Statement of David Pinkus Before the House Committee on Small Business Hearing on the Americans with Disabilities Act

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Extent (Dublin Core)

9 Pages

File Name (Dublin Core)

s-leg_554_001_014

Title (Dublin Core)

Statement of David Pinkus Before the House Committee on Small Business Hearing on the Americans with Disabilities Act

Description (Dublin Core)

Statement by David Pinkus on behalf of National Small Business United regarding the Americans with Disabilities Act before the U.S. House Committee on Small Business

Date (Dublin Core)

1990-02-22

Date Created (Dublin Core)

1990-02-22

Congress (Dublin Core)

101st (1989-1991)

Topics (Dublin Core)

See all items with this value People with disabilities

See all items with this value People with disabilities--Employment

See all items with this value Small business

Policy Area (Curation)

Civil Rights and Liberties, Minority Issues

Creator (Dublin Core)

Pinkus, David

Record Type (Dublin Core)

speech (document)

Names (Dublin Core)

See all items with this value National Small Business Association (U.S.)

See all items with this value United States. Americans with Disabilities Act of 1990

Location representation (Dublin Core)

District of Columbia (national district)

Dallas (inhabited place)

Rights (Dublin Core)

http://rightsstatements.org/vocab/CNE/1.0/

Language (Dublin Core)

eng

Collection Finding Aid (Dublin Core)

https://dolearchivecollections.ku.edu/index.php?p=collections/findingaid&id=23&q=

Physical Location (Dublin Core)

Collection 003, Box 554, Folder 1

Institution (Dublin Core)

Robert J. Dole Institute of Politics, University of Kansas, Lawrence, KS

Archival Collection (Dublin Core)

Robert J. Dole Senate Papers-Legislative Relations, 1969-1996

Full Text (Extract Text)

[logo of capitol building with NSBU in it]
NATIONAL SMALL BUSINESS UNITED
"Serving America’s small businesses since 1937"

Statement of David Pinkus on behalf of National Small Business United regarding The Americans With Disabilities Act before the U.S. House Committee on Small Business
February 22, 1990

1155 15th Street N.W. Suite 710, Washington, DC 20005
Telephone: (202) 293-8830 Telecopier: (202) 872-8543

Mr. Chairman and Members of the Committee:

Good morning. My name is David Pinkus; I own and operate North Haven Gardens - a landscape firm and nursery – in Dallas. I am also a member of the Board of Directors of National Small Business United (NSBU), whom I am representing here today at my own expense. I want to thank you for holding this hearing. Very often in the past, it has been the light that the Small Business Committee has shed on important issues that has been the catalyst for action in the rest of the House.

As you may well know, NSBU is the oldest association exclusively representing this country’s small business community – for over 50 years now. NSBU is a volunteer-driven association of small businesses from across the country, founded from a merger of the National Small Business Association and Small Business United. NBSU serves some 50,000 individual company with members in each of the 50 states, as well as local state, and regional associations.

First, let me say that we whole-heartedly support the stated goals of an Americans with Disabilities Act (ADA), that we need to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for persons with disabilities. Our concerns is with the impact HR.2773 will have on small business, and how the goals can be achieved without hindering the development of small business and the jobs they produce.

In the spirit of this hearing, we shall attempt to outline our remaining very specific concerns with the proposals for an American with Disabilities Act. We do not oppose an ADA, but we believe that the final legislation should be made much clearer and more workable from a small business perspective. While the

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most recent bill, voted out of the House Education and Labor Committee, is a definite improvement over the original bill, some problem areas remain.

1. Title I — Employment

We applaud the Education and Labor Committee’s efforts to make Title I—the employment section of the bill—better suited to the unique needs of small employers. First, the Committee exempted employers with fewer than 25 employees for the first two years, and those with fewer than 15 employees from then on. The Committee improved upon the Senate version by linking "undue hardship" and "reasonable accommodation" everywhere they appear in the bill. With this change, the defense of undue hardship will be available to small businesses otherwise required to make a reasonable accommodation. The Committee inserted provisions to allow the courts to take into consideration site-specific factors when determining an "undue hardship." This rule should be very beneficial for the wide range of diverse small businesses with unique situations.

The last point illustrates a continuing problem with this legislation: a lack of clarity which results in a lack of certainty. The fact is that this legislation is so vague that the court is required to determine what exactly constitutes undue hardship and what does not. Small businesses—in fact, all businesses—must know what is expected of them and not be forced to wait for a court to decide whether or not they are in compliance.

