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"Toward Independence: Equal Opportunity Laws" [National Council on the Handicapped] [1986] [1]
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"Toward Independence: Equal Opportunity Laws" [National Council on the Handicapped] [1986] [1]
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"Toward Independence: Equal Opportunity Laws" [National Council on the Handicapped] [1986] [1]
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TOWARD
INDEPENDENCE
An Assessment of Federal Laws and Programs Affecting
Persons With Disabilities - With Legislative Recommendations
Equal
Opportunity
Laws
Recommendations 1. Congress should enact a comprehensive law requiring equal
opportunity for individuals with disabilities, with broad coverage and
setting clear, consistent, and enforceable standards prohibiting
discrimination on the basis of handicap.
Such a statute should be packaged as a single comprehensive bill, perhaps
under such a title as "The Americans with Disabilities Act of 1986."
The recommendations which follow spell out more specifically the
components which such a bill should contain in order to create a
comprehensive and effective equal opportunity law for individuals
with disabilities.
2. The equal opportunity law for persons with disabilities should prohibit
discrimination on the basis of handicap by:
a. The Federal Government, all of its agencies and departments, and
the United States Postal Service.
b. All recipients of Federal financial assistance, with coverage of all
operations of the recipient and not just a particular program or
activity.
C. Federal contractors and subcontractors and Federal licensees.
d. All employers engaged in an industry affecting commerce who have
fifieen or more employees; employment agencies; and labor unions.
e. All sellers, landlords, and other providers of housing covered by
Title VIII of the Civil Rights Act of 1968.
f. All public accommodations covered by Title Il of the Civil Rights
Act of 1964.
8. All persons, companies, and agencies that engage in the business
of interstate transportation of persons, goods, documents, or data.
h. All persons, companies, and agencies that make use of the mails
or interstate communications and telecommunications services for
the business of selling, arranging, or providing insurance.
i. States, counties, and local governments, pursuant to Congressional
authority to enact legislation abrogating the States' immunity under
the Eleventh Amendment in order to enforce the Fourteenth
Amendment guarantee of Equal Protection of the Laws.
3. The law should provide a clear definition and standards for apply-
ing the prohibition of discrimination on the basis of handicap.
4. The Law should delineate specific enforcement standards, procedures,
and timelines for the implementation of equal opportunity
requirements.
5. The Architectural and Transportation Barriers Compliance Board
should be given the authority and responsibility to issue minimum
guidelines for universal accessibility and other standards for the
removal of architectural, transportation, and communication bar-
riers in facilities, vehicles, programs, and activities covered by the
equal opportunity law for people with disabilities.
SUMMARY OF PROPOSED BILL:
THE AMERICANS WITH DISABILITIES ACT OF 1987
This bill implements a principal recommendation of the National
Council on the Handicapped in its report Toward Independence
that called for enactment of a comprehensive law prohibiting
discrimination against people with disabilities. The essence of
the proposed Act is a prohibition of discrimination on the basis
of handicap that is broad in scope and specific in defining the
types of discrimination prohibited. It will guarantee the right
to be free from discrimination in such areas as employment,
housing, public accommodations, travel, and activities of State
and local governments.
Currently, Sections 501 through 504 of the Rehabilitation Act of
1973, as amended, prohibit discrimination on the basis of
handicap by agencies of the Federal Government, by Federal
contractors, and by Federal grantees. The Americans with
Disabilities Act will create a new, free-standing prohibition of
discrimination on the basis of handicap that will apply to
important areas of discrimination not addressed by the
Rehabilitation Act. It will cover employers who engage in
interstate commerce and have 15 or more employees, housing
providers covered by Federal fair housing laws, public
accommodations, interstate transportation companies, and State
and local governments.
The bill specifically delineates the various forms of
discrimination that are prohibited, including various types of:
intentional or unintentional exclusion; segregation; unequal,
inferior, or less effective services, benefits, or activities;
architectural, transportation and communication barriers;
failing to make reasonable accommodations; and discriminatory
qualifications and eligibility standards. It also specifies
that certain actions do not constitute discrimination. These
include unequal treatment that is wholly unrelated to a person's
disability, or is the result of the legitimate application of
qualifications and performance standards that are necessary and
substantially related to the ability to perform or participate
in the essential components of the job or activity in question.
Under the bill, the Architectural and Transportation Barriers
Compliance Board will issue minimum guidelines for
accessibility. Regulations in the relevant areas will be issued
by the appropriate agencies, including: the U.S. Equal
Employment Opportunity Commission (employment), the Secretary of
Housing and Urban Development (housing), the Secretary of
Transportation, (transportation), the Secretary of Commerce
(public accommodations), and the Attorney General (State and
local governments and coordination of the regulations to be
issued by the other agencies). Existing provisions of Sections
501 through 504 of the Rehabilitation Act of 1973 and their
implementing regulations shall not be affected by this Act and
shall continue to remain in effect.
Enforcement procedures available for acts of discrimination in
violation of this Act include administrative remedies, a private
right of action in Federal court, monetary damages, injunctive
relief, attorney's fees, and cutoffs of Federal funds.
S.L.C.
221001.656
DRAFT
100TH CONGRESS
1ST SESSION
S.
NOV 12 1987
IN THE SENATE OF THE UNITED STATES
Mr. WEICKER introduced the following bill; which was read twice and referred
to the Committee on
A BILL
To establish a clear and comprehensive prohibition of
discrimination on the basis of handicap.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assem-
3 bled,
4 SECTION 1. SHORT TITLE.
5
This Act may be cited as the "Americans with Dis-
6 abilities Act of 1987".
7 SEC. 2. FINDINGS AND PURPOSES.
8
(a) FINDINGS.-Congress finds that-
9
(1) some 36,000,000 Americans have one or
10
more physical or mental disabilities, and this number
221001.656
S.L.C.
2
1
is increasing as the population as a whole is growing
2
older;
3
(2) historically, society has tended to isolate and
4
segregate persons with disabilities, and, despite some
5
improvements, discrimination against persons with
6
disabilities continues to be a serious and pervasive
7
social problem;
8
(3) discrimination against persons with disabil-
9
ities persists in such critical areas as employment,
10
housing, public accommodations, education, trans-
11
portation, recreation, institutionalization, health serv-
12
ices, voting, and access to public services;
13
(4) every day, people with disabilities encounter
14
various forms of discrimination, including outright,
15
intentional exclusion, architectural, transportation,
16
and communication barriers, overprotective rules and
17
policies, refusal to make modifications to existing fa-
18
cilities and practices, exclusionary qualification
19
standards and criteria, segregation, and relegation to
20
lesser services, programs, activities, benefits, jobs, or
21
other opportunities;
22
(5) census data, national polls, and other studies
23
have documented that people with disabilities, as a
24
group, occupy an inferior status in our society, and
221001.656
S.L.C.
