STATEMENT OF JAMES P. TURNER ACTING ASSISTANT ATTORNEY GENERAL CIVIL RIGHTS DIVISION U.S. DEPARTMENT OF JUSTICE BEFORE HOUSE COMMITTEE ON SMALL BUSINESS CONCERNING THE AMERICANS WITH DISABILITIES ACT FEBRUARY 22, 1990 Dole Archives: s-leg_554 001_017_d.pdf Page 1 of 21 Mr. Chairman, distinguished members of the Committee, it is a pleasure for me to appear before you today to discuss the proposed Americans with Disabilities Act. On October 12, 1989, Attorney General Dick Thornburgh appeared before the Judiciary Committee and reiterated the Administration’s support of the Americans with Disabilities Act as passed by the Senate. The Administration’s endorsement of this bill reflects President Bush’s longstanding commitment to bring persons with disabilities into the mainstream of American society. In his State of the Union address last month the President restated his personal commitment to the independence and productive involvement of persons with disabilities in our social and economic mainstrean. The Americans with Disabilities Act, as passed by the Senate on September 7, 1989, is fair, balanced legislation. It will ensure that persons with disabilities enjoy accass to jobs, public accommodations, public services, public transportation, and telecommunications -- in other words, full participation in and access to virtually all aspects of society. The bill builds on an extensive body of civil rights precedent -- statutes, case law, and regulations -- to avoid unnecessary confusion; it allow maximum flexibility for compliance; and it does not place undue burdens on those who must comply. Dole Archives: s-leg_554 001_017_d.pdf Page 2 of 21 The Administration’s support for passage of the ADA by the House of Representatives remains strong. But I do not cone before you today just to reiterate the Administration’s support for the ADA. I appear before you today to address fears that have been raised by those in the American business community about the ADA. In the past several months considerable concern has been expressed about the financial impact of the ADA on businesses, particularly small enterprises. This concern is real and deeply felt. We believe, however, that these fears are misplaced. Too much of this concern has been fueled by supposition and erroneous information. It is the Administration’s firm belief that these fears will be allayed as people come to understand what the ADA actually provides. In addition, I will address a new concern of interest to the business community -- the view that the recently intreduced Civil Rights Act of 1990 would radically alter the ADA and add new uncertainties about the meaning of the ADA fer the business community. As I will explain in greater detail, the Administration’s support for the ADA was and is premised on the agreement reached expressly with its sponsors that the remedies curently available under title VII of the Civil Rights Act of 1964 would be the remedies for Title I of the ADA. Fortunately, the ADA can easily be amended to clarify that understanding. Much has been made of the “vague” and “undefined” terms used in the Americans with Disabilities Act. One of the major Dole Archives: s-leg_554 001_017_d.pdf Page 3 of 21 strengths of the ADA is that it uses, whenever possible, concepts, phrases, and terms fron existing civil rights law in the disability rights area. the bill freely adopts the standards of sections 503 and 504 of the Rehabilitation Act of 1973, as amended, the major civil rights statute addressing nondiscrimination on the basis of disability. Many of the ADA’s employment and public accommodations provisions are drawn directly, and in many instances, even taken verbatim from the Federal regulations implementing section 504. This course of action is a particularly wise choice. The section 504 standards are already familiar te large segments of the private sector which receive Federal funds and are currently covered by the Rehabilitation Act. More importantly, over 15 years of experience in enforcing sections 503 and 304 have shown that these standards do not rasult in undue costs or excessive litigation. The fears being raised now about the impact of the ADA are similar to those misgivings that were raised in the first few years following implementation of sections 503 and 504 by the Departments of Labor and Health, Education, and Welfare. There were predictions that those covered by the regulations would be bankrupted or forced to severely curtail or alter their services. These doomsday predictions were based on ignorance and myth and proved false. Similar misgivings in the area of race discrimination surfaced in 1965 and proved te be equally unfounded. The Administration believes that a similar fate Dole Archives: s-leg_554_001_017_d.pdf Page 4 of 21 awaits the misapprehensions that have been raised about the ADA. The ADA gives sufficient tatitude to employers, commercial establishments, and other entities covered by the bill to allow them the flexibility to achieve compliance without placing an undue burden on their operations. If the concerns that have been raised by some private enterprises and their associations were directed at the version of the ADA that was first introduced in the Senate, these concerns would be understandable. When the Attorney General testified on the ADA before the Senate in June of last year, he relayed a number of serious misgivings on issues that needed to be addressed before the Administration could endorse the ADA. Last summer, representatives of the Administration engaged in prolonged negotiations with the Senate on these issues. These discussions led to significant revisions in the bill, revisions that made the Americans with Disabilities Act a practical, workable, credible piece of legislation. Perhaps a brief look at what the