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CR [Civil Rights] Restoration Act [Testimony - 1987]
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CR [Civil Rights] Restoration Act [Testimony - 1987]
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4
UNITED STATES SENATE
COMMITTEE ON LABOR AND HUMAN RESOURCES
HEARING ON S. 557
THE CIVIL RIGHTS RESTORATION ACT OF 1987
MARCH 19, 1987
TESTIMONY SUBMITTED
BY
TED KENNEDY, JR.
ON BEHALF OF:
Alexander Graham Bell Association for the Deaf
American Academy of Child and Adolescent Psychiatry
American Association of University Affiliated Programs
American Association on Mental Deficiency
American Council of the Blind
American Diabetes Association
American Disabled for Accessible Public Transportation
American Foundation for the Blind
American Occupational Therapy Association
American Physical Therapy Association
American Speech-Language-Hearing Association
ACLD, An Association for Children and Adults with Learning Disabilities
Association on Handicapped Student Service Programs
in Postsecondary Education
Association for Retarded Citizens/US
Association for the Education of Rehabilitation Facility Personnel
Center for Law and Social Policy
Child Welfare League of America
Conference of Educational Administrators Serving the Deaf
Cornelia deLange Syndrome Foundation
Council for Exceptional Children
Council of State Administrators of Vocational Rehabilitation
Cystic Fibrosis Foundation
Disability Rights Center
Disability Rights Education and Defense Fund
Disabled American Veterans
Disabled But Able to Vote
Epilepsy Foundation of America
Facing the Challenge
Federation for Children with Special Needs
Goodwill Industries of America
Handicapped Organized Women
International Association of Psychosocial Rehabilitation Services
Mental Health Law Project
National Alliance for the Mentally Ill
National Association of the Deaf
National Association of Developmental Disabilities Councils
National Association for Parents of the Visually Impaired
National Association of Private Residential Facilities
for the Mentally Retarded
National Association of Protection and Advocacy Systems
National Association of State Mental Health Program Directors
National Association of State Mental Retardation Program Directors
National Center for Law and the Deaf
National Council on Independent Living
National Council on Rehabilitation Education
National Down Syndrome Congress
National Easter Seal Society
National Head Injury Foundation
National Industries for the Severely Handicapped
National Mental Health Association
National Multiple Sclerosis Society
National Neurofibromatosis Foundation
National Organization for Rare Disorders
National Organization on Disability
National Recreation and Park Association
National Rehabilitation Association
National Society for Children and Adults with Autism
National Spinal Cord Injury Association
Paralyzed Veterans of America
People First International
SKIP -- Sick Kids (Need) Involved People
Spina Bifida Association of America
Tourette Syndrome Association
United Church of Christ National Commission on Persons with Disabiliti
United Cerebral Palsy Associations
World Institute on Disability
Mr. Chairman and Members of the Committee: Thank you for
the opportunity to speak before the Committee today on S. 557,
the Civil Rights Restoration Act of 1987. I am speaking on
behalf of my organization, Facing the Challenge and sixty-five
national organizations which are dedicated to securing equal
opportunity for the 36 million Americans who have disabilities.
Today I represent people who have all types of disabilities
-- people who are visually impaired, deaf, physically disabled,
mentally retarded and people who have hidden disabilities such
as epilepsy, cancer, head injury and mental illness. No matter
what our disability is, we all have experienced some form of
discrimination and we all depend on Section 504 to provide
basic protections to guarantee our civil rights in federally
assisted and conducted programs.
The passage of Section 504 in 1973 was a historic event
for all disabled Americans. For the first time Congress
recognized that people with disabilities, like minorities and
women, were subject to discrimination and were entitled to
basic civil rights protections -- the promise of equal citizenship.
This represented a major shift in disability public policy
and a fundamental challenge to traditional notions about
disability. No longer would the invisibility of disabled people
be taken for granted in this country and no longer would a life
of charity be the only option for people with disabilities.
Page 2
Historically the inferior economic and social status of
disabled people was accepted as an inevitable consequence of
their disability. Section 504's anti-discrimination language
demonstrates Congress' understanding that many of the problems
disabled people face are not inevitable but are instead the
result of discriminatory policies and practices.
Since the enactment of Section 504 American society has
been transformed. Disabled people are no longer "out of sight,
out of mind", shut away in institutions, nursing homes and
segregated schools and programs. Because of Section 504,
people with disabilities are beginning to take their place in
the mainstream of American life. The gains are impressive --
but we are only just beginning -- the path to equality is long.
We are here today because we believe that the Supreme Court's
Grove City College decision hopelessly obstructs this path.
Let me emphasize that there is no doubt that the Grove City
decision fully applies to Section 504 and that it extends
beyond education.
It is astounding to me that some still claim that the
negative effects of Grove City will be cured by narrow legislation
which addresses only Title IX or only education programs. We
must remember that the same day the Court issued the Grove City
decision, it also issued Consolidated Rail Corporation V. Darrone.
This was a Section 504 case involving employment discrimination
Page 3
by a railway corporation. The Court explicitly held that its
narrow interpretation of "program and activity" in Grove City
applied with full force to Section 504.
Employers, like other members of the general public, hold
stereotypes and prejudices about disabled people which impede
their ability to objectively evaluate the qualifications of
applicants or workers with disabilities. Stereotypes and
prejudices rather than handicaps themselves are the most
potent barriers to equal employment opportunity. Often the
image of what disabled people "should do" or "can do" has no
basis in reality.
In a recent survey of 23 local government jurisdictions
the following medical standards were revealed:
All cities and counties impose restrictions of various
kinds regarding the hiring of persons with past or present
epileptic conditions
None of the jurisdictions was willing to hire blind
applicants
The written standard for one jurisdiction prohibits the
hiring of an amputee for any job unless he or she makes use
of a prosthesis, even though it may not be required for success
on the job
Another county will not hire an applicant for any job if
he or she has lost a leg, regardless of the job-relatedness
of this impairment
Many jurisdictions exclude applicants with a history of cancer.
Page 4
I have talked to hundreds of disabled people who have
been denied jobs for which they were qualified, because of
antiquated and archaic medical standards and medieval
attitudes and stereotyping, people who are denied admission
to education programs -- pre-school to postsecondary because
"someone" had determined that they could not be educated
and thousands of people who are literally prisoners in their
homes because there is no accessible transportation -- and
perhaps the most significant of all are those who have been
silenced
---
thousands who accept as their fate the
inaccessibility and discrimination which denies them the
right to move in society -- to contribute -- to belong.
People with disabilities prefer equal opportunity to
special treatment and charity. Consider for example the woman
who has had epilepsy since 1965, who was denied employment
by a large corporation solely on the basis that the company
had a blanket policy preventing anyone with epilepsy from
being hired for that particular job;
Or, the young woman who is visually impaired and who
was accepted into dental school but was denied auxiliary aids
She was forced to drop out. She then reenrolled in a dental
school that provided her with an accommodation. She is now
completing her studies and is on the Dean's List;
Or, the group home which was denied zoning permits because
the local zoning commission did not want people who are mentally
Page 5
retarded living in a certain part of town;
Or the man who was denied a job in a drug treatment
center because he was deaf.
Prior to the Grove City decision each of these cases would
have been investigated by the appropriate administrative
agency or would have been litigated in court. But instead,
each case was either dropped by the administrative agency
or dismissed by the courts.
This does not begin to tell the story. The Congressional
mandate which provided broad anti-discrimination protection
to 36 million Americans with disabilities is being destroyed
by the courts and the federal agencies charged with its
enforcement because of the Grove City decision.
Court and agency decisions such as the ones I mentioned
require the disabled individual or the regulatory agency to
trace the federal dollar to the discriminatory act. Federal
agencies now spend taxpayers' dollars following the flow of
federal dollars instead of doing what the law requires them
to do -- investigate complaints of discrimination.
Is this what this Committee and Congress intended when
you passed Section 504 in 1973?
In the last four years I have traveled across this country
talking to people with disabilities and parents of disabled
children about their lives. I am here to report that, contrary
to what the Reagan Administration believes, we do not live in
Page 6
a discrimination-free society and contrary to what Mr.
Reynolds stated during the hearing in the 99th Congress,
we are not at the "brink of victory" in securing integration
and equal opportunity for all Americans with disabilities.
Disabled people continue to be the most unemployed,
underemployed, and the poorest citizens in this nation.
The cost of employment discrimination is tremendous to disabled
individuals and to society at large.
Now is the time for Congress to act. For three years
opponents of this bill have clouded the issues. The 36 million
disabled Americans I speak for today cannot wait any longer.
We are not asking Congress to extend any protections. We
are only asking Congress to stop the practice of federal dollars
being used to support discrimination. F. :
A decade of great progress for disabled Americans has come
to a halt and the promise of equal citizenship extended by
Congress in 1973 is still unfulfilled and will continue to
be stripped away by the courts and federal agencies if the
Civil Rights Restoration Act is not passed by this Congress.
1267
to pull back from a
is the single worst example of statutory language I have ever seen. Laws ought to be
as clear as they can be made, and to include in them regulatory language that is
subject to interpretation varying from department to department. and from admin-
istrator to administrator. and from court to court. is a prescription for confusion un-
paralleied in my experience. If nothing else is changed in this bill. that language
should be discarded.
The regulation in question contain requirements and provision for what are usu-
GOVERNMENT
AND
ally called goals and quotas for minority hiring and advancement. Including them
makes it imperative to include in the legislation careful definitions of what consti-
tutes status in a minority group.
Vice President for Academic
We have already seen. for example. that where there are minority business set-
I would like to thank you
asides in some federal contract requests. non-minority businesses attempt to get in
It is critically important
on the action. The plain fact is that when government allocates benefits on the basis
on this legislation. admitted We on
of race. ethnicity or gender or other irrelevant criteria, individuals will attempt to
That before all the implica-
much
is
qualify under those criteria. Someone is going to have to decide, under this legisla-
tion. who is black, who is Hispanic, and so on. It may be easiest to decide who is a
man and who is a woman. but as Renee Richards should have taught us, even that
legislation was proposed last
is chancey at times.
City decision of the perfect. Supreme that
I assume that if this legislation passes, it will necessary to establish some form of
was
immutable.
Ethnic and Racial Classification Commission, charged with making these tricky
judgments. In fact, the Committee may wish to consider the need for such a commis-
bill before us. designed to
sion before reporting this legislation to the full House. At the very least, it should
told that there will be no
provide the courts. who will be called upon to settle the inevitable controversies,
suggest that last year's bill
with as much guidance as possible as to the criteria which should be used.
be which improved. should be addressed
I offer that suggestion in all seriousness, because something like such a commis-
sion will clearly be needed if this legislation passes. However. I hope that the mem-
bers of this Committee will think better of this entire line of legislation. The fact is
or "aid." There are profound
that it would be a mistake to write into law a requirement that race, gender, and
that aid to a student equals
ethnicity be considered in the allocation of governmental benefits. The 1964 Civil
If indirect federal aid equals government. direct
Rights Act established the legal equality of all men and women. of whatever race,
vone of the who provides goods and
color. creed. or ethnic group. That equality is enforceable in the courts with respect
to individuals. and such enforcement should be vigorous and permanent. But rights
Loans. Social Security checks.
inhere in individuals. They do not belong to groups. To insist on numerically equal
government would be subject
outcomes in every aspect of our society is to grant to the government the kind of
procedures of the federal bu-
absolute power associated with totalitarian states. The temptation is great, but if we
but there is even some
are to remain a free nation, it is a temptation that must be resisted.
to an individual or an in-
I urge the Committee and the Congress to reject the philosophical position that
underlies this legislation. and to insist that our laws remain colorblind. The mis-
preserving some areas of our
takes of our past should not lead us into even greater mistakes in the future.
will be no such areas if this
is meant by the term "aid."
The CHAIRMAN. The next witness is Mr. Mark de Bernardo, man-
from federal intervention is by
ager of Labor Law, Chamber of Commerce of the United States.
there needs to be an exclusion
Mr. de Bernardo, we welcome you.
an entire university campus if
STATEMENT OF MARK A. de BERNARDO. MANAGER OF LABOR
of the school, but it is quite a
program run by a compa-
LAW, CHAMBER OF COMMERCE OF THE UNITED STATES
what may be a multi-national
department in rural Michigan
Mr. DE BERNARDO. Thank you, Mr. Chairman.
State government. In the par-
I am Mark A. de Bernardo. I am manager of Labor Law for the
the "trickle down." "trickle
U.S. Chamber of Commerce. I am also committee executive of the
"violation." rejected. rather than "dis-
chamber's labor relations committee.
Accompanying me today, to my right in the first row seats Vir-
encouraged promulgated by by this federal legis-
ginia Lamp. She is a labor relations attorney for the U.S. Chamber
penalties. and in the form of goals, be
of Commerce.
into play. All that need
The chamber welcomes this opportunity to appear before this
ployment, in admission. in com-
joint hearing, to express our concerns about the Grove City College
by understanding inventive federal that bureau- the ac-
case, our opposition to the Civil Rights Restoration Act of 1985, and
his reversal has been adopted but in
our support for the civil rights amendments of 1985.
never stand by and acquiesce
and in some court decisions. in
The chamber also wishes to commend and thank the chairman,
the ranking minority members, the members of the committee and
of H.R. 700. That is the language
subcommittee for conducting these joint hearings, for providing
under the four have civil say rights that stat- that
this forum for discussion and debate on what is a very critical issue
Chairman,
I
to
for all concerned.
