Mr. EDWARDS. Now we will hear from Prof. Robert Burgdorf of the District of Columbia School of Law. Professor Burgdorf formerly served on the staff of the National Council on Disability and while there drafted the original version of ADA introduced last year. We look forward to hearing more from him and learning from his expertise. We welcome you, Professor Burgdorf. STATEMENT OF ROBERT L. BURGDORF, JR., ASSOCIATE PROFESSOR OF LAW, DISTRICT OF COLUMBIA SCHOOL OF LAW Mr. BURGDORF. Thank you, Mr. Chairman. Mr. Chairman, Representative Sensenbrenner, I am honored to be here. Let me begin by saying that as the drafter of the original version of the Americans with Disabilities Act, as it was introduced last year, I have no hesitation in endorsing this year's bill as achieving the goal of the National Council on Disability which set out to enact a clear and comprehensive law to prohibit discrimination against people with disabilities. I wanted to begin by talking a little bit about the scope of the problem, particularly in the area of accommodations that we are addressing. In 1986, the Louis Harris organization conducted a poll, a nationwide poll of people with disabilities and the pollsters discovered that people with disability were an extremely isolated segment of the population. The National Council on Disability took a look at the results of the Louis Harris Poll and stated the following: The survey results dealing with social life and leisure experiences paint a sobering picture of an isolated and excluded population of individuals with disabilities. The large majority of people with disabilities do not go to movies, do not go to the theater, to musical performances and do not go to sports events. A substantial minority of persons with disabilities never go to a restaurant, a grocery store and never go to a church or synagogue. Specifically, the Harris Poll found that nearly two-thirds of all disabled Americans never went to a movie in the last year, that is compared to 22 percent of the general population. Three-fourths of all people with disabilities did not see live theater or live music performances in the past year as opposed to only 40 percent of the general population. Disabled people are three times more likely than nondisabled people to never eat in restaurants. They are also much less likely to go to grocery stores. Thirteen percent of disabled persons never shop in a grocery store compared with only 2 percent of people without disabilities. Why is this true? Why do we have an isolated and excluded population? The Harris Poll went further and asked these people why aren't you getting out, why aren't you doing things. The two major reasons were fear and barriers, fear of how people were going to be treated. Six out of 10 of the people whose activities were limited said that is one of the major reasons why they are limited. Forty percent said physical barriers kept them from going places and doing things as often as the rest of the population. We have unfortunately in America erected an unwelcome sign to people with disabilities. They are afraid to go to places. They don't know how they are going to be treated there and they don't know if they are physically going to be able to get into the buildings. This bill would be a major step forward in addressing this discrimination and putting up a welcome sign for people with disabilities. I heard the earlier witnesses in the previous panel, particularly Mr. Roth, talk about the loose language of the bill, talk about its vagueness and ambiguity. We have heard concerns expressed by other members of the small business community that this is somehow an attack upon small businesses. I wanted to say to the subcommittee that I have no hesitancy whatever in saying that this particular bill takes into account and gives deference to the needs of businesses, and in particular small businesses more than any other civil rights bill that has ever been before the Congress. At every juncture in the bill, there is deference paid to the size and to the difficulties faced by smaller businesses. For example, the bill does not call for existing buildings to be made totally accessible to people with disabilities. It requires only that easy things be done, readily achievable. Barrier removal is called for. Readily achievable is defined as easily accomplishable and able to be carried out without much difficulty or expense. The bill describes factors to be considered in determining what is readily achievable. Those factors include the size of covered entity, number and type of facilities, size of the budget. So, the size and the money available to a business is particularly, specifically required to be considered. A mom-and-pop store is clearly held to a much lower standard than is a highly financed big national concern. A struggling small business will be required to do much, much less than a bigger, more well to do establishment. Likewise, there is a requirement for the provision of auxiliary aids. The auxiliary aids are not required if to do so would be an undue burden. Once again, in determining what is an undue burden, the size and budget of the entity affected are clearly required to be examined. A struggling small business will be excused from providing an auxiliary aid or service in circumstances where a larger, more prosperous business might be required to provide it. But what is the big, scary requirement? The new construction requirement, is that onerous to small