--------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00025Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 24:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) lobbyists argued that such phrases as undue hardship, readily achievable, and readily accessible, were inadequately defined, and would therefore invite frivolous law suits. Businesses, they argued, would not be able to know whether they were in compliance. A second concern was the potential cost of accommodations. One proposed solution was to have the government share some of the burden through tax credits and other mechanisms. Third, numerous covered entities lobbied to have a more concrete definition of disability, ideally one that listed every covered disability instead of relying on a flexible definition. Fourth, small busi nesses argued that they should be exempt from the public accommodations requirements, or at least be phased in more gradually, because small businesses were exempt from other civil rights legisla tion. Fifth, scores of organizations protested the enforcement mechanisms available under the ADA, especially private litigation and the availability of punitive damages. Sixth, many business groups proposed that the ADA should preempt all other disability laws, so that there would be no confusion between different statutes, and no possibility for bringing multiple law suits for one violation. The business community, however, faced a significant problem in educating and lobbying Congress: it had a much more difficult time than the disability community in keeping its coalition together. By the end of the fall of 1990, the coalition had begun to break down, as organizations focused on those provisions that affected them most. They were, therefore, unable to present a united front to Congress. Nevertheless, during the course of the House deliberations, business groups succeeded in obtaining many of the changes they sought. In response to a variety of objections posed by business groups, some House members took the initiative in undertaking vigorous publicity campaigns against the ADA. Congressman Dan Burton (R-IN), for example, sent out a flyer in which he enumerated some of the more onerous provisions of the ADA. According to Burton, the ADA would federalize American private enterprise, wreak havoc in the workplace, crush small and medium-sized businesses, and confer federal approval on homosexual/ heterosexual domestic partners. He also attached an editorial by Gene Antonio that characterized the ADA as the last ditch attempt of the remorseless sodomy lobby to achieve its national agenda before the impending decimation of AIDS destroys its political clout. This bill simply must be stopped . . . and will become law unless there is a massive public outcry immediately. The beauty of the ADA was it was an effort where people in the grass roots were just as important, if not more important, than people in Washington. Liz Savage Similarly, Congressman Ron Marlenee (R-MN) issued a flyer to all the postal patrons in his district. The headline read: Americans With Disabilities Act: Washington s Latest Way to Crush Businesses, Schools, While Hurting The Disabled. A subheading announced: ADA Bill To Give Federal Endorsement For Homosexual Partners and AIDS. Congressman Chuck Douglas (R-NH) distributed a letter that pictured a man pointing a gun at the reader. Berserkers: Time Bombs in the Workplace, the headline de clared. Douglas favored the general idea of the ADA, but said the bill needs dramatic rewrit ing. He was especially with preventing per sons with mental illness from endangering their coworkers and thus proposed excluding such persons from protection under the ADA. The disability community was more unified than the business community, but the heightened activity of the business community during House deliberations demanded a strong response from the disability community. The beauty of the ADA, said Liz Savage, was it was an effort where people in the grass roots were just as important, if not more important, than people in Washington. To facilitate disability grass roots involvement, leaders such as Marilyn Golden developed regional coordination networks: it was too complicated for one or even a handful of people to manage the calls for an entire nation. While in some cases there was a coordinator for an individual state, most states were organized in groups under a regional coordinator. The regional coordinators were selected because they were well known in their states. They came from a variety of organizations, often from independent living centers. During the House deliberations, the ADA coalition coordinated its lobbying efforts with each of the scheduled committee mark-ups. As the bill went through each committee, members of the legal team responded to virtually every business position paper by issuing rebuttals. They would proceed point-by-point through amendment lists and either show how claims were in error or why the disability community took a different position. ADA Lobbyists used this information in visiting members of the House, presenting a Disability Rights 101 education course. Lobbyists were not just Washingtonians. Often at their own expense, persons with disabilities flew and drove in from around to be part of the Washington effort. The National Council on Independent Living (NCIL), for example, ensured that at least one of its representatives resided in Washington throughout the congressional deliberations. On many occasions, Liz Savage offered her apartment as a sort of boarding house for out-of-town visitors. Once they arrived in Washington, grass roots advocates met with leaders in the ADA coalition to get weekly briefings and plot strategy. They also coordinated their lobbying techniques to ensure that they were presenting a unified message to members of Congress. Grass roots participation in lobbying helped humanize the ADA. Many members were seeing persons with disabilities for the first time and viewing them as assertive citizens. This helped break down the stereotype of persons with disabilities as dependent children. It also illustrated