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Calendar No. 216
101sT CONGRESS
REPORT
1st Session
}
SENATE
101-116
THE AMERICANS WITH DISABILITIES ACT OF 1989
AUGUST 30, 1989.-Ordered to be printed
Filed under authority of the order of the Senate of August 2 (legislative day,
January 3), 1989
Mr. KENNEDY, from the Committee on Labor and Human
Resources, submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany S. 933]
The Committee on Labor and Human Resources, to which was
referred the bill (S. 933) to establish a clear and comprehensive
prohibition of discrimination on the basis of disability, having con-
sidered the same, reports favorably thereon with an amendment
and recommends that the bill as amended do pass.
CONTENTS
Page
I. Introduction
1
II. Summary of the legislation
2
III. Hearings
4
IV. Need for the legislation
5
V. Summary of committee action
21
VI. Explanation of the legislation
21
VII. Regulatory impact
88
VIII. Cost estimate
90
IX. Changes in existing law
95
I. INTRODUCTION
On August 2, 1989, the Committee on Labor and Human Re-
sources, by a vote of 16-0, ordered favorably reported S. 933, the
21-174
2
Americans with Disabilities Act of 1989 (the ADA), with an amend-
ment in the nature of a substitute.
The bill is sponsored by Senator Tom Harkin, chairman of the
Subcommittee on the Handicapped, and cosponsored by Senators
Kennedy, Durenberger, Simon, Jeffords, Cranston, McCain, Mitch-
ell, Chafee, Leahy, Stevens, Inouye, Cohen, Gore, Packwood, Riegle,
Boschwitz, Graham, Pell, Dodd, Adams, Mikulski, Metzenbaum,
Matsunaga, Wirth, Bingaman, Conrad, Burdick, Levin, Lieberman,
Moynihan, Kerry, Sarbanes, Heinz, Glenn, Shelby, Pressler, Hol-
lings, Sanford, Wilson, Sasser, Dixon, Kerrey, Robb, Fowler, Rocke-
feller, Biden, Bentsen, Specter, DeConcini, Kohl, Lautenberg,
D'Amato, Dole, Hatch, Warner, Pryor, and Bradley.
II. SUMMARY OF THE LEGISLATION
The purpose of the ADA is to provide a clear and comprehensive
national mandate to end discrimination against individuals with
disabilities and to bring persons with disabilities into the economic
and social mainstream of American life; to provide enforceable
standards addressing discrimination against individuals with dis-
abilities, and to ensure that the Federal government plays a cen-
tral role in enforcing these standards on behalf of individuals with
disabilities.
The ADA defines "disability" to mean, with respect to an indi-
vidual: a physical or mental impairment that substantially limits
one or more of the major life activities of such individual, a record
of such an impairment, or being regarded as having such an im-
pairment.
Title I of the ADA specifies that an employer, employment
agency, labor organization, or joint labor-management committee
may not discriminate against any qualified individual with a dis-
ability in regard to any term, condition or privilege of employment.
The ADA incorporates many of the standards of discrimination set
out in regulations implementing section 504 of the Rehabilitation
Act of 1973, including the obligation to provide reasonable accom-
modations unless it would result in an undue hardship on the oper-
ation of the business.
The ADA incorporates by reference the enforcement provisions
under title VII of the Civil Rights Act of 1964 (including injunctive
relief and back pay). Title I goes into effect two years after the date
of enactment. For the first two years after the effective date, em-
ployers with 25 or more employees are covered. Thereafter, employ-
ers with 15 or more employees are covered.
Title II of the ADA specifies that no qualified individual with a
disability may be discriminated against by a department, agency,
special purpose district, or other instrumentality of a State or a
local government. In addition to a general prohibition against dis-
crimination, title II includes specific requirements applicable to
public transportation provided by public transit authorities. Final-
ly, title II incorporates by reference the enforcement provisions in
section 505 of the Rehabilitation Act of 1973.
With respect to public transportation, all new fixed route buses
must be made accessible unless a transit authority can demon-
strate that no lifts are available from qualified manufacturers. A
3
pubilc transit authority must also provide paratransit for those in-
dividuals who cannot use mainline accessible transportation up to
the point where the provision of such supplementary services
would pose an undue financial burden on a transit authority.
Title II takes effect 18 months after the date of enactment, with
the exception of the obligation to ensure that new public buses are
accessible, which takes effect for solicitations made 30 days after
the date of enactment.
Title III of the ADA specifies that no individual shall be discrimi-
nated against in the full and equal enjoyment of the goods, serv-
ices, facilities, privileges, advantages, and accommodations of any
place of public accommodation operated by a private entity on the
basis of a disability. Public accommodations include: restaurants,
hotels, doctor's offices, pharmacies, grocery stores, shopping cen-
ters, and other similar establishments.
Existing facilities must be made accessible if the changes are
"readily achievable" i.e., easily accomplishable without much diffi-
culty or expense. Auxiliary aids and services must be provided
unless such provision would fundamentally alter the nature of the
program or cause an undue burden. New construction and major
renovations must be designed and constructed to be readily accessi-
ble to and usable by people with disabilities. Elevators need not be
installed if the building has less than three stories or has less than
3,000 square feet per floor. except if the building is a shopping
center, shopping mall, or offices for health care providers or if the
Attorney General decides that other categories of buildings require
the installation of elevators.
Title III also includes specific prohibitions on discrimination in
public transportation services provided by private entities, includ-
ing the failure to make new over-the-road buses accessible five
years from the date of enactment for large providers and six years
for small providers.
The provisions of title III becomes effective 18 months after the
date of enactment. Title III incorporates enforcement provisions in
private actions comparable to the applicable enforcement provi-
sions in title II of the Civil Rights Act of 1964 (injunctive relief)
and provides for pattern and practice cases by the Attorney Gener-
al, including authority to seek monetary damages and civil penal-
ties.
Title IV of the ADA specifies that telephone services offered to
the general public must include interstate and intrastate telecom-
munication relay services so that such services provide individuals
who use nonvoice terminal devices because of disabilities (such as
deaf persons) with opportunities for communications that are
equivalent to those provided to individuals able to use voice tele-
phone services.
Title V of the ADA includes miscellaneous provisions, including
a construction clause explaining the relationship between the pro-
visions in the ADA and the provisions in other Federal and State
laws; a construction clause explaining that the ADA does not dis-
rupt the current nature of insurance underwriting; a prohibition
against retaliation; a clear statement that States are not immune
from actions in Federal court for a violation of the ADA; a direc-
4
tive to the Architectural and Transportation Barriers Compliance
Board to issue guidelines; and authority to award attorney's fees.
III. HEARINGS
Hearings were held before the Labor and Human Resources
Committee and the Labor and Human Resources' Subcommittee on
the Handicapped on legislation to establish a clear and comprehen-
sive prohibition of discrimination on the basis of disability on Sep-
tember 27, 1988, May 9, May 10, May 16 and June 22, 1989.
On September 27, 1988, a joint hearing was held before the Sub-
committee on the Handicapped and the House of Representatives'
Subcommittee on Select Education on S. 2345, the Americans with
Disabilities Act of 1988. Among the witnesses testifying were:
Sandra Parrino, Chairperson, National Council on the Handi-
capped; Admiral James Watkins, Chairperson, President's Commis-
sion on the Human Immunodeficiency Virus Epidemic; Mary
Linden of Morton Grove, Illinois who lived in an institution; Dan
Piper, an 18-year old with Down Syndrome and Sylvia Piper of
Ankeny, Iowa; Jade Calegory, a 12-year old movie actor with Spina
Bifida from Corona Del Mar, California; and Lakisha Griffin from
Talladega, Alabama, who attends the Alabama School for the
Blind.
Also testifying were: Judith Heumann, World Institute on Dis-
ability, Berkeley, California; Gregory Hlibok, student-body presi-
dent of Gallaudet University, Washington, DC; Belinda Mason
from Tobinsport, Indiana who has AIDS; and W. Mitchell from
Denver, Colorado, who uses a wheelchair and who was severely
burned.
David Saks, on behalf of the Organization for Use of the Tele-
phone, Baltimore, Maryland, also provided testimony.
On May 9, 1989, the Committee on Labor and Human Resources
held a hearing on S. 933, the Americans with Disabilities Act of
1989. Among the witnesses were: Tony Coelho, the Majority Whip
of the House of Representatives; I. King Jordan, President of Gal-
laudet University, Washington, DC; Justin Dart, chairperson, the
Task Force on the Rights and Empowerment of Americans with
Disabilities, Washington, DC.
Also testifying were: Ms. Mary DeSapio, a cancer survivor;
Joseph Danowsky, an attorney who is blind; Amy Dimsdale, a col-
lege graduate who is quadriplegic and who after 5 years of looking
for work remains unemployed; Harold Russell, chairman, Presi-
dent's Committee on Employment of People with Disabilities,
Washington, DC; Zachery Fasman, U.S. Chamber of Commerce,
Washington, DC; Lawrence Lorber, American Society of Personnel
Administrators, Washington, DC; and Arlene Mayerson, Disability
Rights Education and Defense Fund, Berkeley, California.
Others providing testimony were: Barbara Hoffman, Vice Presi-
dent of the National Coalition for Cancer Survivorship; Robert
McGlotten, Director, Department of Legislation, AFL-CIO; the As-
sociated General Contractors of America; and the National Organi-
zations Responding to AIDS.
On May 10, the Subcommittee on the Handicapped heard testi-
mony from Senator Bob Dole, Senator from Kansas and Senate Mi-
5
nority Leader; Perry Tillman, Paralyzed Veterans of America, New
Orleans, Louisiana; Ken Tice, Advocating Change Together, Minne-
apolis, Minnesota; Lisa Carl who has cerebral palsy and her
mother, Vickie Franke, Tacoma, Washington.
Also testifying were: the Honorable Neil Hartigan, Attorney
General of the State of Illinois; Ron Mace, Barrier Free Environ-
ments, Raleigh, North Carolina; William Ball, Association of Chris-
tian Schools International, Harrisburg, Pennsylvania; Sally Doug-
las, National Federation of Independent Business, Washington,
D.C.; Malcolm Green, National Association of Theater Owners,
Boston Massachusetts; and Robert Burgdorf Jr., National Easter
Seal Society, Washington, D.C.; Betty and Emory Corey, Baltimore,
Maryland; and Ilene Foster, Baltimore, Maryland.
In addition, the Subcommittee heard testimony from Paul
Taylor, National Technical Institute for the Deaf, Rochester, New
York; Robert Yaeger, Minnesota Relay Service, Minneapolis, Min-
nesota; and Gerald Hines, AT&T, Basking Ridge, New Jersey.
Others providing testimony included: Chai Feldblum, Tony
Califa, Nan Hunter, and Morton Halperin of the American Civil
Liberties Union; Peter Bradford, chairman of the State of New
York Public Service Commission; and Paul Rodgers and Caroline
Chambers on behalf of the National Association of Regulatory Util-
ity Commissioners.
On May 16, the Subcommittee on the Handicapped heard testi-
mony from: Michael McIntyre, Queens Independent Living Center,
Jamaica, New York; Mark Johnson, ADAPT, Alpharetta, Georgia;
Laura Oftedahl, Columbia Lighthouse for the Blind, Washington,
D.C.; and Dr. Mary Lynn Fletcher, Director, Disability Services,
Loudon County, Tennessee.
Also testifying were: J. Roderick Burfield, Virginia Association of
Public Transit Officials; Harold Jenkins, Cambria County Transit
Authority, Johnstown, Pennsylvania; Dennis Louwerse, American
Public Transit Association, Reading, Pennsylvania; Charles Webb,
American Bus Association, Washington, D.C.; James Weisman,
Eastern Paralyzed Veterans of America, New York, New York, and
Tim Cook, National Disability Action Center, Washington, D.C.
Others providing testimony were: the Virginia Council for Inde-
pendent Living; Wayne Smith, Executive Director of the United
Bus Owners of America; and Theodore Knappen, Senior Vice Presi-
dent of Greyhound Lines, Inc.
On June 22, the Labor and Human Resources Committee heard
testimony from Richard L. Thornburgh, Attorney General of the
United States, and Senator Lowell P. Weicker, Jr., chief sponsor of
the Americans with Disabilities Act of 1988.
IV. NEED FOR THE LEGISLATION
The Committee, after extensive review and analysis over a
number of Congresses, concludes that there exists a compelling
need to establish a clear and comprehensive Federal prohibition of
discrimination on the basis of disability in the areas of employment
in the private sector, public accommodations, public services, trans-
portation, and telecommunications.
6
NATURE AND EXTENT OF DISCRIMINATION ON THE BASIS OF DISABILITY
In general
Testimony presented to the Committee and the Subcommittee,
two recent reports by the National Council on Disability ("Toward
Independence" (1986) and "On the Threshold of Independence"
(1988)), a report by the Civil Rights Commission ("Accommodating
the Spectrum of Individual Abilities" (1983)), polls taken by Louis
Harris and Associates ("The ICD Survey of Disabled Americans:
Bringing Disabled Americans into the Mainstream" (March, 1986))
and "The ICD Survey II: Employing Disabled Americans" (1987)), a
report of the Presidential Commission on the Human Immunodefi-
ciency Virus Epidemic (1988)), and the report by the Task Force on
the Rights and Empowerment of Americans with Disabilities all
reach the same fundamental conclusions:
(1) Historically, individuals with disabilities have been isolat-
ed and subjected to discrimination and such isolation and dis-
crimination is still pervasive in our society;
(2) Discrimination still persists in such critical areas as em-
ployment in the private sector, public accommodations, public
services, transportation, and telecommunications;
(3) Current Federal and State laws are inadequate to address
the discrimination faced by people with disabilities in these
critical areas;
(4) People with disabilities as a group occupy an inferior
status socially, economically, vocationally, and educationally;
and
(5) Discrimination denies people with disabilities the oppor-
tunity to compete on an equal basis and costs the United
States, State and local governments, and the private sector bil-
lions of dollars in unnecessary expenses resulting from depend-
ency and nonproductivity.
One of the most debilitating forms of discrimination is segrega-
tion imposed by others. Timothy Cook of the National Disability
Action Center testified:
As Rosa Parks taught us, and as the Supreme Court
ruled thirty-five years ago in Brown V. Board of Education,
segregation "affects one's heart and mind in ways that
may never be undone. Separate but equal is inherently un-
equal."
Discrimination also includes exclusion, or denial of benefits, serv-
ices, or other opportunities that are as effective and meaningful as
those provided to others.
Discrimination results from actions or inactions that discrimi-
nate by effect as well as by intent or design. Discrimination also
includes harms resulting from the construction of transportation,
architectural, and communication barriers and the adoption or ap-
plication of standards and criteria and practices and procedures
based on thoughtlessness or indifference-of benign neglect.
The testimony presented by Judith Heumann, World Institute on
Disability, illustrates several of these forms of discrimination:
7
When I was 5 my mother proudly pushed my wheelchair
to our local public school, where I was promptly refused
admission because the principal ruled that I was a fire
hazard. I was forced to go into home instruction, receiving
one hour of education trice a week for 3½ years. My en-
trance into mainstream society was blocked by discrimina-
tion and segregation. Segregation was not only on an insti-
tutional level but also acted as an obstruction to social in-
tegration. As a teenager, I could not travel with my
friends on the bus because it was not accessible. At my
graduation from high school, the principal attempted to
prevent me from accepting an award in a ceremony on
stage simply because I was in a wheelchair.
When I was 19, the house mother of my college dormito-
ry refused me admission into the form because I was in a
wheelchair and needed assistance. When I was 21 years
old, I was denied an elementary school teaching credential
because of "paralysis of both lower extremities sequelae of
poliomyelitis." At the time, I did not know what sequelae
meant. I went to the dictionary and looked it up and found
out that it was "because of." So it was obviously because of
my disability that I was discriminated against.
At the age of 25, I was told to leave a plane on my
return trip to my job here in the U.S. Senate because I
was flying without an attendant. In 1981, an attempt was
made to forceably remove me and another disabled friend
from an auction house because we were "disgusting to look
at." In 1983, a manager at a movie theater attempted to
keep my disabled friend and myself out of his theater be-
cause we could not transfer out of our wheelchairs.
Discrimination also includes harms affecting individuals with a
history of disability, and those regarded by others as having a dis-
ability as well as persons associated with such individuals that are
based on false presumptions, generalizations, misperceptions, pa-
tronizing attitudes, ignorance, irrational fears, and pernicious
mythologies. Discrimination also includes the effects a person's disability may
have on others. For example, in March, 1988 the Washington Post
reported the story of a New Jersey ZOO keeper who refused to admit
children with Downs Syndrome because he feared they would upset
the chimpanzees. The Supreme Court in Alexander V. Choate, 469
U.S. 287 (1985) cited as an example of improper discrimination on
the basis of handicap a case in which "a court ruled that a cerebral
palsied child, who was not a physical threat and was academically
competitive, should be excluded from public school, because his
teacher claimed his physical appearance 'produced a nauseating
effect' on his classmates." 117 Cong Rec. 45974 (1971).
The Supreme Court in School Board of Nassau County V. Arline,
107 S. Ct. 1123 (1987) cited remarks of Senator Mondale describing
a case in which a woman "crippled by arthritis" was denied a job
not because she could not do the work but because "college trustees
[thought] 'normal students shouldn't see her." 118 Cong Rec.
36761 (1972).
8
The Committee heard testimony about a woman from Kentucky
who was fired from the job she had held for a number of years be-
cause the employer found out that her son, who had become ill
with AIDS, had moved into her house so she could care for him.
The Committee also heard testimony about former cancer victims,
persons with epilepsy, a person with cerebral palsy, and others who
had been subjected to similar types of discrimination.
With respect to the pervasiveness of discrimination in our
Nation, the National Council explained:
A major obstacle to achieving the societal goals of equal
opportunity and full participation of individuals with dis-
abilities is the problem of discrimination
The severi-
ty and pervasiveness of discrimination against people with
disabilities is well documented.
The U.S. Commission on Civil Rights recently concluded that:
Despite some improvements
***
[discrimination]
per-
sists in such critical areas as education, employment, insti-
tutionalization, medical treatment, involuntary steriliza-
tion, architectural barriers, and transportation.
The Commission further observed that "discriminatory treat-
ment of handicapped persons can occur in almost every aspect of
their lives.'
The Lou Harris polls found that:
By almost any definition, Americans with disabilities
are uniquely underprivileged and disadvantaged. They are
much poorer, much less well educated and have much less
social life, have fewer amenities and have a lower level of
self-satisfaction than other Americans.
Admiral James Watkins, former chairperson of the President's
Commission on the Human Immunodeficiency Virus Epidemic, tes-
tified that after 45 days of public hearings and site visits, the Com-
mission concluded that discrimination against individuals with
HIV infection is widespread and has serious repercussions for both
the individual who experiences it and for this Nation's efforts to
control the epidemic. The Report concludes:
as long as discrimination occurs, and no strong national
policy with rapid and effective remedies against discrimi-
nation is established, individuals who are infected with
HIV will be reluctant to come forward for testing, counsel-
ing, and care. This fear of potential discrimination
will undermine our efforts to contain the HIV epidemic
and will leave HIV-infected individuals isolated and alone.
Justin Dart, the chairperson of the Task Force on the Rights and
Empowerment of Americans with Disabilities, testified that after
63 public forums held in every state, there is overwhelming evi-
dence that:
Although America has recorded great progress in the
area of disability during the past few decades, our society
is still infected by the ancient, now almost subconscious as-
sumption that people with disabilities are less than fully
9
human and therefore are not fully eligible for the opportu-
nities, services, and support systems which are available to
other people as a matter of right. The result is massive, so-
ciety-wide discrimination.
The U.S. Attorney General, Dick Thornburgh, on behalf of Presi-
dent Bush, testified that:
Despite the best efforts of all levels of government and
the private sector and the tireless efforts of concerned citi-
zens and advocates everywhere, many persons with disabil-
ities in this Nation still lead their lives in an intolerable
state of isolation and dependence.
Employment
Individuals with disabilities experience staggering levels of un-
employment and poverty. According to a recent Lou Harris poll not
working is perhaps the truest definition of what it means to be dis-
abled in America. Two-thirds of all disabled Americans between
the age of 16 and 64 are not working at all; yet, a large majority of
those not working say that they want to work. Sixty-six percent of
working-age disabled persons, who are not working, say that they
would like to have a job. Translated into absolute terms, this
means that about 8.2 million people with disabilities want to work
but cannot find a job.
Forty percent of all adults with disabilities did not finish high
school-three times more than non-disabled individuals. In 1984,
fifty percent of all adults with disabilities had household incomes
of $15,000 or less. Among non-disabled persons, only twenty-five
percent had household incomes in this wage bracket.
President Bush has stated: "The statistics consistently demon-
strate that disabled people are the poorest, least educated and larg-
est minority in America."
According to the Lou Harris poll, the majority of those individ-
uals with disabilities not working and out of the labor force, must
depend on insurance payments or government benefits for support.
Eighty-two percent of people with disabilities said they would give
up their government benefits in favor of a full-time job.
Lou Harris' poll also found that large majorities of top managers
(72 percent), equal opportunity officers (76 percent), and depart-
ment heads/line managers (80 percent) believe that individuals
with disabilities often encounter job discrimination from employers
and that discrimination by employers remains an inexcusable bar-
rier to increased employment of disabled people.
According to testimony presented to the Committee by Arlene
Mayerson of the Disabilities Rights Education and Defense Fund,
the major categories of job discrimination faced by people with dis-
abilties include: use of standards and criteria that have the effect
of denying opportunities; failure to provide or make available rea-
sonable accommodations; refusal to hire based on presumptions,
stereotypes and myths about job performance, safety, insurance
costs, absenteeism, and acceptance by co-workers; placement into
dead-end jobs; under-employment and lack of promotion opportuni-
ties; and use of application forms and other pre-employment inquir-
10
ies that inquire about the existence of a disability rather than
about the ability to perform the essential functions of a job.
Several witnesses also explained that title I of the ADA (employ-
ment discrimination) is modeled after regulations implementing
the Rehabilitation Act of 1973, which prohibits discrimination by
recipients of Federal assistance and requires affirmative action by
Federal contractors and that compliance with these laws has been
"no big deal."
Harold Russell, the chairperson of the President's Committee on
Employment of People With Disabilities, testified that for a majori-
ty of employees, for example, no reasonable accommodation is re-
quired; for many others the costs can be less than $50. According to
the President's Committee which operates the Job Accommodation
Network, typical accommodations provided for under $50 include:
A timer costing $26.95 with an indicator light allowed a med-
ical technician who was deaf to perform the laboratory tests
required for her job;
A receptionist who was visually impaired was provided with
a light probe, costing $45, which allowed her to determine
which lines on a telephone were ringing, on hold, or in use of
her company;
Obtaining a headset for a phone costing $49.95 allowed an
insurance salesperson with cerebral palsy to write while talk-
ing.
Witnesses also explained that there will also be a need for more
expensive accommodations, including readers for blind persons and
interpreters for deaf persons. But even costs for these accommoda-
tions are frequently exaggerated. Dr. I. King Jordan, President of
Gallaudet University, explained to the Committee:
Often, interpreters can be hired to do other things as
well as interpret-administrative secretaries or profession-
al staff, even, who interpret on an only-as-needed basis.
Most of the time, people who are hired who are deaf func-
tion without an interpreter except when they are in a
meeting or except when they are attending a workshop or
except when there is a very essential need for one-to-one
communication. But, I think it needs to be made clear to
people that the accommodations are not nearly as large as
some people would lead us to believe.
In sum, testimony indicates that the provision of all types of rea-
sonable accommodations is essential to accomplishing the critical
goal of this legislation-to allow individuals with disabilities to be
part of the economic mainstream of our society.
Public accommodations
Based on testimony presented at the hearings and recent nation-
al surveys and reports, it is clear that an overwhelming majority of
individuals with disabilities lead isolated lives and do not frequent
places of public accommodation.
The National Council on Disability summarized the findings of a
recent Lou Harris poll:
11
The survey results dealing with social life and leisure
experiences paint a sobering picture of an isolated and se-
cluded population of individuals with disabilities. The
large majority of people with disabilities do not go to
movies, do not go to the theater, do not go to see musical
performances, and do not go to sports events. A substantial
minority of persons with disabilities never go to a restau-
rant, never go to a grocery store, and never go to a church
or synagogue
The extent of non-participation of indi-
viduals with disabilities in social and recreational activi-
ties in alarming.
Several witnesses addressed the obvious question "Why don't
people with disabilities frequent places of public accommodations
and stores as often as other Americans?" Three major reasons were
given by witnesses. The first reason is that people with disabilities
do not feel that they are welcome and can participate safely in
such places. The second reason is fear and self-consciousness about
their disability stemming from degrading experiences they or their
friends with disabilities have experienced. The third reason is ar-
chitectural, communication, and transportation barriers.
Former Senator Weicker testified that people with disabilities
spend a lifetime "overcoming not what God wrought but what man
imposed by custom and law."
Witnesses also testified about the need to define places of public
accommodations to include all places open to the public, not simply
restaurants, hotels, and places of entertainment (which are the
types of establishments covered by title II of the Civil Rights Act of
1964) because discrimination against people with disabilities is not
limited to specific categories of public accommodations. The Attor-
ney General stated that we must bring Americans with disabilities
into the mainstream of society "in other words, full participation
in and access to all aspects of society."
Robert Burgdorf, Jr., currently a Professor of Law at the District
of Columbia School of Law, testifying on behalf of the National
Easter Seal Society, stated:
***
it makes no sense to bar discrimination against
people with disabilities in theaters, restaurants, or places
of entertainment but not in regard to such important
things as doctors' offices. It makes no sense for a law to
say that people with disabilities cannot be discriminated
against if they want to buy a pastrami sandwich at the
local deli but that they can be discriminated against next
door at the pharmacy where they need to fill a prescrip-
tion. There is no sense to that distinction.
Witnesses identified the major areas of discrimination that need
to be addressed. The first is lack of physical access to facilities. Wit-
nesses recognized that it is probably not feasible to require that ex-
isting facilities be completely retrofitted to be made accessible.
However, it is appropriate to require modest changes. Ron Mace,
an architect, described numerous inexpensive changes that could
be made to make a facility accessible, including installing a perma-
nent or portable ramp over an entrance step; installing offset
12
hinges to widen a doorway; relocating a vending machine to clear
an accessible path; and installing signage to indicate accessible
routes and features within facilities.
Several witnesses also recognized that when renovations are
made that affect or could affect usability, the renovations should
enhance accessibility and that newly constructed buildings should
be fully accessible because the additional costs for making new fa-
cilities accessible are often "negligible." According to Ron Mace,
there is absolutely no reason why new buildings constructed in
America cannot be barrier-free since additional cost is not the
factor. He testified that the problem is that "there is right now no
training provided for designers in our country on how to design for
children, older people and disabled people."
Additional areas of discrimination that witnesses identified in-
clude: the imposition or application of standards or criteria that
limit or exclude people with disabilities; the failure to make rea-
sonable modifications in policies to allow participation, and a fail-
ure to provide auxiliary aids and services.
For example, Greg Hlibok and Frank Bowe testified about the
need for places of public accommodations to take steps to enhance
safety for persons with hearing impairments. Laura Oftedahl testi-
fied about the lack of access and unnecessary dangers visually im-
paired people face because of lack of simple, inexpensive auxiliary
aids.
Public services
Currently, Federal law prohibits recipients of Federal assistance
from discriminating against individuals with disabilities. Many
agencies of State and local government receive Federal aid and
thus are currently prohibited from engaging in discrimination on
the basis of disability. Witnesses testified about the inequity of lim-
iting protection based on the receipt of Federal funding. For exam-
ple, Neil Hartigan, the Attorney General from Illinois, testified
that:
Under the current Federal law, the Rehabilitation Act's
nondiscrimination requirements are tied to the receipt of
Federal financial assistance. Unfortunately, what this
translates to is total confusion for the disabled community
and the inability to expect consistent treatment. Where
there is no state law prohibiting discriminatory practices,
two programs that are exactly alike, except for funding
sources, can treat people with disabilities completely dif-
ferently than others who don't have disabilities.
Mr. Hartigan also focused on the need to ensure access to polling
places: "You cannot exercise one of your most basic rights as an
American if the polling places are not accessible." The Committee
heard about people with disabilities who were forced to vote by ab-
sentee ballot before key debates by the candidates were held.
Dr. Mary Lynn Fletcher testified that access to all public services
is particularly critical in rural areas, because State and local gov-
ernment activities are frequently the major activities in such small
towns. Since Federal aid frequently does not reach small rural
13
towns, current law thus does not protect people with disabilities in
such areas from discrimination.
Transportation
Transportation is the linchpin which enables people with disabil-
ities to be integrated and mainstreamed into society. Timothy Cook
testified that "access to transportation is the key to opening up
education, employment, recreation; and other provisions of the
[ADA] are meaningless unless we put together an accessible public
transportation system in this country." The National Council on
Disability has declared that "accessible transportation is a critical
component of a national policy that promotes the self-reliance and
self-sufficiency of people with disabilities."
Harold Russell, testifying for the President's Committee on Em-
ployment of People with Disabilities made the same point when he
stated:
To have less than adequate accessible public transporta-
tion services for an individual who is protected from dis-
crimination in employment, or who has received other nu-
merous federally funded services, is analogous to throwing
an 11-foot rope to a drowning man 20 feet offshore and
then proclaiming you are going more than halfway.
Witnesses also testified about the need to pursue a multi-modal
approach to ensuring access for people with disabilities which pro-
vides that all new buses used for fixed routes are accessible and
paratransit is made available for those who cannot use the fixed
route accessible buses.
For some people with disabilities who lead or would like to lead
spontaneous, independent lives integrated into the community,
paratransit is often inadequate or inappropriate for the following
reasons, among others: the need to make reservations in advance
often conflicts with one's work schedule or interests in going out to
restaurants and the like; the cost of rides when used frequently is
often exorbitant; limitations on time of day and the number of days
that the paratransit operates; waiting time; restrictions on use by
guests and nondisabled companions who are excluded from accom-
panying the person with a disability; the expense to the public
agency; and restrictions on eligibility placed on use by social serv-
ice agencies.
However, witnesses also stressed that there are some people with
disabilities who are so severely disabled that they cannot use acces-
sible mainline transit and thus there is a need to have a paratran-
sit system for these people.
Witnesses also addressed common myths about making mainline
buses accessible. Harold Jenkins, the General Manager of the Cam-
bria County Transit Authority in Johnstown, Pennsylvania, testi-
fied that his system is 100% accessible and operates without prob-
lem, notwithstanding hilly terrain and inclement weather, includ-
ing snow, flooding, and significant extremes in temperature.
He also explained that when the decision was initially made to
make the fleet 100% accessible there was fear and reluctance on
the part of the disability community, the drivers, and the general
public. That fear and reluctance has now disappeared. Jenkins con-
14
cluded that mainline access works in his community because of the
commitment by everyone to make it work. Thus, there is a need to
train and educate top management, drivers, and the general public
as well as the disability community.
