TESTIMONY

SUBMITTED TO

THE

COMMITTEE ON THE JUDICIARY

U. S. HOUSE OF REPRESENTATIVES

OCTOBER 27, 1989

I am Kathy J. Hogancamp and I am a quadriplegic--paralyzed from the shoulders down. When I was 17 years old, I broke my neck in an automobile accident, damaging my spinal cord.

Despite my severe disability--and despite only limited use of my hands--I have learned to work around my limitations. I earned a Master's degree in Guidance and Educational Psychology and am presently employed by the Federal government as a program specialist. also a 1989 recipient of the Presidential Awards Program for Outstanding Federal Employees With Disabilities.

I am

I would like to share with you my concerns about the Americans With Disabilities Act (ADA). The following statement from a disabled person may surprise many of you. My view of this bill does not reflect the position of the Administration or the Federal government on this issue. In addition, my opinions were not formed as a result of working for a Federal agency. Thank you for the opportunity to share this statement with you.

Under the ADA (H.R. 2273), the term "disability" is broadly defined to include "a physical or mental impairment that substan

tially limits one or more major life activities; [has] a record of such impairment; or [is] regarded as having such an impairment." This broad definition of "disability" in the current House bill also covers self-imposed conditions such as drug abuse and alcoholism. (See section 101, "Forms of Discrimination Prohibited" (a)(5)(b)(2) (A).) As a truly, severely disabled person, I an offended at being put in the same category as those whose only disability is a self-imposed one. (None of us who are recipients this year of the "Outstanding Federal Employees with Disabilities" are disabled by reason of addiction to an illegal substance.) In Senate hearings on the issue it was

reported that the term in this legislation is so broadly interpreted that it would include persons with various sexual behaviors. A sexual orientation should not be interpreted to be

a "disability."

Similarly, "discrimination" is broadly described in the ADA. It is used to refer not only to "outright intentional exclusion," but also to "the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices.

From a Civil Rights perspec

tive, "discrimination" has historically denoted a person acting

on the basis of prejudice or bias. In the ADA, the term has been redefined to include unintentional effects.

For example, under the legislation a business owner would be "discriminating" against wheelchair users like myself if the business is located up a flight of steps. To make private businesses guilty of discrimination by unintentional omission is unfair. Granted, a business does not have to make "reasonable accommodations" if it can demonstrate "undo hardship." Yet the burden of proof that a business is not discriminating lies with the business.

Yes, it can be frustrating as a disabled consumer not to be able to go to a movie or restaurant because of a lack of accessibility. But what about the rights of the private sector, of private, small business owners? The private sector does not owe me--or any other disabled person--a frustration free life.

The "reasonable accommodations" requirements under ADA would be extremely expensive for the private sector. A Federal requirement of accommodating disabled individuals will cause many small companies to go out of business. In some cases, businesses would be required to hire two employees to fill one vacancy. For instance, in addition to hiring a professional who is blind, an employer may also need to hire a reader as a "reasonable accommodation." Similarly, in order to fill one vacancy, an employer may need to hire both a physically disabled professional and an attendant for job-related assistance. Businesses that survive

the ADA will show less profit because of the costs of accommodations. As a result, it is likely that businesses will begin to see us--the disabled--as a threat; and consequently, a discrimi

natory attitude may develop.

Another aspect of ADA that could precipitate a discriminatory attitude is the ADA's broad extension of the Federal role into the private sector. The bill states that one of the purposes of ADA is "to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities." (See section 2, "Findings and Purposes" (b)(3).) To enforce the ADA, four executive agencies are required to promulgate new regulations: the Equal Employment Opportunity Commission, the Attorney General, the Secretary of Transportation, and the Federal Communications Commission. Moreover, regulations that are currently in existence will be extended to cover private entities. This would include the enforcement provisions of the Rehabilitation Act of 1973. Without question, regulatory burden on the private sector will increase.

Additionally, under the ADA, individuals with disabilities or even individuals associated with disabled individuals can initiate litigation against an employer, a prospective employer, or a business or agency where they are a client or customer if they believe they have been discriminated against.

Individuals

may even initiate litigation if they believe they are going to be discriminated against. Because we live in an age of litigation, there can be no doubt that lawsuits will abound after the passage of ADA. Businesses could begin to view disabled persons as adversaries looking for a lawsuit.

From my own personal experience as a disabled person, I would rather businesses and agencies accommodate my disability voluntarily--even if I have to wait awhile for them to become sensitized and begin to take positive action. The private sector and State and local agencies should not be coerced into making expensive modifications. If businesses and agencies voluntarily make changes, those of us with disabilities will not be perceived as a threat.

To remedy many of these concerns, I ask that an amendment such as the Armstrong amendment which was adopted by the Senate be added to the ADA. It places some common sense restrictions on the definition of "disability." It states that the following

lifestyles or conditions would not be included in the term

"disability":

"homosexuality, bisexuality, transvestism,

pedophilia, transsexualism, pyromania, gender identity disorders, current psychoactive organic mental disorders

sexual behavior disorders."

or other

Additionally, the ADA should be amended to prohibit a

private cause of action. Encouraging litigation will very likely result in a discriminatory attitude. A prejudicial attitude--not barriers--is true discrimination. A more sensitive attitude

toward the needs of the disabled cannot be legislated.

Although the suggested amendments would make the ADA more tolerable, it is my final conviction that the ADA should not be passed. The premise of the ADA is wrong. It is based on the presupposition that little advancement has been made over the