that disabled people could make a difference and offer valuable contributions to society if only given the chance. Only a minority of people with disabilities, however, could make personal trips to Washington. Others did what they could in their local communities. Kathleen Kleinmann, for example, wanted to do whatever she could do from her home in rural Pennsylvania. She felt she simply had to be a part of the action. We had that urgency about us, she said. It was contagious. It spread through the whole country. For Kleinmann and many others, NCIL was the crucial link to activities taking place in Washington. Through it they could learn when and to whom they should write letters. Moreover, people in various local committees applied pressure on the local offices of their representatives. They also contested erroneous public statements about the ADA by calling into local radio shows and making local television appearances. The President has endorsed it. The Senate has overwhelmingly passed it. Now it s up to you. Don t weaken a law that will strengthen America. New Year s Postcard The largest single letter-writing cam paign took place between the 100th and 101st Congresses, during the winter of 1989-90. The campaign was directed at members of the House of Representatives, who were frustrating many in the disability community by taking so much lon ger than the Senate and proposing weakening amendments. Thousands of New Year s postcards were mailed throughout the country with a cover letter from James S. Brady, soliciting individuals to mail to them to their congressman. The front of the card printed ADA in giant letters for a background. Set over it was the statement: Our New Year s Wish For Congress: Open the Doors to America. Pass the Americans with Disabilities Act. On the back it said: The President has endorsed it. The Senate has overwhelmingly passed it. And in larger letters: Now it s up to you. Don t weaken a law that will strengthen America. Space was provided for people to add their own personal messages. They were encouraged to send cards to their own Congressperson, committee members from their states, Speaker of the House Foley, and Minority Leader Michel. In addition to lobbying, sending letters, and making phone calls, persons in the disability community, both inside and outside Washington, served the important function of presenting testimony at congressional hearings. As with the hearings of 1988 and the Senate hearings of 1989, the House s ADA hearings included powerful testimony about the need for civil rights protections for persons with disabilities. Persons from the disability community also offered their technical expertise on specific issues and countered the claims of those who proposed weakening amendments. A final way in which the disability community exerted pressure on Congress and the Bush administration was through demonstrations. One of the most significant protests was organized by ADAPT in September, 1989. In a long ADAPT tradition, the demonstration coincided with the annual meeting of APTA in Atlanta, where Secretary of Transportation Samuel K. Skinner was expected to present an address. On Sunday, September 24, about 100 people throughout the U.S. and Canada, most of whom were in wheelchairs, protested at the entrance of the Hilton Hotel convention site. Stephanie Thomas, a spokesperson for ADAPT, said they were protesting APTA because of its opposition to the ADA. We re here until the order gets signed. They ll have to carry everybody out or arrest them. Mike Auberger At about ten o clock the following morning, on September 25, more than 100 disability activists occupied the main floor of the Richard B. Russell Federal Building and blockaded the main entrances. Some attached chains and bicycle locks to their necks and locked them to door handles so that security could not simply lift them from their wheelchairs. ADAPT demanded that Secretary Skinner sign an executive order requiring the purchase of accessible vehicles for all new transit buses, which would take effect immediate. We re here until the order gets signed, said Michael W. Auberger, one of the co-founders and leading org anizers for ADAPT. They ll have to carry everybody out or arrest them. Later that day, at around six o clock, Atlanta police and security officers from the General Services Administration (GSA) did just that. They used bolt cutters to remove demonstrators from the building. About two hours later, only a few protesters still remained in the building. From inside the building, Marca Bristo contacted Evan Kemp, who told her to call Boyden Gray directly. As she was on the phone with Gray, a police officer insisted that she leave the building. Bristo left, but only after she handed the phone to the officer to prove she was talking to Gray from the White House. Gray subsequently contacted President Bush. Within minutes, police and other security officers began letting the disability activists back into the building. After speaking with Gray, President Bush had personally intervened to inform Gary C. Carson, Regional General Services Administration (GSA) administrator, that the protesters should be allowed to stay. Carson attributed Bush s action to the president s deep commitment to the handicapped and their right to protest. Apparently, Bush was also concerned about the alternative of having them stay overnight outside the building in a chilling rain. Auberger and others welcomed Bush s intervention, but threatened to stay until Skinner signed the executive order they demanded. The sit-in ended the following afternoon subsequent to an agreement between the Urban Mass Transportation Administration (UMTA) and leaders of ADAPT. UMTA agreed to help facil itate a process of identifying and interfering with transit operators that were rushing to buy inaccessi ble buses before the ADA was enacted. UMTA also agreed to relay to Secretary Skinner ADAPT s desire to see more effective implementation of the Air Carriers Access Act of 1986, which required accessibility for air travel. The agreement fell short of ADAPT s demands. Yet it appeared to be the best