SPEAKERS CONTENTS INSERTS
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29–870 PDF
2006
AMERICANS WITH DISABILITIES ACT: SIXTEEN YEARS LATER
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
SEPTEMBER 13, 2006
Serial No. 109–146
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
AMERICANS WITH DISABILITIES ACT: SIXTEEN YEARS LATER
29–870 PDF
2006
AMERICANS WITH DISABILITIES ACT: SIXTEEN YEARS LATER
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
SEPTEMBER 13, 2006
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Serial No. 109–146
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
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MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
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PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
KIMBERLY BETZ, Full Committee Counsel
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DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
SEPTEMBER 13, 2006
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Committee on the Judiciary
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee on the Constitution
The Honorable Emanuel Cleaver, a Representative in Congress from the State of Missouri
The Honorable Darrell Issa, a Representative in Congress from the State of California, and Member, Committee on the Judiciary
The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
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WITNESSES
The Honorable Tony Coelho, Chair, The Epilepsy Foundation, and former Representative in Congress from the Central Valley District of California
Oral Testimony
Prepared Statement
Mr. Harry Horner, Small-Business Owner, Julian, CA
Oral Testimony
Prepared Statement
Mr. Robert L. Burgdorf, Professor of Law, University of the District of Columbia David A. Clarke School of Law
Oral Testimony
Prepared Statement
The Honorable Naomi Earp, Chair, the Equal Employment Opportunity Commission
Oral Testimony
Prepared Statement
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
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APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Emanuel Cleaver, a Representative in Congress from the State of Missouri
Additional Information Submitted by the Honorable Tony Coelho, Chair, The Epilepsy Foundation, and former Representative in Congress from the Central Valley District of California
Response to Post-Hearing Questions from the Honorable Tony Coelho, Chair, The Epilepsy Foundation, and former Representative in Congress from the Central Valley District of California
Response to Post-Hearing Questions from Harry Horner, Small-Business Owner, Julian, CA
Response to Post-Hearing Questions from Robert L. Burgdorf, Professor of Law, University of the District of Columbia David A. Clarke School of Law
Response to Post-Hearing Questions from the Honorable Naomi Earp, Chair, the Equal Employment Opportunity Commission
Charge Statistics FY 1992 through FY 2005, from the Equal Employment Opportunity Commission, submitted by the Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
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Letter and Prepared Statement from the National Council on Disability
''Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act,'' by the National Council on Disability, June 27, 2000
''Righting the ADA,'' by the National Council on Disability, December 1, 2004
Prepared Statement of the National Restaurant Association
Letter from Randel K. Johnson, Vice President Labor, Immigration, and Employee Benefits, and Marc Freedman, Director of Labor Policy, Chamber of Commerce of the United States of America, to the Honorable Steve Chabot, October 6, 2006
Documents from the Rights Task Force of the Consortium for Citizens with Disabilities
Prepared Statement of the Consortium for Citizens with Disabilities
Prepared Statement of Day Al-Mohamed, Director of Advocacy and Governmental Affairs, American Council of the Blind
Prepared Statement of James P. Ward, Founder and President, ADA Watch and the National Coalition for Disability Rights (NCDR)
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Prepared Statement of the American Diabetes Association
Document submitted by Easter Seals, Office of Public Affairs
Prepared Statement of The Arc of the United States and United Cerebral Palsy
Letter and Prepared Statement from the National Council on Independent Living
Prepared Statement of the United Spinal Association
Enforcement Statistics submitted by the Department of Justice, September 11, 2006
AMERICANS WITH DISABILITIES ACT: SIXTEEN YEARS LATER
WEDNESDAY, SEPTEMBER 13, 2006
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
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The Subcommittee met, pursuant to notice, at 2:14 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chairman of the Subcommittee) presiding.
Mr. CHABOT. The Committee will come to order.
Good afternoon. This is the Subcommittee on the Constitution. I am Steve Chabot, the Chairman of the Subcommittee. And I would like to thank everyone for being here today as the Subcommittee examines the Americans with Disabilities Act, commonly referred to as the ADA.
It has been 16 years since the ADA was enacted. And a great deal of activity, both positive and negative, has transpired under the act since that time.
We have an expert panel of witnesses before us this afternoon from whom the Committee can gain a better understanding of Congress's original intent in enacting the ADA in 1990 and the impact that certain Supreme Court decisions have had on the ADA's intended reach. The panel will also raise issues that have emerged over time, such as the use of the Internet, that were not anticipated by Congress or were not at issue at the time the ADA was enacted but are well within the scope of the ADA.
I would like to take a moment to welcome back the distinguished gentleman from California, former Representative Tony Coelho, as well we welcome all of our witnesses and those interested persons and organizations who are with us in the audience this afternoon. This Committee appreciates all the time and effort that everyone has put into making this an informative and productive hearing.
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The ADA was signed into law on July 26, 1990, by former President George H. W. Bush. Like other civil rights laws, the ADA is the landmark bipartisan legislation that has worked to bring down barriers that, for far too long, kept many of our fellow citizens from fully realizing and experiencing all that this nation has to offer.
Through the ADA, Congress sought to extend the broad protections that have first been afforded to disabled Americans in 1973 under the Rehabilitation Act. The ADA encompasses the areas of employment, programs and services provided by State and local government, places of public accommodation and the services provided by private entities, transportation services and facilities and telecommunications services.
The ADA accomplishes this by setting a ''clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and assigning the Federal Government with the central role in enforcing the standards established in this act on behalf of individuals with disabilities.'' Under the ADA's charge, communities have become more accessible, more friendly to disabled individuals. The ADA has encouraged conscious change to our infrastructures, governments, businesses, policies and practices.
Most importantly, societal attitudes relating to the educational and employment abilities of disabled Americans have changed as a result of the ADA. These increased opportunities have enabled disabled Americans to experience higher graduation rates, higher employment rates and lower rates of poverty. Disabled Americans are no longer isolated, but now live as independent, self-sufficient, contributing members of communities.
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At the same time, however, the ADA has not received the broad support by the Federal courts that Congress intended. The reach of the ADA's protection has been significantly limited by the Supreme Court, especially over the last several years.
Beginning in 1999 in a trilogy of cases that included Sutton v. United Airlines, Inc., the Supreme Court began to slowly chip away at the ADA's broad remedial purpose, excluding millions of disabled Americans from the ADA's protections, the very individuals Congress intended to benefit from the act.
Moreover, certain Supreme Court decisions have called into question the deference given to agency regulations under the ADA limiting the remedies available to aggrieved plaintiffs. The Supreme Court's competing interpretation of these provisions has caused a great deal of uncertainty with the ADA's intended reach.
This hearing, I believe, takes the first step toward resolving some of this uncertainty to help ensure that all individuals who fall within the intended reach of the ADA are covered and are sufficiently protected.
In addition, the hearing will enable the Committee to look into other issues such as litigation trends, which reveal that some individuals are not keeping with the spirit and purpose for which the ADA was intended.
The Committee has been made aware that title III's reasonable accommodation requirements have sometimes been used as a harassment tool in some cases forcing small-business owners into bankruptcy as they seek to defend themselves and comply with the ADA's requirement. We look forward to discussing with the witnesses whether legislation such as H.R. 2804, the ADA Notification Act, is warranted or whether this type of vexatious litigation can be addressed through some other mechanism such as agency regulations or technical guidance.
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The issues that I just mentioned only scratch the surface of the range of issues that have come up under the ADA over the last 16 years. I would like to ask our witnesses whether they would be willing to provide written responses to questions that we may not have time to ask in order to ensure that our record is complete.
I am noticing nodding by all the witnesses. So we will note it is in the affirmative.
And I, again, want to thank all the witnesses for being here this afternoon.
[The prepared statement of Mr. Chabot follows:]
PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
Good Afternoon. This is the Subcommittee on the Constitution. I would like to thank everyone for being here today as the Subcommittee examines the Americans with Disabilities Act—commonly referred to as the ADA. It has been sixteen years since the ADA was enacted and a great deal of activity, both positive and negative, has transpired under the Act since that time.
We have an expert panel of witnesses before us this afternoon from whom the Committee can gain a better understanding of Congress' original intent in enacting the ADA in 1990 and the impact that certain Supreme Court decisions have had on the ADA's intended reach. The panel will also raise issues that have emerged over time, such as the use of the internet, that were not anticipated by Congress, or were not at issue at the time the ADA was enacted but are well within the scope of the ADA.
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I'd like to take a moment to welcome back the distinguished gentleman from California—former Representative Tony Coelho, as well as welcome all of our witness and those interested persons and organizations who are with us in the audience. This Committee appreciates all the time and effort that everyone has put into making this an informative and productive hearing.
The ADA was enacted on July 26, 1990, by former President George H.W. Bush. Like other civil rights laws, the ADA is landmark bipartisan legislation that has worked to knock down barriers, that for far too long kept many of our fellow citizens from fully realizing and experiencing all that this nation has to offer. Through the ADA, Congress sought to extend the broad protections that had first been afforded to disabled Americans in 1973, under the Rehabilitation Act. The ADA encompasses the areas of employment; programs and services provided by State and local governments; places of public accommodation and the services provided by private entities; transportation services and facilities; and telecommunication services.
The ADA accomplishes this by setting a ''clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities'' and assigning ''the Federal government with the central role in enforcing the standards established in this Act on behalf of individuals with disabilities.''
Under the ADA's charge, communities have become more accessible—more friendly—to disabled individuals. The ADA has encouraged conscious change to our infrastructures, governments, businesses, policies, and practices. Most important, societal attitudes relating to the educational and employment abilities of disabled Americans have changed as a result of the ADA. These increased opportunities have enabled disabled Americans to experience higher graduation rates, higher employment rates, and lower rates of poverty. Disabled Americans are no longer isolated but now live as independent, self-sufficient, contributing members of communities.
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At the same time, however, the ADA has not received the broad support by the Federal courts that Congress intended. The reach of the ADA's protections has been significantly limited by the Supreme Court, especially over the last several years. Beginning in 1999, in a trilogy of cases that included Sutton v. United Airlines, Inc., the Supreme Court began to slowly chip away at the ADA's broad remedial purpose, excluding millions of disabled Americans from the ADA's protections, the very individuals Congress intended to benefit from the Act. Moreover, certain Supreme Court decisions have called into question the deference given to agency regulations under the ADA, limiting the remedies available to aggrieved plaintiffs, and expanding the defenses available to defendant employers and businesses.
The Supreme Court's competing interpretation of these provisions has caused a great deal of uncertainty with the ADA's intended reach. This hearing, I believe, takes the first step toward resolving some of this uncertainty to help ensure that all individuals who fall within the intended reach of the ADA are covered and are sufficiently protected.
In addition, the hearing will enable the Committee to look into other issues, such as litigation trends, which reveal that some individuals are not keeping with the spirit and purpose for which the ADA was intended. The Committee has been made aware that title III's reasonable accommodation requirements have been used as a harassment tool forcing many small business owners into bankruptcy as they seek to defend themselves and comply with the ADA's requirements. I look forward to discussing with the witnesses whether legislation, such as H.R. 2804, the ADA Notification Act, is necessary or whether this type of vexatious litigation can be addressed through some other mechanism, such as agency regulations or technical guidance.
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The issues that I just mentioned only scratch the surface of the range of issues that have come up under the ADA over the last 16 years. I would like to ask our witnesses whether they would be willing to provide written responses to questions that we may not have time to ask in order to ensure that our record is complete.
Again, I thank all of our witnesses for being here this afternoon.
Mr. CHABOT. And I would now like to turn to the Chairman of the full Committee, the full Judiciary Committee, Mr. Sensenbrenner of Wisconsin, for the purpose of making a statement.
Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.
The ADA is probably one of the seminal civil rights acts that has been passed by the Congress. And it rises, in my opinion, to those acts that were passed immediately after the Civil War and during the 1960's and 1970's to provide equal rights for all Americans.
We have reviewed as a Committee civil rights acts over the years and have brought them up to date and tweaked them so that they are effective in today's society and using today's technology. And I think that this hearing is going to be the beginning of such a process relative to the ADA since it has been on the books for 15 years now.
Let me say that, having been married to a disabled person for almost 30 years, I know firsthand why the legal protections are needed to allow people who do have disabilities, and not just physical disabilities, to reach their full potential in our society and to be able to contribute to the fullest the building of this country and their personal achieving of the American dream. And I think that this is the type of hearing where we can look at the ADA objectively and figure out ways to improve it.
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I would also like to welcome our former colleague, Tony Coelho from California. And I want to make due note that he is a Republican witness at this hearing, invited by the Majority. After the hearing is over, we can offer him a discounted membership in our party because this, I think, proves that the door is always wide open to converts to the cause.
So thank you again, Mr. Chairman. And good luck and Godspeed with your hearing.
Mr. CHABOT. Thank you, Mr. Chairman.
We will now turn to the Minority side. I don't know, Mr. Scott, if you want to make an opening statement for——
Mr. SCOTT. Mr. Chairman, I would ask unanimous consent that the Ranking Member, Mr. Nadler, be able to make a statement at the appropriate time.
But in the meanwhile, Mr. Chairman, I want to point out that I was in the Virginia State Senate when Virginia passed an equivalent of the Americans with Disabilities Act in the early 1980's that actually preceded the ADA.
And we went through all of these same kinds of questions that were asked, reasonable accommodations for employment, transportation, all these same kinds of issues. And the Virginians with Disabilities Act has worked extremely well. And I think it was probably used as a model for the ADA because I see a lot of the same provisions.
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So I look forward to the testimony of the witnesses, Mr. Chairman, and, again, ask that Mr. Nadler be able to make a statement at the appropriate time.
Mr. CHABOT. Okay. Thank you very much. We will do that when Mr. Nadler comes at an appropriate time. We will have him make a statement.
It was brought to my attention that the distinguished gentleman from Maryland, Mr. Hoyer, and also the distinguished gentleman from Florida, Mr. Foley, both of whom have been leaders in this area, may wish to have a written statement entered into the record. So when they submit those, we will allow those to go into the record.
I would also like to recognize at this time the distinguished gentleman from Missouri, Mr. Cleaver, who is not a Member of this Committee but who has been a leader in the area of disability rights and is with us this afternoon, and ask unanimous consent that his written statement be included in the record as well.
I also believe that Mr. Cleaver would like to ask our witnesses some questions as well. And I would also ask unanimous consent that he be permitted to participate in the question-and-answer portion of the hearing if a Subcommittee Member yields to him at that time.
And I would also reiterate that it is generally not the Committee's policy to have non-Members sit on the dais, so the events today, which we are allowing him to do that, wouldn't necessarily bind us in future hearings.
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At this time, Mr. Watt, did you want to make an opening statement?
Mr. WATT. Mr. Chairman, I am a Member of the Subcommittee. And I would ask unanimous consent to just allow Mr. Cleaver to make a few comments in my stead——
Mr. CHABOT. Okay, without objection.
Mr. WATT. —using my time.
Mr. CHABOT. Without objection, we will do that.
Mr. Cleaver, you are recognized if you would like to make a statement, a brief statement.
Mr. CLEAVER. Yes, Mr. Chairman. And it will be brief. I am not going to ask any questions, but I appreciate very much the opportunity to speak, and I appreciate Mr. Watts allowing me a portion of his time.
This is an issue that is extremely important to me, and I hope that we can do something to put in place a uniform policy for the nation.
We have new voting machines in the State of Missouri. And one of the strange but painful realities of the new voting machine is that many of the people with disabilities are having difficulty voting.
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One of the most prominent citizens of the State of Missouri protested after the last election. His name was Ike Skelton. Congressman Ike Skelton went into a polling place and could not vote. He had to have help to vote because, as the Members of the House already understand, he does have limited use of his arms.
And there was a front-page story in the Kansas City Star, which I intended to bring here, pointing out the problems that confront people with disabilities even as they try to exercise their constitutional right to vote.
And I hope and pray that we will be proactive in doing something legislatively, this Committee, that would require that all States conform with regard to voting the same way that we are supposed to with the ADA.
And I have expressed to Mr. Skelton that I was going to make these comments today because he was unable to come.
But I am hoping that all of the Members of this Committee—and there are probably people here today who can probably speak even further to those problems. And I felt compelled to come and say it. Thank you.
Mr. WATT. Mr. Chairman, I would just ask unanimous consent that I be allowed to submit for the record a copy of the report that Mr. Cleaver made reference to. I will take responsibility for obtaining it from him and get it into our record.
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[The material referred to was not available.]
Mr. CHABOT. Thank you. Without objection, so ordered.
Mr. WATT. I yield back the balance of my time.
Mr. CHABOT. The gentleman yields back.
I now recognize the gentleman from California, Mr. Issa, for the purpose of introducing one of our witness panel.
Mr. ISSA. Thank you, Mr. Chairman.
And I greatly appreciate being allowed to join the Constitution Subcommittee today to introduce Harry Horner, a constituent of mine from Julian, California. Harry is a former building contractor and currently a very fine restauranteur and small-business owner. He is not here in a capacity only as a small-business owner, but on behalf of the town of Julian.
Julian is a very, very attractive rural town nestled up in the mountains of Southern California known to have some of the best apple pie anywhere in the nation. It was a mining town 100 years ago and, when finally mined out after World War II, fell into disrepair until it became what it is today, a quaint place for people of Southern California to go to have a good day, perhaps to stay at a bed-and-breakfast.
Recently, after devastating wild fires affected the entire area, a second tragedy befell Harry and his fellow small-business people, and he is here to testify on that today. He is here to testify how the entire town was held systematically hostage to money, not remedies, but money for compliance violations, many of which dated back to the very birth of that town.
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And so, Mr. Horner is not here to disparage the ADA, just the opposite. He wants to see it mended, not ended, so that, in fact, reasonable cures can be done in a proper fashion by reasonable notification. And I think you will find him to be a very good witness.
And with that, I yield back.
Mr. CHABOT. Thank you very much.
I would now like to introduce the rest of our distinguished panel of witnesses here this afternoon.
Our first witness will be the distinguished gentleman from California, former Congressman Tony Coelho, who represented California's Central Valley in the House of Representatives from 1978 through 1989. While serving in the House, Mr. Coelho took the lead role in drafting and passing the Americans with Disabilities Act. He also served as chairman of the Democratic Congressional Campaign Committee from 1981 to 1986 and then served as the first-ever elected Majority Whip from 1987 to 1989, in addition to holding numerous other positions.
In 1982, Mr. Coelho was elected to the Epilepsy Foundation's board of directors and had been an active proponent of increasing funding for epilepsy research and a vocal advocate of the rights of people living with epilepsy and other disabilities. Mr. Coelho currently serves as chair of the board of directors for the foundation.
We welcome you back here, Mr. Coelho.
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Mr. COELHO. Thank you, Mr. Chairman.