The Committee also heard and received written testimony that
the new generation of lifts are not having the maintenance prob-
lems experienced in the past and they can operate in inclement
weather. The Architectural Transportation Barriers Compliance
Board has reported that currently most problems with lift oper-
ation are the direct result of driver error and that lift maintenance
is but one facet of a good maintenance program. Thus, transit au-
thorities reporting problems with lifts are generally those that also
report problems with general maintenance.
With respect to intercity transportation, the Committee learned
about reasonably priced lifts that can be installed on buses which
will enable people using wheelchairs to have access to these buses.
This is particularly critical in rural areas where these buses are
often the only mode of transportation that is available.
Telecommunications
Dr. I. King Jordan, President of Gallaudet University, noted to
the Committee that more than 100 years ago Alexander Graham
Bell invented the telephone in the hope that he could close the
communication gap between deaf and hearing people. According to
Dr. Jordan: "Not only did the telephone not help close the gap, but
in many ways it widened it and has become one more barrier in
the lives of deaf people."
Several witnesses testified about the critical need to establish
relay systems which will enable hearing impaired and communica-
tion impaired persons who use telecommunication devices for the
deaf (TDDs) to make calls to and receive calls from individuals
using voice telephones. Dr. Jordan explained:
The simplest task often becomes a major burden when
we do not have access to the telephone: the person who
wants to call a doctor for an appointment or the person
who has to call his boss and tell him he cannot show up
for work that day, someone at home who needs to call a
plumber to fix a leak, or maybe a theatergoer who wants
to make reservations or go to dinner.
Robert Yeager, who operates the Minnesota Relay Service, ex-
plained the importance of the relay this way:
As a former relay operator myself, I have seen the dif-
ference these services can make in people's lives
A
woman calls an ambulance when her husband has a heart
attack; someone sets up a job interview and gets a job; a
teenager gets their first date
Dr. Jordan summed up the need for a national relay system by
stating:
The phone is a necessity, and it is a necessity for all of
us, not just people who can hear * By requiring na-
tionwide telephone relay service for everyone, it will help
deaf people achieve a level of independence in employment
15
and public accommodations that is sought by other parts
of the ADA.
Enforcement
Several witnesses emphasized that the rights guaranteed by the
ADA are meaningless without effective enforcement provisions. Il-
linois Attorney General Neil Hartigan explained that:
The whole trick is to make it more expensive to break
the law than it is to keep the law. The vast majority of
businesspeople want to keep the law. They just have got a
bottom line they have got to meet. They can't have some-
body else having an unfair competitive advantage by get-
ting away with a discriminatory practice. That is why we
need teeth in the law. That is why we put the penalties in
the law and the damages in the law.
Mr. Hartigan explained that the inclusion of penalties and dam-
ages in the driving force that facilitates voluntary compliance:
When you don't have the penalties, there is no enforce-
ment possibilities. Right now
we can have tradition-
al as well as punitive damages. We can have injunctive ac-
tivity. We have got a range of weapons we can use if we
have to use them. But, the fact that you've got it, the fact
they know you are serious about it, keeps you from having
to use it. We have 3,000 cases where we haven't had to go
to court.
Summary
In sum, the unfortunate truth, is that individuals with disabilities
are a discrete and insular minority who have been faced with re-
strictions and limitations, subjected to a history of purposeful un-
equal treatment, and relegated to a position of political powerless-
ness in our society, based on characteristics that are beyond the
control of such individuals and resulting from stereotypic assump-
tions not truly indicative of the ability of such individuals to par-
ticipate in and contribute to society.
THE EFFECTS OF DISCRIMINATION ON INDIVIDUALS WITH DISABILITIES
Discrimination has many different effects on individuals with
disabilities. Arlene Mayerson of the Disabilities Rights Education
and Defense Fund testified about the nature of discrimination
against people with disabilities:
The discriminatory nature of policies and practices that
exclude and segregate disabled people has been obscured
by the unchallenged equation of disability with incapacity
and by the gloss of "good intentions." The innate biological
and physical "inferiority" of disabled people is considered
self-evident. This "self-evident" proposition has served to
justify the exclusion and segregation of disabled people
from all aspects of life. The social consequences that have
attached to being disabled often bear no relationship to the
physical or mental limitations imposed by the disability.
For example, being paralyzed has meant far more than
16
being unable to walk-it has meant being excluded from
public schools, being denied employment opportunities and
being deemed an "unfit parent." These injustices co-exist
with an atmosphere of charity and concern for disabled
people.
Dr. I. King Jordan, the President of Gallaudet University, ex-
plained that:
Discrimination occurs in every facet of our lives. There
is not a disabled American alive today who has not experi-
enced some form of discrimination. Of course, this has
very serious consequences. It destroys healthy self-concepts
and slowly erodes the human spirit. Discrimination does
not belong in the lives of disabled people.
Judith Heumann explained that:
In the past, disability has been a cause of shame. This
forced acceptance of second-class citizenship has stripped
us as disabled people of pride and dignity
This
stigma scars for life.
Discrimination produces fear and reluctance to participate.
Robert Burgdorf and Harold Jenkins testifed that fear of mistreat-
ment and discrimination and the existence of architectural, trans-
portation, and communication barriers are critical reasons why in-
dividuals with disabilities don't participate to the same extent as
nondisabled people in public accommodations and transportation.
Dr. Mary Lynn Fletcher testifed about the factors that isolate
people with disabilities and then explained that when one adds the
rural factor on top of everthing else it "obliterates the person."
Discrimination results in social isolation and in some cases sui-
cide.
Justin Dart testifed before the Committee about how several of
his brothers had committed suicide because of their disabilities and
about a California woman, a mother, a TV director before becom-
ing disabled who said to him:
We can go just so long constantly reaching dead ends. I
am broke, degraded, and angry, have attempted suicide
three times. I know hundreds. Most of us try, but which
way and where can we go? What and who can we be? If I
were understood, I would have something to live for.
THE EFFECTS OF DISCRIMINATION ON SOCIETY
The Committee also heard testimony and reviewed reports con-
cluding that discrimination results in dependency on social welfare
programs that cost the taxpayers unnecessary billions of dollars
each year. Sandy Parrino, the chairperson of the National Council
on Disability, testified that discrimination places people with dis-
abilities in chains that:
bind many of the 36 million people into a bondage of
unjust, unwanted dependency on families, charity, and
social welfare. Dependency that is a major and totally un-
necessary contributor to public deficits and private ex-
penditures.
17
She added that:
...
it is contrary to sound principles of fiscal responsibil-
ity to spend billions of Federal tax dollars to relegate
people with disabilities to positions of dependency upon
public support.
President Bush has stated:
On the cost side, the National Council on the Handi-
capped states that current spending on disability benefits
and programs exceeds $60 billion annually. Excluding the
millions of disabled who want to work from the employ-
ment ranks costs society literally billions of dollars annu-
ally in support payments and lost income tax revenues.
Attorney General Thornburgh added that:
We must recognize that passing comprehensive civil
rights legislation protecting persons with disabilities *** will
have direct and tangible benefits for our country
Certainly, the elimination of employment discrimination
and the mainstreaming of persons with disabilities will
result in more persons with disabilities working, in in-
creased earnings, in less dependence on the Social Security
system for financial support, in increased spending on con-
sumer goods, and increased tax revenues.
Justin Dart testified that it is discrimination and segregation
that are preventing persons with disabilities from becoming self-re-
liant:
* * *
and that are driving us inevitably towards an eco-
nomic and moral disaster of giant, paternalistic welfare bur-
eaucracy. We are already paying unaffordable and rapidly
escalating billions in public and private funds to maintain
ever-increasing millions of potentially productive Ameri-
cans in unjust, unwanted dependency.
Thus, discrimination makes people with disabilities dependent on
social welfare programs rather than allowing them to be taxpayers
and consumers.
Discrimination also deprives our Nation of a valuable source of
labor in a period of labor shortages in certain jobs.
President Bush has stated:
The United States is now beginning to face labor short-
ages as the baby boomers move through the work force.
The disabled offer a pool of talented workers whom we
simply cannot afford to ignore, especially in connection
with the high tech growth industries of the future.
Jay Rochlin, the executive director of the President's Committee
on Employment of People with Disabilities, has stated:
The demographics have given us an unprecedented 20
year window of opportunity. Employers will be desperate
to find qualified employees. Of necessity, they will have to
look beyond their traditional sources of personnel and
work to attract minorities, women, and others for a new
21-174 0 89 - 2
18
workforce. Our challenge is to insure that the largest mi-
nority, people with disabilities, is included.
Discrimination also negates the billions of dollars we invest each
year to educate our children and youth with disabilities and train
and rehabilitate adults with disabilities. Dr. I. King Jordan testi-
fied that:
We must stop sending disabled youth conflicting signals.
America makes substantial investments in the education
and development of these young people, then we deny
them the opportunity to succeed and to graduate into a
world that treats them with dignity and respect.
Sylvia Piper, a parent of a child with developmental disabilities
testified that:
We have invested in Dan's future. And the Ankeny
Public School District has made an investment in Dan's
future.
Are we going to allow this investment of
time, energy, and dollars, not to mention Dan's ability and
quality of life, to cease when he reaches 21?
Attorney General Thornburgh made the same point in his testi-
mony:
The continued maintenance of these barriers imposes
staggering economic and social costs and inhibits our sin-
cere and substantial Federal commitment to the education,
rehabilitation, and employment of persons with disabil-
ities. The elimination of these barriers will enable society
to benefit from the skills and talents of persons with dis-
abilities and will enable persons with disabilities to lead
more productive lives.
CURRENT FEDERAL AND STATE LAWS ARE INADEQUATE; NEED FOR
COMPREHENSIVE FEDERAL LEGISLATION
State laws are inadequate to address the pervasive problems of
discrimination that people with disabilities are facing. As Neil Har-
tigan, testified,
This is a crucial area where the Federal Government
can act to establish uniform minimum requirements for
accessibility.
Admiral Watkins, testified that:
My predecessor [Sandy Parrino] here this morning said
enough time has, in my opinion, been given to the States
to legislate what is right. Too many States, for whatever
reason, still perpetuate confusion. It is time for Federal
action.
According to Harold Russell:
The fifty State Governors' Committees, with whom the
President's Committee works, report that existing State
laws do not adequately counter such acts of discrimination.
Current Federal law is also inadequate. Currently, Federal anti-
discrimination laws only address discrimination by Federal agen-
19
cies and recipients of Federal financial assistance. Last year, Con-
gress amended the Fair Housing Act to prohibit discrimination
against people with disabilities. However, there are still no protec-
tions against discrimination by employers in the private sector, by
places of public accommodation, by State and local government
agencies that do not receive Federal aid, and with respect to the
provision of telecommunication services. With respect to the provi-
sion of accessible transportation services, there are still misinter-
pretations by executive agencies and some courts regarding trans-
portation by public entities and lack of protection against private
transportation companies.
The need to enact omnibus civil rights legislation for individuals
with disabilities was one of the major recommendations of the Na-
tional Council on Disability in its two most recent reports to Con-
gress. In fact S. 2345, the Americans With Disabilities Act of 1988,
introduced during the 100th Congress, was developed by the Coun-
cil.
The need for omnibus civil rights legislation was also one of the
major recommendations of the Presidential Commission on the
HIV Epidemic:
Comprehensive Federal anti-discrimination legislation,
which prohibits discrimination against persons with dis-
abilities in the public and private sectors, including em-
ployment, housing, public accommodations and participa-
tion in government programs should be enacted. All per-
sons with symptomatic or asymptomatic HIV infection
should be clearly included as persons with disabilities who
are covered by the anti-discrimination protections of this
legislation.
Attorney General Thornburgh, on behalf of President Bush, also
testified about the importance of enacting comprehensive civil
rights legislation for people with disabilities:
The Committee is to be commended for its efforts in
drafting S. 933. One of its most impressive strengths is its
comprehensive character. Over the last 20 years, civil
rights laws protecting disabled persons have been enacted
in piecemeal fashion. Thus, existing Federal laws are like
a patchwork quilt in need of repair. There are holes in the
fabric, serious gaps in coverage that leave persons with
disabilities without adequate civil rights protections.
VISION FOR THE FUTURE
Many of the witnesses described the vision of the Americans
With Disabilities Act.
Sandy Parrino testified that:
Martin Luther King had a dream. We have a vision. Dr.
King dreamed of an America "where a person is judged
not by the color of his skin, but by the content of his char-
acter." ADA's vision is of an America where persons are
judged by their abilities and not on the basis of their dis-
abilities.
20
Tony Coelho shared the following observation with the Commit-
tee:
While the charity model once represented a step forward
in the treatment of persons with handicaps, in today's soci-
ety it is irrelevant, inappropriate and a great disservice.
Our model must change. Disabled people are sometimes
impatient, and sometimes angry, but for good reason-
they are fed up with discrimination and exclusion, tired of
denial, and are eager to seize the challenges and opportu-
nities as quickly as the rest of us.
Dr. Jordan testified that the ADA is necessary to demonstrate
that disabled people:
Can have the same aspirations and dreams as other
American citizens. Disabled people know that their dreams
can be fulfilled.
Dr. Jordan also testified that passage of ADA:
Will tell disabled Americans that they are indeed equal
to other Americans and that discrimination toward dis-
abled persons will no longer be tolerated in our country. It
will also make a powerful statement to the world that
America is true to its ideals. That is the full measure of
the American dream.
Perry Tillman, a Vietnam veteran, testified that:
I did my job when I was called on by my country. Now it
is your job and the job of everyone in Congress to make
sure that when I lost the use of my legs I didn't lose my
ability to achieve my dreams. Myself and other veterans
before me fought for freedom for all Americans. But when
I came home and found out that what I fought for applied
to everyone but me and other handicapped people, I
couldn't stop fighting. I have fought since my injury in
Vietnam to regain my rightful place in society. I ask that
you now join me in ending this fight and give quick and
favorable consideration to the ADA in order to allow all
Americans, disabled or not, to take part equally in Ameri-
can life.
CONCLUSION
In conclusion, there is a compelling need to provide a clear and
comprehensive national mandate for the elimination of discrimina-
tion against individuals with disabilities and for the integration of
persons with disabillities into the economic and social mainstream
of American life. Further, there is a need to provide clear, strong,
consistent, enforceable standards addressing discrimination against
individuals with disabilities. Finally, there is a need to ensure that
the Federal Government plays a central role in enforcing these
standards on behalf of individuals with disabilities.
The difficult task before the Committee and, indeed, the Con-
gress, is to establish standards that fulfill this mandate in a clear,
balanced, and reasonable manner. The Committee believes that
21
this legislation has done that. This report explains in detail how
that balance has been struck.
V. SUMMARY OF COMMITTEE ACTION
S. 933 was brought for markup at the Committee on Labor and
Human Resources executive session on August 2, 1989. At that
time, the Committee discussed three amendments, of which two
were adopted. Senator Harkin offered an amendment in the nature
of a substitute, which included amendment No. 541, proposed by
Senator McCain concerning amending the substitute by adding a
provision concerning technical assistance, which was adopted by
voice vote. Senator Hatch offered and then withdrew an amend-
ment that would have extended the scope of coverage to include
the Congress.
The Committee voted to adopt and report S. 933, as amended, as
an amendment in the nature of a complete substitute, by a roll call
vote of 16-0.
VI. EXPLANATION OF THE LEGISLATION
DEFINITION OF THE TERM "DISABILITY"
Section 3(2) of the legislation defines the term "disability" for
purposes of this legislation. The definition of the term "disability"
included in the bill is comparable to the definition of the term "in-
dividual with handicaps" in section 7(8)(B) of the Rehabilitation
Act of 1973 and section 802(h) of the Fair Housing Act.
It is the Committee's intent that the analysis of the term "indi-
vidual with handicaps" by the Department of Health, Education,
and Welfare of the regulations implementing section 504 (42 Fed.
Reg. 22685 et. seq. (May 4, 1977)) and the analysis by the Depart-
ment of Housing and Urban Development of the regulations imple-
menting the Fair Housing Amendments Act of 1988 apply to the
definition of the term "disability" included in this legislation.
The use of the term "disability" instead of "handicap" and the
term "individual with a disability" instead of "individual with
handicaps" represents an effort by the Committee to make use of
up-to-date, currently accepted terminology. In regard to this legisla-
tion, as well as in other contexts, the Congress has been apprised of
the fact that to many individuals with disabilities the terminology
applied to them is a very significant and sensitive issue.
As with racial and ethnic epithets, the choice of terms to apply
to a person with a disability is overlaid with stereotypes, patroniz-
ing attitudes, and other emotional connotations. Many individuals
with disabilities and organizations representing them object to the
use of such terms as "handicapped person" or "the handicapped."
In recent legislation, Congress has begun to recognize this shift of
terminology, e.g., by changing the name of the National Council on
the Handicapped to the National Council on Disability.
The Committee concluded that it was important for the current
legislation to use terminology most in line with the sensibilities of
most Americans with disabilities. No change in definition or sub-
stance is intended nor should be attributed to this change in
phraseology.
22
The term "disability" means, with respect to an individual-
(1) A physical or mental impairment that substantially
limits one or more of the major life activities of such individ-
ual;
(2) A record of such impairment; or
(3) Being regarded as having such an impairment.
The first prong of the definition includes any individual who has
a "physical or mental impairment." A physical or mental impair-
ment means-(1) any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the fol-
lowing body systems: neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular; repro-
ductive, digestive; genito-urinary; hemic and lymphatic; skin; and
endocrine; or (2) any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities.
It is not possible to include in the legislation a list of all the spe-
cific conditions, diseases, or infections that would constitute physi-
cal or mental impairments because of the difficulty of ensuring the
comprehensiveness of such a list, particularly in light of the fact
that new disorders may develop in the future. The term includes,
however, such conditions, diseases and infections as: orthopedic,
visual, speech, and hearing impairments, cerebral palsy, epilepsy,
muscular distrophy, multiple sclerosis, infection with the Human
Immunodeficiency Virus, cancer, heart disease, diabetes, mental re-
tardation, emotional illness, specific learning disabilities, drug ad-
diction, and alcoholism.
The term "physical or mental impairment" does not include
simple physical characteristics, such as blue eyes or black hair.
Further, because only physical or mental impairments are includ-
ed, environmental, cultural, and economic disadvantages are not in
themselves covered. For example, having a prison record does not
constitute having a disability. Age is not a disability, nor is homo-
sexuality. Of course, if a person who has any of these characteris-
tics also has a physical or mental impairment, such as epilepsy, the
person may be considered as having a disability or purposes of this
legislation.
A physical or mental impairment does not constitute a disability
under the first prong of the definition for purposes of the ADA
unless its severity is such that it results in a "substantial limita-
tion of one or more major life activities." A "major life activity"
means functions such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.
For example, a person who is paraplegic will have a substantial
difficulty in the major life activity of walking; a deaf person will
have a substantial difficulty in hearing aural communications; and
a person with lung disease will have a substantial limitation in the
major life activity of breathing. As noted by the U.S. Department
of Justice, "Application of Section 504 of the Rehabilitation Act to
HIV-Infected Individuals," September 27, 1988, at 9-11, a person
infected with the Human Immunodeficiency Virus is covered under
the first prong of the definition of the term "disability."
23
Persons with minor, trivial impairments, such as a simple infect-
ed finger are not impaired in a major life activity. A person is con-
sidered an individual with a disability for purposes of the first
prong of the definition when the individual's important life activi-
ties are restricted as to the conditions, manner, or duration under
which they can be performed in comparison to most people. A
person who can walk for 10 miles continuously is not substantially
limited in walking merely because on the eleventh mile, he or she
begins to experience pain because most people would not be able to
walk eleven miles without experiencing some discomfort. Moreover,
whether a person has a disability should be assessed without
regard to the availability of mitigating measures, such as reasona-
ble accommodations or auxiliary aids.
The second prong of the definition of the term "disability" in-
cludes an individual who has a record of such an impairment, i.e.,
an individual who has a history of, or has been misclassified as
having, a mental or physical impairment that substantially limtis
one or more major life activities.
This provision is included in the definition in part to protect in-
dividuals who have recovered from a physical or mental impair-
ment which previously substantially limited them, in a major life
activity. Discrimination on the basis of such a past impairment
would be prohibited under this legislation. Frequently occurring ex-
amples of the first group (i.e., those who have history of an im-
pairment) are persons with histories of mental or emotional illness,
heart disease, or cancer; examples of the second group (i.e., those
who have been misclassified as having an impairment) are persons
who have been misclassified as mentally retarded.
The third prong of the definition includes an individual who is
regarded as having a covered impairment. This third prong in-
cludes an individual who has a physical or mental impairment that
does not substantially limit major life activities, but that is treated
by a covered entity as constituting such a limitation. The third
prong also includes an individual who has a physical or mental im-
pairment that substantially limits major activities only as a result
of the attitudes of others toward such impairment or has no physi-
cal or mental impairment but is treated by a covered entity as
having such an impairment.
The rationale for this third prong was clearly articulated by the
U.S. Supreme Court in School Board of Nassau County V. Arline,
480 U.S. 273 (1987). The Court noted that Congress included this
third prong because it was as concerned about the effect of an im-
pairment on others as it was about its effect on the individual. As
the Court noted, the third prong of the definition is designed to
protect individuals who have impairments that do not in fact sub-
stantially limit their functioning. The Court explained:
Such an impairment might not diminish a person's phys-
ical or mental capabilities, but could nevertheless substan-
tially limit that person's ability to work as a result of the
negative reactions of others to the impairment. 480 U.S. at
283.
The Court went on to conclude that:
24
By amending the definition of "handicapped individual"
to include not only those who are actually physically im-
paired but also those who are regarded as impaired and
who, as a result, are substantially limited in a major life
activity, Congress acknowledged that society's accumulated
myths and fears about disability and diseases are as handi-
capping as are the physical limitations that flow from
actual impairment.
This third prong is particularly important for individuals with
stigmatic conditions that are viewed as physical impairments but
do not in fact result in a substantial limitation of a major life activ-
ity. For example, severe burn victims often face discrimination.
Another important goal of the third prong of the definition is to
ensure that persons with medical conditions that are under control,
and that therefore do not currently limit major life activities, are
not discriminated against on the basis of their medical conditions.
For example, individuals with controlled diabetes or epilepsy are
often denied jobs for which they are qualified. Such denials are the
result of negative attitudes and misinformation.
Other examples of individuals who fall within the "regarded as"
prong of the definition include people who are rejected for a par-
ticular job for which they apply because of findings of a back ab-
normality on an x-ray, notwithstanding the absence of any symp-
toms, or people who are rejected for a particular job solely because
they wear hearing aids, even though such people may compensate
substantially for their hearing impairments by using their aids,
speechreading, and a variety of other strategies.
A person who is excluded from any activity covered under this
Act or is otherwise discriminated against because of a covered enti-
ty's negative attitudes towards disability is being treated as having
a disability which affects a major life activity. For example, if a
public accommodation, such as a restaurant, refused entry to a
person with cerebral palsy because of that person's physical ap-
pearance, that person would be covered under the third prong of
the definition. Similarly, if an employer refuses to hire someone be-
cause of a fear of the "negative reactions" of others to the individ-
ual, or because of the employer's perception that the applicant had
a disability which prevented that person from working, that person
would be covered under the third prong. See, e.g., Arline, 480 U.S.
at 284; Doe V. Centinela Hospital, 57 U.S.L.W. 2034, No. CV-87-
2514-PAR (C.D.Cal., June 30, 1988), Thornhill V. Marsh, 49 FEP
Cases 6 (Feb. 2, 1989) (9th Cir. 1989).
TITLE I-EMPLOYMENT
Title I of the legislation sets forth prohibitions against discrimi-
nation on the basis of disability by employers, employment agen-
cies, labor organizations, or joint labor-management committees
(hereinafter referred to as "covered entities") with respect to hiring
and all terms, conditions, and privileges of employment.
Scope of coverage
The bill covers employers (including governments, governmental
agencies, and political subdivisions) who are engaged in an indus-
25
try affecting commerce and who have 15 or more employees for
each working day in each of 20 or more calender weeks in the cur-
rent or preceding calendar year and any agent of such a person;
except, for the two years following the effective date of title I, only
entities with 25 or more employees are covered. Additional entities
covered by title I of the legislation are employment agencies, labor
organizations, or joint labor-management committees.
Consistent with title VII of the Civil Rights Act of 1964, the term
"employer" under this legislation does not include (i) the United
States, a corporation wholly owned by the government of the
United States, or an Indian tribe; or (ii) a bona fide private mem-
bership club (other than a labor organization) that is exempt from
taxation under section 501(c) of the Internal Revenue Code of 1986.
Definitions
Several of the definitions set out in title VII of the Civil Rights
Act of 1964 are adopted or incorporated by reference in this legisla-
tion (Commission, employer, person, labor organization, employ-
ment agency, commerce, and industry affecting commerce). The
term "employee" means an individual employed by an employer.
The exception set out in title VII of the Civil Rights Act of 1964 for
elected officials and their employees and appointees has been delet-
ed.
Actions covered by this legislation
Section 102(a) of the legislation specifies that no covered entity
shall discriminate against any qualified individual with a disability
because of such individual's disability in regard to job application
procedures, the hiring or discharge of employees, employee com-
pensation, advancement, job training, and other terms, conditions,
and privileges of employment.
The phrasing of this section is consistent with regulations imple-
menting section 504 of the Rehabilitation Act of 1973. Consistent
with these regulations, the phrase "other terms, conditions, and
privileges of employment" includes: (1) recruitment, advertising,
and the processing of applications for employment; (2) hiring, up-
grading, promotion, award of tenure, demotion, transfer, layoff, ter-
mination, right of return from layoff, and rehiring; (3) rates of pay
or any other form of compensation and changes in compensation;
(4) job assignment, job classification, organizational structures, posi-
tion descriptions, lines of progression, and seniority lists; (5) leaves
of absence, sick leave, or any other leave; (6) fringe benefits avail-
able by virtue of employment, whether or not adminsitered by the
covered entity; (7) selection and financial support for training, in-
cluding apprenticeship, professional meetings, conferences, and
other related activities, and selection for leaves of absence to
pursue training; and (8) employer-sponsored activities, including
social or recreational programs.
Qualified individual with a disability
The term "qualified individual with a disability" is defined in
section 101(7) of the bill to mean an individual with a disability
who, with or without reasonable accommodation, can perform the
26
essential functions of the employment position that such, individual
holds or desires.
This definition is comparable to the definition used in regula-
tions implementing section 501 and section 504 of the Rehabilita-
tion Act of 1973. The phrase "essential functions" means job tasks
that are fundamental and not marginal. The point of including this
phrase within the definition of a "qualified individual with a dis-
ability" is to ensure that employers can continue to require that all
applicants and employees, including those with disabilities, are
able to perform the essential, i.e., non-marginal functions of the job
in question.
As the 1977 regulations issued by the Department of Health,
Education, and Welfare pointed out "inclusion of this phrase is
useful in emphasizing that handicapped persons should not be dis-
qualified simply because they may have difficulty in performing
tasks that bear only a marginal relationship to a particular job.
42 Fed. Reg. 22686 (1977). In determining what constitutes the es-
sential functions of the job, consideration should be given to the
employer's judgment regarding what functions are essential as a
matter of business necessity.
The basic concept is that an employer may require that every
employee be qualified to perform the essential functions of a job.
The term "qualified" refers to whether the individual is qualified
at the time of the job action .in question; the mere possibility of
future incapacity does not by itself render the person not qualified.
By including the phrase "qualified individual with a disability,"
the Committee intends to reaffirm that this legislation does not un-
dermine an employer's ability to choose and maintain qualified
workers. This legislation simply provides that employment deci-
sions must not have the purpose of effect of subjecting a qualified
individual with a disability to discrimination on the basis of his or
her disability.
Thus, under this legislation an employer is still free to select the
most qualified applicant available and to make decisions based on
reasons unrelated to the existence or consequence of a disability.
For example, suppose an employer has an opening for a typist and
two persons apply for the job, one being an individual with a dis-
ability who types 50 words per minute and the other being an indi-
vidual without a disability who types 75 words per minute, the em-
ployer is permitted to choose the applicant with the higher typing
speed.
On the other hand, if the two applicants are an individual with a
hearing impairment who requires a telephone headset with an am-
plifier and an individual without a disability, both of whom have
the same typing speed, the employer is not permitted to choose the
individual without a disability because of the need to provide the
needed reasonable accommodation.
In the above example, the employer would be permitted to reject
the applicant with a disability and choose the other applicant for
reasons not related to the disability or the accommodation or other-
wise prohibited by this legislation. In other words, the employer's
obligation is to consider applicants and make decisions without
regard to an individual's disability, or the individual's need for rea-
sonable accommodation. But, the employer has no obligation under
27
this legislation to prefer applicants with disabilities over other ap-
plicants on the basis of disability.
Under this legislation an employer may still devise physical and
other job criteria and tests for a job so long as the criteria or tests
are job-related and consistent with business necessity. Thus, for ex-
ample, an employer can adopt a physical criterion that an appli-
cant be able to lift fifty pounds, if that ability is necessary to an
individual's ability to perform the essential functions of the job in
question. Moreover, even if the criterion is legitimate, the employer must
determine whether a reasonable accommodation would enable the
person with the disability to perform the essential functions of the
job without imposing an undue hardship on the business.
Finally, this legislation prohibits use of a blanket rule excluding
people with certain disabilities except in the very limited situation
where in all cases physical condition by its very nature would pre-
vent the person with a disability from performing the essential
functions of the job, even with reasonable accommodations.
It is also acceptable to deny employment to an applicant or to
fire an employee with a disability on the basis that the individual
poses a direct threat to the health or safety of others or poses a
direct threat to property. The determination that an individual
with a disability will pose a safety threat to others must be made
on a case-by-case basis and not be based on generalizations, misper-
ceptions, ignorance, irrational fears, patronizing attitudes, or perni-
cious mythologies.
The employer must identify the specific risk that the individual
with a disability would pose. The standard to be used in determin-
ing whether there is a direct threat is whether the person poses a
significant risk to the safety of others or to property, not a specula-
tive or remote risk, and that no reasonable accommodation is avail-
able that can remove the risk. (See section 102(b) of the legislation).
See also School Board of Nassau County V. Arline, 480 U.S. 273
(1987). For people with mental disabilities, the employer must iden-
tify the specific behavior on the part of the individual that would
pose the anticipated direct threat.
Making such a determination requires a fact-specific individual-
ized inquiry resulting in a "well-informed judgment grounded in a
careful and open-minded weighing of the risks and alternatives."
Hall V. U.S. Postal Service, 857 F.2d 1073, 1079 (6th Cir. 1988), quot-
ing Arline. See also Mantolete V. Bolger, 757 F.2d 1416 (9th Cir.
1985) and Strathie V. Dept. of Transportation, 716 F.2d 227 (3d Cir.
1983).
With respect to covered entities subject to rules promulgated by
the Department of Transportation regarding physical qualifications
for drivers of certain classifications of motor vehicles, it is the Com-
mittee's intent that a person with a disability applying for or cur-
rently holding a job subject to these standards must be able to sat-
isfy these physical qualification standards in order to be considered
a qualified individual with a disability under title I of this legisla-
tion.