possible action, since UMTA explained that Skinner did not have the authority to issue such an executive order. ADAPT, however, was not finished with its demonstrations. The next day, Wednesday, September 27, protesters effectively shut-down the Atlanta Greyhound terminal for several hours by encircling the terminal and blocking buses. They chanted: We Will ride! Access is our civil right! One protester even climbed into the bus, sat in the driver s seat, and chained himself to the steering column. Only four buses carrying about 80 passengers left the terminal during the protest, compared with a typical 20 buses carrying 600 passengers. The purpose of the demonstration was to urge Greyhound and other intercity bus services to begin purchasing lift-equipped buses. The protest ended, however, with the arrest of over 20 activists, who received $75 fines the following day. Five-and-a-half months later, amidst seemingly stalled House deliberations, ADAPT organized another demonstration the Wheels of Justice campaign. Disability activists from around the country gathered on Sunday night, March 11, to plan the week s events. Wade Blank and Michael Auberger, co-founders of ADAPT, were there. Other leading ADAPT organizers included Bob Kafka, Mark Johnson, Stephanie Thomas, Dianne Coleman, Ben Freeman, and Bernard Baker. At noon the following day, hundreds of activists associated with ADAPT and other disability organizations assembled at the White House. From there they marched and rolled to the Capitol, where they gathered at the west front to listen to speeches from ADA supporters. On the way, they chanted: What do we want? ADA! When do we want it? Now! At the Capitol, Justin Dart, now Chairman of the President s Committee on the Employment of People with Disabilities, addressed the crowd as pioneer patriarchs of the twentieth century. He likened the ADA to the Declaration of Independence and urged those assembled to go forward, in We are American citizens and we will be part of the American dream. Justin Dartthe spirit of Ghandi and Martin Luther King, with love, with reasoned truth, with unyielding insistence on respect for the sacred value of each human life. Concluding with a demand for immediate passage of the ADA, Dart declared: We are American citizens and we will be part of the American dream. Congresswoman Patricia Schroeder and Congressman Major Owens also spoke in support of the ADA, likening the disability --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00026Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 25:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) rights movement to the civil rights movement of the 1960s. Additional speakers included I. King Jordan, President of Gallaudet University, Evan Kemp, Chairman of the EEOC, and James Brady, former press secretary for President Ronald Reagan. Auberger was the final speaker. He, too, likened the efforts of those gathered to earlier movements for equality. He described the plight of people with disabilities and urged that disability activists must remain steadfast in demanding civil rights. Then, sitting in his wheelchair at the base of the Capitol steps, Auberger observed that the steps were a symbol of discrimination against the disabled. Yet, he said, he would not let them continue to be an obstruction. We will not let any barrier prevent us from the equality that is rightfully ours. As he concluded his speech in front of television cameras, many individuals left their wheelchairs behind to climb the Capitol steps a symbol of their fortitude in surmounting barriers. On Tuesday, March 13, ADAPT continued its campaign by meeting with House Speaker Foley (who assumed the House leadership position after Congressman Wright s resignation), Republican Leader Michel, and Congressman Hoyer in the Capitol Rotunda. Leaders of the protest insisted on immediate passage of the ADA. When Foley informed the crowd that two months was a likely time frame, more than 100 demonstrators began chanting: ADA Now! Foley and Michel subsequently departed. Hoyer stayed a little longer and departed with a thumbs-up signal. Then, Capitol police told the demonstrators to leave, as demonstrating in the Capitol is against federal law. Most demonstrators refused, however, and formed a tight circle; many chained their wheelchairs together. They chanted: Access is a civil right! and The people united will never be defeated! But police officers, many protected with riot gear, began using chain-cutters and torches to break through the links demonstrators had fashioned. For about two hours, police reportedly arrested 104 people whom charged them with demonstrating in the Capitol building. The next day, Wednesday, March 14, protesters assembled in Congressmen Shuster and Fish s offices. Others crowded the Energy and Commerce Committee mark-up session. Numbers dwindled over the rest of the week, however, as many were appearing in court. The Wheels of Justice campaign did not bring immediate passage of the ADA. And the ADAPT demonstration in Atlanta did not result in an executive order that required the purchase only of accessible transit buses. Yet the protesters were more concerned with demonstrating the lengths to which persons with disabilities would go to secure their rights. In that sense they succeeded. The events were also an indication that further demonstrations could follow if the ADA got stuck in a quagmire. Combined with the other education and lobbying efforts of the ADA coalition, these activities underscored the nationwide, grass roots demand for passage of the ADA. Although such demonstrations reflected unity within the disability community, there was not complete unanimity among all people with disabilities. The National Federation of the Blind (NFB), for example, was outspoken in its reservations about the ADA. At its 1989 convention in Denver, Colorado, NFB passed a resolution declaring that if the ADA could not be amended to cure its weaknesses, it should be opposed. Early in 1990, Kenneth Jernigan of NFB wrote a brief, Reflec tions on the Americans with Disabilities Act, to explain NFB s position. The primary