Mr. CHABOT. And if you want to take up Mr. Sensenbrenner's position, we will be happy to hear that as well.
And our second witness, Mr. Horner, has already been introduced by Mr. Issa.
Our third witness will be Professor Robert L. Burgdorf, professor of law at the University of the District of Columbia. Professor Burgdorf directs the School of Law's legislation clinic as well as teaches disability and constitutional law. Professor Burgdorf has been a long-time disability activist, playing an instrumental role in drafting the Americans with Disabilities Act.
He authored the first law school casebook on disability rights issues as well as the Disability Discrimination in Employment Law. In 2000, Professor Burgdorf was awarded one of four Mary E. Switzer Rehabilitation Research Distinguished Fellowships to research and analyze the extent to which the courts have recognized and implemented fundamental disability concepts.
We welcome you here this afternoon, Professor Burgdorf.
And our fourth and final witness will be newly appointed Equal Employment Opportunity Commission Chair Naomi Earp. Ms. Earp served as vice chair for the commission prior to appointment to the position of chair. Prior to her time at the EEOC, Chair Earp held numerous leadership positions in Government agencies, including the Department of Agriculture, where she headed the Equal Opportunity Program, which included minority small businesses and minority farmers.
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Chair Earp also served as an independent consultant providing services to private employers and public agencies on a variety of employment-related issues and programs. In both the private and public sector, Ms. Earp has a strong track record of promoting diversity in the equal employment opportunity field. Chair Earp received her jurors doctorate from Catholic University and is a member of the Supreme Court Bar and the Pennsylvania Bar.
We welcome you here, Ms. Earp.
And we welcome all our witnesses here this afternoon.
And for those of you who may not have testified before this Committee or any of the congressional Committees before, let me explain very briefly our lighting system.
We have what is called the 5-minute rule. You all have 5 minutes to testify. The green light will be on—there are two places on the table there—for 4 minutes. The yellow light will come on to let you know you have a minute to wrap up. And then the red light will come on. And we hope that you will conclude as soon as possible after the red light comes on, or prior to that, if that occurs. We won't gavel you down immediately. We will give you a little bit of leeway. But try not to take too much advantage of the Chair.
It is also the practice of the Committee to swear in all witnesses appearing before it. So if you would all please stand and raise your right hand.
[Witnesses sworn.]
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Mr. CHABOT. And we will now begin with our first witness, Congressman Coelho.
TESTIMONY OF THE HONORABLE TONY COELHO, CHAIR, THE EPILEPSY FOUNDATION, AND FORMER REPRESENTATIVE IN CONGRESS FROM THE CENTRAL VALLEY DISTRICT OF CALIFORNIA
Mr. COELHO. Mr. Chairman, thank you very much for having these hearings and having me today. And I appreciate the opportunity to testify.
Since I left in 1989, I do not lobby or anything else. I seldom come back here. But this hearing is very important to me. So I am appreciative of the invitation from Chairman Sensenbrenner to participate as a Majority witness here today.
I introduced the ADA in 1988, together with Senator Lowell Weicker, when I served in the House. And I introduced it with Lowell because I thought it was very important that this legislation be both bicameral and bipartisan.
And I think that one of the important things for us to remember is that a lot of us, when we were in the Congress, we made a lot of promises about the ADA. Through the passage of the ADA, we promised our fellow Americans who have disabilities that they had the right to share in our country's greatest strengths: our capacity for progress and advancement.
I believe that the prosperity and justice are not meant to be hoarded but they are meant to be shared, that when the American dream is available to ever-greater numbers of us, that it in itself is the wellspring of our national security and prosperity. For generations of Americans the right and ability to work at a trade or a profession was the key to individual realization of that dream and the national prosperity that followed.
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My personal experience with epilepsy shaped my recognition of the need for legislation to address the stigma and discrimination people with disabilities face. As I learned when my epilepsy was discovered and legalized bigotry left me unemployed and unemployable, work means much more than financial stability.
My passion for expanding job opportunities for Americans with disabilities is rooted in my very life experiences, in the pain and personal failure I felt when I was prevented from working and in the competence and ability to contribute I rediscovered when I was finally able to find work once again.
I have always been outspoken about my disability. I believe that if you want to change people's perceptions, particularly of hidden and stigmatized disabilities like epilepsy, you have to be outspoken about it. People have to see that any one of us could be affected by a disability, that people with disabilities are not somehow other than those without. It can happen to your husband, your wife, your daughter, your son, your father, your mother, your best friend or your next-door neighbor at any time.
I introduced the Americans with Disabilities Act because I knew firsthand how a person could be qualified to do a job but still be excluded from employment because of others' misunderstandings and fears. I knew then, as now, that people with disabilities may be discriminated against because their condition is a disability or because the employer thinks it is a disability, even it if it is not, in fact, substantially disabling or sometimes just because someone has a past history of a disability.
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Even though my disability, my epilepsy, did not interfere with my ability to work or participate in everyday activities, I was unfairly denied many opportunities simply because of my stigma associated with my health condition and the ignorance of others. Stigma and ignorance about epilepsy persist today and still result in the denial of equal opportunity for many.
There is similar stigma and ignorance about a whole range of other disabilities, which may be controlled to a certain extent, such as mental illness and diabetes, which likewise may effectively rob many others of their part of the American dream.
As the author of the ADA, I absolutely intended the legislation to cover people with disabilities who took medication or used a corrective device to alleviate their condition but were nonetheless denied employment or fired from employment because of their disability. I absolutely intended it to cover people whose conditions did not actually interfere with daily living but who were treated by others as having a disability.
I believe that everyone in the Congress—some of you who are here today—who voted to pass the bill understood that it applied to people like me. I intended this bill to apply to the discrimination that I faced in my family, in my church and in the Government because of my epilepsy.
The ADA has now become a model for anti-disability discrimination legislation around the world as more and more countries adopt civil rights protections that promote the full integration of people with disabilities and the protection of their civil rights.
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America and Congress, when it passed the ADA, proposed a true model to the rest of the world because of our goal and dedication to the full inclusion of all Americans into the mainstream of life. This includes our understanding of the belief that people who have disabilities are fully capable of working in competitive employment and being productive members of society.
Sometimes a reasonable accommodation, one that is not unduly burdensome, is needed. Often it isn't.
The support of the ADA was bipartisan, bicameral and complete. We all understood that if we do not integrate people with disabilities we not only cause them and ourselves to suffer, we also expend enormous resources to support people who actually want and are capable of supporting themselves. That is a far different attitude and goal than many other countries have. Rather, attitudes of parternalism, cartetaking and exclusion are the norm.
Though we have a long way to go internationally, we continue to be a standard bearer in this area of the law for the rest of the world. You should be proud of yourselves. Over 50 different countries have adopted a form of the ADA.
You, the Congress, should be recognized for the many positive changes that have occurred since you passed the ADA: reduction in physical barriers. Everywhere one sees signs of more accessible world. And that is rapidly getting better, as new office buildings and businesses are built in compliance with the law.
All of us have benefited from these changes in our physical and environmental stage, and the attitude of inclusion that accompanies these changes: curb-cuts and ramps designed to allow access for people with wheelchairs help parents with baby carriages, delivery people, mail carriers making their rounds and elderly people.
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We now have access to information and technology usable by people with disabilities. Thanks to the ADA's clear call to equal access to the goods and services offered by public accommodations, people with disabilities are, more than ever before, finding it easier to privately and independently make purchases at retail stores such as pharmacies with accessible points-of-sale machines.
Mr. Chairman, I have reached my 5 minutes.
Mr. CHABOT. Okay. Did you want to wrap up, if you have a concluding statement?
Mr. COELHO. No, that is fine. I will stop there.
[The prepared statement of Mr. Coelho follows:]
PREPARED STATEMENT OF THE HONORABLE TONY COELHO
Good Afternoon. I am Tony Coelho, Chair of the Board of the Epilepsy Foundation, Secretary of the Board of the American Association of People with Disabilities, businessman and former Member of Congress. As you may know, I was the original author of the Americans with Disabilities Act and introduced the bill in 1986—together with Senator Lowell Weicker—when I served in the US House of Representatives; we introduced the bill together, in order to ensure the ADA was both bicameral and bipartisan. It is a pleasure today to be back here and speaking to you, Chairman Sensenbrenner, Mr. Conyers, Chairman Chabot and Mr. Nadler and other distinguished Members of this Committee and Subcommittee. I want to thank you all for holding this oversight hearing today and for offering us the opportunity to talk about the ADA—its successes and challenges for the future.
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Sixteen years ago we made a lot of promises when we signed the Americans with Disabilities Act into law. Through the passage of the ADA we promised our fellow Americans who have disabilities the right to share in our country's greatest strengths—our capacity for progress and advancement.
I believe that prosperity and justice are not meant to be hoarded but shared; that when the American dream is available to ever-greater numbers of us, that itself is the well-spring of our national security and prosperity.
For generations of Americans, the right and ability to work at a trade or profession was the key to individual realization of that dream, and the national prosperity that followed.
But, as I learned when my epilepsy was discovered, and legalized bigotry left me unemployed and unemployable, work means much more than financial stability.
My passion for expanding job opportunities for Americans with disabilities is rooted in my life—in the pain and personal failure I felt when I was prevented from working—and in the confidence and ability to contribute I rediscovered when I was finally able to find work once again
I have always been outspoken about my disability. I believe that if you want to change people's perceptions, particularly of hidden and stigmatized disabilities like epilepsy, you have to be outspoken about it. People have to see that any one of us could be affected by disability, that people with disabilities are not somehow ''other'' than those without. When I was in Congress, I was a primary sponsor of the Americans with Disabilities Act because I knew firsthand how a person could be qualified to do a job, but still be excluded from employment because of others' misunderstanding and fears. I knew then, as now, that people with disabilities may be discriminated against because their condition is a disability, or because the employer thinks it is a disability even if it is not in fact substantially disabling, and sometimes, just because someone has a past history of a disability.
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Even though my epilepsy did not interfere with my ability to work or participate in other daily activities, I was unfairly denied many opportunities simply because of the stigma associated with my health condition and the ignorance of others. Stigma and ignorance about epilepsy persists today and still results in the denial of equal opportunity to many. There is similar stigma and ignorance about a whole range of other disabilities which may be ''controlled'' to a certain extent such as mental illness and diabetes—which likewise may effectively rob many others of their part of the American dream.
As the author of the ADA, I absolutely intended the legislation to cover people with disabilities who took medication or used a corrective device to alleviate their condition but were nonetheless denied employment or fired from employment because of their disability. I absolutely intended it to cover people whose conditions did not actually interfere with daily living, but who were treated by others as having a disability. I believe that everyone in Congress who voted to pass the bill understood that it applied to people like me. I intended this bill to apply to the discrimination that I faced in my family, my church, and my government because of my epilepsy.
The ADA has now become a model for anti-disability discrimination legislation around the world, as more and more countries adopt civil rights protections that promote the full integration of people with disabilities and the protection of their civil rights. America and Congress when it passed the ADA, proposed a true model to the rest of the world—because of our goal and dedication to the full inclusion of all Americans into the mainstream of life. This includes our understanding and belief that people who have disabilities are fully capable of working in competitive employment and being productive members of society. Sometimes a reasonable accommodation, one that is not unduly burdensome, is needed; often it isn't. The support for the ADA was bipartisan, bicameral and complete; we all understood that if we do not integrate people with disabilities, we not only cause them and ourselves to suffer, we also expend enormous resources to support people who actually want and are capable of supporting themselves. That is a far different attitude and goal than many other countries have; rather, attitudes of paternalism, caretaking, and exclusion are the norm. Though we have a long way to go internationally, I am very proud of what we—what you in Congress, have done in passing the ADA. You have been able to produce a model for people in over 50 countries, to guide our world to a better place.
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Since the ADA was enacted, there have been many positive changes for which you in Congress must be recognized. For example, there has been a noteworthy reduction in physical barriers—everywhere one sees signs of a more accessible world, and that is rapidly getting better as new office buildings and businesses are built in compliance with the law. All of us have benefited from these changes in our physical and environmental space, and the attitude of inclusion that accompanies those changes. Curb cuts and ramps designed to allow access for people with wheelchairs help parents with baby carriages, delivery people, mail carriers making their rounds, and elderly people.
You in Congress also changed lives by passing the ADA in the area of access to information through technology usable by people with disabilities. Thanks to the ADA's clear call to equal access to the goods and services offered by public accommodations, people with disabilities are, more than ever before, finding it easier to privately and independently make purchases at retail stores (such as pharmacies) with accessible point of sale machines. More and more automated teller machines provide accessible controls and audible output for people with vision loss.
When the law was passed, we heard fears from the business community that compliance with the ADA might be too costly, too burdensome. That has not proven to be the case. The average business faces only minor costs in complying with the ADA. In fact, businesses and the service industry now increasingly recognize that far from being a burden, being accessible to people with disabilities actually provides more business opportunities and income for the business. It makes economic good sense for business to be fully accessible and inclusive.
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There are other benefits that have accrued to all of us as a result of Congress' passage of the ADA. Today, when you apply for a job, you do not need to reveal whether you have a physical condition or disability—you simply need to indicate whether you can safely perform the work, with or without an accommodation. The law precludes questions about disability before an employment offer is made, and so now helps to identify and route out covert discrimination based upon stigma and attitude. This has not only increased opportunities for people with disabilities to contribute to the workforce and to society, but has also enriched the lives of those who work alongside them and learn from them as well as those who reap the benefits of their work.
These are all examples of the real and significant progress for people who have been too often locked out of everyday life, forced to rely upon government handouts and charity because they cannot get a job or participate in society.
We have much more to do, however. We have not gotten very far on our goal of protecting the civil rights of all people with disabilities, and promoting equal opportunity for all. Too many Americans with disabilities can still not participate in the same range of activities that the average citizen has available. Sixteen years after the ADA, despite the mandate of Congress and the Administration, too many areas of business and commerce open to the general public, including virtual (e.g., internet) goods and services, remain inaccessible to people with disabilities. Today, and despite clear congressional intent and agency guidance, it still is not the standard in this country that commercial websites provide to people with disabilities the same ease of access, scope and reliability of information, and independence to transact business as is provided to other customers.
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The employment situation for people with disabilities is especially bleak. Too many American businesses still fail to employ people with disabilities. Unemployment and underemployment rates for people with disabilities remain as high as they were when the ADA was passed; in fact, in some sectors, notably the federal government, the rate of employment of people with disabilities is actually lower now than it was over the last decade or so.(see footnote 1)
Too many people with disabilities continue to sit at home or languish in institutions, isolated from the rest of the community. Waiting lists for services in the community for people with severe disabilities are long and getting longer. Gainful employment remains an unfulfilled dream. Serious attitudinal barriers to hiring people with disabilities remain the norm; while many employers recognize the ideal of integration and full employment, fear and concern about liability and costs continue to make others shy away from hiring people with disabilities. For the many adults and children with disabilities who remain warehoused unnecessarily in institutions, opportunities to work, learn, and to participate in family, social and cultural activities are severely curtailed, as the Supreme Court has recognized.
What has happened in the last sixteen years? Why has more progress not occurred? While there are a number of areas of concern, and many reasons for this state of affairs, I would like to focus specifically on the employment area. Unfortunately, there has been a concerted effort by lawyers for employers, supported by a federal judiciary that does not understand the ADA and what Congress meant when it passed the ADA. As a result, there has been a tendency to try to limit the scope and coverage of the law. As has now been amply recognized and described in numerous law reviews, articles, and other publications,(see footnote 2) in the years since the ADA's enactment, the federal courts have chipped away at the law's protected class by adopting overly narrow rules for the analysis of who meets the statutory definition of ''disability.'' As a result of a string of Supreme Court decisions and hundreds of cases in the lower federal courts, it has become very difficult for individuals with certain health conditions to establish that they have a disability for purposes of the ADA. . . . People with epilepsy, diabetes, cancer, psychiatric diagnoses, and other conditions that are well controlled with medications or other disease management strategies are routinely dismissed as outside the protection of the statute. With the definition of disability dramatically contracted, millions of Americans who continue to experience disability discrimination are barred from challenging these abuses in the courts. Further, win or lose, many employment discrimination victims are now subjected to irrelevant questions about their personal lives and private health information that have nothing to do with the merits of their discrimination case.(see footnote 3)
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Even people with severe complications from these diseases such as amputation and nerve damage—have been told they are not ''disabled enough'' to bring a discrimination claim. And this has been the case even when the employer has explicitly said that an employment opportunity is being denied because of the medical condition.
Today, as a result of the Supreme Court's opinion in a trilogy of cases decided in 1999,(see footnote 4) and other subsequent ADA employment cases,(see footnote 5) there is a very good chance that if you have a disability such as epilepsy, diabetes, cancer, multiple sclerosis, or mental illness, you are likely to discover, should you attempt to press a discrimination charge on the basis of your disability, that you are not protected from unfair discrimination. If you have your disability controlled in whole or in part by medication, or other intervention (known as a mitigating measure), you are going to be found not disabled enough to have the benefit of the law, and therefore not protected by the ADA. If your disability is episodic—it only has an actual impact on you periodically or briefly—you are going to be found not disabled enough to be covered by the law. If an employer admits that he REGARDED you as having a disability and refused to hire you as a result, it is highly likely that a court review of that decision will find that because the employer can produce a simple statement that he only regarded you as unable to do this particular job, and not any job in the workplace, you are not protected by the ADA.
So, as the state of the law now stands, you can get fired or not hired because you have a physical or mental condition that may or may not pose an actual barrier to your ability to do a particular job—but you have no recourse under the law as it's being interpreted, because courts focus on who is covered or not, rather than on whether illegal discrimination has occurred! That is not what we envisioned when the ADA was crafted and passed. It ignores common sense, clear Congressional intent, and explicit federal regulations interpreting the ADA. It also ignores experience and history with the ADA's predecessor laws, including Section 504 of the Rehabilitation Act of 1973 and state anti-discrimination laws that allowed people to sue for unfair discrimination based upon a broad definition.
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Very briefly, the ADA's definition of who has a disability, based upon the Rehabilitation Act of 1973 definition of disability, says that three groups of people are covered by the law. That is, a person with a physical or mental impairment that substantially limits one or more major life activities, a person who is regarded as having such a mental or physical impairment, or a person who has a history of such a mental or physical impairment (that is, one that substantially limits one or more major life activities) is covered by the law.(see footnote 6) This definition requires courts to determine at least three things. First, the court must determine that a condition, such as epilepsy, is a physical or mental impairment. Second, the court must determine that a major life activity is involved. Major life activities include activities such as working, sleeping, walking, caring for oneself and reproduction. Third, the court must determine that the condition substantially limits the person's ability to participate in or to perform the major life activity.
