Testimony of Lex Frieden

U.S. House of Representatives Committee on Small Business Hearing on the Americans with Disabilities Act
February 22, 1990

	Mr. Chairman and distinguished members of the Committee, my name is Lex Frieden. I am currently Executive Director of the T.I.R.R. Foundation and Assistant Professor of Rehabilitation at Baylor College of Medicine, Houston, Texas. From 1984 to 1988, I served as Executive Director of the National Council on the Handicapped, now called the National Council on Disability.

	I am pleased to have the opportunity to testify today about the Americans with Disabilities Act. I am anxious to describe for you the historical development of this bill, and the changes which have been made to it since it was originally conceived. You will see that many compromises have been made which take into consideration the legitimate needs and real concerns of small business. I believe that the ADA has been crafted to be responsive to the needs of America’s disabled citizens while it is considerate of the interests of America’s small businesses.

	The Americans with Disabilities Act was originally drafted by the National Council on the Handicapped in 1987, after four years of thorough research and investigation. The National Council is an independent federal agency which is composed of fifteen members who are appointed by the President and confirmed by the Senate.

	In 1983, the Council was charged by Congress with the responsibility to "assess the extent to which Federal programs serving people with disabilities provide incentives or disincentives to the establishment of community-based services for handicapped individuals, promote the full integration of such individuals in the community, in schools, and in the workplace, and contribute to the independence and dignity of such individuals." The Council was directed to report its findings and recommendations to the President and Congress by January 1986.

	To carry out this mandate, the Council conducted extensive examinations of current legislation and disability programs, consulted with experts in many disability-related fields, conducted special seminars and hearings, and held public forums for persons with disabilities and their families throughout the United States.

	In these nationwide forums, Council members heard over and over again that discrimination is the number one problem faced by individuals with disabilities. Discrimination creates barriers which make education, rehabilitation, and employment programs ineffective. As a result of hearing testimony and comments of hundreds of people with disabilities, parents, and others; the Council concluded that the most pervasive and recurrent problem faced by disabled persons was unfair and unnecessary discrimination.

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	In its 1986 report to the President and Congress, Toward Independence, the Council wrote: “...(W)hatever the limitations associated with particular disabilities, people with disabilities have been saying for years that their major obstacles are not inherent in their disabilities, but arise from barriers that have been imposed externally and unnecessarily.”

	In the report Appendix, the Council explained, “A major obstacle to achieving the societal goals of equal opportunity and full participation of individuals with disabilities is the problem of discrimination. Discrimination consists of the unnecessary and unfair deprivation of an opportunity because of some characteristic of a person. It is the antithesis of equal opportunity. The severity and pervasiveness of discrimination against people with disabilities is well-documented.”

	The Council learned of severe discrimination in many walks of life experienced by people with disabilities, including employment, public accommodations, transportation, housing, and public services. Council members examined the current status of disability-related nondiscrimination laws and identified large gaps in coverage, shortcomings and inconsistencies in interpretation and application, and deficiencies in enforcement.

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	The Council found that existing non-discrimination measures, such as Section 504 of the Rehabilitation Act of 1973, are extremely important and have resulted in much progress. However, in an overall context, they found that our Nation's laws provide inadequate protection from discrimination for people with disabilities. Current statutes are not comparable in their scope of protection against discrimination to those afforded racial, ethnic, and religious minorities and women under civil rights laws.

	The Council stated its belief that equality of opportunity is a bedrock right in our society, and that discrimination against people because of their disabilities is an unacceptable denial of that right. Such discrimination is not only an affront to the dignity of the individual involved, but it undermines Federal programs that attempt to promote the independence and self-sufficiency of persons with disabilities. Discrimination is a significant reason why many people with disabilities are trapped in situations of dependency -- dependency which costs our nation dearly, both in lost potential productivity and in dollars spent for support programs.

	In conjunction with its other research, the Council also analyzed Federal spending on disability. It concluded. "Our nation’s current annual Federal expenditure on

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disability benefits and programs exceeds $60 billion." Further examination revealed that programs oriented toward independence and economic self-sufficiency were greatly underemphasized. Funding for independence-oriented programs, such as those providing education for handicapped children and vocational rehabilitation consisted of less than $3 billion, or less than 5%, of the total national expenditure on service programs and benefits for people with disabilities. The bulk of expenditures were for programs aimed at maintaining costly dependence while the underlying cause of the dependence went virtually unchallenged on the federal level. For this reason, the Council targeted its policy and legislative proposals in Toward Independence toward the more fiscally-responsible goals of productivity and self-determination.

	Mr. Chairman, it is exactly to cease the costly dependency of people with disabilities that the Americans with Disabilities Act was conceived by the National Council on Disability. The original legislative proposal was drafted by the Reagan-appointed Council to implement their chief legislative recommendation which was the enactment of a comprehensive equal opportunity statute providing clear standards of non-discrimination, with broad coverage paralleling laws prohibiting discrimination on the basis of race, sex, religion, and national origin.

