STATEMENT OF SENATOR DOLE
TESTIMONY ON AMERICANS WITH DISABILITIES ACT
LABOR AND HUMAN RESOURCES COMMITTEE
MAY 10, 1989

MR. CHAIRMAN, MEMBERS OF THE COMMITTEE, AND MEMBERS OF THE DISABILITY COMMUNITY, I WOULD LIKE TO THANK MY COLLEAGUES FOR THIS OPPORTUNITY TO PRESENT MY VIEWS ON EXPANDING THE CIVIL RIGHTS OF OUR DISABLED CITIZENS. LIKE MY COLLEAGUES, I BELIEVE WE NEED TO PROTECT PERSONS WITH DISABILITIES FROM DISCRIMINATION IN EMPLOYMENT, EDUCATION, TRANSPORTATION AND IN ANY OTHER AREA WHERE OUTRIGHT DISCRIMINATION EXISTS. MY CONCERN LIES IN HOW WE GO ABOUT ACHIEVING THESE PROTECTIONS, BECAUSE THEIR IMPLEMENTATION WILL AFFECT MORE THAN JUST THE DISABILITY COMMUNITY.

I DO BELIEVE THE AMERICANS WITH DISABILITIES ACT (ADA) CORRECTLY PLACES ITS EMPHASIS ON THE EMPLOYMENT AREA. IN MY VIEW, THIS IS A STRENGTH OF THIS YEAR'S VERSION OF ADA AS COMPARED TO LAST YEAR'S. WE MAY BE ABLE TO ARRIVE AT SOME SATISFACTORY AGREEMENT ON THIS PART OF THE BILL. BY THE YEAR 2000, ACCORDING TO THE LABOR DEPARTMENT (WHERE, INCIDENTALLY, I HAVE SOME CLOSE CONTACTS), WE WILL BE FACING A SERIOUS LABOR SHORTAGE. WE NEED TO MAKE CERTAIN THAT WE ARE FULLY UTILIZING THE POTENTIAL OF EVERY INDIVIDUAL WITHIN OUR SOCIETY.

THERE ARE FEW SITUATIONS WHICH ARE MORE DEVASTATING BOTH FOR INDIVIDUALS AND FOR OUR COUNTRY THAN UNWARRANTED DISCRIMINATION. DISCRIMINATION AGAINST PERSONS WITH DISABILITIES IS NOT ONLY A BLOW TO AN INDIVIDUAL'S BASIC DIGNITY, BUT ALSO NEGATIVELY IMPACTS ON SOCIETY BY LIMITING SUCH INDIVIDUAL'S UNIQUE CONTRIBUTIONS. FOR EXAMPLE, AS WAS SO ELOQUENTLY EXPRESSED ATTHE HEARINGS YESTERDAY, PEOPLE WITH DISABILITIES WANT TO WORK. THEY WANT TO PAY THEIR OWN WAY, TO CONTRIBUTE TO OUR SOCIETY. UNWARRANTED DISCRIMINATION DENIES THEM AND OUR COUNTRY THE BENEFITS OF THIS LABOR.

AS A MEMBER OF CONGRESS WHO HAS HAD PERSONAL EXPERIENCE WITH A DISABILITY, AND AS ONE WHO HAS CONSISTENTLY DEDICATED HIS PUBLIC CAREER TO ASSISTING PEOPLE WITH DISABILITIES, I STAND ON MY COMMITMENT TO BUILDING THE BEST AMERICA POSSIBLE FOR PERSONS WITH DISABILITIES. I AM STRONGLY IN FAVOR OF ENHANCING THE CIVIL RIGHTS OF PEOPLE WITH DISABILITIES -- I SUPPORT THE CONCEPT OF THE AMERICANS WITH DISABILITIES ACT, BUT I DO NOT SUPPORT ALL OF THE SPECIFIC LANGUAGE THAT I AM FAMILIAR WITH IN THE DRAFT THAT I HAVE HAD A CHANCE TO REVIEW. THE PRIMARY REASON FOR MY CAUTION IS THAT I'M REALLY NOT CERTAIN WHAT A LOT OF THE LANGUAGE IN THE CURRENT DRAFT DOES. SOME OF IT IS SO VAGUE THAT IT IS LIKELY TO CAUSE A FLOOD OF UNNECESSARY LITIGATION. WHILE I SUPPORT THE EMPLOYMENT GOALS OF THE AMERICANS WITH DISABILITIES ACT, I DO NOT THINK WE NEED TO CREATE ADDITIONAL EMPLOYMENT OPPORTUNITIES FOR LAWYERS. LATER IN MY TESTIMONY, I WILL CITE EXAMPLES OF SOME OF THESE AREAS OF AMBIGUITY.