concern, he said, was that the ADA might create additional problems for blind people as it attempted to eliminate other problems. In particular, NFB feared that the ADA might force people with disabilities to accept the special accommodations mandated by the bill and . . . [prevent people] from using the same facilities and services that are available to others. Such accommodations, Jernigan said, may themselves become discriminatory, and make the ADA a source of unintentional discrimination against some persons with disabilities. For instance, NFB cautioned that the provision of specially-equipped rooms in hotels might require blind persons to use specific rooms and prevent them from staying near friends. To NFB, the alleged need for this accommodation (or for street corners with audible sounds for crossing and specially-designated seats on buses) was based on the false assumption that sight is essential for successful performance of most tasks. Blindness, said Jernigan, is not generally disabling. Consequently, unwanted accommodations falsely portrayed blind people as limited in ways that they are not and imposed unfair and unequal restrictions. As a solution, NFB proposed an amendment stipulating that people with disabilities had the right not to participate in programs or activities specially designed for disabled persons. During the fall of 1989, NFB worked with John Wodatch of the Justice Department to elicit the backing of the administration. Following a meeting with White House staff on January 19, 1990, NFB representatives were confident that they would obtain their proposed amendment. But, Jernigan said, if the amendment is rejected, we must oppose the bill as vigorously as we can . . . we will do anything we can to slow it down and block [the ADA s] passage. He concluded his Reflections with the cautionary statement: Simply because a thing calls itself civil rights, that does not mean that it is civil rights. NFB eventually attained its goal through an additional clause to the ADA: an individual with a disability shall not be denied the opportunity to participate in . . . programs or activities that are not separate or different. Subsequently, NFB did not oppose the ADA. The ADA and the House Committees: Three Phases Part of the master strategy for passing the ADA involved organizing the committee deliberations in the House. Leading ADA supporters among Democrats, including Congressmen Coelho, Hoyer, and Owens, wanted to start the bill in a committee that was familiar with and favorable to civil rights. In consultation with each of the committee Chairs Augustus F. Hawkins (D-CA), for Education and Labor; John D. Dingell (D-MI), for Energy and Commerce; Glenn M. Anderson (D-CA), for Public Works and Transportation; and Jack Brooks (D-TX), for Judiciary they decided to begin with Education and Labor. Several factors made this a logical choice. First, most of its Democratic members supported disability rights. Second, Democratic leadership included Congress man Owens, Chairman of the Subcommittee on Select Education, who had created the Task Force on the Rights and Empowerment of People with Disabilities and was a strong advocate of civil rights and grass roots activism. Third, the ranking Republican for the Subcommittee on Select Education was Congressman Bartlett, who had a strong record on disability policy and was instrumental in shaping the mission of NCD. Bartlett, in fact, urged Republicans on other committees to promote letting Education and Labor go first. Fourth, Pat Morrisey, a leading Republican staff member, had also worked extensively with disability policy and, in addition, had a disability. Ideally, the Education and Labor Committee would complete its review of the ADA as a starting point for the rest of the committees. Although committees operate differently, they tend to follow a similar process of delibera tion. The committee chair and committee members give overall guidance to their staff regarding what they would desire to achieve. Then, hearings are scheduled, designed, and held. The purpose of hearings is to solicit justification and document the need for the bill, as well as to hear and discuss reservations about the bill. As much as possible, staff try to settle issues raised by the hearings on their own, which is generally the vast majority of a given bill. For issues that remain unresolved, however, there is a ladder of conflict resolution. Usually, the first step the staff take is to prepare memos for their congressmen about the issues in dispute and then obtain the member s feedback, which can be used in negotiations. If this proves inadequate, members meet directly with one another. Finally, issues that members cannot settle get carried to committee mark-up sessions where they can be introduced as amendments for member voting. Typically, mark-up sessions begin with the consideration of one collective amendment that incorporates all the agreed upon changes. Then, members proceed to discuss and vote upon individual amendments concerning the disputed issues. Although the activities of all four committees often overlapped (see Appendix C for a chronology), there were three distinguishable phases in the committees review process. Delibera tions by the Education and Labor Committee marked the first phase. A focus on transportation provisions by two committees, the Energy and Commerce Committee and the Public Works and Transportation Committee, constituted the second phase. Activities by the Judiciary committee represented the third and final phase before moving the deliberations to the House floor. phase I: education and labor committee The Education and Labor Committee conducted the most thorough evaluation of the bill, at least with respect to the volume of testimony received. Two subcommittees had jurisdiction over the bill: Select Education, chaired by Congressman Owens, and Employment Opportunities, chaired by Matthew G. Martinez (D-CA). In the interest of facilitating rapid consideration of the ADA, Owens negotiated with Martinez to have Employment Opportunities yield to Owens s Select Education Subcommittee. Moreover, Congressman