STATEMENT BY KENNETH E. LEWIS 
OWNER OF KENNETH E. LEWIS, CPA 
PORTLAND, OREGON

Before: House Small Business Committee
Subject: Americans with Disabilities Act, H.R. 2273
Date: February 22, 1990

	My name is Kenneth E. Lewis. As owner of Kenneth E. Lewis, CPA, I employ 5 people in various accounting-related capacities and 2 secretaries. In addition, I am the owner of a ranch in Oregon which employs 2 people who work as ranch hands, tractor drivers, and the like. I have been active in the Junior Chamber of Commerce, the Rotary Club, the Washington County Rodeo Committee, and numerous other civic organizations. I was Chairman of the Oregon delegation for the White House Conference on Small Business. Today I am here as Chairman of the Oregon Guardian Council of the National Federation of Independent Business, which represents more than a half million small business owners nationwide.

	I am also disabled as a result of polio which I contracted in 1952.

	I am very appreciative of those who have made efforts to provide accommodations and jobs for the disabled. And much more can be done through incentives, encouragement, and a cooperative community spirit. However, the ADA takes a very different approach by mandating that business owners cover the full expense of making those changes. If we as a society desire full accessibility, we need to come up with a fair approach to arrive at that goal.

	As the owner of two small businesses, I have a number of concerns about the Americans with Disabilities Act that I feel must be addressed before the bill goes any further. Let me outline a few of those problems for you today.

	The current bill exposes small businesses to possible economic hardship, allows little flexibility in an employer's decisions to hire the best person for the job, and most importantly creates a risk of exposing businesses to potential liability that they can ill afford.

	As you know, the bill requires businesses to make accommodations if they are readily achievable, or if they do not constitute an undue burden. These are generally defined as those actions that do not require much difficulty or expense. That may sound reasonable on the surface, but it will require a judicial ruling or an Equal Employment Opportunity Commission proceeding to determine what is too difficult or expensive for each and every business.

	In my case, I employ one individual who is an accountant in my firm, but who also serves as my aide. My aide must be able to lift me and drive me to various locations related to my work. To a certain degree, I am dependent upon my aide’s responsiveness. However, the ADA bill would not let me exclude a former drug addict or an individual who suffers from a mental illness from consideration for the position if that individual can perform the "essential functions" of the job. As you can imagine, my inability to exclude recovering drug addicts from working as aides is of more than a little concern to me.

	Several years ago, a shabbily dressed man came into my business and asked for a job. I felt sorry for him, and decided to hire him as my aide. I even bought new shoes for him. However, my wife took one look at him and couldn't believe what I had done. The next morning when he came in to get me ready, we had a very difficult time and I began to question my wisdom in giving him a job. Then during a conversation on the drive in to work, he said he wanted to renegotiate the terms of the job. I suggested that we'd both be better off going our separate ways.

	He then blurted out that he really needed the job because he had been on drugs and was currently on methadone. Yet it was quite clear to me by then that he was entirely unstable and certainly not a person I felt comfortable relying upon. I was able to send him on his way in that case, but from my reading of the ADA bill, it would appear that I would have been unable to fire him if it had been in effect. Certainly, this type of situation is not what the drafters of this legislation intend, but it illustrates what could happen if changes are not made.

	Here is another example of what could occur under the ADA bill. Let's say that I hire an aide and that person becomes physically unable to lift. Since lifting is only a portion of my aide’s duties, would I be required to restructure that job and have someone else in the firm perform these services for me in order not to discriminate against my disabled employee? And how does an employer handle the problem without fear of a lawsuit? You cannot terminate the aide and find him another position with no reduction in pay and with no stigma attached to the new position.

	As I mentioned, my other business is ranching. In the case of a sheep ranch, the sheep are herded by a person on horseback with the help of dogs. The ranchhands must coordinate their actions and those of the dogs by verbal commands and whistles. If a hearing impaired individual applies for a job as a ranch hand, would I have to provide visual beeper equipment so he can work in that capacity? And what is my liability if his equipment that I purchase on his behalf fails and he should have an accident? Or what if he is not able to do the job for reasons other than his disability and I need to replace him? How can I possibly prove that I fired him for inability to perform the job rather than his disability?

	This is just one example. Let me give you a few more. If someone interviewed to run a tractor and was missing a hand or a foot, would I be required to install hand controls for that person’s benefit? Would I have to make the bunk houses and outhouses accessible, and to what degree? It would appear from the language in the ADA bill that I would never know until a complaint was made and a decision rendered on just what is required of me as the owner of the farm.