I STRONGLY SUPPORT THE ELIMINATION OF BARRIERS FOR PEOPLE WITH DISABILITIES, BUT I ALSO CARE WHETHER WE GO ABOUT ACHIEVING THESE GOALS IN A CONSTRUCTIVE WAY -- ONE THAT WILL NOT CREATE AN UNREASONABLE BURDEN ON THE PRIVATE SECTOR, WHICH WILL BE REQUIRED TO IMPLEMENT THE PROVISIONS OF THE LEGISLATION.

I FIRMLY BELIEVE THAT OUR SOCIETY WILL ONLY BE CHANGED WHEN PEOPLE FOCUS ON THE CONTRIBUTIONS PEOPLE WITH DISABILITIES CAN MAKE -- ON WHAT THEY ARE CAPABLE OF DOING -- NOT ON THEIR LIMITATIONS. MY RECORD IN THIS AREA IS CLEAR, AND IT IS ONE THAT HAS BEEN ESTABLISHED OVER DECADES. LET THERE BE NO QUESTION ABOUT MY SOLIDARITY WITH THE DISABILITY COMMUNITY.

I KNOW THAT MANY OF MY FELLOW AMERICANS WITH DISABILITIES HAVE FOUGHT THEIR OWN BATILES, FACED THEIR OWN CHALLENGES AND COME TO THEIR OWN PERSONAL UNDERSTANDING OF COURAGE.

YES, THE WORLD CAN BE IMPROVED, AND SO CAN THIS LEGISLATION. THE RECENTLY INTRODUCED AMERICANS WITH DISABILITIES ACT HAS SOME SERIOUS FLAWS, BUT ONES I BELIEVE CAN BE ADDRESSED. IN PURSUING A COURSE THAT WILL LEAD TO A BARRIER-FREE WORLD FOR PEOPLE WITH DISABILITIES, WE NEED TO ADDRESS THE CONCERNS OF ALL THOSE WHO WILL BE AFFECTED.

BEGINNING OF PROCESS
THE INTRODUCTION OF THIS BILL AND THESE HEARINGS MARK THE BEGINNING OF THE EXAMINATION OF A VERY SIGNIFICANT AND HIGHLY COMPLEX ISSUE: CIVIL RIGHTS PROTECTIONS FOR PERSONS WITH DISABILITIES. I BELIEVE THAT OUR EXTENSIVE, AND OFTEN UNWIELDLY, LEGISLATIVE PROCESS WAS DESIGNED TO PERMIT THE FULL EXAMINATION OF ISSUES AS FAR-REACHING AND SIGNIFICANT AS THIS ONE IS, AND I AM PLEASED THAT THIS PROCESS IS FINALLY BEGINNING.

I INTEND TO USE THIS PROCESS TO REVIEW THE ISSUES RAISED SO THAT WE ARE ASSURED THAT THE LEGISLATION WE ENACT IS LEGISLATION WHICH CAN BE IMPLEMENTED, WHICH IS RESPONSIBLE, AND RESPONSIVE TO THE CONCERNS OF ALL THOSE WHO WILL BE AFFECTED. IF THE PROCESS IS SUCCESSFUL, WE WILL HAVE LEGISLATION THAT WILL WORK TO REMOVE OBSTACLES AND PROMOTE OPPORTUNITIES.

WHAT I HOPE TO AVOID IS SOME OF THE PROBLEMS WE FACED WHEN SECTION 504 WAS FIRST ENACTED AND THERE WAS SUCH A LONG DELAY IN THE IMPLEMENTATION OF THE LEGISLATION -- YEARS IN FACT.