businesses? I don't believe it ever was. In working out a compromise bill to make absolutely certain this could not be onerous, there is an exemption put in specifically saying that small buildings do not have to have elevators put in them. The bill excepts small buildings from the elevator requirements, for facilities less than three stories or having less than 3,000 square feet per story. That is the big, scary one. It is specifically not required either for new construction or major structural alterations. Likewise, the bill sets a standard of readily accessible to and usable by as its accessibility standard. That is not a total accessibility requirement. It is a term of art. It has been used for years. It is specifically tailored to the type and use of each particular facility. The Senate bill shows it does not require the accessibility of every part of every area of a facility. Further, the term is not intended to require that all parking spaces, bathrooms, stalls within bathrooms, et cetera, are accessible, only a reasonable number must be accessible, depending on such factors as location and number. Again, it is a bowing to small businesses that may have fewer facilities and fewer areas and therefore have fewer areas and facilities to make accessible. I can go on, and I did in my testimony address five or six additional ways in which this bill tries to take into account and give deference to the needs of small businesses. I would like to respond briefly to some of the comments of the previous panel. The testimony of Mr. Lynch and Mr. Roth was very enjoyable to me in that they endorsed the basic goal and the coverage of the American with Disabilities Act. I had some disagreements about specifics. In terms of Mr. Lynch's testimony, the question of major structural alterations and whether this is or is not clearly defined in the bill, he took the example of a dropped ceiling, and that perhaps that would trigger a path of travel requirement under the bill. The bill talks about alterations that affect usability of a facility. I would find it hard to argue that replacing tiles in a dropped ceiling affects the usability of a building. Second, it has to be a major alteration and a structural alteration. The Senate report defines structural to mean changes in the walls, ceilings or floors. It is changing one of the physical components of a structure. Third, it has to be major. The report says that major refers to only those changes that occur in a major area, a major part of the building. So, for example, a change in a broom closet is not a major structural change, no matter how extensive it is, and a change in a bank lobby would be, a change in a major area of a bank. With that said I look forward to your questions. Thank you for this opportunity to testify on the bill. Mr. EDWARDS. Thank you very much, Professor Burgdorf. [The prepared statement of Mr. Burgdorf follows:] PREPARED STATEMENT OF ROBERT L. BURGDORF, JR., ASSOCIATE PROFESSOR OF LAW, DISTRICT OF COLUMBIA SCHOOL OF LAW My name is Robert L. Burgdorf Jr. I am an Associate Professor of Law at the District of Columbia School of Law, where I teach Constitutional Law and will be supervising a clinical legal education program dealing with the rights of people with disabilities. From March, 1985, to December, 1988, I worked for the National Council on Disability, where I had the honor of drafting the original version of the Americans with Disabilities Act (ADA) as it was introduced last year. For me this bill represents the culmination of more than fifteen years of work as a legal advocate for the rights of citizens with disabilities. appreciate this opportunity to appear before the Subcommittee to discuss the issue of discrimination against individuals with disabilities in public accommodations. I At the outset, let me say that as the author of last year's version of the bill I have no hesitation in endorsing this year's bill. I believe the 1989 model of the ADA is fully consistent with the spirit and intent of the original proposal of the National Council on Disability that called for enactment of comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting, clear, consistent and enforceable standards prohibiting discrimination on the basis of handicap" (Toward Independence, p. 18 (1986)). The version of the bill (S. 933) that was passed by the Senate by a 76 to 8 vote on September 7, 1989, was the product of extensive negotiation and compromise; as such, it does not completely satisfy any of the interest groups affected. In my opinion, however, the revised bill represents a strong vehicle for prohibiting discrimination against people with disabilities, with provisions that, on balance, are prudent and well-crafted. The passage of this bill will represent an unprecedented advance milestone in the struggle by people with disabilities to secure a legal status of equality in American society. - EXTENT AND EFFECTS OF DISCRIMINATION IN PUBLIC ACCOMMODATIONS In the first ever nationwide poll of people with disabilities conducted in 1986, the Louis Harris organization asked a number of questions regarding the social integration and activities of Americans with disabilities. The pollsters discovered that people with disabilities are an extremely isolated segment of the population. As the National Council on Disability summarized the poll's results: The The survey results dealing with social life and leisure (Implications for Federal Policy of the 1986 Harris Survey |