ADA requires for enterprises that are public accomodations would be useful. The ADA does not impose unlimited requirements on public accomodations. In fact, the Act contains a series of limitations on the bill's reach, limitations that will significantly restrict costs for covered entities. The Act has minimal requirements for retrofitting existing facilities. A physical barrier need only be removed when its removal is Dole Archives: s-leg_554_001_017_d.pdf Page 5 of 21 to do so. Examples of the types of modifications that would be "readily achievable" in most cases would include the simple ramping of a few steps, the installation of grab bars, the lowering of telephones, the installation of offset hinges, and similar modest adjustments. Even grab bars might not be required if their installation entailed not just reinforcement of a wall but actually rebuilding a wall to provide more support. The ADA reserves its most rigorous accessibility requirements for new construction. Fortunately, when accessible features are incorporated into facilities before construction during the design phase, cost is minimized. In fact, the estimated increase of construction costs for accessibility has consistently been measured as less than one per cent of the cost of construction. The ADA even has limitations on new construction in an attempt to mitigate costs. The ADA contains an exception for placing elevators in new buildings, perhaps the most costly capital expense for making buildings accessible. Any building that has less than 3,000 square feet per story or that is three stories or less in height need not be constructed with an elevator. For these smaller structures, only multistory shopping malls, professional offices of health care providers, and other categories of buildings designated by the Attorney General would be required to have elevators. Some in the business community have sought an exemption from the ADA’s requirements for small business enterprises, that is, Dole Archives: s-leg_554 001_017_d.pdf Page 6 of 21 for those public accommodations having fewer than fifteen employees. The Administration gave very serious consideration to this issue last year when it first began reviewing the Americans with Disabilities Act. However, because many retail firms in this country are small, the effect of excluding firms with few employees would seriously compromise the goal of the Act of opening up everyday American life to persons with disabilities. For example, the 15-employee exemption threshold would exclude almost all the physicians’ and dentists’ offices, hardware stores, barber shops, bars, and beauty pariors in the country. It would severely restrict access to service stations, laundries, and specialty food stores. Thus, the Administration agreed that the ADA would only be effective in the public accommodations area if there were no exemption for small public accommodations. However, the Administration agreed to mitigate the effect of this broad coverage by narrowly circumscribing what the ADA required. We believe that the ADA adopts a reasonable compromise that will give persons with disabilities access to everyday life and will allow American enterprises, including small businesses, adequate leeway to conduct their operations without a significant cost burden. Some have attempted to inflame the business community with predictions that, in order to comply successfully with the ADA, businesses will be expected to know and prepare for "900 types c- disabilities.” While there are many medical conditions that cause disability, the functional manifestations of these Dole Archives: s-leg_554_001_017_d.pdf Page 7 of 21 conditions are limited in number: indeed, the ADA defines disability in terms of impairment of "major life functions.” ‘The ADA does not contemplate that the American business community will become expert in the many conditions that cause disabling impairments. Instead, the ADA envisions that a business will analyze how it will be able to accommodate individuals with functional limitations and, as a result, modify policies, practices, and facilities where necessary and only within reason. In most cases, a business will be able to comply successfully with the ADA by examining how it will serve its clients with mobility impairments, those with visual or hearing impairments, and those with limited use of their arms. The ADA’s requirements on the issue of “anticipated discrimination” have been much misunderstoed. Like the existing law on public accommodations in the race area, the public accommodations provisions will permit an individual to allege discrimination based on a disabled person’s reasonable belief that he or she is about to be discriminated against. This provision would permit, for example, a challenge by a disabled person who uses a wheelchair to the planned construction of a new shopping mall that would not be accessible to wheelchair users. The resolution of such challenges prior to the construction of an inaccessible facility will enable any necessary remedial measures to be incorporated in the building at the Planning stage, when such changes would be relatively inexpensive, rather than Dole Archives: s-leg_554_001_017_d.pdf Page 8 of 21 requiring costly retrofitting after the initial construction is completed. The ADA contains additional safeguards that should help allay the concerns of the business community. In an effort to ensure that business owners are acquainted with the ADA’s requirenents before they are held liable for compliance, the ADA provides that the employment provisions of the law will take effect two years after the date of enactnent for employers of 25 or more employees, and four years after enactment for employers of 15-24 employees. The public accommodations requirements will take effect 