In light of this legislation, the Committee expects that within
two years from the date of enactment (the effective date of title I of
this legislation), the Secretary of Transportation will undertake a
28
thorough review of these regulations to ascertain whether the
standards conform with current knowledge about the capabilties of
persons with disabilities and currently available technological aids
and devices and in light of section 504 of the Rehabilitation Act of
1973 and make any necessary changes within the two year period.
Specific forms of discrimination prohibited
As explained above, section 1029a) of the bill includes a general
prohibition against discrimination on the basis of disability against
a qualified individual with a disability. Section 102(b) of the bill
specifies specific forms of discrimination that are prohibited by sec-
tion 102(a).
Section 102(b)(1) of the legislation specifies that the term "dis-
crimination" includes limiting, segregating, or classifying a job ap-
plicant or employee in a way that adversely affects the opportuni-
ties or status of such applicant or employee because of the disabil-
ity of such applicant or employee.
Thus, covered entities are required to make employment deci-
sions based on facts applicable to individual applicants or employ-
ees, and not on the basis of presumptions as to what a class of indi-
viduals with disabilities can or cannot do.
For example, it would be a violation of this legislation if an em-
ployer were to limit the duties of an, individual with a disability
based on a presumption of what was best for such individual or
based on a presumption about the ability of that individual to per-
form certain tasks. Similarly, it would be a violation for an employ-
er to adopt separate lines of progression for employees with disabil-
ities based on a presumption that no individual with a disability
would be interested in moving into a particular job.
It would also be a violation to deny employment to an applicant
based on generalized fears about the safety of the applicant or
higher rates of absenteeism. By definition, such fears are based on
averages and group-based predictions. This legislation requires in-
dividualized assessments which are incompatible with such an ap-
proach. Moreover, even group-based fears may be erroneous. In
1973, a study examined the job performance, safety record and at-
tendance of 1,452 physically impaired employees of the E.I. du Pont
de Nemours and Company (Wolfe, "Disability is No Hardship for
du Pont").
The study was intended, in part, to determine the validity of sev-
eral concerns expressed by employers with regard to hiring veter-
ans with disabilities: (1) insurance rates will skyrocket; (2) consider-
able expense will be involved in making the necessary adjustments
at the place of work; (3) safety records will be jeopardized; (4) spe-
cial privileges will have to be granted; and (5) other employees may
not accept workers with disabilities.
A du Pont executive said:
Every one of these reasons for not considering the handi-
capped veteran is not only a myth-but has been proven
through experience to hold no semblance of fact whatso-
ever.
Regarding insurance, the executive added
29
Du Pont has had no increase in compensation costs as a
result of hiring the handicapped and no lost-time injuries
of the handicapped have been experienced.
With regard to the other concerns, the study showed that the dis-
abled worker performed as well as or better than their non-dis-
abled co-workers. The fears of safety and absenteeism were un-
founded.
Some specific findings of the study were as follows:
Ninety-one percent of Du Pont's disabled workers rated aver-
age or better in performance.
Only four percent of the workers with disabilities were below
average in safety records; more than half were above average.
Ninety-three percent of the workers with disabilities rated
average or better with regard to job stability (turnover rate).
Seventy-nine percent of the workers with disabilities rated
average or better in attendance.
Fellow employees did not resent necessary accommodations
made for employees with disabilities.
In addition, employers may not deny health insurance coverage
completely to an individual based on the person's diagnosis or dis-
ability. For example, while it is permissible for an employer to
offer insurance policies that limit coverage for certain procedures
or treatments, e.g., only a specified amount per year for mental
health coverage, a person who has a mental health condition may
not be denied coverage for other conditions such as for a broken leg
or for heart surgery because of the existence of the mental health
condition. A limitation may be placed on reimbursements for a pro-
cedure or the types of drugs or procedures covered e.g., a limit on
the number of x-rays or non-coverage of experimental drugs or pro-
cedures; but, that limitation must apply to persons with or without
disabilities. All people with disabilities must have equal access to
the health insurance coverage that is provided by the employer to
all employees.
The ADA does not, however, affect pre-existing condition clauses
included in insurance policies offered by employers. Thus, employ-
ers may continue to offer policies that contain pre-existing condi-
tion exclusions, even though such exclusions adversely affect
people with disabilities, so long as such clauses are not used as a
subterfuge to evade the purposes of this legislation.
For additional explanations of the treatment of insurance under
this legislation, see the discussion in the report on insurance under
title V of the legislation.
Section 102(b)(2) of the legislation specifies that "discrimination"
includes participating in a contractual or other arrangement or re-
lationship that has the effect of subjecting a qualified applicant or
employee with a disability to the discrimination prohibited by this
title. Such relationships include a relationship with an employment
or referral agency, labor union, an organization providing fringe
benefits to an employee of the covered entity, or an organization
providing training and apprenticeship programs.
Section 102(b)(3) of the legislation specified that "discrimination"
includes utilizing standards, criteria, or methods of administration
that have the effect of discrimination on the basis of disability or
30
that perpetuate the discrimination of others who are subject to
common administrative control.
Paragraphs (2) and (3) of the legislation are derived from provi-
sions set out in the title I of the ADA, as originally introduced
(which has been deleted by the Substitute) and general forms of
discrimination set out in regulations implementing section 504 of
the Rehabilitation Act of 1973 (see e.g., 45 CFR Part 84). Thus, the
Substitute should not be construed as departing in any way from
the concepts included in the original "general prohibitions" title of
the ADA and these concepts are subsumed within the provision of
the subsequent titles of the legislation. Further, this legislation in
no way is intended to diminish the continued viability of sheltered
Act. workshops and programs implementing the Javits-Wagner O'Day
Subparagraphs (B) and (C) incorporate a disparate impact stand-
ard to ensure that the legislative mandate to end discrimination
does not ring hollow. This standard is consistent with the interpre-
tation of section 504 by the U.S. Supreme Court in Alexander V.
Choate, 469 U.S. 287 (1985). The Court explained that members of
Congress made numerous statements during passage of section 504
regarding eliminating architectural barriers, providing access to
transportation, and eliminating discriminatory effects of job quali-
fication procedures. The Court then noted:
These statements would ring hollow if the resulting leg-
islation could not rectify the harms resulting from action
that discriminated by effect as well as by design.
The Court also noted, however, that section 504 was not intended
to require that a "Handicapped Impact Statement" be prepared by
a covered entity before any action was taken that might conceiv-
ably affect people with disabilities. Thus, the Court rejected "the
boundless notion that all disparate-impact showings constitute
prima facie cases under section 504."
Section 101(b)(4) of the legislation specifies that "discrimination"
includes excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an individ-
ual with whom the qualified individual is known to have a rela-
tionship or association.
Thus, assume for example that an applicant applies for a job and
discloses to the employer that his or her spouse has a disability.
The employer believes the applicant is the most qualified person
for the job. The employer, however, assuming without foundation
that the applicant will have to miss work or frequently leave work
early or both, in order to care for his or her spouse, declines to hire
the individual for such reasons. Such a refusal is prohibited by this
subparagraph.
In contrast, assume that the employer hires the applicant. If he
or she violates a neutral employer policy concerning the attend-
ance or tardiness, he or she may be dismissed even if the reason for
the absence or tardiness is to care for the spouse. The employer
need not provide any accommodation to the nondisabled employee.
Section 102(b)(5) of the legislation specifies that discrimination
includes the failure by a covered entity to make reasonable accom-
modations to the known physicial or mental limitations of a quali-
31
fied individual with a disability who is an applicant or employee,
unless such entity can demonstrate that the accommodation would
impose an undue hardship on the operation of its business.
The duty to make reasonable accommodations applies to all em-
ployment decisions, not simply to hiring and promotion decisions.
This duty has been included as a form of non-discrimination on the
basis of disability for almost fifteen years under section 501 and
section 504 of the Rehabilitation Act of 1973 and under the nondis-
crimination section of the regulations implementing section 503 of
that Act.
The term "reasonable accommodation" is defined in section
101(8) of the legislation. The definition includes illustrations of ac-
commodations that may be required in appropriate circumstances.
The list is not meant to be exhaustive; rather, it is intended to pro-
vide general guidance about the nature of the obligation. Further-
more, the list is not meant to suggest that employers must follow
all of the actions listed in each particular case. Rather, the decision
as to what reasonable accommodation is appropriate is one which
must be determined based on the particular facts of the individual
case. This fact-specific case-by-case approach to providing reasona-
ble accommodations is generally consistent with interpretations of
this phrase under sections 501, 503, and 504 of the Rehabilitation
Act of 1973.
The first illustration of a reasonable accommodation included in
the legislation is making existing facilities used by employees in
general, readily accessible to and usable by individuals with dis-
abilities.
The legislation also specifies, as examples of reasonable accom-
modation, job restructuring, part-time or modified work schedules
and reassignment to a vacant position.
Job restructuring means modifying a job so that a person with a
disability can perform the essential functions of the position. Bar-
riers to performance may be eliminated by eliminating nonessen-
tial elements; redelegating assignments; exchanging assignments
with another employee; and redesigning procedures for task accom-
plishment.
Part-time or modified work schedules can be a no-cost way of ac-
commodation. Some people with disabilities are denied employment
opportunities because they cannot work a standard schedule. For
example, persons who need medical treatment may benefit from
flexible or adjusted work schedules. A person with epilepsy may re-
quire constant shifts rather than rotation from day to night shifts.
Other persons who may require modified work schedules are per-
sons with mobility impairments who depend on a public transpor-
tation system that is not currently fully accessible. Allowing con-
stant shifts or modified work schedules are examples of means to
accommodate the individual with a disability to allow him or her
to do the same job as a nondisabled person. This legislation does
not entitle the individual with a disability to more paid leave time
than non-disabled employees.
Reasonable accommodation may also include reassignment to a
vacant position. If an employee, because of disability, can no longer
perform the essential functions of the job that she or he has held, a
transfer to another vacant job for which the person is qualified
32
may prevent the employee from being out of work and the employ-
er from losing a valuable worker.
Reassignment as a reasonable accommodation is not available to
applicants for employment. The Committee believes that efforts
should be made to accommodate an employee in the position that
he or she was hired to fill before reassignment should be consid-
ered. The Committee also wishes to make clear that reassignment
need only be to a vacant position-"bumping" another employee
out of a position to create a vacancy is not required.
The section 504 regulations provide that "a recipient's obligation
to comply with this subpart [employment] is not affected by any in-
consistent term of any collective bargaining agreement to which it
is a party." 45 CFR 84.11(c). This policy also applies to the ADA.
An employer cannot use a collective bargaining agreement to ac-
complish what it otherwise would be prohibited from doing under
this legislation. For example, a collective bargaining agreement
that contained physical criteria which caused a disparate impact
on individuals with disabilities and were not job-related and con-
sistent with business necessity could be challenged under this legis-
lation.
The collective bargaining agreement could be relevant, however,
in determining whether a given accommodation is reasonable. For
example, if a collective bargaining agreement reserves certain jobs
for employees with a" given amount of seniority, it may be consid-
ered as a factor in determining whether it is a reasonable accom-
modation to assign an employee with a disability without seniority
to that job.
In other situations, the relevant question would be whether the
collective bargaining agreement articulates legitimate business cri-
teria. For example, if the collective bargaining agreement includes
job duties, it may be taken into account as a factor in determining
whether a given task is an essential function of the job.
Conflicts between provisions of a collective bargaining agreement
and an employer's duty to provide reasonable accommodations may
be avoided by ensuring that agreements negotiated after the effec-
tive date of this title contain a provision permitting the employer
to take all actions necessary to comply with this legislation.
Additional forms of reasonable accommodation included in the
legislation are acquisition or modification of equipment or devices.
The Job Accommodation Network operated by the President's Com-
mittee on Employment of People with Disabilities reports that it is
possible to accommodate many employees with relatively simple
and inexpensive assistive technology.
For blind and visually-impaired persons, this may include adapt-
ive hardware and software for computers, electronic visual aids,
braille devices, talking calculators, magnifiers, audio recordings
and brailled material.
For persons with hearing impairments, this may include tele-
phone handset amplifiers, telephones compatible with hearing aids,
and telecommunication devices for deaf persons. For persons with
limited physical dexterity, this may include goose neck telephone
headsets, mechanical page turners, and raised or lowered furniture.
33
The Committee wishes to make it clear that non job-related per-
sonal use items such as hearing aids and eyeglasses are not includ-
ed in this provision.
The legislation also lists appropriate adjustment or modifications
of examinations, training materials or policies. For example, many
employers have a policy that in order to qualify for a job an em-
ployee must have a driver's license-even though the jobs do not
involve driving. The employer may believe that someone who
drives will be on time for work or may be able to do an occasional
errand. This requirement, however, would be marginal and should
not be used to exclude persons with disabilities who can do the es-
sential functions of the job that admittedly do not include driving.
The Committee wishes to emphasize again that this legislation
does not require an employer to make any modification, adjust-
ment, or change in a job description or policy that an employer can
demonstrate would fundamentally alter the essential functions of
the job in question.
The legislation also explicitly includes provision of qualified
readers of interpreters as examples of reasonable accommodations.
As with readers and interpreters, the provision of an attendant to
assist a person with a disability during parts of the workday may
be a reasonable accommodation depending on the circumstances of
the individual case. Attendants may, for example, be required for
traveling and other job-related functions. This issue must be dealt
with on a case-by-case basis to determine whether an undue hard-
ship is created by providing attendants.
The Committee wishes to clarify the employer's obligation to
notify the applicant and the employee of its obligation to provide a
reasonable accommodation, who is entitled to an accommodation,
when the duty to provide a reasonable accommodation is triggered,
and the process of determining the appropriate accommodation.
First, pursuant to section 104 of the legislation, the employer
must notify applicants and employees of its obligation under this
legislation to make reasonable accommodations.
Second, section 102(b)(5) of the legislation requires that reasona-
ble accommodation be made for "a qualified individual who is an
applicant or employee
The term "qualified" as used in this
section does not refer to the definition of qualified individual with
a disability" set forth in section 101(7) because such an interpreta-
tion would be circular and meaningless. Rather, as in section 504
regulations, the term "qualified" in section 102(b)(5) means "other-
wise qualified" (See 45 CFR 84.12(a)), i.e., a person with a disabil-
ity who meets all of an employer's job-related selection criteria
except such criteria he or she cannot meet because of a disability.
For example, if a law firm requires that all incoming lawyers
have graduated from an accredited law school and have passed the
bar examination, the law firm need not provide an accommodation
to an individual with a disability who has not met these selection
criteria. That individual is not yet eligible for a reasonable accom-
modation because he or she is not otherwise qualified for the posi-
tion.
On the other hand, if the individual graduated from an accredit-
ed law school and passed a bar examination (assuming that these
are the only selection criteria) the person is "otherwise qualified"
21-174 0 - 89 - 3
34
and the law firm would be required to provide a reasonable accom-
modation to the employee's visual impairment, such as a reader,
that would enable the employee to perform the essential functions
of the job as an attorney unless the necessary accommodation
would impose an undue hardship.
If, to continue the example, a part-time reader can be provided
as a reasonable accommodation that permits the individual to per-
form the essential functions of the attorney position without impos-
ing an undue hardship, the person is a "qualified individual with a
disability" as defined in section 101(7) of the legislation and it
would be unlawful not to hire the individual because of his or her
visual impairment.
Third, the legislation clearly states that employers are obligated
to make reasonable accommodations only to the "known" physical
or mental limitations of a qualified individual with a disability.
Thus, the duty to accommodate is generally triggered by a request
from an employee or applicant for employment. Of course, if a
person with a known disability is having difficulty performing his
or her job, it would be permissible for the employer to discuss the
possibility of a reasonable accommodation with an employee.
In the absence of a request, it would be inappropriate to provide
an accommodation, especially where it could impact adversely on
the individual. For example, it would be unlawful to transfer uni-
laterally a person with HIV infection from a job as a teacher to a
job where such person has no contact with people. See, e.g., Chalk
V. United States District Court, 840 F.2nd 701 (9th Cir. 1988).
The Committee believes that the reasonable accommodation re-
quirement is best understood as a process in which barriers to a
particular individual's equal employment opportunity are removed.
The accommodation process focuses on the needs of a particular in-
dividual in relation to problems in performance of a particular job
because of a physical or mental impairment. A problem-solving ap-
proach should be used to identify the particular tasks or aspects of
the work environment that limit performance and to identify possi-
ble accommodations that will result in a meaningful equal opportu-
nity for the individual with a disability.
The Committee suggests that, after a request for an accommoda-
tion has been made, employers first will consult with and involve
the individual with a disability in deciding on the appropriate ac-
commodation. The Committee recognizes that people with disabil-
ities may have a lifetime of experience identifying ways to accom-
plish tasks differently in many different circumstances. Frequently,
therefore, the person with a disability will know exactly what ac-
commodation he or she will need to perform successfully in a par-
ticular job. And, just as frequently, the employee or applicant's
suggested accommodation is simpler and less expensive than the
accommodation the employer might have devised, resulting in the
employer and the employee mutually benefiting from the consulta-
tion.
The Committee also recognizes that there are times when the ap-
propriate accommodation is not obvious to the employer or appli-
cant because such individual is not familiar in detail with the
manner in which the job in question is performed and the employ-
er is not familiar enough with the individual's disability to identify
35
the appropriate accommodation. In such circumstances, the Com-
mittee believes the employer should consider four informal steps to
identify and provide an appropriate accommodation.
The first informal step is to identify barriers to equal opportuni-
ty. This includes identifying and distinguishing between essential
and nonessential job tasks and aspects of the work environment of
the relevant position(s). With the cooperation of the person with a
disability, the employer must also identify the abilities and limita-
tions of the individual with a disability for whom the accommoda-
tion is being provided. The employer then should identify job tasks
or work environment that limit the individual's effectiveness or
prevent performance.
Having identified the barriers to job performance caused by the
disability, the second informal step is to identify possible accommo-
dations. As noted above, the search for possible accommodations
must begin with consulting the individual with a disability. Other
resources to consult include the appropriate State Vocational Reha-
bilitation Services agency, the Job Accommodation Network oper-
ated by the President's Committee on Employment of People With
Disabilities, or other employers.
Having identified one or more possible accommodations, the
third informal step is to assess the reasonableness of each in terms
of effectiveness and equal opportunity. A reasonable accommoda-
tion should be effective for the employee. Factors to be considered
include the reliability of the accommodation and whether it can be
provided in a timely manner.
The Committee believes strongly that a reasonable accommoda-
tion should provide a meaningful equal employment opportunity.
Meaningful equal employment opportunity means an opportunity
to attain the same level of performance as is available to non-dis-
abled employees having similar skills and abilities.
The final informal step is to implement the accommodation that
is most appropriate for the employee and the employer and that
does not impose an undue hardship on the employer's operation or
to permit the employee to provide his or her own accommodation if
it does impose an undue hardship. In situations where there are
two effective accommodations, the employer may choose the accom-
modation that is less expensive or easier for the employer to imple-
ment as long as the selected accommodation provides meaningful
equal employment opportunity.
The expressed choice of the applicant or employee shall be given
primary consideration unless another effective accommodation
exists that would provide a meaningful equal employment opportu-
nity or that the accommodation requested would pose an undue
hardship.
The Committee wishes to note that many individuals with dis-
abilities do not require any reasonable accommodation whatsoever.
The only change that needs to be made for such individuals is a
change in attitude regarding employment of people with disabil-
ities.
The term "undue hardship" is defined in section 101(9) to mean
an action requiring significant difficulty or expense i.e., an action
that is unduly costly, extensive, substantial, disruptive, or that will
fundamentally alter the nature of the program. In determining
36
whether a particular accommodation would impose an undue hard-
ship on the operation of the covered entity's business i.é., require
significant difficulty or expense, factors to be considered include:
(1) the overall size of the business of the covered entity with re-
spect to number of employees, number and type of facilities and
size of the budget; (2) the type of operation maintained by the cov-
ered entity, including the composition and structure of the entity's
workforce; and (3) the nature and cost of the accommodation
needed.
This provision is derived from and should be applied consistently
with interpretations by Federal agencies applying the term set
forth in regulations implementing sections 501 and 504 of the Re-
habilitation Act of 1973.
The weight given to each factor in making the determination as.
to whether a reasonable accommodation nonetheless constitutes an
"undue hardship" will vary depending on the facts of a particular
situation and turns on both the nature and cost of the accommoda-
tion in relation to the employer's resources and operations. In ex-
plaining the "undue hardship" provision, the Department of
Health, Education, and Welfare explained in the appendix accom-
panying the section 504 regulations (42 Fed. Reg. 22676 et. seq,
May 4, 1977):
Thus, a small day-care center might not be required to
expend more than a nominal sum, such as that necessary
to equip a telephone for use by a secretary with impaired
hearing, but a large school district might be required to
make available a teacher's aide to a blind applicant for a
teaching job. Further, it might be considered reasonable to
require a State welfare agency to accommodate a deaf em-
ployee by providing an interpreter, while it would consti-
tute an undue hardship to impose that requirement on a
provider of foster home care services.
The mere fact that an employer is a large entity for the purposes
of factor (1), should not be construed to negate the importance of
factors (2) and (3) in determining the existence of undue hardship.
The Committee wishes to make it clear that the principles enun-
ciated by the Supreme Court in TWA V. Hardison, 432 U.S. 63
(1977) are not applicable to this legislation. In Hardison, the Su-
preme Court concluded that under title VII of the Civil Rights Act
of 1964 an employer need not accommodate persons with religious
beliefs if the accommodation would require more than a de mini-
mus cost for the employer.
Finally, the Committee wishes to make it clear that even if there
is a determination that a particular reasonable accommodation will
result in undue hardship, the employer must pay for the portion of
the accommodation that would not cause an undue hardship if, for
example, the State Vocational Rehabilitation Agency, other similar
agency, or the employee or applicant pays for the remainder of the
cost of the accommodation.
Section 102(b)(6) of the legislation specifies that discrimination
includes the denial of employment opportunities by a covered
entity to an applicant or employee who is a qualified individual
37
with a disability if the basis for such denial is because of the need
of the individual for reasonable accommodation.
Thus, for example, where an applicant with a disability is other-
wise equally qualified as an applicant without a disability, an em-
ployer cannot reject the applicant with a disability who requires a
reasonable accommodation in favor of one who does not if the
reason for the rejection is the reasonable accommodation require-
ment. Even where an employer is not required under this law to
pay for a reasonable accommodation, because it would impose an
undue hardship on the employer, the employer cannot refuse to
hire an applicant where the applicant is willing to make his or her
own arrangements for the provision of such an accommodation, if
the reason for the rejection is the reasonable accommodation re-
quirement.
Section 102(b)(7) of the legislation specifies that discrimination
includes using employment tests or other selection criteria that
screen out or tend to screen out an individual with a disability or a
class of individuals with disabilities unless the test or other selec-
tion criteria, as used by the covered entity, is shown to be job-relat-
ed for the position in question and is consistent with business ne-
cessity.
As in Section 504, the ADA adopts a framework for employment
selection procedures which is designed to assure that persons with
disabilities are not excluded from job opportunities unless they are
actually unable to do the job. The requirement that job criteria ac-
tually measure ability required by the job is a critical protection
against discrimination based on disability. As was made strikingly
clear at the hearings on the ADA, stereotypes and misconceptions
about the abilities, or more correctly the inabilities, of persons with
disabilities are still pervasive today. Every government and private
study on the issue has shown that employers disfavor hiring per-
sons with disabilities because of stereotypes, discomfort, misconcep-
tions, and unfounded fears about increased costs and decreased pro-
ductivity.
The three pivotal provisions to assure a fit between job criteria
and an applicant's actual ability to do the job are:
(1) The requirement that persons with disabilities not be dis-
qualified because of the inability to perform non-essential or
marginal functions of the job;
(2) The requirement that any selection criteria that screen
out or tend to screen out be job-related and consistent with
business necessity; and
(3) The requirement to provide resonable accommodation to
assist persons with disabilties to meet legitimate criteria.
These three legal requirements, which are incorporated in sec-
tions 102(b)(5) and (7) of the legislation, work together to provide a
high degree of protection to eliminate the current pervasive bias
against employing persons with disabilities in the selection process.
The interrelationship of these requirements in the selection pro-
cedure is as follows. If a person with a disability applies for a job
and meets all selection criteria except one that he or she cannot
meet because of a disability, the criteria must concern an essential,
non-marginal aspect of the job, and be carefully tailored to meas-
ure the person's actual ability to do an essential function of the
38
job. If the criteria meets this test, it is nondiscriminatory on its
face and it is otherwise lawful under the legislation. However, the
criteria may not be used to exclude an applicant with a disability if
the criteria can be satisfied by the applicant with a reasonable ac-
commodation. A reasonable accommodation may entail adopting an
alternative, less discriminatory criterion.
For example, in Stutts V. Freeman, 694 F2d 666 (11th Cir. 1983),
Mr. Stutts, who was dyslexic, was denied the job of heavy equip-
ment operator because he could not pass a written test used by the
employer for entering the training program, which was a prerequi-
site for the job. The written test had a disparate impact on persons
with dyslexia. The questions, therefore, were whether both the
written test for admission to the training program and the reading
requirements of the training program itself, were necessary criteria
for the heavy equipment operator job. If the answers to both those
questions were yes, the question then became whether a reasonable
accommodation could enable the person with a disability to meet
the employment criteria at issue.
In Stutts, the record reflected that Mr. Stutts could perform the
job of heavy equipment operator. As stated by the court,
Indeed, everyone involved in this case seems to concede
that Mr. Stutts would have no problems doing the job but
rather may experience difficulty with the outside reading
requirements of the training program. If selected, this ob-
stacle may be overcome by Mr. Stutts obtaining the assist-
ance of someone to act as a "reader" [T]o eliminate
Mr. Stutts without implementing an alternative test (oral)
administered by outside professionals of TVA's staff or by
failing to adjust the entry requirements to accommodate
his dyslexia, TVA has failed to comply with the statute.
Hence, the requirement that job selection procedures be "job-re-
lated and consistent with business necessity" underscores the need
to examine all selection criteria to assure that they not only pro-
vide an accurate measure of an applicant's actual ability to per-
form the job, but that even if they do provide such a measure, a
disabled applicant is offered a "reasonable accommodation" to
meet the criteria that relate to the essential functions of the job at
issue. It is critical that paternalistic concerns for the disabled per-
son's own safety not be used to disqualify an otherwise qualified
applicant. As noted, these requirements are incorporated in the
legislation in sections 102(b)(1)(5) and (7).
The Committee intends that the burden of proof under each of
the aforementioned sections be construed in the same manner in
which parallel agency provisions are construed under Section 504
of the Rehabilitation Act as of June 4, 1989. See, e.g., 45 C.F.R.
84.13 (Department of Health and Human Services); 29 C.F.R.
1613.705 (Equal Employment Opportunity Commission); 28 C.F.R.
42.512 (Department of Justice); 29 C.F.R. 32.14 (Department of
Labor).
Section 102(b)(8) of the legislation specifies that discrimination
includes failing to select and administer tests so as best to ensure
that, when the test is administered to an applicant or employee
with a disability that impairs sensory, manual, or speaking skills,
39
the tests results accurately reflect the individual's job skills, apti-
tude, or whatever other factor the test purports to measure, rather
than reflecting the individual's impaired sensory, manual, or
speaking skills (except where those skills are the factors that the
test purports to measure).
Section 102(c) of the legislation specifies that the prohibition
against discrimination in section 101(a) applies to medical examina-
tions and inquiries. Historically, employment application forms and
employment interviews requested information concerning an appli-
cant's physical or mental condition. This information was often
used to exclude applicants with disabilities-particularly those
with so-called hidden disabilities such as epilepsy, diabetes, emo-
tional illness, heart disease and cancer-before their ability to per-
form the job was even evaluated.
In order to assure that misconceptions do not bias the employ-
ment selection process, the legislation sets forth a process which
begins with the prohibition to pre-offer medical examinations or in-
quiries. The process established by the legislation parallels the reg-
ulations issued under section 504 of the Rehabilitation Act of 1973.
The legislation prohibits any identification of a disability by in-
quiry or examination at the pre-offer stage. Employers may ask
questions which relate to the ability to perform job-related func-
tions, but may not ask questions in terms of disability. For exam-
ple, an employer may ask whether the applicant has a driver's li-
cense, if driving is an- essential job function, but may not ask
whether the applicant has a visual disability. This prohibition
against inquiries regarding disability is critical to assure that bias
does not enter the selection process.
The only exception to making medical inquiries that are not
strictly job-related is narrow. The legislation allows covered enti-
ties to require post-offer medical examinations so long as they are
given to all entering employees in a particular category, the results
of the examinations are kept confidential, and the results are not
used to discriminate against individuals with disabilities unless
such results makes the individual not qualified for the job. For ex-
ample, an entity can test all police officers rather than all city em-
ployees or all construction workers rather than all construction
company employees. This exception to the general rule meets the
employer's need to discover possible disabilities that do limit the
person's ability to do the job, i.e., those that are job-related.
Once an employee is on the job, the actual performance on the
job is, of course, the best measure of ability to do the job. When a
need arises to question the continued ability of a person to do the
job, the employer may make disability inquiries, including medical
exams, which are job-related and consistent with business necessi-
ty. The concept of "job-related and consistent with business necessi-
ty" has been outlined elsewhere in the report under the discussion
of section 102(b)(7) of the legislation.
An inquiry or medical examination that is not job-related serves
no legitimate employer purpose, but simply serves to stigmatize the
person with a disability. For example, if an employee starts to lose
a significant amount of hair, the employer should not be able to
require the person to be tested for cancer unless such testing is job-
related. Testimony before the Committee indicated there still exists
40
widespread irrational prejudice against persons with cancer. While
the employer might argue that it does not intend to penalize the
individual, the individual with cancer may object merely to being
identified, independent of the consequences. As was abundantly
clear before the Committee, being identified as disabled often car-
ries both blatant and subtle stigma. An employer's legitimate
needs will be met by allowing the medical inquiries and examina-
tions which are job-related.
Consistent with the section in the legisalation pertaining to pre-
employment inquiries, it is the Committee's intent that a covered
entity may invite applicants for employment to indicate whether
and to what extent they have a disability under the following cir-
cumstances only: (1) when a covered entity is taking remedial
action to correct the effects of past discrimination, (2) when a recip-
ient is taking voluntary action to overcome the effects of conditions
that resulted in limited employment opportunities, or (3) when a
recipient is taking affirmative action pursuant to section 503 of the
Rehabilitation Act of 1973, provided that:
(a) The covered entity states clearly on any written question-
naire used for this purpose or makes clear orally (if no written
questionnaire is used) that the information requested is intend-
ed for use solely in connection with its remedial action obliga-
tions or its voluntary or affirmative action efforts, and
(b) The covered entity states clearly that the information is
being requested on a voluntary basis, that it will be kept confi-
dential, that refusal to provide it will not subject the applicant
or employee to any adverse treatment, and that it will be used
only in accordance with this title of the Act.
Defenses
Section 103(a) of the legislation specifies that in general, it may
be a defense to a charge of discrimination that an alleged applica-
tion of qualification standards, tests, or selection criteria that
screen out or tend to screen out or otherwise deny a job or benefit
to an individual with a disability has been shown to be job-related
and consistent with business necessity, and such performance
cannot be accomplished by reasonable accommodation.