The vague terms we are concerned about include "undue hardship", "reasonable accommodation," "readily achievable," and "essential functions," among others. These are all terms and concepts which the bill leaves up to judicial discretion. The point is that small businesses do not have the resources to hire

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legal counsel and disabilities specialists to consult on whether they are inside the law every time they must make a physical or staff change; but they also must know whether their action is legal. Their need to know is all the greater because this same law that is so ambiguous also dictates similar penalties without regard to whether the violation is malicious or simply an ignorant mistake.

We believe there are several possible solutions to the many problems presented above. The first problem concerns the ambiguity of the language. The solution here is for Congress to be much more specific about the sorts of requirements which will be necessary. Many of our objections would be handled if the definition of "reasonable accommodation" as defined in Chapter 168A North Carolina Handicapped persons Protection Act were to be substituted in HR.2273 (See Appendix A). Moreover, the language is frequently at once both vague and expansive. For instance, in Title I Section 101(8)(B) the definition of "reasonable accommodation" is ambiguous, yet also goes so far as to say that reasonable accommodation may include "the provision of readers or interpreters..." This listing may lead to such an expansive definition of reasonable accommodation, that it should be deleted altogether.

The next problem is the inability of a business to discover whether it is in compliance with the law without being taken to court. There is no intervening government agency with any authority to approve or disapprove a business' practices. No one but a judge—with all the expense and difficulties a courtroom implies—can make such a ruling. Businesses—especially small ones—both need and deserve more certainty from their government about what will be expected of them, short of being dragged to court.

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These reasons are all ones which cause us to believe that the exemption for the smallest businesses makes sense. The smallest businesses are the ones least equipped to know or understand what is required of them, and they certainly do not have the resources to be taken to court if their employment practices should be challenged.

II. Title III — Public Accommodations

The Public Accommodations section of the ADA probably cries out most for significant change. Perhaps the most outrageous segment of the Title is Section 308, which calls for fines of up to $50,000 for a first violation and up to $100,000 for subsequent violations. A $50,000 fine of any sort could easily put many small businesses completely out of business. Moreover, since there is no distinction made between willful and unintentional violations of the Act, this ambiguous law could be an ambush waiting to happen for many unsuspecting small businesses.

We recommend, first, that these fine schedules be dramatically scaled back. Under this bill, an employer who discriminates unknowingly could be subject to the same penalties as those who discriminate as a matter of policy. NSBU recommends that small employers found to be in unintentional violation of the Public Accommodations section should be given a warning and be allowed a period (3-6 months) to correct their violations before being subject to civil and criminal proceedings.

Many of the problems of Title III stem from the General Rule listed in Section 302(a). This section prohibits discrimination against the disabled in their "full and equal enjoyment" of public accommodations. The essential problem is that, unfortunately, "full and equal enjoyment" may never be possible for many individuals,

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no matter what accommodations are made. In such a circumstance, what accommodation would be required? Frequently, a different (as distinct from “full and equal”) accommodation may provide greater accommodation. For these reasons, we would recommend deletion of the words "full and equal" from the text of the bill.

It is also the case that small businesses have the same informational problems with the Public Accommodations section of the bill that they have with the Employment section. It may, therefore, be appropriate for small employers to be exempt from this section in the same manner in which they were exempt from the employment section. Opponents of the exemption argue that it is unnecessary in the same way that small businesses were not exempt from Title II of the 1964 Civil Rights Act. They must realize, however, that Title II only disallowed discrimination; it did not require the expenditure of financial resources for compliance. For other violators, purely injunctive relief—as provided by Title II of the 1964 Civil Rights Act—may be more appropriate than stiff penalties.

There is a further provision that the Attorney General has the authority to request further "monetary damages" to be awarded to the plaintiff. The Education and Labor Committee has made it clear that these damages include compensatory damages for pain and suffering. These damages should in some way be redefined, or, at least, the total award should be limited in some way, perhaps to simply actual out-of-pocket expenses.

III. Other Concerns

The primary concern of small businesses with regard to ADA is cost. Many small employers—no matter how much they may want or need to hire and serve

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disabled individuals—simply cannot find the financial resources to do so. NSBU believes that the federal government has an obligation to help those employers comply with a law that will heap major new financial commitments upon them. Bringing appropriate rights and working conditions to this country’s disabled is certainly a worthy goal for society. Small business simply needs help from the rest of society to make that goal a reality. We believe that a tax credit is in order for all small businesses making physical changes and financial Outlays in order to accommodate disabled individuals into their workforce and place of business.