1268
The U.S. Chamber, on behalf of its more than 180,000 members,
into a posit
has a keen interest in our Nation's equal employment and civil
pay to part
rights laws. The chamber is committed to the principles of equal
The CHA
employment opportunity and affirmative action and heartened by
terrupt. bu
the advances which have been made in these areas, particularly in
have only
the last 25 years. There is no room in America's work places for
would appr
take a rece
discrimination.
However, there also is no room for the radical and unwarranted
witness in
expansion of Federal authority which H.R. 700 represents.
Thank yo
While the chamber has long espoused a policy of promoting an
The com
informed and conscientious business community's adherence to
[Recess.]
both the letter and spirit of title VII and other antidiscrimination
The CHA
laws, we also are cognizant that extremism in public policy can
Mr. de B
begin with
create more problems than it solves.
Extreme Government intervention can be more of a threat to
Mr. DE B
civil rights and liberties than the safeguard its proponents intend
many resp
it to be, and in our opinion H.R. 700 typifies such extremism.
munity, ar
threat to tl
To summarize the chamber's position, we oppose H.R. 700. We
feel that this legislation substantially and inappropriately expands
Second,
threat to t
the coverage and sanctions of four civil rights statutes.
H.R. 700 and its identical Senate companión bill, S. 431, repre-
creating a
sent a massive expansion of Federal authority over the workplace.
tary progr
areas.
Similarly, these bills would expand greatly Federal control and au-
Rather t
thority over State and local governments, educational institutions,
dollars, CO:
and a wide range of private institutions.
sector shel
The chamber believes that H.R. 700 goes far beyond reversing
For exar
the Grove City decision. This bill represents a sweeping transforma-
volved in
tion of our civil rights laws beyond not only the current status of
find the bi
the law, but also the original intent of Congress and the interpreta-
pation sub
tion of these laws prior to the Grove City decision.
ministrativ
The U.S. Supreme Court in the Grove City case dealt with the
ities.
issue of what limitations should exist on the application of civil
The spir
rights statutes to educational institutions receiving Federal funds.
tentioned,
That issue is highly parochial compared to the issues being ad-
Perhaps
dressed by Congress under the name of Grove City.
scope, and
What is at stake now is a massive expansion of Federal authority
of our cono
over the workplace, and farms, State and local governments,
A major
schools, religious institutions, social clubs, even individuals.
nition of
H.R. 700 represents a threat to the business community because
problem. I
of overlapping and contradictory enforcement structures, because
While H
of duplicative recordkeeping, new private rights of action, and a
propriatel:
quantum leap in Federal control of private employment practices.
determinir
This legislation would extend dramatically the coverage of four
The bill
heretofore specialized civil rights laws to a wide spectrum of em-
that it is (
ployers, especially small businesses, who were never covered or in-
to delineat
tended to be covered in the past
Through
Moreover, if enacted, H.R. 700 would exacerbate the worst as-
down, tric
pects of our judicial system, forum shopping, multiple claims, and
tial of rad
harassment actions.
eral autho
But ironically, H.R. 700 also represents a threat to the disadvan-
The stri
taged and underprivileged of our society.
chains of :
What would be the ultimate response of employers to enactment
The pre
of H.R. 700? The Chamber fears that employers would be forced
what is cle
1269
000 members,
into a position whereby the price that employers would be forced to
ent and civil
pay to participate in Federal programs would be too high.
iples of equal
The CHAIRMAN. Mr. de Bernardo, the Chair regrets having to in-
heartened by
terrupt, but there is a vote pending in the House. The Members
articularly in
have only about 10 minutes to make that vote. For that reason, I
ork places for
would appreciate you suspending at this time SO the committee can
take a recess, a 10-minute recess. And you will be. obviously, the
unwarranted
witness in the chair at the time that we return.
ents.
Thank you very much.
promoting an
The committee is in recess for 10-minutes.
adherence to
[Recess.]
liscrimination
The CHAIRMAN. The committee is called to order.
lic policy can
Mr. de Bernardo was testifying at the time we recessed. We will
begin with him.
if a threat to
Mr. DE BERNARDO. Mr. Chairman, I was just pointing out that in
onents intend
many respects, H.R. 700 represents a threat to the business com-
emism.
munity, and listed some of the aspects in which we see it as a
H.R. 700. We
threat to the business community.
ately expands
Second, I was pointing out that, ironically, we also see it as a
threat to the disadvantaged because of the effect it. would have in
S. 431, repre-
creating a disincentive for employers to be involved in the volun-
he workplace.
tary programs, such as programs in the training and education
ontrol and au-
areas.
1 institutions,
Rather than accept the plethora of strings attached to Federal
dollars, corporations understandably might retreat into a private
ond reversing
sector shell to the disadvantage of many.
g transforma-
For example, handicapped, veterans, and minorities who are in-
rent status of
volved in job programs which include some Federal funding may
he interpreta-
find the business community reluctant to participate when partici-
pation subjects employers to broadly applied, substantial new ad-
ealt with the
ministrative costs, compliance reviews, and potential legal liabil-
ities.
cation of civil
The spirit of volunteerism in employers, no matter how well in-
federal funds.
tentioned, may well be dispirited by this legislation.
aes being ad-
Perhaps the biggest area of concern for us deals with H.R. 700's
scope, and if I could point out a couple of aspects of that in terms
eral authority
of our concerns.
governments,
A major problem with last year's legislation was the broad defi-
duals.
nition of "recipient." This year's legislation does not solve that
unity because
problem. It merely transfers it to another definition.
ures, because
While H.R. 700 fails to define "recipient" appropriately or inap-
action, and a
propriately, it does define "program or activity" for the purposes of
ent practices.
determining coverage of the four affected statutes.
erage of four
The bill defines "program or activity" in such a broad fashion
:ctrum of em-
that it is questionable whether any parameters at all have been set
covered or in-
to delineate the reach of these laws.
Through tracing the flow of Federal dollars through trickle
the worst as-
down, trickle up, and trickle across, this legislation has the poten-
e claims, and
tial of radically altering any previous concept or application of Fed-
eral authority.
the disadvan-
The strings attached to Federal funds would thus become chains,
chains of an almost indeterminable length.
to enactment
The precise scope of coverage of H.R. 700 is unclear. However,
uld be forced
what is clear is that H.R. 700 is far too broad in the range of cover-
1270
which is possible and would be, if enacted, fundamentally
PREPARED STA
age unfair to business and many other affected parties.
I would like to make a note on the funding termination provi-
I.
Stat
sion, well. which we see as being a wrong approach.
Earlier as I pointed out that the bill, H.R. 700, if enacted, involved would
I am
a disincentive for employers to become voluntarily
create in programs which we consider to be good government programs,
Chamber of (
Executive f
programs the same which line benefit of thinking, many. the fact that the breadth of the in-
member of ti
funding In termination provision is so broad would also affect the
nocent and a wide range of programs negatively, as well.
Association
H.R. 700 eliminates the pinpoint provision and allows the various entire
Virginia B.
enforcing agencies to withdraw all Federal assistance to the
entity Such in broad noncompliance. stroke funding termination would penalize the inno- enti-
The I
cutting off Federal assistance to a much wider range individuals of
this joint }
cent, ties and, correspondingly, to a much wider range of
the Subcomm:
benefiting from those Federal programs.
I would also like to make a note on the law pre-Grove City.
Judiciary Cc
The Civil Rights Restoration Act of 1985 does not restore previ- far
College V. }
ous beyond the current law, far beyond the concensus interpretation
law, in our opinion, at all, but in fact goes far beyond, of
Restoration
the law prior to the Grove City decision, and far beyond the majori-
Civil Rights
ty judicial interpretations of congressional intent.
If the intent of Congress is to return the law to where it was pre-
The C
Grove City, H.R. 700 does not do it.
In conclusion I would like to state that the Supreme Court's
Ranking Minc
Grove our City College V. Bell decision could have inequitable ramifica-
Subcommittee
tions. In this regard, the Chamber of Commerce supports legisla-
forum for di
tion which would provide for a simple reversal of this decision.
We believe that S. 272, the Dole-administration bill, accomplishes
all concerne
this goal in a fair and appropriate manner.
The Civil Rights Restoration Act of 1985, however, is an inappro-
priate and unacceptable response to the Grove City decision.
The U.S. Chamber opposes H.R. 700 and S. 431 and urges Con-
gress not to enact this legislation.
Thank you, Mr. Chairman, and members of these committees.
104 S. Ct
[Prepared statement of Mark A. de Bernardo follows:]
The CHAIRMAN. Thank you.
1271
PREPARED STATEMENT OF MARK A. DE BERNARDO. ON BEHALF OF THE U.S. CHAMBER
mentally
OF COMMERCE
ion provi-
I. Statement of Interest
ed, would
I am Mark A. de Bernardo, Manager of Labor Law for the
y involved
Chamber of Commerce of the United States. I serve as the Committee
programs,
Executive for the U.S. Chamber's labor Relations Committee and am a
dth of the
member of the District of Columbia Bar and the American Bar
fect the in-
Association labor committees. Accompanying me today is
the various
Virginia B. Lamp, Labor Relations Attorney for the U.S. Chamber.
) the entire
The U.S. Chamber welcomes this opportunity to appear before
ze the inno-
.nge of enti-
this joint hearing of the House Education and Labor Committee and
individuals
the Subcommittee on Civil and Constitutional Rights of the House
Judiciary Committee to express our concerns about the Grove City
: City.
estore previ-
College V. Bell decision , our opposition to the Civil Rights
beyond. far
Restoration Act of 1985 (H.R. 700/S. 431), and our support for The
rpretation of
d the majori-
Civil Rights Amendments of 1985 (S. 272).
re it was pre-
The Chamber also wishes to commend and thank the Chairmen,
breme Court's
Ranking Minority Members, and Members of the Committee and
able ramifica-
Subcommittee conducting these joint hearings for providing this
pports legisla-
forum for discussion and debate on what is a very critical issue for
decision.
all concerned. It is our hope that a full and reasoned examination
, accomplishes
is an inappro-
ecision.
and urges Con-
committees.
17 104 S. Ct. 1211 (1984).
ws:]
1272
of all the issues involved in the Grove City debate and all the
H.R. 700 and
potential ramifications of the legislative alternatives now under
represent a massive
consideration will prove well worth the time and effort.
workplace. Similar
control and authori
The U.S. Chamber, on behalf of its more than 180,000 members,
institutions and a
has a keen interest in our nation's equal employment and civil
rights laws. The Chamber 18 committed to the principles of equal
The Chamber
employment opportunity and affirmative action and heartened by the
the Grove City dec:
advances which have been made in these areas, particularly in the
transformation of
last 25 years. There is DO room in America's workplaces for
status of the law
interpretation of
discrimination.
However, while the Chamber has long espoused a policy of
The U.S. Su
promoting an informed and conscientious business community's
issue of what limi
adherence to both the letter and spirit of Title VII and other
rights statutes to
anti-discrimination laws, we also are cognizant that extremism in
funds. That issue
public policy can create more problems than it solves.
being addressed by
Extreme government intervention can be more of a threat to
What is at
civil rights and liberties than the safeguard its proponents intend
authority over the
governments, school
it to be.
individuals.
H.R. 700 typifies such extremism.
H.R. 700 It
because of overla;
II. Summary of the Chamber Position
duplicative recor
The U.S. Chamber of Commerce opposes The Civil Rights
quantum leap in f
Restoration Act of 1985 because this legislation substantially and
This legislation
inappropriately expands the coverage and sanctions of four civil
heretofore specia
2/
employers, especi
rights statutes.
intended to be CC
2/ H.R. 700, if enacted, would amend Title VI of the Civil of Rights the
exacerbate the WC
of 1964, 42 U.S.C. Sec. 2000d et seq., Title 1681 IX
shopping, multipl
Act Amendments of 1972, 20 U.S.C. Sec. et U.S.C. seq.,
Education 504 of the Rehabilitation Act of 1973, 29 42
Section Sec. 794, and The Age Discrimination Act of 1975, U.S.C.
Sec. 1601 et seq.
55-121 0 86 -
1273
11 the
H.R. 700 and its identical Senate companion bill, S. 431,
ow under
represent a massive expansion of federal authority over the
workplace. Similarly these bills would expand greatly federal
control and authority over state and local governments, educational
000 members,
institutions and a wide range of private institutions.
civil
of equal
The Chamber believes that H.R. 700 goes far beyond reversing
ned by the
the Grove City decision. This bill represents a sweeping
ly in the
transformation of our civil rights laws beyond not only the current
; for
status of the law but also the original intent of Congress and the
interpretation of these laws prior to the Grove City decision.
olicy of
The U.S. Supreme Court in the Grove City case dealt with the
ity's
issue of what limitations should exist on the application of civil
id other
rights statutes to educational institutions receiving federal
tremism in
funds. That issue is highly parochial in contrast to the issues
being addressed by Congress in the name of "Grove City."
a threat to
What is at stake now is a massive expansion of federal
onents intend
authority over the workplace -- and farms, state and local
governments, schools, religious institutions, social clubs, even
individuals.