With respect to contagious diseases or infections, section 103(b) of
the legislation specifies that the term "qualification standards"
may include a requirement that an individual with a currently con-
tagious disease or infection shall not pose a direct threat to the
health or safety of other individuals in the workplace. Under this
qualification standard, for a person with a currently contagious dis-
ease or infection to constitute a direct threat to the health or
safety of others, the person must pose a significant risk of trans-
mitting the infection to others in the workplace which cannot be
eliminated by reasonable accommodation. See School Board of Nas-
sau County V. Arline, 480 U.S. 273, 287, note 16.
With respect to drug addicts and alcoholics, section 103(c)(1) of
the legislation specifies that, notwithstanding any other provision
of this legislation, a covered entity:
(1) May prohibit the use of alcohol or illegal drugs at the
workplace by all employees;
41
(2) May require that employees not be under the influence of
alcohol or illegal drugs at the workplace;
(3) May require that employees conform their behavior to re-
quirements established pursuant to the Drug-Free Workplace
Act of 1988, and that transportation employees meet require-
ments established by the Department of Transportation with
respect to drugs and alcohol; and
(4) May hold a drug user or alcoholic to the same qualifica-
tion standards for employment or job performance and behav-
ior to which it holds other individuals, even if any unsatisfac-
tory performance or behavior is related to the drug use or alco-
holism of such individual.
Further, section 103(c)(2) of the legislation specifies that nothing
in this title shall be construed to encourage, prohibit, or authorize
conducting drug testing of job applicants or employees or making
employment decisions based on such test results.
With respect to the defense that transportation employers may
require that transportation employees meet requirements estab-
lished by the Secretary of Transportation pursuant to and consist-
ent with Federal law, the Committee wishes to make the following
clarifications.
First, licensing of motor carrier drivers and railroad engineers,
and certification of airplane pilots involves consideration of drunk
and drug-related driving convictions, as recorded by individual
States and made available to employers through the National Driv-
ers Register at the Department of Transportation. In addition,
records of other drug or alcohol related violations of State or Fed-
eral law may be considered as indicators of "fitness for duty" for
safety-sensitive transportation positions.
Second, this defense applies to violations of Department of Trans-
portation regulations concerning drug and alcohol use outside the
workplace e.g., an air crew member who, in violation of Federal
Aviation Administration rules, drinks alcohol within 8 hours of
going on duty.
Third, this defense applies to actions based on an individual's
failure to pass DOT mandated drug and alcohol tests when admin-
istered in accordance with Federal and State laws e.g., a truck
driver who tests positive for illegal drugs and the failure or refusal
to take a drug test mandated by Department of Transportation reg-
ulations.
The Committee believes that test results should be accurate and
encourages covered entities to follow the Mandatory Guidelines on
Federal Workplace Testing as issued by the Department of Health
and Human Services. In any event, testing must comply with appli-
cable Federal, State, or local laws or regulations regarding quality
control, confidentiality, and rehabilitation; provided that, with re-
spect to transportation employees, if testing is undertaken, it must
be done in compliance with applicable Federal laws and regula-
tions.
The reasonable accommodation provision in section 102(b)(5) of
this title does not affirmatively require that a covered entity must
provide a rehabilitation program or an opportunity for rehabilita-
tion for any job applicant who is a drug addict or alcoholic or for
any current employee who is a drug addict or alcoholic against
42
whom employment-related actions are taken for the reasons enu-
merated in section 103(c) relating to defenses.
Although the provision of a rehabilitation program or an oppor-
tunity for rehabilitation of a drug addict or alcoholic is not re-
quired by this title, the Committee strongly encourages covered en-
tities to follow the lead of the Federal government and many pri-
vate employers, consistent with the policy embedded in the Drug
Free Workplace Act, to offer such rehabilitation programs or pro-
vide an opportunity for rehabilitation.
Finally, the Committee wishes to emphasize that the provisions
of section 103(c) of this legislation apply only to addicts that are
currently using illegal drugs or alcohol.
With respect to religious entities, section 103(d) of the legislation
specifies that title I does not prohibit a religious corporation, asso-
ciation, educational institution, or society from giving preference in
employment to individuals of a particular religion to perform work
connected with the carrying on by such corporation, association,
educational institution, or society of its activities.
Because title I of this legislation incorporates by reference the
definition of the term "employer" and "employee" used in title VII
of the Civil Rights Act of 1964 and because of the similarity be-
tween the "religious preference" provisions in title VII and the
ADA, it is the Committee's intent that title I of the ADA be inter-
preted in a manner consistent with title VII of the Civil Rights Act
of 1964 as it applies to the employment relationship between a reli-
gious organization and those who minister on its behalf.
In addition, section 103(d) of the legislation includes a provision
not included in title VII of the Civil Rights Act of 1964 which speci-
fies that under title I of the legislation, a religious organization
may require, as a qualification standard to employment, that all
applicants and employees conform to the religious tenets of such
organization. This exemption is modeled after the provision in title
IX of the Education Amendments of 1972. Thus, is is the Commit-
tee's intent that the terms "religious organizations" and "religious
tenets" be interpreted consistent with the Department of Educa-
tion's regulations thereunder.
The inclusion of a "religious tenets" defense is not intended to
affect in any way the scope given to section 702 of title VII of the
Civil Right Act of 1964.
Posting notices
Section 104 of the legislation specifies that every employer, em-
ployment agency, labor organization, or joint labor-management
committee covered under this title must post notices in an accessi-
ble format to applicants, employees, and members describing the
applicable provisions of this Act, in the manner prescribed by sec-
tion 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10).
Regulations
Section 105 of the legislation specifies that not later than one
year after the date of enactment of this Act, the Equal Employ-
ment Opportunity Commission must issue regulations in an acces-
sible format to carry out this title in accordance with subchapter II
of chapter 5 of title 5, United States Code.
43
It is the Committee's intent that these regulations will be drafted
so as to be a self-contained document. The regulations should not
incorporate by reference other laws or regulations. The Commis-
sion's regulations will have the force and effect of law.
This format will increase the likelihood of voluntray compliance
on the part of covered entities and should minimize the need to
hire a battery of lawyers to ascertain the obligations created by
this legislation.
Enforcement
Section 106 of the legislation specifies that the remedies and pro-
cedures set forth in sections 706, 707, 709, and 710 of the Civil
Rights Act of 1964 shall be available with respect to the Commis-
sion or any individual who believes that he or she is being subject-
ed to discrimination on the basis of disability in violation of any
provisions of this legislation, or regulations promulgated under sec-
tion 105 concerning employmnet. As has been the case under title
VII of the Civil Rights Act of 1964, the Attorney General may con-
tinue to have pattern or practice authority with respect to State
and local governments.
Section 205 of S. 933, as originally introduced, provided protec-
tion to individuals who believe that they are being or who are
"about to be subjected to discrimination." This provision has been
deleted becasue the Committee determined that the case law under
title VII of the Civil Rights Act of 1964 already provides protection
against discrimination in those circumstances with which the Com-
mittee had had concerns, and thus, a specific provision in the ADA
is unnecessary.
The Supreme Court enumerated the "futile gesture" doctrine
under title VII: "When a person's desire for a job is not translated
into a formal application solely because of his unwillingness to
engage in a futile gesture he is as much a victim of discrimination
as is he who goes through the motions of submitting an applica-
tion." International Brotherhood of Teamsters V. United States, 431
U.S.C. 324, 365-67.
The term "is being subjected to discrimination" also includes the
situation where the employee discovers that the employer is
redesigning office space in such a way that it will become inacces-
sible to a disabled employee. In this situation, the employee should
be able to stop the illegal constrution before it begins.
The Committee recognizes that this legislation's requirements
are substantially different from the other statutes governing pri-
vate sector employment that are enforced by the Commission. The
fact that most of the Commission's current professional employees
are unfamiliar with disability nondiscrimination requirements will
necessitate that the Commission provide extensive training for
staff.
The Committee expects the Commission will establish and imple-
ment employer training programs and otherwise provide technical
assistance to employers seeking to comply with the legislation's re-
quirements.
44
Effective date
Section 107 of the legislation specifies that title I shall become
effective 24 months after the date of enactment.
TITLE II-PUBLIC SERVICES
Title II of the legislation has two purposes. The first purpose is to
make applicable the prohibition against discrimination on the basis
of disability, currently set out in regulations implementing section
504 of the Rehabilitation Act of 1973, to all programs, activities,
and services provided or made available by state and local govern-
ments or instrumentalities or agencies thereto, regardless of
whether or not such entities receive Federal financial assistance.
Currently, section 504 prohibits discrimination only by recipients of
Federal financial assistance.
The second purpose is to clarify the requirements of section 504
for public transportation entities that receive Federal aid, and to
extend coverage to all public entities that provide public transpor-
tation, whether or not such entities receive Federal aid.
Extending a Federal prohibition against discrimination on the basis
of disability to all State and local governmental entities
Section 202 of the legislation extends the nondiscrimination
policy in section 504 of the Rehabilitation Act of 1973 to cover all
State and local governmental entities. Specifically, section 202 pro-
vides that no qualified individual with a disability shall, by reason
of such disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination by a department,
agency, special purpose district, or other instrumentality of a State
or a local government.
The forms of discrimination prohibited by section 202 are compa-
rable to those set out in the applicable provisions of titles I and III
of this legislation. It is the Committee's intent that section 202 and
other sections of the legislation be interpreted consistent with Alex-
ander V. Choate, 469 U.S. 287 (1985).
The Committee recognizes that the phrasing of section 202 in
this legislation differs from section 504 by virtue of the fact that
the phrase "solely by reason of his or her handicap" has been de-
leted. The deletion of this phrase is supported by the experience of
the executive agencies charged with implementing section 504. The
regulations issued by most executive agencies use the exact lan-
guage set out in section 202 in lieu of the language included in the
section 504 statute.
A literal reliance on the phrase "solely by reason of his or her
handicap" leads to absurd results. For example, assume that an
employee is black and has a disability and that he needs a reasona-
ble accommodation that, if provided, will enable him to perform
the job for which he is applying. He is the most qualified applicant.
Neverthless, the employer rejects the applicant because he is black
and because he has a disability.
In this case, the employer did not refuse to hire the individual
solely on the basis of his handicap-the employer refused to hire
him because of his disability and because he was black. Although
he might have a claim of race discrimination under title VII of the
45
Civil Rights Act, it could be argued that he would not have a claim
under section 504 because the failure to hire was not based solely
on his disability and as a result he would not be entitled to a rea-
sonable accommodation.
The Committee, by adopting the language used in regulations
issued by the executive agencies, rejects the results described
above. Court cases interpreting section 504 have also rejected such
reasoning. As the Tenth Circuit explained in Pushkin V. Regents of
University of Colorado, 658 F. 2d 1372, the fact that the covered
entity lists a number of factors to rejection in addition to the dis-
ability is not dispositive. In this case, the University stated that Dr.
Pushkin was rejected because of low interview scores. The court
stated that "it is not possible to extricate ratings from the reac-
tions to the handicap itself."
Morever, the interview ratings "as a general practice are not
necessarily controlling in the selection process." The question was
whether the reasons articulated for the rejection other than hand-
icap encompass unjustified consideration of the handicap itself" (Id.
at 1387). As stated by the court, the "issue is whether rejecting Dr.
Pushkin after expressly weighing the implication of his handicap
was justified."
If the plaintiff is qualified for the position in question, a rejection
which considered the disability as a factor would not be justified.
The existence of non-disability related factors in the rejection deci-
sions does not immunize employers. The entire selection procedure
must be reviewed to determine if the disability was improperly con-
sidered.
As used in this title, the term "qualified individual with a dis-
ability" means an individual with a disability who, with or without
reasonable modifications to rules, policies and practices, the remov-
al of architectural, communication, and transportation barriers, or
the provision of auxiliary aids and services, meets the essential eli-
gibility requirements for the receipt of services or the participation
in programs or activities provided by a department, agency, spcial
purpose district, or other instrumentality of a State or a local gov-
ernment.
The term "instrumentality of a state and local government" in-
cludes public transit authorities.
With regard to school bus operations by public entities, it is not
the intent of this Committee to require anything different under
this legislation than is currently required of school systems and
other entities receiving Federal financial assistance under section
504 of the Rehabilitation Act of 1973 (e.g., 34 CFR Part 104).
Agencies of a State, or a political subdivision of a State that pro-
vide school bus transportation are required to provide bus service
to children with disabilities equivalent to that provided to children
without disabilities (whether provided directly or by contract or
other arrangement with a private entity).
The school bus transportation provided to children with disabil-
ities must be provided in the most integrated setting possible. This
means that when a child with a disability requires transporation,
the school bus that serves his/her route should be accessible. This
does not mean that all school buses need to be accessible; only that
equal nonsegregated opportunities are provided to all children.
46
School bus operations, as defined in 49 CFRT 605.3(b) and the as-
sociated revisions established in Highway Safety Program Standard
No. 17, means transportation by Type I and II school bus vehicles
of school children, personnel, and equipment to and from school or
school-related activities.
Actions applicable to public transportation considered discriminatory
Definition
As used in title II, the term "public transportation" means trans-
portation by bus or rail, or by any other conveyance (other than air
travel) that provides the general public with general or special
service (including charter service) on a regular and continuing
basis, including service contracted through a private sector entity.
As used in title II, the term "public entity" includes the National
Railroad Passenger Corporation.
The Committee excluded transportation by air because the Con-
gress recently passed the Air Carrier Access Act, which was de-
signed to address the problem of discrimination by Air Carriers
and it is the Committee's expectation that regulations will be
issued that reflect congressional intent. However, this title applies
to the public entities' fixed facilities used in air travel, such as air-
port terminals, and to related services, such as ground transporta-
tion, provided by public entities.
It is not the Committee's intent to make the vehicle accessibility
provisions of this title applicable to vehicles donated to a public
entity. The Committee understands that it is not usual to donate
vehicles to a public entity. However, there could be instances
where someone could conceivably donate a bus to a public transit
operator in a will. In such a case, the transit operators should not
be prevented from accepting the gift.
The Committee does not intend that this limited exemption for
donated vehicles be used to circumvent the intent of the ADA. For
example, a local transit authority could not arrange to be the recip-
ient of donated inaccessible buses. This would be a violation of the
ADA.
As a general rule, all requirements for nondiscrimination apply
not only to the design of vehicles and facilities but to their oper-
ation as well. Thus, new fixed route buses must have lifts, and new
and key stations must have elevators or other means to ensure ac-
cessibility as necessary components for a transit authority to be in
compliance with the provisions of this title of the legislation.
Merely installing the access equipment is never sufficient by itself,
however; the lifts and elevators must also operate, be in good work-
ing order, and be available when needed for access in order for an
entity to be in compliance with the law.
The Committee believes that a strong commitment from a transit
authority's management team will ensure nondiscrimination in the
provision of transportation to people with disabilities. This includes
adequate training of maintenance personnel and bus operators,
sensitivity training of all personnel which stresses the importance
of providing transportation, and creative marketing strategies.
47
New buses, rail vehicles, and other fixed route vehicles
Section 203(b)(1) of the legislation specifies that it shall be consid-
ered discrimination, for purposes of this Act and for purposes of
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), for a
public entity to purchase or lease a new fixed route bus of any size,
a new intercity rail vehicle, a new light rail vehicle to be used for
public transportation, or any other new fixed route vehicle to be
used for public transportation and for which a solicitation by such
individual or entity is made later than 30 days after the date of
enactment of this Act, if such bus, rail, or other vehicle is not read-
ily accessible to and usable by individuals with disabilities, includ-
ing individuals who use wheelchairs.
This requirement is included to ensure that an accessible trans-
portation system is phased-in as new vehicles are purchased. It
makes no sense, at this point in time, to perpertuate continued in-
accessibility and to exclude persons with disabilities from the op-
portunity to use a key public service-transportation. Inaccessible
vehicles affect more than just individuals with disabilities' ability
to travel independently. It affects their ability to gain employment.
When such individuals are able to depend on an accessible trans-
portation system, one major barrier is removed which would pre-
vent them from joining the work force. This ability ultimately af-
fects our society as a whole. Accessible transportation also allows
individuals with disabilities to enjoy cultural, recreational, com-
mercial and other benefits that society has to offer.
Transportation affects virtually every aspect of American life.
Mainline services are geared to moving people to and from work,
school, stores, and other activities on schedules that reflect most
people's daily routines. It is false and discriminatory to suggest
that people with disabilities-who have the same needs as other
community residents-are not as interested in or worthy of using
transit services as people without disabilities.
The term "fixed route" means a bus system that operates on a
continuing and regular basis on a fixed pattern and schedule.
The term "new" means buses which are offered for first sale or
lease after manufacture without any prior use. Buses for which a
solicitation is made within 30 days after enactment of this legisla-
tion are not subject to the accessibility requirement and thus are
not required to have wheelchair lift equipment. However, buses
that are solicited for after 30 days from enactment of this legisla-
tion are covered by the accessibility provision and would have to
comply with the requirement that all newly purchased vehicles be
accessible to people with disabilities including wheelchair users.
The phrase "for which a solicitation by such individual or entity
is made" means when a public entity asks for bids from manufac-
turers to build buses or begins to offer to purchase or bid for the
purchase of new buses 30 days after enactment of this legislation.
The term "readily accessible to and usable by" is a term of art
that means the ability of individuals with disabilities, including in-
dividuals using wheelchairs, to enter into and exit and safely and
effectively use a vehicle used for public transportation.
Lifts or ramps and other equipment, and fold-up seats or other
wheelchair spaces with appropriate securement devices are among
48
the features necessary to make transit vehicles readily accessible to
and usable by individuals with disabilities. The requirement that a
vehicle is to be readily accessible obviously entails that each vehi-
cle is to have some spaces for individuals using wheelchairs or
other mobility aids; how many spaces per vehicles are to be made
available for wheelchairs is, however, a determination that depends
upon various factors, including the number of vehicles in the fleet,
the seat vacancy rates, and usage by people with disabilities.
The Committee intends, consistent with these factors, that the
determination of how many spaces must be available for wheel-
chair use should be flexible and generally left up to the provider,
provided that at least some seats on each vehicle are accessible.
Technical specifications and guidance regarding lifts and ramps,
wheelchair spaces, and securement devices are to be provided in
the minimum guidelines and regulations to be promulgated under
this legislation. These minimum guidelines should be consistent
with the Committee's desire for flexibility and decisionmaking by
the provider.
The Committee wishes to emphasize that the legislation uses the
phrase "including individuals who use wheelchairs" because of mis-
interpretations of the nature and extent of obligations under sec-
tion 504. The obligation to provide public transportation in a non-
discriminatory fashion applies to all persons with disabilities, in-
cluding people with sensory impairments and those with cognitive
impairments such as mental retardation. It is the Committee's
intent that the obligation to provide lift service applies, not only to
people who use wheelchairs, but also to other individuals who have
difficulty in walking. For example, people who use crutches, walk-
ers or three-wheeled mobility aids should be allowed to use a lift.
A public transit authority should develop training sessions to fa-
miliarize bus operators with the services that individuals with dis-
abilities may need. For example, assuring that people with vision
impairmants get off at the correct stop, training bus drivers how to
use the lift in a bus, and developing a program which would assist
people with mental retardation in how to use the transportation
system. Transit authorities should also be required to have written
materials available in a format accessible to people with vision im-
pairments and to make TDD numbers available to persons with
hearing and communication impairments.
Section 203(e) of the legislation provides temporary relief for
public entities from the obligations under section 203(b) where lifts
are unavailable. Specifically, with respect to the purchase of new
buses, a public entity may apply for, and the Secretary of Trans-
portation may temporarily relieve such entity from the obligation
to purchase new buses of any size that are readily accessible to and
usable by individuals with disabilities, if such public entity can
demonstrate the existence of four factors:
(1) That the initial solicitation for new buses made by the
public entity specified that all new buses were to be lift-
equipped and were to be otherwise accessible to and usable by
individuals with disabilities;
(2) The unavailability from any qualified manufacturer of
hydraulic, electro-mechanical, or other lifts for such new buses;
49
(3) That the public entity seeking temporary relief has made
good faith efforts to locate a qualified manufacturer to supply
the lifts to the manufacturer of such buses in sufficient time to
comply with such solicitation; and
(4) That any further delay in purchasing new buses neces-
sary to obtain such lifts would significantly impair transporta-
tion services in the community served by the public entity.
Section 203(f) of the legislation makes it clear that any relief
granted under subsection (e) must be limited in duration by a speci-
fied date. In addition, if, at any time, the Secretary of Transporta-
tion has reasonable cause to believe that such relief was fraudu-
lently applied for, the Secretary of Transportation shall cancel
such relief, if such relief is still in effect, and take other steps that
he or she considers appropriate.
Further, the appropriate committees of the Congress must be no-
tified of any such relief granted. The appropriate committees in the
Senate include the Committee on Commerce, Science, and Trans-
portation and the Committee on Labor and Human Resources.
Used vehicles
Section 203(b)(2) of the legislation specifies that if a public entity
purchases or leases a used vehicle after the date of enactment of
this Act, such public entity shall make demonstrated good faith ef-
forts to purchase or lease a used vehicle that is readily accessible to
and usable by individuals with disabilities, including individuals
who use wheelchairs.
The term "used vehicle" means a vehicle that was purchased
before a date which is at least 30 days prior to the enactment of
this legislation. Frequently small and rural communities do not
purchase new buses. Many of these communities buy used buses
that are less expensive than new buses in an effort to provide
transportation to individuals in these areas without expending
large sums of money. Purchasers of used vehicles are required by
this legislation to make "demonstrated good faith efforts" to locate
accessible used vehicles.
The phrase "demonstrated good faith efforts" is intended to re-
quire a nationwide search and not a search limited to a particular
region. For instance, it would not be enough for a transit operator
to contact only the manufacturer where the transit authority usu-
ally does business to see if there are accessible used buses. It might
involve the transit authority advertising in a trade magazine, i.e.,
Passenger Transport, or contacting the transit trade association,
American Public Transit Association (APTA), to determine wheth-
er accessible used vehicles are available.
It is the Committee's expectation that as the number of buses
with lifts increases, the burden on the transit authority to demon-
strate its inability to purchase accessible vehicles despite good faith
efforts will become more and more difficult to satisfy.
Remanufactured vehicles
Section 203(b)(3) of the legislation specifies that if a public entity
remanufacturers a vehicle, or purchases or leases a remanufac-
tured vehicle, SO as to extend its useful lift for 5 years or more, the
vehicle shall, to the maximum extent feasible, be readily accessible
50
to and usable by individuals with disabilities, including individuals
who use wheelchairs.
The phrase "remanufactures a vehicle or purchases or leases a
remanufactured vehicle so as to extend its usable life for 5 years or
more" means that the vehicle is stripped to its frame and is then
rebuilt. It does not simply mean an engine overhaul. The addition-
al cost to make a remanufactured vehicle accessible would be com-
parable to the cost of making a new vehicle accessible. Therefore,
remanufactured vehicles should be treated the same as new vehi-
cles.
The phrase "to the maximum extent feasible" is included in
order to provide clarification that the Committee does not intend to
require accessibility for remanufactured vehicles if it would destroy
the structural integrity of the vehicle.
Paratransit as a supplement to fixed route public transportation
system
Section 203(c) of the legislation specifies that if a public entity
operates a fixed route public transportation system to provide
public transportation, it shall be considered discrimination, for pur-
poses of this Act and for purpose of section 504 of the Rehabilita-
tion Act of 1973 (29 U.S.C. 794), for a public transit entity to fail to
ensure the provision of paratransit or other special transporation
services sufficient to provide a comparable level of services as is
provided to individuals using fixed route public transporation to in-
dividuals with disabilities, including individuals who use wheel-
chairs, who cannot otherwise use fixed route public transporation
and to other individuals associated with such individuals with dis-
abilities in accordance with service criteria established under rqu-
lations promulgated by the Secretary of transportation unless the
public transit entity can demonstrate that the provision of para-
transit or other special transportation services would impose an
undue financial burden on the public transit entity.
If the provision of comparable paratransit or other special tran-
sporation services would impose an undue financial burden on the
public transit entity, such entity must provide paratransit and
other special transportation services to the extent that providing
such services would not impose an undue financial burden on such
entity.
Regulations promulgated by the Secretary of Transportation to
determine what constitutes an undue financial burden may include
a flexible numerical formula that incorporates appropriate local
characteristics such as population. Although the legislation men-
tions only population as an example of local characteristics that
might be reflected is such a formula, other characteristics appropri-
ate to consider include population density, level of paratransit serv-
ices currently being provided in the area, residential patterns, and
the interim degree of accessibility of fixed route transit service.
Notwithstanding the above provisions, the Secretary may re-
quire, at the discretion of the Secretary, public transit authority to
provide paratransit services beyond the amount determined by
such formula.
It is the Committee's intent that any criteria developed by the
Secretary regarding the "undue financial burden" proviso, includ-
51
ing the use of a formula, be consistent with that portion of the
ADAPT V. Skinner decision handed down on July 24, 1989 by the
Third Circuit Court of Appeals (Nos. 88-1139, 88-1177, and 88-1178)
concerning the three percent "safe harbor" provision (pages 38-46
of the slip opinion).
The Committee recognizes that there will always be a need for
paratransit services. Paratransit services must be available to indi-
viduals who are unable to use mainline public transportation. By
"unable to use" the committee means to include those individuals
who cannot gain access to the public transportation systems. The
reasons for this inability to access the transit system could be be-
cause of the nature and severity of the individual's physical or
mental disability or because of other factors determined by the
local community, such as the lack of curb cuts which would pre-
vent individuals with certain disabilities from traveling to a bus
stop.
In developing the criteria that will be used to determine which
individuals with disabilities are unable to use the transportation
services, it is important to significantly involve organizations repre-
senting people with disabilities and individual consumers with dis-
abilities. The Committee wishes to make it clear that criteria devel-
oped to determine eligibility for paratransit e.g., inability to use
mainline transportation services shall not be used to prevent, limit,
or otherwise exclude such individuals from using mainline services
if they so choose.
The term "paratransit or other special transportation services"
means a transporation system that is available to those individuals
who are unable to use the transportation system available to other
people. This has been characteristically provided by transit au-
thorities or contracted out to private companies and uses small
buses or vans. Usually, the services is demand responsive or door-
to-door service.
The Committee does not intend to require a public transit au-
thority to actually provide paratransit or other special transporta-
tion services if such services are provided by other entities serving
the same geographical location as is served by the public transit
authority providing the fixed route system. However, the Commit-
tee wishes to emphasize that the paratransit or other special trans-
portation services provided must be consistent with the require-
ments set out in this legislation and a public transit entity must be
ultimately accountable for ensuring that the services are being pro-
vided in compliance with this legislation.
The following minimum service criteria should apply to special
paratransit service systems that are used to supplement a fixed
route accessible system:
a. Eligibility: All persons with disabilities unable to use the
fixed route vehicles and their companions shall be eligible to
use the special service.
b. Response time: The service should be provided to a person
with a disability with a comparable response time that a
person without a disability would receive.
C. Restrictions or priorities based on trip purpose: There
shall not be priorities or restrictions based on trip purpose on
users of the special service.
52
d. Fares: The fare for a trip charged to a user of the special
service system shall be comparable to the fare for a trip of
similar length, at a similar time of day, charged to a user of
the fixed route service.
e. Hours and days of service: The special service shall be
available throughout the same hours of days as the fixed route
service.
f. Service area: The special service shall be available
throughout the service area in which the fixed route service is
provided. Service to points outside this service area served by
extended express or commuter bus service shall be available to
persons with disabilities in an accessible manner.
The term "comparable level of services" means that when all as-
pects of a transportation system are analyzed, equal opportunities
to use the transportation system exist for all persons-individuals
with and without disabilities. The essential test to meet is whether
the system is providing a level of service that meets the needs of
persons with and without disabilities to a comparable extent.
For instance, if a person with a disability calls for a ride on a
demand response system for the general public-and an accessible
bus arrives within fifteen minutes-that is equal treatment if a
person without a disability has to wait for the bus for an equiva-
lent amount of time. However, if the bus arrives and it does not
have a lift and one is needed, or if a disabled person has to wait
considerably more time than a non-disabled person, then equal op-
portunity to use the demand responsive public transportation
system is not being provided.
The term "other individuals associated with such individuals
with disabilities" means the companions of those individuals who
cannot otherwise use fixed route bus service whether they are part
of the person's family, or friends of the individual with a disability.
For instance, if a father wanted to take his children to the ZOO and
paratransit services are the only means of transportation that
father is qualified for, he should be allowed to take his children on
the paratransit bus. He should not be relegated to the paratransit
by himself while his children are required to take fixed route
public transportation.
If a man and woman were dating and the woman could not oth-
erwise use public fixed route transportation then they should be
able to use the paratransit services to and from that date. Like-
wise, if an individual had out of town guests and one of the out of
town guests cannot use the fixed route bus system and is qualified
to use the paratransit services of the state where they are visiting,
then everyone in the group should be allowed to use the paratran-
sit service to go sightseeing.
The Committee intends that during the interim period in which
substantial numbers of fixed route buses are not accessible, the
public transit authorities form an advisory committee to ensure the
participation of individuals with disabilities in the planning, devel-
opment, and implementation stages of the transportation system.
One way to do this is by instituting an advisory group. Careful con-
sideration should be given to the composition of the advisory group
and every effort should be made to have adequate representation
from all elements of the disability community.
53
This advisory group is an essential component to the develop-
ment of standards which must then appear in the authorities' tran-
sit plan. Cooperation between the disability community and the
transit operators is imperative during the period of time in which
the system will be in transition, from an inaccessible system to an
accessible one.
The transition options chosen will depend, to a certain extent, on
the system involved. Some systems will require the broadest use of
the existing accessible buses. For instance, it may be advantageous
for a small system to require that all the accessible buses be in
service during both off-peak and peak hours and at regular inter-
vals so as to provide some service to the most people. A larger
system might choose to make key lines accessible or ensure that
the feeder lines are accessible. In this way, the system will be pro-
viding meaningful transportation at least to a portion of the indi-
viduals that need the access of the system.
The mainline interim service agreed upon by the advisory Com-
mittee must be available throughout the regular service area and
during the normal service hours. This service, to the extent feasi-
ble, must meet a number of criteria as to convenience and compa-
rability to regular mainline service (e.g., no restriction as to trip
purpose, wait, fares and travel time).
Regardless of the mainline accessible transportation that will be
available, it is important that a paratransit service be in place to
ensure adequate access in those areas where accessible mainline
service cannot yet be achieved. It is equally as important to realize
that paratransit will always be necessary for those individuals who
for legitimate reasons are unable to use mainline accessible service.
The local transit authority must be sincere in its efforts to co-
ordinate special services in the locality to meet the service stand-
ards. The paratransit services should meet the service criteria both
during the transition phase and thereafter.