3
1
are severely disadvantaged socially, vocationally,
2
economically, and educationally;
3
(6) persons with disabilities are a discrete and
4
insular minority who have been saddled with restric-
5
tions and limitations, subjected to a history of pur-
6
poseful unequal treatment, and relegated to a posi-
7
tion of political powerlessness in our society, based
8
on characteristics that are beyond the control of such
9
persons and resulting from stereotypic assumptions
10
not truly indicative of the individual ability of such
11
persons to participate in, and contribute to, society;
12
(7) the Nation's proper goals regarding persons
13
with disabilities are to assure equality of opportunity,
14
full participation, independent living, and, wherever
15
possible, economic self-sufficiency for such citizens;
16
and
17
(8) the continuing existence of unfair and un-
18
necessary barriers, discrimination, and prejudice
19
denies people with disabilities the opportunity to
20
compete on an equal basis and to pursue those op-
21
portunities for which our free society is justifiably
22
famous, and costs the United State billions of dollars
23
in unnecessary expenses resulting from dependency
24
and nonproductivity.
25
(b) PURPOSE.-It is the purpose of this Act-
221001.656
S.L.C.
4
1
(1) to provide a clear and comprehensive Na-
2
tional mandate for the elimination of discrimination
3
against persons with disabilities;
4
(2) to provide a prohibition of discrimination
5
against persons with disabilities parallel in scope of
6
coverage with that afforded in statutes prohibiting
7
discrimination on the basis of race, sex, national
8
origin, and religion;
9
(3) to provide clear, strong, consistent, enforcea-
10
ble standards addressing discrimination against per-
11
sons with disabilities; and
12
(4) to invoke the sweep of congressional author-
13
ity, including its power to enforce the fourteenth
14
amendment, to regulate commerce, and to regulate
15
interstate transportation, in order to address the
16
major areas of discrimination faced day-to-day by
17
people with disabilities.
18 SEC. 3. DEFINITIONS
19
For purposes of this Act:
20
(1) ON THE BASIS OF HANDICAP.-The term "on
21
the basis of handicap" means because of a physical
22
or mental impairment, perceived impairment, or
23
record of impairment.
24
(2) PHYSICAL OR MENTAL IMPAIRMENT.-The
25
term "physical or mental impairment" means—
221001.656
S.L.C.
5
1
(A) any physiological disorder or condi-
2
tion, cosmetic disfigurement, or anatomical loss
3
affecting one or more of the following body
4
systems:
5
(i) the neurological system;
6
(ii) the musculoskeletal system;
7
(iii) the special sense organs, and res-
8
piratory organs, including speech organs;
9
(iv) the cardiovascular system;
10
(v) the reproductive system;
11
(vi) the digestive and genitourinary
12
systems;
13
(vii) the hemic and lymphatic systems;
14
(viii) the skin; and
15
(ix) the endocrine system; or
16
(B) any mental or psychological disorder,
17
such as mental retardation, organic brain syn-
18
drome, emotional or mental illness, and specific
19
learning disabilities.
20
(3) PERCEIVED IMPAIRMENT.-The term "per-
21
ceived impairment" means not having a physical or
22
mental impairment as defined in paragraph (2), but
23
being regarded as having or treated as having a
24
physical or mental impairment.
221001.656
S.L.C.
6
1
(4) RECORD OF IMPAIRMENT.-The term "record
2
of impairment" means having a history of, or having
3
been misclassified as having, a physical or mental
4
impairment.
5
(5) REASONABLE ACCOMMODATION.-The term
6
"reasonable accommodation" means providing or
7
modifying devices, services, or facilities, or changing
8
standards, criteria, practices, or procedures for the
9
purpose of responding to the specific functional
10
abilities of a particular person with a physical or
11
mental impairment, perceived impairment, or record
12
of impairment in order to provide an equal opportu-
13
nity to participate effectively in a particular program,
14
activity, job, or other opportunity.
15 SEC. 4. SCOPE OF DISCRIMINATION PROHIBITED.
16
(a) IN GENERAL.-No person shall be subjected to dis-
17 crimination on the basis of handicap in regard to-
18
(1) employer practices, employment agency
19
practices, labor organization practices, and training
20
programs covered by title VII of the Civil Rights
21
Act of 1964;
22
(2) the sale or rental of housing covered by title
23
VIII of the Civil Rights Act of 1968;
24
(3) any public accommodation covered by title
25
II of the Civil Rights Act of 1964;
221001.656
S.L.C.
7
1
(4) transportation services rendered by a person,
2
company, or agency engaged in the principal busi-
3
ness of interstate transportation of persons, goods,
4
documents, or data; and
5
(5) the actions, practices, and operations of a
6
State, or agency or political subdivision of a State.
7
(b) CONSTRUCTION.-
8
(1) REHABILITATION ACT.-Nothing in this Act
9
shall be construed to affect or change the nondis-
10
crimination provisions contained in Title V of the
11
Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.),
12
or to effect or change regulations issued by Federal
13
agencies pursuant to title V of such Act.
14
(2) OTHER LAWS.-Nothing in this Act shall be
15
construed to invalidate or limit any other Federal law
16
or any law of a State or political subdivision of a
17
State, or jurisdiction that provides greater protection
18
or rights for persons with physical or mental impair-
19
ments, perceived impairments, or records of impair-
20
ment than are afforded by this Act.
21 SEC. 5. FORMS OF DISCRIMINATION PROHIBITED.
22
(a) IN GENERAL.-Subject to the standards and proce-
23 dures established in sections 6 through 9 of this Act, the
24 actions or omissions described in this subsection constitute
25 discrimination on the basis of handicap.
221001.656
S.L.C.
8
1
(1) SERVICES, PROGRAMS, ACTIVITIES, BENEFITS,
2
JOBS, OR OTHER OPPORTUNITIES.-
3
(A) IN GENERAL.-It shall be discriminatory
4
to subject a person, directly or through contrac-
5
tual, licensing, or other arrangements, on the
6
basis of handicap, to any of the following:
7
(i) Denial of the opportunity to par-
8
ticipate in or benefit from a service, pro-
9
gram, activity, benefit, job, or other oppor-
10
tunity.
11
(ii) Affording a person an opportunity
12
to participate in or benefit from a service,
13
program, activity, benefit, job, or other op-
14
portunity that is not equal to that afforded
15
others.
16
(iii) Providing a person with a service,
17
program, activity, benefit, job, or other op-
18
portunity that is less effective than that
19
provided to others.
20
(iv) Providing a person with a service,
21
program, activity, benefit, job, or other op-
22
portunity that is different or separate,
23
unless such action is necessary to provide
24
the person with a service, program, activi-
221001.656
S.L.C.
9
1
ty, benefit, job, or other opportunity that is
2
as effective as that provided to others.
3
(v) Aiding or perpetuating discrimina-
4
tion by providing significant assistance to
5
an agency, organization, or person that dis-
6
criminates.
