Filed under authority of the order of the Senate of August 2 (legislative day, January 3), 1989

Mr. KENNEDY, from the Committee on Labor and Human
Resources, submitted the following

REPORT

together with

ADDITIONAL VIEWS

[To accompany S. 933]

The Committee on Labor and Human Resources, to which was referred the bill (S. 933) to establish a clear and comprehensive prohibition of discrimination on the basis of disability, having considered the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass.

On August 2, 1989, the Committee on Labor and Human Resources, by a vote of 16-0, ordered favorably reported S. 933, the

Americans with Disabilities Act of 1989 (the ADA), with an amendment in the nature of a substitute.

The bill is sponsored by Senator Tom Harkin, chairman of the Subcommittee on the Handicapped, and cosponsored by Senators Kennedy, Durenberger, Simon, Jeffords, Cranston, McCain, Mitchell, Chafee, Leahy, Stevens, Inouye, Cohen, Gore, Packwood, Riegle, Boschwitz, Graham, Pell, Dodd, Adams, Mikulski, Metzenbaum, Matsunaga, Wirth, Bingaman, Conrad, Burdick, Levin, Lieberman, Moynihan, Kerry, Sarbanes, Heinz, Glenn, Shelby, Pressler, Hollings, Sanford, Wilson, Sasser, Dixon, Kerrey, Robb, Fowler, Rockefeller, Biden, Bentsen, Specter, DeConcini, Kohl, Lautenberg, D'Amato, Dole, Hatch, Warner, Pryor, and Bradley.

II. SUMMARY OF THE LEGISLATION

The purpose of the ADA is to provide a clear and comprehensive national mandate to end discrimination against individuals with disabilities and to bring persons with disabilities into the economic and social mainstream of American life; to provide enforceable standards addressing discrimination against individuals with disabilities, and to ensure that the Federal government plays a central role in enforcing these standards on behalf of individuals with disabilities.

The ADA defines "disability" to mean, with respect to an individual: a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.

Title I of the ADA specifies that an employer, employment agency, labor organization, or joint labor-management committee may not discriminate against any qualified individual with a disability in regard to any term, condition or privilege of employment. The ADA incorporates many of the standards of discrimination set out in regulations implementing section 504 of the Rehabilitation Act of 1973, including the obligation to provide reasonable accommodations unless it would result in an undue hardship on the operation of the business.

The ADA incorporates by reference the enforcement provisions under title VII of the Civil Rights Act of 1964 (including injunctive relief and back pay). Title I goes into effect two years after the date of enactment. For the first two years after the effective date, employers with 25 or more employees are covered. Thereafter, employers with 15 or more employees are covered.

Title II of the ADA specifies that no qualified individual with a disability may be discriminated against by a department, agency, special purpose district, or other instrumentality of a State or a local government. In addition to a general prohibition against discrimination, title II includes specific requirements applicable to public transportation provided by public transit authorities. FinalÎy, title II incorporates by reference the enforcement provisions in section 505 of the Rehabilitation Act of 1973.

With respect to public transportation, all new fixed route buses must be made accessible unless a transit authority can demonstrate that no lifts are available from qualified manufacturers. A

pubilc transit authority must also provide paratransit for those individuals who cannot use mainline accessible transportation up to the point where the provision of such supplementary services would pose an undue financial burden on a transit authority.

Title II takes effect 18 months after the date of enactment, with the exception of the obligation to ensure that new public buses are accessible, which takes effect for solicitations made 30 days after the date of enactment.

Title III of the ADA specifies that no individual shall be discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation operated by a private entity on the basis of a disability. Public accommodations include: restaurants, hotels, doctor's offices, pharmacies, grocery stores, shopping centers, and other similar establishments.

Existing facilities must be made accessible if the changes are "readily achievable" i.e., easily accomplishable without much difficulty or expense. Auxiliary aids and services must be provided unless such provision would fundamentally alter the nature of the program or cause an undue burden. New construction and major renovations must be designed and constructed to be readily accessible to and usable by people with disabilities. Elevators need not be installed if the building has less than three stories or has less than 3,000 square feet per floor except if the building is a shopping center, shopping mall, or offices for health care providers or if the Attorney General decides that other categories of buildings require the installation of elevators.

Title III also includes specific prohibitions on discrimination in public transportation services provided by private entities, including the failure to make new over-the-road buses accessible five years from the date of enactment for large providers and six years for small providers.

The provisions of title III becomes effective 18 months after the date of enactment. Title III incorporates enforcement provisions in private actions comparable to the applicable enforcement provisions in title II of the Civil Rights Act of 1964 (injunctive relief) and provides for pattern and practice cases by the Attorney General, including authority to seek monetary damages and civil penalties.

Title IV of the ADA specifies that telephone services offered to the general public must include interstate and intrastate telecommunication relay services so that such services provide individuals who use nonvoice terminal devices because of disabilities (such as deaf persons) with opportunities for communications that are equivalent to those provided to individuals able to use voice telephone services.

Title V of the ADA includes miscellaneous provisions, including a construction clause explaining the relationship between the provisions in the ADA and the provisions in other Federal and State laws; a construction clause explaining that the ADA does not disrupt the current nature of insurance underwriting; a prohibition against retaliation; a clear statement that States are not immune from actions in Federal court for a violation of the ADA; a direc

tive to the Architectural and Transportation Barriers Compliance Board to issue guidelines; and authority to award attorney's fees.