Once those decisions are made, the substantive question of whether there has been illegal discrimination is raised. A person must show that he or she is able to carry out the essential functions of a job, with or without a reasonable accommodation to the disability, that is, that one is qualified for the job at hand. The individual must also show that he or she suffered an adverse employment action because of the disability. Was a person with a disability who could do the job kept from doing the job because of prejudice based on that person's medical condition? Instead, today, most times the question of qualification is never dealt with by the courts. Instead, the focus of time, energy, and resources of both the employer and the employee or applicant, is on a determination of who has a disability under the law. A recent review of cases in the area of epilepsy shows that in 32 out of 42 cases, the federal courts have found that the individual does not have a disability under the ADA. Thus, people are being thrown out of court before there is ever a determination of qualification to do the job.
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While the Supreme Court has not ruled on an epilepsy case, many lower courts have with disastrous results. For example, a woman with uncontrolled nocturnal seizures, who could not do rotating shift work without some accommodation, is not disabled and therefore not protected by the ADA, according to the 4th Circuit.(see footnote 7) A warehouse worker whose breakthrough seizures, brought on by a temporary illness, caused him to miss work, was not substantially disabled, and therefore, not protected by the ADA, according to a federal court in Texas. The judge who wrote the opinion said he wanted to rule in favor of coverage for the worker, but felt he could not, given the Supreme Court's mandate.(see footnote 8) A firefighter whose medical condition was completely controlled but who was denied employment because of a rule that said no one with epilepsy can be hired for his job, was found not protected by the ADA.(see footnote 9) The cases go on and on, and similar decisions closing the door of the ADA have been reached in cases concerning other disabilities.
I focus on epilepsy and seizures in particular because so many of the negative cases concern this condition, and Congress clearly intended to cover such individuals. It seems to me, if you cannot get a job because of your medical condition, or if you lose a job because of your medical condition, you should be within the ADA's intended protection. You should be permitted to demonstrate whether or not you can perform the essential functions of a job. This doesn't mean that every person with a disability in entitled to the job of his or her choice. But at least you should be within the law's coverage. Instead, federal courts, relying upon the Supreme Court's failure to carry out Congressional intent, misapplication and misunderstanding of the ADA have so narrowly construed the ADA as to have effectively written people like me out of my own bill!
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What can be done to correct this state of affairs? First, we look to the Administration to continue to assist with the implementation and aggressive enforcement of the mandates of the ADA. We appreciate the support that has come from the Justice Department and from the Equal Employment Opportunity Commission and other implementing agencies on the range of issues that people with disabilities face. We will continue to need support from these agencies, and increased vigor in their technical assistance, education, and enforcement would only help. In areas other than employment, obviously, there has been litigation to enforce the requirements of the ADA, and decisions have been both positive and negative. It is unfortunate that litigation is necessary to implement the law's mandate, but that is the state of affairs, and the disability community will continue to work to shape legal opinion through the courts in line with Congressional mandate when it passed the ADA. As an increasing number of public accommodations move to the Internet as a significant, if not the exclusive, commercial means for offering their goods and services, it will be imperative to ensure that the ADA's promise of nondiscrimination and equal access is implemented in a way that ensures that people with disabilities have ready access to all goods and services. In this and other areas, including full inclusion of Americans into their community, it is possible that we will need to return to Congress to seek assistance in carrying out the ADA's intent and mandate.
But to address the specific problem of the exclusion from coverage of individuals that Congress fully intended to be protected by the ADA, I firmly believe we must take legislative action now. We look to Congress to restore the coverage of people with disabilities, undo the restrictions placed by the Supreme Court on the classes of people protected by the law, and reopen the remedies available to those who successfully prove ADA violations. We must restore responsibility for employers to comply with the requirement for meaningful accommodations. We must reverse the Court's decisions that permit people with diabetes, heart conditions, cancer and epilepsy to lose their legal rights, because medications make them ''too functional'' to be protected under the law.
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There are a number of ways to restore the promise of the ADA. Congress would be well served to begin its consideration with the 2004 report of the National Council on Disability, ''Righting the ADA,'' which contains an analysis of all the Supreme Court's erroneous interpretations of the ADA and Congressional intent, and includes proposed legislative solutions. It should be noted that, in keeping with a law that had full bipartisan support, the NCD is composed of Republican appointees. For those who would like to see the position of some Democratic members, I would highlight the Washington Post article Minority Whip Steny Hoyer wrote in 2002,(see footnote 10) and his speech at New York Law School a couple of years ago on restoring the ADA and its intent.(see footnote 11) For reassurance on the wisdom of ensuring that ADA coverage is broadly construed, one could also look to the experience of states which have adopted a broad coverage approach to disability discrimination.(see footnote 12)
I firmly believe that the time is right to propose a restoration of the ADA to its original intent and meaning. I want to see the promise of the ADA fulfilled, the intent of Congress restored in my lifetime. Among the materials that are available for your consideration is a set of principles that I believe every member of the House and Senate can and should endorse.(see footnote 13)
As a society, I believe we are ready to embrace the idea that people should be employed based upon whether they can do the job—perform the job requirements—NOT based upon whether they have a physical or mental condition, or how it is described or quantified by others. In addition, I believe our society values the right of the individual to privacy, including the privacy of their medical records, and neither employers nor employees are well served by detailed delving into one's private medical histories and how the individual and their physician have determined to treat a medical condition simply to determine if the employee is ''sick enough'' to be afforded protection from blatant discrimination.
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Congress intended to ensure that people with disabilities had these opportunities and rights, to be treated with the dignity and respect of any American, and to not be denied a job simply because one had a disability—including one like epilepsy that has stigma and fear attached, when it passed the ADA. I ask for your help and leadership again to ensure that our society operates as you intended. America can continue to serve as a model to the world for full equality and inclusion if we work now to ensure that the original mandate of Congress when it passed the ADA is carried out.
Thank you for the opportunity to present this testimony.
Mr. CHABOT. We will probably get to it in the questioning then. Thank you very much.
Mr. Horner, you are recognized for 5 minutes.
TESTIMONY OF HARRY HORNER, SMALL-BUSINESS OWNER, JULIAN, CA
Mr. HORNER. Chairman Chabot and Members of the Subcommittee, my name is Harry Horner. Thank you for allowing me to testify before the Committee today on behalf of small businesses.
I would like to tell you about a $200,000 financial demand one disabled attorney recently made in our small mountain community in San Diego County after spending a weekend there.
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Mr. CHABOT. Could you pull the microphone a little bit closer?
Mr. HORNER. Sure.
Mr. CHABOT. The whole thing will move there.
Mr. HORNER. Okay.
Mr. CHABOT. Thank you.
Mr. HORNER. Is that better?
Mr. CHABOT. I think so.
Mr. HORNER. Okay.
Julian, whose history dates to the gold mining days of the 1800's, now has about 3,000 residents who want to live where the pace is slower, where small-town values persist, and the charm of the early 20th century is maintained.
Please keep in mind that many of Julian's buildings were built in the late 1800's, and the ambiance of the historical district attracts thousands of visitors each year to the town and its businesses.
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Julian has been hit hard by two major forest fires in the last 5 years. The last one, the cedar fire, burned over 500 residences—this in a town with a population of about 3,000 people. For us, this was our Katrina.
The business community, made up largely of mom-and-pop enterprises, was still recovering from the cedar fire and the resulting loss of business when the attorney began serving his monetary demands in the days before Thanksgiving of last year.
Of the roughly 80 storefront businesses in Julian, the attorney sent letters to 67 of them, claiming an organization he had set up was entitled to a $200,000 investigation fee because he noticed a number of access issues during his visit.
This attorney has filed over 1,300 lawsuits in the last few years in San Diego County alone. In the case of Julian, he did not actually visit the majority of the businesses that he cited. A lawsuit has been filed against the attorney, and its outcome will undoubtedly have an impact on whether some businesses survive in Julian.
The action of this attorney was a painful wakeup call for most of Julian's businesses. It was for me, even though I had obtained permits and inspections from the county when building out the retail space of my business. These inspections included checking for disabled access in the bathroom and at the entrances.
When the inspector signed off on our construction, parking lot striping and signage, I thought I was in compliance. This assumption was not based on a one-time experience. I was a general building contractor specializing in commercial and industrial construction for over 16 years.
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Most businesses have the right number of fire extinguishers, smoke detectors and employment posters. But small businesses need to have a clear standard and a safe harbor whereby each can know with certainty exactly what it needs to do and not do with regard to disabled access.
Nearly every business I know, including mine, wants to welcome the disabled and comply with all the access requirements. The actions of the attorney in Julian might seem to be a means of achieving the ends of access for the disabled, but what has actually developed is a mechanism for unethical profiteers and opportunists to pick our pockets and line their own. The result of this application of the otherwise well-intentioned ADA is the gross waste of resources, which is unnecessary and certainly counterproductive.
Money that could be going to improve the access and the convenience of the disabled is being spent on attorneys that are enriching themselves at the unnecessary expense of an important segment of our society and economy: the small business.
A method must be developed to accelerate ADA compliance in a way that will satisfy the advocates of disabled access, but, at the same time, the rules that are developed need to be reliable, consistent, understandable and effective.
I would like to offer three suggestions that could be solid steps in moving ahead with disabled access compliance.
The first, identify a group of inexpensive changes, such as signs, doorknobs, faucet handles, which are absolutely required regardless of financial resources, and provide a safe harbor to businesses of a certain size which implement those changes.
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Second, because many businesses which have been approved by building inspectors are often later subject to lawsuits, exempt businesses which have been approved by a building inspector within a certain period of time. Have, perhaps, a requirement that building permits must have an inspection by a qualified and certified access inspector and have a specified amount or percentage of the construction costs be used for disabled access. Incentives could be given to local government from the Federal Government to get compliance and uniformity.
And the last, require the certification of a qualified access inspection be attached to a tax return as a prerequisite for deducting certain business expenses.
Thank you.
[The prepared statement of Mr. Horner follows:]
PREPARED STATEMENT OF HARRY HORNER
Chairman Chabot, Ranking Member Nadler and members of the Subcommittee, my name is Harry Horner. Thank you for allowing me to testify before the Committee today on behalf of small businesses.
I would like to tell you about a $200,000 financial demand one disabled attorney recently made in our small mountain community after spending a weekend there. Julian, whose history dates to the gold mining days of the 1800's, now has about 3000 residents who want to live where the pace is slower, where small town values persist and the charm of the early 20th century is maintained. Please keep in mind that many of Julian's buildings were built in the late 1800's and the ambiance of the Historical District attracts thousands of visitors each year to the town and its businesses.
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Julian has been hit hard by two major forest fires in the last five years. The last one, the Cedar Fire, burned over 500 residences—this in a town of about 3000 people. For us, this was our Katrina. The business community, made up largely of ''mom and pop'' enterprises, was still recovering from the Cedar Fire and the resulting loss of business when the disabled attorney struck in the days before Thanksgiving in 2005.
Of the roughly 80 storefront businesses in Julian, the attorney sent letters to 67 of them claiming an organization he had set up was entitled to a $200,000 investigation fee because he noticed a number of access issues during his visit. This attorney has filed over 1300 lawsuits in the last few years in San Diego County alone. In the case of Julian, he did not actually visit the majority of the businesses he cited. A lawsuit has been filed against the attorney and its outcome will undoubtedly have an impact on whether some businesses survive in Julian.
The action of this attorney was a painful ''wakeup call'' for most of Julian's businesses. It was for me even though I had obtained permits and inspections from the County when ''building out'' the retail space for my business. These inspections included checking for disabled access in the bathroom and at the entrances. When the inspector ''signed off'' on our construction, parking lot striping and signage, I thought I was in compliance. This assumption was not based on a one time experience—I was a general building contractor, specializing in commercial and industrial construction for over 16 years.
Most businesses have the right number of fire extinguishers, smoke detectors and employment posters. We need to have a clear standard and a ''safe harbor'' whereby each of us can know with certainty exactly what we need to do and not do with regard to disabled access.
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Nearly every business I know, including mine, wants to welcome the disabled and comply with all the access requirements. The actions of the disabled attorney in Julian might seem to be a means of achieving the ends of access for the disabled, but what has actually developed is a mechanism for unethical profiteers and opportunists to pick our pockets and line their own. The result of this application of the otherwise well-intentioned ADA is the gross waste of resources, all of which is unnecessary and certainly counterproductive. Money that could be going to improve the access and the convenience of the disabled is being spent on attorneys that are enriching themselves at the unnecessary expense of an important segment of our society and economy—small business. A method must be developed to accelerate ADA compliance in a way that will satisfy the advocates of disabled access but, at the same time, the rules that are developed need to be reliable, consistent, understandable and effective
I would like to offer three suggestions that could be first steps in moving ahead with disabled access compliance:
#1. Identify a group of inexpensive changes, such as signs, doorknobs, faucet handles, which are absolutely required regardless of financial resources, and provide a ''safe harbor to businesses of a certain size which implement those changes.
#2. Because many businesses, which have been approved by building inspectors are often later subject to lawsuits, exempt businesses which have been approved by a building inspector within a certain period of time. Have perhaps a requirement that building permits must have an inspection by a qualified and certified access inspector and have a specified amount or percentage of the construction costs be used for disabled access. Incentives could be given to local government from the federal government to get compliance and uniformity.
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#3. Require the certification of a qualified access inspection be attached to a tax return as a prerequisite for deducting certain business expenses.
Thank You.
Mr. CHABOT. Thank you very much, Mr. Horner.
Mr. HORNER. You are welcome.
Mr. CHABOT. Professor Burgdorf, you have the floor for 5 minutes.
TESTIMONY OF PROFESSOR ROBERT L. BURGDORF, PROFESSOR OF LAW, UNIVERSITY OF THE DISTRICT OF COLUMBIA DAVID A. CLARKE SCHOOL OF LAW
Mr. BURGDORF. Chairman Chabot, Ranking Minority Member Nadler, it is an honor to be testifying before the Committee.
I was thinking back to the fact that I was testifying before an earlier version of this same Committee when the ADA was being considered. And one of the things that I talked about then was the various accommodations that the bill had made through compromises in the congressional process to take into account the needs of small businesses.
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I am very honored to be a part of this particular panel. The presence of Tony Coelho is—it is a pleasure just to share the same table with him. I believe I said in my written testimony that he had the valor and vision to introduce and advocate for the ADA in Congress. And we will be forever thankful to him for doing that, along with many other people, including numerous Members of this Committee and Subcommittee.
It is also an honor for me to be on the panel with Mr. Horner. I would like to congratulate him for his testimony. Even though I have lived in Washington for a number of years and I have testified before congressional Committees more than a half dozen times, it is still daunting to me. And for someone who is not part of that system to come all the way to Washington and to say something that he has to say to his Government, I think, is an admirable thing.
I also was very pleased to hear a lot of the content of his proposals. I think we, people who are advocating for the ADA and for the vigorous enforcement of the ADA, are also concerned about vexatious and frivolous lawsuits.
The fact is, though, that I think—and I will talk a little bit about this—much of the problem is not with the ADA. And, in fact, there are other remedies for many of these solutions.
But I think Mr. Horner's concern is a very real one. And the fact that he may have, as he describes it—I don't know the circumstance of the actual facts—but he may have been shaken down by an attorney, if that is the way it happened, I certainly know there is no provision in the ADA that allows for a $200,000 fee for evaluation or for finding problems. That just isn't there.
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But the other thing I really appreciated about Mr. Horner's testimony was that he is not trying to say, ''I don't want to have to comply.'' He is saying very clearly, ''I want to comply, I want the ADA to be effective, we want people with disabilities as our customers. Just, first of all, let me know what I have to do. And tell me how to do it, and I will be glad to do it.''
And he has some specifics that go beyond what some of us advocates for the ADA have called for, in terms of mandatory inspections. But we certainly would be interested in working on that kind of improvement of the ADA.
I also look forward to Ms. Earp's testimony and appreciate being on the panel with her.
I ask myself, why I am here? And I suppose in part it is because I have been in this field for some 35 years now. So I guess they just needed one of us old salts to come in and talk about what has been going on.
Probably more realistically, I am here primarily because I have had the great opportunity to work with the National Council on Disability, an independent Federal agency whose members are appointed by the President. And I have had the chance to work with the council on some very important projects.
This pile of materials I have in front of me are mostly reports that the National Council on Disability has done in studying disability issues and up to and including and continuing on with the ADA.
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This blue report, ''Toward Independence,'' was the first time in print one ever saw the words, ''Americans with Disabilities Act.''
This second one, ''On the Threshold of Independence,'' which came out in 1988, included the council's version, which I got to help them draft, of the Americans with Disabilities Act. And it was essentially that version that Congressman Coelho had so much foresight as to be willing to actually introduce in the Congress and push for it and, with revisions, make it become the law.
What can I say about what has happened in the last 16 years, well, in 5 minutes? Down to sum up, I don't have to fret too much because I have also been lucky enough to work with the National Council on Disability on this report called ''Righting the ADA.'' And we tried in there to review what has happened.
A lot has been very good, but there have been some problems. And the problem with the definition of ''disability'' that Mr. Coelho noted is one of the most serious.
We presented an ADA Restoration Act in this report that actually presents legislative solutions to those problems. So it is not that we haven't tried to study these things and provide you with some suggestions about a way to go. There are a number of other issues described in the report, other than the definitions, where the courts have gotten it wrong about the ADA.
Let me just finish by saying I think at times we in the disability community are indignant about some of the things that have happened with the definition. I testified before this Committee. This Committee, in its report, came out in favor of a broad interpretation of disability. The full Congress came out, the President came out, in favor of a broad interpretation of disability.
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It is just a shame that the courts, for whatever reasons, have taken a view that equality is something to be rationed and it has to be strictly construed and not given to many people.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Burgdorf follows:]
PREPARED STATEMENT OF ROBERT L. BURGDORF, JR.
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
Mr. CHABOT. Thank you very much, Professor.
Ms. Earp, you are recognized for 5 minutes.
TESTIMONY OF THE HONORABLE NAOMI EARP, CHAIR, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Ms. EARP. Thank you. Good afternoon, Mr. Chairman, Members of the Committee.
Mr. Coelho has already mentioned many of the successes that we are aware of over the last 15 years, so I will use my time to touch on three roles that the Equal Employment Opportunity Commission play. I will touch on enforcement and litigation, policy development, and currently the New Freedom Initiative.
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In 15 years of enforcement and litigation, we have achieved a number of measurable results. In the administrative process, without going to court, EEOC has obtained nearly $575 million in compensation and other benefits on behalf of more than 39,000 individuals with disabilities. Of particular note, our successful mediations of disability charges resulting in relief such as shift transfers, letters of recommendation, payment of insurance premiums and the provision of severance packages.
In addition to the $575 million administratively obtained, we have also obtained injunctive remedies and more than $37 million in monetary relief through our litigation program.