Hawkins, Chairman of the full committee, essentially deferred to Owens for leading the committee s consideration. In addition to the two hearings held in 1988, the Subcommittee on Select Education hosted four hearings between July 18 and October 6, 1989, two of which were joint hearings with the Employment Opportunities Subcommittee. Congressman Owens welcomed Hoyer as the leader in committee negotiations, because it gave Owens an opportunity to be a Watch Dog for the disability community.Perhaps the most significant of the four hearings was the field hearing of the Subcommittee on Select Education held on August 28, in Houston, Texas. Lex Frieden and Justin Dart had recommended such a hearing to Congressman Owens due to concerns that Congressman Bartlett might not be fully supportive of the ADA be cause of his close associations with such busi ness groups as NFIB. Owens approved of the idea and enjoyed playing the role of bringing the U.S. Congress to local communities. The purpose of the field hearing was to demonstrate to Bartlett that his own constituents strongly supported the ADA. Hundreds of persons with disabilities attended the hearing and an open forum that followed. At the hearing, businessmen, government officials, and transit authorities gave a ringing endorsement to the ADA. And dozens of people with disabilities spoke about their personal experiences at the forum. The proceedings appeared to have a significant impact on Bartlett. Later that evening, he told Frieden and others that he had been kind of a skeptic of the ADA. But the day of discussions made me a believer, and he pledged to do what he could to support the legisla tion. Contrary to the typical committee process, where staff settle most disagreements following the hearings, negotiations for the Committee on Education and Labor were led by Congressmen Hoyer and Bartlett in a lengthy series of member-to-member meetings. This was also a unique circumstance because Hoyer was not even on the committee. Although Chairman Hawkins could have exercised his authority over the full committee, he graciously, as Ralph Neas described it, allowed Hoyer to take the lead. This gave Hoyer, the House manager of the ADA, an opportunity to set the tone for the rest of the House deliberations. Congressman Owens welcomed Hoyer as the leader of committee negotiations, because it gave Owens an opportunity to be a Watch Dog for the disability community: he could help ensure that negotiations did not result in a net loss for people with disabilities. Congressman Hoyer spoke mostly on behalf of Democrats and the disability community, Congressman Bartlett mostly on behalf of Republicans and the business community. But they shared enough in common to produce extraordinarily productive negotiations.Congressmen Hoyer and Bartlett represented different parties and different clien tele Hoyer spoke mostly on behalf of Dem ocrats and the disability community, Bartlett mostly on behalf of Republicans and the bus iness community. But they shared enough in common to produce extraordinarily produc tive negotiations. Bartlett wanted to foster business development. His position as Republican point man was to prepare a bill that could gain the support of Republicans and the business community. Hoyer shared similar goals. As Schulman explained: we weren t interested in creating a new right and doing it in such a way that it would have been impossible for the private sector, for employers and businesses, to meet their responsibili ties. Rather, in meeting the needs of persons with disabilities, Hoyer wanted to ensure that businesses knew what was expected of them, that language was clear and fair, and that the bill did not impose an undue burden on business. By working together, the two congressmen were able to help craft legislation that would be acceptable to both sides of the aisle and foster a level of bipartisanship comparable to what had developed in the Senate. The meetings were the most productive and satisfying legislative negotiations that I had ever been involved with, said Bartlett. Throughout October, Congressmen Hoyer and Bartlett met extensively and negotiated fourteen amendments that would later be brought up for a vote in committee. Although the committee had jurisdiction mainly over portions of the Employment and Public Accommodations titles, some of their proposed amendments affected the entire bill. The most significant amendment concerned the application of undue hardship and readily achievable. Business lobbyists wanted precise dollar figures to determine exactly how much businesses had to spend on accommodations and modifications. Rather than offer a price cap, the Senate bill specified that three factors should be evaluated in determining whether an accommodation was reasonable or a structural modifica tion was readily achievable the size of a business, the type of operation, and the cost of the --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00027Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 26:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) accommodation. Although this provision fell mainly under the jurisdiction of the Judiciary Committee, and was ultimately settled there, Hoyer and Bartlett began discussions about site- specific factors. They suggested that in determining whether an accommodation was reasonable a court should consider the financial resources of the local facility as well as those of the entire covered entity. Thus, a local K-Mart in financial difficulty would not be evaluated only according to the resources of the entire K-Mart corporation. Hoyer and Bartlett also clarified that an em ployer s obligation to provide a reasonable accommodation was always limited by the standard of undue hardship (see Appendix F): there would be no loopholes. The meetings with Congressman Steny Hoyer were the most productive and satisfying legislative negotiations that I had ever been involved with. Congressman Steve BartlettCongressmen Hoyer and Bartlett addressed another persistent concern of employers by adding tougher language for drug and alcohol abuse. They