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	While the primary recommendation in Toward Independence was a general call for Congress to enact a comprehensive statute guaranteeing equal opportunities for persons with disabilities, the second through the fifth recommendations gave more detail as to the proposed content of such a law. The second recommendation described the broad scope of statutory coverage that the law should encompass. The third recommendation stated that the law should include a definition of discrimination and standards for applying it. Recommendation number four discussed enforcement mechanisms and regulations that should be issued under the law. The fifth recommendation dealt with guidelines for accessibility, and the role of the Architectural and Transportation Barriers Compliance Board under the proposed comprehensive statute. The ADA proposal addressed all these recommendations.

	It should be noted that the original Americans with Disabilities Act draft legislative proposal was a product of and unanimously recommended by the Reagan-appointed, fiscally-conservative National Council on Disability. The original draft bill was written in such a way as to obtain equal opportunity for America’s disabled citizens as quickly as possible. It was far more strident and demanding than the current Americans with Disabilities Act, as passed by the Senate and amended by the House Education and Labor Committee. All of the major differences between the

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original draft and the bill which unanimously passed the House Education and Labor Committee last November consist of compromises intended to make the bill a more workable policy for American business. Nevertheless, I believe that the original ADA would also have represented a legitimate and workable disability policy for business and for the people of the United States of America.

	Let me give you one example of a big difference between the original bill, which was introduced in 1988, and the current ADA. The original Americans with Disabilities Act required employers, state and local governments, existing public accommodations and others to remove all architectural, transportation and communications barriers that prevent participation by people with disabilities unless doing so would fundamentally alter the essential nature, or threaten the existence of, a program, activity, business, or facility. Two years were allowed for barrier removal, with an option to extend this time period to five years where reasonably necessary.

	This bankruptcy standard was a far higher and vastly more stringent standard than that required by the current ADA. As you know, the ADA, as passed by the Education and Labor Committee, provides that existing facilities will be required only to make the most modest and inexpensive changes, using a very flexible standard to take their

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particular circumstances into account. This is only one example of the compromising changes that have been made in the ADA since it was originally introduced.

	As the ADA has moved forward through the legislative process, the disability community has accepted an extensive number of compromises which limit our discrimination protections to a certain extent, in order to take into account the expressed concerns of the business community, and in particular, the small business community. Business interests were well-represented in lengthy negotiations on the bill which occurred last summer, and representatives of business were consulted and involved in crafting the compromise which received the full endorsement of the White House.

	Now, despite these compromises and specific accommodations, there 1s a great deal of stated misunderstanding about the ADA’s impact upon business. This is apparently due to a lack of familiarity with existing disability anti-discrimination measures, misinformation about the actual requirements of the bill, and lack of knowledge about the needs and rights of people with disabilities. Regretfully, parts of the business community have become alarmed that this bill would be costly and burdensome for them.

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	The ADA’s major requirements have been crafted to take the small business operator’s needs into consideration. I would like to discuss specific ways in which the current ADA accommodates the needs of small business. I will focus on the public accommodations section of the bill, since other witnesses are directly addressing the employment title, but I want to note in passing that similar
considerations have been given to business in the employment and transportation sections of the bill as well.

	The ADA’s approach is to make compliance requirements for small business flexible and considerate of the particular situation of most small businesses -- to require what is reasonable, and not to impose unrealistic or debilitating obligations.

	The requirements of the ADA recognize that some businesses are very small local enterprises, with very limited resources. Under each requirement of the bill, either the size and resources of businesses are explicitly considered in determining what is required, or an accommodation for small business is built into its substantive requirement.

	For example, I first would like to discuss the requirements of existing public accommodation to remove architectural and communication barriers. As I mentioned

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earlier, only the most modest requirements are placed on existing establishments: barriers need not be removed unless doing so is "readily achievable," which is defined as "easily accomplishable and able to be carried out without much difficulty or expense." In determining whether an action is readily achievable, the ADA lists numerous factors to be considered, which include “the overall size of the covered entity with respect to number of employees, number and type of facilities, and the size of budget" as well as "the type of operation of the covered entity, including the composition and structure of the entity."

	In this way, the ADA deliberately takes into account the factors about small businesses which vary and which pose limits on their resources. If these factors indicate that a barrier is too costly to remove, it can legally remain.

	Therefore, the size and budget of a business are specifically considered. A small, mom-and-pop store is held to a much lower standard than a larger, more prosperous enterprise. The readily achievable standard takes into account the particular physical and financial realities of each individual establishment and requires more of those realistically able to do more, and less of those who are only able to do less.

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	In the House Education and Labor Committee, an even further accommodation was made to small business’ needs. Added to the factors to be considered when determining if a barrier-removal will be “readily achievable” are the resources available to the specific site where the barrier is located, even if the site is part of a chain of stores or service establishments belonging to a large national concern. This amendment is yet another example of the modification of the ADA based on a specific voiced concern from the business community.