7
(vi) Denying a person the opportunity
8
to participate as a member of planning or
9
advisory boards.
10
(vii) Otherwise limiting a person in
11
the enjoyment of any right, privilege, ad-
12
vantage, or opportunity enjoyed by others.
13
(B) LEVELS OF ACHIEVEMENT.-For pur-
14
poses of this section, services, programs, activi-
15
ties, benefits, jobs, or other opportunities to be
16
equally effective, are not required to produce
17
the identical result or level of achievement for
18
persons with physical and mental impairments,
19
perceived impairments, or records of impair-
20
ment, and persons without such impairments,
21
but such services, programs, activities, benefits,
22
jobs, or other opportunities shall afford persons
23
with such impairments an equal opportunity to
24
obtain the same result, to gain the same bene-
25
fits, or to reach the same level of achievement,
221001.656
S.L.C.
10
1
in the most integrated setting appropriate to the
2
needs of the person.
3
(C) OPPORTUNITY TO PARTICIPATE.-Not-
4
withstanding the existence of separate or differ-
5
ent programs or activities provided in accord-
6
ance with this section, a person with a physical
7
or mental impairment, perceived impairment, or
8
record of impairment shall not be denied the
9
opportunity to participate in such programs or
10
activities that are not separate or different.
11
(D) ADMINISTRATIVE METHODS.-A person,
12
company, or agency may not, directly or
13
through contractual or other arrangements, uti-
14
lize criteria or methods of administration-
15
(i) that have the effect of discrimina-
16
tion on the basis of handicap;
17
(ii) that have the purpose or effect of
18
defeating or substantially impairing the ac-
19
complishment of the objectives of the serv-
20
ices, programs, activities, benefits, jobs, or
21
other opportunities provided with respect to
22
persons with physical or mental impair-
23
ments, or records of impairments; or
24
(iii) that perpetuate the discrimination
25
of others who are subject to common ad-
221001.656
S.L.C.
11
1
ministrative control or are agencies of the
2
same State.
3
(2) BARRIERS.-It shall be discriminatory-
4
(A) to establish or impose; or
5
(B) to fail or refuse to remove;
6
any architectural, transportation, or communication
7
barriers that prevent or limit the access or participa-
8
tion of persons on the basis of handicap.
9
(3) ACCOMMODATION.-It shall be discriminato-
10
ry to fail or refuse to make a reasonable accommo-
11
dation to permit an individual with a physical or
12
mental impairment, perceived impairment, or record
13
of impairment to apply, have access to, or participate
14
in a program, activity, job, or other opportunity.
15
(4) STANDARDS AND CRITERIA.-It shall be dis-
16
criminatory to impose or apply any qualification
17
standards, selection criteria, or eligibility criteria
18
that-
19
(A) screen out or disadvantage an individ-
20
ual because of a physical or mental impairment,
21
perceived impairment, or record of impairment;
22
or
23
(B) disproportionately screens out or disad-
24
vantages persons with particular types of physi-
S.L.C.
221001.656
12
1
cal or mental impairments, perceived impair-
2
ments, or record of impairments;
3
unless such criteria or standards can be shown to be
4
necessary and substantially related to ability to per-
5
form or participate in essential components of the
6
particular service, program, activity, benefit, job, or
7
other opportunity.
8
(5) RELATIONSHIPS OR ASSOCIATIONS.-It shall
9
be discriminatory to exclude or otherwise deny equal
10
services, programs, activities, benefits, jobs, or other
11
opportunities to a person because of the relationship
12
to, or association of, that person with another person
13
that has a physical or mental impairment, perceived
14
impairment, or record of impairment.
15
(b) ACTIONS NOT DISCRIMINATORY.-It shall not be
16 considered to be discrimination on the basis of handicap to
17 exclude or otherwise deny equal services, programs, activi-
18 ties, benefits, jobs, or other opportunities to a person-
19
(1) for reasons wholly unrelated to the existence
20
of or consequences of a physical or mental impair-
21
ment, perceived impairment, or record of impair-
22
ment;
23
(2) based on a legitimate application of qualifi-
24
cation standards, selection criteria, performance
25
standards, or eligibility criteria that are both neces-
221001.656
S.L.C.
13
1
sary and substantially related to the ability to per-
2
form or participate in the essential components of
3
the particular job, program, activity, or opportunity,
4
and such performance or participation cannot be ac-
5
complished by a reasonable accommodation; or
6
(3) by operating a program or activity that pro-
7
vides services, programs, activities, benefits, jobs, or
8
other opportunities designed for and rendered to per-
9
sons with particular physical or mental impairments
10
or types of impairments.
11 SEC. 6. DISCRIMINATION IN HOUSING.
12
(a) IN GENERAL-Notwithstanding the requirements
13 of section 5(a), it shall be an act of discrimination in
14 regard to housing-
15
(1) to discriminate in the sale or rental, or to
16
otherwise make unavailable or deny, a dwelling to
17
any buyer or renter because of a physical or mental
18
impairment, perceived impairment, or record of im-
19
pairment of-
20
(A) such buyer or renter;
21
(B) a person residing in or intending to
22
reside in such dwelling after it is sold, rented,
23
or made available; or
24
(C) any person associated with such buyer
25
or renter; and
221001.656
S.L.C.
14
1
(2) to discriminate against any person in the
2
terms, conditions, or privileges of the sale or rental
3
of a dwelling, or in the provision of services or fa-
4
cilities in connection with such dwelling, because of
5
a physical or mental impairment, perceived impair-
6
ment, or record of impairment of-
7
(A) such person;
8
(B) a person residing in or intending to
9
reside in such dwelling after it is so sold,
10
rented, or made available; or
11
(C) any person associated with such
12
person.
13
(b) REMOVAL OF BARRIERS IN HOUSING.-For pur-
14 poses of subsection (a), discrimination includes—
15
(1) a refusal to permit, at the expense of a
16
person with a physical or mental impairment, per-
17
ceived impairment, or record of impairment, reasona-
18
ble modifications of existing premises occupied, or
19
to be occupied, by such person if such modifications
20
may be necessary to afford such person full enjoy-
21
ment of the premises;
22
(2) a refusal to make reasonable accommoda-
23
tions in rules, policies, practices, or services, when
24
such accommodations may be necessary to afford
S.L.C.
221001.656
15
1
such person equal opportunity to use and enjoy a
2
dwelling; or
3
(3) a failure to design and construct qualified
4
multifamily dwellings for first occupancy after the
5
date that is 30 months after the date of enactment of
6
this Act, in such a manner that-
7
(A) the public and common use portions of
8
such dwelling are readily accessible to, and
9
usable by, persons with physical and mental im-
10
pairments;
11
(B) all the doors into and within all prem-
12
ises within such dwellings are sufficiently wide
13
to allow passage by persons in wheelchairs; and
14
(C) all premises within such dwellings con-
15
tain basic universal features of adaptive design.