H.R. 700 represents a threat to the business community
because of overlapping and contradictory enforcement structures,
duplicative recordkeeping, new private rights of action, and a
Rights
quantum leap in federal control of private employment practices.
tantially and
This legislation would extend dramatically the coverage of four
: four civil
heretofore specialized civil rights laws to a wide spectrum of
employers, especially small businesses, who were never covered or
intended to be covered. Moreover, if enacted, H.R. 700 will
Civil Rights
exacerbate the worst aspects of our judicial system -- forum
e IX of the
shopping, multiple claims, and harassment actions.
81 et seq.,
29 U.S.C.
'5, 42 U.S.C.
55-121 0 - 86 - 41
1274
Because 1t
But H.R. 700 also represents a threat to the disadvantaged
too broad
and underpriviledged of our society. What would be the ultimate
to the ap
rights;
response of employers to enactment of H.R. 700? The Chamber fears
that employers would be forced into a position whereby the "price"
Because t
particula
of participating in federal programs would be too high. Rather than
activity"
accept the plethora of strings attached to federal dollars,
"carefull
defined;"
corporations understandably might retreat into a private sector
shell to the disadvantage of many. For example, handicapped,
Because E
veterans, and minorities who are involved in job programs which
ranchers,
include some federal funding may find the business community
hailstorr
contact 1
reluctant to participate when participation subjects employers to
fairness'
broadly-applied, substantial new administrative costs, compliance
reviews, and potential legal liabilities. The spirit of
-
When The Civil
volunteerism in employers -- no matter how well-intentioned -- may
U.S. Chamber directly
well be dispirited by this legislation.
City debate. The res:
The U.S. Chamber in its policy on equal employment
The Chamber
opportunity:
any legislatio
federal contro
federal jurisd
Supports "all reasonable and necessary steps
state and loca
designed to achieve the goal of equal employment
number of ager
opportunity for all";
enforcement pr
litigation by
Believes "governmental action should be carefully
plaintiffs 5/
guided to insure fairness and due process of
law for all"; and
The Civil Rig}
Further believes that "grants of authority to
with this policy. H.
administrative agencies should be strictly
construed and carefully defined.
The Civil Rights Restoration Act of 1985 contradicts each of
these precepts:
4/ S. 2568/H.R. 5490
31 Policy Declarations, adopted by the Chamber of Commerce of the
5/ This policy state
United States, P. 134 (emphasis added).
Relations Commi
becoming the of
This statement
The Civil Right
1275
disadvantaged
Because its scope of coverage and sanctions 1s far
too broad, H.R. 700 is unreasonable and unnecessary
the ultimate
to the appropriate goal of preservation of civil
Chamber fears
rights;
eby the "price"
Because the bill is overbroad and ambiguous,
righ. Rather than
particularly in its definition of "program or
activity" which triggers coverage, it is not
dollars,
"carefully guided," "strictly construed" or "carefully
rivate sector
defined;" and
andicapped,
tograms which
Because H.R. 700 would, inter alia, subject farmers,
ranchers, and other small business men and women to a
community
hailstorm of new rules and regulations from incidental
IS employers to
contact with federal dollars, this bill does not "insure
fairness"; it insures unfairness.
sts, compliance
rit of
tentioned -- may
When The Civil Rights Act of 1984 was introduced, the
U.S. Chamber directly addressed the issues presented in the Grove
City debate. The result was adoption of the following policy:
loyment
The Chamber of Commerce of the United States opposes
any legislation which would unnecessarily: (1) expand
federal control of private employment practices, (2) enlarge
y steps
federal jurisdiction in the public sector, especially over
employment
state and local government institutions, (3) increase the
number of agencies able to bring equal employment opportunity
enforcement proceedings, or (4) create a great surge in
be carefully
litigation by granting broader rights of action to private
process of
plaintiffs
5/
The Civil Rights Restoration Act of 1985 clearly conflicts
ority to
with this policy. H.R. 700 should not be enacted.
ictly
ntradicts each of
4/ S. 2568/H.R. 5490
Commerce of the
5/ This policy statement was approved by the Chamber's Labor
Relations Committee, and subsequently by its Board of Directors,
becoming the official policy of the Chamber on July 25, 1984.
This statement provided the basis for Chamber oppositions to
The Civil Rights Act of 1984, S. 2568/H.R. 5490.
1276
Under Secreta
III. Decreased Employer Participation in Federal Programs
while responding to
Civil Rights Act of
A major effect of H.R. 700 on the private sector would be a
withdrawal of employers from participation in voluntary federal
It is :
programs, to the detriment of large segments of our
would
suppor
in a b
society.
avoidi
Cader
Employers recognize that H.R. 700 would greatly expand the
application of a myriad of current regulations to company activities
wight
totally unrelated to the operation of a federally-assisted program.
Might
Because "good faith" involvement in 8 federally funded program would
EDerg
subject that employer in all of its operations to increased
Might
reporting requirements, compliance reviews, and potential such legal
servi
claims, that employer might be likely to withdraw from
Might
Jobs
participation altogether.
Migh
One critical area where there would be significant adverse
Coun
Coor
consequences would be federal training and employment programs.
Although Section 167 of The Job Training Partnership Act (JTPA)
In S
emp'
clearly subjects those entities operating training programs to
emp:
nondiscrimination prohibitions, JTPA does not extend those
act:
prohibitions to employing establishments that are in contact with be
Although
JTPA programs. Under H.R. 700, because such employers would is "a
effect of The Ci
corporation or any other entity any part of which
Civil Rights Res
effect on employ
extended Federal financial assistance, m6/ coverage would be
employment and t
extended and employers might not participate for fear of increasing laws.
opportunities f
opportunities 1:
their exposure and liability under the various civil rights
Ironical
negative effect
worthwhile fede
6/ Sections 4, and 6, paragraphs (3) and (4); and Section 5,
paragraphs 3, (4) (c) and (d), of H.R. 700 which, in part, defines
program or activity" for purposes of coverage.
IT
Letter from
to Senato
Resources
1277
Programs
Under Secretary of Labor Ford B. Ford expressed this concern
while responding to a Senate inquiry about what the effect of The
ector would be a
Civil Rights Act of 1984 would be on Department of Labor programs:
stary federal
It is possible, therefore, that S. 2568
would cause employers to avoid federally
supported training and employment services
in a belief that they were prudently
atly expand the
avoiding 'new' burdens or compliance risks.
Under such circumstances, employers:
company activities
assisted program.
Might not provide training slots for JTPA;
aded program would
Might not provide training slots for The
increased
Emergency Veterans Job Training Act (EVJTA);
tential legal
Might not list jobs with the employment
from such
service;
Might not take advantage of the Targeted
Jobs Tax Credit (TJTC); and
ificant adverse
Might not serve on Private Industry
ent programs.
Councils (PICs) and State Job Training
Coordinating Councils (SJTCCs)
1p Act (JTPA)
programs to
In sum, (because S. 2568 would "discourage
employers' participation" in training and
nd those
employment services, it would) condemn such
in contact with
activities to futility. 7/
yers would be "a
Although Under Secretary Ford's concerns were about the
if which is
effect of The Civil Rights Act of 1984, we are convinced that The
Civil Rights Restoration Act of 1985 would have the same "chilling"
would be
effect on employers' willingness to participate in federal
lear of increasing
employment and training programs. The result would be decreased job
opportunities for those in our society whose need for such
'1l rights laws.
opportunities is greatest.
Ironically, if enacted, H.R. 700 would have the unintended
negative effect of being counterproductive to the goals of a host of
worthwhile federal programs.
and Section 5,
in part, defines
ge.
II Letter from the Honorable Ford B. Ford, Under Secretary of Labor
to Senator Orgin, Match, Chairman of the Labor and Human
Resources Committee dated June 25, 1984, P. 2 (emphasis added).
1278
IV. H.R. 700's Scope: A Major Problem Area
(2)(A)
educ
The Civil Rights Restoration Act of 1985, like its
predecessor legislation, The Civil Rights Act of 1984, is unclear in
(B)
just how far its coverage extends. However, what is clear is that
def
coverage extends far beyond any parameters previously imagined or
Ele
suggested.
of
A major problem with last year's legislation was the broad
(3) B
definition of "recipient." This year's legislation does not solve
that problem, it merely transfers it to another definition. While
H.R. 700 fails to define "recipient" -- appropriately or
(4) a
inappropriately -- it does define "program or activity" for the
II
purposes of determining coverage of the four affected statutes.
F
The bill defines "program or activity" in such a broad
fashion that it is questionable whether any parameters at all have
been set to delineate the reach of these laws. Through tracing the
flow of federal dollars through "trickle down," "trickle up," and
"trickle across," this legislation has the potential of radically
The bill e
altering any previous concept or application of federal authority.
corporations and
organizations
The "strings" attached to federal funds would thus become
manner consistent
chains - chains of an almost indeterminable length.
"catchall" provi:
The definition of "program or activity" in The Civil Rights
Restoration Act of 1985 is:
For the purposes of this title, the term
"program or activity" means all of the
operations of -
(1) (A) a department or agency of a State
The Civil Ri;
or of a local government; or
(emphasis
(B) the entity of such State or local
government that distributes such
assistance and each such department or
agency (and each other entity) to
which the assistance is extended, in
the case of assistance to a State or
local government;
1279
(2) (A) a university or a system of higher
education; or
lear
in
(B) a local educational agency (as
that
defined in section 198(a) (10) of the
i
or
Elementary and Secondary Education Act
of 1965) or other school system;
road
(3) a corporation, partnership, or
solve
other private organization; or
While
(4) any other entity determined in a
be
manner consistent with the coverage
5.
provided with respect to entities
described in paragraph (1), (2), or (3)
have
any part of which 1s extended
8/
1g
the
Federal financial assistance.
and
ally
The bill extends these four civil rights statutes to
city.
corporations and partnerships, as well as to "other private
organizations
or any other entity," which is "determined in a
ome
manner consistent" with the other provisions. This represents a
"catchall" provision which truly "catches all." -
ights
8/ The Civil Rights Restoration Act of 1985, Sections 3 through 6
(emphasis added).
1280
Furthermore, there is no "consistent" manner of determination
Is it t
because there have been no determinations. Paragraph (4) is
such small bus
ambiguous and confusing and clearly would require extensive
Nume
litigation to give it meaning.
regt
On-1
More importantly, coverage is extended by this section to
Over
"all of the operations
any part of which is extended Federal
financial assistance." Can there be any doubt that all of a
Dup.
corporation's operations -- including its parent companies, holding
New
companies, subsidiaries, and franchises -- would be covered if "any
Could
part" of that business received any federal assistance?
by virtue of
financial ass
Under a "trickle down" application, "extended Federal
financial assistance" could be interpreted to mean direct or
hire the hand
indirect extension, further fueling the engine of government
access ramps
intervention.
shelves, or h
H.R. 7
Is it the intention of the proponents of the Civil Rights
Restoration Act of 1985 to subject -
respects: th
the corporate
Grocery stores which accept food stamps;
corporation
assistance.
Pharmacies which fill Medicare prescriptions;
Ranches which participate in federal irrigation projects;
Farms which receive federal price supports or disaster
loans;
Insurance offices administering Medicare or Medicaid
9/ Under para
of Section 5
programs;
partnership,
as a subsidi:
Apartment owners accepting rental vouchers; and
in some other
Other small businesses
provision as
with the COV.
--to extensive government requirements, inspections, and intrusions
paragraph (1
considered a
by unknown regulators on unknown regulations because there is that
nexus, however tenuous, to "federal financial assistance"?
enrollment o
triggers COV
College acce
1281
raination
Is it the intention of the proponents of this bill to subject
E
such small businesses to:
Numerous complex new affirmative action rules and
regulations;
On-site compliance inspections;
10n to
Overlapping and contradictory enforcement structures;
ederal
a
Duplicative recordkeeping requirements; and
, holding
New private rights of action?
d 1f "any
Could a corner grocery store, because it is an "entity" which
by virtue of its acceptance of food stamps is "extended Federal
financial assistance" under this bill, 9/ be brought to court to
tal
hire the handicapped or elderly, or because it failed to provide
or
access ramps for the handicapped, or widened aisles, lowered
ent
shelves, or home delivery for the disabled?
H.R. 700 raises significant coverage questions in other
Rights
respects: there appears to be no cutoff of coverage -- up or down
the corporate ladder -- to "all of the operations of
a
corporation
(1f) any part (is) extended Federal financial
assistance.
1 projects;
iisaster
9/ Under paragraph (3) of Sections 3, 4, and 6, and paragraph (4) (c)
dicaid
of Section 5, a grocery store may be considered a "corporation,
partnership, or other private organization," either unto itself or
as a subsidiary of a corporate entity which receives federal dollars
d
in some other capacity; or it may be covered under the catchall
provision as "any other entity determined in a manner consistent
with the coverage provided with respect to entities described in
paragraph (1), (2), or (3) because the "manner consistent" could be
intrusions
considered analogous to the Grove City College situation whereby
re is that
enrollment of a single student receiving federal student loans
"?
triggers coverage of the college itself, despite the fact Grove City
College accepts no federal funding directly.
