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.