The EEOC has successfully challenged policies that automatically excluded all individuals with conditions such as diabetes and epilepsy from jobs. We have challenged employers who impermissibly asked job applicants for information about their disabilities or about their medical records. We even stopped one employer from conducting genetic tests on its employees.
A few examples of significant jury verdicts we have also won for individuals with disabilities include getting relief for a person denied a customer service position because he was blind; a person who was denied a sign language interpreter at a meeting on security information; a person who was denied reasonable accommodation of a weekly day off while that person was undergoing chemotherapy treatments; a chemical manufacturing company employee with a mobility impairment who was fired because her employer believed that she was incapable of evacuating in an emergency. These are just a few of the real people we have enforced the law on behalf of.
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From a policy development standpoint, we also play an important role. In our effort to enforce the ADA and to promote voluntary compliance, we have issued numerous enforcement guidance documents on a variety of foundational ADA issues. These issues include the definition of disability, the obligation to provide reasonable accommodation, the extent of an employer's right to conduct pre-employment medical exam or the employer's right to obtain medical information from applicants and employees.
We have issued guidance on the ADA's application to individuals with psychiatric disabilities and discrimination based on genetic testing. Our regulations and our guidance have helped members of the public understand their rights and responsibilities under the law. And it should be noted that EEOC guidance has been looked to by courts when they grapple with novel and complex issues.
Finally, I want to mention the New Freedom Initiative. Despite our efforts to enforce and implement the Americans with Disabilities Act, employment of people with disabilities has presented the greatest ADA challenge with seemingly little movement in the low employment rate of people with severe disabilities.
The reasons given for why the ADA seems to have met with mixed results in decreasing employment barriers is varied. Some point to a lack of educational opportunities that prepare people with disabilities. Some point to transportation not being accessible.
I want to mention President Bush's New Freedom Initiative because it is a comprehensive approach to addressing the many complex factors that keep people with disabilities from participating fully in American social and economic mainstream. This New Freedom Initiative involves not just EEOC from the employment perspective, but it acknowledges that the problem is complicated at best and we can't litigate our way out of it.
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In conclusion, I want to just recommit the Equal Employment Opportunity Commission to the enforcement of this act.
And I would like to acknowledge in the audience also vice chair of the commission, Leslie Silverman, and Commissioner Christine Griffin.
Thank you.
[The prepared statement of Ms. Earp follows:]
PREPARED STATEMENT OF NAOMI EARP
Mr. Chairman and members of the Committee:
Thank you for the opportunity to speak to you today. The Equal Employment Opportunity Commission (EEOC) has now had fifteen years of experience with enforcing and implementing Title I of the Americans with Disabilities Act (ADA), beginning with our publication of ADA regulations on July 26, 1991. Fifteen years seems like a long time, but it is not when compared with the length of time that Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 have been in existence. It is even a shorter period of time when compared to the years of discrimination that people with disabilities have endured.
Despite the fact that decades of discrimination cannot be undone in fifteen years, the public has the right to expect EEOC and other agencies that enforce the ADA to demonstrate progress. I think we see many examples of progress all around us—from curb ramps and accessible building entrances, to accessible transportation, to technological advancements that make more things possible for more people with disabilities than ever before. Many of these changes simply would not have occurred without the ADA.
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ENFORCEMENT AND LITIGATION
We have certainly worked hard at the EEOC to make equal employment opportunities for people with disabilities a reality, and we have achieved a number of measurable results. Through the administrative process alone—that is, without our having gone to court—EEOC has obtained nearly $575 million in compensation and other benefits on behalf of more than 39,000 individuals with disabilities between July 26, 1992 (when we began enforcing the law) and September 30, 2005. Because of the ADA, these individuals got jobs; were able to stay in jobs that they could still perform, even after having developed a disability; and/or received compensation for the discrimination they experienced. Of particular note are successful mediations of disability charges resulting in relief such as shift transfers, letters of recommendation, payment of insurance premiums, and the provision of severance packages.
In addition we have obtained more than $37 million in monetary relief, as well as injunctive remedies, through our litigation program. We have successfully challenged policies that automatically excluded all individuals with conditions such as diabetes and epilepsy from jobs that many of them were capable of performing. We have challenged employers who impermissibly asked job applicants for information about their disabilities, rather than focusing on their ability to do the job, and we stopped one employer from conducting genetic tests on its employees who sustained on-the-job injuries.
In the last six years alone, we have won significant jury verdicts for many individuals with disabilities, including:
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an individual who was denied a customer service representative position because he was blind;
a delivery company employee who was denied a sign language interpreter for staff meetings at which critical security information was communicated to employees (this was shortly after the terrorist attacks of September 11, 2001);
a security company employee who was denied a reasonable accommodation of Mondays off while he underwent chemotherapy treatments for stomach cancer and was fired the day after his first treatment;
a restaurant worker with mental retardation who was fired when a district manager for the company saw him one day and said he did not want to employ ''people like that''; and
a chemical manufacturing company employee with a mobility impairment who was fired because her employer believed that she would be incapable of evacuating safely in the event of an emergency.
POLICY DEVELOPMENT
The development and issuance of policy guidance also plays an important role in the EEOC's efforts to enforce the ADA and to promote voluntary compliance. In the 1990s, we issued numerous enforcement guidance documents on a variety of foundational ADA issues including: the definition of disability, the obligation to provide reasonable accommodations, and the extent of an employer's right to conduct pre-employment medical exams and obtain medical information from applicants and employees. Further, we issued ground-breaking guidance on the ADA's application to individuals with psychiatric disabilities, and discrimination based on genetic testing. Our regulations and guidance have helped members of the public understand their rights and responsibilities under the law, and have been looked to by courts grappling with novel and complex legal issues.
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Despite our efforts to enforce and implement the ADA, employment of people with disabilities has presented the greatest ADA challenge, with seemingly little movement in the low employment rate of people with severe disabilities.
The reasons given for why the ADA seems to have met with mixed success in decreasing employment barriers for people with disabilities are varied. Some point to a lack of educational opportunities that prepare people with disabilities for work or a lack of accessible transportation. In other words, enforcement of the ADA's employment provisions alone is simply not enough to achieve a level playing field for people with disabilities.
NEW FREEDOM INITIATIVE
President Bush's New Freedom Initiative is a comprehensive approach to addressing the many complex factors that keep people with disabilities from participating fully in America's social and economic mainstream. Of course, at the EEOC our focus in this bold initiative is on access to employment. The New Freedom Initiative calls for increased technical assistance to small businesses on the requirements of the ADA and the tax incentives available to businesses that hire and retain qualified workers with disabilities. We have responded by conducting nearly 100 workshops for businesses with between fifteen and one hundred employees—businesses large enough to be covered by the ADA, but too small to have their own human resources departments to help them navigate some of the law's complexities. These workshops are free, last from two to three hours (because the small business owner's time is precious), and are usually organized in conjunction with local employer organizations so that they are responsive to community needs. The workshops complement the EEOC's Technical Assistance and Training Program, which has targeted representatives of advocacy groups concerned with the rights of people with disabilities, reaching over 40,000 participants.
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We have also published user-friendly technical assistance documents for employers and individuals with disabilities. In August of 2002, we published The Americans with Disabilities Act: A Primer for Small Business, which explains the ADA's requirements in a sensible, straightforward way. We followed up the Primer with six question-and-answer documents on the ADA's application to specific disabilities that affect large portions of the population, such as diabetes and cancer. Other publications have included a document that explains how telework can be a reasonable accommodation for people with disabilities; fact sheets on the ADA for food service employers and for employers in the legal profession; and a question-and-answer document for job applicants with disabilities.
In October of 2005, we issued guidance explaining how the ADA protects those who have an ''association'' with someone with a disability. I believe this provision of the ADA will become increasingly important as individuals with disabilities who have been living in institutional settings move into the larger community—alongside family members and friends. As you know, the association provision prohibits employers from making adverse employment decisions based upon an individual's known relationship or association with a person with a disability.
We heard from members of the disability community about concerns they had in the aftermath of the Supreme Court's decision in University of Alabama v. Garrett that some state employers might believe that they no longer had to comply with the ADA. Of course, nothing could be further from the truth. Garrett, in fact, said that states must comply with the ADA and only held that the 11th Amendment barred individuals from suing states for monetary damages. In response to the disability community's concerns, however, we launched a study to find out what nine states were doing to hire and retain qualified individuals with disabilities. In October of 2005, we issued our Final Report on Best Practices for the Employment of People with Disabilities in State Government, which highlights the innovative practices of nine states—Florida, Kansas, Maryland, Missouri, New Hampshire, New Mexico, Utah, Vermont, and Washington. We have also established on-going relationships with some of the states in our study, providing them technical assistance to enhance compliance with the ADA.
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As you can see, we have achieved a great deal under the New Freedom Initiative through partnerships—partnerships with the business community, organizations of and for people with disabilities, and state governments. But the New Freedom Initiative also calls upon Federal agencies to work in partnership with one another. I am proud of the contributions that the EEOC has made to the Interagency Coordinating Council on Emergency Preparedness and Individuals with Disabilities, and the Interagency Committee on Disability Research.
We have worked with two sister agencies—the Department of Justice and the National Council on Disability—to produce two documents that explain how to make the process of mediating EEO complaints accessible to people with disabilities. Additionally, a productive relationship between the EEOC and the Department of Transportation ultimately led to DOT's revision of regulations that had previously banned all people with insulin-dependent diabetes from driving commercial motor vehicles. Also, another government partnership is EEOC's involvement on the DOL-led inter-agency task force examining how to best transition disabled youth from structured school settings to employment. One of my Special Assistants sits on the task force, as does a member of Commissioner Griffin's staff. The task force is led by DOL's Office of Disability Employment Policy (ODEP). I look forward to enhancing existing relationships with Federal agencies and to forming new partnerships in the coming years as issues arise.
CONCLUSION
The EEOC is primarily an enforcement agency. But we must never underestimate what can be accomplished through creative partnerships of the kind that the New Freedom Initiative promotes. I am committed to working with Congress and with all of those stakeholders represented here today to ensure that progress in equal employment opportunity for all people with disabilities continues.
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Mr. Chairman, thank you once again for the opportunity to testify today.
Mr. CHABOT. Thank you very much.
We appreciate the testimony of all four of the witnesses here this afternoon.
And before we turn to the questioning, I am going to turn to Mr. Nadler, the Ranking Member of this Committee, for the purpose of making an opening statement.
Mr. NADLER. Thank you, Mr. Chairman.
I want to join—I am sure you already did—in welcoming our panel and especially welcoming back our former colleague, Tony Coelho, with whom I never had the privilege of serving at the same time that he was a distinguished Member. Both as a Member and as an advocate he has made enormous contributions to protecting the rights of all Americans to participate equally in the life of our nation, which, of course, is the subject of this hearing.
The Americans with Disability Act is a success story, but it is also a promise that is yet to be fulfilled. Its coverage and its enforcement do not ensure full access to American life. I believe we have waited long enough, and we really cannot afford to let these wrongs go unaddressed.
I want to thank the Chairman for scheduling this hearing. For too long this Committee has paid scant attention to the ADA except on occasion to give a platform to those who have been caught violating it. While we are paying attention today, I am pleased that my friends on the other side of the aisle have also decided to hear from witnesses who are able to speak to the real issue: how the act can be improved and expanded.
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Although it often gets lost in the debate, the ADA is a civil rights bill. It is often treated as if it were something else. Perhaps that is because unlike many civil rights laws, this one requires people to spend money and make an effort to do what is right. I have very little sympathy for complaints about this. No business would make its customers climb a rope to make a purchase. Businesses provide elevators and a variety of other means to give customers access to the merchandise.
Yet when it comes to people who need other ways to enter the building, all of a sudden it can be a huge problem. That is just wrong.
The same is true in employment. This society is poorer when it fails to take full advantage of the talents of all of its members. If not in the name of simple decency and justice, then in the name of rationale self-interest, we should ensure that the promise of the ADA is fully fulfilled.
I thank the witnesses for their testimony. And I look forward to the question period.
And I yield back the balance of my time.
Mr. CHABOT. Thank you very much.
Now the Members of the panel here will each have 5 minutes to ask questions. And the Chair recognizes himself for 5 minutes for that purpose. And I will open this up to any of the witnesses who would like.
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And we will start with you, Mr. Coelho, if you would like to. How have disabled Americans benefited from the ADA's protections over the last 16 years? And are disabled Americans experiencing greater opportunities and more independence as a result of the ADA?
Mr. COELHO. Mr. Chairman, I think I would start off with basically pride. I think it starts off with the fact that——
Mr. CHABOT. Pride?
Mr. COELHO. Pride in that this country has recognized that they have a right to fail just like anybody else. And in recognizing that they have the right to fail, they can succeed. But if you don't recognize their right to fail, they can never succeed. And so, all of a sudden, with the ADA being signed into law, we have the right to participate in this great dream that everybody else has participated in.
We can now get a job if businesses will provide it for us. We can get a job if Government will provide it to us. But we can participate in—with the curb cut, we can participate in all the other things that are now available. We never were able to do that. Businesses could deny us access.
We could get kicked out of a restaurant. We could get kicked out of a movie theater. I don't think people really appreciate what we went through as we went to a job interview. We were asked questions about ourselves that nobody else were ever asked. When I had to fill out a job application, I had to check whether I had epilepsy and then automatically denied access to a job, just automatically.
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People, I don't think, appreciated what we went through prior to July 1990. And so, for the last 16 years just the dignity that we now have, just the pride that we have as individuals that, yes, we are recognized and we have the right to go to court, just like anybody else. That is probably the biggest thing that we have.
And I think there is a lot of other things that have happened. But I don't think people appreciate that these things that are done for us—curb cuts—I tell people all the time go to a major intersection and watch who uses the curb cut. It is mothers and fathers, their babies in strollers. It is business—it is delivery men and women with their carts going to businesses. It is elderly getting on a sidewalk. It is young kids on their rollerblades and roller bikes and everything else that they use nowadays. And it is a few people in their wheelchairs.
Go into an airport. And who uses the phones with the volume controls? But all these things that were done for us have now become part of what society uses. But it is those things that make us part of society, that pride that we feel that we are part of it I think is the biggest thing that has occurred.
Mr. CHABOT. Thank you very much.
Any of the other members of the panel wish to respond?
Yes, Professor?
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Mr. BURGDORF. Mr. Chairman, thank you.
I certainly would support anything and everything that Mr. Coelho just said. There have been some attempts by the National Council on Disabilities and by some other agencies to try to study and try to get more data about the impact of the ADA. And I think it is fair to say that the broad generalization across all these studies is that there has been a lot of success. The ADA has had a very important impact on America. But there is also a lot more to be done.
And it is holding onto both parts of those. We haven't talked much about transportation today. But the ADA helped clarify what the standards were for transportation so that how many trains have to be accessible, how many cars per train, all those kinds of things that were the subject of a long litigative battle have now been resolved. The ADA answered those, and there is not full compliance. There is still some little battles. But basically that is over.
The ADA is also the principal Federal statute, the primary Federal statute that prohibits discrimination against people with HIV and AIDS. That is a very significant thing.
The kinds of architectural accessibility that Mr. Coelho referred to is evident all around the country. At the same time, we get criticized if we start to say things are great because somebody will say, ''You should come to my city and see how inaccessible it is.'' So there has been a lot accomplished. You can go to the malls in Washington and see the accessibility that is there and the fact that people with visible disabilities are using those facilities.
The president's New Freedom Initiative has been a major force toward deinstitutionalization of people with disabilities, getting people back into the community instead of being forced to go for services and treatment to large residential facilities, a direct outgrowth of the ADA. There are many other of these kind of facts. And I think it is almost undeniable that the ADA has had very enormous positive impact.
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But probably the most important one is the one that Mr. Coelho started with. It is the attitude of people with disabilities, that we are now entitled and, therefore, we expect to be treated equally.
Mr. CHABOT. Thank you very much. My time is expired.
The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman.
Let me ask Mr. Coelho, after the 16 years that the ADA has been enforced, do you believe there has been sufficient guidance and notice for anyone wanting to comply such questions as Mr. Horner raised?
Mr. COELHO. I do, Mr. Nadler. I think that Mr. Horner raises some great issue, though. I think that people have tried to take advantage of the ADA. And I resent it as much as he does.
And I think that to a great extent more could be done by the ADA to, in effect, penalize those lawyers who try to take advantage of it because there are some who do. But in every law that is adopted by the Congress, there are people who go out and try to take advantage. There are bodies of laws that need to be established. And, you know, law firms set up new bodies of laws, environmental practices, labor practices, all these different things. There is now disability law practices and so forth.
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So that happens. And that is part of what making law is all about. And I love it that there is disability law practices now. But I think what Mr. Horner is talking about is reasonable. And I hope that you and this Committee pay attention to what he has advocated because he is being reasonable. And what he has been through is unfair, in my view.
Mr. NADLER. Thank you.
Let me ask the converse of that question. Has Federal agency enforcement been sufficiently aggressive to obviate the need for private legal action to enforce the law?
Mr. COELHO. I have been impressed, to be quite honest, Mr. Nadler, with what the agencies have done. I think that EEOC could do a little bit more. I have been—you know, look at this. I am a Majority witness, but also I am a partisan Democrat, if that makes sense.
Mr. NADLER. Of course it makes sense. It makes all the sense in the world.
Mr. COELHO. And so, I was nervous as to what the EEOC would or would not do. And I have been extremely impressed with how aggressive they have been. Now, I want to publicly applaud them.
There is something that they could do more of. And, you know, I have been written out of the ADA by the supremes, as I call them and because I have what they call episodic disability. But they don't know the fact that every morning when I wake up I wonder if I am going to have a seizure, every day. And I still have seizures.
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And I wonder if I am going to have a seizure that day. But the supremes don't consider that to be a problem. It is only when I do have a seizure. But the EEOC could do more in regards to that and with episodic impairments. They could do more in regards to going after people who discriminate on that. And I would urge them to do that. So I applaud them, but also urge them at the same time.
Mr. NADLER. I wanted to ask—you nicely led into my next question so let me do that before I ask Mr. Burgdorf and Mr. Horner to comment on the last question.
And that is, under the Sutton trilogy of cases, the courts now look at individuals as they are after taking mitigating measures, usually medication, insulin for diabetes, whatever, to help manage their diseases. They have also been held to extremely demanding standards of what it means to be substantially limited in the major life activity, which is the words of the statute, or requirements for coverage under the act.
As a result, for example, people with diabetes have been told that they are ineligible for a type of job because their disease makes them unsafe workers. When they sue for redress, the employer then successfully argues that, wait a minute, you manage your disease so well that you don't have a disability as defined by the Supreme Court.
So you are too sick for me to hire you, but you are too well to sue me in court. Does that make sense? Should we change the law to get rid of that catch-22 in some way?