1282
This may well mean that 1f one plant of an automobile
H.R. 700
manufacturer participates in a federal jobs program, the entire
civil rights sta
organization in all its plants and subsidiaries is extended first-
sanctions for no
time coverage of the four affected civil rights statutes. How is a
noncompliance 11
plant manager or supervisor at one plant in one state expected to
"the particular
know of, much less to comply with, four statutes, the application of
noncompliance h:
which is based on another plant manager's participation in good
faith in a federal jobs program at a plant on the other side of the
H.R. 70C
country? Moreover, is H.R. 700 intended to trigger coverage from
various enforci
the parent company of a retail chain to all its franchises or from
entire entity :
one franchise up the corporate system to the parent company and then
termination wor
to all other franchises? H.R. 700's "all the operations
any
assistance to
part of which" language suggests that the answer to these questions
to a much wide
should be "yes."
programs.
Is this fair to those employers -- or their employees,
H.R. 70
stockholders, creditors, and customers? Extension of coverage could
assistance whi
force sizeable economic expenditures and create significant
elastic conce
disruption of operations or current personnel practices.
noncompliance
Funding cut 0
The precise scope of coverage of H.R. 700 is unclear.
such terminat
However, what is clear is that H.R. 700 is far too broad in the
unrelated or
range of coverage which is possible and would be, if enacted,
fundamentally unfair to businesses and many other affected parties.
V. H.R. 700's Funding Termination Provision: The Wrong Approach
10/ For exam
11/ Sections
The Civil Rights Restoration Act of 1985 would expand greatly
of 198
the federal government's power to deny or terminate financial
12/ "Noncom;
assistance. Such funding termination, as provided for in H.R. 700,
becaus
havin
is too broad in application and would penalize too wide a spectrum
discr
of employers and other beneficiaries of federal programs.
is an
1283
== automobile
H.R. 700 not only extends substantially the reach of the four
gram, the entire
civil rights statutes, but it also increases dramatically the
is extended first-
sanctions for noncompliance under these laws. Currently,
statutes. How is a
noncompliance is penalized by withdrawal of federal funding from
state expected to
"the particular program, or part thereof, in which such
S, the application of
noncompliance has been found. 10/
cipation in good
he other side of the
H.R. 700 eliminates this "pinpoint provision" and allows the
gger coverage from
various enforcing agencies to withdraw all federal assistance to the
franchises or from
entire entity in noncompliance. Such broad stroke funding
rent company and then
termination would penalize the innocent, cutting off federal
perations
any
assistance to a much wider range of entities, and, correspondingly,
T to these questions
to a much wider range of individuals benefiting from these federal
programs.
eir employees,
H.R. 700 provides for fund termination "to the particular
ion of coverage could
assistance which supports such noncompliance, will a novel and
significant
elastic concept requiring no primary nexus between the entities in
ractices.
noncompl iance 12/ and entities cut off from federal assistance.
Funding cut off ceases to be an equitable or appropriate remedy when
) is unclear.
such termination is stretched farther and farther to include
:00 broad in the
unrelated or remote activities of distant affiliates.
e, 1f enacted,
er affected parties.
: The Wrong Approach
10/ For example, see Title IX, 20 U.S.C. Sec. 1682.
11/ Sections 3(b) (1) and 5(b) of The Civil Rights Restoration Act
would expand greatly
of 1985.
bate financial
12/ "Noncompliance" is used rather than the term "discrimination"
ied for in H.R. 700,
because an entity can be cited for noncompliance without ever
too wide a spectrum
having been found to have discriminated or, in fact, without
discrimination having been alleged. Grove City College
programs.
is an example.
1284
The which supports" language of the bill's funding
The assert:
termination provision is consistent with several other provisions of
"broad, institutic
the bill in its ethereal, ambiguous, and undefined nature. However,
interpretations ha
because any federal assistance to part of an organization presumably
institution-wide (
enables that organization to shift resources to nonassisted
be characterized i
programs, any federal funding could be viewed as "supporting"
coverage and fund
noncompliance, regardless of whether the discriminating operation
that the nondiscr:
received federal aid directly.
federally-funded :
14/
application.
VI. The Law: Pre-Grove City
Clearly, t
H.E. 700, in its "Findings of Congress" opening, states:
does not restore
(1) the current 1
legislative action is necessary to restore
prior to the Grov
the prior consistent and long-standing
executive branch interpretation and broad,
determinations of
institution-wide application of those laws às
previously administered. 13/
If the int
However, the interpretations by the 28 federal executive
was pre-Grove Cit
agencies which extend federal financial assistance have neither been
"consistent" nor "long-standing." Interpretations have, in fact,
been highly inconsistent and irregular, and the nature of these
interpretations are in such a state of flux, that no principle is
"long-standing."
14/ See North Ha
(1982); Hi
Welfare, 69
104 S.Ct. :
694 F.2d 7:
Harvard Co:
456 U.S. 9
Supp. 321
507 F. Sup
grounds, 6
Metals Co.
13/ The Civil Rights Restoration Act of 1985, Section 2(2)
Sibley, 65
Society of
(emphasis added).
1983). Of
this issue
statutes'
program-sp
1285
bill's funding
The assertion that executive branch interpretations have been
veral other provisions of
"broad, institution-wide" is similarly misleading. Although some
defined nature. However,
interpretations have been construed by the courts to provide for
n organization presumably
institution wide coverage, the clear majority of court decisions can
5 to nonassisted
be characterized as program-specific in their interpretation of
ed as "supporting"
coverage and fund termination. Numerous federal courts have held
scriminating operation
that the nondiscrimination provisions of statutes covering
federally-funded programs are not institution-wide in their
14/
application.
Clearly, therefore, The Civil Rights Restoration Act of 1985
ss" opening, states:
does not restore previous law at all but, in fact, goes far beyond:
(1) the current law; (2) the consensus interpretation of the law
y to restore
prior to the Grove City decision; and, (3) the majority judicial
standing
a and broad,
determinations of congressional intent.
: those laws as
If the intent of Congress is to return the law to where it
28 federal executive
was pre-Grove City, H.R. 700 does not do it.
istance have neither been
tations have, in fact,
the nature of these
, that no principle is
14/ See North Haven Board of Education v. Bell, 456 U.S. 512
(1982); Hillsdale College v. Department of Health Education and
Welfare, 696 F.2d 418 (6th Cir. 1982), vacated and remanded
104 S.Ct. 1673 (1984); Dougherty County School System V. Bell,
694 F.2d 78 (5th Cir., 1982); Rice V. President and Fellows of
Harvard College, 663 F.2d 336 (lst Cir., 1981), cert denied,
456 U.S. 928 (1982); University of Richmond V. Bell, 543 F.
Supp. 321 (E.D. Va., 1982); Othen V. Ann Arbor School Board,
507 F. Supp. 1376 (E.D. Mich., 1981), affirmed on other
grounds, 699 F.2d 309 (6th Cir., 1983); Simpson V. Reynolds
Metals Co., Inc., 629 F.2d 1226 (7th Cir., 1980); Brown V.
Sibley, 650 F.2d 260 (5th Cir., 1981); and Bachman v. American
;, Section 2(2)
Society of Clinical Pathologists, 577 F.Supp. 1257 (D. N.J.,
1983). Of course, the U.S. Supreme Court's pronouncement on
this issue in the Grove City decision was to interpret such
statutes' coverage and fund termination provisions
program-specific.
1286
VII. Other Major Business Concerns Regarding H.R. 700
right
(A) Policy Concerns Regarding "Big" Government
into
are
Although this statement has focused largely on the
shor
negative impacts of The Civil Rights Restoration Act of 1985
when
on the business community, the Chamber also is very cognizant
atte
of the bill's negative potential to impact on educational
inst
institutions, state and local governments, and private
or t
institutions of all types.
This bill represents a major leap in the wrong
sac;
direction. It raises fundamental questions about the
a Vi
appropriate reach of the federal government, and
Jer.
whether federal financial power should be wielded 25 a
Cor
coercive bludgeon in the name of "civil rights."
has
aid
H.R. 700 is a big government response to a somewhat
reg
parochial and highly technical legal problem. Whatever the
pos
appropriate response the U.S. Supreme Court should have had
to the Grove City case, this response is legislative overkill,
an overreaction which conforms to the premise of those
of preser
advocates whose solution to every perceived problem is more
government, more regulation, more litigation, and more
taxpayer dollars.
H.R. 700 represents a vehicle for massive government
intrusion in private and public institutions.
15/ Grove
to
(B) Policy Concerns Regarding Civil Rights
16/ "A '(
U.S
In many respects, H.R. 700 also represents a threat to
17/ Ibid
institutional and individual civil rights and liberties --
ironically in light of the intentions of its proponents to
protect civil rights.
1287
700
Proponents may force promotion of the civil
rights of some at the expense of intrusion
into the civil rights of others. The interests at stake
are compelling and multiple, and it is
largely on the
short-sighted to perceive a singular interest as controlling
ration Act of 1985
when to do so threatens the "rights" of those who wish to
C 1s very cognizant
attend independent colleges, the integrity of private
on educational
institutions 15/ the autonomy of religious organizations,
and private
or the economic viability of small businesses.
The debate over Grove City has, at times, under the
the wrong
sacrosant and irresistable banner of "civil rights," featured
S about the
a very real intolerance of the many interests involved. As
it, and
Jeremy Rabkin, an Assistant Professor of Government at
wielded as a
Cornell University recently noted, Grove City legislation
ghts.
has gone "a long way toward transforming federal education
aid from an engine of opportunity to an instrument of
16/
e to a somewhat
regimentation
(such legislation)
.17/
em. Whatever the
poses grave dangers to tolerance and diversity.
it should have had
legislative overkill,
H.R. 700 would trample the rights of many in the name
:ise of those
of preserving the rights of some.
:d problem is more
on, and more
ssive government
ms.
15/ Grove City College's "transgression," after all, was a desire
to maintain its independence, not discrimination.
its
16/ "A 'Civil Rights' Snare," Jeremy Rabkin, New Perspectives, The
U.S. Commission on Civil Rights, Winter, 1985, p.7.
esents a threat to
17/ Ibid, P. 6.
and liberties --
its proponents to
1288
(C)
Businesses' Concern For Coverage of Educational
(D)
Institutions
B $
While the Chamber is especially concerned about the
I
scope of application of these statutes to the business
implica
community, it also is concerned about how broad an impact
would b
Grove City legislation would have on educational entities.
Chamber
This concern is magnified by the fact that:
employi
H.R. 70
businesses are Educators -- Many employers are
in the education "business" directly or
appeali
indirectly, or have extensive educational or
concern
training programs for their employees, or
share with academia funding, faculty, or
potenti
facilities for such programs as management
pay hav
seminars or apprenticeship training;
to the
Schools are Businesses - Many educational
would 0
institutions are "businesses" in the full'
sense of the term. Furthermore, they may engage
in noneducational "businesses" on campus,
VIII. The Civ
providing housing, book store, restaurant, laundry
and other such services, or may run of f-campus
businesses as a function of their financial
diversification; and
While t
Restoration Ac
Schools are Investors in Business - Finally,
decision, we a
many colleges and universities have sizeable
endowments, monies from which are invested
decision may t.
commonly in the private sector. Such
investments might be considered a sufficient
nexus to trigger additional civil rights
The Cha
coverage to the outside firms under H.R. 700.
Amendments of
and Orrin Hatc
To the extent that coverage of any or all of these
S. 272 is an a
relationships between business and educational
institutions is not specifically delineated, the Chamber
S. 272 would E
H.R. 700 and t
remains deeply concerned. Beyond direct coverage of
businesses and coverage achieved through the catchall
educational 1I
institution-wi
provisions of H.R. 700, the Chamber also is troubled by the
potential for indirect coverage through H.R. 700's
the wake of t!
inclusion of educational institutions under its
in a realistic
definition of "program or activity." -
coverage, ever
1289
(D) Special Concerns about H.R. 700's Impact on Small
Businesses
about the
The Chamber is particularly concerned about what the
siness
implications of The Civil Rights Restoration Act of 1985
an impact
would be for small business. Nearly 90 percent of the
entities.
Chamber's more than 180,000 members are small businesses
employing 100 or fewer employees. To the extent that
H.R. 700 has a catchy title, is superficially very
are
appealing, and addresses very real -- and legitimate --
concerns with the Supreme Court's Grove City decision, its
potential impact on business, particularly small business,
may have beer obscured. To subject small businesses
to the regulatory excesses of such extensive requirements
would be especially burdensome and unfair.
ngage
VIII. The Civil Rights Amendments of 1985
laundry
pus
While the Chamber is convinced that The Civil Rights
Restoration Act of 1985 is the wrong response to the Grove City
decision, we are sympathetic to the premise that the Supreme Court's
e
decision may have created potential inequities.
The Chamber therefore supports S. 272, The Civil Rights
).
Amendments of 1985, introduced in January by Senators Robert Dole
and Orrin Hatch and supported by the Reagan Administration. We feel
these
S. 272 is an appropriate response to the Grove City decision.
S. 272 would affect all four civil rights statutes addressed in
hamber
H.R. 700 and would ensure that anti-discrimination coverage of
of
educational institutions receiving federal funding would be
all
institution-wide, not program-specific as 1s currently the law in
ed by the
the wake of the Grove City decision. S. 272 sets such limitations
in B realistic and appropriate manner, 80 as not to overextend
coverage, even under an institution-wide application.
1290
The Chamber believes that S. 272 effectively reverses the
The CHAIR
Grove City decision without the overreach inherent in alternative
behalf of the
"civil rights" proposals.
Conference O!
Mr. Taylor.