16
(c) DEFINITION.-As used in this section the term
17 "qualified multifamily dwellings" means—
18
(1) buildings consisting of two or more units if
19
such buildings have one or more elevators; and
20
(2) those units in other buildings consisting of
21
two or more units that are on the ground floor.
22 SEC. 7. LIMITATIONS ON THE DUTIES OF ACCOMMODATION AND
23
BARRIER REMOVAL.
24
(a) EXISTENCE THREATENING ALTERATIONS.-
221001.656
S.L.C.
16
1
(1) IN GENERAL.-The failure or refusal to
2
remove architectural, transportation, and communica-
3
tion barriers, and to make reasonable accommoda-
4
tions, required under section 5(a) shall not constitute
5
an unlawful act of discrimination on the basis of
6
handicap if such barrier removal or accommodation
7
would fundamentally alter the essential nature, or
8
threaten the existence of the program, activity, busi-
9
ness, or facility in question.
10
(2) OTHER ACTION.-In the event that barrier re-
11
moval is not required because it would result in a
12
fundamental alteration or threaten the existence of a
13
program, activity, business, or facility, there shall
14
continue to be a duty to conform to other require-
15
ments of this Act and to take such other actions as
16
are necessary to make a program, activity, or service,
17
when viewed in its entirety, readily accessible to and
18
usable by persons with physical and mental impair-
19
ments, perceived impairments, or record of impair-
20
ments.
21
(b) TIME FOR ALTERATIONS.-
22
(1) IN GENERAL.-If substantial modifications to
23
existing buildings and facilities are necessary in
24
order to remove architectural, transportation, and
25
communication barriers, as required under section
221001.656
S.L.C.
17
1
5(a), such modifications shall, unless required earlier
2
by other law or regulation, be made within a reason-
3
able period of time, not to exceed 2 years from the
4
date of enactment of this Act.
5
(2) EXCEPTION.-Regulations promulgated pur-
6
suant to section 8 of this Act may allow up to 5
7
years from the date of enactment of this Act where
8
reasonably necessary for the completion of such
9
modifications to particular classes of buildings and
10
facilities.
11
(c) MASS TRANSPORTATION.
12
(1) IN GENERAL.-If substantial modifications to
13
existing platforms and stations of mass transportation
14
systems are necessary in order to remove architectur-
15
al, transportation, and communication barriers, as re-
16
quired under section 5(a), regulations promulgated
17
pursuant to section 8 of this Act may, unless re-
18
quired earlier by other law or regulation, allow a rea-
19
sonable period of time, in no event to exceed 10
20
years from the date of enactment of this Act, for
21
such modifications to be made.
22
(2) AFFECT.-Paragraph (1) shall not affect the
23
duty of providers of transportation services to con-
24
form to other requirements of this Act, including the
25
requirement of removing other types of architectural,
S.L.C.
221001.656
18
1
transportation, and communication barriers, and the
2
application of such requirements to vehicles and roll-
3
ing stock.
4 SEC. 8. REGULATIONS.
5
(a) ARCHITECTURAL AND TRANSPORTATION BARRIERS
6 COMPLIANCE BOARD.-Within 6 months of the date of en-
7 actment of this Act, the Architectural and Transportation
8 Barriers Compliance Board shall issue minimum guide-
9 lines, to supplement the existing Minimum Guidelines and
10 Requirements for Accessible Design, to establish standards
11 for the architectural, transportation, and communication
12 accessibility of buildings, facilities, vehicles, and rolling
13 stock subject to the requirements of this Act.
14
(b) ATTORNEY GENERAL.-
15
(1) IN GENERAL.-Within 1 year of the date of
16
enactment of this Act, the Attorney General shall
17
promulgate regulations for the implementation and
18
enforcement of the requirements of this Act as it ap-
19
plies to States and agencies and political subdivi-
20
sions of States.
21
(2) MINIMUM GUIDELINES.-The Attorney Gen-
22
eral of the United States shall coordinate the timely
23
development of regulations required under this sec-
24
tion and shall issue, within six months of the effec-
221001.656
S.L.C.
-19
1
tive date of this Act, minimum guidelines for the de-
2
velopment of such regulations.
3
(c) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.-
4
(1) EMPLOYER PRACTICES.-
5
(A) IN GENERAL.-Within 1 year of the
6
date of enactment of this Act, the Equal Em-
7
ployment Opportunity Commission shall pro-
8
mulgate regulations for the implementation and
9
enforcement of the requirements of this Act as
10
it applies to employer practices.
11
(B) PROHIBITIONS.-The regulations pro-
12
mulgated under subparagraph (A) shall prohibit
13
discrimination in regard to job application pro-
14
cedures, the hiring and discharge of employees,
15
employee compensation, job training, and other
16
terms, conditions, and privileges of employ-
17
ment.
18
(2) REQUIREMENTS.-The regulations promulgat-
19
ed under subparagraph (A) shall include, for all cov-
20
ered employers having 15 or more employees, a re-
21
quirement of outreach and recruitment efforts to in-
22
crease the work force representation of individuals
23
with physical or mental impairments, or records of
24
impairments, and shall establish a process and time-
25
liness for the development, implementation, and peri-
221001.656
S.L.C.
20
1
odic revision of such outreach and recruitment ef-
2
forts.
P
3
(3) PREEMLOYMENT INQUIRIES.-
A
4
(A) IN GENERAL.-The regulations promul-
5
gated under paragraph (1)(A) shall include a re-
6
quirement that employers may not conduct a
7
preemploymnet medical examination and may
8
not make a preemployment inquiry of an appli-
9
cant as to whether such applicant has a physical
10
or mental impairment, perceived impairment, or
11
record of impairment, or as to the nature or se-
12
verity of such impairment.
13
(B) PERMITTED INQUIRIES.-An employer-
14
(i) may make a preemployment in-
15
quiry into the ability of an applicant to sat-
16
isfy legitimate qualifications standards, se-
17
lection criteria, performance standards, or
18
eligibility criteria as permitted under sec-
19
tion 5(b)(2);
20
(ii) may condition an offer of employ-
21
ment on the results of a medical examina-
22
tion conducted prior to the entrance to duty
23
of the applicant, if-
24
(I) all entering applicants are sub-
25
jected to such an examination regard-
221001.656
S.L.C.
21
1
less of physical or mental impairment,
2
perceived impairment, or record of
3
impairment; and
4
(II) the results of such an exami-
5
nation are used only in accordance
6
with the requirements of this section;
7
(iii) taking remedial action to correct
8
the effects of past discrimination, or en-
9
gaged in outreach and recruitment efforts
10
to increase the participation of persons
11
with physical or mental impairments, may
12
invite employment applicants to indicate
13
whether, and to what extent, such appli-
14
cants have a physical or mental impair-
15
ment, if-
16
(I) the employer states clearly on
17
any written questionnaire used for em-
18
ployment purposes, or makes clear
19
orally if no written questionnaire is
20
used, that the information requested is
21
intended for use solely in connection
22
with such remedial action or outreach
23
and recruitment activities; and
24
(III) the employer states clearly
25
that the information is being requested
221001.656
S.L.C.