	The employment provisions are clearly troublesome to small business owners, but the public accommodation provisions are no less problematic. The bill indicates that accommodations must be maintained for visitors and clients who may be hearing impaired, blind, have physical limitations, or have mental disorders, to enable them to utilize a business' services.

This can include certified sign language interpreters, auditory equipment, ramps, electronic eye doors, hiring an assistant when necessary, and taking the time to read contracts and forms aloud. The bill indicates that you must provide accommodations to the disabled whether or not you can charge extra for these services. If a business owner feels providing these accommodations is not readily achievable and does not provide them, he can still be sued and face legal fees and court action before he knows if he "guessed" right or wrong on what the court believes is readily achievable in his particular business.

	Some time ago, I was visiting a friend who owns the Rainbow Bar in Pendleton, Oregon. A year or so earlier, he had spent $2,000 to provide a restroom that was accessible to people in wheelchairs. During my visit, he pleaded with me to use his restroom since he'd spent all that money and had not yet had a single person use it who was in a wheelchair. Don't misunderstand me, I appreciate the fact that accommodations are being made to help the disabled, but it should be done with reason and an understanding of what we are demanding of small business owners.

	Let me point out one more problem that seems to have been lost in the debate. The ADA bill indicates that I have to provide an accommodation when it is readily achievable or not an undue burden. But what am I required to do if I have three employees with different disabilities and six customers come into my business who are hearing impaired, all of whom need sign-language interpreters?

	The bill gives no meaningful ceiling or "cut off" on how much is considered excessive to provide any or all of these services for small businesses. The bill gives no guidelines on the cumulative costs of providing for many different types of disabilities. If I am asked to provide a sign-language interpreter for a client for ten hours at a cost of roughly $230, the court may consider that to be readily achievable. However, will they count in my credit the fact that I may have purchased a $5,000 computer for a blind accountant, installed a $2,000 ramp, a $900 electronic door, and various other equipment of lesser cost?

	The bill gives little practical guidance on what is considered a reasonable expense. You may be interested to know about a case involving a car rental company in New York. I have been told that a woman who had a cast on her leg wanted to rent a small car. The rental agency owner felt that she would be unable to drive the small car safely so the car was upgraded to the next size at no extra charge to the client. The client was not satisfied and brought legal action against the rental agency, and won the case.

	This is just one example that car rental agencies will face. What about equipping rental cars for people missing a left hand, or a right hand, or a left foot, or a right foot, or a person who needs hand controls that take four hours to install and several hours more to remove? The bill does not indicate that a business owner can charge more for the extra costs incurred. And the owner is legally liable if the accommodations are not provided.

	You have probably heard proponents of the bill say that the penalties for violating the ADA bill are reasonable. I don’t believe this is the case, particularly for small businesses. If you are accused of violating the bill by a client or visitor, you would have to provide your own attorney and you would have to defend why you did not provide the device the disabled person required. If the plaintiff wins, you are responsible for their attorney fees as well as your own. Legal fees alone could devastate a small business even if the business owner eventually wins.

	If you have a second violation, you can be sued for up to $50,000 by the Attorney General’s office, plus you may incur further damages that the court may deem appropriate. A third violation could result in being sued for up to $100,000 plus other damages. And keep in mind, you can be sued not just for willful violations of the law, but even if you violated the law accidentally.

	Mr. Chairman and members of the committee, I urge you to work for substantive changes in the ADA bill that put reason into the bill. Most small business owners don’t want to discriminate against the disabled, but they do not have unlimited funds to make multiple accommodations. Nor are they able to withstand a lawsuit if they are unable to determine what is readily achievable in their business.

Several changes are needed. These include the following:

1) good monetary guidelines on what businesses are expected to provide;
2) removal of language that states businesses can be sued if a disabled person believes he or she is "about to be" discriminated against;
3) a reasonable phase-in period for small businesses after the final regulations are issued so we know what is expected of us;
4) are fundable tax credit for making accommodations for businesses that will have difficulties providing expensive alterations, equipment, and services.

	These are just a few changes that would improve the ADA bill and make it workable in the real world. A better bill would have encouraged voluntary compliance through incentives, awards programs, and other positive steps. Business owners have done a great deal on their own to employ the disabled and make accommodations for their customers. This is the right type of action to encourage.

	Unfortunately, the ADA bill unnecessarily pits disabled individuals and business owners against each other where the outcome will only be determined by the EEOC or the courts.

	I urge you to do everything possible to alter the path of the ADA bill. On behalf of small business owners like myself, we are asking for your help.

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