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Mr. COELHO. Mr. Nadler, in all due respect, you are extremely bright. You had trouble identifying that. Ninety-nine percent of the American people would have trouble understanding what you just said.
Mr. NADLER. Well, I will shorten that. Basically you can——
Mr. COEHLO. I am not, I am not—I understand what you said. I am just saying that the decisions that have been made don't make any blankety-blank sense.
Mr. NADLER. I agree.
Mr. COEHLO. It is ridiculous what the——
Mr. NADLER. I will take that as a yes.
Mr. COEHLO. Yes, it is. It is ridiculous what they have done. They, in effect, are saying that if I take my medicine, which I do every day and I have for 40 some years, that I am fine until I have a seizure, and then I am not. And then after I have my seizure and I take my medication, I am fine again. That is idiotic.
Mr. NADLER. But they are also saying even more on point that you can be discriminated against for employment because you are not totally well but you are well enough so that you can't sue for redress of being discriminated against.
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Mr. COEHLO. Absolutely. Yes, I can't be discriminated while I am having my seizure, but I can be when I am not having my seizure.
Mr. NADLER. Now, is that not the intent of the act, I assume?
Mr. COEHLO. Of course it is not.
Mr. NADLER. So the courts misread the act, in your opinion?
Mr. COEHLO. Well, they were smoking something the day they read that.
Mr. NADLER. Without casting any aspersions on the conduct, legal or otherwise of the court——
Mr. COEHLO. No, I would not ever want to——
Mr. NADLER. Maybe they were smoking something legal, but they were smoking something.
Mr. NADLER. Could I have one additional minute?
Mr. CHABOT. The gentleman's time is expired, and he is given an additional minute.
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Mr. NADLER. Thank you.
I wanted to ask Professor Burgdorf—and I noticed that Mr. Horner—has Professor Burgdorf had a comment on the questions that I asked. And Mr. Horner, I know, wanted to say something.
Mr. BURGDORF. Well, the issue of vexatious lawsuits and lawyers taking advantage is not particular to the ADA. Lawyers can do that in all kinds of areas. And there are a number of things that address that. There are Federal rules that—Federal rule 11 says that the court can sanction somebody who does that. A litigant who files a vexatious or frivolous lawsuit can be sanctioned. There is a Federal law that gives courts discretion even pre-filing to stop things if they are frivolous.
There are State bars that have prohibitions of lawyers bringing vexatious lawsuits. The court can assess——
Mr. NADLER. So there are other means of dealing with this, is what you are saying?
Mr. BURGDORF. There are other means of dealing with it.
The other thing I would say is we sometimes feel like in talking about this title III problem we think we have a goldfish. And people are talking about it as if it were a shark. I wish that title III were as threatening and as scary as people make it out to be.
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This is not a strong, harsh statute. In fact, I wish the enforcement mechanisms were much, much stronger. And the national council has recommended some things. But there is no punitive damages allowed under the title III. There are no compensatory damages under title III.
There are now, pursuant to a decision of the Supreme Court, the Buckhannon decision—there are effectively no attorneys fees under title III because all people do is wait to get sued. If they get sued, then they might fix the things that you were required to do. And there are no attorneys fees——
Mr. NADLER. But there is no question about having complied in the past?
Mr. BURGDORF. No, no.
Mr. CHABOT. The gentleman's additional time has expired.
But, Mr. Horner, if you would like to respond.
Mr. HORNER. Yes, thank you. I just wanted to respond to your first question when you were asking has sufficient notice been given. And I think that what we are talking about today is really notice on the macro level. But I think on the micro level, the small businesses, it is very clear to me that that information has not filtered down to the small businesses.
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And in our small community, the chamber of commerce refers—we have gotten a lot of publicity over this incidence. And so, a lot of calls get referred to me. And time after time I talk to small-business people that are just totally beside themselves wondering what can they do and have been totally blindsided by this. So I think it is a very real problem. I don't think it is just something that I have experienced.
Mr. CHABOT. The gentleman's time is expired.
Mr. NADLER. Thank you.
Mr. CHABOT. The gentleman from Arizona, Mr. Trent Franks, is recognized.
Mr. FRANKS. Well, thank you, Mr. Chairman.
And thank all of you that have come here today. Sometimes they say that whenever Congress faces any kind of problems it generally either does nothing or overreacts. And so, I think part of the challenge here is trying to put in our heads the crucial bottom line of some of these things. And given that, I will just ask one question to each of you. It is a two-part question. And then I will pass my time along to someone else.
But, Mr. Coelho, if you could say the most important thing that the ADA is accomplishing, what it is doing right, what is working well. And then conversely, what is the most glaring problem with it. In other words, if there is one change you could make—and the idea here is to try to precipitate some discipline with the group here and hopefully come up with some kind of consensus.
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Because I will tell you with all the issues that we face, you know, you are talking about an oversight hearing. Sometimes if we can just get one thing that we can do that is of consequence, then it might actually happen. But otherwise, sometimes, you know, we just kind of chase a lot of smaller problems in every direction.
So what is the thing that it is doing right? What is the best effect thus far in the 16 years it has been in place? And what is the one thing that you would change if you could?
Mr. COELHO. Well, I said earlier that in my view, inclusiveness, making sure that people with disabilities, which are 50 million plus Americans, are included in all aspects of society, that they feel they can participate in all parts of society just like any other American. Now, that is what the ADA is supposed to do and it has done in practically all aspects. And just make sure that happens. Make sure that that continues to be the case.
It is not doing so in a couple of areas. For those of us with ''episodic disabilities,'' that is not the case. The supremes have said no, that it was not the intent of the Congress when you folks adopted the ADA. And the supremes have taken that out. Re-establish that, put that back in the way it was intended to be. That is as simplistic as I can be.
Mr. FRANKS. And that is simplistic. That is what I need, yes, sir.
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Mr. Horner, how about yourself, sir.
Mr. HORNER. In terms of what it has done, I think it is very clear, at least from my perspective that people generally recognize the needs of the disabled, I mean, when they see the special parking areas and when they see the handicapped restroom and so on. And I think there is just a general awareness that that is an accepted part of doing business and living.
And as I said earlier, I think what really needs to be done—and I just can't stress it enough—is that information as far as what is going to be required needs to filter down to the small businesses. And then once it does, there needs to be provisions where if they do comply with at least the basics, that they, that they receive some sort of safe harbor.
Mr. FRANKS. Thank you.
Mr. Burgdorf?
Mr. BURGDORF. The late Justin Dart, who was a leader of the disability community, he used to talk about the ADA as a moral imperative. And I think that empowerment is the main thing, that is the biggest success. In terms of what is wrong, I would, I would agree with Mr. Coelho that it is the lack of inclusiveness in the, in the definition. I would broaden it a little bit beyond episodic disabilities to all kinds of disabilities where a person uses some kind of mitigating measures.
I have a friend who is a quadruple amputee. And he is not sure he could sue under the ADA anymore because he uses prosthetic devices and gets around quite fine. So I think the idea that you have to prove you are really, really, really, really disabled before you can have protection and equality is wrong and was never the intent of the Congress at the time it enacted the ADA.
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Mr. FRANKS. Ms. Earp, how are you?
Ms. EARP. I am well, thank you. I would make a couple of comments.
First of all, I would say in response to Mr. Coelho's comment that we should do more I think the Equal Employment Opportunity Commission takes the law as we find it. And we try to do more. We try to do as much as we can that the courts allow us.
In fact, we had a very important case involving episodic illness against Sara Lee that we took exactly the position that has been articulated. But the circuits said that we were wrong.
In terms of what is working well, I think that large companies get it, especially those that have human resource departments to help the employer walk through the complexities of the law. I would agree with Mr. Horner to some extent. From our experience, the smaller the employer and without a human resource department, the more likely they are to violate the law.
Mr. FRANKS. Well, thank you, Mr. Chairman. My time is up. So the conclusion here is that it is doing some good things but we do need to abolish the courts. Is that what I am hearing? No, we need them. We need them, I guarantee you.
Mr. CHABOT. The gentleman's time is expired.
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The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you. Thank you, Mr. Chairman.
Ms. Earp, I guess I want to follow-up on some of the same things we have been talking to because your testimony says that you have successfully challenged policies that automatically excluded all individuals with a condition such as diabetes and epilepsy.
Ms. EARP. Yes.
Mr. SCOTT. And that if it is under control through medication when you tried to enforce that part of it, you were unsuccessful in the courts. Is that right?
Ms. EARP. I think that is essentially correct.
Mr. SCOTT. Well, what do we have to do? You suggest that you have to enforce the law that we give you. What would we have to do to fix that glitch?
Ms. EARP. Well, the way we have responded at the commission in light of Sutton is our attorneys and our investigators have to probe a lot deeper. They have to be more thoughtful, much more methodical. And it is true that some limiting conditions that we would have more quickly assumed met the definition pre-Sutton don't necessarily now. But what we have found is that with a little bit more time and resources devoted to investigation, we can still cover individuals with conditions such as epilepsy and diabetes. We can still cover them.
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Mr. SCOTT. So we don't need to change the law? We just—we don't need to change the law to have these conditions covered?
Ms. EARP. I don't know if I can make a conclusive statement on whether or not the law itself needs to be changed.
Mr. SCOTT. Well, based on what you tried to do, you obviously want coverage. What do we—do we need to make it clearer in the statute?
Ms. EARP. Clarity would be helpful. In the meantime, without it——
Mr. SCOTT. And can you give us some suggested language that would be helpful to you?
Ms. EARP. I am not sure I can do that today. But we would be happy to respond——
Mr. SCOTT. I mean, in due course?
Ms. EARP. Yes.
Mr. SCOTT. Yes? Okay.
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Mr. Horner indicated in his testimony that—and in his comments—that he hadn't gotten information. It is my understanding that a lot of the information of what is readily achievable is available at the Department of Justice. And you said you have been doing some outreach. What do we need to do to make sure that the small businesses without the human resources offices, which would cover a lot of small businesses—how do we ensure that they get all of the information necessary to get into compliance?
Ms. EARP. Well, we have been conducting technical assistance seminars around the country. They are free. We do about—we have accomplished about 100 so far under the New Freedom Initiative. But clearly, it would take us a very long time to reach this entire community. So I think that in partnering with other Federal agencies who have responsibility for ADA we have to broaden the scope of our appeal, use different mechanisms, including using the Internet, which someone mentioned earlier.
Mr. SCOTT. Now, Ms. Earp is in employment.
Mr. Coelho, do we have problems in buildings? New buildings we don't have a problem with. You have readily achievable things for existing buildings and for new construction or renovations. You have to do at least 20 percent—you are responsible for at least 20 percent to upgrade. Is that working well?
Mr. COELHO. It is basically working well, yes, sir.
Mr. SCOTT. Reasonable accommodations—I know that was the issue we had when we did the Virginia law. Are reasonable accommodations—is that causing a problem, what is reasonable and what is unreasonable? Has that caused a problem?
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Mr. COELHO. The word reasonable becomes an issue.
Mr. SCOTT. Well, it is always going to be an issue. I mean, have people worked through that?
Mr. COELHO. Basically you do.
Mr. SCOTT. Is it something we need to deal with?
Mr. COELHO. But I think we were very deliberate in putting the word reasonable in.
Mr. SCOTT. Has that worked out? Do we need to revisit that?
Mr. COELHO. I think we may want to look at it. But I think, Mr. Scott, when we drafted the ADA, we did not want to run businesses out of business. That is not what the purpose of the ADA was. The purpose of the ADA was to get businesses and others to comply with accommodations for people with disabilities over a reasonable period of time.
Mr. SCOTT. I know when we did the Virginia law, we were told that at least 80 percent of the accommodations would cost less than $500.
Mr. COELHO. And that has been basically true.
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Mr. SCOTT. We are talking about—but that is not anything we need to revisit?
Mr. COELHO. I can't answer that. The professor might be able to be helpful.
Mr. BURGDORF. If I could, the ADA used the term reasonable modifications in title III and reasonable accommodations in titles I and II with the express limit on it that a reasonable accommodation is one that does not cause an undue hardship on the business. So that was the limit.
In one of its decisions, the Supreme Court sort of left open that there is another reasonableness, like a second-guessing possibility that an employer can do or a court can do, that is separate from that undue hardship limitation. I think the Members of the Congress spent a lot of time on that compromise of undue hardship and expected that to be the dividing line.
Now there is the possibility that it can be effective, not an undue hardship and still somehow a court or an employer can say, ''Well, that is—I just don't think it is reasonable.'' And that was not any part, I understood, of the congressional intent at the time.
Mr. SCOTT. Mr. Chairman, could I have one additional minute?
Mr. CHABOT. Without objection, so ordered.
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Mr. SCOTT. I just wanted to throw out two other questions, I guess, in terms of what we need to look for to determine whether or not there are problems. One, transportation. And the other is whether HAVA has addressed all of the voting problems that we may have. Do we have any comments on either transportation or voting?
Mr. COELHO. I can't address the voting. HAVA came up much after I was here in the Congress. I just heard what the gentleman from Missouri talked about. And I happen to be a big advocate to making sure that people with disabilities should be able to vote privately like anybody else. And however that can be done, should be done in this country. And so, I would be a strong advocate of making that possible. But other than that, I am not an expert.
Mr. SCOTT. Do we have any problems in ADA dealing with transportation issues?
Mr. COELHO. Well, that was our toughest issue, Mr. Scott, when we put through ADA, we got the ADA through the Transportation Committee, or Public Works and Transportation it was called at that time, by one vote. And we had to make every compromise on Earth to get it through. And I was not happy about the compromises, but basically it has worked reluctantly. But it has gotten us there.
And so, if you want to look at it again without causing us to get any more compromises, I would say that is fine. But it has gotten us there. You know, look at this. People said at the time that you can't get the buses, for example, that was our biggest problem, to do the things that need to be done to make them accessible to people in wheelchairs and so forth.
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Now buses dance and bow and scrape and do everything else they could do. And at the time I said, look at this, if you require that it be done over a reasonable period of time, technology will make it possible. At that time, the law wasn't there so technology didn't work on it. Now that the law is there, technology is doing it.
I was just on a bus this weekend where the bus just went right down to the ground and basically the elderly and a lot of other people could get on it plus some people who had been drinking too much at that particular time. And I am not going to say what I had been doing. But I was out partying that night. But the buses do that today.
And so, I think that in transportation we have made great progress just because the law required certain things. And now the accommodations are coming into play. But I am not an expert in that area.
Mr. CHABOT. The gentleman's time is expired.
Mr. SCOTT. I think the professor wanted to——
Mr. CHABOT. Professor, did you want to briefly——
Mr. BURGDORF. Very quick. I would urge the Subcommittee to take a look at many of the resources that the National Council on Disability has published. There is a report called Promises to Keep that looks at the Federal enforcement effort of the Department of Transportation along with the EEOC, the Department of Justice and the Federal Communications Commission. There is also—there are some reports out from the national council about the voting rights issue. And I would also urge you to take a look at those.
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Mr. SCOTT. And you can make those citations available to us?
Mr. BURGDORF. I can, or the national council can. We will get them to you.
Mr. SCOTT. Okay. Thank you.
Mr. CHABOT. I thank you.
The gentleman's time is expired.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CHABOT. The Chair generally doesn't go into second rounds, but this is such an important issue that we are going to go against our own rule here and go into a second round. So if any Members have any additional questions, we will have a little additional time here to ask them. And I will yield myself 5 minutes at this point.
And I would address this to Mr. Coelho.
Mr. NADLER. Mr. Chairman?
Mr. CHABOT. Yes?
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Mr. NADLER. I just wanted to warn you that by doing what we are doing now, which I thoroughly approve of, I reserve the right on future hearings on other topics to say do you think this is less important.
Mr. CHABOT. We are such good friends you would never do that, though, Jerry, I know.
I yield myself such time as I might consume, but no more than 5 minutes.
And, Mr. Coelho and Professor Burgdorf, if technology continues to improve, more of our daily activities will be carried out over the Internet, as they already are. Was it the intent of Congress back in 1990 that the ADA apply to virtual locations such as the Internet? And how did Congress intend the ADA to evolve as technology evolves?
Mr. COELHO. Mr. Chairman, can I address just one particular issue first before Mr. Franks leaves?
Mr. CHABOT. Sure.
Trent?
Mr. COELHO. One issue that has not been raised—and it is an area that I think we all should be very conscious of—is that in episodic disabilities that returning veterans—that a lot of young men and women coming back from wars, head injuries—the body armor takes care of a lot of the body. There are head injuries that are occurring. With epilepsy you may not know for a year, you may not know for a period of time whether or not you are going to have some type of episodic problem.
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And a lot of these young men and women could well not be covered by the ADA as a result of Supreme Court decisions. And I would hope that these young men and women who have given up their time and possibility, their parts of their body for our country and fought valiantly and so forth that in the review of this, of this bill that you would consider what they have done and making sure that they are covered as well. And I think that a lot of times we forget about these type of things when these young men and women come back.
We always mourn about the people who have died. And I believe in that firmly. But we also forget at times about the young men and women who come back disabled. And those who come back appearing to be whole who later have problems we never pay attention to those people at all. And so, I would ask that you consider that as one of the problems possibly with the ADA as well.
In regards to your——
Mr. CHABOT. The Internet.
Mr. COELHO. —your question on the Internet, the answer obviously is yes. I mean, we are not talking about timeframes. That isn't what the ADA is all about.
The ADA was providing a coverage for people with disabilities throughout, I guess, the constitutional rights of all of us. When we passed the civil rights laws in the 1960's, we just didn't cover for people for a given period of time on what was available at that particular point. It was throughout the history of our country forever and ever. It is the same thing with the ADA.
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ADA is a civil rights law. And technology that wasn't available in the 1960's that came along in the 1990's or that is coming along in 2050 or 2060, whatever the heck it is would still be covered by the ADA. That was our intent. It should be the intent of the law. And so, the Internet or whatever it is should be covered.
Mr. CHABOT. Professor, anything you would like to add to that?
Mr. BURGDORF. Yes, I think Congress was very articulate about this and specific. In the findings section, Congress found that discrimination based on disability was pervasive, meaning it is everywhere. It then in the purposes section said we want to create a comprehensive remedy for discrimination. In each of the sections of the ADA, the title II dealing with State and local governments, in title III dealing with public accommodations, it talks about all facilities, services and a lot of other nouns.
But it basically was intended to cover everything they provide. And there is no reason to say that an Internet service is not a service provided. It may not be located in the same physical context, but it is a service provided by a provider. And that is who was covered by the ADA.
Mr. CHABOT. Thank you. My time is expired.
The gentleman from New York is recognized for 5 minutes.
Mr. NADLER. Thank you.
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I was a bit confused in the first round because, Professor, you mentioned that there are no compensatory damages, among other things.