agreed that past drug users who had completed, or were actively engaged in, drug rehabilitation treatment were protected under the ADA. They also decided that covered enti ties should be free to administer drug tests and exclude individuals who used drugs and had not sought treatment. Congressmen Hoyer and Bartlett also worked to help minimize the potential for excessive litigation. They added language requiring that all complaints filed under the ADA or Sections 503 and 504 of the Rehabilitation Act must be coordinated so that only one case could be brought against the covered entity; a claimant could not file two claims under two different statutes. They also developed a procedure whereby the attorney general could certify state or local building codes that met ADA accessibility standards, which would be a defense against discrimination charges. In cases where the attorney general exercised authority to pursue monetary damages for aggrieved persons, the two congressmen proposed to exclude punitive damages. They also suggested that when courts considered assessing civil penalties, they must consider the good faith efforts of the covered entity. Finally, Congressmen Bartlett and Hoyer incorporated into the bill requirements that executive agencies prepare technical assistance manuals to be disseminated to those with rights and responsi bilities under the ADA. These changes were brought before, and approved by, members of the Committee on Education and Labor at the mark-up sessions on November 9 and 16. Eight additional amendments came up for consideration. Among other things, these amendments would have: linked the determination of reasonableness for accommodations and modifications exclusively to the resources of a local facility; reduced the penalties the attorney general could assess; substituted significant risk for direct threat as the standard according to which persons with contagious diseases could be discriminated against; capped the amount a business had to spend on readily achievable modifications to 5 percent of a company s profits; delayed implementation until regulations were completed; and, limited nondiscrimination protection for association with someone who had AIDS to one s family members. Except for the package of amendments introduced by Congressmen Hoyer and Bartlett, all amendments introduced at the committee mark-up were voted down, predominantly along party lines. The Democratic position was a no vote on all amendments besides the Hoyer-Bartlett package. In the final vote, the committee voted unanimously, 35 to 0, to report H.R. 2273 to the House, as amended by the committee. Despite the contested amendments, this was another strong endorsement of the ADA, and gave the bill a boost similar to that given by the Senate vote. Tough battles lay ahead. But the Hoyer-Bartlett compromises positioned the ADA for future success, and Hoyer and Bartlett would continue to play central roles in the negotiations of other committees. phase ii: energy and commerce & public works and transportation committees Although the Committee on Education and Labor reached a significant compromise that drew the support of many members, it accomplished little with respect to transportation and telecommuni cations provisions. These responsibilities fell to two committees: Energy and Commerce, and Public Works and Transportation. Their deliberations constituted the second phase of the House process of committee review. From the beginning of the ADA campaign, advocates worried most about the transportation provisions. Transit authorities had historically posed vigorous challenges to accessibility for persons with disabilities. When the Department of Transportation issued its original Section 504 regulations, APTA responded with a lawsuit and won. The court ruled that requiring lifts on every bus went beyond the purview of Section 504 and left it up to transit authorities to decide whether to have accessible buses, provide paratransit service, or use a mixture. As a result of this so-called local option, transportation operators throughout the country provided widely varying levels of accessible transportation. Cities such as New York and Seattle had achieved nearly 100 percent accessible buses, while Chicago had virtually none. Railroad systems had other problems. Accessibility standards for Amtrak, for example, had been in effect for nearly two decades; the regulations simply were not being enforced. By proposing fully accessible public transportation vehicles, the ADA would thus face resistance from such powerful lobbying groups as the ABA, Greyhound, Amtrak, and APTA. Working the transportation provisions of the ADA through the committee was also challenging because the scope was so broad. The ADA covered all public transportation by both public and private entities, with the exception of air travel, which had been addressed in the Air Carriers Access Act. This included: fixed route systems (including buses, light and rapid rail ), paratransit service (which applied only to public entities), demand responsive systems, intercity rail, commuter rail, over-the-road buses (which applied only to private entities), and transportation facilities. To avoid presenting executive agencies with any ambiguity, the transportation committees prepared extraordi narily detailed provisions. Given the memory of the regulatory nightmare of Section 504, where lack of detail in the statute resulted in intense conflict over the regulations, many people in the disability community welcomed the specificity promoted by the transportation committees. Although the two transportation committees upheld the basic principles of the Senate bill, they made the most changes nearly tripling the amount of space dedicated to transportation provisions. The two committees operated simultaneously, but the Energy and Commerce Committee was the first to complete its review. It held its hearings on September 27 and 28, 1989 and met for mark- up six months later on March 13, 1990, at which time it reported the ADA, as amended, to the House. The ADA s fate in the transportation committees was largely a