18 months after enactment. During the time between the enactment and the effective Gate, several Federal agencies, including the Department of Justice, must issue regulations implementing the ADA and must develop and implement a plan for providing technical assistance to covered entities. The Administration pledges to conduct an open and fair rulemaking process under ADA. We will provide ample opportunity for a full airing of all relevant issues. In order to ensure that all sides are heard on access to public accommodations, the Department of Justice, will hold a series of public hearings during its rulemaking process for public accommodations. Further, the Administration recognizes that educating the public about its rights and responsibilities under the ADA is crucial to the Act’s success. Thus, the Department of Justice Dole Archives: s-leg_554 001_017_d.pdf Page 9 of 21 plans to mount a credible, government-wide technical assistance plan for the ADA. We are convinced that those entities covered by the ADA, once they are given information on how to comply with the bill, will do so voluntarily. The Department is exanining the positive experience that the Pederal government had with its technical assistance efforts for section 504 and intends to duplicate that experience for the ADA. A key aspect in the technical assistance program will be the use of grants and contracts to develop and disseminate materials on the Act to covered entities. As with section 504, we intend to use trade associations and other similar groups that have existing lines of communication and credibility with covered entities and persons with disabilities to ensure the success of the technical assistance effort. The Administration remains firmly committed to the Americans with Disabilities Act and seeks its early enactment into law. A new impediment to the quick passage of the ADA has arisen and the Administration seeks to resolve affirmatively this difficulty. I speak, of course, of the remedies provisions of the recently introduced "Civil Rights Act of 1990." I want to reiterate this Administration’s strong support for effective remedies in the ADA. The ADA, as endorsed by the Administration, contains a full panoply of remedies for civil rights violations: employment violations are to be rectified by injunctive relief, including back pay, reimbursement for out-of-pocket expenses, preventive relief, reinstatement, the provision of reasonable accommodation, Dole Archives: s-leg_554 001_017_d.pdf Page 10 of 21 and other equitable relief: public accommodations violations are to be remedied by similar forms of injunctive relief, including court-ordered provision of auxiliary aids and making facilities accessible. In addition, the Attorney General will have the authority to seek civil penalties, in amounts up to $50,000 for initial violations and up te $100,000 for subsequent violations, when such penalties are necessary to vindicate the public interest, and may even request money damages for aggrieved persons. Enactment of this proposed Civil Rights Act of 1990 would significantly expand the remedies available under the ADA to include compensatory and punitive damages. Donald Ayer, the Deputy Attorney General, testified two days ago before the House Committees on Education and Labor and the Judiciary that the Administration opposes such an expansion of remedies. In fact, the Administration agreed to support the ADA only after provisions providing compensatory and punitive damages were deleted from the earlier versions of the bill. During his appearance before the Senate Committee on Labor and Human Resources, the Attorney General made clear that the Administration was opposed to compensatory and punitive damages for the Americans with Disabilities Act. The Administration has consistently opposed this relief. We expect that there will be considerable voluntary compliance with this new law. Such optimism is based on our experience with the Dole Archives: s-leg_554 001_017_d.pdf Page 11 of 21 public accommedations provisions of the Civil Rights Act of 1964. The successful implementation of that law’s prohibition against racial and religious discrimination in public accommodations rested in large part on the country’s positive, voluntary response. Like the ADA, the 1964 Act provided injunctive and equitable relief, not a resort to jury trials and compensatory and punitive damages. Further, inclusion of such extraordinary relief as punitive damages is simply unwarranted in a statutory scheme as new, bold, and complex as the provision of disability rights concepts to the American business community. We support the ADA’s extensive technical assistance requirements precisely because the law’s scope of coverage is so broad and the legal concepts are so complex. We need to foster an environment in which good faith compliance can take place, not one which encourages counterproductive adversarial relationships. The Administration is not suggesting that the Americans wit Disabilities Act should be held hostage to the proposed Civil Rights Act of 1990. Quite the contrary, the Administration continues to seek enactment of the ADA on an expedited basis. Fortunately, there is a relatively simple way to address the concern I have raised today. Section 107 of the ADA states that certain remedies and procadures of title VIZ are available for the ADA. If section 107 vere modified to state what remedies were available for violations of the ADA, that is, injunctive Dole Archives: s-leg_554_001_017_d.pdf Page 12 of 21 relief, reinstatement, the provision of reasonable accommodation, back pay and other make-whole relief, the impediment caused by the introduction of the Civil Rights Act of 1990 would be removed. We call upon all the sponsors and supporters of the ADA to work together