CONCERNS - COST
LET ME TALK NOW ABOUT SOME OF THE SPECIFIC AREAS OF CONCERN ON WHICH I HOPE THE COMMITIEE WILL FOCUS. FIRST, THERE IS THE ISSUE OF COST. WE ARE ASKING FOR TROUBLE IF WE STICK OUR HEADS IN THE SAND AND PRETEND THAT THE COST OF IMPLEMENTING THIS LEGISLATION IS NOT AN AREA WHICH NEEDS CONSIDERABLE EXAMINATION. HOW CAN WE POSSIBLY EXPECT SMALL BUSINESS TO BE PREPARED TO ENDORSE THIS LEGISLATION AND SUCCESSFULLY COMPLY WITH IT, IF WE CAN'T TELL THEM HOW MUCH THIS LEGISLATION WILL COST?

RAISING THE QUESTION OF COST DOES NOT MEAN I SUPPORT DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES. COST ALONE IS NOT A REASON FOR FAILING TO GO FORTH WITH COMPREHENSIVE CIVIL RIGHTS LEGISLATION FOR PEOPLE WITH DISABILITIES -- BUT IT IS A REASON TO SUBJECT IT TO STUDY AND REFINEMENT.

THE RELATIVE COSTS AND BENEFITS ASSOCIATED WITH THE ADA NEED TO BE EVALUATED. MANY PROVISIONS HAVE COSTS, BUT THERE DOES NOT NOW EXIST AN ANALYTIC BASE FOR DETERMINING THE SIGNIFICANCE OF THOSE COSTS AND HOW THE COSTS COULD BE MOST EFFICIENTLY ALLOCATED. IT IS AN APPROPRIATE ROLE FOR THE REGULATORY AGENCIES TO HELP US DEVELOP SUCH AN ANALYTICAL BASE THAT WILL ASSIST IN EVALUATING THE IMPACT OF THIS LEGISLATION. THE PRIVATE SECTOR COULD ALSO BE OF HELP TO US IN THIS EFFORT.

FOR EXAMPLE, AT&T HAS ESTIMATED THAT ITS COSTS FOR COM PL YING WITH THE TELECOMMUNICATIONS PROVISIONS OF ADA WOULD BE $200 MILLION PER YEAR.

0PERATING BOTH LIFT-EQUIPPED BUSES AND PARATRANSIT COULD COST PUBLIC TRANSIT AUTHORITIES $270 MILLION PER YEAR. ONE OF THE BIG QUESTIONS IS WHO SHOULD ULTIMATELY PAY THESE COSTS? AND, WHAT CAN BE DONE TO MITIGATE THE MOST EXTRAORDINARY COSTS?

STEP TOWARD THE FUTURE THE AMERICANS WITH DISABILITIES ACT IS AN IMPORTANT STEP TOWARD OUR VISION OF A FUTURE WHERE WHAT MATIERS IS NOT A PERSON'S DISABILITY, BUT HIS OR HER ABILITY TO PERFORM THE JOB, TO HAVE ACCESS TO PROGRAMS, TO PARTICIPATE FULLY IN OUR SOCIETY. THESE PROTECTIONS SHOULD NOT APPLY ONLY TO ENTITIES THAT RECEIVE FEDERAL FINANCIAL ASSISTANCE. HOWEVER, AS WITH ALL MAJOR INITIATIVES CAREFUL CONSIDERATION MUST BE GIVEN TO THE PRECISION WITH WHICH POLICY IS MADE AND STATUTORY LANGUAGE IS DRAFTED.

WITH REGARD TO SECTION 504, THE SUPREME COURT OBSERVED THAT THERE IS A BALANCE BETWEEN THE STATUTORY RIGHTS OF THE DISABLED TO BE INTEGRATED INTO SOCIETY AND THE LEGITIMATE INTERESTS OF FEDERAL GRANTEES TO PRESERVE THE INTEGRITY OF THEIR PROGRAMS. (ALEXANDER V. CHOATE, 469 U.S. 287 (1985)). THIS SAME KIND OF BALANCING APPROACH IS WHAT IS NEEDED WHEN ADDRESSING THE DISCRIMINATION ISSUE FOR THE PRIVATE SECTOR.