And Ms. Earp talked about compensatory damages. So let me ask Ms. Earp. Obviously the EEOC has—have you looked at the Department of Justice and other agencies of Government, their record of enforcement? And what can you tell us about that?
Ms. EARP. I haven't really looked at other agencies' enforcement, except to the extent that EEOC is responsible for monitoring complaints filed against Federal agencies alleging disability. In terms of what we have been able to recover, there are monetary damages that we get when we take a employer to court and compensation and other benefits that we get on behalf of the victim.
Mr. NADLER. Excuse me, damages that go to you or that go to the person who was——
Ms. EARP. To the person, the person. Compensation and other benefits when we conciliate or settle the case.
Mr. NADLER. So, Professor, what did you mean when you said there are no compensatory damages?
Mr. BURGDORF. I was talking specifically about title III.
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Mr. NADLER. Okay.
Mr. BURGDORF. Which there is a huge distinction in the different titles of the ADA and what is available. Under title III, patterned after title II of the Civil Rights Act, no compensatory damages were allowed. And then it is true that there is—the Department of Justice has a right in pattern and practice cases to go after damages. But private litigants can't do that. And DOJ doesn't have the resources. And if it does, it doesn't find the smaller cases. So it is only in that circumstance. So that hasn't been extensively used.
Mr. NADLER. Okay.
Now, Ms. Earp, the EEOC has sought and secured monetary damages, as you have testified.
Ms. EARP. Yes.
Mr. NADLER. Why are they important? Why are monetary damages important?
Ms. EARP. They are disincentive, or they are incentive to comply.
Mr. NADLER. Because otherwise it is costing me business to not comply?
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Ms. EARP. I think so.
Mr. NADLER. Okay. Thank you.
So, Professor Burgdorf, what was the rationale for not having compensatory damages in title III?
Mr. BURGDORF. It was solely that title II of the Civil Rights Act didn't allow for compensatory damages. It was not foreseen that—in fact, at the time the ADA was passed, as many of us have mentioned, this was a big deal between a whole bunch of people.
And the business community was part of the negotiations. The Democrats were part of the negotiations. The Republicans were part of the negotiations. The Administration was a part of it.
Mr. NADLER. We will stipulate that everybody was. Go ahead.
Mr. BURGDORF. Right. Okay. I am sorry. But there was a deal. And the deal was we are going to require modest things, and you will do good faith compliance. Well, unfortunately in title III, some businesses do that, but many businesses have chosen to say sue me.
Mr. NADLER. Well, let me ask you a question then. Given the experience with title III and its enforcement, given the experience with good faith compliance or the lack of it, given the experience with complaints by businesses and others of the burdens of various enforcements, do you think title—it would be a good idea to have compensatory damages under title III, given all our experience over the years now that we know more than in 1990?
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Mr. BURGDORF. Yes, there are alternatives, things like statutory damages that don't require proof of particular amount but simply penalize people for having violated a law. But, yes——
Mr. NADLER. Do you mean statutory damages that penalize someone for violating the law without regard to proving that someone suffered damage thereby?
Mr. BURGDORF. Yes. If you try to go into a store and someone says get out of here, we don't want your kind in here because you have a disability, your proof of damages is difficult. Should there not be some kind of penalty on that, on that store for doing that when it is against the law? I would argue that there is.
Mr. NADLER. Anybody else want to comment on that question?
Mr. COELHO. I would agree with the professor. I mean, I think that the delicate thing here, Mr. Nadler, is that it was a delicate compromise that we put together. And it was trying to get everybody at the table. And we have made great progress. This has been an issue.
And I would like—I would hope that the Committee would look at how do we keep the ball going forward and keeping everybody at the table but keep it going forward. This is a legitimate issue. And how can we bring people together but keep it going forward? That is the only caution I would make.
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Mr. NADLER. Thank you.
Mr. Horner?
Mr. HORNER. Thank you. I think the statutory damage approach is what is being used in California. And——
Mr. NADLER. By the State government?
Mr. HORNER. Yes. And I think that that is a situation where the small businesses are not aware of what they need to be doing to get into compliance, that it is a tremendous financial burden that, you know, often times runs, you know, tens of thousands of dollars.
Mr. NADLER. Wait a minute. I am sorry. I just want to do something because I am confused by—are you saying it is a tremendous financial burden to get into compliance or that there is a tremendous financial burden as a result of not having noticed what you have to do to get into compliance?
Mr. HORNER. Well, it is a tremendous——
Mr. NADLER. Or both?
Mr. HORNER. —financial burden to be hit with statutory damages.
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Mr. NADLER. When you didn't know what you had to do to avoid that?
Mr. HORNER. Exactly, exactly. And oftentimes those items that need to be corrected, as was mentioned earlier, amount to $100 or even less.
Mr. NADLER. But if there were adequate notice and there weren't this problem that you have articulated about proper notice, if everybody knew, would you think that statutory damages for violations would be a burden or a good idea?
Mr. HORNER. I mean, off the top of my head, if everybody knew, then, yes, I think that is reasonable.
Mr. NADLER. Okay. Thank you very much.
I yield back.
Mr. CHABOT. The gentleman yields back.
The gentleman from Arizona, Mr. Franks, is recognized for 5 minutes or such time as he might consume if no more than 5 minutes.
Mr. FRANKS. Thank you, Mr. Chairman. You know, I was fascinated by the Chairman's comments related to using the Internet to enhance the capability or the effectiveness of those with disabilities. As it happens, we have two members of our congressional staff, one of which has an episodic condition and the second of which has the Charcot-Marie Tooth Disease, which is much like an ALS only acting very slowly. He was not supposed to live 4 and-a-half years ago. But he is still, he is still going strong.
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But he makes tremendous use of his computer. He is paralyzed essentially from the neck down but is able to through a voice recognition software is able to—he is without a doubt—and, you know, I say this for some of the folks that are here. He is without a doubt one of the most effective, productive employees that we have.
And I am just wondering related to the Internet, you know, are there things that we could do in this legislation that would help that? Because I just see that as such a profound opportunity because the people that call this gentleman, the constituents that call rarely are even aware that he has any disability whatsoever.
He handles all of our technical work with our computers in the district office. And he handles all of our Social Security inquiries. And again, he is just amazing. But without the Internet, without the computer capability with voice recognition, it would be very difficult for him.
Mr. COELHO. Can I answer that?
Mr. CHABOT. Absolutely, yes.
Mr. COELHO. Mr. Franks, you have hit my soft spot. This is my ministry, is getting people with disabilities jobs and employment. I applaud you and the Congress because you established just 2 years ago, I think it is, 10 spots in the House or maybe it is 15, people with severe disabilities to be employed by the House of Representatives.
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And hopefully it would be a larger amount. But I think it is 10 or 15. And as a Majority witness, I would say it was a Majority initiative. So I applaud the Majority for that. And it was—I would also say it was recommended by the Minority Whip, but the Majority did it. So I would put it that way.
But it is the real problem because I bet that individual going anywhere everybody says because of the visual prejudice that he is too disabled to perform any work. And yet you are telling me that he is one of the most qualified individuals in working period.
Mr. FRANKS. That is correct.
Mr. COELHO. And it is the problem we all face. And all I would say to you is that you could be part of the ministry that I am involved in. And that is to help promote that by getting more people here on the Hill and in Government to employ more people with disabilities. Because as you know, back in the 1950's when the Government employed people of color, it made a difference throughout the country. We are having one hell of a time getting the Government to employ people with disabilities.
President Clinton had an initiative to employ 100,000 people with disabilities in the Federal Government. It didn't work very well. President Bush, the current president, has not implemented that current initiative. It would work extremely well if there was an effort on the part of the Administration and if the Congress itself would do it and taking people like the young fellow you are talking about and having every Committee employ people like this. Get other people——
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Mr. FRANKS. To that point, Mr. Coelho, I am about to run out of time here. But, you know, I am hoping——
Mr. COELHO. That is my ministry. I am sorry.
Mr. FRANKS. —that perhaps you would like to speak to this gentleman. Maybe there is——
Mr. COELHO. I would love it.
Mr. FRANKS. But you mentioned that there was one of 15 positions. Now, I don't know anything about that. He has worked with us since I came into the Congress.
Mr. COELHO. I think it is better that you have done it on your own.
Mr. FRANKS. But I would still like to know what that initiative is about. And with your permission or maybe just could request that you contact our office. I would love for you to speak to him personally because he——
Mr. COELHO. I would love it.
Mr. FRANKS. —certainly has an inside perspective. And again, he is one of the most amazing people I have ever known.
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Mr. COELHO. Good. Thank you.
Mr. CHABOT. The gentleman yields back? The gentleman's time is expired.
The gentleman from Virginia is recognized for 5 minutes.
Mr. SCOTT. Thank you. Thank you, Mr. Chairman.
Just to get things on the record, I would asked about a number of areas. Mr. Coelho, do we need to do anything in public services, public accommodations or services provided by private entities? Do we need to have any statutory changes in those areas?
Mr. COELHO. Not that I am aware of. Yes, not that I am aware of, Mr. Scott.
Mr. SCOTT. Mental health issues?
Mr. COELHO. Well, I think that is in the same area that I discussed before in regards when I was talking about episodic and so forth. There is a lot of room in that area.
Mr. SCOTT. Yes. What about—we have commercial buildings. Why should ADA not cover newly constructed private residential homes?
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Mr. COELHO. Well, let me just respond to that in one way. I think one of the things that——
Mr. SCOTT. Well, I mean, is there any more expense to build a house with a building code that would comply to ADA requirements?
Mr. COELHO. Well, let me tell you what could be done rather easily. In the designing of homes, you could design homes that could easily be accessible without having them accessible when completed. In other words, that the studs could be—and I am not a contractor—but that the studs and everything else could be situated as such so that you would know where to put in the rails, you would know where to put things on so that they could—the facility could be accessible if somebody bought the place and wanted to make it accessible.
That is easily done if you could get to the building codes. And there is ways of doing that. So the answer to your question, Mr. Scott, is yes, without inconveniencing anybody.
Mr. SCOTT. What about in multi-family housing in a big condo with hundreds of units making sure that——
Mr. COELHO. The same thing is true.
Mr. SCOTT. —at least a handful would be accessible? They could be sold to anybody. But they would be specifically accessible.
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Mr. COELHO. But the same thing is true in the design of. You don't have to have the buildings actually finished as such. You could have the designs so that if somebody wanted an accessible facility, it could be built for that purpose. But all of them could be accessible without causing any additional expense.
Mr. SCOTT. And, Ms. Earp, finally, what can we—I understand the employment rate for people with disabilities is approximately 37 percent, 63 percent unemployed. What can we do to increase that number?
Ms. EARP. Well, it is a complicated process. But I think to follow-up on the conversation regarding the Internet, it can also be used to get the public aware of its responsibility to let employers, especially small and mid-sized employers, know what their responsibilities are and to also put information about job availability and other things in an accessible form that individuals with disabilities can use it.
Mr. SCOTT. Mr. Chairman, I think I am the last one to ask questions, so I would just ask generally if anybody has any other comments in the rest of the time.
Professor?
Mr. BURGDORF. Could I respond to your last question? The fact is I think the main thing we could do is finally to try the requirements of title I of the ADA. I say that because 95 percent of the lawsuits that are filed under title I of the ADA are thrown out of court based on the restrictive definition of disability. So we haven't given title I a chance to see if there were a broad definition would there be enough prohibition of discrimination and employment that these statistics would begin to change. But right now we don't know.
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Mr. COELHO. The other thing, Mr. Scott, I would ask is that we have tried for 15 years as chairmen of the President's committee to hire people with disabilities and then as co-chair of the task force for adults with disabilities—we have tried to get the Bureau of Labor Statistics and the Census Bureau to start asking the questions in regards to disabilities. It has been 10 years at least, and they keep saying we are developing the questions, we are developing the questions. And they have not developed the damn questions.
It would seem to me the one thing that you could do is say get the questions developed and start asking them. We would have a better idea of how many people really do have a disability, what type of disabilities and ways that we could be helpful in lots of different areas of employment and so forth. A simple, little thing like that. They will tell you it is a major thing obviously because it has taken 10 years and they have made no progress.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CHABOT. Okay.
If there is no further questions, I want to thank the panel. This was a very, I think, excellent dialogue and really a top-notch panel that we had here this afternoon. It is a very important issue. And the testimony that we received this afternoon, I think, will give us considerable information that we need.
So thank you very much for your testimony this afternoon.
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Mr. NADLER. Mr. Chairman?
Mr. CHABOT. Yes, the gentleman from New York?
Mr. NADLER. Thank you, Mr. Chairman. I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and to include additional materials for the record.
Mr. CHABOT. Without objection, so ordered.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you.
And at the beginning when I introduced the panel in my opening statement, I mentioned that there may be additional written questions to be submitted to the witnesses. And we will have that to you in short order if there are Members that would like to do that.
So if there is no further business to come before the Committee, we are adjourned. Thank you.
[Whereupon, at 3:52 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE EMANUEL CLEAVER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI
Mr. Chairman, I would like to thank you and Ranking Member Nadler for holding this hearing and beginning, what I hope to be, the first of many hearings in Congress on the status of the rights for individuals with disabilities. I look forward to both bodies and both parties in Congress working together to help strengthen and expand the Americans with Disabilities Act so that our nation can further empower and engage the disabled community towards achieving full participation in our nation.
On July 26, 1990, President George H.W. Bush signed one of the most groundbreaking civil rights laws in our nation's history—the Americans with Disabilities Act (ADA). No law since the Civil Rights Act of 1964 has been as sweeping and all encompassing as the ADA addressing employment, businesses, public accommodations, and telecommunications. As far reaching and effective as the ADA is, now is the time for Congress to continue what we started a decade ago. Today, the words of Rev. Martin Luther King, Jr. still ring true. ''I refuse to accept the idea that the 'isness' of man's present nature makes him morally incapable of reaching up for the 'oughtness' that forever confronts him.''
Now is the time for us to go further, so that all individuals with disabilities will be better able to develop skills for school, work, self sufficiency and independent living. The millions of Americans with both disguised and easily identifiable handicaps need expanding opportunities. The help of the Federal Government is needed for individuals with disabilities to work towards increased resources to access personal responsibility and engage as full members of our communities. I know that everyone's participation is key.
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Although I was not a Member of Congress when the ADA was written and made its precarious way through Congress, I am keenly familiar with expanding individual's civil rights and the suffering of all people when constrained, confined, and cut off. The premise of civil rights is simple: that all men, women, and children are created equal. We include rather than exclude. We engage rather than withdraw. We become one rather than segregate. I was an active member of the Civil Rights movement, and feel blessed to be a participant in this civil rights movement due in no small part to Ms. Cathy Enfield, a constituent of Missouri's 5th Congressional District, a place I am proud to represent.
I was lucky enough to meet, and I am proud to know a wonderful woman, an advocate, and a hero, Ms. Cathy Enfield. Cathy is mentally disabled. Rather than accept what life has dealt her, like so many of us do, Cathy decided to fight the system that kept her outside, and become fully engaged. She is an advocate for the thousands of disabled Missourians, my home state, and she advocates at the local, state, and federal level. Each day, each minute, Cathy is challenging and claiming her personal responsibility, pushing to better her life and the 20 percent of all Missourians who are disabled.
Each year millions of Americans travel to Washington to talk to their elected officials, so that their voices can be heard by those who shape policy, and they can effect change. The majority of Americans, and particularly those Americans living with disabilities, cannot make the trip to our nation's capital, and thus they are constrained by location and circumstances. As Members of Congress, we must reach out to our constituents through traditional and new technologies such as the Internet. Today, with the advent of the internet, all Americans can be easily linked and voice their views and opinions to across the planet, and such a broad, sweeping an democratic medium should be fully accessible and reach fully the ADA's stated purpose ''to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.''
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I invite every Member of the House and Senate to engage our constituents and disabilities groups in our districts to participate in this vital discussion. Our nation is at the threshold of a vital second step, and as policy makers, this hearing is a chance to directly listen to the people affected by these issues, and individuals with disabilities to contribute to the national dialogue on the issues that affect their everyday lives, so that we can expand the rights and liberties under the ADA.
ADDITIONAL INFORMATION SUBMITTED BY THE HONORABLE TONY COELHO, CHAIR, THE EPILEPSY FOUNDATION, AND FORMER REPRESENTATIVE IN CONGRESS FROM THE CENTRAL VALLEY DISTRICT OF CALIFORNIA
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RESPONSE TO POST-HEARING QUESTIONS FROM THE HONORABLE TONY COELHO, CHAIR, THE EPILEPSY FOUNDATION, AND FORMER REPRESENTATIVE IN CONGRESS FROM THE CENTRAL VALLEY DISTRICT OF CALIFORNIA
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RESPONSE TO POST-HEARING QUESTIONS FROM HARRY HORNER, SMALL-BUSINESS OWNER, JULIAN, CA
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RESPONSE TO POST-HEARING QUESTIONS FROM ROBERT L. BURGDORF, PROFESSOR OF LAW, UNIVERSITY OF THE DISTRICT OF COLUMBIA DAVID A. CLARKE SCHOOL OF LAW
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RESPONSE TO POST-HEARING QUESTIONS FROM THE HONORABLE NAOMI EARP, CHAIR, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
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CHARGE STATISTICS FY 1992 THROUGH FY 2005, FROM THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, SUBMITTED BY THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION
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LETTER AND PREPARED STATEMENT FROM THE NATIONAL COUNCIL ON DISABILITY
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''PROMISES TO KEEP: A DECADE OF FEDERAL ENFORCEMENT OF THE AMERICANS WITH DISABILITIES ACT,'' BY THE NATIONAL COUNCIL ON DISABILITY, JUNE 27, 2000
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''RIGHTING THE ADA,'' BY THE NATIONAL COUNCIL ON DISABILITY, DECEMBER 1, 2004
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PREPARED STATEMENT OF THE NATIONAL RESTAURANT ASSOCIATION
Our nation's restaurant industry is the cornerstone of the economy, careers and community involvement. It is comprised of 925,000 restaurant and foodservice outlets employing 12.5 million people around the country. The restaurant industry nationwide declares $511 billion in sales annually, and accounts for 4 percent of the United States' Gross Domestic Product (GDP).
Operating a restaurant can be a very rewarding experience as a way to earn a living and to serve the public. A part of the responsibility that comes with being a restaurateur includes adhering to the Americans with Disabilities Act (ADA), a responsibility our small business owners take very seriously. For them, not only is it a matter of fairness, it also makes good business sense. Our industry strongly believes that the disabled should be accommodated—whether they wish to be served in our businesses or work in our businesses.