IX. Conclusion
STATEMENT
FOR NATIC
The Supreme Court's Grove City College V. Bell decision could
FERENCE (
have inequitable ramifications. Toward this end, the U.S. Chamber
Mr. TAYLOR
As the Ch:
of Comerce supports legislation which would provide for a simple
tions that m.
reversal of this decision. We believe S. 272, the
week, and I (
Dole-Administration bill, accomplishes this goal in a fair and
by making a
appropriate manner.
I am not g
that we have
but I would 1
The Civil Rights Restoration Act of 1985, however, is an
cisms that ha
ought to be e
insppropriate and unacceptable response to the Grove City decision.
First, some
failure to un
The U.S. Chamber opposes H.R. 700/S. 431, The Civil Rights
tinction that
hand, and n
Restoration Act of 1985, and urges Congress not to enact this
distinctions t
legislation.
In the Ta:
say, is ackno
which is mis
the reason f
am quoting-
whose funds
beneficiaries
tices."
Now, these
port a limita
Institution
negotiated St
by private p
Justice Depa
injunctions 1
of Federal fu
In the cas
nocent bene
discriminati
Now, Con
courts unde
cases.
And what
tant distinc
funds.
Now, seco
standing of
failure to re
ON
INATIONAL THE COUNCIL
National Council on the Handicapped
800 Independence Avenue, S.W.
Suite 814
Washington, D.C. 20591
202-267-3846 voice
202-267-3232 TDD
An Independent
Federal Agency
STATEMENT OF: THE NATIONAL COUNCIL ON THE HANDICAPPED
BY:
LEX FRIEDEN, EXECUTIVE DIRECTOR
BEFORE THE: U.S. SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
DATE:
APRIL 1, 1987
STATEMENT OF: THE NATIONAL COUNCIL ON THE HANDICAPPED
BY:
LEX FRIEDEN, EXECUTIVE DIRECTOR
BEFORE THE: U.S. SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
DATE:
APRIL 1, 1987
The National Council on the Handicapped appreciates this
opportunity to present its views on the principles espoused in
the proposed Civil Rights Restoration Act As you are aware,
the Council is an independent Federal agency comprised of 15
members appointed by the President and confirmed by the Senate.
Congress has statutorily charged the Council with reviewing all
laws, programs and policies of the Federal Government which
affect persons with disabilities and making such recommendations
as it deems necessary to the President, the Congress, the
Rehabilitation Services Administration, the National Institute
on Disability and Rehabilitation Research, and other Federal
agencies and officials. Although many government agencies
relate to the needs and concerns of people with disabilities,
the National Council on the Handicapped is the only Federal
agency with such cross-cutting responsibility for disability
issues -- regardless of age, disability type, employment
potential, economic need, or other individual circumstances.
-1-
In its 1986 report to Congress and the President, Toward
Independence, the Council commented on the central premise of
the proposed Civil Rights Restoration Act:
any person or agency that wishes to obtain Federal grant
funds should be required to avoid or cease discriminating in all
of its activities. Conversely stated, the Federal Government
should not provide financial assistance to any person or agency
that engages in discrimination in any part of its operations or
activities.
(Topic Paper on "Equal Opportunity Laws,' Appendix, p. A-9)
In pursuing its statutory mandate of advising the Congress
and the President on disability issues, the Council has held
forums with people with disabilities all around the country.
Time after time, individuals with disabilities have told the
Council about the egregious discrimination they encounter in
their daily lives -- discrimination in jobs, in elementary and
secondary education, in higher education, in health services, in
recreation, in transportation, in housing, in public
accommodations, in obtaining the benefits of public programs and
services, and in virtually every other facet of American life.
On numerous occasions, Americans with disabilities have declared
to the Council that their number one priority is for strong and
comprehensive civil rights laws protecting them from
discrimination based upon their disabilities. That such views
are representative of Americans with disabilities generally is
underscored by one of the findings of the 1986 Harris nationwide
poll of disabled Americans; Louis Harris and Associates reported
as follows:
When it comes to how disabled persons should be treated
under the law, a near consensus emerges. Three out of every
-2-
four (75%) disabled persons believe that civil rights laws
that protect minorities against discrimination should also
protect them. Only 17% disagree.
(Louis Harris and Associates, Survey of Disabled Americans,
p. 112)
The primary Federal statute prohibiting discrimination on
the basis of handicap, Section 504 of the Rehabilitation Act of
1973, has had a tremendous impact in reducing discrimination
against persons with disabilities. Since the decision of the
Supreme Court of the United States in Grove City College V. Bell
in 1984, however, the effect of Section 504 has been
significantly blunted. In the case of Consolidated Rail
Corporation V. Darrone (104 s.ct. 1248 (1984) ) decided on the
same day as the Grove City ruling, the Supreme Court announced
that the limitations upon civil rights coverage established in
Grove City apply to Section 504 cases as well (104 s.ct. at p.
1255). The Darrone case involved a claim of discrimination in
In the Council's opinion, this suggests that
employment. The Supreme Court, thus, made clear on the very day
it issued the Grove City decision that the limitations
established in Grove City are not confined as some have argued
to the context of higher education.
The Council is aware of numerous types of situations
affected adversely by the limitations imposed by the Grove City
and Darrone rulings. Examples include:
o
A man with multiple sclerosis was fired because of his
disability from a job in a state office of probation and parole
which receives substantial Federal grants, but not for the
specific job slot the man occupied
O
Prevent A college athlete is not allowed to participate in the
worls in
intramural basketball program because of a visual impairment;
the intercollegiate program of the college athletic program
receives substantial amounts of Federal financial assistance and
the student is the recipient of Federal student loans.
-3-
coverage of Section 504 and the other civil rights laws to their
status before the Supreme Court's ruling in the Grove City case.
The Supreme Court of the United States has noted recently
that discrimination against persons with disabilities is often
rooted in "simple prejudice," "archaic attitudes and laws,' and
"erroneous but nevertheless prevalent perceptions about the
handicapped" (School Board of Nassau County V. Arline, slip op.
at pp. 4-5). Some such archaic attitudes and erroneous
perceptions have been the source of concern about the been
implications of the Civil Rights Restoration Act as it applies
to discrimination against persons with disabilities.
One misconcept ion is that employers are opposed to statutory
prohibitions of employment discrimination against persons with
disabilities. Louis Harris and Associates recently conducted a
national poll of employers (representing equal subgroups of
small, medium, and large businesses) to determine their opinions
on such issues. By a substantial majority, employers recognized
the need and indicated their support for nondiscrimination
provisions protecting individuals with disabilities.
Three-fourths of company managers interviewed reported that they
believe that persons with disabilities often encounter job
discrimination, and over 70% stated that civil rights laws
should protect persons with disabilities.
concern
A related misperception is that it is very burdensome for
employers to provide equal employment opportunities for persons
with disabilities. The recent Harris poll of employers has
reaffirmed prior studies that have consistently found that
-5-
persons with disabilities make good or better than average
employees. Based upon employers' responses, the Harris
organization concluded, "Overwhelming majorities of managers
give disabled employees a good or excellent rating on their
overall job performance," and further, "Nearly all disabled
employees do their jobs as well or better than other employees
in similar jobs." Employees with disabilities were rated as
good or better than their nondisabled counterparts in regard to
willingness to work hard, reliability, attendance and
punctuality, productivity, desire for promotion, ability to take
supervision, and leadership ability.
What about the costs of employing a person with a
disability? Are job modifications for employees with
disabilities very costly? The Council has examined existing
studies of workplace accommodations provided for individuals
with disabilities and concluded that accommodations are usually
minor and inexpensive (see Toward Independence, Appendix, p.
A-48). A 1982 Department of Labor study of workplace
accommodations concluded that accommodation is "no big deal."
The Harris poll of employers verifies the results of the earlier
studies; the poll found large majorities of managers
(approximately 75%) reporting that the costs of making
accommodations are not expensive. While nearly one-half of
companies reported that they had made some worksite
modifications, an overwhelming majority stated that the costs of
accommodations rarely drives the cost of employing a person with
a disability above the average range of costs for other
employees.
-6-
The notion that nondiscrimination requirements for persons
with disabilities are overly burdensome for small businesses is
further fueled by other erroneous perceptions. Some have argued
that "Mom and Pop grocery stores" and "corner drugstores" will
be saddled with the duty to make extensive and prohibitively
expensive modifications of their premises to achieve
accessibility for persons with disabilities. Such hypotheticals
are based upon a serious misunderstanding of Section 504 and its
application. In the first place, Section 504, with or without
the Restoration Act, applies only to recipients of Federal
financial assistance. Few corner grocery stores or small
pharmacies receive such funding Suggestions that the
acceptance of food stamps or the receipt of Medicare
reimbursement for prescription drugs could trigger the
application of Section 504 are totally groundless. The Council
has never heard nor been apprised of any case in which Section
504 coverage was predicated upon the receipt of food stamps or
prescription reimbursement by a small business.
Moreover, it is
our understanding that the "Rule of Construction" language in
the proposed Restoration Act is intended to specifically
preclude the possibility of any such interpretation.
Secondly, those small businesses that do qualify as
recipients of Federal financial assistance are subject to the
"small provider" exceptions of Section 504. Since their
original issuance, Section 504 regulations have included
provisions exempting small providers (i.e., agencies with fewer
than fifteen employees) from certain requirements, including the
obligation to make significant alterations to existing
-7-
facilities to achieve accessibility and to comply with
recordkeeping and reporting requirements. This exception for
small providers is specifically retained in the current version
of the Restoration Act as it relates to Section 504.
The specter of Section 504 placing onerous and excessive
burdens upon small businesses is further dispelled when one
understands that Section 504 only requires reasonable
modifications. Both the regulations and the court cases that
have applied Section 504 have made it clear that the statute
only requires the making of reasonable accommodations and
alterations for the benefit of an individual with a disability;
unduly burdensome or unreasonable changes are not required by
Section 504.
Finally, the Council wishes to note that many businesses,
including Mom and Pop grocery stores and corner drugstores, have
been willing to make their facilities accessible to and usable
by persons with disabilities. Such changes have not proven to
be exorbitantly expensive nor disruptive to business. Making
facilities architecturally accessible benefits not only persons
with disabilities but also many other customers, including
elderly individuals, people pushing strollers and shopping
carts, pregnant women, and many others. The Council is aware
that many States and local governments have seen fit to mandate
architectural accessibility as part of their building codes and
ordinances. Obviously, architectural accessibility is not an
impossible or unachievable goal.
-8-
In the Council's view, our entire society benefits from
initiatives to secure increased opportunities for persons with
disabilities. At the very least, citizens with disabilities are
entitled to have Section 504 -- the primary statute that
protects them from discrimination -- restored to the modest
scope of coverage that it had prior to being severely restricted
as a resul the Grove City decision.
[This document has not been subjected to the A-19 Executive
Branch review process. The views contained in this testimony do
not necessarily represent those of the Administration.]
-9-
O
A person who once had an epileptic seizure was excluded
from a state job because of a rule against hiring people with a
history of epilepsy; the department where the job is located
receives Federal grants, but these funds cannot be traced
directly to the job for which the individual applied.
Crop
A university Transun which receives a variety of Federal grants
and student loan funds refuses to admit a woman to its seminary
program because she is a quadriplegic.
A public school teacher is refused a teaching position
because she has a visual impairment; the school system receives
a variety of Federal funds, which can even be traced to the
particular school, but the music department in which the
particular job was located does not receive Federal funds.
In each of these situations, the individuals with
disabilities would have been protected from discrimination prior
to the Grove City decision, but now they are left without
under Section 504
recourse against the blatant and despicable acts of
discrimination they have suffered.
If our Nation's commitment to equality of opportunity for
its citizens is to have any meaning, the Council believes that
Congress must restore Section 504 and other civil rights laws to
the breadth of coverage that they had prior to the Grove City
and Darrone decisions. The Council has noted, in its Toward
Independence report, that, even without the Grove City narrowing
of the scope of Section 504, persons with disabilities have much
less protection against discrimination than under civil rights
laws protecting other groups. At some time in the future, the
Council would Baman like the opportunity Provide to discuss with this
Committee a more
the possibility of pursuing comprehensive Anh
approach to prohibiting the pervasive discrimination faced by
persons with disabilities.
But the Council believes that an
absolutely necessary first step is to return the scope of
-4-
ON
COUNCIE THE RANDICAPP
National Council on the Handicapped
800 Independence Avenue, S.W.
NATIONAL
Suite 814
Washington, DC 20591
202-453-3846
An Independent Federal Agency
March 30, 1987
To:
Branden Blum, Legislative Reference, OMB
From:
Lex Frieden, Executive Director
Subject:
Attached Material
Please find attached, for your information, testimony which the National
Council on the Handicapped will present before the Senate Committee on
Labor and Human Resources on Wednesday, April 1, 1987. As you know, the
Council was asked to testify after noon today. A copy of our letter of
request to testify is also attached for your information.
We would welcome any comments or suggestions you may have on this
testimony.
Attachments
STATEMENT OF: THE NATIONAL COUNCIL ON THE HANDICAPPED
BY:
LEX FRIEDEN, EXECUTIVE DIRECTOR
BEFORE THE: U.S. SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
DATE:
APRIL 1, 1987
The National Council on the Handicapped appreciates this
opportunity to present its views on the principles espoused in
the proposed Civil Rights Restoration Act. As you are aware,
the Council is an independent Federal agency comprised of 15
members appointed by the President and confirmed by the Senate.