Community operating demand responsive systems for the general
public
Section 203(d) of the legislation specifies that if a public entity
operates a demand responsive system that is used to provide public
transportation for the general public, it shall be considered dis-
crimination, for purposes of this Act and section 504 of the Reha-
bilitation Act of 1973 (29 U.S.C. 794), for such public entity to pur-
chase or lease a new vehicle, for which a solicitation is made later
than 30 days after the date of enactment of this Act, that is not
readily accessible to and usable by individuals with disabilities, in-
cluding individuals who use wheelchairs, unless the entity can
demonstrate that such system, when viewed in its entirety, pro-
vides a level of service to individuals with disabilities equivalent to
the general public.
The intent of the Committee is to provide flexibility for rural and
small urban communities that only have a demand responsive
system for everyone. These systems are available to people without
disabilities as well as to those with disabilities. The Committee in-
tends that the time delay between a telephone call to access the
demand responsive system and the pick up of the individual is not
54
to be greater because the individual needs a lift or ramp or other
accommodation to access the vehicle.
The term "demand responsive service" means service where the
individual must request transportation service before it is ren-
dered. This fact distinguishes this type of service from fixed route
service.
With fixed route service, no action is needed by an individual to
initiate public transportation. If an individual is at a bus stop at
the time the bus is scheduled to appear then that individual will be
able to access the transportation system. With demand-responsive
service, an additional step must be taken by the individual before
he or she can ride the bus, i.e., the individual must make a tele-
phone call. In this type of service, the transit provider will know
ahead of time whether or not an accessible vehicle is necessary.
Therefore, all demand responsive vehicles need not be accessible as
long as the level of service provided to individuals with disabilities
is equal to that provided to those without disabilities.
The phrase "when viewed in its entirety, provides a level of serv-
ice to individuals with disabilities equivalent to the general public"
means that when all aspects of a transportation system are ana-
lyzed, equal opportunities for each individual with a disability to
use the transportation system must exist.
The Committee wishes to make it clear that the authority of the
Secretary to grant temporary relief where lifts are unavailable ap-
plies to communities operating demand responsive as well as fixed
route bus systems.
New facilities
Section 203(g) of the legislation specifies that for purposes of this
Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), it shall be considered discrimination for a public entity to
build a new facility that will be used to provide public transporta-
tion services, including bus service, intercity rail service, rapid rail
service, commuter rail service, light rail service, and other service
used for public transportation that is not readily accessible to and
usable by individuals with disabilities, including individuals who
use wheelchairs.
The meaning of the key phrases used in this subsection are de-
scribed subsequently in the section of the report pertaining to title
III of the Act.
Alterations of existing facilities
Section 203(h) of the legislation specifies that, with respect to a
facility or any part thereof that is used for public transportation
and that is altered by, on behalf of, or for the use of a public entity
in a manner that affects or could affect the usability of the facility
or part thereof, it shall be considered discrimination, for purposes
of this title and section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794), for such individual or entity to fail to make the alter-
ations in such a manner that, to the maximum extent feasible, the
altered portion of the facility is readily accessible to and usable by
individuals with disabilities, including individuals who use wheel-
chairs.
55
If such public entity is undertaking major structural alterations
that affect or could affect tthe usability of the facility (as defined
under criteria established by the Secretary of Transportation) such
public entity shall also make any additional alterations that are
necessary to ensure that, to the maximum extent feasible, a path of
travel from a primary entrance, and a reasonable number of bath-
rooms, telephones, and drinking fountains serve such path of travel
are readily accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.
The key phrases used in this subsection are described subse-
quently under the section of the report concerning title III of the
legislation.
Existing facilities
Section 203(i)(1) of the legislation specifies that with respect to
existing facilities used for public transportation, it shall be consid-
ered discrimination, for purposes of this title and section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), for a public entity to fail
to operate such public transportation program or activity conduct-
ed in such facilities so that, when viewed in the entirety, it is read-
ily accessible to and usable by individuals with disabilities, includ-
ing individuals who use wheelchairs.
This is the same standard that currently applies under section
504 regulations issued by the Department of Transportation.
The standards set out above do not apply to stations in intercity
rail systems, and rapid rail, commuter rail and light rail systems.
Such stations are governed by section 203(i)(3) of the legislation,
which specifies that for purposes of this Act and section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), it shall be considered dis-
crimination for a public entity to fail to make stations in intercity
rail systems and key stations in rapid rail, commuter rail and light
rail systems readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.
Intercity rail systems, including the National Railroad Passenger
Corporation, must be made accessible as soon as practicable, but in
no event later than 20 years after the date of enactment. Key sta-
tions in rapid rail, commuter rail, and light rail systems must be
made accessible as soon as practicable but in no event later than 3
years after the date of enactment of this Act, except that the time
limit may be extended by the Secretary of Transportation up to 20
years for extraordinarily expensive structural changes to, or re-
placement of, existing facilities necessary to achieve accessibility.
The Committee intends that the term "key stations" shall in-
clude stations that have high ridership, and stations that serve as
transfer and feeder stations. The public transit authority shall de-
velop a plan for complying with the requirement that reflects con-
sultation with individuals with disabilities affected by such plan
and that establishes milestones for achievement of this require-
ment.
The phrase "key stations" includes high ridership stations since
individuals. with disabilities have the same travel objectives as indi-
viduals without disabilities. Stations may have high ridership be-
cause they are located in business and employment districts, cul-
56
tural, educational, recreational and entertainment centers, or are
transfer points from other modes of transportation.
In addition to high ridership stations, "feeder stations" should be
designated as "key" because they generally are located in suburban
areas. Making these stations accessible will provide individuals
with disabilities who live in these areas the ability to commute.
Exactly what stations will be determined "key" is a decision best
left to the local community. The Committee does not intend to
mandate a process to identify "key stations" except that-in devel-
oping the criteria that will be used to determine which stations
will be "key"-it is important to significantly involve organizations
representing people with disabilities and individual consumers with
disabilities.
It is the Committee's understanding the settlement agreements
recently reached in New York City specifying approximately 38
particular stations out of over 465 stations in the system and in
Philadelphia where 11 out of approximately 53 stations on the high
speed line and 31 out of approximately 172 commuter rail stations
are to be considered "key stations" are in full compliance with the
criteria and procedures set out above.
The phrase "as soon as practicable" is included in order to create
an obligation to attain accessibility before the specified period of
time has elapsed. It is the intent of this Committee that this re-
quirement would prohibit a transit authoriety from delaying the
installation of an elevator, if capital funds were available and the
installation could otherwise be accomplished, could be just because
the absolute time limit is not up.
The phrase "extraordinarily expensive structural change to or
replacement of existing facilities" is intended to create a narrow
exemption for the facilities where the only means of creating acces-
sibility would be to raise the entire platform of a station or to in-
stall an elevator. The costs to accomplish these structural changes
can be extremely costly.
In issuing regulations for the enforcement of this section, the
Secretary of Transportation may prescribe a procedure for the reso-
lution of disputes when a local rail transit operator and representa-
tives of the disability community are unable to reach mutual agree-
ment.
Intercity, rapid, light, and commuter rail systems
Section 203(i)(2) of the legislation specifies that with respect to
vehicles operated by intercity, light, rapid and commuter rail sys-
tems, for purposes of this title and section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794), it shall be considered discrimination for
a public entity to fail to have at least one car per train that is ac-
cessible to individuals with disabilities, including individuals who
use wheelchairs, as soon as practicable but in any event in no less
than 5 years.
It is the Committee's expectation that the regulations issued by
the Secretary of Transportation will ensure that the car that is ac-
cessible stops at an appropriate place in the station that is level
with the car and that signage is included to indicate where such
car will stop.
57
Regulations
Section 204 of the legislation specifies that not later than one
year after the date of enactment of this Act, the Attorney General
shall promulgate regulations in an accessible format that imple-
ment this title (other than section 303), and such regulations shall
be consistent with this title and with the coordination regulations
under part 41 of title 28 Code of Federal Regulations (as promulgat-
ed by the Department of Health, Education, and Welfare on Janu-
ary 13, 1978), applicable to recipients of Federal financial assist-
ance under section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794) except, with respect to "program accessibility, existing facili-
ties" and "communications" such regulations shall be consistent
with applicable portions of regulations and analysis relating to
Federally conducted activities under section 504 of the Rehabilita-
tion Act of 1973 (part 39 of title 28 of the Code of Federal Regula-
tions).
Section 204(b) of the legislation specifies that not later than one
year after the date of enactment of this Act, the Secretary of
Transportation shall promulgate regulations in an accessible
format that include standards applicable to facilities and vehicles
covered under section 203.
Such standards shall be consistent with the minimum guidelines
and requirements issued by the Architectural and Transportation
Barriers Compliance Board in accordance with section 504.
Enforcement
Section 205 of the legislation specifies that the remedies, proce-
dures, and rights set forth in section 505 of the Rehabilitation Act
of 1973 (29 U.S.C. 794a) shall be available with respect to any indi-
vidual who believes that he or she is being subjected to discrimina-
tion on the basis of disability in violation of any provisions of this
Act, or regulations promulgated under section 204, concerning
public services.
It is the Committee's intent that enforcement of section 202 of
the legislation should closely parallel the Federal government's ex-
perience with section 504 of the Rehabilitation Act of 1973. The At-
torney General should use section 504 enforcement procedures and
the Department's coordination role under Executive Order 12250 as
models for regulation in this area.
The Committee envisions that the Department of Justice will
identify appropriate Federal agencies to oversee compliance activi-
ties for State and local government. As with section 504, these Fed-
eral agencies, including the Department of Justice, will receive, in-
vestigate, and where possible, resolve complaints of discrimination.
If a Federal agency is unable to resolve a complaint by voluntary
means, the Federal government would use the enforcement sanc-
tions of section 505 of the Rehabilitation Act of 1973. Because the
fund termination procedures of section 505 are inapplicable to
State and local government entities that do not receive Federal
funds, the major enforcement sanction for the Federal government
will be referral of cases by these Federal agencies to the Depart-
ment of Justice.
58
The Department of Justice may then proceed to file suits in Fed-
eral district court. As with section 504, there is also a private right
of action for persons with disabilities. Again, consistent with sec-
tion 504, it is not our intent that persons with disabilities need to
exhaust Federal administrative remedies before exercising the pri-
vate right of action.
Effective date
In accordance with section 206 of the legislation, title II of the
bill shall become effective 18 months after the date of enactment
except that the provisions of the bill applicable to the purchase of
new fixed route vehicles shall become effective on the date of en-
actment of this Act.
TITLE III-PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY
PRIVATE ENTITIES
Section 504 of the Rehabilitation Act of 1973 prohibits Federal
agencies and recipients of Federal financial assistance from dis-
criminating against persons with disabilities. The purpose of title
III of the legislation is to extend these general prohibitions against
discrimination to privately operated public accommodations and to
bring individuals with disabilities into the economic and social
mainstream of American life. Title III fulfills these purposes in a
clear, balanced, and reasonable manner.
Title III is not intended to govern any terms or conditions of em-
ployment by providers of public accommodations or potential
places of employment; employment practices are governed by title I
of this legislation.
Title III also prohibits discrimination in public transportation
services provided by private entities.
Scope of coverage of public accommodations
Section 301(3) of the legislation sets forth the definition of the
term "public accommodation." The following privately operated en-
tities are considered public accommodations for purposes of title
III, if the operations of such entities affect commerce:
(1) An inn, hotel, motel, or other similar place of lodging,
except for an establishment located within a building that con-
tains not more than five rooms for rent or hire and that is ac-
tually occupied by the proprietor of such establishment as the
residence of such proprietor;
(2) A restaurant, bar, or other establishment serving food or
drink;
(3) A motion picture house, theater, concert hall, stadium, or
other place of exhibition or entertainment;
(4) An auditorium, convention center, or lecture hall;
(5) A bakery, grocery store, clothing store, hardware store,
shopping center, or other similar retail sales establishment;
(6) A laundromat, dry-cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral parlor, gas sta-
tion, office of an accountant or lawyer, pharmacy, insurance
office, professional office of a health care provider, hospital, or
other similar service establishment;
59
(7) A terminal used for public transportation;
(8) A museum, library, gallery, and other similar place of
public display or collection;
(9) A park or zoo;
(10) A nursery, elementary, secondary, undergraduate, or
postgraduate private school;
(11) A day care center, senior citizen center, homeless shel-
ter, food bank, adoption program, or other similar social serv-
ice center; and
(12) A gymnasium, health spa, bowling alley, golf course, or
other similar place of exercise or recreation.
The twelve categories of entities included in the definition of the
term "public accommodation" are exhaustive. However, within
each of these categories, the legislation only lists a few examples
and then, in most cases, adds the phrase "other similar" entities.
The Committee intends that the "other similar" terminology
should be construed liberally consistent with the intent of the legis-
lation that people with disabilities should have equal access to the
array of establishments that are available to others who do not
currently have disabilities.
For example, the legislation lists "golf course" as an example
under the category of "place of exercise or recreation." This does
not mean that only driving ranges constitute "other similar estab-
lishments." Tennis courts, basketball courts, dance halls, play-
grounds, and aerobics facilities, to name a few other entities are
also included in this category. Other entities covered under this
category include video arcades, swimming pools, beaches, camping
areas, fishing and boating facilities, and amusement parks.
Similarly, although not expressly mentioned, bookstores, video
stores, stationary stores, pet stores, computer stores, and other
stores that offer merchandise for sale or rent are included as retail
sales establishments.
The phrase "privately operated" is included to make it clear that
establishments operated by Federal, State, and local governments
are not covered by this title. Of course an establishment operated
by a private entity which is otherewise covered by this title that
also receives Federal, State, or local funds is still covered by this
title.
Only nonresidential entities or portions of entities are covered by
this title. For example, in a large hotel that has a residential apart-
ment wing, the apartment wing would be covered by the Fair
Housing Act, but not this title. The nonresidential accommodations
in the rest of the hotel would be covered by this title. Although in-
cluded in the definition of public accommodations, homeless shel-
ters are subject to the provisions of this title only to the extent
that they are not covered by the Fair Housing Act, as amended in
1988.
Private schools, including elementary and secondary schools, are
covered by this title. The Committee does not intend, however, that
compliance with this legislation requires a private school to provide
a free appropriate education or develop an individualized education
program in accordance with regulations implementing section 504
of the Rehabilitation Act of 1973 (34 CFR Part 104) and regulations
implementing part B of the Education of the Handicapped Act (34
60
CFR Part 300). Of course, if a private school is under contract with
a public entity to provide a free appropriate public education, it
must provide such education in accordance with section 504 and
part B.
The term "commerce" is defined in section 301(1) of the legisla-
tion to mean travel, trade, traffic, commerce, transportation, or
communication among the several States, or between any foreign
country or any territory or possession and any State or between
points in the same state but through another state or foreign coun-
try.
Prohibition of discrimination by public accommodations
Section 302(a) of the legislation specifies that no individual shall
be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advan-
tages, and accommodations of any place of public accommodation.
"Full and equal enjoyment" does not encompass the notion that
persons with disabilities must achieve the identical result or level
of achievement of nondisabled persons, but does mean that persons
with disabilities must be afforded equal opportunity to obtain the
same result.
Section 302(b)(1) of the legislation specifies general forms of dis-
crimination prohibited by this title. These provisions are consistent
with the general prohibitions which were included in title I of S.
933, as originally introduced. As explained previously in the report,
the general prohibitions title has been deleted by the Substitute.
Sections 302(b)(1)(A) (i), (ii), and (iii) of the legislation specify that
it shall be discriminatory:
To subject an individual or class of individuals on the basis
of disability or disabilities of such individual or class, directly,
or through contractural, licensing, or other arrangements, to a
denial of the opportunity of the individual or class to partici-
pate in or beanefit from the goods, services, facilities, privi-
leges, advantages, and accommodations of an entity;
To afford such an opportunity that is not equal to that af-
forded other individuals; or
To provide such an opportunity that is different or separate
from that provided to other individuals, unless such action is
necessary to provide the individual or class of individuals with
an opportunity that is as effective as that provided to others.
Section 302(b)(1)(B) of the legislation specifies that goods, serv-
ices, privileges, advantages, accommodations, and services shall be
afforded to an individual with a disability in the most integrated
setting appropriate to the needs of the individual.
Section 302(b)(1)(C) of the legislation specifies that notwithstand-
ing the existence of separate or different programs or activities
provided in accordance with this section, an individual with a dis-
ability shall not be denied the opportunity to participate in such
programs or activities that are not separate or different.
Taken together, these provisions are intended to prohibit exclu-
sion and segregation of individuals with disabilities and the denial
of equal opportunities enjoyed by others based on, among other
things, presumptions, patronizing attitudes, fears, and stereotypes
above individuals with disabilities. Consistent with these standards,
61
covered entities are required to make decisions based on facts ap-
plicable to individuals and not on the basis of presumptions as to
what a class individuals with disabilities can or cannot do.
The Committee wishes to emphasize that these provisions should
not be construed to jeopardize in any way the continued viability of
separate private schools providing special education for particular
categories of children with disabilities, sheltered workshops, special
recreational programs, and other similar programs.
At the same time, the Committee wishes to reaffirm that individ-
uals with disabilities cannot be denied the opportunity to partici-
pate in programs that are not separate or different. This is an im-
portant and over-arching principle of the Committee's bill. Sepa-
rate, special, or different programs are designed to make participa-
tion by persons with disabilities possible. Such programs are not in-
tended to restrict the participation of disabled persons in ways that
are appropriate to them.
For example, a blind person may wish to decline participating in
a special museum tour that allows persons to touch sculptures in
an exhibit and instead tour the exhibit at his own pace with the
museum's recorded tour. It is not the intent of this title to require
the blind person to avail him or herself of the special tour. The
Committee intends that modified participation for persons with dis-
abilities be a choice but not a requirement.
In addition, it would not be a violation of this title for an estab-
lishment to offer recreational programs specially designed for chil-
dren with mobility impairments. However, it would be a violation
of this title if the entity then excluded such children from other
recreational services made available to nondisabled children, or re-
quired children with disabilities to attend only designated pro-
grams.
Section 302(b)(1)(D) of the legislation specifies that an individual
or entity shall not, directly, or through contractual or other ar-
rangements, utilize standards or criteria or methods of administra-
tion that have the effect of discriminating on the basis of disability
or that perpetuate the discrimination of others who are subject to
common administrative control. This provision is identical to sec-
tion 102(b)(3) of the bill, which was discussed previously in the
report.
Section 302(b)(1)(E) of the legislation specifies that it shall be dis-
criminatory to exclude or otherwise deny equal goods, services,
privileges, advantages, and accommodations, or other opportunities
to an individual or entity because of the known disability of an in-
dividual with whom the individual or entity is known to have a re-
lationship or association. This provisions is comparable to section
102(b)(4) of the legislation, which was discussed previously in the
report.
Section 302(b)(2) of the legislation includes specific applications of
the general prohibition against discrimination in section 302(a) and
the general prohibitions set out in section 302(b)(1) of the legisla-
tion. The Committee wishes to emphasize that the specific provi-
sions contained in title III, including the exceptions and terms of
limitation, control over the more general provisions in section
302(a) and section 302(b)(1) to the extent there is any apparent con-
flict.
62
Section 302(b)(2)(A)(i) of the legislation specifies that the term
"discrimination" includes the imposition or application of eligibil-
ity criteria that screen out or tend to screen out an individual with
a disability or any class of individuals with disabilities from fully
and equally enjoying any goods, services, facilities, privileges, ad-
vantages, and accommodations, unless such criteria can be shown
to be necessary for the provision of the goods, services, facilities,
privileges, advantages, or accommodations being offered.
As explained above, it is a violation of this title to exclude per-
sons with disabilities. For example, it would be a violation for a
grocery store to impose a rule that no blind persons would be al-
lowed in the store, or for a drugstore to refuse to serve deaf people.
It also would be a violation for such an establishment to invade
such people's privacy by trying to identify unnecessarily the exist-
ence of a disability, as, for example, if the credit application of a
department store were to inquire whether an individual has epilep-
sy, has ever had been hospitalized for mental illness, or has other
disability.
Similarly, it can constitute a violation to impose criteria that
limit the participation of people with disabilities, as for example,
by requiring that individuals with Down syndrome can only be
seated at the counter, but not the table-seating section of a diner.
And it would be a violation to adopt policies which impose addi-
tional requirements or burdens upon people with disabilities not
applied to other persons. Thus, it would be a violation for a theater
or restaurant to adopt a policy specifying that individuals who use
wheelchairs must be chaperoned by an attendant.
In addition, this subsection prohibits the imposition of criteria
that "tend to" screen out an individual with a disability. This con-
cept, drawn from current regulations under Section 504 (See, e.g.
45 C.F.R. 84.13), makes it discriminatory to impose policies or crite-
ria that, while not creating a direct bar to individuals with disabil-
ities, diminish such individuals' chances of participation.
Such diminution of opportunity to participate can take a number
of different forms. If, for example, a drugstore refuses to accept
checks to pay for prescription drugs unless an individual presents a
driver's license, and no other form of identification is acceptable
the store is not imposing a criterion that identifies or mentions dis-
ability. But for many individuals with visual impairments, and var-
ious other disabilities, this policy will operate to deny them access
to the service available to other customers; people with disabilities
will be disproportionately screened out.
Section 302(b)(2)(A)(ii) of the legislation specifies that discrimina-
tion includes a failure to make reasonable modifications in policies,
practices, and procedures when such modifications may be neces-
sary to afford such goods, services, facilities, privileges, advantages,
and accommodations unless the entity can demonstrate that
making such modifications would fundamentally alter the nature
of such goods, services, facilities, privileges, advantages, and accom-
modations.
For example, a physician who specializes is treating burn victims
could not refuse to treat the burns of a deaf person because of his
or her deafness. However, such a physician need not treat the deaf
individual if he or she does not have burns nor need the physician
63
provide other types of medical treatment to individuals with dis-
abilities unless he or she provides other types of medical treatment
to nondisabled invididuals.
Thus, nothing in this legislation is intended to prohibit a physi-
cian from providing the most appropriate medical treatment in the
physician's judgment or from referring an individual with a disabil-
ity to another physician when the physician would make such a re-
ferral of an individual who does not have a disability.
Similarly, a drug rehabilitation clinic could refuse to treat a
person who was not a drug addict but could not refuse to treat a
person who was a drug addict simply because the patient tests posi-
tive for HIV.
A public accommodation which does not allow dogs must modify
that rule for a blind person with a seeing-eye dog, a deaf person
with a hearing ear dog, or a person with some other disability who
uses a service dog.
Section 302(b)(2)(A)(iii) of the legislation specifies that discrimina-
tion includes a failure to take such steps as may be necessary to
ensure that no individual with a disability is excluded, denied serv-
ices, segregated or otherwise treated differently than other individ-
uals because of the absence of auxiliary aids and services, unless
the entity can demonstrate that taking such steps would funda-
mentally alter the nature of the goods, services, facilities, advan-
tages, and accommodations being offered or would result in an
undue burden.
The phrase "undue burden" is the limit applied under the ADA
upon the duty of places of public accommodation to provide auxilia-
ry aids and services. It is analogous to the phrase "undue hard-
ship" used in the employment title of ADA (see previous discussion
in the report) and is derived from section 504 and regulations
thereunder. The determination of whether the provision of an aux-
iliary 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 determinng "undue hardship."
The fact that the provision of any particular auxiliary aid would
result in a undue burden does not relieve the business from the
duty to furnish an alternative auxiliary aid, if available, that
would not result in such a burden.
The term "auxiliary aids and services" is defined in section 3(1)
of the legislation. The definition includes illustrations of aids and
services that may be provided. The list is not meant to be exhaus-
tive; rather, it is intended to provide general guidance about the
nature of the obligation.
The Committee expects that the covered entity will consult with
the individual with a disability before providing a particular auxil-
iary aid or service. Frequently, an individual with a disability re-
quires a simple adjustment or aid rather than an expensive or
elaborate modification often envisioned by a covered entity.
For example, auxiliary aids and services for blind persons in-
clude both readers and the provision of brailled documents (see
below). A restaurant would not be required to provide menus in
braille if it provided a waiter or other person who was willing to
read the menu. Similarly, a bookstore need not braille its price
tags, stock brailled books, or lower all its shelves so that a person
64
who uses a wheelchair can reach all the books. Rather, a salesper-
son can tell the blind person how much an item costs, make a spe-
cial order of brailled books, and reach the books that are out of the
reach of the person who uses a wheelchair.
The legislation specifies that auxiliary aids and services includes
qualified interpreters or other effective methods of making aurally
delivered materials available to individuals with hearing impair-
ments. Other effective methods may include: telephone handset
amplifiers, telephones compatible with hearing aids, telecommuni-
cation devices for the deaf, closed captions, and decoders.
For example, it would be appropriate for regulations issued by
the Attorney General to require hotels of a certain size to have de-
coders for closed captions available or, where televisions are cen-
trally controlled by the hotel, to have a master decoder.
It is also the Committee's expectation that regulations issued by
the Attorney General will include guidelines as to when public ac-
commodations are required to make available portable telecom-
munication devices for the deaf. In this regard, it is the Commit-
tee's intent that hotels and other similar establishments that offer
nondisabled individuals the opportunity to make outgoing calls, on
more than an incidental convenience basis, to provide a similar op-
portunity for hearing impaired customers and customers with com-
munication disorders to make such outgoing calls by making avail-
able a portable telecommunication device for the deaf.
It is not the Committee's intent that individual retail stores, doc-
tors' offices, restaurants or similar establishments must have tele-
communications devices for the deaf since people with hearing im-
pairments will be able to make inquiries, appointments, or reserva-
tions with such establishments through the relay system estab-
lished pursuant to title IV of the legislation, and the presence of a
public telephone in these types of establishments for outgoing calls
is incidental.
Open-captioning, for example, of feature films playing in movie
theaters, is not required by this legislation. Filmmakers are, how-
ever, encouraged to produce and distribute open-captioned versions
of films and theaters are encouraged to have at least some prean-
nounced screenings of a captioned version of feature films.
Places of public accommodations that provide film and slide
shows to impart information are required to make such informa-
tion accessible to people with disabilities.
The legislation also specifies that auxiliary aids and services in-
cludes qualified readers, taped texts, or other effective methods of
making visually delivered materials available to individuals with
visual impairments. Additional examples of effective methods of
making visually delivered materials available include: audio re-
cordings and the provision of brailled and large print materials.
The legislation specifies that auxiliary aids and services includes
the acquisition or modification of equipment or devices. For exam-
ple, a museum that provides audio cassettes and cassette players
for an audio-guided tour of the museum may need to add brailled
adhesive labels to the buttons on a select number of the tape-play-
ers so that they can be operated by a blind person.
The Committee wishes to make it clear that technological ad-
vances can be expected to further enhance options for making
65
meaningful and effective opportunities available to individuals
with disabilities. Such advances may enable covered entities to pro-
vide auxiliary aids and services which today might be considered to
impose undue burdens on such entities.
Section 302(b)(2)(A)(iv) of the legislation specifies that discrimina-
tion includes a failure to remove architectural barriers and com-
munication barriers that are structural in nature in existing facili-
ties, and transportation barriers in existing vehicles used by an es-
tablishment for transporting individuals (not including barriers
that can only be removed through the retrofitting of vehicles by
the installation of a hydraulic or other lift), where such removal is
readily achievable.
The Committee was faced with a choice in how to address the
question of what actions, if any, a public accommodation should be
required to take in order to remove structural barriers in existing
facilities and vehicles. On the one hand, the Committee could have
required retrofitting of all existing facilities and vehicles to make
them fully accessible. On the other hand, the Committee could
have required that no actions be taken to remove barriers in exist-
ing facilities and vehicles.
The Committee rejected both of these alternatives and instead
decided to adopt a modest requirement that covered entities make
structural changes or adopt alternative methods that are "readily
achievable."
The phrase "readily achievable" is defined in section 301(5) to
mean easily accomplishable and able to be carried out without
much difficulty or expense. In determining whether an action is
readily achievable, factors to be considered include:
(1) The overall size of the covered entity with respect to
number of employees, number and type of facilities, and the
size of the budget;
(2) The type of operation of the covered entity, including the
composition and structure of the entity; and
(3) The nature and cost of the action needed.
It is important to note that readily achievable is a significantly
lesser or lower standard than the "undue burden" standard used in
this title and the "undue hardship" standard used in title I of this
legislation. Any changes that are not easily accomplishable and are
not able to be carried out without much difficulty or expense when
the preceding factors are weighed are not required under the read-
ily achievable standard, even if they do not impose an undue
burden.
The concept of readily achievable should not be confused with
the phraseology of "readily accessible" used in regard to accessibil-
ity requirements for alterations (section 302(b)(2)(A)(vi)) and new
construction (section 303). While the word "readily" appears in
both phrases and has roughly the same meaning in each context-
easily, without much difficulty-the concepts of "readily achieva-
ble" and "readily accessible" are sharply distinguishable and repre-
sent almost polar opposites in focus.
The phrase "readily accessible to and usable by individuals with
disabilities" focuses on the person with a disability and addresses
the degree of ease with which an individual with a disability can
66
enter and use a facility; it is access and usability which must be
"ready."
"Readily achievable," on the other hand, focuses on the business
operator and addresses the degree of ease or difficulty of the busi-
ness operator in removing a barrier; if barrier removal cannot be
accomplished readily, then it is not required.
What the "readily achievable" standard will mean in any par-
ticular public accommodation will depend on the circumstances,
considering the factors listed previously, but the kind of barrier-re-
moval which is envisioned includes the addition of grab bars, the
simple ramping of a few steps, the lowering of telephones, the addi-
tion of raised letter and braille markings on elevator control but-
tons, the addition of flashing alarm lights, and similar modest ad-
justments.
This section may require the removal of physical barriers, includ-
ing those created by the arrangement or location of such tempo-
rary or movable structures as furniture, equipment, and display
racks. For example, a restaurant may need to rearrange tables and
chairs, or a department store may need to adjust its layout of dis-
play racks and shelves, in order to permit access to individuals who
use wheelchairs, where these actions can be carried out without
much difficulty or expense.
A public accommodation would not be required to provide physi-
cal access if there is a flight of steps which would require extensive
ramping or an elevator. The readily achievable standard only re-
quires physical access that can be achieved without extensive re-
structuring or burdensome expense.
In small facilities like single-entrance stores or restaurants,
"readily achievable" changes could involve small ramps, the instal-
lation of grab bars in restrooms in various sections and other such
minor adjustments and additions.
The readily achievable standard allows for minimal investment
with a potential return of profit from use by disabled patrons, often
more than justifying the small expense.
Section 302(b)(2)(A)(v) of the legislation specifies that where an
entity can demonstrate that removal of a barrier is not readily
achievable, discrimination includes a failure to make such goods,
services, facilities, privileges, advantages, and accommodations
available through alternative methods if such methods are readily
achievable.
With respect to the adoption of alternative methods, examples of
"readily achievable" include: coming to the door to receive or
return drycleaning; allowing a disabled patron to be served bever-
ages at a table even though nondisabled persons having only
drinks are required to drink at the inaccessible bar; providing as-
sistance to retrieve items in an inaccessible location; and rotating
movies between the first floor accessible theater and a comparable
second floor inaccessible theater.