Over 500,000 small businesses employing over 47,000,000 workers will have to comply with this law. At an average capital cost of $10,000 per business, over $5 billion may have to be spent just to renovate existing bathrooms to accommodate wheel chairs. More will have to be spent to provide wider aisles, etc. Small businesses already have a tough time raising capital to facilitate growth. An infusion of $5 billion into America’s small businesses could create 250,000 to 1,000,000 new jobs. Instead, a great deal of money will be spent to comply with this law with a result that instead of opening up jobs for the disabled, a net loss of jobs may result.

There is a strong need also to allow adequate phasing in of this law. Small businesses need an adequate amount of time in order to learn about, understand, and take appropriate steps to comply with the ADA. Implementation of ADA should be no less than one year after final promulgation of the rules, with an additional 1-year educational period during which no fines should be levied without a written warning. With such enormous authority and latitude going to the rule-makers to clarify the vagueness of the law, it is necessary to insure a time-frame for proper understanding of the rules and for proper comment upon them.

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I appreciate the opportunity to have testified before you here today. I want to thank the Committee and Chairman LaFalce for holding these important hearings. It is good to know that we can always turn to the Small Business Committee to at least listen to our concerns and give us the chance to air them. I hope you continue in this tradition of activism. In the mean time, we will continue to work within the process to reform the ADA so that it takes into consideration the appropriate concerns of small business. The concerns I have listed above are merely the major concerns with the bill, but I hope that the Committee now has a better of understanding of the reasons for our reservations.

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§ 168A-3 CH. 168A. HANDICAPPED PERSONS PROTECTION § 168A-3

provided that the handicapped person shall not be held to standards of performance different from other employees similarly employed, and (ii) further provided that the handicapping condition does not create an unreasonable risk to the safety or health of the handicapped person, other employees, the employer's customers, or the public;

b. With regard to places of public accommodation a handicapped person who can benefit from the goods or services provided by the place of public accommodation; and

c. With regard to public services and public transportation a handicapped person who meets prerequisites for participation that are uniformly applied to all participants, such as income or residence, and that do not have the effect of discriminating against the handicapped.

(10) "Reasonable accommodations" means:

a. With regard to employment, making reasonable physical changes in the workplace, including, but not limited to, making facilities accessible. modifying equipment and providing mechanical aids to assist in operating equipment, or making reasonable changes in the duties of the job in question that would accommodate the known handicapping conditions of the handicapped person seeking the job in question by enabling him or her to satisfactorily perform the duties of that job; provided that "reasonable accommodation" does not require that an employer:

1. Hire one or more employees, other than the handicapped person, for the purpose, in whole or in part, of enabling the handicapped person to be employed; or

2. Reassign duties of the job in question to other employees without assigning to the handicapped employee duties that would compensate for reassigned; or

3. Reassign duties of the job in question to one or more other employees where such reassignment would increase the skill, effort or responsibility required of such other employee or employees from that required prior to the change in duties: or

4. Alter, modify, change or deviate from bona fide seniority policies or practices; or

5. Provide accommodations of a personal nature, including, but not limited to, eyeglasses, hearing
aids, or prostheses, except under the same terms and conditions as such items are provided to the employer's employees generally; or

6. Make physical changes to accommodate a handicapped person where:

I. For a new employee the cost of such changes would exceed five percent (5%) of the annual salary or annualized hourly wage for the job in question; or

II. For an existing employee the cost of the changes would bring the total cost of physical changes made to accommodate the employee's handicapping conditions since the be inning of the employee's employment with the employer to greater than five percent (5%) of the employee's current salary or current annualized hourly wage; or

7. Make any changes that would impose on the employer an undue hardship. provided that the costs of less than five percent (5%) of an employee’s salary or annualized wage as determined in subsection (6) above shall be presumed not to be an undue hardship.

b. With regard to a place of public accommodations, making reasonable efforts to accommodate the handicapping conditions of a handicapped person, including, but not limited to, making facilities accessible to and usable by handicapped persons, redesigning equipment, provide mechanical aide or other assistance, or using alternative accessible locations, provided that reasonable accommodations does not require efforts which would impose an undue hardship on the entity involved. (1985, c. 571, s. 1.)

CASE NOTES

Person who had eye disease but whose vision was functioning normally with glasses was not visually disabled within the meaning of §165-1 and thus was not a “handicapped person” who was granted a right of employment by former § 168-6. Burgess v. Joseph Schlitz Brewing Co., 298 N.C 520, 259 S.E. 2d 248 (1979).

Statement of David Pinkus Before the House Committee on Small Business Hearing on the Americans with Disabilities Act

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