22
1
on a voluntary basis, that such infor-
2
mation will be kept confidential as
3
provided in subparagraph (C), that re-
4
fusal to provide such information will
5
not subject the applicant to any ad-
6
verse treatment, and that such infor-
7
mation will be used only in accord-
8
ance with the requirements of this sec-
9
tion.
10
(C) CONFIDENTIALITY.-Information as to
11
the medical condition or history of the appli-
12
cant, obtained in accordance with this paragraph
13
shall be collected and maintained on separate
14
forms that shall be accorded the same confiden-
15
tiality as are medical records, except that-
16
(i) supervisors and managers may be
17
informed of restrictions on the work or
18
duties of persons with physical or mental
19
impairments and of necessary accommoda-
20
tions for such persons;
21
(ii) first aid and safety personnel may
22
be informed, where appropriate, if such a
23
condition may require emergency treat-
24
ment; and
221001.656
S.L.C.
23
1
(iii) government officials investigating
2
compliance with this Act shall be provided
3
with relevant information on request.
4
(d) SECRETARY OF HOUSING AND URBAN DEVELOP-
5 MENT.-Within 1 year of the date of enactment of this Act,
6 the Secretary of Housing and Urban Development shall
7 promulgate regulations for the implementation and en-
8 forcement of the requirements of this Act as it applies to
9 sellers, landlords, and other providers of housing.
10
(e) SECRETARY OF TRANSPORTATION.-
11
(1) IN GENERAL-Within 1 year of the date of
12
enactment of this Act, the Secretary of Transporta-
13
tion shall promulgate regulations for the implementa-
14
tion and enforcement of the requirements of this Act
15
as it applies to State and local transit systems and to
16
those engaged in the business of interstate transpor-
17
tation.
18
(2) STANDARDS.-The regulations promulgated
19
under paragraph (1) shall include standards regarding
20
the accessibility of vehicles and rolling stock that are
21
consistent with the requirements of paragraph (3).
22
(3) REQUIREMENTS.-With respect to State and
23
local transit systems, rail and light rail services, and
24
bus companies, the standards issued under paragraph
25
(2) shall-
S.L.C.
221001.656
24
1
(A) insure that all vehicles or rolling stock
2
that are purchased, leased, renovated, or other-
3
wise placed into service after the date of enact-
4
ment of this Act shall be accessible to and
5
usable by persons with physical or mental im-
6
pairments, including wheelchair users;
7
(B) permit a reasonable period of time, not
8
to exceed 7 years, for such transportation opera-
9
tors to purchase, acquire, or modify sufficient
10
vehicles and rolling stock so that the peak fleet
11
of such operators has at least 50 percent of the
12
vehicles and rolling stock that are accessible to
13
and usable by persons with physical or mental
14
impairments, including wheelchair users; and
15
(C) insure that the use of paratransit and
16
other specialized transportation services for per-
17
sons with physical or mental impairments shall
18
be used as a supplement to other forms of trans-
19
portation, but shall not affect the requirement
20
that transportation systems and services avail-
21
able to members of the public shall be accessi-
22
ble to and usable by persons with physical or
23
mental impairments, including wheelchair users.
24
(f) SECRETARY OF COMMERCE.-Within 1 year of the
25 date of enactment of this Act, the Secretary of Commerce
221001.656
S.L.C.
25
1 shall promulgate regulations for the implementation and
2 enforcement of the requirements of this Act as it applies to
3 places of public accommodation.
4 SEC. 9. ENFORCEMENT.
5
(a) ADMINISTRATIVE ACTIONS.-
6
(1) IN GENERAL.-Any person who believes that
7
he or she or any specific class of individuals is being
8
or is about to be subjected to discrimination on the
9
basis of handicap in violation of this Act, shall have
10
a right, by himself or herself, or by a representative,
11
to pursue such administrative enforcement proce-
12
dures and remedies as are available in connection
13
with the regulations issued pursuant to section 8 of
14
this Act.
15
(2) REMEDY.-Agencies enforcing such regula-
16
tions shall have the authority to order all appropriate
17
remedial relief, including compliance orders, cutoff
18
of Federal funds, rescission of Federal licenses, mon-
19
etary damages, and back pay.
20
(b) CIVIL ACTIONS.-
21
(1) RIGHT TO FILE.-Any person who believes
22
that he or she or any specific class of individuals is
23
being or is about to be subjected to discrimination
24
on the basis of handicap in violation of this Act,
25
shall have a right, by himself or herself, or by a rep-
221001.656
S.L.C.
26
1
resentative, to file a civil action for injunctive relief,
2
monetary damages, or both in a district court of the
3
United States.
4
(2) ADMINISTRATIVE ENFORCEMENT.-The ex-
5
haustion of administrative enforcement procedures
6
and remedies as contemplated in section 9(a) shall
7
not be a prerequisite to the filing of a civil action
8
under this subsection, except in regard to employer
9
practices, employment agency practices, labor orga-
10
nization practices, and training programs, covered by
11
section 4(a)(1) of this Act, for which such exhaus-
12
tion shall be required unless-
13
(A) administrative enforcement procedures
14
and remedies as contemplated in section 9(a)
15
are not available; or
16
(B) such enforcement procedures are not
17
concluded within 180 days after the filing of a
18
complaint of discrimination prohibited under
19
this Act.
20
(c) ADDITIONAL EVIDENCE.-In any action brought
21 under this section, the court shall receive the records of the
22 administrative proceedings, shall hear additional evidence
23 at the request of a party, and, basing its decision on the
24 preponderance of the evidence, shall grant such relief as
25 the court determines is appropriate.
221001.656
S.L.C.
27
1
(d) JURISDICTION.-The district courts of the United
2 States shall have jurisdiction of actions brought under this
3 Act without regard to the amount in controversy.
4
(e) IMMUNITY.-A State shall not be immune under
5 the eleventh amendment to the Constitution of the United
6 States from suit in Federal court for a violation of this Act.
7 In a suit against a State for a violation of the requirements
8 of this Act, remedies (including remedies both at law and
9 in equity) are available for such a violation to the same
10 extent as such remedies are available for such a violation
11 in a suit against any public or private entity other than a
12 State.
13
(f) ATTORNEY'S FEES.-In any action or administra-
14 tive proceeding commenced pursuant to this section, the
15 court, or agency, in its discretion, may allow the prevailing
16 party, other than the United States, a reasonable attorney's
17 fee in addition to costs, and the United States shall be
18 liable for costs the same as a private person.