Section 302(b)(2)(A)(vi) of the legislation specifies that discrimina-
tion includes, with respect to a facility or part thereof that is al-
tered by, on behalf of, or for the use of an establishment in a
manner that affects or could affect the usability of the facility or
part thereof, a failure to make the alterations in such a manner
that, to the maximum extent feasible, the altered portion of the fa-
67
cility is readily accessible to and usable by individuals with disabil-
ities.
Where the entity is undertaking major structural alterations
that affect or could affect the usability of the existing facility, the
entity must also make the alterations in such manner that, to the
maximum extent feasible, the path of travel to the altered area,
and the bathrooms, telephones, and drinking fountains serving the
remodeled area, are readily accessible to and usable by individuals
with disabilities.
The phrase "major structural alterations" will be defined by the
Attorney General. The Committee intends that the term "structur-
al" means elements that are a permanent or fixed part of the
building, such as walls, suspended ceilings, floors, or doorways.
The term "major structural alterations" refers to structural al-
terations or additions that affect the primary functional areas of a
building, e.g., the entrance, a passageway to an area in the build-
ing housing a primary function, or the areas of primary functions
themselves. For example, structural alteration to a utility room in
an office building would not be considered "major." On the other
hand, structural alteration to the customer service lobby of a bank
would be considered major because it houses a major or primary
function of the bank building.
The legislation includes an exception regarding the installation
of elevators, which specifies that the obligation to make a facility
readily accessible to and usable by individuals with disabilities
shall not be construed to require the installation of an elevator for
facilities that are less than three stories or that have less than
3,000 square feet per story unless the building is a shopping center,
a shopping mall, or the professional office of a health care provider
or unless the Attorney General determines that a particular cate-
gory of such facilities requires the installation of elevators based on
the usage of such facilities.
The Committee wishes to make it clear that the exception re-
garding elevators does not obviate or limit in any way the obliga-
tion to comply with the other accessibility requirements estab-
lished by this legislation, including requirements applicable to
floors which, pursuant to the exception, are not served by an eleva-
tor. And, in the event a facility which meets the criteria for the
exception nonetheless has an elevator installed, then such elevator
shall be required to meet accessibility standards.
The Committee intends that the term "facility" means all or any
portion of buildings, structures, sites, complexes, equipment, roads,
walks, passageways, parking lots, or other real or personal proper-
ty or interest in such property, including the site where the build-
ing, property, structure or equipment is located. This definition is
consistent with the definitions used under current Federal regula-
tions and standards and thus includes both indoor areas and out-
door areas where human-constructed improvements, structures,
equipment, or property have been added to the natural environ-
ment.
The phrase "readily accessible to and usable by individuals with
disabilities" is a term of art which is explained in the section of the
report concerning new construction.
68
The phrase "to the maximum extent feasible" has been included
to allow for the occasional case in which the nature of an existing
facility is such as to make it virtually impossible to renovate the
building in a manner that results in its being entirely accessible to
and usable by individuals with disabilities. In all such cases, how-
ever, the alteration should provide the maximum amount of physi-
cal accessibility feasible.
Thus, for example the term "to the maximum extent feasible"
should be construed as not requiring entities to make building al-
terations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member unless the
load-bearing structural member is otherwise being removed or al-
tered as part of the alteration.
Section 302(b)(2)(B) of the legislation includes policies applicable
to fixed route vehicles used by entities that are not in the principal
business of transporting people. First, it is considered discrimina-
tion for an entity to purchase or lease a bus or a vehicle that is
capable of carrying in excess of 16 passengers, for which solicita-
tions are made later than 30 days after the effective date of this
Act that are not readily accessible to and usable by individuals
with disabilities except that over-the-road buses shall be subject to
section 304(b)(4) (which delays the effective date for 6 years for
small operators and 5 years for other operators) and section 305
(which provides for a study of how to make the impact of making
such buses accessible).
If an entity not in the principal business of transporting people
purchases or leases a vehicle carrying 16 or fewer passengers after
the effective date of title III that is not readily accessible to or
usable by individuals with disabilities, it is discriminatory for such
an entity to fail to operate a system that, when viewed in its en-
tirety, ensures a level of service to individuals with disabilities
equivalent to the level of service provided to the general public.
Section 302(b)(2)(C) includes provisions applicable to vehicles used
in demand-responsive systems by entities that are not in the princi-
pal business of transporting people. The provisions applicable to
such vehicles are the same as those applicable to fixed route vehi-
cles except that the entity need not ensure that all new vehicles
carrying more than 16 passengers are accessible if it can demon-
strate that the system, when viewed in its entirety, already pro-
vides a level of service to individuals with disabilities equivalent to
that provided to the general public.
For example, where a hotel at an airport provides free shuttle
service, the hotel need not purchase new vehicles that are accessi-
ble so long as it makes alternative equivalent arrangements for
transporting people with disabilities who cannot ride the inaccessi-
ble vehicles. This might be accomplished through the use of a port-
able lift or by making arrangements with another entity that has
an accessible vehicle that can be made available to provide equiva-
lent shuttle service.
New construction
Section 303 of the legislation sets forth obligations with respect
to the construction of new facilities. This section is applicable to
public accommodations and potential places of employment.
69
The term "potential places of employment" is defined in section
301(2) to mean facilities that are intended for nonresidential use
and whose operations affect commerce. The Committee expects
that implementing regulations concerning "potential places of em-
ployment" will cover the same areas in a facility as existing design
standards. Thus, unusual spaces that are not duty stations, such as
catwalks and fan rooms, would continue to lie outside the scope of
design standards.
The term does not include facilities that are covered or expressly
exempted from coverage under the Fair Housing Act of 1968.
Specifically, section 303(a) of the legislation specifies that it is
unlawful discrimination for a public accommodation or potential
place of employment to fail to design and construct facilities for
first occupancy later than 30 months after the date of enactment of
this Act that are readily accessible to and usable by individuals
with disabilities, except where an entity can demonstrate that it is
structurally impacticable to do so, in accordance with standards set
forth or incorporated by reference in regulations issued under title
III.
Section 303(b) of the legislation exempts entities from installing
elevators under the same circumstances applicable to alterations
(see section 302(b)(2)(A)(vi) and the accompanying clarifications in
the report).
The phrase "readily accessible to or usable by" is a term of art
which, in slightly varied formulations, has been applied in the Ar-
chitectural Barriers Act of 1968 ("ready access to, and use of"), the
Fair Housing Act of 1968, as amended ("readily accessible to and
usable by"), and the regulations implementing section 504 of the
Rehabilitation Act of 1973 ("readily accessible to and usable by")
and is included in standards used by Federal agencies and private
industry e.g., the Uniform Federal Accessibility Standards (UFAS)
("ready access to and use of") and the American National Standard
for Buildings and Facilities-Providing Accessibility and Usability
for Physically Handicapped People (ANSI A117.1) (readily accessi-
ble to, and usable by).
The term is intended to enable people with disabilities (including
mobility, sensory, and cognitive impairments) to get to, enter, and
use a facility. While the term does not necessarily require the ac-
cessibility of every part of every area of a facility, the term contem-
plates a high degree of convenient accessibility, entailing accessibil-
ity of parking areas, accessible routes to and from the facility, ac-
cessible entrances, usable bathrooms and water fountains, accessi-
bility of public and common use areas, and access to the goods,
services, programs, facilities, and accommodations offered at the fa-
cility.
The term is not intended to require that all parking spaces, bath-
rooms, stalls within bathrooms, etc. are accessible; only a reasona-
ble number must be accessible, depending on such factors as their
location and number.
Accessibility elements for each particular type of facility should
assure both ready access to the facility and usability of its features
and equipment and of the goods, services, and programs available
therein.
70
For example, for a hotel "readily accessible to and usable by" in-
cludes, but is not limited to, providing full access to the public use
and common use portions of the hotel; requiring all doors and door-
ways designed to allow passage into and within all hotel rooms and
bathrooms to be sufficiently wide to allow passage by individuals
who use wheelchairs; making a percentage of each class of hotel
rooms fully accessible (e.g., including grab bars in bath and at the
toilet, accessible counters in bathrooms); audio loops in meeting
areas; signage, emergency flashing lights or alarms; braille or
raised letter words and numbers on elevators; and handrails on
stairs and ramps.
Of course, if a person with a disability needing a fully accessible
room makes an advance registration without informing the hotel of
the need for such a room arrives on the date of the reservation and
no fully accessible room is available, the hote has not violated the
Act. Moreover, a hotel is not required to forego renting fully acces-
sible rooms to nondisabled persons if to do so would cause the hotel
to lose a rental.
In a physician's office, "readily accessible to and usable by"
would include ready access to the waiting areas, a bathroom, and a
percentage of the examining rooms.
Historically, particularized guidance and specifications regarding
the meaning of the phrase "readily accessible to and usable by" for
various type of facilities have been provided by MGRAD, UFAS,
and the ANSI standards. Under this legislation, such specificity
will be provided by the expanded MGRAD standards to be issued
by the Architectural and Transportation Barriers Compliance
Board and by the regulations issued by the Attorney General, both
of which are discussed subsequently in this report.
It is the expectation of the Committee that the regulations issued
by the executive branch could utilize appropriate portions of
MGRAD.
It is also the Committee's intent that the regulations will include
language providing that departures from particular technical and
scoping requirements, as revised, will be permitted so long as the
alternative methods used will provide substantially equivalent or
greater access to and utilization of the facility. Allowing these de-
partures will provide covered entities with necessary flexibility to
design for special circumstances and will facilitate the application
of new technologies.
The phrase "structurally impracticable" is a narrow exception
that will apply only in rare and unusual circumstances where
unique characteristics of terrain make accessibility unusually diffi-
cult. Such limitations for topographical problems are analogous to
an acknowledged limitation in the application of the accessibility
requirements of the Fair Housing Amendments Act of 1988. In the
House Committee Report accompanying the Act, the House Com-
mittee on the Judiciary noted:
certain natural terrain may pose unique building prob-
lems. For example, in areas which flood frequently, such
as waterfronts or marshlands, housing traditionally may
be built on stilts. The Committee does not intend to re-
quire that the accessibility requirements of this Act over-
71
ride the need to protect the physical integrity of multifam-
ily housing that may be built on such sites.
By incorporating the phrase "structurally impracticable," the
ADA explicitly recognizes an exception analogous to the "physical
integrity" exception for peculiarities of terrain recognized implicit-
ly in statutory language and expressly in the House Committee
Report accompanying the Fair Housing Amendments Act. As
under the Fair Housing Amendments Act, this is intended to be a
narrow exception to the requirement of accessibility. It means that
only where unique characteristics of terrain prevent the incorpora-
tion of accessibility features and would destroy the physical integri-
ty of a facility is it acceptable to deviate from accessibility require-
ments. Buildings that must be built on stilts because of their loca-
tion in marshlands or over water are one of the few situations in
which the structurally impracticable exception would apply.
Neither under the ADA nor the Fair Housing Amendments Act
should an exception to accessibility requirements be applied to situ-
ations in which a facility is located in "hilly" terrain or on a plot
of land upon which there are steep grades; in such circumstances,
accessibility can be achieved without destroying the physical integ-
rity of a structure, and ought to be required in the construction of
new facilities.
In those are circumstances in which it is structurally impractica-
ble to achieve full compliance with accessibility requirements
under the ADA, public accommodations should still be designed
and constructed to incorporate accessibility features to the extent
that they are structurally practicable. The accessibility require-
ments should not be viewed as an all-or-nothing proposition in such
circumstances.
If it is structurally impracticable for a facility in its entirety to
be readily accessible to and usable by people with disabilities, then
those portions which can be made accessible should be. If a build-
ing cannot comply with the full range of accessibility requirements
because of structural impracticability, then it should still be re-
quired to incorporate those features which are structurally practi-
cable. And if it is structurally impracticable to make a particular
facility accessible to persons who have particular types of disabil-
ities, it is still appropriate to require it to be made accessible to
persons with other types of disabilities.
If, for example, a facility which is of necessity built on stilts
cannot be made accessible to persons who use wheelchairs because
it is structurally impracticable to do so, this is no reason not to still
require it to be accessible for individuals with vision or hearing im-
pairments or other kinds of disabilities.
The new construction provision includes establishments that
"are potential places of employment" as well as public accommoda-
tions. The Committee decided to include this provision to ensure
that unnecessary barriers to employment are not built into facili-
ties that are constructed in the future. Since it is easy and inexpen-
sive to incorporate accessibility features in new construction, the
Committee concluded that there is no rational justification for em-
ployers to continue to construct inaccessible facilities that will bar
72
the entrance of and limit opportunities for people with disabilities
for years to come.
In addition, this provision will ensure that all new facilities
which potentially may be occupied by places of public accommoda-
tion but whose first occupant may not be such an entity are con-
structed in such a way that they are readily accessible to and
usable by individuals with disabilities for the original use for which
the building is intended.
The Committee decided not to limit this provision to potential
places of employment of 15 or more employees because of the
desire to establish a uniform requirement of accessibility in new
construction, because of the ease with which such a requirement
can be accomplished in the design and construction stages, and be-
cause future expansion of a business or sale or lease of the proper-
ty to a larger employer or to a business that is open to the public is
always a possibility.
The phrase "are potential places of employment" is not intended
to make an establishment that is not a public accommodation sub-
ject to the other provisions of this title e.g., the obligation to pro-
vide auxiliary aids or services.
Prohibition of discrimination in public transportation services pro-
vided by private entities
Section 304(a) of the legislation specifies that no individual shall
be discriminated against on the basis of disability in the full and
equal enjoyment of public transportation services provided by a pri-
vately operated entity that is primarily engaged in the business of
transporting people, but is not in the principal business of provid-
ing air transportation, and whose operations affect commerce.
The term "public transportation" is defined in section 301(4) of
the legislation to mean transportation by bus or rail, or by any
other conveyance (other than by air travel) that provides the gener-
al public with general or special service (including charter service)
on a regular and continuing basis.
The Committee wishes to make it clear that the provisions of
title III do not apply to public entities such as public transit au-
thorities and school districts. Public entities providing transporta-
tion services are generally subject to the provisions of title II of
this legislation and school bus operations are generally covered by
regulations implementing section 504 of the Rehabilitation Act of
1973 issued by agencies providing Federal financial assistance to
school districts.
The Committee also wishes to make it clear that title III does not
apply to volunteer-driven commuter ridership arrangements.
The Committee excluded transportation by air because the Con-
gress recently passed the Air Carriers Access Act, which was de-
signed to address the problem of discrimination by air carriers and
it is the Committee's expectation that regulations will be issued
that reflect congressional intent.
Section 304(b) of the legislation includes specific applications of
the general prohibition set out in section 303(a). As used in subsec-
tion (a), the term "discrimination against" includes:
(1) The imposition or application by an entity of eligibility
criteria that screen out or tend to screen out an individual
73
with a disability or any class of individuals with disabilities
from fully enjoying the public transportation services provided
by the entity;
(2) The failure of an entity to-
(A) make reasonable modifications consistent with those
required under section 302(b)(2)(A)(ii);
(B) provide auxiliary aids and services consistent with
the requirements of section 302(b)(2)(A)(ii); and
(C) remove barriers consistent with the requirements of
section 302(b)(2)(A) (iv), (v), and (vi); and
(3) The purchase or lease of a new vehicle (other than an
automobile or over-the-road bus) that is to be used to provide
public transportation services, and for which a solicitation is
made later than 30 days after the effective date of this Act,
that is not readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.
The bill includes a special exception for vehicles used in a
demand-responsive system. In the case of a vehicle used in a
demand-response system, the new vehicle need not be readily acces-
sible to and usable by individuals with disabilities if the entity can
demonstrate that such system, when viewed in its entirety, pro-
vides a level of service to individuals with disabilities equivalent to
the level of service provided to the general public.
With respect to the purchase of new over-the-road buses, it is
considered discrimination to purchase or lease a new over-the-road
bus that is used to provide public transportation services and for
which a solicitation is made later than 6 years after the date of en-
actment of this Act for small providers (as defined by the Secretary
of Transportation) and 5 years for other providers, that is not read-
ily accessible to and usable by individuals with disabilities.
The term "readily accessible to and usable by" means, with re-
spect to vehicles used for public transportation, able to be entered
into and exited from and safely and effectively used by individuals
with disabilities, including individuals who use wheelchairs.
Currently, technology may not exist that will enable an individ-
ual who uses a wheelchair to access restrooms in over-the-road
buses without resulting in the significant loss of current seating ca-
pacity. Since this legislation is future driven, the Committee in-
tends that the Department of Transportation develop regulations
which require that accessible restrooms be installed on intercity
coaches when technologically feasible.
Lifts or ramps, and fold-up seats or other wheelchair spaces with
appropriate securement devices are among the current features
necessary to make transit vehicles readily accessible to and usable
by individuals with disabilities. The requirement that a vehicle is
to be readily accessible obviously entails that each vehicle is to
have some spaces for individuals who use wheelchairs or three-
wheeled mobility aids; how many spaces per vehicle are to be made
available for wheelchairs is, however, a determination that depends
on various factors, including the number of vehicles in the fleet,
seat vacancy rates, and usage by people with disabilities.
The Committee intends that, consistent with these general fac-
tors, the determination of how many spaces must be available
should be flexible and generally left up to the provider; provided
74
that at least some spaces on each vehicle are accessible. Technical
specifications and guidance regarding lifts and ramps, wheelchair
spaces, and securement devices are to be provided in the minimum
guidelines and regulations to be issued under this legislation.
The Committee intends that during the interim periods prior to
the date when over-the-road buses must be readily accessible to
and usable by individuals with disabilities that regulations specify
that providers modify their policies so that individuals who use
wheelchairs may get on and off such buses without having to bring
their own attendant to help them get on and off the bus. Further,
policies should be modified to require the on-board storage of bat-
teries for battery operated wheelchairs.
Section 305 of the legislation directs the Architectural and
Transportation Barriers Compliance Board to undertake a study to
determine the access needs of individuals with disabilities to over-
the-road buses and the most cost effective methods for making
over-the-road buses readily accessible to and usable by individuals
with disabilities.
In determining the most cost-effective methods for making over-
the-road buses readily accessible to and usable by persons with dis-
abilities, particularly individuals who use wheelchairs, the legisla-
tion specifies that the study should analyze the cost of providing
accessibility, recent technological and cost saving developments in
equipment and devices, and possible design changes.
Thus, the Committee is interested in having the study include a
review of current technology such as lifts that enable persons with
mobility impairments, particularly those individuals who use
wheelchairs, to get on and off buses without being carried; alterna-
tive designs to the current lifts; as well as alternative technologies
and modifications to the design of buses that may be developed
that will also enable such individuals to get on and off over-the-
road buses without being carried.
It is also expected that the study will review alternative design
modifications that will enable an individual using the over-the-road
bus to have access to the restroom and at the same time permitting
the provider to retain approximately the same seating capacity.
The study must also assess the impact of accessibility require-
ments on the continuation of inter-city bus service by over-the-road
buses, with particular consideration of impact on rural service in
light of the economic pressures on the bus industry that have lead
to a reduction of service, particularly in rural America. According
to an analysis by the Interstate Commerce Commission staff, 3,400
communities lost all intercity bus service between 1982 and 1986.
Of these nine-tenths were areas with populations of under 10,000.
Thus, this study should analyze how the private bus operators
can comply with the requirement in section 304 of the legislation
that over-the-road buses be made readily accessible to and usable
by individuals with disabilities, including individuals who use
wheelchairs, without contributing to the deterioration of rural bus
service.
It is the Committee expectation that the study will also review
current policies that impede the shared use by private companies
providing tours and charter services of public buses that are cur-
rently accessible. Another component of the study may be to seek
75
ways to link local providers of accessible transportation services
with intercity bus service in hub areas. This may necessitate ex-
pansion of service by local providers to match intercity and inter-
modal schedules in order to help ensure effective development of
such a feeder service relationship.
The Committee recognizes that after deregulation of the airline
and rail industries, safety net programs were implemented to assist
States in preserving efficient air and rail transportation, primarily
between smaller cities and communities threatened by the loss of
service. No similar Federal program was established to assist the
private bus industry. The Committee expects that the study will
consider whether and, if deemed appropriate, identify policy alter-
natives that might assist private bus companies meet the mandates
in this legislation.
The legislation also calls for the establishment of an advisory
board of which 50 percent of the members must be selected from
among private operators using over-the-road buses, bus manufac-
turers, and lift manufacturers; and 50 percent of the members
must be individuals with disabilities, particularly individuals who
use wheelchairs, who are potential riders of such buses.
Anyone in the business of providing taxi service shall not dis-
criminate on the basis of disability in the delivery of that service.
For example, it would be illegal under the Act to refuse to pick up
a person on the basis of that person's disability. A taxi cab driver
could not refuse to pick up someone in a wheelchair because he or
she believes that the person could not get out of their chair or be-
cause he or she did not want to lift the wheelchair into the trunk
of the taxi or put it in the back seat.
Regulations
Section 306(a) of the legislation specifies that not later than one
year after the date of enactment of this Act, the Secretary of
Transportation shall issue regulations in an accessible format that
shall include standards applicable to facilities and vehicles covered
under section 302(b)(2) (B) and (C) and section 304.
With respect to section 304(b)(4) of the legislation, the Committee
recognizes the apparent anomaly in requiring the promulgation of
regulations while a needs and impact assessment is in progress and
two years prior to the submission of the study and its recommenda-
tions to the President and the Congress. This timing, however,
should not be construed as calling into question the importance or
necessity of empirical data and technolgical information to this
rulemaking process. Rather, the Committee believed it wise that,
with respect to over-the-road buses, regulations be in place well in
advance of the compliance dates of the Act.
The Committee fully expects that, following submission, the
study and its recommendations will be expeditiously and carefully
reviewed to determine if, or to what extent, the regulations pro-
mulgated pursuant to this section of the legislation need to be re-
vised or amended.
Section 306(b) of the legislation, specifies that not later than one
year after the date of enactment of this Act, the Attorney General
shall issue regulations in an acccessible format to carry out the re-
maining provisions of this title not referred to in subsection (a) that
76
include standards applicable to facilities and vehicles covered
under section 302.
Standards included in regulations issued under subsections (a)
and (b) shall be consistent with the minimum guidelines and re-
quirements issued by the Architectural and Transportation Bar-
riers Compliance Board in accordance with section 504.
Exemptions for private clubs and religious organizations
Section 307 of the legislation specifies that the provisions of title
III do not apply to private clubs or establishments exempted from
coverage under title II of the Civil Rights Act of 1964 or to reli-
gious organizations or to entities controlled by religious organiza-
tions. Places of worship and schools controlled by religious organi-
zations are among those organizations and entities which fall
within this exemption.
The reference to "entities controlled by a religious organization"
is modeled after the provisions in title IX of the Education Amend-
ments of 1972. Thus, it is the Committee's intent that the term
"controlled by a religious organization" be interpreted consistently
with the Attachment which accompanied the Assurance of Compli-
ance with title IX required by the U.S. Department of Education.
Of course, the Committee recognizes that unlike the title IX ex-
emption, this provision applies to entities that are not educational
institutions. The term "religious organization" has the same mean-
ing as the term "religious organization" in the phrase "entitles
controlled by a religious organization."
Activities conducted by a religious organization or an entity con-
trolled by a religious organization on its own property which are
open to nonmembers of that organization or entity are included in
this exemption.
Enforcement
Section 308 of the legislation sets forth the scheme for enforcing
the rights provided for in title III. Section 308(a)(1) provides a pri-
vate right of action for any individual who is being or is about to
be subjected to discrimination on the basis of disability in violation
of title III. This subsection makes available to such an individual
the remedies and procedures set forth in section 204a-3(a) of the
Civil Rights Act of 1964 (preventive relief, including an application
for a permanent or temporary injunction, restraining order, or
other order).
Section 308(a)(2) of the legislation makes it clear that in the case
of violations of section 302(b)(2)(A)(iv) pertaining to removing bar-
riers in existing facilities, section 302(b)(2)(A)(vi) pertaining to alter-
ations of existing facilities, and section 303(a) pertaining to new
construction, injunctive relief shall include an order to alter facili-
ties to make such facilities readily accessible to and usable by indi-
viduals with disabilities as required by title III.
Where appropriate, injunctive relief shall also include requiring
the provision of an auxiliary aid or service, modification of a policy,
or provision of alternative methods, to the extent required by this
title.
Section 308(b) of the legislation specifies the enforcement scheme
for the Attorney General. First, the Attorney General shall investi-
77
gate alleged violations of title III, which shall include undertaking
periodic reviews of compliance of covered entities.
If the Attorney General has reasonable cause to believe that any
person or group of persons is engaged in a pattern or practice of
resistance to the full enjoyment of any of the rights granted by
title III or that any person or group of persons has been denied any
of the rights granted by title III and such denial raises an issue of
general public importance, the Attorney General may commence a
civil action in any appropriate United States District Court.
In a civil action brought by the Attorney General, the court may
grant any equitable relief it considers to be appropriate, including
granting temporary, preliminary, or permanent relief, providing an
auxiliary aid or service, modification of policy or alternative
method, or making facilities readily accessible to and usable by in-
dividuals with disabilities, to the extent required by title III.
In addition, a court may award such other relief as the court con-
siders to be appropriate, including monetary damages to persons
aggrieved, when requested by the Attorney General. Thus, it is the
Committee's intent that the Attorney General shall have discretion
regarding the damages he or she seeks on behalf of persons ag-
grieved. It is not the Committee's intent that this authority include
the authority to award punitive damages.
Furthermore, the court may vindicate the public interest by as-
sessing a civil penalty against the covered entity in an amount not
exceeding $50,000 for a first violation and not exceeding $100,000
for any subsequent violation.
Effective date
In accordance with section 309 of the legislation, title III of the
legislation shall become effective 18 months after the date of enact-
ment of this legislation.
TITLE IV-TELECOMMUNICATIONS RELAY SERVICES
Title IV of the legislation, as reported, will help to further the
statutory goals of universal service as mandated in the Communi-
cations Act of 1934. It will provide to hearing- and speech-impaired
individuals telephone services that are functionally equivalent to
those provided to hearing individuals.
Background
There are over 24 million hearing-impaired and 2.8 million
speech-impaired individuals in the United States, yet inadequate
attention has been paid to their special needs with respect to ac-
cessing the Nation's telephone system. Given the pervasiveness of
the telephone for both commercial and personal matters, the in-
ability to utilize the telephone system fully has enormous impact
on an individual's ability to integrate effectively. in today's society.
The Communications Act of 1934 mandates that communications
services be "[made] available, so far as possbile, to all the people of
the United States. (Section 1, emphasis added). This goal of
universal service has governed the development of the Nation's
telephone system for over fifty years. The inability of over 26 mil-
lion Americans to access fully the Nation's telephone system poses
78
a serious threat to the full attainment of the goal of universal serv-
ice.
In order to realize this goal more fully, Title IV of this legislation
amends Title II of the Communications Act of 1934, as amended, by
adding a new section 225. This new section imposes on all common
carriers providing interstate or intrastate telephone service, an ob-
ligation to provide to hearing and speech impaired individuals tele-
communications services that enable them to communicate with
hearing individuals. These services must be functionally equivalent
to telephone service provided to hearing individuals. Carriers are
granted the flexibility to determine whether such services are pro-
vided by the carrier alone, in concert with other carriers, or
through a designee. Hereinafter, this part of the Report will be re-
ferring to this new section 225 and not to sections in S. 933, The
Americans with Disabilities Act.
Currently, individuals with hearing and speech impairments can
communicate with each other over the telephone network with the
aid of Telecommunications Devices for the Deaf (TDDs). TDDs use
a typewriter-style device equipped with a message display (screen
and/or printer) to send a coded signal through the telephone net-
work. However, users of TDDs can communicate only with other
users of TDDs. This creates serious hardships for Americans with
hearing and/or speech impairments, since access to the community
at large is significantly limited.
The Committee intends that section 225 better serve to incorpo-
rate the hearing- and speech-impaired communities into the tele-
communications mainstream by requiring that telephone services
be provided to hearing and/or speech impaired individuals in a
manner that is functionally equivalent to telephone services of-
fered to those who do not have these impairments. This require-
ment will service to bridge the gap between the communications
impaired telephone and the community at large. To participate ac-
tively in society, one must have the ability to call firends, family,
businesses, and employers.
Current technology allows for communications between a TDD
user and a voice telephone user by employing a type of relay
system. Such systems include a third party operator who completes
the connection between the two parties and who transmits mes-
sages back and forth in real time between the TDD user and the
hearing individual. The originator of the call communicates to the
operator either by voice or TDD. The operator then uses a video
display system to translate the typed or voice message simulta-
neously from one medium to the other.
Although the Committee notes that relay systems represent the
current state-of-the-art, this legislation is not intended to discour-
age innovation regarding telecommunications services to individ-
uals with hearing and speech impairments. The hearing- and
speech-impaired communities should be allowed to benefit from ad-
vancing technology. As such, the provisions of this section do not
seek to entrench current technology but rather to allow for new,
more advanced, and more efficient technology.
The Committee intends that the FCC have sufficient enforcement
authority to ensure that telecommunications relay services are pro-
vided nationwide and that certain minimum federal standards are
79
met by all providers of such services. The FCC's authority over the
provision of intrastate telecommunications relay services, however,
is expressly limited by certification procedures required to be estab-
lished under this section whereby a state retains jurisdiction over
the intrastate provision of telecommunications relay services.
The Committee finds it necessary to grant the FCC such residual
authority in this instance to ensure universal service to the hear-
ing- and speech-impaired community. Although a number of states
have mandated statewide relay systems, the majority of states have
not done so. Moreover, the systems that do exist vary greatly in
quality and accessibility. The Committee finds that to ensure uni-
versal service to this population of users, service must be made uni-
formly available on a local, intrastate, and interstate basis. It is the
Committee's hope and expectation, however, that all states will
seek certification in a timely manner and that the FCC will not
find it necessary to exercise its enforcement authority. It is essen-
tial to this population's well-being, self-sufficiency and full integra-
tion into society to be able to access the telecommunications net-
work and place calls nationwide without regard to geographic loca-
tion.
Attaining meaningful universal service for this population also
requires that some level of minimum federal standards for service,
service quality, and functional equivalency to voice telephone serv-
ices be established and maintained. The FCC is therefore required
to establish certain minimum federal standards that all telecom-
munications relay service providers must meet:
By requiring telecommunications relay services to be provided
throughout the United States, this section takes a major step to-
wards enabling individuals with hearing and speech impairments
to achieve the level of independence in employment, public accom-
modations and public services sought by other sections of the
Americans with Disabilities Act. The Committee concludes that ex-
panding the FCC's authority in this instance will both promote
interstate commerce and be of benefit to all Americans.
The grant of jurisdiction to the FCC is limited, however, by the
state certification procedures required to be established under this
section. It is the Committee's intention that these procedures oper-
ate to preserve initiatives by a state or group of states to imple-
ment a telecommunications relay services program within that
state or within a region either through the state itself, through des-
ignees, or through regulation of intrastate common carriers. As
such, the section provides that any state may regulate intrastate
telecommunications relay services provided by intrastate carriers
once the state is granted certification by the FCC. The FCC is to
establish clearly defined procedures for requesting certification and
a review process to ensure that a state program, however it is pro-
vided, satisfies the minimum standards promulgated under this
section. The certification procedures. and review process should
afford the least possible intrusion into state jurisdiction consistent
with the goals of this section to have nationwide universal service
for hearing- and speech-impaired individuals.
