this country's economic life of people with disabilities is essential in preserving their dignity and in facing the nation's global economic challenges.

Despite this positive goal, the complexity of the ADA has not been considered adequately. The importance of this issue necessitates taking the time to resolve its problems to ensure that the bill is the best that it can be. Parameters and guidance should be provided so that businesses know what their obligations are and so that courts are not thrust into the role of legislator. Businesses should be helped to comply, rather than having to face punishment if they inadvertently fail to do what is required; and small businesses will need financial relief to assist them in complying with the ADA. In short, the focus of the ADA should be on opening opportunities for the disabled, not on imposing unreasonable and unworkable demands on the business community.

Thank you for the opportunity to submit the Chamber's views on this important legislation.

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