19
(g) BURDEN OF PROOF.-In any administrative pro-
20 ceeding or civil action brought under this Act, the burden
21 of proving the legitimacy of any qualifications standard,
22 selection criteria, or eligibility criteria at issue in a case,
23 and of proving the defense that a particular reasonable ac-
24 commodation or removal of an architectural, transporta-
25 tion, or communication barrier would fundamentally alter
221001.656
S.L.C.
28
1 or threaten the existence of the program, activity, business,
2 or facility in question, shall be on the person, agency, or
3 entity alleged to have committed an act of discrimination,
4 and shall not be on the complainant.
5 SEC. 10. EFFECTIVE DATE.
6
This Act shall become effective on the date of enact-
7 ment.
Draft - 11/15/87 - RLB
The Americans with Disabilities Act of 1987
SECTION-BY-SECTION SUMMARY
Section 1 -- Short Title
Provides that the law may be cited as the Americans with
Disabilities Act of 1987.
Section 2 -- Findings and Purpose
Subsection (a) presents Congressional findings about people
with disabilities, their disadvantaged status in our society,
the seriousness of discrimination against them, and the
costliness of such discrimination to our country.
Subsection (b) provides a statement of the overall purposes
of the Act centering on the establishment of a clear and
comprehensive National mandate for the elimination of
discrimination against persons with disabilities.
Section 3 -- Definitions
Provides definitions of key terms used in the Act, including
"on the basis of handicap," "physical or mental impairment," and
"reasonable accommodation." The former are defined consistently
with their definition in existing regulations under Section 504
of the Rehabilitation Act of 1973. The definition of
"reasonable accommodation" is drawn from Accommodating the
Spectrum of Individual Abilities, a report issued by the U. S.
Commission on Civil Rights.
- 1 -
Section 4 -- Scope of Discrimination Prohibited
Tells what persons and agencies are prohibited from
discriminating against persons with disabilities. Provides
broad scope of coverage in line with other types of civil rights
laws. Includes, among others, employers engaged in interstate
commerce having 15 or more employees, housing providers covered
by Federal Fair Housing laws, public accommodations, interstate
transportation companies, and State and local governments.
Section 5 -- Forms of Discrimination Prohibited
Subsection (a) tells what actions constitute discrimination
prohibited by the law. These include various types of
intentional and unintentional exclusion; segregation; inferior
or less effective services, benefits, or activities;
architectural, transportation, and communication barriers;
failing to make reasonable accommodations; and discriminatory
qualifications and performance standards.
Subsection (b) specifies that certain actions do not
constitute discrimination. These include unequal treatment that
is wholly unrelated to a person's disability, or is the result
of the legitimate application of qualifications and performance
standards that are necessary and related to the ability to
perform or participate in the essential components of the job or
activity involved. Also explicitly defined as not
discriminatory are special programs designed for persons with
particular physical or mental impairments or classes of
impairments.
- 2 -
Section 6 -- Discrimination in Housing
This section provides standards regarding the application of
nondiscrimination requirements in housing. The standards are
drawn from the current version of the disability portions of the
Federal Fair Housing Amendments bill in the Senate Judiciary
Committee. Their primary focus is upon accessibility in future
design and construction of housing.
Section 7 -- Limitations on the Duties of Accommodation and
Barrier Removal
Subsection (a) provides that barrier removal or reasonable
accommodations are not required to made if to do so would
fundamentally alter or threaten the existence of the program,
business, activity, or facility in question.
Subsection (b) permits a reasonable period of time, not to
exceed two years, for making substantial modifications to
existing buildings and facilities in order to remove barriers.
This period may be extended up to five years through regulations
governing particular classes of buildings and facilities.
Subsection (c) provides that regulations may permit a
reasonable period of time, not to exceed ten years, for making
substantial modifications to existing platforms and stations of
mass transportation systems.
Section 8 -- Regulations
Subsection (a) calls for the Architectural and
Transportation Barriers Compliance Board to issue minimum
- 3 -
guidelines for accessibility of buildings, facilities, vehicles,
and rolling stock. The remainder of the Section calls for
Federal agencies to issue regulations for implementing and
enforcing the requirements of the Act, including the following:
Employment
Equal Employment Opportunity
Commission
Housing
Secretary of Housing & Urban
Development
Transportation
Secretary of Transportation
Public accommodations
Secretary of Commerce
State and local governments,
and coordination
Attorney General (Department of
Justice)
Section 9 -- Enforcement
Establishes enforcement procedures for the requirements of
the Act. These include administrative remedies, a private right
of action, monetary damages, injunctive relief, attorney's fees,
and cutoffs of Federal funding.
Section 10 -- Effective Date
Provides that the Act shall take effect on the date of its
enactment.
- 4 -
TALKING POINTS
A. Name of Proposed Act
-- The Americans with Disabilities Act.
B. Where Does It Come From?
-- Was a key recommendation in the Council's statutorily
mandated report to Congress and the President -- Toward
Independence.
-- Based upon views of persons with disabilities heard by
the Council at consumer forums all around the country.
C. Need for the Act
-- Numerous statutes, rules and regulations prohibiting
discrimination on the basis of handicap exist but provide
inadequate protection.
-- Civil rights protections available to other minorities
and women are not available to persons with disabilities;
comparable coverage is missing in regard to discrimination in:
- housing
- public accommodations
- employment by employers in the private sector
- interstate transportation
- activities of State and local governments.
-- Piecemeal approach has led to inconsistencies in coverage
and interpretation of statutes.
-- No comprehensive national policy against discrimination
on the basis of handicap has ever emerged.
D. What will this Act do?
-- This Act will prohibit discrimination against people with
disabilities.
-- It will guarantee the right to be free from
discrimination in such areas as employment, housing, public
accommodations, travel, and activities of State and local
governments.
E. Whom will it cover?
-- This Act prohibits discrimination on the basis of
handicap in:
-- employment covered by Title VII
-- sale or rental of housing covered by
Title VIII
-- public accommodations
-- activities of State and local governments
-- interstate transportation services
- 1 -
F. Who will enforce it?
-- Architectural and Transportation Barriers Compliance
Board will issue minimum guidelines for
accessibility.
-- Regulations in the relevant areas will be issued by:
-- Attorney General (State and local
governments)
-- U.S. Equal Employment Opportunity
Commission
-- Secretary of Housing and Urban Development
-- Secretary of Transportation
-- Secretary of Commerce (public
accommodations)
G. Enforcement Procedures
-- Enforcement procedures include administrative
remedies, a private right of action, monetary
damages, injunctive relief, attorney's fees and
cutoffs of Federal funds.
H. Effect on the Rehabilitation Act of 1973
-- This Act will not repeal the Rehabilitation Act.
-- A provision is included so that regulations under
the Act may not provide less protection to a person
with a disability than under current Section 504
regulations which remain in full force and effect.