III. HEARINGS

Hearings were held before the Labor and Human Resources Committee and the Labor and Human Resources' Subcommittee on the Handicapped on legislation to establish a clear and comprehensive prohibition of discrimination on the basis of disability on September 27, 1988, May 9, May 10, May 16 and June 22, 1989.

On September 27, 1988, a joint hearing was held before the Subcommittee on the Handicapped and the House of Representatives' Subcommittee on Select Education on S. 2345, the Americans with Disabilities Act of 1988. Among the witnesses testifying were: Sandra Parrino, Chairperson, National Council on the Handicapped; Admiral James Watkins, Chairperson, President's Commission on the Human Immunodeficiency Virus Epidemic; Mary Linden of Morton Grove, Illinois who lived in an institution; Dan Piper, an 18-year old with Down Syndrome and Sylvia Piper of Ankeny, Iowa; Jade Calegory, a 12-year old movie actor with Spina Bifida from Corona Del Mar, California; and Lakisha Griffin from Talladega, Alabama, who attends the Alabama School for the Blind.

Also testifying were: Judith Heumann, World Institute on Disability, Berkeley, California; Gregory Hlibok, student-body president of Gallaudet University, Washington, DC; Belinda Mason from Tobinsport, Indiana who has AIDS; and W. Mitchell from Denver, Colorado, who uses a wheelchair and who was severely burned.

David Saks, on behalf of the Organization for Use of the Telephone, Baltimore, Maryland, also provided testimony.

On May 9, 1989, the Committee on Labor and Human Resources held a hearing on S. 933, the Americans with Disabilities Act of 1989. Among the witnesses were: Tony Coelho, the Majority Whip of the House of Representatives; I. King Jordan, President of Gallaudet University, Washington, DC; Justin Dart, chairperson, the Task Force on the Rights and Empowerment of Americans with Disabilities, Washington, DC.

Also testifying were: Ms. Mary DeSapio, a cancer survivor; Joseph Danowsky, an attorney who is blind; Amy Dimsdale, a college graduate who is quadriplegic and who after 5 years of looking for work remains unemployed; Harold Russell, chairman, President's Committee on Employment of People with Disabilities, Washington, DC; Zachery Fasman, U.S. Chamber of Commerce, Washington, DC; Lawrence Lorber, American Society of Personnel Administrators, Washington, DC; and Arlene Mayerson, Disability Rights Education and Defense Fund, Berkeley, California.

Others providing testimony were: Barbara Hoffman, Vice President of the National Coalition for Cancer Survivorship; Robert McGlotten, Director, Department of Legislation, AFL-CIO; the Associated General Contractors of America; and the National Organizations Responding to AIDS.

On May 10, the Subcommittee on the Handicapped heard testimony from Senator Bob Dole, Senator from Kansas and Senate Mi

nority Leader; Perry Tillman, Paralyzed Veterans of America, New Orleans, Louisiana; Ken Tice, Advocating Change Together, Minneapolis, Minnesota; Lisa Carl who has cerebral palsy and her mother, Vickie Franke, Tacoma, Washington.

Also testifying were: the Honorable Neil Hartigan, Attorney General of the State of Illinois; Ron Mace, Barrier Free Environments, Raleigh, North Carolina; William Ball, Association of Christian Schools International, Harrisburg, Pennsylvania; Sally Douglas, National Federation of Independent Business, Washington, D.C.; Malcolm Green, National Association of Theater Owners, Boston Massachusetts; and Robert Burgdorf Jr., National Easter Seal Society, Washington, D.C.; Betty and Emory Corey, Baltimore, Maryland; and Ilene Foster, Baltimore, Maryland.

In addition, the Subcommittee heard testimony from Paul Taylor, National Technical Institute for the Deaf, Rochester, New York; Robert Yaeger, Minnesota Relay Service, Minneapolis, Minnesota; and Gerald Hines, AT&T, Basking Ridge, New Jersey.

Others providing testimony included: Chai Feldblum, Tony Califa, Nan Hunter, and Morton Halperin of the American Civil Liberties Union; Peter Bradford, chairman of the State of New York Public Service Commission; and Paul Rodgers and Caroline Chambers on behalf of the National Association of Regulatory Utility Commissioners.

On May 16, the Subcommittee on the Handicapped heard testimony from: Michael McIntyre, Queens Independent Living Center, Jamaica, New York; Mark Johnson, ADAPT, Alpharetta, Georgia; Laura Oftedahl, Columbia Lighthouse for the Blind, Washington, D.C.; and Dr. Mary Lynn Fletcher, Director, Disability Services, Loudon County, Tennessee.

Also testifying were: J. Roderick Burfield, Virginia Association of Public Transit Officials; Harold Jenkins, Cambria County Transit Authority, Johnstown, Pennsylvania; Dennis Louwerse, American Public Transit Association, Reading, Pennsylvania; Charles Webb, American Bus Association, Washington, D.C.; James Weisman, Eastern Paralyzed Veterans of America, New York, New York, and Tim Cook, National Disability Action Center, Washington, D.C.

Others providing testimony were: the Virginia Council for Independent Living; Wayne Smith, Executive Director of the United Bus Owners of America; and Theodore Knappen, Senior Vice President of Greyhound Lines, Inc.

On June 22, the Labor and Human Resources Committee heard testimony from Richard L. Thornburgh, Attorney General of the United States, and Senator Lowell P. Weicker, Jr., chief sponsor of the Americans with Disabilities Act of 1988.

IV. NEED FOR THE LEGISLATION

The Committee, after extensive review and analysis over a number of Congresses, concludes that there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the areas of employment in the private sector, public accommodations, public services, transportation, and telecommunications.