	Where removing barriers in existing facilities is not "readily achievable," the ADA allows alternative methods to serve customers, The Report accompanying the Senate bill cites examples of such alternative methods: “...coming to the door to receive or return drycleaning; allowing a disabled person to be served beverages at a table even though nondisabled persons having only drinks are required to drink at the inaccessible bar; providing assistance to retrieve items in an inaccessible location; and rotating movies between the first floor accessible theater and a comparable second floor inaccessible theater" are examples of alternative methods, all of which are completely cost-free.

Another way in which the ADA is responsive to the needs of business is in limiting the extent to which auxiliary 

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aids and services must be provided to people with disabilities. The requirement does not apply in cases where provision of such aids and services would “fundamentally alter” or would “result in an undue burden.”  The Senate Report notes that the term “undue burden” is analogous to the phrase “undue burden” in the employment section of the ADA, and that “the determination of whether the provision of an auxiliary aid or service imposes an undue burden on a business will be made on a case-by-case basis, taking into account the same factors used for purposes of determining ‘undue hardship.’” The factors to be taken into account are similar to those which are used in connection with the readily achievable standard. In determining whether providing an auxiliary aid or service amounts to an undue burden, the size, budget, and circumstances of a business are expressly relevant. Therefore, 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.

	The ADA focuses on barrier-removal in brand new construction. All parties agree that it is easiest and cheapest to make facilities accessible when they are new; a common estimate is that access adds, at most, an average of 1/2 of 1% to a new building’s cost. Even in this case, where access is comparatively inexpensive, there is a protection for small business. The Senate bill incorporates

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A specific exception to the accessibility requirements with regard to elevators in small buildings. While the previous version of the bill specifically provides that elevators are not required “for facilities that are less than three stories or that have less than 3,000 square feet per story.” Arguably, elevators in such circumstances might make up only a small and manageable percentage of overall building costs, but to make absolutely sure that small building owners and builders would not be unduly burdened, the bill exempts small buildings from the elevator requirement. This exemption applies in all facilities other than shopping malls, medical facilities, and types of facilities singled out in particular by the Attorney General.

Even in newly constructed facilities, the ADA does not require total or universal accessibility. Instead, it incorporates a standard of accessibility which has been developed in federal statutes and regulations: “readily accessible to and usable by.” This term means that not every single feature needs to be accessible, depending on the type and use of each facility. Specifically, the Senate report describes it in this way: “The term is not intended to require that all parking spaces, bathrooms, stalls within bathrooms, etc. are accessible; only a reasonable number must be accessible, depending on such factors as their

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location and number." The term is intended to enable people with disabilities to "get to, enter, and use a facility." Making facilities “readily accessible to and usable by" people with disabilities is a much more achievable standard than making every single portion of a facility fully accessible.

	Another important accommodation made in the current ADA to the needs of small business is the establishment of telecommunications relay services to assist people with speech and hearing impairments to use the telephone. While it may not be apparent on the surface, the development of this relay service is a major accommodation to the interests of small business. In prior versions of the ADA, there was no relay service established, and one of the potential obligations upon places of public accommodation was the purchase and operation of a Telecommunications Device for the Deaf (or TDD) so that deaf customers could call on their TDD’s to inquire about tickets, ask about available products, etc.

	While portable TDD’s are relatively inexpensive (good models are generally available for around $200), there was some concern that it would be too burdensome to require small business to buy TDD’s. Under the current ADA, Title IV, requires each region of the country to establish a telecommunications relay service so that individuals who use

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	TDD’s in their homes, but who can’t use regular telephones, can call a center where their call is relayed by operators using regular telephones. The result of the service is that the modest cost of incurring the TDD is no longer required of any public accommodations, and the world of the telephone is still available to deaf and speech-impaired people.

	As you can see, the ADA’s public accommodations requirements are quite tailored to the interests of the small business sector. Passage of the ADA will have no dire consequences for America’s small businesses. Yet, the ADA will provide an important advance toward equal opportunity for people with disabilities.

	In summary, Mr. Chairman, I believe the current version of the ADA strikes a good balance between the rights of people with disabilities and the legitimate concerns of business. For people with disabilities, the Act mandates that they be treated equally and judged as individuals on the basis of their abilities. The ADA assures Americans with Disabilities the opportunity to become independent and productive members of society. It guarantees them the right to be a part of the social and economic fabric of life in their communities.

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	For the business community, the ADA recognizes cost in devising standards and making accommodations. It provides sufficient time to make needed changes, and it takes into consideration the unique and variable circumstances of small business.

	Frankly, Mr. Chairman, I believe passage of the ADA will benefit Americans with Disabilities and American business alike. By prohibiting discrimination and encouraging equal opportunity for people with disabilities, this legislation will enable millions of people, heretofore dependent on government disability benefit payments and subsidies, to be more productive, more independent, and more self-sufficient. In so doing, it will create opportunity for business to serve an emerging minority and reduce the risk of increasing taxes to cover the costs of higher benefit payments and more custodial service programs. I encourage your strong support of the Americans with Disabilities Act.

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