-- Definition of "physical and mental impairment" is
identical to the definition in current regulations
under Section 504.
-- Other definitions have been replaced by the simple
phrase "on the basis of handicap, paralleling the
language of other civil rights statutes.
-- A concise definition of "reasonable accommodation"
is included.
I. Similarities and Differences with Other Civil Rights Laws
-- Fundamental rights guaranteed by this Act are the
same as those underlying other civil rights
statutes.
-- The coverage is parallel but different standards
must apply.
-- This Act specifically defines discrimination as:
-- denying the opportunity to participate in a
service, program, activity, benefit or job;
-- providing unequal or less effective services,
programs, activities, benefits or jobs;
-- providing assistance to an entity that
discriminates;
-- limiting a right, privilege, advantage or
opportunity;
-- failing to make reasonable accommodations;
-- architectural, transportation and communication
barriers;
-- discriminatory qualifications, standards, or
eligibility criteria;
-- denial of equal opportunity based on a
relationship or association with persons
with disabilities.
- 2 -
J. Amending Section 504 and Other Statutes: A Simpler
Approach?
-- Amending Section 504 would involve a risk of
opening up for reconsideration and possible
weakening of hard fought gains under Section 504.
-- Amending existing civil rights laws to add
disability to the types of discrimination prohibited
has been opposed by traditional civil rights groups
as endangering the existing protections and raising
the possibility of refighting old battles.
-- Piecemeal legislative and regulatory overhaul will
leave inconsistencies and fragmentation.
K. Council's Involvement
-- Congress directed the Council to assess to what
extent Federal programs:
-- provide incentives or disincentives to the
establishment of community-based services
for individuals with disabilities
-- promote the full integration of such
individuals in the community, schools and
the workplace
-- contribute to the independence and dignity
of such individuals
-- In studies of numerous Federal laws, regulations
and programs, the Council heard over and over that
discrimination is the primary problem people with
disabilities face.
-- The Council concluded that the best means of
eradicating discrimination and achieving the goals
implicit in its mandates is the enactment of a
strong, unequivocal law banning discrimination
against people with disabilities.
- 3 -
LISTING OF SAMPLE QUESTIONS AND ANSWERS
Topic
Page
Need for the bill
1
Idea for the bill
1
Council's statutory authority
2
Unintentional discrimination
3
Section 504
3
Civil Rights Restoration Act
4
Comparability to Civil Rights Laws
5
Cost of implementation
6
Types of disabilities covered
7
Small Businesses
7
Opponents
8
Supporters
8
Employment
9
Housing
11
Public Accommodations
11
Air Travel
12
SAMPLE QUESTIONS AND ANSWERS
NEED FOR THE BILL
Q: Why is this bill necessary?
A: Although there are a number of statutes, rules and
regulations that prohibit discrimination on the basis of
handicap or against people with disabilities, too many gaps in
coverage and inconsistencies exist, and too few situations and
people are covered. Basic societal guarantees that include the
pursuit of employment and educational opportunities, the
enjoyment of public facilities, transportation and
accommodations are still denied too many of our citizens because
nondiscrimination on the basis of handicap has not been a clear,
national policy.
IDEA FOR THE BILL
Q: Where did the idea for the equal opportunity proposal come
from?
A: The Council recognized that the need for a comprehensive
civil rights law for Americans with disabilities in Toward
Independence. The Council has heard countless testimonies from
people with disabilities concerning the discrimination which
they face on a day to day basis. Moreover, parents of disabled
children and youth have often been overwhelmed by the barriers
which their children face in their attempts to achieve equality.
- 1 -
This proposed legislation attempts to redress the inherent
inequalities which exist in our society for Americans with
disabilities.
COUNCIL'S STATUTORY AUTHORITY
Q: Is proposing such a bill within the Council's statutory
mandate?
A: In the 1986 Amendments to the Rehabilitation Act, Congress
added to the duties of the Council" (8) provide to the Congress
on a continuing basis advice, recommendations, legislative
proposals and any additional information which the Council or
the Congress deems appropriate." Congress also directed the
Council to assess to what extent Federal programs (a) provided
incentives or disincentives to the establishment of
community-based services for individuals with disabilities; (b)
promoted the full integration of such individuals in the
community, schools and the workplace; and, (c) contributed to
the independence and dignity of such individuals. After lengthy
study of these issues, the Council concluded that the best means
of achieving the goals implicit in those mandates is the
enactment of a strong, unequivocal law banning discrimination
against people with disabilities.
- 2 -
UNINTENTIONAL DISCRIMINATION
Q: Why the emphasis on unintentional discrimination?
A: So many of the things that exclude people with disabilities
from participation in society are the result of unconscious
acts. Each flight of stairs constructed is surely not a
deliberate attempt to exclude people with mobility impairments
but, in fact, it does. Unfortunately, these barriers have as
deleterious an effect on people with handicaps as ruling certain
jobs off-limits to people with certain disabilities. Such
unintentional discrimination nevertheless limits the lives of
Americans with disabilities and ultimately requires them to live
as second class citizens.
SECTION 504
Q: Doesn't the Rehabilitation Act of 1973 provide sufficient
coverage?
A: Section 504 of the Rehabilitation Act, as amended, is a
landmark piece of legislation that has provided, and will
continue to provide, opportunities for many people with
disabilities. Section 504 does not, however, prohibit
discrimination by private employers, in housing, public
accommodations and interstate transportation or by State and
local governments. This bill will accomplish these goals.
- 3 -
Q: How does this bill differ from Section 504?
A: This bill uses the term "on the basis of handicap,"
parallelling language in other civil rights statutes and making
proof of class membership irrelevant. It also defines
discrimination, specifically proscribing for example, the
failure to make reasonable accommodations, and the use of
discriminatory qualifications standards.
Q: Will this Act repeal Section 504?
A: No. "The Americans with Disabilities Act" specifically
provides that it will not affect or change Section 504. It also
leaves intact all Section 504 regulations that have been issued.
CIVIL RIGHTS RESTORATION ACT
Q: How does this bill relate to the "Civil Rights Restoration
Act of 1987"?
A: It certainly does not change the Council's position of
wholeheartedly supporting the principles espoused by the
Restoration Act. Section 504 is, of course, one of the
statutesadversely affected by the Supreme Court's decision in
the Grove City case. The Council remained firm in its belief
that recipients of Federal funds should not engage in
discriminatory activity of any kind, in any program. The
Council has testified before the Congress in support of the
Civil Rights Restoration Act which would overturn Grove City.
- 4 -
Q: Won't this bill be subject to the same narrow
interpretation?
A: The language narrowly construed by the Supreme Court in the
Grove City case applies to "any program or activity receiving
Federal financial assistance." By contrast, this bill prohibits
discrimination in any program or activity of any recipient of
Federal financial assistance. Discrimination on the basis of
handicap is prohibited by the recipient in general, not the
program specifically.