As has happened over time with many other laws, the ADA has created some unintended side effects. One unfortunate consequence is that it has created confusion among business owners that must make sure their business is in compliance. The primary difficulty is that parts of the law are vague and open to interpretation. The concern heard regularly from members is that ''they just want to know what is they are supposed to do, so that they can do it.'' The problem, they say, is that, depending on who you ask, the answers may vary. In many cases, small business owners operate under the impression that if the state and local inspector has signed off on a building project, then they are compliant with the ADA. Many operators take the extra step of making pointed inquiries to inspectors, asking if a parking space is wide enough, if a ramp is long enough, or if there is appropriate signage. Once an approval has been given, restaurateurs feel that they have adequately complied with the law. Sadly, many find out later that a problem may exist.
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Many question how such a scenario is plausible if business owners have truly followed all the appropriate steps. The truth is that a small business owner can call two different ADA consultants with a removable barrier question, and conceivably receive two different answers. That same owner could also pay thousands of dollars to hire a consultant, pay thousands more to make necessary structural compliance changes, and still have a local inspector tell them later that they are not in compliance. In an even more disturbing scenario, they could hire a consultant, make changes, and still face a lawsuit because an attorney believes they are not in compliance. In fact, while ADA compliance has been a source of some frustration for many small businesses, it has been a source of tremendous opportunity for some attorneys.
Another unintended consequence is that some attorneys across a growing number of states are exploiting the ADA for their own personal benefit. Unfortunately, litigation is becoming a first step to resolving accessibility issues. In many cases, a restaurant is first made aware of an alleged ADA violation when they receive notice they are being sued. In some parts of the country, attorneys will drop off ADA lawsuits to every business on the same street without hesitation. It doesn't matter if Main Street has a strip mall, two restaurants, a convenient store, a pharmacy, and a department store—every location will receive the threat of legal action. The lawsuits often target small ''mom-and-pop'' businesses that are unaware of the alleged violations. Often times, these small business owners opt to settle out of court, rather than mount an expensive legal defense. In many cases, these mom and pop businesses are in fact in compliance, but don't receive clear signals on from inspectors, and fear an expensive legal battle. Other suits include businesses that have already gone through considerable expense to comply with ADA. In either case, businesses incur unnecessary legal costs and the courts are unnecessarily burdened.
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Litigation does not further the cause of access. Costly lawsuits only divert valuable resources and attention away from finding a solution. A cooperative approach such as Rep. Mark Foley's (R-FL) H.R. 2804, the ADA Notification Act, allows business owners to make corrections in their operations, if such corrections are needed, before a lawsuit is filed.
This legislation provides a 90 day window to review the problem and, if necessary, make corrections, before a lawsuit can be filed under the ADA. This helps to provide a solution beneficial to both business owners and individuals with disabilities and results in greater access to business locations for those in the disabled community.
No one is suggesting that employers should never be sued. However, in those cases where a business owner is willing to make appropriate compliance changes, he or she should be provided an opportunity to do so before being sued. Litigation should not be the first option.
LETTER FROM RANDEL K. JOHNSON, VICE PRESIDENT LABOR, IMMIGRATION, AND EMPLOYEE BENEFITS, AND MARC FREEDMAN, DIRECTOR OF LABOR POLICY, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, TO THE HONORABLE STEVE CHABOT, OCTOBER 6, 2006
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DOCUMENTS FROM THE RIGHTS TASK FORCE OF THE CONSORTIUM FOR CITIZENS WITH DISABILITIES
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PREPARED STATEMENT OF THE CONSORTIUM FOR CITIZENS WITH DISABILITIES
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PREPARED STATEMENT OF DAY AL-MOHAMED, DIRECTOR OF ADVOCACY AND GOVERNMENTAL AFFAIRS, AMERICAN COUNCIL OF THE BLIND
The American Council of the Blind (ACB) is the leading national organization of people who are blind and visually impaired. Consisting of tens of thousands of members and more than 70 affiliates across the United States, ACB is dedicated to improving the quality of life, equality of opportunity and independence of all people who have visual impairments. Its members and affiliated organizations have a long history of commitment to the advancement of policies and legislation which will enhance accessibility and inclusion for all individuals who are blind and visually impaired.
ACB would like to thank Chairman Jim Sensenbrenner, Jr. (R-WI) and Ranking Member John Conyers (D-MI), Rep. Steve Chabot (R-OH), Chairman of the Subcommittee on the Constitution and Rep. Jerrold Nadler (D-NY), Ranking Member, and other distinguished members of the Committee and Subcommittee for offering this forum for an open discussion on the Americans with Disabilities Act (ADA), and its promise to end exclusion and inequality for the 20% of American citizens who live every day with disabilities.
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On July 26, 1990, President George Herbert Bush signed into law the ADA and in a single pen stroke, America took on the responsibility to put an end to the crushing discrimination, oppression and inequality suffered by this country's people with disabilities. To quote Justin Dart's impassioned and eloquent testimony to a Senate subcommittee on government affairs several years ago: ''The ADA is a landmark in the evolution of human beings, the first comprehensive civil rights law for people with disabilities in the history of the world. It is the emancipation proclamation for 49 million Americans with disabilities, and the symbol of dignity, respect and hope for almost a billion persons with disabilities around the world.''
Over the past sixteen years, the provisions of the statute have affected some very positive changes, addressing architectural, communication and transportation access, changing the American societal landscape. Sections of the ADA make it illegal to design or construct any new place of public accommodation or other commercial facility without making it readily accessible and usable by people with disabilities. Building codes now mandate accommodations like ramps and elevators for people with mobility impairments; accessible signage and accessible pedestrian signals for individuals with sensory impairments and service animals are seen and accepted in public. Because of telecommunications provisions in the ADA, there is now a nationwide relay service for people who are deaf and a requirement of closed captioning of the verbal content of all federally funded television public service announcements. Perhaps one of the greatest accomplishments of the ADA has been the significant changes in public transportation systems, creating requirements for access. Because of the ADA, people with disabilities are far more visible and integrated into society.
NARROWING OF THE ADA
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However, there have been a number of changes that have been significantly detrimental. Judicial rulings importing stringent and overly narrow rules regarding who meets the statutory definition of ''disability'' have overturned Congressional intent. As a result of a string of Supreme Court decisions and other cases, it has become difficult for individuals with certain health conditions to establish that they have a disability for purposes of the ADA. People with epilepsy, diabetes, psychiatric diagnoses, and other conditions that are controlled with medications or other disease management strategies are routinely dismissed as ''not disabled enough'' to warrant protection of the statute. The emphasis is erroneously placed on the qualification rather than on the discriminatory action. The consequence has been a system where employers prevail in nearly 95 percent of ADA employment cases decided by federal courts.
With such ''judicial hostility'' and the definition of disability dramatically contracted, millions of Americans who continue to experience such discrimination are barred from challenging these abuses in the courts. One need only to look to the Civil Rights Act of 1964 to see that anti-discrimination legislation alone does not end discrimination. The Americans with Disabilities Act, which is even more ambitious than the Civil Rights Act, can only advance the lives of people with disabilities if Congress is clear about its intent and willing to take action to protect its vulnerable citizens.
ADA AND THE INTERNET
When barriers to accessibility are discussed, or ''public accommodations'', the most common concepts that come to mind are those of physical access to a place. The Internet is an integral part of life for over 80 million Americans, providing entertainment, education, the sale of goods and services, and exchanges of information with other individuals and organizations.
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Despite the mandate of Congress and the Administration, too many areas of business and commerce open to the general public, including virtual (e.g., internet) goods and services, remain inaccessible to people with disabilities. Title III of the ADA bars discrimination on the basis of disability by ''places of public accommodations'' and ''commercial facilities'' ''engaged in commerce,''(see footnote 14) yet, experts report that currently as many as 98% of all commercial websites are inaccessible to the disabled.(see footnote 15) Only by taking the lead in addressing the parallels between physical and information access can the federal government hope to achieve the goals of inclusion and access.
INDEPENDENT, COMMUNITY-BASED LIVING
The ADA has had a particularly strong impact in promoting the development of community residential, treatment, and care services in lieu of unnecessarily segregated large state institutions and nursing homes. This was illustrated by the 1999 Olmstead case. Unfortunately, many people with disabilities continue to be warehoused unnecessarily in institutions simply because states have failed to develop appropriate community-based services to enable them to live normal lives.
It is imperative that the implementation of the integration mandate of the Americans with Disabilities Act be enforced, moving persons with disabilities out of institutions and into integrated community settings. It is possible that we will need to return to Congress to seek assistance in carrying out the ADA's intent and mandate.
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When President George H.W. Bush signed the ADA into law on that day in 1990, he called this legislation a ''dramatic renewal not only for those with disabilities but for all of us, because along with the precious privilege of being an American comes a sacred duty to ensure that every other American's rights are also guaranteed.''
ACB encourages Congress and the Administration to continue their aggressive support for the ADA and pledge to assist in any way, its vigorous implementation and enforcement to ensure that this statute remains a living, breathing document, responsive to the needs of its citizenry.
PREPARED STATEMENT OF JAMES P. WARD, FOUNDER AND PRESIDENT, ADA WATCH AND THE NATIONAL COALITION FOR DISABILITY RIGHTS (NCDR)
I respectfully submit this written testimony as a person with a disability and on behalf of ADA Watch/NCDR, a coalition of national, state and local disability, civil rights and social justice organizations united to protect and promote the civil rights of children and adults with physical, mental, cognitive and developmental disabilities. (1)
ADA Watch coalition partners include national organizations such as the Disability Rights Education and Defense Fund, National Disability Rights Network, National Organization on Disability, National Spinal Cord Injury Association, ADAPT, Consortium for Citizens with Disabilities, and Bazelon Center on Mental Health Law. NCDR state members include the Tennessee Disability Coalition, Coalition of Texans with Disabilities, Disability Rights Wisconsin, Alabama Disability Action Coalition, Michigan Disability Rights Coalition and others.
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Following the narrowing of civil rights protections for people with disabilities in numerous court decisions in recent years, and regarding the possible introduction of a bill to restore the Americans with Disabilities Act (ADA):
1) ADA Watch/NCDR strongly supports bipartisan action towards the passage of an ADA Restoration Act in accordance with recommendations of the National Council on Disability (NCD); the restoration principles submitted by the Consortium of Citizens with Disabilities (CCD); and ADAPT's emphasis on the integration mandate of the ADA upheld in the landmark Olmstead case of 1999.
2) Should Congress proceed with the drafting and introduction of an ADA Restoration Act as recommended by the disability community, ADA Watch/NCDR strongly opposes any attempts to add weakening amendments to such legislation. Specifically, ADA Watch/NCDR opposes the inclusion of language from the ADA Notification Act and other language that would similarly delay justice and discourage voluntary compliance with the ADA's accessibility requirements. Additionally, we are opposed to any attempts to limit protections for individuals already covered by the ADA—such as persons with mental illnesses.
3) Acknowledging the bipartisan history of the ADA, and in order to prevent the politicization of the restoration process, ADA Watch/NCDR further recommends that Congress introduce any ADA Restoration Act bill after the 2006 midterm elections.
Sixteen years after passage of the Americans with Disabilities Act (ADA), the American Bar Association reports that more than 97% of employment cases under the ADA are ruled in favor of employers with most dismissed on ''summary judgment.'' (American Bar Association Committee on Mental & Physical Disability Law, 2006) Judges, acting more like benefits managers, are deciding if a person is ''disabled'' enough to deserve protection under the ADA—rather than hearing the facts of the alleged discrimination.
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Robert Burgdorf, Jr., one of the ADA's drafters, concludes that ''legal analysis has proceeded quite a way down the wrong road.'' Burgdorf points to a judicial tendency to view ADA plaintiffs as seeking special benefits and treatment instead of equal rights. (Backlash, the Political Economy, and Structural Exclusion by Marta Russell, 2003)
People with disabilities such as epilepsy, diabetes, and mental illnesses are routinely denied justice and labeled ''not disabled enough'' by judges who narrowly interpret the intent of Congress in passing the ADA.
This trend has attracted the attention of current and former members of Congress—both Republicans and Democrats—who were present for the drafting and passage of the ADA in 1990.
Regarding the Supreme Court's disregard for the intent of Congress in passing the ADA, Ohio Republican Senator Mike DeWine, has said that he is deeply concerned about ''the Court's lack of deference to Congress.'' (Senate Floor Statement, April 29, 2003)
Responding to these same rulings, Republican Senator Arlen Specter clearly echoed the concerns of the disability community in objecting to the Court's ''judicial activism in functioning as a super-legislature'' and the disregard exhibited by a pattern of declaring ''acts of Congress unconstitutional notwithstanding the enormous evidentiary support for Congress' public policy determinations.'' (Letter to Judge John Roberts, August 23, 2005)
Democratic Congressman Steny Hoyer has said ''there is no worse example of judicial activism than what the Supreme Court and lower federal courts have done regarding the ADA. I believe it's clear that the time has come for the United States Congress to get serious about restoring the original intent of the Americans With Disabilities Act, which passed Congress with overwhelming bipartisan majorities and which has enjoyed the strong support of Presidents of both major political parties.'' (New York Law School Speech, October 21, 2004)
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The concerns of these policymakers have matched those of many leaders in the disability community. In 2001, for example, the Arc of the United State responded to the Supreme Court's Garrett decision with a statement that read: ''The Arc calls on President Bush and his Administration to restore the components of the ADA removed by this Court. The Arc calls on the Bush Administration, the Department of Justice, and the Equal Employment Opportunities Commission to continue to pursue disability employment discrimination cases. The Arc calls on Congress to act in the spirit of bipartisanship to explore new legislation to restore the protections lost by this ruling.'' (The Arc of the United States News Release, February 21, 2001)
In 2004, responding to the decisions that have significantly weakened the ADA, the National Council on Disability (NCD)—whose 15 members were nominated by President Bush and confirmed by the Senate—released comprehensive legislative recommendations for restoring civil rights protections for people with disabilities.
Lex Frieden, then Chairperson of the National Council on Disability, in a letter to the President, the House and Senate, wrote that legislation is urgently needed to restore the ADA to ''assure equality of opportunity, full participation, independent living, and economic self-sufficiency'' for Americans with disabilities. NCD asked the Administration and Congress to support legislation that will ''right'' the course of the ADA and protect the civil rights of people with disabilities. (National Council on Disability, Letter to the President, December 1, 2004)
Despite widespread agreement by policymakers, advocates and others that the courts are misinterpreting the ADA, neither the White House nor Congress has responded to the need to reverse the damage done. For almost two years now, neither the White House nor Congress has heeded NCD's recommendations for legislatively restoring the Americans with Disabilities Act.
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The need for the ADA Restoration Act remains an urgent one. A rush to get something introduced prior to the November elections, however, may do more harm than good for the disability community. With the midterm elections less than two months away it is highly likely that this highly partisan environment would unnecessarily taint efforts to draft and introduce a bill.
The work of restoring the ADA will likely take a bipartisan coalition effort similar to that created to draft and pass the ADA. On the signing of the ADA in 1990, George H.W. Bush praised this coalition effort as ''a joining of Democrats and Republicans, of the legislative and executive branches, of Federal and State agencies, of public officials and private citizens, of people with disabilities and without. (George H. W. Bush, July 26, 1990)
The text of this speech also offers a response to the critics of the ADA that remains true today in regard to those pushing for an ADA Notification Act and other attempts to weaken the ADA:
''Fears that the ADA is too vague or too costly and will lead to an explosion of litigation are misplaced.''
''The Administration and the Congress have carefully crafted the ADA to give the business community the flexibility to meet the requirements of the Act without incurring undue costs.''
''The careful balance struck between the rights of individuals with disabilities and the legitimate interests of business is shown in the various phase-in provisions in the ADA.''
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''The ADA recognizes the necessity of educating the public about its rights and responsibilities under the Act. Under the ADA, the Attorney General will oversee Government-wide technical assistance activities. The Department of Justice will consult with the Architectural and Transportation Barriers Compliance Board, the Equal Employment Opportunity Commission, the Department of Transportation, the Federal Communications Commission, the National Council on Disability, and the President's Committee on Employment of People with Disabilities, among others, in the effort. We will involve trade associations, advocacy groups, and other similar organizations that have existing lines of communications with covered entities and persons with disabilities.'' (President George H. W. Bush, July 26, 1990)
President Bush's words while signing the ADA into law in 1990 remain a powerful response to critics of the ADA—especially those seeking to add ''notice'' to businesses. Implementation of the technical assistance and public education plan that President Bush outlined is evident in the 2000 testimony on the ADA Notification Act delivered by Assistant U.S. Attorney General Robert Raben before the House Judiciary Committee's Subcommittee on the Constitution:
With the assistance of the Internal Revenue Service, we notified, each year for seven years, over six million businesses of their ADA responsibilities and how to obtain information on how to comply.
Our toll-free ADA Information Line, established in 1994, received more than 100,000 calls in Fiscal Year 1999.
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We have published and disseminated 40 technical assistance documents, including approximately 500,000 copies of the ADA Guide for Small Businesses.
All of our technical assistance documents are available 24 hours a day through our fax-on-demand system or on our ADA home page on the Internet, which was viewed at least 6,000,000 times last year.
We have provided funds to several trade associations to develop and disseminate industry-specific guides for hotels and motels, grocery stores, restaurants, builders and contractors, medical professionals, child care providers, and small businesses generally.
We sent a packet of 33 ADA educational documents to approximately 6,000 Chambers of Commerce and placed an ADA Information File, containing 94 ADA publications in 15,000 local public libraries.
Since 1991, the Department of Education has funded 10 regional Disability and Business Technical Assistance Centers, which provide training and technical assistance to businesses in their communities. (Statement of Robert Raben, Assistant Attorney General, May 18, 2000)
Notification—in the form of public education and technical assistance—has been, and continues to be, a central part of the Americans with Disabilities Act.
Attempts to weaken—and even repeal—the ADA continue despite 16 years of evidence that illustrates that the promised ''explosion of litigation'' never materialized. While the majority of businesses of all sizes are able to inexpensively and efficiently accommodate people with disabilities into the workplace, and while opponents may say that they are acting in the interests of people with disabilities, there remains a vocal group of critics who attack the ADA just as they did 16 years ago.
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ADA Watch/NCDR calls on Congress to disregard similar fear tactics and heed the calls for ADA restoration without weakening amendments of any kind.
PREPARED STATEMENT OF THE AMERICAN DIABETES ASSOCIATION
The American Diabetes Association (the Association) applauds the House Judiciary Subcommittee on the Constitution for holding an oversight hearing on the Americans with Disabilities Act (ADA).
Discrimination is one of the most prevalent policy-related issues that adversely affects people with diabetes. The Association has made ending discrimination against people with diabetes a priority and is committed to assisting those who encounter discrimination because of diabetes.