EMPLOYMENT PROVISIONS
THE AMERICANS WITH DISABILITIES ACT DOES ADDRESS SOME OF THESE CONCERNS. IT PROVIDES STRONG PROHIBITIONS AGAINST DISCRIMINATION AND EMPHASIZES THE CRITICAL AREA OF EMPLOYMENT. TO BALANCE THIS, THE BILL UTILIZES THE SECTION 504 CONCEPTS OF 11 UNDUE BURDEN" AND "OTHERWISE QUALIFIED." HOWEVER, THE ENACTMENT OF LEGISLATION SHOULD INCLUDE CAREFUL CONSIDERATION OF THE FACT THAT IT WOULD COVER NOT JUST RECIPIENTS OF FEDERAL FUNDS LIKE SECTION 504, BUT ALSO MANY SMALL BUSINESSES. THE ADA, LIKE TITLE VII, WOULD LIMIT ITS COVERAGE TO EMPLOYERS EMPLOYING 15 OR MORE PERSONS. HOWEVER, UNLIKE TITLE VII, THE ADA CONTAINS MORE COMPLICATED CONCEPTS, LIKE THAT OF REASONABLE ACCOMMODATION.

THE ADA MAY OFTEN REQUIRE THAT AN EMPLOYER OR OTHER COVERED ENTITY TAKE SOME ACTION -- ELIMINATING ARCHITECTURAL AND COMMUNICATION BARRIERS FOR EXAMPLE. THIS TYPE OF COSTLY ACTION MAY BE NECESSARY TO ELIMINATE DISCRIMINATION, BUT IT IS MORE COMPLEX THAN THE SITUATION IMPOSED BY DISCRIMINATION AGAINST OTHER GROUPS, BASED ON RACE, GENDER OR RELIGION.

I BELIEVE CONSIDERATION SHOULD BE GIVEN TO A MORE GRADUAL PHASE-IN OF THIS REQUIREMENT. PERHAPS COVERAGE COULD BE EXTENDED TO EMPLOYERS EMPLOYING 50 OR MORE EMPLOYEES FOR THE FIRST THREE YEARS OF THE ACT, LOWERING COVERAGE AS THE PRIVATE SECTOR BECOMES MORE ACCUSTOMED TO THE INTRICACIES OF "REASONABLE ACCOMMODATION".

TRANSPORTATION ISSUES
TRANSPORTATION ISSUES ARE ANOTHER AREA WHERE BALANCE AMONG COMPETING INTERESTS IS CRITICAL. AL THOUGH THE BILL WOULD REQUIRE NO RETROFITIING, IT DOES REQUIRE THAT ALL STATIONS IN INTERCITY RAIL SYSTEMS BE MADE READILY ACCESSIBLE NOT LATER THAN 3 YEARS AFTER ENACTMENT, WITH A POSSIBLE EXTENSION OF UP TO 20 YEARS FOR EXTRAORDINARILY EXPENSIVE STRUCTURAL CHANGES. THIS MAY PROVIDE SOME FLEXIBILITY BUT ALSO RAISES THE QUESTION OF WHETHER THIS AMOUNT OF TIME IS SUFFICIENT FOR WHAT MAY BE A MAMMOTH AND EXTREMELY EXPENSIVE ENDEAVOR.

REMEDIES
ONE OF THE MOST CRITICAL ASPECTS OF ANY NONDISCRIMINATION LEGISLATION IS THE REMEDIES IT PROVIDES TO ENFORCE RIGHTS. THE AMERICANS WITH DISABILITIES ACT NEEDS STRONG ENFORCEMENT PROVISIONS. HOWEVER, IT ALSO NEEDS PROVISIONS THAT ARE UNAMBIGUOUS AND TAKE INTO CONSIDERATION BOTH THE RIGHTS OF THE INDIVIDUALS WITH DISABILITIES AND THE RIGHTS OF THE OTHER PARTIES WHO WOULD BE IMPACTED. THE BILL BEFORE
US TODAY CONTAINS DIFFERING ENFORCEMENT MECHANISMS FOR VARIOUS TYPES OF DISCRIMINATION.