to fashion such an amendment to the ADA as it is marked-up, perhaps in the House Judiciary Committee. Mr. Chairman, I appreciate the time you have given to me to express the Administration’s views on this very important matter. The Administration believes that the bill as noy drafted carefully balances the right of people with disabilities to be free from discrimination with the legitimate needs of the business community and that, with the modification of section 107, together we can move to speed its enactment. Dole Archives: s-leg_554 001_017_d.pdf Page 13 of 21 STATEMENT OF JAMES P. TURNER ACTING ASSISTANT ATTORNEY GENERAL CIVIL RIGHTS DIVISION U.S. DEPARTMENT OF JUSTICE BEFORE HOUSE COMMITTEE ON SMALL BUSINESS CONCERNING THE AMERICANS WITH DISABILITIES ACT FEBRUARY 22, 1990 Dole Archives: s-leg_554_001_017_d.pdf Page 14 of 21 Mr. Chairman, distinguished members of the Committee, it is a pleasure for me to appear before you today to discuss the proposed Americans with Disabilities Act. On October 12, 1989, Attorney General Dick Thornburgh appeared before the Judiciary Committee and reiterated the Administration’s support of the Americans with Disabilities Act as passed by the Senate. The Administration’s endorsement of this bill reflects President Bush’s longstanding commitment to bring persons with disabilities into the mainstream of American society. In his State of the Union address last month the President restated his personal commitment to the independence and productive involvement of persons with disabilities in our social and economic mainstrean. The Americans with Disabilities Act, as passed by the Senate on September 7, 1989, is fair, balanced legislation. It will ensure that persons with disabilities enjoy access to jobs, public accommodations, public services, public transportation, and telecommunications -- in other words, full participation in and access to virtually all aspects of society. The bill builds on an extensive body of civil rights precedent -- statutes, case law, and regulations -- to avoid unnecessary confusion; it allows maximum flexibility for compliance; and it does not place undue burdens on those who must comply. Dole Archives: s-leg_554 001_017_d.pdf Page 15 of 21 The Administration’s support for passage of the ADA by the House of Representatives remains strong. But I do not come before you today just to reiterate the Administration’s support for the ADA. I appear before you today to address fears that have been raised by those in the American business community about the ADA. In the past several months considerable concern has been expressed about the financial impact of the ADA on businesses, particularly small enterprises. This concern is real and deeply felt. We believe, however, that these fears are misplaced. Too much of this concern has been fueled by supposition and erroneous information. It is the Administration’s firm belief that these fears will be allayed as people come to understand what the ADA actually provides. In addition, I will address a new concern of interest to the business community -- the view that the recently introduced Civil Rights Act of 1990 would radically alter the ADA and add new uncertainties about the meaning of the ADA for the business community. As I will explain in greater detail, the Administration’s support for the ADA was and is premised on the agreement reached expressly with its sponsors that the remedies curently available under title VIT of the Civil Rights Act of 1964 would be the remedies for Title I of the ADA. Fortunately, the ADA can easily be amended to clarify that understanding. Much has been made of the “vague” and “undefined” terms used in the Americans with Disabilities Act. one of the major Dole Archives: s-leg_554 001_017_d.pdf Page 16 of 21 strengths of the ADA is that it uses, whenever possible, concepts, phrases, and terms from existing civil rights law in the disability rights area. The bill freely adopts the standards of sections 503 and 504 of the Rehabilitation Act of 1973, as amended, the major civil rights statute addressing nondiscrimination on the basis of disability. Many of the ADA’s employment and public accommodations provisions are drawn directly, and in many instances, even taken varbatin from the Federal regulations implementing section 504. This course of action is a particularly wise choice. The section 504 standards are already familiar to large segments of the private sector which receive Federal funds and are currently covered by the Rehabilitation Act. More importantly, over 15 years of experience in enforcing sections 503 and 504 have shown that these standards do not result in undue costs or excessive litigation. The fears being raised now about the impact of the ADA are similar to those misgivings that were raised in the first few years following implementation of sections 503 and 504 by the Departments of Labor and Health, Education, and Welfare. There were predictions that those covered by the regulations would be bankrupted or forced to severely curtail or alter their services. These doomsday predictions were based on ignorance and myth and proved false. Similar misgivings in the area of race discrimination surfaced in 1965 and proved to be equally unfounded. The Administration believes that a similar fate Dole Archives: s-leg_554_ 001 _01_d.pdf Page 17 of 21 awaits the misapprehensions that have been raised about the ADA. The ADA gives sufficient latitude to employers, commerical establishments, and other entities covered by the bill to allow them the flexibility to achieve compliance without placing an undue burden on their operations. If the concerns that have been raised by some private enterprises and their associations were directed at the version of the ADA that was first introduced in the