Congress has statutorily charged the Council with reviewing all
laws, programs and policies of the Federal Government which
affect persons with disabilities and making such recommendations
as it deems necessary to the President, the Congress, the
Rehabilitation Services Administration, the National Institute
on Disability and Rehabilitation Research, and other Federal
agencies and officials. Although many government agencies
relate to the needs and concerns of people with disabilities,
the National Council on the Handicapped is the only Federal
agency with such cross-cutting responsibility for disability
issues -- regardless of age, disability type, employment
potential, economic need, or other individual circumstances.
-1-
In its 1986 report to Congress and the President, Toward
Independence, the Council commented on the central premise of
the proposed Civil Rights Restoration Act:
any person or agency that wishes to obtain Federal grant
funds should be required to avoid or cease discriminating in all
of its activities. Conversely stated, the Federal Government
should not provide financial assistance to any person or agency
that engages in discrimination in any part of its operations or
activities.
(Topic Paper on "Equal Opportunity Laws," Appendix, p. A-9)
In pursuing its statutory mandate of advising the Congress
and the President on disability issues, the Council has held
forums with people with disabilities all around the country.
Time after time, individuals with disabilities have told the
Council about the egregious discrimination they encounter in
their daily lives -- discrimination in jobs, in elementary and
secondary education, in higher education, in health services, in
recreation, in transportation, in housing, in public
accommodations, in obtaining the benefits of public programs and
services, and in virtually every other facet of American life.
On numerous occasions, Americans with disabilities have declared
to the Council that their number one priority is for strong and
comprehensive civil rights laws protecting them from
discrimination based upon their disabilities. That such views
are representative of Americans with disabilities generally is
underscored by one of the findings of the 1986 Harris nationwide
poll of disabled Americans; Louis Harris and Associates reported
as follows:
When it comes to how disabled persons should be treated
under the law, a near consensus emerges. Three out of every
-2-
four (75%) disabled persons believe that civil rights laws
that protect minorities against discrimination should also
protect them. Only 17% disagree.
(Louis Harris and Associates, Survey of Disabled Americans,
p. 112)
The primary Federal statute prohibiting discrimination on
the basis of handicap, Section 504 of the Rehabilitation Act of
1973, has had a tremendous impact in reducing discrimination
against persons with disabilities. Since the decision of the
Supreme Court of the United States in Grove City College V. Bell
in 1984, however, the effect of Section 504 has been
significantly blunted. In the case of Consolidated Rail
Corporation v. Darrone (104 s.ct. 1248 (1984)), decided on the
same day as the Grove City ruling, the Supreme Court announced
that the limitations upon civil rights coverage established in
Grove City apply to Section 504 cases as well (104 s.ct. at p.
1255). The Darrone case involved a claim of discrimination in
olt
employment. Supreme Court, thus made clear on the very day
The That if OPPens imprid
it issued our the Grove Navion City decision that that the limitations
established in Grove City are not confined, as some have argued,
to the context of higher education.
The Council is aware of numerous types of situations
affected adversely by the limitations imposed by the Grove City
and Darrone rulings. Examples include:
O
A man with multiple sclerosis was fired because of his
disability from a job in a state office of probation and parole
which receives substantial Federal grants, but not for the
specific job slot the man occupied.
o
A college athlete is not allowed to participate in the
intramural basketball program because of a visual impairment;
the intercollegiate program of the college athletic program
receives substantial amounts of Federal financial assistance and
the student is the recipient of Federal student loans.
-3-
O
A person who once had an epileptic seizure was excluded
from a state job because of a rule against hiring people with a
history of epilepsy; the department where the job is located
receives Federal grants, but these funds cannot be traced
directly to the job for which the individual applied.
O
A university which receives a variety of Federal grants
and student loan funds refuses to admit a woman to its seminary
program because she is a quadriplegic.
O
A public school teacher is refused a teaching position
because she has a visual impairment; the school system receives
a variety of Federal funds, which can even be traced to the
particular school, but the music department in which the
particular job was located does not receive Federal funds.
In each of these situations, the individuals with
disabilities would have been protected from discrimination prior
to the Grove City decision, but now they are left without
recourse against the blatant and despicable acts of
discrimination they have suffered.
If our Nation's commitment to equality of opportunity for
its citizens is to have any meaning, the Council believes that
Congress must restore Section 504 and other civil rights laws to
the breadth of coverage that they had prior to the Grove City
and Darrone decisions. The Council has noted, in its Toward
Independence report, that, even without the Grove City narrowing
of the scope of Section 504, persons with disabilities have much
less protection against discrimination than under civil rights
laws protecting other groups. At some time in the future, the
Council would like the opportunity to discuss with this
Committee the possibility of pursuing a more comprehensive
approach to prohibiting the pervasive discrimination faced by
persons with disabilities. But the Council believes that an
absolutely necessary first step is to return the scope of
-4-
coverage of Section 504 and the other civil rights laws to their
status before the Supreme Court's ruling in the Grove City case.
The Supreme Court of the United States has noted recently
that discrimination against persons with disabilities is often
rooted in "simple prejudice,' " "archaic attitudes and laws," and
"erroneous but nevertheless prevalent perceptions about the
handicapped" (School Board of Nassau County V. Arline, slip op.
at pp. 4-5). Some such archaic attitudes and erroneous
perceptions have been the source of concern about the
implications of the Civil Rights Restoration Act as it applies
to discrimination against persons with disabilities.
One misconception is that employers are opposed to statutory
prohibitions of employment discrimination against persons with
disabilities. Louis Harris and Associates recently conducted a
national poll of employers (representing equal subgroups of
small, medium, and large businesses) to determine their opinions
on such issues. By a substantial majority, employers recognized
the need and indicated their support for nondiscrimination
provisions protecting individuals with disabilities.
Three-fourths of company managers interviewed reported that they
believe that persons with disabilities often encounter job
discrimination, and over 70% stated that civil rights laws
should protect persons with disabilities.
A related misperception is that it is very burdensome for
employers to provide equal employment opportunities for persons
with disabilities. The recent Harris poll of employers has
reaffirmed prior studies that have consistently found that
-5-
persons with disabilities make good or better than average
employees. Based upon employers' responses, the Harris
organization concluded, "Overwhelming majorities of managers
give disabled employees a good or excellent rating on their
overall job performance," and further, "Nearly all disabled
employees do their jobs as well or better than other employees
in similar jobs." Employees with disabilities were rated as
good or better than their nondisabled counterparts in regard to
willingness to work hard, reliability, attendance and
punctuality, productivity, desire for promotion, ability to take
supervision, and leadership ability.
What about the costs of employing a person with a
disability? Are job modifications for employees with
disabilities very costly? The Council has examined existing
studies of workplace accommodations provided for individuals
with disabilities and concluded that accommodations are usually
minor and inexpensive (see Toward Independence, Appendix, p.
A-48). A 1982 Department of Labor study of workplace
accommodations concluded that accommodation is "no big deal."
The Harris poll of employers verifies the results of the earlier
studies; the poll found large majorities of managers
(approximately 75%) reporting that the costs of making
accommodations are not expensive. While nearly one-half of
companies reported that they had made some worksite
modifications, an overwhelming majority stated that the costs of
accommodations rarely drives the cost of employing a person with
a disability above the average range of costs for other
employees.
-6-
The notion that nondiscrimination requirements for persons
with disabilities are overly burdensome for small businesses is
further fueled by other erroneous perceptions. Some have argued
that "Mom and Pop grocery stores" and "corner drugstores" will
be saddled with the duty to make extensive and prohibitively
expensive modifications of their premises to achieve
accessibility for persons with disabilities. Such hypotheticals
are based upon a serious misunderstanding of Section 504 and its
application. In the first place, Section 504, with or without
the Restoration Act, applies only to recipients of Federal
financial assistance. Few corner grocery stores or small
5145
pharmacies receive such funding. Suggestions that the
acceptance of food stamps or the receipt of Medicare
reimbursement for prescription drugs could trigger the
application of Section 504 are totally groundless. The Council
has never heard nor been apprised of any case in which Section
504 coverage was predicated upon the receipt of food stamps or
prescription reimbursement by a small business. Moreover, it is
our understanding that the "Rule of Construction" language in
the proposed Restoration Act is intended to specifically
preclude the possibility of any such interpretation.
Secondly, those small businesses that do qualify as
recipients of Federal financial assistance are subject to the
"small provider" exceptions of Section 504. Since their
original issuance, Section 504 regulations have included
provisions exempting small providers (i.e., agencies with fewer
than fifteen employees) from certain requirements, including the
obligation to make significant alterations to existing
-7-
facilities to achieve accessibility and to comply with
recordkeeping and reporting requirements. This exception for
small providers is specifically retained in the current version
of the Restoration Act as it relates to Section 504.
The specter of Section 504 placing onerous and excessive
burdens upon small businesses is further dispelled when one
understands that Section 504 only requires reasonable
modifications. Both the regulations and the court cases that
have applied Section 504 have made it clear that the statute
only requires the making of reasonable accommodations and
alterations for the benefit of an individual with a disability;
unduly burdensome or unreasonable changes are not required by
Section 504.
Finally, the Council wishes to note that many businesses,
including Mom and Pop grocery stores and corner drugstores, have
been willing to make their facilities accessible to and usable
by persons with disabilities. Such changes have not proven to
be exorbitantly expensive nor disruptive to business. Making
facilities architecturally accessible benefits not only persons
with disabilities but also many other customers, including
elderly individuals, people pushing strollers and shopping
carts, pregnant women, and many others. The Council is aware
that many States and local governments have seen fit to mandate
architectural accessibility as part of their building codes and
ordinances. Obviously, architectural accessibility is not an
impossible or unachievable goal.
-8-
In the Council's view, our entire society benefits from
initiatives to secure increased opportunities for persons with
disabilities. At the very least, citizens with disabilities are
entitled to have Section 504 -- the primary statute that
protects them from discrimination -- restored to the modest
scope of coverage that it had prior to being severely restricted
as a result of the Grove City decision.
[This document has not been subjected to the A-19 Executive
Branch review process. The views contained in this testimony do
not necessarily represent those of the Administration.]
-9-
EDWARD M. KENNEDY, CHAIRMAN
CLAIBORNE PELL RHODE ISLAND
ORRIN G. HATCH, UTAH
HOWARD M. METZENBAUM. OHIO
ROBERT T. STAFFORD, VERMONT
SPARK M. MATSUNAGA, HAWAII
DAN QUAYLE, INDIANA
CHRISTOPHER J. DODD, CONNECTICUT
STROM THURMOND. SOUTH CAROLINA
PAUL SIMON, ILLINOIS
LOWELL P. WEICKER. JR., CONNECTICUT
TOM HARKIN, IOWA
THAD COCHRAN, MISSISSIPPI
BROCK ADAMS, WASHINGTON
GORDON J. HUMPHREY, NEW HAMPSHIRE
United States Senate
BARBARA A. MIKULSKI, MARYLAND
THOMAS M. ROLLINS, STAFF DIRECTOR AND CHIEF COUNSEL
COMMITTEE ON LABOR AND
HAYDEN G. BRYAN, MINORITY STAFF DIRECTOR
HUMAN RESOURCES
WASHINGTON, DC 20510-6300
March 27, 1987
The Honorable Sandra S. Parrino
Chairperson
National Council on the Handicapped
800 Independence Avenue, S.W.
Suite 814
Washington, D.C. 20591
Dear Ms. Parrino:
I am writing to request that the National Council on the
Handicapped appear before the Senate Committee on Labor and Human
Resources at a hearing on S. 557, the Civil Rights Restoration Act
of 1987. The hearing will take place on Wednesday, April 1 at
9:30 A.M. in Room SD-430 Dirksen Senate Office Building. The
Committee would be happy to hear from you personally, or your
designee.
Because the legislation will modify Section 504 of the
Rehabilitation Act of 1973 in order to ensure that disabled
individuals will be fully protected from discrimination in
federally-assisted programs and activities, the Committee would
appreciate the Council addressing the impact of Section 504 to
date on the lives of persons with disabilities. In particular,
the Committee would like NCH to comment on the principles of
non-discrimination regarding persons with disabilities upon which
the provisions of S. 557 are founded. Certainly, the perspective
of the National Council on the Handicapped as an independent
agency charged with advising Congress on federal disability policy
makes your testimony especially relevant to any policy discussion
involving Section 504.
Please submit your testimony to the Committee no later than
March 31st at 9:30 A.M. in order to comply with the Committee rule
requiring submission of testimony at least 24 hours in advance of
a hearing.
hillardy
EDWARD M. KENNEDY, CHAIRMAN
CLAIBORNE PELL, RHODE ISLAND
ORRIN G. HATCH, UTAH
HOWARD M. METZENBAUM, OHIO
ROBERT T. STAFFORD. VERMONT
SPARK M. MATSUNAGA, HAWAII
DAN QUAYLE, INDIANA
CHRISTOPHER J. DODD, CONNECTICUT
STROM THURMOND, SOUTH CAROLINA
PAUL SIMON, ILLINOIS
LOWELL P. WEICKER, JR., CONNECTICUT
TOM HARKIN, IDWA
THAD COCHRAN, MISSISSIPPI
BROCK ADAMS, WASHINGTON
GORDON J. HUMPHREY, NEW HAMPSHIRE
United States Senate
BARBARA A. MIKULSKI, MARYLAND
THOMAS M. ROLLINS, STAFF DIRECTOR AND CHIEF COUNSEL
COMMITTEE ON LABOR AND
HAYDEN G. BRYAN, MINORITY STAFF DIRECTOR
HUMAN RESOURCES
WASHINGTON, DC 20510-6300
March 27, 1987
The Honorable Sandra S. Parrino
Chairperson
National Council on the Handicapped
800 Independence Avenue, S.W.
Suite 814
Washington, D.C. 20591
Dear Ms. Parrino:
I am writing to request that the National Council on the
Handicapped appear before the Senate Committee on Labor and Human
Resources at a hearing on S. 557, the Civil Rights Restoration Act
of 1987. The hearing will take place on Wednesday, April 1 at
9:30 A.M. in Room SD-430 Dirksen Senate Office Building. The
Committee would be happy to hear from you personally, or your
designee.