The Committee intends that telecommunications relay services
be governed by minimum federal standards that will ensure that
telephone service for hearing and speech impaired individuals is
80
functionally equivalent to telephone services offered to hearing in-
dividuals. Such standards, however, should not have the effect of
freezing technology or thwarting the introduction of a superior or
more efficient technology.
Cost recovery for telecommunications relay services will be deter-
mined by the FCC in the case of interstate telecommunications
relay services and by certified states in the case of intrastate tele-
communications relay services. While states are granted the maxi-
mum latitude to determine the method of cost recovery for intra-
state relay services provided under their jurisdiction, the FCC is
specifically prohibited from allowing the imposition of a flat
monthly charge on residential end users to recover the costs of pro-
viding interstate telecommunications relay service. It is the Com-
mittee's expectation that the costs of providing telecommunications
relay services will be considered a legitimate cost of doing business
and therefore a recoverable expense through the regulatory rate-
making process.
Definitions
Section 225(a) defines: (1) "Common Carrier or Carrier" to in-
clude interstate carriers and intrastate carriers for purposes of this
section only; (2) "TDD" to mean a machine that may be used by a
variety of disabled individuals such as deaf, hard of hearing, deaf-
blind, or speech impaired individuals and that employs graphic
communications through the transmission of coded signals over
telephone wires; and (3) "Telecommunications relay services" to
mean telephone transmission services that allow a hearing- and/or
speech-impaired individual to communicate in a manner that is
functionally equivalent to voice communications services offered to
hearing individuals. The term includes, but is not limited to, TDD
relay services.
Availability of telecommunications relay services
Section 225(b)(1) states that in furtherance of the goals of univer-
sal service, the FCC must ensure that interstate and intrastate
telecommunications relay services are provided to the greatest
extent possible and in the most efficient manner.
Section 225(b)(2) extends the remedies, procedures, rights and ob-
ligations applicable to interstate carriers under the Communica-
tions Act of 1934, as amended, to intrastate carriers for the limited
purpose of implementing and enforcing the requirements of this
section.
Provision of services
Section (c) requires that carriers providing telephone voice trans-
mission services provide telecommunications relay services within
two years after the date of enactment of this section. Carriers are
to offer to hearing- and speech-impaired individuals services which
are functionally equivalent to telephone services provided to hear-
ing individuals including providing services with the same geo-
graphic radius that they offer to hearing individuals. Carriers are
granted the flexibility to provide such services either individually,
in concert with other carriers, or through designees. In exercising
81
this flexibility to appoint designees, however, carriers must ensure
that all requirements of this section are complied with.
Regulations
Section (d) requires the FCC to prescribe the necessary rules and
regulations to carry out the requirements of this section within one
year of its enactment.
Also, given the unique and specialized needs of the population
that will be utilizing telecommunications relay services, the FCC
should pay particular attention to input from representatives of
the hearing and speech impaired community. It is recommended
that this input be obtained in a formal manner such as through an
advisory committee that would represent not only telecommunica-
tions relay service consumers but also carriers and other interested
parties. The Committee notes that the FCC has already issued sev-
eral notices on the creation of an interstate relay system and the
most efficient way such a system could be provided. While the FCC
is afforded a significant amount of flexibility in implementing the
goals of this section, subsection (d) requires that the FCC establish
certain minimum standards, practices and criteria applicable to all
telecommunications relay services and service providers as follows:
Section (d)(1)(A) requires the FCC to establish functional require-
ments, guidelines, and operational procedures for the provision of
telecommunications relay services. One of these requirements shall
be that all carriers subject to this section shall provide telecom-
munications relay services on a non-discriminatory basis to all
users within their serving area. The FCC should pursue means in
which the goals of this section may be met in the most efficient
manner. In addition, the Commission should include specific lan-
guage requiring that operators be sufficiently trained so as to effec-
tively meet the specialized communications needs of individuals
with hearing and speech impairments, including sufficient skills in
typing, grammar and spelling.
Section (d)(1)(B) requires the FCC to establish minimum federal
standards to be met by all providers of intrastate and interstate
telecommunications relay services including technical standards,
quality of service standards, and the standards that will define
functional equivalence between telecommunications relay services
and voice telephone transmission services. Telecommunications
relay services are to be governed by standards that ensure that
telephone service for hearing- and speech-impaired individuals is
functionally equivalent to voice services offered to hearing individ-
uals. In determining factors necessary to establish functional
equivalency, the FCC should include, for example, the requirement
that telecommunications relay services transmit messages between
the TDD and voice caller in real time, as well as the requirement
that blockage rates for telecommunications relay services be no
greater than standard industry blockage rates for voice telephone
services. Other factors that should be included are the opportunity
for telecommunications relay service users to choose an interstate
carrier whenever possible. The FCC should enumerate other such
measurable standards to ensure that hearing and non-hearing indi-
viduals have equivalent access to the Nation's telephone networks.
82
Section (d)(1)(C) requires that such telecommunications relay
services operate 24 hours a day, seven days a week.
Section (d)(1)(D) requires that users of telecommunications relay
services pay rates no greater than the rates paid for functionally
equivalent voice communication with respect to such factors as the
duration of the call, the time of day, and the distance from point of
origination to point of termination. Although the Committee com-
mends states that have chosen to implement a discount, this sec-
tion is not intended to mandate a rate discount with respect to call
duration.
Section (d)(1)(E) prohibits relay operators from refusing calls or
limiting the length of calls that use such relay services.
Section (d)(1)(F) prohibits relay operators from disclosing the con-
tent of any relayed conversation and from keeping records of the
content of any such conversation beyond the duration of that call.
The Committee recognizes that printed records of such calls may
be necessary to complete the call; however, this requirement is to
ensure that records are not kept after termination of the conversa-
tion. In addition, the Committee recognizes that it may be techni-
cally impossible today to relay recorded messages in their entirety
because TDDs can only transmit messages at a given speed. In
these situations, a hearing or speech impaired individual should be
given the option to have the message summarized.
Section (d)(1)(G) prohibits relay operators from intentionally al-
tering any relayed conversation.
Section (d)(2) requires that the FCC ensure that regulations pre-
scribed to implement this section encourage the use of state-of-the-
art technology. Such regulations should not have the effect of freez-
ing technology or thwarting the introduction of a superior or more
efficient technology.
Section (d)(3) states that the Commission should issue regulations
to govern the separation of costs for the services provided pursuant
to this section. No change to the procedures for allocating joint
costs between the interstate and intrastate jurisdictions as set forth
elsewhere in the Communications Act of 1934 is intended.
Section (d)(4) prohibits the Commission from allowing the imposi-
tion of a fixed monthly charge on residential customers to recover
the costs of providing interstate telecommunications relay services.
However, the manner in which the costs of providing intrastate
telecommunications relay services are recovered is left to the dis-
cretion of certified states. It is the Committee's expectation that
the costs of providing such services will be considered a legitimate
cost of doing business and therefore a recoverable expense through
the regulatory ratemaking process.
Section (d)(5) grants the FCC flexibility to extend the date of full
compliance with the requirements of this Section by one year for
any carrier or group of carriers that it finds will be unduly bur-
dened. Interested parties should be given an opportunity to com-
ment on any such request for an extension and such requests
should not be granted without compelling justification.
Enforcement
Section (e)(1) requires that the Commission enforce the require-
ments of this section subject to subsections (f) and (g). The Commit-
83
tee intends that the FCC have sufficient enforcement authority to
ensure that telecommunications relay services are provided nation-
wide and that certain minimum federal standards are met by all
providers of the service. The FCC's authority over the provision of
intrastate telecommunications relay services, however, is expressly
limited by certification procedures required to be established under
subsection (f) whereby a state retains jurisdiction over the intra-
state provision of telecommunications relay services.
Section (e)(2) requires that the Commission resolve any complaint
by final order within 180 days after that complaint has been filed.
Certification
Sections (f) (1) and (2) describe the state certification procedure
whereby states may apply to reassert jurisdiction over the provi-
sion of intrastate telecommunications relay services. The FCC may
grant certification upon a showing that such services are being
made available in the state and that they comply with the federal
guidelines and standards promulgated pursuant to section (d). A
state plan may make service available through the state itself,
through designees or through regulation of intrastate carriers.
Section (f)(3) states that, except for reasons affecting rules pro-
mulgated pursuant to section (d), the FCC may not deny certifica-
tion to a state based solely on its chosen method of funding the pro-
vision of intrastate telecommunications relay services. Section (d),
however, would require that a state program not include cost re-
covery mechanisms that would have the effect of requiring users of
telecommunications relay services to pay effectively higher rates
than those paid for functionally equivalent voice communications
services. Additionally, the Committee urges that because this serv-
ice is of benefit to all society that any funding mechanism not be
labeled so as to unduly prejudice the hearing- and speech-impaired
community.
Section (f)(4) allows for the Commission to revoke such certifica-
tion, if after notice and opportunity for hearing, the Commission
determines that certification is no longer warranted.
Complaint
Section (g)(1) states that when a complaint is filed with the Com-
mission that alleges a violation of this section with respect to the
provision of intrastate telecommunication relay services, the Com-
mission shall refer such complaint to the appropriate State com-
mission if that State has been duly certified by the FCC pursuant
to section (f). If the appropriate State has not been duly certified,
then the Commission will handle the complaint pursuant to sec-
tions (e) (1) and (2).
Once a complaint has been properly referred to a State Commis-
sion, subsection (g)(2) permits the FCC to exercise its jurisdiction
over such a complaint only if final action has not been taken
within 180 days after the complaint is filed with the State, or
within a shorter period as prescribed by the regulations of such
State, or if the Commission determines that a State program no
longer qualifies for certification under section (f).
84
TITLE V-MISCELLANEOUS PROVISIONS
Construction
Section 501 of the legislation specifies the relationship between
this legislation and the Rehabilitation Act of 1973 and other Feder-
al, State or local laws. Section 501 also specifies the relationship
between this legislation and the regulation of insurance.
With respect to the Rehabilitation Act of 1973, section 501(a) of
the legislation specifies that nothing in this legislation should be
construed to reduce the scope of coverage or apply a lesser stand-
ard than the coverage required or the standards applied under title
V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the
regulations issued by the Federal agencies pursuant to such title.
With respect to other laws, section 501(b) of the legislation speci-
fies that nothing in this legislation should be construed to invali-
date or limit any other Federal law or law of any State or political
subdivision of any State or jurisdiction that provides greater pro-
tection for the rights of individuals with disabilities that are afford-
ed by this legislation. This legislation could be construed to be in
conflict with other laws governing spaces or worksites, for example
OSHA requirements. The Committee expects the Attorney General
to exercise coordinating authority to avoid and eliminate conflicts.
With respect to insurance, section 501(c) of the legislation speci-
fies that titles I, II, and III of this legislation shall not be construed
to prohibit or restrict-
(1) An insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that admin-
isters benefit plans, or similar organizations from underwriting
risks, classifying risks, or administering such risks that are
based on or not inconsistent with State law; or
(2) Any person or organization covered by this Act from es-
tablishing, sponsoring or observing the terms of a bona fide
benefit plan which terms are based on underwriting risks, clas-
sifying risks, or administering such risks that are based on or
not inconsistent with State law;
provided that points (1) and (2) are not used as a subterfuge to
evade the purposes of titles I, II and III of this legislation.
As indicated earlier in this report, the main purposes of this leg-
islation include prohibiting discrimination in employment, public
services, and places of public accommodation. The Committee does
not intend that any provisions of this legislation should affect the
way the insurance industry does business in accordance with the
State laws and regulations under which it is regulated.
Virtually all States prohibit unfair discrimination among persons
of the same class and equal expectation of life. The ADA adopts
this prohibition of discrimination. Under the ADA, a person with a
disability cannot be denied insurance or be subject to different
terms or conditions of insurance based on disability alone, if the
disability does not pose increased risks.
Since there is some uncertainty over the possible interpretations
of the language contained in titles I, II and III as it applies to in-
surance, the Committee added section 501(c) to make it clear that
this legislation will not disrupt the current nature of insurance un-
derwriting or the current regulatory structure for self-insured em-
85
ployers or of the insurance industry in sales, underwriting, pricing,
administrative and other services, claims, and similar insurance re-
lated activities based on classification of risks as regulated by the
States.
However, the decision to include this section may not be used to
evade the protections of title I pertaining to employment, title II
pertaining to public services, and title III pertaining to public ac-
commodations beyond the terms of points (1) and (2), regardless of
the date an insurance plan or employer benefit plan was adopted.
For example, an employer could not deny a qualified applicant a
job because the employer's current insurance plan does not cover
the person's disability or because of the increased costs of the in-
surance.
Moreover, while a plan which limits certain kinds of coverage
based on classification of risk would be allowed under this section,
the plan may not refuse to insure, or refuse to continue to insure,
or limit the amount, extent, or kind of coverage available to an in-
dividual, or charge a different rate for the same coverage solely be-
cause of a physical or mental impairment, except where the refus-
al, limitation, or rate differential is based on sound actuarial prin-
ciples or is related to actual or reasonably anticipated experience.
For example, a blind person may not be denied coverage based
on blindness independent of actuarial risk classification. Likewise,
with respect to group health insurance coverage, an individual
with a pre-existing condition may be denied coverage for that con-
dition for the period specified in the policy but cannot be denied
coverage for illnesses or injuries unrelated to the pre-existing con-
dition.
Specifically, point (1) makes it clear that insurers may continue
to sell to and underwrite individuals applying for life, health, or
other insurance on an individually underwritten basis, or to service
such insurance products.
Point (2) recognizes the need for employers, and/or agents there-
of, to establish and observe the terms of employee benefit plans, so
long as these plans are based on underwriting or classification of
risks.
In both cases, points (1) and (2) shall not be used as a subterfuge
to evade the purposes of titles I, II and III of the legislation, regard-
less of the date the insurance plan or employer benefit plan was
adopted.
As explained previously in this report, the Committee also
wishes to clarify that in its view, as is stated by the U.S. Supreme
Court in Alexander V. Choate, 469 U.S. 287 (1985), employee benefit
plans should not be found to be in violation of this legislation
under impact analysis simply because they do not address the spe-
cial needs of every person with a disability, e.g., additional sick
leave or medical coverage.
Moreover, this subsection must be read to be consistent with sub-
section (b) of section 501 pertaining to other Federal and State
laws.
In sum, section 501(c) is intended to afford to insurers and em-
ployers the same opportunities they would enjoy in the absence of
this legislation to design and administer insurance products and
benefit plans in a manner that is consistent with basic principles of
86
insurance risk classification. Without such a clarification, this leg-
islation could arguably find violative of its provisions any action
taken by an insurer or employer which treats disabled persons dif-
ferently under an insurance or benefit plan because they represent
an increased hazard of death or illness.
The provisions recognize that benefit plans (whether insured or
not) need to be able to continue present business practices in the
way they underwrite, classify, and administer risks, so long as they
carry out those functions in accordance with accepted principles of
insurance risk classification.
While the bill is intended to apply nondiscrimination standards
equally to self-insured plans as well as to third-party payer and
third-party administered plans with respect to persons with disabil-
ities, section 501(c) of this legislation should not be interpreted as
subjecting self-insured plans to any State insurance laws of general
application regarding underwriting risks, classifying risks, or ad-
ministering such risks that are otherwise preempted by the Em-
ployee Retirement Income Security Act of 1974 (ERISA).
Prohibition against retaliation and coercion
Section 502(a) of the legislation specifies that no individual shall
discriminate against any other individual because such other indi-
vidual has opposed any act or practice made unlawful by this Act
or because such other individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this Act.
Section 502(b) of the legislation specifies that it shall be unlawful
to coerce, intimidate; threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his or her having exer-
cised or enjoyed, or on account of his or her have aided or encour-
aged any other person in the exercise or enjoyment of, any right
granted or protected by this legislation.
Section 502(c) of the legislation specifies that the remedies and
procedures available under sections 106, 205, and 308 shall be avail-
able to aggrieved persons for violations of subsections (a) and (b).
State immunity
Section 503 of the legislation specifies that a State shall not be
immune under the Eleventh Amendment to the Constitution of the
United States from an action in Federal court for a violation of this
Act. In any action against a State for a violation of the require-
ments of this Act, remedies (including remedies both at law and in
equity) are available for such a violation to the same extent as
such remedies are available for such a violation in an action
against any public or private entity other than a State.
This provision is included in order to comply with the standards
for covering states set forth in the Atascadero State Hospital V.
Scanlon, 105 S. Ct. 3142 (1985).
Regulations by the Architectural and Transportation Barriers Com-
pliance Board
Section 504 specifies that not later than 6 months after the date
of enactment of this Act, the Architectural and Transportation
Barriers Compliance Board shall issue minimum guidelines, that
87
shall supplement the existing Minimum Guidelines and Require-
ments for Accessible Design for purposes of titles II and III.
These guidelines shall establish additional requirements, consist-
ent with this Act, to ensure that buildings, facilities, and vehicles
are accessible, in terms of architecture and design, transportation,
and communication, to individuals with disabilities.
The "Minimum Guidelines and Requirements for Accessible
Design" (MGRAD), as issued and revised by the Board have provid-
ed guidance to four Federal standard-setting agencies (the General
Services Administration, the Department of Defense, the Depart-
ment of Housing and Urban Development, and the U.S. Postal
Service) in their regulations establishing the Uniform Federal Ac-
cessibility Standards (UFAS).
The ADA directs the Board to issue supplemental guidelines and
requirements to guide two additional Federal standard-setting
agencies-the Department of Transportation and the Department
of Justice-in their development of regulations under this legisla-
tion.
The development of supplemental MGRAD will require the
Board to complete and expand its previous guidelines and require-
ments. There are some areas within the Board's MGRAD authority
in which it has not yet issued minimum guidelines. One such ex-
ample is the area of recreation. In 1985, "the Federal Government
Working Group on Access to Recreation Developed for the Board a
technical paper titled, "Access to Outdoor Recreation Planning and
Design," including technical requirements and specific guidelines,
but the Board has not officially issued minimum guidelines and re-
quirements in this area. The Committee expects the Board to take
prompt action to complete the filling of such gaps in the existing
MGRAD.
In issuing the supplemental minimum guidelines and require-
ments called for under this legislation, the Board should consider
whether other revisions or improvements of the existing MGRAD
(including scoping provisions) are called for to achieve consistency
with the intent and the requirements of this legislation. Particular
attention should be paid to providing greater guidance regarding
communication accessbility.
In no event shall the minimum guidelines issued under this legis-
lation reduce, weaken, narrow, or set less accessibility standards
than those included in existing MGRAD.
This legislation also explicitly provides that the Board is to de-
velop minimum guidelines for vehicles. The Committee intends
that the Board shall issue minimum guidelines regarding various
types of conveyances and means of transport that come within the
ambit of titles II and III of the legislation. Such guidelines should
include specifications regarding wheelchair lifts and ramps on vehi-
cles where necessary for boarding and getting off. The Board
should also review its minimum guidelines regarding stations and
other places of boarding or departure from vehicles to make sure
that they are coordinated with and complementary to the mini-
mum guidelines regarding vehicles.
88
Attorneys fees
Section 505 specifies that in any action or administrative pro-
ceeding commenced pursuant to this Act, the court or agency, in its
discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee, including litigation expenses,
and costs, and the United States shall be liable for the foregoing
the same as a private individual.
Technical assistance
Section 506 specifies that the Attorney General, in consultation
with the Secretary of Transportation, the Chairman of the Federal
Communications Commission, and the Secretary of Commerce,
shall, within 180 days after the enactment of this legislation, devel-
op and implement a plan to assist entities covered under this legis-
lation.
The Attorney General is authorized to obtain the assistance of
other Federal agencies in carrying out his or her responsibilities.
VII. REGULATORY IMPACT
In accordance with paragraph 11(b) of rule XXVI of the Standing
Rules of the Senate, the following statement of the regulatory
impact of S. 933 is made:
A. ESTIMATED NUMBER OF INDIVIDUALS AND BUSINESSES REGULATED
AND THEIR GROUPS OR CLASSIFICATIONS
S. 933 would regulate all private sector employers with 15 or
more employees. Data from the Equal Employment Opportunity
Commission for 1989 put the number of employers with 15 or more
employees at 666,000. The bill would regulate all units of State and
local government, which do not receive Federal aid. The total
number of units of State and local government in the United
States is 83,250. Many of these units of government already are
subject to section 504 of the Rehabilitation Act of 1973, as amend-
ed, which contains similar requirements to this bill.
S. 933 would also regulate private businesses engaged in com-
merce and open to the general public, of which Census Bureau fig-
ures indicate there are approximately 3.9 million. For new con-
struction, the ADA will add accessibility requirements not already
contained in existing State laws to 44 percent of new commercial
construction.
There are over 1500 telephone common carriers in the United
States that will be subject to the provisions of this law. The law
permits these companies to act in concert or to contract out to
third parties to provide this service over their networks, much as
they do today in providing various forms of operator services. The
legislation deliberately leaves these options to the carriers in order
to encourage them to find the most economically efficient means of
providing the service.
Approximately forty-three million persons with disabilities will
be entitled to the protections of this legislation as employees, job
applicants, clients and customes of places of public accommodation,
and users of telephone services. There are approximately 24 mil-
lion hearing impaired and 2.75 million speech impaired persons in
89
the United States that will benefit from having telecommunication
relay service available to them.
B. ECONOMIC IMPACT ON THE INDIVIDUALS, CONSUMERS AND
BUSINESSES AFFECTED
Individuals with disabilities will have barriers to participation in
all aspects of our society eliminated, permitting them to be em-
ployed, use public transportation, enjoy the services of State and
local governments and public accommodations and use telephone
services.
Savings to the public and private sectors in the form of increased
earnings for people with disabilities and decreased government
benefit and private insurance and benefit payments is estimated to
be in the billions of dollars per year.
Costs to businesses for reasonable accommodations are expected
to be less than $100.00 per worker for 30% of workers needing an
accommodation, with 51% of those needing an accommodation re-
quiring no expenses at all. A Louis Harris national survey of
people with disabilities found that among those employed, accom-
modations were provided in only 35% of the cases.
For renovation and new construction, costs of accessibility are
generally between zero and one percent of the construction budget.
For new buses, lifts are available for approximately $11,000 per
bus, with a Federal subsidy for 80% of the capital costs of munici-
pal buses. There are no reliable figures for determining how much
the provision of telecommunications relay service will cost. AT&T
has informally estimated the cost to be around $300 million, while
the Federal Communications Commission's estimate is $250 mil-
lion. This translates to about $1.20 per customer per year.
Impact of the act on personal privacy
The Committee believes that this legislation has no significant
impact on personal privacy. With respect to telecommunications,
the legislation contains provisions to ensure that the privacy of the
individuals using the service is protected. Section 225(d)(1)(F) of the
Communications Act of 1934, as added by this legislation, specifi-
cally prohibits relay operators from disclosing the content of any
relayed conversation and from keeping records of the content of
any conversations beyond the duration of the call. Section
225(d)(1)(G) also prohibits relay operators from intentionally alter-
ing a relayed conversation. The Federal Communications Commis-
sion is directed to adopt regulations to enforce these provisions.
Violators of these provisions are subject to the penalty provisions
contained in the Communications Act.
Additional paperwork, time and costs
With respect to titles I (employment), II (public services), and III
(public accommodations), the bill would result in some additional
paperwork, time and costs to the EEOC, the Justice Department,
and the Department of Transportation, which are entrusted with
the enforcement of the Act. The bill does not contain additional
recordkeeping requirements.
90
With respect to title IV (telecommunication relay services), this
legislation will require minimal amount of paperwork. The Federal
Communications Commission must adopt rules to implement this
legislation, and for this purpose should collect and review com-
ments from interested parties. The Commission has an outstanding
rulemaking proceeding at the present time which can be supple-
mented to implement this legislation. This should reduce the regu-
latory burden on the Commission and interested parties. Some ad-
ditional paperwork will be required of States that wish to certify
their programs with the Commission. One certified, however, the
enforcement and paperwork burdens will be transferred to the
State with minimal oversight by the Commission. Further, once the
carriers have established systems that comply with this legislation,
additional oversight and paperwork should be minor.
VIII. COST ESTIMATE
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, August 29, 1989.
Hon. EDWARD M. KENNEDY,
Chairman, Committee on Labor and Human Resources,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has re-
viewed S. 933, the Americans with Disabilities Act of 1989, as or-
dered reported by the Committee on Labor and Human Resources
on August 2, 1989. CBO estimates enactment of S. 933 would result
in no direct spending by the federal government. The bill would re-
quire several agencies to establish regulations and standards with
regard to this bill. We estimate the costs of these activities to be
$20 million in fiscal year 1990 and $19 million annually in 1991-
1994, assuming appropriation of the necessary funds. The costs to
state and local governments are likely to be greater, particularly
for improvements in transit systems. While these costs cannot be
precisely estimated, they are discussed under costs to state and
local governments.
If enacted, S. 933 would prohibit discrimination against people
with disabilities in areas such as employment practices, public ac-
commodations and services, transportation services and telecom-
munication services. S. 933 would require that the Equal Employ-
ment Opportunities Commission, the Department of Transporta-
tion, the Architectural and Transportation Barriers Compliance
Board, the Department of Justice, and the Federal Communica-
tions Commission develop and issue regulations and standards for
implementation and enforcement of this Act.
IMPACT ON THE FEDERAL BUDGET
Equal Employment Opportunities Commission (EEOC).-Title II-
Public Services-would prohibit discrimination by employers
against qualified individuals with disabilities. S. 933 would require
the EEOC to issue regulations to carry out Title II and to provide
for enforcement of the provisions. Although no specific authoriza-
tion level is stated in the bill, CBO estimates this cost would be $15
million annually. This estimate is based on the EEOC's past experi-
91
ence with enforcing civil rights standards and assumes that ap-
proximately 240 additional full-time employees would be need for
the Commission's 52 field offices and that approximately 70 addi-
tional staff would be needed for the EEOC headquarters.
Department of Transportation.-S. 933 would direct the Secretary
of Transportation to issue regulations within one year including
standards applicable to the facilities and vehicles covered by these
provisions. CBO estimates that the cost to the federal government
of developing these regulations would be about $0.5 million in fiscal
year 1990. In addition, the federal government might bear some
part of the costs of making transit services accessible to the handi-
capped, which are discussed below. The capital and operating costs
of most mass transit systems are heavily subsidized by the federal
government through grants by the Urban Mass Transportation Ad-
ministration. We cannot predict the extent to which these grants
might be increased to compensate for the additional costs attributa-
ble to S. 933.
Architectural and Transportation Barriers Compliance Board.-S.
933 would require the board to develop, issue, and maintain mini-
mum guidelines for the design of accessible buildings, facilities and
vehicles, and to establish an advisory committee for the following
study. The board would be required to undertake a study to deter-
mine (1) the needs of individuals with disabilities with regards to
buses and (2) a cost-effective method for making buses accessible
and usable by those with disabilities. Although no specific authori-
zation level is stated in the bill, CBO estimates the cost of the
guidelines, study and advisory committee would be $0.3 million in
fiscal year 1990, $0.3 million in 1991, $0.1 million in 1992, $0.1 mil-
lion in 1993 and $0.2 million in 1994. The cost estimate for this sec-
tion fluctuates because: (1) salaries and expense costs ($104,000) are
reflected in all years, (2) the study costs ($150,000) are reflected in
fiscal years 1990 and 1991, (3) the advisory committee costs
($40,000) are reflected in 1991 and 1992, and (4) the research con-
tracts costs ($80,000) for updating the minimum guidelines are re-
flected in 1994. This estimate assumes that 2.5 additional full-time
employees would be needed as well as additional research contracts
for the study and guidelines.
Department of Justice.-S. 933 also would require the Attorney
General to develop regulations to carry out sections 201 and 202 of
Title II-Public Services-and to investigate alleged violations of
Title III-Public Accommodations-which includes undertaking
periodic reviews of compliance of covered entities under Title III.
These regulations would ensure that a qualified individual with a
disability would not be excluded from participation in, or denied
benefits by a department, agency, special purpose district or other
instrumentality of a state or local government. Based on discus-
sions with staff in the Department of Justice and on comparisons
with the costs of similar tasks in other agencies, we estimate the
cost of these activities would be $4 million annually.
Federal Communications Commission (FCC).-S. 933 requires the
FCC to prescribe and enforce regulations with regards to telecom-
munications relay services. These regulations include: (1) establish-
ing functional regulations, guidelines and operations for telecom-
munications relay services, (2) establishing minimum standards
92
that shall be met by common carriers, and (3) ensuring that users
of telecommunications relay services pay rates no greater than
rates paid for functionally equivalent voice communication services
with respect to duration of call, the time of day, and the distance
from point of origination to point of termination. While no authori-
zation level is stated, CBO estimates the cost of developing and en-
forcing these regulations to be $0.1 million in fiscal year 1990, neg-
ligible in fiscal year 1991, $0.2 million in 1992, $0.2 million in 1993,
and $0.1 million in 1994. The FCC anticipates a lull in fiscal year
1991 because the states will be designing telecommunications relay
systems and there won't be much FCC involvement. During fiscal
years 1992 and 1993, the actual certification and evaluation of state
programs would occur.
In addition to the federal costs of establishing and enforcing new
regulations, S. 933 could also affect the federal budget indirectly
through changes in employment and earnings. If employment pat-
terns and earnings were to change, both federal spending and fed-
eral revenues could be affected. There is, however, insufficient data
to estimate these secondary effects on the federal budget.
COSTS TO STATE AND LOCAL GOVERNMENTS
Public Buildings.-S 933 would mandate that newly constructed
state and local public buildings be made accessible to the handi-
capped. All states currently mandate accessibility in newly con-
structed state-owned public buildings and therefore would incur
little or no costs if this bill were to be enacted. It is possible, how-
ever, in rare cases, for some local governments not to have such
law. These municipalities would incur additional costs for making
newly-constructed, locally-owned public buildings accessible if this
bill were to become law. According to a study conducted by the De-
partment of Housing and Urban Development in 1978, the cost of
making a building accessible to the handicapped is less than one
percent of total construction costs. This estimate assumes that the
accessibility features are included in the original building design.
Otherwise, the costs could be much higher.
Public Transit.-Due to the limited time available to prepare
this estimate, CBO cannot provide a comprehensive analysis of the
impact of S. 933 on mass transit costs of state and local govern-
ments. The scope of the bill's requirements in this area is very
broad, many provisions are subject to interpretation, and the po-
tential effects on transit systems are significant and complex.
While we have attempted to discuss the major potential areas of
cost, we cannot assign a total dollar figure to these costs.
S. 933 would require that all new buses and rail vehicles be ac-
cessible to handicapped individuals, including those who use wheel-
chairs, and that public transit operators offer paratransit services
as a supplement to fixed route public transportation. In addition,
the bill includes a number of requirements relating to the accessi-
bility of mass transportation facilities. Specifically, all new facili-
ties, alterations to existing facilities, intercity rail stations, and key
stations in rapid rail, commuter rail, and light rail systems would
have to be accessible to handicapped persons.