function of personalities. Working with the Energy and Commerce Committee was difficult for the disability community. Chairman Dingell was notorious for jealously guarding his committee s jurisdiction, and he was one of Amtrak s greatest advocates. Over the course of the 1980s, funding for Amtrak had plummeted, and Dingell was reluctant to impose any new demands on the struggling public service. This made for a much different dynamic than the other three House committees, where Democrats generally sided with disability advocates to prevent any weakening amendments. In this case, Democrats tended to side with the public rail company and were thus more skeptical of the ADA s objectives. The principal staff person for the Energy and Commerce Committee was Alan Roth. By the end of the process he became a hero of sorts for the disability community, but in the beginning Roth posed a great challenge. He thought things had happened too quickly in the Senate, where there was little expert review of transportation provisions, and he wanted to conduct a thorough review of the bill s provisions within his committee s jurisdiction. This had the effect of extending the deliberative process. Unlike the Education and Labor Committee, and its open negotiations, the Energy and Commerce Committee began its consideration privately, without consulting the disability commu nity. The relationship between disability advocates and the committee was not improved when Pat Wright and Ralph Neas worked with Michigan constituents to apply pressure on the Chairman. It was not until the committee circulated a draft of its own version of the bill, which invited a 30-page rebuttal from the outraged disability community, that Congressman Hoyer could persuade the committee to work with him in developing a bill that the disability community could support. Although the Energy and Commerce Committee could introduce amendments that affected the entire bill, its jurisdiction over the ADA centered on two main components: telecommunications and railroads. Telecommunications provisions were the least controversial of the ADA s four main titles. Karen Peltz-Strauss and Sy Dubow were the principal attorneys from the deaf community who worked with congressional staff. The National Association of the Deaf (NAD), Telecommunications for the Deaf, Inc., and Self-Help for the Hard of Hearing (SHHH) were active in demonstrating broad support for changes in the nation s telecommunications system. Peltz-Strauss described Congress man Edward J. Markey (D-MA), Chairman of the Subcommittee on Telecommunications and Finance, as the deaf community s chief advocate in the House. He was very interested in expanding telecommunications access for people with disabilities. This made for smooth and harmonious deliberations, as Congressman Bob Whittaker (R-KS) later described them. There was striking cooperation among industry, commerce, and Congress, said Peltz-Strauss, which produced provisions that met the needs of people who were deaf and hard of hearing. Historically, three of the main telecommunications issues for the deaf and hard of hearing were hearing-aid compatibility, teletype devices, and television decoding. During the 1980s, the deaf community succeeded in passing legislation that required employers to provide hearing-aid compati ble telephones, which were equipped to transmit electromagnetic signals to certain hearing aids. In 1988, the Hearing Aid Compatibility (HAC) Act expanded this requirement such that nearly all telephones manufactured or imported into the country had to be compatible. The issue the ADA addressed most directly were teletype (TTY) devices, often called a Telecommunication Device for the Deaf (TDD). Under the original bill introduced to the House and Senate, the ADA required states to establish telecommunications relay services that would allow people to communicate, through an operator, with people who did not have TTY devices. During House deliberations, the basic requirement was affirmed, though the implementation date was extended from two to three years. The most significant change was the removal of the undue burden limit on the mandate to provide relay service. The committee also addressed the issue of closed captioning for televisions. Earlier legislation required public television to broadcast with closed captioning. During the House deliberations, Congressman Markey s subcommittee stipulated that all public service announcements partly- or fully-funded by the Federal Government must be produced with closed captioned text. The perpetuation of prejudice and discrimination against persons with mental disorders in a vehicle designed to end discrimination is sadly ironic. American Psychological AssociationThe Subcommittee on Telecommunications and Finance was the first of all House subcommittees to complete its action, on Octo ber 12, 1989. Subsequently, the Energy and Commerce Committee devoted several months to deliberating transportation provisions. The committee held the preponderance of jurisdiction over railroads and had absolute jurisdiction over Amtrak. It began its deliberations with the Senate bill, which required that all new rail cars had to be accessible, and mandated that at least one car per train had to be accessible within five years. Since Amtrak was standardized throughout the nation, the committee could be extraordinarily detailed about what accessibility meant for Amtrak. For example, the committee delineated distinc tions between single- and bi-level cars. It also designed separate provisions for sleeping, dining, and passenger cars. For Amtrak, the Energy and Commerce Committee even developed a formula to determine precisely how many spaces had to be available for persons using wheelchairs, including space to store wheelchairs. Perhaps the most important decision coming out of this committee, however, was that it sustained the Senate s one-car-per-train rule and the stipulation that all new cars had to be accessible. This was significant because the Public Works and Transportation Committee shared partial jurisdiction over railroads, and wrestled with whether all