Because the legislation will modify Section 504 of the
Rehabilitation Act of 1973 in order to ensure that disabled
individuals will be fully protected from discrimination in
federally-assisted programs and activities, the Committee would
appreciate the Council addressing the impact of Section 504 to
date on the lives of persons with disabilities. In particular,
the Committee would like NCH to comment on the principles of
non-discrimination regarding persons with disabilities upon which
the provisions of S. 557 are founded. Certainly, the perspective
of the National Council on the Handicapped as an independent
agency charged with advising Congress on federal disability policy
makes your testimony especially relevant to any policy discussion
involving Section 504.
Please submit your testimony to the Committee no later than
March 31st at 9:30 A.M. in order to comply with the Committee rule
requiring submission of testimony at least 24 hours in advance of
a hearing.
Sincerely,
Edward billerely M. Kennedy
Chairman
d had had my first
expreme art Cegalizad
discrime d annew how
it Alt to be and Kinstrated for
filing the you
don't fuen have the first
opportunity to succed
Millain of per di have
expensient Uni feling
along with The withing
che fat, data
gathered in en You Revis
Poll yor th aCH last you
slows that only X of
Prop Le as have grad
from col. The compares
to A th of the agu pop,
Furthomore fewer than
Xr. have fushed is.
This Compan 6x96 of the
you for
Perlaps even more
X of those
peop cu Cis wCo would
every to gots
and of those who are
sehing crews, To would
give up be with in orda
to have The opportunity
to work - Hatmons any
have eneffective
rated of A arong people
c- dis that rate
then any then state Authop
in the 45.
enough geod help these Days,
Employes they. int fund
rest Havey Bu of on ployer
awarding to He word
atlit, employers lete the
Organing Royces 165 delter than
aug So may Ye dont they his
some of onaly
8 mil unless des
wakes Lovld wont the
upp. to earn a being
to feroine undep I sly
?
pora or dis Hairs
solveyd below they
June Sun Oiscrio against
- perhaps bagely so since
Move City,
Same short sightd
cour of emp There
said at costs to much
to prince arrom 70
Uding we the aftacter spite of
this Hay asset this
Eaterto the contray. a
Antine no Lost
Havis coses no mr
We can't afford to
moral or proctical
on any Herus
the Restor Cut sech to proceck
discres
It AO in a restrable
Odso sechs to
why word
Condition by
pure flor and chyloyers
exampts > 15 rup.
prondes aroun, qual of resonally
and certern
types of programs
the Cavil on melign
Must more learly conert
the egmal of pays & dis,
equiv to other goups
But before J we labe this
inf $ histor seq forward,
we must Get buck to
where we were before
June City This the Com
fully endores the
retained in
the CRBA as they
real to page L Dis.
Reliat 30,000
35th 3650 2
730 00
M
Cost ( 250 ,200
z gooo
realy 100,600 nie take
cincl saved 250 other tappage
That a net
1,200
36/60 000, 000, 000
the
4000
blowever the feed is I
my exper every
practly
cegaral Discrim is
imp to Ois people, to our
sor to the fulure of
this great motion
of the price on which or
for was founded
d bobe mack
zoyr ago
Didn't know the but Joney
berned that living @ dr
the scinl asim
that that who Bas are
Not members of onion
group a not Dis
can only ne ad of her
aboutand were exposien
College
fortunate another unit
older, less access
considerably note endigatored
Syears before 504
Pagra class
admin Bill
T provided sece
MADLE Examily ) we have advised
Jus ept of In Oncie to
based on on see
dev proper by Top
We bave not been addred
work -
informad by Jaftain
not have
have not bad appoy
our see rould be consistent
d broke moly wh in an and
was 20yr ago when
d was C Ander in college,
Less than a year after
recommage D goodtz to Lpf 0
well bnown
onented und
their Lottlage cat rides
My home
Shorty eft 20 my application
forms and heard were can,
the Dear of Camis who
of need Q celler from
Q read a form lither stating
that my ading bad box
Devid of called let
from of Corer's to informe
my Rejuction and was teo
about the reason for
not of admitted
because, d used a it,
Qwards,
D must say d was stocked.
d was analyzed that ADWOOR
on some instit could
discribed leginst me
stritty on to basis of a a
prifical which
in the circumstance and
Oid not umpel My abidy
table whil x had to
rentrol Cyte malning a
April ingure d learned
that this type of Discrim
to assanlt was tenfelly
logal and that of and
be 2m
Dismayed
tay
Regided and scarred by
this experience Refinally
ON
INTERNATE COUNCIL DEPARTMENT APPEC THE HANDICA,
National Council on the Handicapped
800 Independence Avenue, S.W.
Suite 814
Washington, D.C. 20591
202-267-3846 voice
202-267-3232 TDD
An Independent
Federal Agency
STATEMENT OF: THE NATIONAL COUNCIL ON THE HANDICAPPED
BY:
LEX FRIEDEN, EXECUTIVE DIRECTOR
BEFORE THE: U.S. SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
DATE:
APRIL 1, 1987
STATEMENT OF: THE NATIONAL COUNCIL ON THE HANDICAPPED
BY:
LEX FRIEDEN, EXECUTIVE DIRECTOR
BEFORE THE: U.S. SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
DATE:
APRIL 1, 1987
The National Council on the Handicapped appreciates this
opportunity to present its views on the principles espoused in
the proposed Civil Rights Restoration Act. The views I am
expressing today are those of the Council and not the
Administration. The Administration's views will be presented by
the Departments of Justice and Education. As you are aware, the
Council is an independent Federal agency comprised of 15 members
appointed by the President and confirmed by the Senate.
Congress has statutorily charged the Council with reviewing all
laws, programs and policies of the Federal Government which
affect persons with disabilities and making such recommendations
as it deems necessary to the President, the Congress, the
Rehabilitation Services Administration, the National Institute
on Disability and Rehabilitation Research, and other Federal
agencies and officials. Although many government agencies
relate to the needs and concerns of people with disabilities,
the National Council on the Handicapped is the only Federal
-1-
agency with such cross-cutting responsibility for disability
issues -- regardless of age, disability type, employment
potential, economic need, or other individual circumstances.
In its 1986 report to Congress and the President, Toward
Independence, the Council commented on the central premise of
the proposed Civil Rights Restoration Act:
any person or agency that wishes to obtain Federal grant
funds should be required to avoid or cease discriminating in all
of its activities. Conversely stated, the Federal Government
should not provide financial assistance to any person or agency
that engages in discrimination in any part of its operations or
activities.
(Topic Paper on "Equal Opportunity Laws," Appendix, p. A-9)
In pursuing its statutory mandate of advising the Congress
and the President on disability issues, the Council has held
forums with people with disabilities all around the country.
Time after time, individuals with disabilities have told the
Council about the egregious discrimination they encounter in
their daily lives -- discrimination in jobs, in elementary and
secondary education, in higher education, in health services, in
recreation, in transportation, in housing, in public
accommodations, in obtaining the benefits of public programs and
services, and in virtually every other facet of American life.
On numerous occasions, Americans with disabilities have declared
to the Council that their number one priority is for strong and
comprehensive civil rights laws protecting them from
discrimination based upon their disabilities. That such views
are representative of Americans with disabilities generally is
underscored by one of the findings of the 1986 Harris nationwide
poll of disabled Americans; Louis Harris and Associates reported
-2-
as follows:
When it comes to how disabled persons should be treated
under the law, a near consensus emerges. Three out of every
four (75%) disabled persons believe that civil rights laws
that protect minorities against discrimination should also
protect them. Only 17% disagree.
(Louis Harris and Associates, Survey of Disabled Americans,
p. 112)
The primary Federal statute prohibiting discrimination on
the basis of handicap, Section 504 of the Rehabilitation Act of
1973, has had a tremendous impact in reducing discrimination
against persons with disabilities. Since the decision of the
Supreme Court of the United States in Grove City College V. Bell
in 1984, however, the effect of Section 504 has been
significantly blunted. In the case of Consolidated Rail
Corporation V. Darrone (104 S.ct. 1248 (1984)), decided on the
same day as the Grove City ruling, the Supreme Court announced
that the limitations upon civil rights coverage established in
Grove City apply to Section 504 cases as well (104 s.ct. at p.
1255). The Darrone case involved a claim of discrimination in
employment. In the Council's opinion, this suggests that the
limitations established in Grove City are not confined to the
context of higher education.
The Council is aware of numerous types of situations
affected adversely by the limitations imposed by the Grove City
and Darrone rulings. Examples include:
O
A man with multiple sclerosis was fired because of his
disability from a job in a state office of probation and parole
which receives substantial Federal grants, but not for the
specific program in which the man worked.
O
A college athlete is not allowed to participate in the
intramural basketball program because of a visual impairment;
the intercollegiate program of the college athletic program
receives substantial amounts of Federal financial assistance and
the student is the recipient of Federal student loans.
-3-
A person who once had an epileptic seizure was excluded
from a state job because of a rule against hiring people with a
history of epilepsy; the department where the job is located
receives Federal grants, but these funds cannot be traced
directly to the program in which the individual applied for a
job.
O
A public school teacher is refused a teaching position
because she has a visual impairment; the school system receives
a variety of Federal funds, which can even be traced to the
particular school, but the music department in which the
particular job was located does not receive Federal funds.
In each of these situations, the individuals with
disabilities would have been protected from discrimination prior
to the Grove City decision, but now they are left without
recourse under Section 504 against the blatant and despicable
acts of discrimination they have suffered.
If our Nation's commitment to equality of opportunity for
its citizens is to have any meaning, the Council believes that
Congress must restore Section 504 and other civil rights laws to
the breadth of coverage that they had prior to the Grove City
and Darrone decisions. The Council has noted, in its Toward
Independence report, that, even without the Grove City narrowing
of the scope of Section 504, persons with disabilities have much
less protection against discrimination than under civil rights
laws protecting other groups. At some time in the future, the
Council intends to provide this Committee with its views
regarding a more comprehensive approach to prohibiting the
discrimination faced by persons with disabilities. But the
Council believes that an absolutely necessary first step is to
return the scope of coverage of Section 504 and the other civil
rights laws to their status before the Supreme Court's ruling in
the Grove City case.
-4-
The Supreme Court of the United States has noted recently
that discrimination against persons with disabilities is often
rooted in "simple prejudice, " "archaic attitudes and laws, " and
"erroneous but nevertheless prevalent perceptions about the
handicapped" (School Board of Nassau County V. Arline, slip op.
at pp. 4-5). There have been concerns about the implications of
the Civil Rights Restoration Act as it applies to discrimination
against persons with disabilities.
One concern is that employers are opposed to statutory
prohibitions of employment discrimination against persons with
disabilities. Louis Harris and Associates recently conducted a
national poll of employers (representing equal subgroups of
small, medium, and large businesses) to determine their opinions
on such issues. By a substantial majority, employers recognized
the need and indicated their support for nondiscrimination
provisions protecting individuals with disabilities.
Three-fourths of company managers interviewed reported that they
believe that persons with disabilities often encounter job
discrimination, and over 70% stated that civil rights laws
should protect persons with disabilities.
2
A related concern is that it is very burdensome for
employers to provide equal employment opportunities for persons
with disabilities. The recent Harris poll of employers has
reaffirmed prior studies that have consistently found that
persons with disabilities make good or better than average
employees. Based upon employers' responses, the Harris
organization concluded, "Overwhelming majorities of managers
give disabled employees a good or excellent rating on their
-5-
overall job performance," and further, "Nearly all disabled
employees do their jobs as well or better than other employees
in similar jobs." Employees with disabilities were rated as
good or better than their nondisabled counterparts in regard to
willingness to work hard, reliability, attendance and
punctuality, productivity, desire for promotion, ability to take
supervision, and leadership ability.
What about the costs of employing a person with a
disability? Are job modifications for employees with
disabilities very costly? The Council has examined existing
studies of workplace accommodations provided for individuals
with disabilities and concluded that accommodations are usually
minor and inexpensive (see Toward Independence, Appendix, p.
A-48). A 1982 Department of Labor study of workplace
accommodations concluded that accommodation is "no big deal."
The Harris poll of employers verifies the results of the earlier
studies; the poll found large majorities of managers
(approximately 75%) reporting that the costs of making
accommodations are not expensive. While nearly one-half of
companies reported that they had made some worksite
modifications, an overwhelming majority stated that the costs of
accommodations rarely drives the cost of employing a person with
a disability above the average range of costs for other
employees.