93
Bus and Paratransit Services.-CBO estimates that it would cost
state and local governments between $20 million and $30 million a
year over the next several years to purchase additional lift-
equipped buses as required by S. 933. Additional maintenance costs
would increase each year as lift-equipped buses are acquired, and
would reach $15 million by 1994. The required paratransit systems
would add to those costs.
Based on the size of the current fleet and on projections of the
American Public Transit Association (APTA), CBO expects that
public transit operators will purchase about 4,300 buses per year,
on average, over the next five years. About 37 percent of the exist-
ing fleet of buses is currently equipped with lifts to make them ac-
cessible to handicapped individuals and, based on APTA projec-
tions, we estimate that an average of 55 percent to 60 percent of
future bus purchases will be lift-equipped in the absence of new
legislation. Therefore, this bill would require additional annual
purchases of about 1,900 lift-equipped buses. Assuming that the
added cost per bus for a lift will be $10,000 to $15,000 at 1990
prices, operators would have to spend from $20 million to $30 mil-
lion per year, on average, for bus acquisitions as a result of this
bill.
Maintenance and operating costs of lifts have varied widely in
different cities. Assuming that additional annual costs per bus av-
erage $1,500, we estimate that it would cost about $2 million in
1990, increasing to $15 million in 1994, to maintain and operate the
additional lift-equipped buses required by S. 933.
In addition, bus fleets may have to be expanded to make up for
the loss in seating capacity and the increase in boarding time
needed to accommodate handicapped persons. The cost of expand-
ing bus fleets is uncertain since the extent to which fleets would
need to be expanded depends on the degree to which handicapped
persons would utilize the new lift-equipped buses. If such use in-
creases significantly, added costs could be substantial.
These costs are sensitive to the number of bus purchases each
year, which may vary considerably. In particular, existing Environ-
mental Protection Agency emissions regulations may result in ac-
celerated purchases over the next two years as operators attempt
to add to their fleets before much more stringent standards for new
buses go into effect. Such variations in purchasing patterns would
affect the costs of this bill in particular years. In addition, these
estimates reflect total costs for all transit operators, regardless of
their size. Costs may fall disproportionately on smaller operators,
who are currently more likely to choose options other than lift-
equipped buses to achieve handicapped access.
The bill also requires transit operators to offer paratransit or
other special transportation services providing a level of service
comparable to their fixed route public transportation to the extent
that such service would not impose an "undue financial burden".
Because we cannot predict how this provision will be implemented,
and because the demand for paratransit services is very uncertain,
we cannot estimate the potential cost of the paratransit require-
ment, but it could be significant. The demand for paratransit serv-
ices probably would be reduced by the greater availability of lift-
equipped buses.
94
Transit Facilities.-We expect that the cost of compliance with
the provisions concerning key stations would be significant for a
number of transit systems, and could total several hundred million
dollars (at 1990 prices) over twenty years. The precise level of these
costs would depend on future interpretation of the bill's require-
ments and on the specific options chosen by transit systems to
achieve accessibility. The costs properly attributable to this bill
would also depend on the degree to which transit operators will
take steps to achieve accessibility in the absence of new legislation.
In 1979, CBO published a study (Urban Transportation for Handi-
capped Persons: Alternative Federal Approaches, November 1979)
that outlined the possible costs of adapting rail systems for handi-
capped persons. In that study, CBO estimated that the capital costs
of adapting key subway, commuter and light rail stations and vehi-
cles for wheelchair users would be $1.1 billion to $1.7 billion, while
the additional annual operating and maintenance costs would be
$14 million to $21 million.
Based on a 1981 survey of transit operators, the Department of
Transportation has estimated that adapting key stations and tran-
sit vehicles would require additional capital expenditures of $2.5
billion over 30 years and would result in additional annual operat-
ing costs averaging $57 million (in 1979 dollars) over that period.
Many groups representing the handicapped asserted that the as-
sumptions and methodology used by-the transit operators in this
survey tended to severely overstate these costs. The department es-
timated that the cumulative impact of using the assumptions put
forth by these groups could lower the total 30-year costs to below
$1 billion.
CBO believes that the figures in both these studies significantly
overstate the cost of the requirements of S. 933, because, in the in-
tervening years, several of the major rail systems have begun to
take steps to adapt a number of their existing stations for handi-
capped access. In addition, based on a draft of language in the com-
mittee's report on this bill, we expect that the number of stations
that would be defined as "key" under this bill would be much
lower than that assumed in either of those studies. Furthermore,
the Metropolitan Transit Authority in New York and the South-
eastern Pennsylvania Transportation Authority in Philadelphia,
two large rail systems, have entered into settlement agreements
with handicapped groups that include plans for adaptation of key
stations. The committee's draft report language indicates that
these plans would satisfy the bill's requirement for accessibility of
key stations. Other rail systems are also taking steps to make exist-
ing stations accessible. Therefore, we expect that the cost of the
bill's requirements concerning key stations would probably not be
greater than $1 billion (in 1990 dollars) and might be considerably
less.
If you wish further details on this estimate, we will be pleased to
provide them. The CBO staff contacts are Cory Leach (226-2820)
and Marjorie Miller (226-2860).
Sincerely,
ROBERT D. REISCHAUER,
Director.
95
IX. CHANGES IN EXISTING LAWS
In the opinion of the Committee, it is necessary to dispense with
the requirements of paragraph (12) of rule XXVI of the Standing
Rules of the Senate in order to expedite the business of the Senate.
ADDITIONAL VIEWS OF SENATOR HATCH
The story of America is one of ever growing inclusiveness, as
more and more Americans have become able to participate in the
great mainstream of American life. Persons with disabilities, no
less than other Americans, are entitled to an equal opportunity to
participate in the American dream.
Indeed, through their own efforts, and with the benefit of a grow-
ing array of programs and antidiscrimination provisions at the
local, state, and federal levels designed to enhance their abilities to
lead lives of independence, not dependence, persons with disabil-
ities have long been writing an inspiring chapter in this quintes-
sential American story. Persons with disabilities, through their
hard work and determination, have already made great advances
and destroyed many stereotypes which have been used to deny
them equal opportunities in the past. They have demonstrated they
are no "insular minority" in America. But more can still be done.
to provide equal opportunity for persons with disabilities.
At the outset of the hearings on S. 933, I stated my support for a
comprehensive federal civil rights bill banning discrimination
against persons with disabilities. Such protection against discrimi-
nation is long overdue. At the same time, I also expressed the view
that such legislation must be both meaningful and reasonable. Ac-
cordingly, I was unable to endorse S. 933, as introduced. There
were several serious problems with S. 933, as introduced, including:
its excessive penalty scheme; its breadth of coverage of "public ac-
commodations"; its significant departure from the standards of Sec-
tion 504 of the Rehabilitation Act of 1973, which bans disability dis-
crimination in programs or activities receiving federal aid and in
federally conducted programs; and its onerous treatment of the pri-
vate bus industry.
The substitute version, which emerged from a period of negotia-
tions and was adopted unanimously by the Labor and Human Re-
sources Committee, is still not a perfect compromise. It retains fea-
tures that I believe merit further improvement. But it incorporated
enough important changes to enable me to cosponsor it at the
mark-up, while I reserved my right to pursue further changes on
the Floor.
At the mark-up, the Committee accepted an amendment which I
offered, requiring the Attorney General, in consultation with other
federal agencies, to develop and implement a plan to assist covered
entities in understanding their duties under the bill.
I also have further concerns about the bill in certain areas.
I. SMALL BUSINESS EXEMPTION FOR PUBLIC ACCOMMODATIONS
Title I of the bill bans employment discrimination and is effec-
tive in two years. At that time, the employment discrimination pro-
(96)
97
visions will apply to employers with 25 or more employees for each
working day in each of 20 or more calendar weeks in the current
or preceding year. Two years thereafter-four years after enact-
ment-the employment provisions will apply to employers of 15 or
more employees.
Title III of the bill covers "public accommodations and services
operated by private entities." Private entities defined as "potential
places of employment" are subject only to accessibility require-
ments concerning new facilities designed and constructed for first
occupancy later than 30 months after the bill's enactment. These
entities include facilities intended for nonresidential use and whose
operations affect commerce. Section 301(2).
Private entities defined as "public accommodations," which in-
clude much of the private sector, are subject not only to this new
construction requirement but also to a wide variety of prohibitions
and obligations with respect to their existing facilities and general
policies. These prohibitions and obligations pertain to a business in
its treatment of customers, clients, and visitors.
The term "public accommodation" is defined very broadly. It in-
cludes not only businesses covered by Title II of the 1964 Civil
Rights Act, which bans racial, ethnic, and religious discrimination
in public accommodations, defined as places of eating; places of
lodging; places of entertainment; and gasoline stations, but it also
includes retail stores, service establishments, and other elements of
the private sector. Section 301(e).¹
This ban on discrimination in privately operated "public accom-
modations" in Title III of the bill is effective 18 months after enact-
ment. In stark contrast to the small business exemption from the
bill's employment provisions, however, the bill contains no small
business entity exemption whatsoever from these public accommo-
dations provisions.
Thus, the bill creates the following anomaly: a mom-and-pop gro-
cery store is not subject to the bill when it hires a clerk as a new
employee, but it is subject to all of the bill's requirements in its
treatment of customers, as well as to an extremely onerous penalty
scheme when it violates any of these requirements.
Even under the standards of the substitute bill, the costs some
small businesses may incur can be significant.² In the disability
rights area, nondiscrimination requirements, including those in
this bill, not only require elimination of outright exclusion based
on stereotypes, they often impose additional duties to make reason-
able accommodations to the needs of persons with disabilities. I
support these requirements. But, we must acknowledge that these
1 Religious organizations and entities controlled by religious organizations are completely
exempt from coverage under Title III.
2 Some persons may assert that costs should not be a factor in designing a disability civil
rights law. In the context of a disability rights law, however, costs may have to be incurred in
order to provide nondiscriminatory treatment; e.g., putting in a ramp, providing auxiliary aids
and services, and other accommodations. Indeed, the failure to incur reasonable costs in order to
provide access is regarded as discriminatory. At some point, however, the undertaking of an ac-
commodation can be so costly or represent such a fundamental alteration in the covered entity's
program that the failure to undertake the accommodation is simply not discriminatory. This
principle reflects Supreme Court caselaw interpreting Section 504 of the Rehabilitation Act of
1973. E.g. School Board of Nassau County V. Arline, 480 U.S. 273, 287 n. 17 (1987); Alexander V.
Choate, 469 U.S. 287 (1985); Southeastern Community College V. Davis, 442 U.S. 397, 409-414
(1979).
98
accommodations can cost money. Sometimes the cost is not great,
but even under the standards of this bill, these costs can be more
than de minimus where necessary to provide accessibility. This is a
crucial difference between a disability civil rights statute and a
civil rights statute in the race area. In order to provide equal treat-
ment to racial minorities, a business need only disregard race and
judge a person on his or her merits. To provide equal opportunity
for a person with a disability will sometimes require additional ac-
tions and costs than those required to provide access to a person
without a disability.
For example, under the public accommodations title of this bill,
covered entities must seek to provide "full and equal enjoyment of
[their] goods, services, facilities, privileges, advantages and accom-
modations." Section 302(a). Among the specific requirements appli-
cable to the smallest businesses are:
1. The obligation to provide auxiliary aids and services to persons
with disabilities, unless to do so would cause either an undue
burden to the entity or a fundamental alteration in its activities.
Section 302(b)(2)(A)(iii). Auxiliary aids and services are defined in
Section 3(1) and can include providing qualified interpreters, quali-
fied readers, signage, taped texts; the acquisition or modifications
of equipment or devices; and similar actions and devices.
2. The obligation to make reasonable modifications in policies,
practices, and procedures, unless doing so fundamentally alters the
entity's activities. Section 302(b)(2)(A)(ii).
3. The obligation to remove "architectural barriers, and commu-
nication barriers that are structural in nature, in existing facilities
where such removal is readily achievable.' Section
302(b)(2)(A)(iv). The term "readily achievable" is defined in Section
301(5).
4. The obligation to remove "transportation barriers in existing
vehicles used by an establishment for transporting individuals (not
including barriers that can only be removed through the retrofit-
ting of vehicles by the installation of a hydraulic or other lift),
where such removal is readily achievable." Section 302(b)(2)(A)(iv).
5. Where the removal of a barrier described in paragraphs 3 and
4 is not readily achievable, an obligation "to make [the entity's]
goods, services, facilities, privileges, advantages available through
alternative methods if such methods are readily achievable." Sec-
tion 302(b)(2)(A)(v).
6. The elimination of eligibility criteria that screen out or tend to
screen out a person or persons with disabilities unless the criteria
are shown to be necessary to the conduct of the activity in ques-
tion. Section 302(b)(2)(A)(i).
While these requirements will, in theory, generally translate into
less actual cost the smaller the entity, any financial or administra-
tive impact on the smallest businesses can be very troublesome for
those businesses. Even comparatively "lesser" costs can be quite
burdensome for a small business struggling to survive. Further, the
determination as to whether an accommodation is an undue
burden or a barrier removal is readily achievable may ultimately
be made by a federal agency or judge. A small business is less able
to absorb an overreaching determination by these authorities than
a larger business.
99
Moreover, government compliance reviews (Section 308(b)(1)), and
the costs of private as well as Attorney General litigation, will add
further to those expenses small businesses must bear under the
bill's public accommodation title. Indeed, in a private enforcement
action, a plaintiff can obtain injunctive relief and attorneys fees.
For larger businesses, these costs can be more readily absorbed and
passed on to a large consumer base. For some smaller businesses,
the cost of compliance with injunctive relief combined with attor-
neys fees might be onerous.
But it is the penalty scheme in an Attorney General action to
enforce the public accommodations title that is of particular con-
cern. In an Attorney General action, a court, at the request of the
Attorney General, can order the smallest business to pay monetary
damages to aggrieved persons. Moreover, the court can order such
a business to pay a civil penalty of up to $50,000 for a first viola-
tion and up to $100,000 for subsequent violations. This remedy
scheme is potentially a very heavy burden, which I will also ad-
dress as a separate concern.
Opponents of a small business exemption in the public accommo-
dations title of S. 933 claim that since Title II of the 1964 Civil
Rights Act has no small business exemption, neither should S. 933.
There are several responses to this argument:
1. S. 933 already departs from Title II of the 1964 Civil Rights
Act in two important ways:
A. Title II only covers places of eating, lodging, entertainment,
and gasoline stations. S. 933 goes well beyond such coverage, en-
compassing virtually all elements of the private sector as "public
accommodations" or "potential places of employment," except reli-
gious organizations and entities controlled by religious organiza-
tions.
B. Title II provides only for injunctive relief in Attorney General
actions; this bill, as mentioned earlier, permits recovery of mone-
tary damages and huge civil fines in Attorney General actions.
Thus, it is inconsistent for the opponents of a small business ex-
emption to rely upon Title II as the basis for their opposition when
they have so readily departed from that parallel statute in other
important respects.
2. In any case, compliance with Title II of the 1964 Civil Rights
Act imposes no costs-it simply requires admitting and serving per-
sons without regard to their color, ethnicity, or religion. As men-
tioned earlier, compliance with S. 933 can result in costs to covered
entities. This difference between Title II and S. 933 alone justifies a
small business exemption in public accommodations.
I favor an exemption of small businesses from the prohibitions
and obligations in the public accommodations provisions of the bill,
i.e., provisions relating to a business's existing facilities and gener-
al policies. I would not, however, exempt any public accommoda-
tion from the requirement that its new facilities be accessible. The
cost of accessibility to a new facility when "built-in" to the plans
and construction of such a new facility is not burdensome. But for
businesses in the operation of their existing facilities and in the
provision of auxiliary aids and services, modifications of policies,
procedures, and criteria, a small entity exemption is appropriate.
100
I also believe that even with an exemption for small businesses,
the marketplace will exert pressure on small businesses which will
lead to increased accessibility. When a small business operator sees
a larger competitor gain customers with disabilities because the
latter business is accessible, the small business operator is likely to
take steps it can afford to get some of those customers-even if
those steps don't meet every single requirement of this title-with-
out exposure to the costs of compliance reviews and litigation.
With this voluntary activity, the requirement that all new facili-
ties be accessible, and the full coverage of all "public accommoda-
tions" other than small businesses, I believe we can provide genu-
ine access to public accommodations for persons with disabilities,
while assuring that we do not overly burden small businesses in
America.
II. EXCESSIVE PENALTIES AGAINST PUBLIC ACCOMMODATIONS
Under Title II of the 1964 Civil Rights Act (hereinafter "Title
II"), as mentioned earlier, a private plaintiff can obtain injunctive
relief and attorneys fees. The Attorney General can obtain injunc-
tive relief. No monetary damages or civil penalties are available in
either action.
Under S. 933, in an action for a violation of the public accomoda-
tions title, a private plaintiff can obtain an injunction and attor-
neys fees. I believe such relief, paralleling+that of Title II, is appro-
priate.
But, in an Attorney General action under this bill the court can
award not only an injunction, but also civil penalties of up to
$50,000 for a first violation, and up to $100,000 for subsequent vio-
lations. Further, the court can award monetary damages to ag-
grieved persons when requested to do so by the Attorney General.
This relief is excessive and unjustifiable.
The threat of litigation, its cost to covered entities, the added ex-
pense of paying the plaintiff's attorneys fees in private litigation,
and marketplace factors are all powerful incentives for a business
to comply with this bill in the first instance.
Moreover, if an entity is in noncompliance, injunctive relief is
significant. An injunction requires the offending entity to cease its
discrimination. If a ramp must be put in, a bathroom made accessi-
ble, or policies changed, pursuant to the entity's duties under the
bill's public accommodations provisions, a court can order such
relief.
Everyone knows that 25 years ago black people and other racial
and ethnic minorities were routinely denied the opportunity to eat,
to lodge, and to be entertained in places they could afford. Today,
while there are still instances of racial and ethnic discrimination
in public accommodations, we face an entirely different situation.
The public accommodations covered by Title II are now essentially
open on a nondiscriminatory basis. This resulted largely from Title
II's enactment, with the injunctive relief and attorneys fees en-
forcement scheme previously described.
Yet, relief in an Attorney General action against a public accom-
modations under this bill goes well beyond the relief available in
an Attorney General action under Title II.
101
Ironically, a private party, in his own action, cannot obtain mon-
etary damages for himself. The court can award monetary dam-
ages, however, to an aggrieved person, in an Attorney General
action.
There is a further anomaly in the bill. The bill subjects state and
local governments to the remedies available under Section 505 of
the Rehabilitation Act of 1973. Under Section 505, a federal
agency, in an enforcement action, may either terminate federal aid
to the part of a covered entity where the discrimination occurs or it
may refer the case to the Department of Justice for injunctive
relief. Civil penalties are not recoverable by the federal govern-
ment in an enforcement action. Thus, in an Attorney General
action, state and local governments, with their enormous tax re-
sources, are subject to lesser penalties than the private sector,
which is not supported by tax revenues or, for the most part, feder-
al aid. The potential for a sole proprietor, a mom-and-pop business,
or any other business to be more harshly sanctioned than a state
or local government in an Attorney. General action requires further
consideration.
Our purpose here should not be punitive. Providing for monetary
damages and huge civil penalties in Attorney General actions is ex-
cessive. To the extent we are trying to provide access by enacting
this bill, since such access can impose costs on covered entities,
rather than penalize a public accommodation by imposing mone-
tary damages and huge civil penalties, we should keep the money
available to the entity for use in providing access pursuant to the
injunctive relief.
Proponents of the stiff remedy provisions in S. 933 assert that it
parallels remedies now available in an Attorney General action
under the Fair Housing Act, as amended last year. This analogy,
however, is unpersuasive.
In the field of housing, the original remedies of the 1968 Fair
Housing Act proved inadequate to the task of rooting out racial
and ethnic discrimination in housing as quickly as hoped. Why? In
my opinion, it is because housing discrimination is probably the
most peristent form of racial discrimination in the nation today.
Thus, toughening the penalties for such discrimination in 1988
made sense and I supported the effort to do SO.
But the record in the public accommodations area is much differ-
ent. As mentioned earlier, the Title II penalties-injunctive relief
and attorneys fees-have been adequate to work a revolution of
equal opportunity.
If the Fair Housing Amendments Act of 1988 had not added dis-
ability discrimination to the list of prohibited conduct under the
Fair Housing Act, and a ban on housing discrimination on the
basis of disability was being added in this bill, the use of Fair
Housing Act remedies for such housing discrimination would be ap-
propriate. It is inappropriate, however, to use the Fair Housing
Act, rather than Title II of the 1964 Civil Rights Act, as the ana-
logue for the remedies in the public accommodations context in
this bill.
I note that, with respect to employment discrimination, S. 933
uses the remedies available under the parallel civil rights statute,
102
Title VII of the 1964 Civil Rights Act. Unfortunately, this parallel-
ism was not maintained with respect to public accommodations.
I prefer to retain such parallelism in remedies. I am prepared,
however, to break the parallelism with Title II and to consider a
more modest enforcement scheme in this area that goes beyond
Title II relief but is more reasonable than the provision currently
in the bill.
III. THE BILL'S THREAT TO THE PRIVATE BUS TRANSPORTATION
INDUSTRY
The bill applies to transportation services "provided by a private-
ly operated entity that is primarily engaged in the business of
transporting people," except for air carriers. Section 304(a). This
coverage includes private rail, limousine, taxi, and bus companies.
I am especially concerned about this bill's impact on the private
bus transportation industry. The bill imposes a variety of require-
ments on these companies, including:
1. The obligation to make reasonable modifications in policies,
practices, and procedures, unless to do so would fundamentally
alter the company's activities. Section 304(b)(2)(A).
2. The obligation to provide auxiliary aids and services to persons
with disabilities, unless to do so would cause an undue burden or
fundamentally alter the company's activities. Section 304(b)(2)(B).
3. The obligation to remove "transportation barriers in existing
vehicles
where such removal is readily achievable." This obli-
gation does not include the addition of a lift. Section 304(b)(2)(C).
4. Where the removal of a barrier described in paragraph 3 is not
readily achievable, an obligation "to make [the entity's] goods, serv-
ices, facilities, privileges, advantages available through alternative
methods if such methods are readily achievable." Section
304(b)(2)(C).
I favor these provisions.
The truly onerous provision, however, is the requirement that all
small bus companies must purchase or lease all new over-the-road
buses with lifts six years after the bill's enactment; large bus com-
panies must do so beginning five years after enactment. In the
meantime, ironically having imposed this major requirement on
the private bus transportation industry, the bill requires a three-
year study to determine whether this requirement is, in effect, fea-
sible. The requirement, however, is not contingent on the results of
the study-it remains in place under this bill even if the study
shows that the requirement is excessive.
The bill, in its present form, presents the strong likelihood that
private intercity and charter and tour bus service will be seriously
curtailed soon after the bill's new bus requirements become effec-
tive, if not virtually eliminated at some point thereafter. The
stakes are that high.
Unlike state and local government mass transit, which is heavily
subsidized by the federal government, private transportation com-
panies receive virtually no federal aid. Private companies provide
virtually all of the intercity bus transportation in the country.
There are well over one thousand such private, intercity bus com-
panies, such as Greyhound, Gold Line, East Coast Parlor, and Peter
103
Pan. Some of these companies provide two kinds of services: over
the road regular route service-that is, scheduled service between
communities-and charter and tour services. Other companies pro-
vide only charter and tour services.
These companies serve about 10,000 communities, most of which
have no other intercity transportation available to them. The
number of communities served has been declining in the last 30
years. According to an Interstate Commerce Commission staff anal-
ysis, there was a net loss of nearly 3,400 communities receiving
intercity bus service between 1982 and 1986 alone. Ninety percent
of the communities losing this service had populations of less than
10,000. This industry operates on a low profit margin. In many
rural areas, including in Utah, this private bus service is the only
available intercity transportation. There is only token Amtrak
service available. Intercity buses provide transportation for those
who need a low cost transportation alternative.
The requirement that all new buses have wheelchair lifts would
quickly accelerate the loss of private, intercity bus service to our
nation's communities, if not entirely end such service, according to
the American Bus Association, United Bus Owners of America, and
Greyhound (the largest company). Delaying this result by five or
six years, in the hope an efficient and economical lift will appear
on the scene, is small comfort.
A lift for an intercity bus is more expensive than for an intracity
bus, such as the Metrobuses used in the District of Columbia, be-
cause with the baggage compartment and other differences, access
to the intercity bus is higher off the ground-as much as four or
six feet, rather than one foot for an intracity bus.
The added costs for new buses for these private companies in-
clude not only the cost of the lift but widening the aisles and
making the bathrooms accessible. There are maintenance costs—
and there is little experience with maintenance of intercity bus
lifts. There will be a loss of as many as four seats, which especially
hurts bus companies during their peak periods, such as holiday pe-
riods. Moreover, particularly in rural areas, these companies are
successful because of their package express service. The room avail-
able for carrying such packages, however, is reduced in lift-
equipped buses.
Even if the least expensive lift is used on all new buses-and this
is, I am told, a lift which has had little use in this country and one
which not all bus companies might feel is suited to their oper-
ations-the cost of this provision is unreasonable. Indeed, I under-
stand that the principal basis for this provision is information from
the Regional Transportation District of Denver, Colorado. Accord-
ing to the Department of Transportation, however, Denver has
only 17 buses which use a "less expensive" lift developed in Germa-
ny. I understand these buses have been in use in Denver for about
one year. Moreover, according to the Department of Transporta-
tion, Denver uses these buses on one-way routes of less than 30
miles. This usage is atypical for the private bus industry as a
whole, which consists of some 20,000 buses which travel far greater
distances on trips.
Representatives of the private bus transportation industry have
stated that their lowest annual cost estimate for the bill's require-
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ment regarding new buses, which includes lift and accessible rest-
room installation, loss of revenuè seats for lift and restroom access-
ibility, maintenance costs, and training costs would be so high as to
seriously threaten the viability of the private bus transportation in-
dustry. This lowest annual cost estimate is based on a cost of
$10,100 per new bus for each year its service, and assumes a 10-
year life span for the industry's 20,000 bus fleet. In other words,
under this analysis, each new bus will cost a company $101,000
over the life of the bus. I note that representatives of the industry
believe these estimates are unrealistic and actual costs will be
higher.
The Committee heard virtually no testimony on this vital issue.
I, along with proponents of the present provision, can point to
correspondence from officials of the Denver system and the Ameri-
can distributor of the lift in question citing a variety of different
figures and costs related to wheelchair accessibility for these over-
the-road buses. Following the hearings on the bill, the cost figures
have been flying back and forth concerning costs associated with
the lift which has recently begun to be used in Denver. The dispute
over the utility of any particular lift and its costs are precisely why
a study is most appropriate.
I support a requirement that bans discrimination based on
stereotypes against persons with disabilities in their use of private-
ly operated buses. aI also support a requirement that private bus
companies make reasonable accommodations to the needs of per-
sons with disabilities with respect to their current bus fleet.
The Committee, however, simply has not been presented with
enough clear testimony and data to know what is reasonable with
respect to requirements such as lifts on new buses purchased or
leased by the private bus industry. That is why a study of private
bus accessibility, followed by Congressional action based on the
study, is the most sensible course of action with respect to any
future requirements, such as lifts, concerning new buses.
It might be suggested that this bill will have no significant
impact on bus companies for the next five years. Even this sugges-
tion is doubtful. In an August 1, 1989, letter to Roger Porter, do-
mestic policy advisor to the President, Theodore Knappen, a Senior
Vice President at Greyhound Lines, Inc., opposed this provision of
S. 933. He wrote, "Greyhound Lines Inc. is a new company, which
is the result of the merger of two failing bus systems, Greyhound
and Trailways. We are highly leveraged with $375 million in debt
Greyhound "lost $17 million last year and will be marginal-
ly profitable this year. The annual cost of full implementation of
S. 933 will be at a minimum, $40 million. Even if the startup is de-
layed for five years, the financial institutions upon which we rely
are not likely to continue to support us in light of this burden. The
system will inevitably crumble with the marginal rural service
being the first to go. I should add that most small bus companies
are in a similar financial situation."
In summary, the current provision regarding the private bus
transportation industry's purchase and lease of readily accessible
new buses rests on inadequate and contested data and runs a seri-
ous risk of unintentionally causing devastating effects in the pri-
vate bus industry. The prudent course is to study the issue first
105
and then to impose appropriate requirements based on the study-
not the reverse, as currently provided for in the bill.
ORRIN G. HATCH.
106
ADDITIONAL VIEWS OF SENATOR COATS
I am pleased to have been able to vote in favor of reporting S.
933 favorably out of Committee despite certain problems that I see
in this legislation. Full and equal protection under the law for per-
sons with disabilities is long overdue. Our society must no longer
tolerate discrimination against any of its citizens, especially those
with physical and mental impairments.
I believe that this landmark civil rights bill, despite its flaws,
will accomplish its goals. The ADA bill is comprehensive, far-reach-
ing, fair and tough. It has real teeth in its enforcement provisions.
I believe that it will ensure that Americans with disabilities will no
longer face discrimination in employment, in public accommoda-
tions, in public services, transportation or communications services.
I earnestly believe that the provisions of S. 933, together with the
force of Judaeo-Christian good will and a healthy and vibrant free
market economy, will help bring all disabled persons into the
mainstream of American life.
I am pleased that my amendments relating to drug and alcohol
abuse and religious institutions were substantially incorporated
into the ADA bill during the lengthy negotiations that resulted in
the radically amended, much improved version of S. 933 that the
Committee finally approved. Despite certain ambiguities that
remain in the bill, I am satisfied that S. 933 will ensure that em-
ployers can implement a zero tolerance policy and maintain a
drug-free workplace. Section 103(c) of Title I is intended to make
clear that an individual applicant or employee who currently uses
alcohol or illegal drugs is not protected by the ADA's nondiscrim-
ination provisions. Similarly, this section makes clear that an indi-
vidual who is an alcoholic or current or past user of drugs-illegal
or legal-can be held to the same standards of job performance and
behavior as other individuals, even if the unsatisfactory perform-
ance or behavior is related to the drug use or alcoholism. At the
same time, and consistent with the Rehabilitation Act of 1973, it is
intended that rehabilitated alcoholics and drug users will be pro-
tected under this law. I believe that the bill's language and accom-
panying report make clear that an employer can subject job appli-
cants and employees to drug urinalysis or other testing to deter-
mine the unlawful use of drugs or the presence of alcohol, and can
refuse to hire job applicants and can discipline or discharge em-
ployees who are found to be using illegal drugs or alcohol, without
being charged with discrimination.
Having stated my support for S. 933 and my intention to work
for its speedy passage, I also wish to associate myself with the addi-
tional views of Senator Hatch. I share many of the concerns he has
expressed so clearly, particularly with regard to the need for a
small business exemption and the problems facing the bus industry
as a consequence of the costly requirements imposed on both by
this legislation. I am hopeful that the spirit of compromise and de-
termination which resulted in the amended legislation that we
voted out of committee will carry the day, SO that these remaining
problems can be worked out to the satisfaction of all parties, and
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this legislation, which has White House support, will be enacted
into law.
DAN COATS.