Enacted in 1990, the ADA promised to be a vital means to protect the interests of people with diabetes who face discrimination. It sought to provide an opportunity for all Americans, including people with disabilities, to enjoy independence, economic self-sufficiency and to be judged on the basis of their abilities, rather than their actual or perceived disabilities.
While this landmark legislation has provided numerous benefits, several problematic Supreme Court decisions have very seriously eroded the protections the Act provides to people with diabetes. It is clear from the record that when the ADA was enacted, Congress and President George H.W. Bush intended to protect people with diabetes from discrimination. Since that time, numerous courts have turned people with diabetes away finding, in essence, that they were doing too good of a job managing their disease to meet the statute's definition of disability. As a result, these individuals are not provided with any form of redress, even when they are told explicitly that they are being denied a job because of their diabetes. An employer can refuse to hire an individual with diabetes, claiming that he or she cannot safely perform the job because of his or her diabetes, but then prevent the employee from showing this isn't the case by successfully claiming that the individual's diabetes is so well-controlled that it doesn't rise to the level of ''disability'' as defined by the ADA. Thus, the person is too sick to perform the job, but too healthy to bring a claim for discrimination. And, ironically, the better job a person does in trying to manage his or her diabetes, the less likely that person is to be protected from discrimination.
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At the heart of the difficulties facing people with diabetes and other conditions is the definition of disability. To be protected from discrimination, an individual must have a physical impairment that substantially limits a major life activity, have a record of such an impairment, or be regarded as having such an impairment. People with diabetes began to face serious difficulties meeting this definition following the Supreme Court's decisions in the Sutton trilogy of cases in which the Court determined that whether an individual has a disability must be determined in light of the mitigating measures, such as insulin, that a person uses.(see footnote 16) These problems were exacerbated by the Supreme Court's decision in Toyota Manufacturing v. Williams in which the Court ruled that the phrase ''substantial limitation in a major life activity'' must be ''interpreted strictly to create a demanding standard for qualifying as disabled,'' and that ''substantial limitation'' means ''prevents or severely restricts.''(see footnote 17)
Judicial interpretations regarding who is covered by the ADA have caused confusion in the administration of employment policies and have led to many lengthy and costly court cases. Both employees and employers are required to utilize costly experts for protracted litigation on the simple issue of whether the individual can indeed bring a lawsuit alleging discrimination. These experts delve into the very personal issues surrounding the employee's home life and treatment regimen with some courts even holding that a person isn't covered by the Act if the individual doesn't utilize the regimen that the employer prefers. The results from the courts are inconsistent with some individuals with very well-managed diabetes found to be covered by the federal anti-disability discrimination law, while most people with diabetes, including many with extreme complications from the disease such as amputation, vision loss, severe diabetic neuropathy and retinopathy, and repeated episodes of loss of consciousness, are found not to be protected by the law.
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Once again, the Association thanks the Committee for holding this important oversight hearing. We hope that this conversation leads to an opportunity to fine tune the Act so that no entity can claim that a person is unable to do a job because of his or her diabetes, but then successfully argue the person's diabetes was under such good control that he or she was unprotected by the Act. We look forward to working with the Committee on capitalizing upon the success of the Americans with Disabilities Act, while strengthening the Act to protect people with diabetes.
DOCUMENT SUBMITTED BY EASTER SEALS, OFFICE OF PUBLIC AFFAIRS
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PREPARED STATEMENT OF THE ARC OF THE UNITED STATES AND UNITED CEREBRAL PALSY
The Arc of the United States and United Cerebral Palsy commend the U.S. House of Representatives Committee on the Judiciary, Subcommittee on the Constitution for holding an important oversight hearing on the Americans with Disabilities Act (ADA) on September 13, 2006. We also commend the leadership of Chairman Jim Sensenbrenner, Jr. (R-WI) and Ranking Member John Conyers (D-MI) as well as that of Rep. Steve Chabot (R-OH), Chairman of the Subcommittee on the Constitution and Rep. Jerrold Nadler (D-NY), Ranking Member.
The Arc is a membership organization that is more than fifty-five years old. It is made up of people with intellectual disabilities (mental retardation) and related disabilities, their families, friends, interested citizens, and professionals in the disability field. Together they form nearly 900 state and local chapters of The Arc, the 10th largest non profit organization in the United States. The Arc also advocates for people without intellectual disabilities but who at times will need similar supports and services in order to be as productive and independent as possible. For more than half a century, chapters of The Arc have worked throughout the nation to ensure that their constituents have the supports and services they need, are accepted in their communities, and have control of their own lives.
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United Cerebral Palsy (UCP) is a national nonprofit organization that has also been committed to change and progress for people with disabilities for more than fifty years. The national organization and its nationwide network of more than 100 affiliates strive to ensure the inclusion of people with disabilities in every facet of society. UCP's mission is to advance the independence, productivity, and full citizenship of people with cerebral palsy and other disabilities through commitment to the principles of independence, inclusion, and self-determination. United Cerebral Palsy affiliates serve more than 30,000 children and adults with disabilities and their families every day.
Both The Arc and United Cerebral Palsy are active participants and leaders in the Consortium for Citizens with Disabilities (CCD), the nation's leading coalition of national disability organizations.
First, let us emphasize that the Americans with Disabilities Act is a landmark piece of legislation that guarantees equal opportunity for individuals with disabilities in the areas of employment, state and local government services, public transportation, privately operated transportation available to the public, places of public accommodation and telephone services offered to the general public. Many regard the ADA as the most sweeping piece of civil rights legislation since the Civil Rights Act of 1964; others believe that because of the widespread barriers the ADA has caused to be removed, it is the most far-reaching civil rights law ever enacted. Both The Arc and UCP were instrumental in the enactment of this vital law.
The ADA has made it possible for millions upon millions of people with a vast array of disabilities to participate in and contribute to their communities and society like never before in the history of our nation. This need and desire for full participation is undeniable, and is the very fabric of the freedom and opportunity available to all citizens of the United States.
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The drive for full participation in American society led to the passage of the Rehabilitation Act of 1973 and P.L. 94–142, the Education for All Handicapped Children Act of 1975 (now the Individuals with Disabilities Education Act). The Rehabilitation Act prohibits discrimination on the basis of disability in local programs and activities that receive federal funds. Its enforcement has resulted in improved accessibility for people with disabilities to health care, social services, recreation, housing, transportation and many other areas of everyday life.
P.L. 94–142 guarantees every child with a disability the right to a free, appropriate public education, a right previously denied by school systems to more than 1 million children. The Individuals with Disabilities Education Act raised the bar, requiring the inclusion of students with disabilities into regular classrooms and the establishment of individualized educational programs for students with disabilities.
The passage of the Americans with Disabilities Act in 1990 recognized the fact that while educational and vocational training opportunities for individuals with disabilities were greatly improved, employment opportunities in the private sector and access to places of public accommodation had not kept pace. The promise of the ADA was that people with disabilities would realize the still elusive goal of full and complete participation in American society.
There is no doubt that the country has changed for the better for people with disabilities since the passage of the ADA and that there have been significant changes in the hearts and minds of our society. Taken together, Title I of the ADA, which prohibits discrimination in employment, Title II, which prohibits discrimination in public services including public transportation, and Title III, which prohibits discrimination in public accommodations operated by private entities, should provide protection from discrimination to individuals with disabilities in the same full range of services and facilities available to the public at large.
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Much of the promise of the ADA has worked well in the 16 years since the law's enactment. There is no question that the ADA has transformed America's communities, removing barriers to persons with disabilities in the physical environment, and has substantively advanced the cause of full community participation for persons with disabilities. Yet, there is still much work to do to fully secure the promise of the ADA. We know that hate, fear and prejudice cannot be eradicated through legislation alone.
Title I—It is undeniable that, for many individuals, their rights to discrimination-free employment opportunities under Title I of the ADA have been dramatically diminished by interpretations of the law by the Supreme Court and other courts that do not consider many people with disabilities to have disabilities at all. Under the current definition, many people, including people whose disabilities might be mitigated or aided by medication or other methods, are considered too functional to be regarded as having a disability.
In Sutton v. United Airlines, and Toyota v. Williams, for instance, the Supreme Court interpreted the definition of disability in a restrictive manner that the law never envisioned, placing the burden on people with disabilities to prove that they are entitled to the ADA's employment protections. This creates a situation in which employees can be discriminated against on the basis of their disability but unable to enforce their rights because they cannot meet the standard the courts have set to prove they even have a disability. Also, in University of Alabama v. Garrett, the Supreme Court ruled 5–4 that the 11th Amendment prohibits suits in federal court by state employees to recover money damages under Title I of the ADA.
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These decisions are especially egregious since the unemployment of people with disabilities who wish to work remains a national embarrassment, 16 years after the enactment of the ADA.
There is no other civil rights law in our country that requires claimants to ''prove'' they are members of the class the law seeks to protect in order to enjoy the protections of the law. These court interpretations of the ADA have led our country full circle—to a virtually re-disempowered population—daily facing insufferable discrimination, yet knowing they may well not make it to ''first base'' if they file a complaint, because the Supreme Court has said that people much like themselves do not even have a disability.
Title III—There is an additional issue that has been raised by members of the business community regarding what are considered by the commercial community as unscrupulous, excessive, frivolous and vexatious law suits—filed against business owners who claim they were not aware they were out of compliance with the law's public access provisions. These provisions require businesses to be accessible to people with disabilities so that they can enjoy all of the business's offerings to the same extent as those without disabilities.
While the points about excessive suits may be well-taken, particularly in some instances in some areas of the country, it must be understood that, by and large, the claims raised in these suits are entirely valid. Overly zealous litigation does not mitigate the fact that many of these businesses are absolutely out of compliance with the ADA and denying the benefits of their commercial products or services to an entire population.
RECOMMENDATIONS:
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I. The Arc and United Cerebral Palsy support full restoration of the Title I employment provisions of the Americans with Disabilities Act as they were intended by the Congress.
We support language that clarifies the intent of the Congress that the ADA has full and broad application to anyone who suffers discrimination based on disability, regardless of the severity of the disability, the visibility of the disability or whether or not the disability is mitigated. If discrimination in the workplace occurs, based on a real or perceived disability, it should be understood to come under the purview of the ADA.
II. The Arc and United Cerebral Palsy do not support any legislation (such as the ADA notification Act, HR 2864) or other remedies that would serve to undermine voluntary compliance with the ADA or to encourage ''we'll wait until we're sued'' behavior on the part of business owners. Such ''solutions'' would put a chilling effect on legitimate lawsuits and severely weaken a landmark civil rights law.
The Arc and United Cerebral Palsy would again like to thank the Committee and Subcommittee leadership for this opportunity to submit a statement for the record of the September 13, 2006 hearing The ADA: Sixteen Years Later.
Contact information: For more information, contact Janna Starr, Director of Disability Rights, Family and Technology Policy, The Arc and United Cerebral Palsy Disability Policy Collaboration, 202-783-2229 or starr@thedpc.org.
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LETTER AND PREPARED STATEMENT FROM THE NATIONAL COUNCIL ON INDEPENDENT LIVING
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PREPARED STATEMENT OF THE UNITED SPINAL ASSOCIATION
United Spinal Association appreciates the opportunity to submit this statement for the record for the Oversight Hearing on ''The Americans with Disabilities Act: Sixteen Years Later'', held on September 13, 2006. The United Spinal Association is a national membership organization which provides services for and advocates on behalf of individuals with spinal cord injuries and disorders such as multiple sclerosis, ALS, and spina bifida.
United Spinal Association has been pleased with the progress that has taken place since the passage of the ADA sixteen years ago. Opportunities for employment and access to goods, services and transportation have all been significantly improved for persons with disabilities since the ADA became law.
EMPLOYMENT
United Spinal Association strongly endorses the testimony provided for this hearing by the Honorable Tony Coelho, Chairman of the Epilepsy Foundation. Perhaps the most compelling statement made by Mr. Coelho, a principal author of the ADA, was that the U.S. Supreme Court had effectively excluded him from his own Act through its narrow interpretation of the definition of ''disability'' under Title I of the ADA. Mr. Coelho was specifically referring to the U.S. Supreme Court decisions that dismissed claims brought under the ADA, holding that persons taking medicine or using assistive devices which had alleviated their impairments in whole or in part were not considered ''disabled'' under the ADA.(see footnote 18) As a result of these decisions, persons with disabilities have had significant difficulties establishing that they meet the definition of disability under the ADA. With the definition of disability significantly restricted, persons with disabilities who bring ADA employment cases to court often see them dismissed, regardless of the discriminatory conduct they allege in their complaint.
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United Spinal Association wholly agrees with Mr. Coelho's point that the ADA was ''absolutely intended to cover people with disabilities who use corrective devices or take medication to alleviate their condition.'' We further support the need for corrective legislation to restore the coverage of persons with disabilities to that which was intended by the ADA. We respectfully refer the Subcommittee to the National Council on Disability's 2004 report entitled ''Righting the ADA.'' This report includes insightful analysis into the erroneous interpretations of the ADA by the courts and proposed legislative solutions that would restore the ADA to the model civil rights law that it was meant to be.
PLACES OF PUBLIC ACCOMMODATION
The Subcommittee heard further testimony from a small business purveyor that focused on the practices of attorneys who file frivolous lawsuits under Title III of the ADA to accomplish nothing more than obtaining large attorney fees. According to this testimony, notice to small businesses regarding their obligations under the ADA is lacking, and there remains significant confusion as to what constitutes compliance with the law.
While United Spinal Association does not condone the practices of a few unethical lawyers, we believe that a law that is over sixteen years old is not in need of an additional notice provision, as has been considered by Congress. The law clearly requires places of public accommodation to make its goods and services accessible to persons with disabilities. Spending resources to remove architectural barriers is only required when it is readily achievable to do so. While the Department of Justice provides adequate enforcement of Title III requirements, the case remains that problems with access to small and large businesses alike for persons with disabilities is a complaint-driven process. It is United Spinal Association's experience that businesses do want to comply with the provisions of the ADA and make their product accessible to persons with disabilities. In its sixty plus years advocating for persons with disabilities, United Spinal Association has realized that the best way to seek compliance is through informal but persistent requests for a business to make itself accessible. Businesses that refuse to do so leave themselves at the mercy of litigating a case that may result in attorney's fees, which are permitted under the ADA.
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United Spinal Association does not agree that there is a need to legislate additional notice for businesses to become compliant under the ADA. The past sixteen years since the ADA's enactment, and the work and resources of the U.S. Department of Justice and other credible advocacy organizations has provided more than sufficient notice that businesses must make their goods and services accessible to persons with disabilities.
United Spinal Association appreciates the opportunity to provide this statement, and remains available to work with Congress to ensure that the provisions of the ADA are enforced with a result that truly provides equal opportunities for all persons with disabilities.
ENFORCEMENT STATISTICS SUBMITTED BY THE DEPARTMENT OF JUSTICE, SEPTEMBER 11, 2006
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(Footnote 1 return)
Shockingly, in a recent report, the Equal Employment Opportunity Commission (EEOC) found that ''Over the past 20 years, the federal government's efforts to improve the participation rate [in the federal work force] of employees with targeted disabilities have failed to result in any significant progress.'' See EEOC Annual Report of the Federal Work Force, Fiscal Year 2004, EEOC, available at http://www.eeoc.gov/federal/fsp2004/index.html. (The targeted disabilities include ''convulsive disorders,'' along with deafness, blindness, missing extremities, partial paralysis, complete paralysis, mental retardation, and mental illness.) Just this past July, EEOC acknowledged that people with targeted disabilities have dropped to less than one percent of the permanent federal workforce, continuing a long-term decline. See EEOC press release of 6/28/06, available at http://www.eeoc.gov/press/6-28-06.html.
(Footnote 2 return)
See, e.g., Claudia Center and Andrew J. Imparato, Redefining ''Disability'' Discrimination: A Proposal to Restore Civil Rights Protections for All Workers, 14 Stanford Law School Law & Policy Review, 321 (2003) (Center Article); Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab. L. 91, 154 (2000); Righting the Americans with Disabilities Act, National Council on Disability Report (2004) (containing NCD's legislative proposal intended to restore the protections of the Americans with Disabilities Act that have been restricted by several U.S. Supreme Court decisions over the past few years), available at http://www.ncd.gov/newsroom/publications/2004/publications.htm; Steny H. Hoyer, Not Exactly What We Intended, Justice O'Connor, Wash. Post, Jan. 20, 2002, at B01
(Footnote 3 return)
Center Article at 322.
(Footnote 4 return)
Sutton v. United Airlines, 527 U.S. 471 (1999); Murphy v. United Parcel Service, 527 U.S. 516 (1999); Albertson's v. Kirkingburg, 527 U.S. 555 (1999).
(Footnote 5 return)
See, e.g., Toyota v. Williams, 534 U.S. 184 (2002); Chenoweth v. Hillsborough County, 250 F.3d 1328 (11th Cir. 2001).
(Footnote 6 return)
42 U.S.C. §12102(2).
(Footnote 7 return)
EEOC. v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001).
(Footnote 8 return)
Todd v. Academy Corp., 57 F. Supp. 2d 448 (S.D. Tex. 1999).
(Footnote 9 return)
Arnold v. City of Appleton, Wisconsin., 97 F. Supp. 2d 937 (E.D.Wisc. 2000).
(Footnote 10 return)
Steny H. Hoyer, Not Exactly What We Intended, Justice O'Connor, Wash. Post, Jan. 20, 2002, at B01.
(Footnote 11 return)
Congressman Hoyer's speech is available at http://www.nyls.edu/pages/2786.asp.
(Footnote 12 return)
Katherine Hsu Hagmann-Borenstein, Much to Ado About Nothing: Has the U.S. Supreme Court's Sutton Decision Thwarted a Flood of Frivolous Litigation?, 37 Conn. L. Rev. 1121 (2005). This commentator notes that ''it appears that the relatively liberal California and Massachusetts state laws have had little negative effect, while they have greatly enhanced the protections afforded to the states' disabled populations. Plaintiffs with legitimate claims who sue under the state statutes are much less likely to be thrown out of court based on the definition of 'disability.' Yet courts in California and Massachusetts retain many methods to dismiss frivolous suits. In sum, these states have achieved a better balance between plaintiffs' and defendants' rights than exists under federal law.'' Id. at 1124–25.
(Footnote 13 return)
CCD Principles Underlying Proposed Legislation Prohibiting Discrimination in Employment Against Persons with Fully or Partially Correctable and/or Episodic Conditions, July 2005, attached.
(Footnote 14 return)
42 USC Sec. 12182.
(Footnote 15 return)
See note 2.
(Footnote 16 return)
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
(Footnote 17 return)
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197–198 (2002).
(Footnote 18 return)
Sutton v. United Airlines, 527 U.S. 471 (1999); Murphy v. United Parcel Service, 527 U.S. 516 (1999); Albertson's v. Kirkingburg, 527 U.S. 555 (1999).