Senate, these concerns would be understandable. When the Attorney General testified on the ADA before the Senate in June of last year, he relayed a number of serious misgivings on issues that needed to be addressed before the Administration could endorse the ADA. Last summer, representatives of the Administration engaged in prolonged negotiations with the Senate on these issues. These discussions led to significant revisions in the bill, revisions that made the Americans with Disabilities Act a practical, workable, credible piece of legislation. Perhaps a brief look at what the ADA requires for enterprises that are public accommodations would be useful. The ADA does not impose unlimited requirements on public accomodations. In fact, the Act contains a series of limitations on the bill's reach, limitations that will significantly restrict costs for covered entities. The Act has minimal requirements for retrofitting existing facilities. A physical barrier need only be removed when its removal is Dole Archives: s-leg_554 001_017_d.pdf Page 18 of 21 to do so. Examples of the types of modifications that would be "readily achievable" in most cases would include the simple ramping of a few steps, the installation of grab bars, the lowering of telephones, the installation of offset hinges, and similar modest adjustments. Even grab bars might not be required if their installation entailed not just reinforcement of a wall but actually rebuilding a wall to provide more support. The ADA reserves its most rigorous accessibility requirements for new construction. Fortunately, when accessible features are incorporated into facilities before construction during the design phase, cost is minimized. In fact, the estimated increase of construction costs for accessibility has consistently bean measured as less than one per cent of the cost of construction. The ADA even has limitations on new construction in an attempt to mitigate costs. The ADA contains an exception for placing elevators in new buildings, perhaps the most costly capital expense for making buildings accessible. Any building that has less than 3,000 square feet per story or that is three stories or less in height need not be constructed with an elevator. For these smaller structures, only multistory shopping malls, professional offices of health care providers, and other categories of buildings designated by the Attorney General would be required to have elevators. Some in the business community have sought an exemption from the ADA’s requirements for small business enterprises, that is, Dole Archives: s-leg_554 001_017_d.pdf Page 19 of 21 for those public accommodations having fewer than fifteen employees. The Administration gave vary serious consideration to this issue last year when it first began reviewing the Americans with Disabilities Act. However, because many retail firms in this country are small, the effect of excluding firms with few employees would seriously compromise the goal of the Act of opening up everyday American life to persons with disabilities. For example, the 15-employee exemption threshold would exclude almost all the physicians’ and dentists’ offices, hardware stores, barber shops, bars, and beauty parlors in the country. It would severely restrict access to service stations, laundries, and specialty food stores. Thus, the Administration agreed that the ADA would only be effective in the public accommodations area if there were no exemption for small public accommodations. However, the Administration agreed to mitigate the effect of this broad coverage by narrowly circumscribing what the ADA required. We believe that the ADA adopts a reasonable compromise that will give persons with disabilities access to everyday life and will allow American enterprises, including small businesses, adequate leeway to conduct their operations without a significant cost burden. Some have attempted to inflame the business community with predictions that, in order to comply successfully with the ADA, businesses will be expected to know and prepare for "900 types of disabilities.” While there are many medical conditions that cause disability, the functional manifestations of these Dole Archives: s-leg_554 001_017_d.pdf Page 20 of 21 conditions are limited in number: indeed, the ADA defines disability in terms of impairment of “major life functions.” The ADA does not contemplate that the American business community will become expert in the many conditions that cause disabling impairments. Instead, the ADA envisions that a business will analyze how it will be able to accommodate individuals with functional limitations and, as a result, modify policies, practices, and facilities where necessary and only within reason. In most cases, a business will be able to comply successfully with the ADA by examining how it will serve its clients with mobility impairments, those with visual or hearing impairments, and those with limited use of their arms. The ADA’s requirements on the issue of “anticipated discrimination” have been much misunderstood. Like the existing law on public accommodations in the race area, the public accommodations provisions will permit an individual to allege discrimination based on a disabled person’s reasonable belief that he or she is about to be discriminated against. This provision would permit, for example, a challenge by a disabled person who uses a wheelchair to the planned construction of a new shopping mall that would not be accessible to wheelchair users. The resolution of such challenges prior to the construction of an inaccessible facility will enable any necessary remedial measure; to be incorporated in the building at the planning stage, when such changes would be relatively inexpensive, rather than Dole Archives: s-leg_554 001_017_d.pdf Page 21 of 21