WITH REGARD TO EMPLOYMENT, IT REFERENCES TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND SECTION 1981. IN THE TELECOMMUNICATIONS SECTION, THE REMEDIES IN THE FAIR HOUSING ACT AND THE COMMUNICATION ACT OF 1934 ARE INCORPORATED. WITH REGARD TO PUBLIC ENTITIES, THE ACT REFERENCES THE REMEDIES APPLICABLE UNDER SECTION 505.

THIS CREATES CONFUSION -- NOT CLARITY.

MORE IMPORTANTLY, THE REMEDIES PROVIDE FOR ACTIONS BY AN INDIVIDUAL WHO BELIEVES HE OR SHE IS ABOUT TO BE DISCRIMINATED AGAINST. THIS UNPRECEDENTED LANGUAGE COULD OPEN THE DOOR TO FRIVOLOUS SUITS WHICH DO LITILE TO ADVANCE OUR GOALS OF PROHIBITING DISCRIMINATION AGAINST INDIVIDUALS WITH DISABILITIES.

ACHIEVING THE GOAL OF PROTECTING AGAINST DISCRIMINATION WILL REQUIRE CAREFUL ANALYSIS AND COMPARISON OF THIS PROPOSAL WITH EXISTING CIVIL RIGHTS LAWS. THESE STATUTES HAVE DIFFERENT COMPLIANCE STANDARDS AND DIFFERENT REMEDIES. PERHAPS A LEAD ENFORCEMENT AGENCY COULD BE DESIGNATED TO ENSURE ALL ANTI-DISCRIMINATION LAWS ARE ENFORCED IN A UNIFORM MANNER.

CONCLUDING REMARKS
I APPLAUD THE WORK DONE ON THE AMERICANS WITH DISABILITIES ACT, BUT WE ALSO HAVE A LOT OF WORK AHEAD. ITS GOALS OF NONDISCRIMINATION AND INTEGRATION CAN ONLY HELP STRENGTHEN OUR NATION. HOWEVER, THE IMPLEMENTATION OF THESE GOALS MUST BE CAREFULLY CRAFTED.

LAST YEAR, I WAS A COSPONSOR OF THE AMERICANS WITH DISABILITIES ACT, INTRODUCED BY MY FORMER COLLEAGUE FROM CONNECTICUT, SENATOR WEICK ER. HOWEVER, I HAD SOME SERIOUS RESERVATIONS ABOUT THE LEGISLATION AT THAT TIME AND EXPRESSED THESE CONCERNS. ALTHOUGH SOME OF MY CONCERNS HAVE SINCE BEEN ADDRESSED, NEW ISSUES HAVE ARISEN. I CONTINUE TO HAVE CONCERNS ABOUT HOW THE AMERICANS WITH DISABILITIES ACT WOULD AFFECT THOSE IT SEEKS TO HELP AND THOSE WHO MUST IMPLEMENT THE CHANGES IT WOULD REQUIRE. IN OTHER WORDS, WE ARE DEALING WITH A SITUATION IN WHICH GREAT DEMANDS WILL BE MADE ON THE PRIVATE SECTOR -- COSTLY ACCOMMODATIONS THAT, IN MANY INSTANCES, WILL EXCEED THE PROTECTIONS UNDER CURRENT CIVIL RIGHTS LAWS WHICH ADDRESS DISCRIMINATION BASED ON RACE, GENDER, AND RELIGION.

REPUBLICANS AND DEMOCRATS ALIKE SUPPORT THE CONCEPT OF EXPANDING CIVIL RIGHTS FOR PEOPLE WITH DISABILITIES -- THIS IS A BIPARTISAN ISSUE. I AM CONVINCED THAT WE CAN REACH A BIPARTISAN CONSENSUS ON HOW TO ACHIEVE THIS GOAL.