Some have argued that "Mom and Pop grocery stores" and
"corner drugstores" will be saddled with the duty to make
In
extensive and prohibitively expensive modifications of their
premises to achieve accessibility for persons with
onerons precossive burdens
disabilities. Such hypotheticals are based upon a serious
misunderstanding of Section 504 and its application. In the
first place, Section 504, with or without the Restoration Act,
applies only to recipients of Federal financial assistance.
Suggestions that the acceptance of food stamps could trigger the
application of Section 504 are totally groundless. The Council
has never heard nor been apprised of any case in which Section
504 coverage was predicated upon the receipt of food stamps by a
small business.
Secondly those small businesses that do qualify as
of
recipients of Federal financial assistance are subject to the
"small provider" exceptions of Section 504. Since their
original issuance, Section 504 regulations have included
provisions exempting small providers (i.e., agencies with fewer
than fifteen employees) from certain requirements, including the
obligation to make significant alterations to existing
facilities to achieve accessibility and to comply with
recordkeeping and reporting requirements. This exception for
small providers is specifically retained in the current version
of the Restoration Act as it relates to Section 504.
The specter of Section 504 placing onerous and excessive
T
burdens upon small businesses is further dispelled when one
understands that Section 504 only requires reasonable
modifications. Both the regulations and the court cases that
have applied Section 504 have made it clear that the statute
only requires the making of reasonable accommodations and
alterations for the benefit of an individual with a disability;
-7-
unduly burdensome or unreasonable changes are not required by
Section 504.
Finally, the Council wishes to note that many businesses,
including Mom and Pop grocery stores and corner drugstores, have
been willing to make their facilities accessible to and usable
by persons with disabilities. Such changes have not proven to
be exorbitantly expensive nor disruptive to business. Making
facilities architecturally accessible benefits not only persons
with disabilities but also many other customers, including
elderly individuals, people pushing strollers and shopping
carts, pregnant women, and many others. The Council is aware
that many States and local governments have seen fit to mandate
architectural accessibility as part of their building codes and
ordinances. Obviously, architectural accessibility is not an
impossible or unachievable goal.
In the Council's view, our entire society benefits from
initiatives to secure increased opportunities for persons with
disabilities. At the very least, citizens with disabilities are
entitled to have Section 504 -- the primary statute that
protects them from discrimination -- restored to the scope of
coverage that it had prior to the Grove City decision.
-8-
ON
COUNCIL NAT MASSACHUSETTS RPPEA THE HANDICA
National Council on the Handicapped
800 Independence Avenue, S.W.
Suite 814
Washington, D.C. 20591
202-267-3846 voice
202-267-3232 TDD
An Independent
Federal Agency
STATEMENT OF: THE NATIONAL COUNCIL ON THE HANDICAPPED
BY:
LEX FRIEDEN, EXECUTIVE DIRECTOR
BEFORE THE: U.S. SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
DATE:
APRIL 1, 1987
STATEMENT OF: THE NATIONAL COUNCIL ON THE HANDICAPPED
BY:
LEX FRIEDEN, EXECUTIVE DIRECTOR
BEFORE THE: U.S. SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
DATE:
APRIL 1, 1987
The National Council on the Handicapped appreciates this
opportunity to present its views on the principles espoused in
the proposed Civil Rights Restoration Act. The views I am
expressing today are those of the Council and not the
Administration. The Administration's views will be presented by
the Departments of Justice and Education. As you are aware, the
Council is an independent Federal agency comprised of 15 members
appointed by the President and confirmed by the Senate.
Congress has statutorily charged the Council with reviewing all
laws, programs and policies of the Federal Government which
affect persons with disabilities and making such recommendations
as it deems necessary to the President, the Congress, the
Rehabilitation Services Administration, the National Institute
on Disability and Rehabilitation Research, and other Federal
agencies and officials. Although many government agencies
relate to the needs and concerns of people with disabilities,
the National Council on the Handicapped is the only Federal
-1-
agency with such cross-cutting responsibility for disability
issues --- regardless of age, disability type, employment
potential, economic need, or other individual circumstances.
In its 1986 report to Congress and the President, Toward
Independence, the Council commented on the central premise of
the proposed Civil Rights Restoration Act:
any person or agency that wishes to obtain Federal grant
funds should be required to avoid or cease discriminating in all
of its activities. Conversely stated, the Federal Government
should not provide financial assistance to any person or agency
that engages in discrimination in any part of its operations or
activities.
(Topic Paper on "Equal Opportunity Laws," Appendix, p. A-9)
In pursuing its statutory mandate of advising the Congress
and the President on disability issues, the Council has held
forums with people with disabilities all around the country.
Time after time, individuals with disabilities have told the
Council about the egregious discrimination they encounter in
their daily lives -- discrimination in jobs, in elementary and
secondary education, in higher education, in health services, in
recreation, in transportation, in housing, in public
accommodations, in obtaining the benefits of public programs and
services, and in virtually every other facet of American life.
On numerous occasions, Americans with disabilities have declared
to the Council that their number one priority is for strong and
comprehensive civil rights laws protecting them from
discrimination based upon their disabilities. That such views
are representative of Americans with disabilities generally is
underscored by one of the findings of the 1986 Harris nationwide
poll of disabled Americans; Louis Harris and Associates reported
-2-
as follows:
When it comes to how disabled persons should be treated
under the law, a near consensus emerges. Three out of every
four (75%) disabled persons believe that civil rights laws
that protect minorities against discrimination should also
protect them. Only 17% disagree.
(Louis Harris and Associates, Survey of Disabled Americans,
p. 112)
The primary Federal statute prohibiting discrimination on
the basis of handicap, Section 504 of the Rehabilitation Act of
1973, has had a tremendous impact in reducing discrimination
against persons with disabilities. Since the decision of the
Supreme Court of the United States in Grove City College V. Bell
in 1984, however, the effect of Section 504 has been
significantly blunted. In the case of Consolidated Rail
Corporation V. Darrone (104 s.ct. 1248 (1984)), decided on the
same day as the Grove City ruling, the Supreme Court announced
that the limitations upon civil rights coverage established in
Grove City apply to Section 504 cases as well (104 s.ct. at p.
1255). The Darrone case involved a claim of discrimination in
employment. In the Council's opinion, this suggests that the
limitations established in Grove City are not confined to the
context of higher education.
The Council is aware of numerous types of situations
affected adversely by the limitations imposed by the Grove City
and Darrone rulings. Examples include:
o
A man with multiple sclerosis was fired because of his
disability from a job in a state office of probation and parole
which receives substantial Federal grants, but not for the
specific program in which the man worked.
o
A college athlete is not allowed to participate in the
intramural basketball program because of a visual impairment;
the intercollegiate program of the college athletic program
receives substantial amounts of Federal financial assistance and
the student is the recipient of Federal student loans.
-3-
A person who once had an epileptic seizure was excluded
from a state job because of a rule against hiring people with a
history of epilepsy; the department where the job is located
receives Federal grants, but these funds cannot be traced
directly to the program in which the individual applied for a
job.
O
A public school teacher is refused a teaching position
because she has a visual impairment; the school system receives
a variety of Federal funds, which can even be traced to the
particular school, but the music department in which the
particular job was located does not receive Federal funds.
In each of these situations, the individuals with
disabilities would have been protected from discrimination prior
to the Grove City decision, but now they are left without
recourse under Section 504 against the blatant and despicable
acts of discrimination they have suffered.
If our Nation's commitment to equality of opportunity for
its citizens is to have any meaning, the Council believes that
Congress must restore Section 504 and other civil rights laws to
the breadth of coverage that they had prior to the Grove City
and Darrone decisions. The Council has noted, in its Toward
Independence report, that, even without the Grove City narrowing
of the scope of Section 504, persons with disabilities have much
less protection against discrimination than under civil rights
laws protecting other groups. At some time in the future, the
Council intends to provide this Committee with its views
regarding a more comprehensive approach to prohibiting the
discrimination faced by persons with disabilities. But the
Council believes that an absolutely necessary first step is to
return the scope of coverage of Section 504 and the other civil
rights laws to their status before the Supreme Court's ruling in
the Grove City case.
-4-
The Supreme Court of the United States has noted recently
that discrimination against persons with disabilities is often
rooted in "simple prejudice," "archaic attitudes and laws," and
"erroneous but nevertheless prevalent perceptions about the
handicapped" (School Board of Nassau County V. Arline, slip op.
at pp. 4-5). There have been concerns about the implications of
the Civil Rights Restoration Act as it applies to discrimination
against persons with disabilities.
One concern is that employers are opposed to statutory
prohibitions of employment discrimination against persons with
disabilities. Louis Harris and Associates recently conducted a
national poll of employers (representing equal subgroups of
small, medium, and large businesses) to determine their opinions
on such issues. By a substantial majority, employers recognized
the need and indicated their support for nondiscrimination
provisions protecting individuals with disabilities.
Three-fourths of company managers interviewed reported that they
believe that persons with disabilities often encounter job
discrimination, and over 70% stated that civil rights laws
should protect persons with disabilities.
A related concern is that it is very burdensome for
employers to provide equal employment opportunities for persons
with disabilities. The recent Harris poll of employers has
reaffirmed prior studies that have consistently found that
persons with disabilities make good or better than average
employees. Based upon employers' responses, the Harris
organization concluded, "Overwhelming majorities of managers
give disabled employees a good or excellent rating on their
-5-
overall job performance," and further, "Nearly all disabled
employees do their jobs as well or better than other employees
in similar jobs. Employees with disabilities were rated as
good or better than their nondisabled counterparts in regard to
willingness to work hard, reliability, attendance and
punctuality, productivity, desire for promotion, ability to take
supervision, and leadership ability.
What about the costs of employing a person with a
disability? Are job modifications for employees with
disabilities very costly? The Council has examined existing
studies of workplace accommodations provided for individuals
with disabilities and concluded that accommodations are usually
minor and inexpensive (see Toward Independence, Appendix, p.
A-48). A 1982 Department of Labor study of workplace
accommodations concluded that accommodation is "no big deal."
The Harris poll of employers verifies the results of the earlier
studies; the poll found large majorities of managers
(approximately 75%) reporting that the costs of making
accommodations are not expensive. While nearly one-half of
companies reported that they had made some worksite
modifications, an overwhelming majority stated that the costs of
accommodations rarely drives the cost of employing a person with
a disability above the average range of costs for other
employees.
Some have argued that "Mom and Pop grocery stores" and
"corner drugstores" will be saddled with the duty to make
extensive and prohibitively expensive modifications of their
premises to achieve accessibility for persons with
-6-
disabilities. Such hypotheticals are based upon a serious
misunderstanding of Section 504 and its application. In the
first place, Section 504, with or without the Restoration Act,
applies only to recipients of Federal financial assistance.
Suggestions that the acceptance of food stamps could trigger the
application of Section 504 are totally groundless. The Council
has never heard nor been apprised of any case in which Section
504 coverage was predicated upon the receipt of food stamps by a
small business.
Secondly, those small businesses that do qualify as
recipients of Federal financial assistance are subject to the
"small provider" exceptions of Section 504. Since their
original issuance, Section 504 regulations have included
provisions exempting small providers (i.e., agencies with fewer
than fifteen employees) from certain requirements, including the
obligation to make significant alterations to existing
facilities to achieve accessibility and to comply with
recordkeeping and reporting requirements. This exception for
small providers is specifically retained in the current version
of the Restoration Act as it relates to Section 504.
The specter of Section 504 placing onerous and excessive
burdens upon small businesses is further dispelled when one
understands that Section 504 only requires reasonable
modifications. Both the regulations and the court cases that
have applied Section 504 have made it clear that the statute
only requires the making of reasonable accommodations and
alterations for the benefit of an individual with a disability;
-7-
unduly burdensome or unreasonable changes are not required by
Section 504.
Finally, the Council wishes to note that many businesses,
including Mom and Pop grocery stores and corner drugstores, have
been willing to make their facilities accessible to and usable
by persons with disabilities. Such changes have not proven to
be exorbitantly expensive nor disruptive to business. Making
facilities architecturally accessible benefits not only persons
with disabilities but also many other customers, including
elderly individuals, people pushing strollers and shopping
carts, pregnant women, and many others. The Council is aware
that many States and local governments have seen fit to mandate
architectural accessibility as part of their building codes and
ordinances. Obviously, architectural accessibility is not an
impossible or unachievable goal.
In the Council's view, our entire society benefits from
initiatives to secure increased opportunities for persons with
disabilities. At the very least, citizens with disabilities are
entitled to have Section 504 -- the primary statute that
protects them from discrimination -- restored to the scope of
coverage that it had prior to the Grove City decision.
-8-
name
accompanyed by
most types knowledge
on behalf
Thank venus
Council, indep. 15, changed prin ad
views Council, do not / include record
in the process
heard from
#1 concern
equal opp. + equal rights
recounted numerous examples
share 20 years App. 504 nej, dis/norights
millions reforced
rights equal
many consideral
since same City
bionsdered
year educ Emp
appt to be produc
insure protes
council commitment 4,2
concerns
burdensome employer opposed
corts
Nom of BP modif
smallprov eperp.
society forefits
Avonable
significent life experience
nearly 20 years ago
perhaps even more sig.
19 years ago
applied - rejected
point blank
without hesitation
LL
equivication
strietly on the basis
legalized assist assult
Symlifed
demoralizing Delivering Degrading
Ensillusional
perfectly legal
five years later - 504
celebration - 10 years
regs
samething could?
happen now