COMPARABILITY TO CIVIL RIGHTS LAWS
Q: What value is there in having parallel coverage with other
civil rights laws?
A: The basic rights underlying this Act are the same as those
underlying other civil rights statutes. They include the rights
to be free from discrimination in employment, housing, travel,
public accommodations and education. The legal standards to be
applied to discrimination on the basis of handicap, however,
must differ from those addressing other types of
discrimination.
- 5 -
COST OF IMPLEMENTATION
Q: What will this bill cost to implement?
A: Very little, actually. This bill creates no new Federal
programs or Federal agencies. Those agencies that currently
have the responsibility for enforcing nondiscrimination
provisions of other statutes will, as they do with those,
promulgate regulations under and enforce the provisions of this
bill. Moreover, the bill contains timelines by which to make
necessary modifications or alterations.
Q: Won't the costs of providing accommodations such as readers,
equipment, modifications in work hours, and making workplaces
accessible outweigh any benefits derived from employment of
people with disabilities?
A: No. According to a recent Lou Harris poll conducted in
conjunction with the Council and the President's Committee on
Employment of the Handicapped, eight out of ten managers say
that the costs of employing both disabled and non-disabled
people are about the same. Furthermore, numerous other studies
have shown, and common sense would dictate, that increased
earnings by people with disabilities and additional tax revenues
is certainly more cost-effective than maintaining people in a
dependent situation.
- 6 -
TYPES OF DISABILITIES COVERED
Q: What types of disabilities are covered under the bill?
A: The definition of "physical or mental impairment" contained
in the bill is identical to the definition in Section 504
regulations. That definition lists certain diseases or
conditions that are covered under 504 and will be under this
bill as well. The definition is intended to be very broad.
Certain infectious diseases such as tuberculosis have been
determined by the U.S. Supreme Court to constitute an impairment
under 504, and by analogy, other conditions and diseases would
appear to have coverage under both 504 and this bill.
SMALL BUSINESSES
Q: How will the bill affect small business owners?
A: Small business owners will not be adversely affect by the
bill. The bill specifies that any modification or barrier
removal that would fundamentally alter the essential nature or
threaten the existence of a business would not be required. In
addition, the bill provides two to five years, depending on
circumstances, for businesses to make substantial modifications
to existing buildings. Moreover, an increased volume of sales
as a result of accessibility for disabled Americans could be
expected. For business opening up in new locations,
- 7 -
accessibility features included in the original construction
program would constitute only one-tenth of 1 percent of the
total construction cost. In some States, local codes and
ordinances already require these accommodations. It is
anticipated that when small business owners realize how useful
such barrier elimination can be, they will be in support of the
bill because of its applicability as a sound and valuable
business practice.
OPPONENTS
Q: Who do you think will oppose this bill?
A: Opposition may be expected from managerial and planning
professionals who have not yet been exposed to the value of
eliminating unnecessary barriers which daily confront 36 million
Americans with disabilities. Some potential opponents may be
concerned about the cost of implementing the bill. Their fears
will be alleviated when they learn that this bill creates no new
programs or agencies and that the conversion of tax-users into
taxpayers strengthens the economy of the country.
SUPPORTERS
Q: Who will be among those supporting this bill?
A: In conjunction with disability groups, we hope to enlist the
support of the civil rights community and groups that deal with
issues affecting elderly persons, a population more likely to
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have disabled members. Remember that unlike race, sex, and
national origin, disability is often not an immutable
characteristic. As anyone may end up as a person with a
temporary or permanent disability, we anticipate the support for
this bill will be wide-ranging. In fact, the Council has worked
with countless individuals and groups to enlist their support of
this proposed legislation.
EMPLOYMENT
Q: Will this bill require affirmative action programs for
people with disabilities?
A: This bill, noting both past and present discrimination,
includes among its findings that discrimination against people
with disabilities persists in employment and that they are, as a
group, severely disadvantaged vocationally and economically.
Based on those findings, it would certainly appear that some
incentives to encourage employers to actively recruit and
consider people with disabilities are in order if the goals of
full participation and economic self-sufficiency are to be
realized.
Q: Are we talking about quotas?
A: The extent of discrimination on the basis of handicap cannot
be measured as simply or precisely as in the case with race or
sex, for example and would render strict numerical analysis
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unusable. While underrepresentation of blacks or women in a
workforce could certainly be considered an indicia of
discriminatory practices at some point in the process, similar
underrepresentation of people with specific impairments would
not on its face indicate the presence or absence of unlawful
discrimination. Qualifications criteria that are reasonably
necessary and related to the ability to participate in the
essential components of a job may lawfully exclude people with
certain disabilities from certain jobs. Each situation must be
examined carefully. A criterion that applicants possess a high
level of visual acuity may lawfully exclude those with visual
impairments; the same criterion may not be used to exclude
everyone with a physical or mental impairment. Identifying
underrepresentation in this area will require further study and
analysis in order to determine whether it is the result of
legitimate, job-related criteria; refusal to make reasonable
accommodations; or barriers that make participation difficult or
impossible.
Q: Won't employers have to lower their standards?
A: Absolutely not. At most, employers will have to reexamine
their criteria for recruitment, hiring and promotion to ensure
that essential components of each job are clearly defined and
that the qualifications to perform each component are reasonable
and related to the job. If recent history is indicative, what
they will end up with is a streamlined , more efficient program
and a larger, more diverse pool from which to draw, both boons
to good management.
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HOUSING
Q: Aren't the costs of providing accessible housing
prohibitive?
A: No. Add response. In fact, the General Accounting Office
concluded in a report to Congress that "the additional cost
foraccessibility features included in the original construction
program may only be one-tenth of 1 percent of total construction
cost."
PUBLIC ACCOMMODATIONS
Q: Do people with disabilities have problems with public
accommodations such as restaurants?
A: Many people with disabilities do not have access, for
example, to restaurants, places of entertainment, or cultural
activities of their choice. In addition to obvious problems
with steps and inaccessible restrooms, some of these places may
segregate people with disabilities or refuse admittance to a
guide or service dog. This bill prohibits such discrimination
in public accommodations.
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AIR TRAVEL
Q: Is anyone claiming that people with disabilities are being
denied access to air travel?
A: The effect of barriers throughout transportation systems
often precludes someone with a disability from using them at
all. People with disabilities are also often provided disparate
or unequal treatment that either demeans or segregates to such
an extent that someone unable to take full advantage of an
opportunity may forgo it completely. To take air travel as an
example, people with disabilities who attempt to fly are often
not even permitted to choose their own seats; usually have their
wheelchairs taken from them and replaced with tottering, unsafe
devices; may have to be carried to and from the boarding area to
the plane; and, often cannot use the restrooms, which may
preclude flying altogether. This bill will prohibit
discrimination by any company engaged in interstate
transportation.
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