cars had to be accessible. We in the House felt an obligation to . . . fine tune the ADA in a way the transit authorities could embrace the act and make it work. Roger Slagle Although negotiating over transportation provisions was difficult, the most controversial and intense negotiations in the Energy and Commerce Committee had nothing to do with structural transportation accessibility. Members of the Energy and Commerce Committee were concerned that the ADA s protection of persons who were mentally ill could result in uncontrollable train distur bances, where train operators would be unable to ask meddlesome riders to leave. Consequently, their initial draft of the ADA excluded persons who were mentally ill from the definition of disabil ity. This caused an uproar in the disability commu nity. Persons with mental disabilities, among all the disabled, have suffered the greatest stigmatiza tion and resulting discrimination, said the Ameri can Psychological Association. The perpetuation of prejudice and discrimination against persons with mental disorders in a vehicle designed to end discrimination is sadly ironic. The committee ultimately removed the exclusion, but the issue came back up at mark-up. Congressman William E. Dannemeyer (R-CA) proposed an amendment that would have supple mented the --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00028Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 27:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) established exclusion of compulsive gambling, kleptomania, and pyromania by prohibit ing all behavior disorders. Based upon his belief that the ADA was a homosexual rights bill in disguise, his amendment also proposed the exclusion of anyone with a contagious or sexually transmitted disease. These proposals posed a major threat to the ADA, for they applied not just to transportation, but to the entire bill. Although the committee rejected the Dannemeyer amendment, these issues were only temporarily put to rest. The Public Works and Transportation Committee held its hearings on the ADA before Energy and Commerce, on September 20 and 26, 1989. But it held its mark-up several weeks after the Energy and Commerce Committee, on April 3, 1990. For disability advocates, the Public Works and Transportation Committee was much easier to work with than the Energy and Commerce Committee, but it ultimately posed a significant threat to their objectives. Chairman Anderson was a strong supporter of the ADA and charged staff member Roger Slagle, whom he appointed to take the lead on the ADA, with a clear mission: Get the people on the bus. Slagle was not a detached mediator; he strove for optimal accessibility. From the disability community, he worked especially with attorney Chai Feldblum, whom he described as one of the brightest people I ve ever worked with in my life. But Slagle had one major reservation: unwarranted litigation against transit authorities. Slagle said people on the House side referred to the Senate bill as the we re-going-to-sue-your-ass bill. They feared that under the Senate bill a person with a disability might be able to sue a transit authority simply because a lift-equipped bus was late. We in the House felt an obligation to . . . fine tune the ADA, said Slagle, in a way the transit authorities could embrace [the act] and make it work. The Chairman of the Subcommittee on Surface Transportation was Congressman Norman Y. Mineta (D-CA). Congressman Coelho, who was a close friend of Mineta s, vigorously lobbied Mineta to be more than a passive supporter of the ADA; Coelho wanted him to be an active advo cate. The fact that Mineta was indebted to Coelho for crucial help on one of his own legislative endeavors helped persuade him. And Congressman Mineta came through: he was absolutely wonderful, said Coelho. Although there were strong advocates for the ADA on the Public Works and Transportation Committee, there was also a powerful counter-voice in Congressman Bud Shuster (R-PA). Shuster repeatedly referred to his mother, who was a double amputee in a wheelchair, and how he skinned my knuckles more times than I can count trying to jiggle her wheelchair through a door that should have been wider . . . or trying to lug a wheelchair up a set of stairs where there should have been a ramp. There was no reason, he thought, that she would ever want or need to get on a bus, and he outright opposed equipping all buses with lifts. Many persons in the disability community, however, thought Shuster was out of touch with their sentiments. Persons in wheelchairs did not want to be pushed around and transported; rather, they wanted to control their own mobility and travel as independently as possible which required accessible vehicles. The Public Works and Transportation Committee had jurisdiction over transit: that is, transportation used primarily for commuter purposes. One of the biggest issues the committee faced was whether to include a lift on every transit bus. Eastern Paralyzed Veterans of America (EPVA) attorney Jim Weisman, who served as a transportation expert for the disability community, was amazed that some members were opposed to putting lifts on buses. It seemed ridiculous to me, he said, because it was academic. . . . Transit authorities had just about given this up. [Everybody] who was anybody knew transit authorities knew that the handwriting was on the wall. The alternative to equipping buses with lifts was providing paratransit service. Congressman Shuster emphasized that persons with disabilities in his district preferred paratransit over fixed-route buses. So might most people, given a chance to have door-to-door transportation. The problem with paratransit service was that its expenses were unlimited, whereas for fixed route systems the primary cost was a one-time lift installation. Fixed-route buses collected money with every ride; each ride on paratransit cost the operator substantial money. Consequently, paratransit service was unable to meet the demand of its clientele. Transit authorities such as APTA, as Weisman observed, were becoming convinced that it was more cost-effective for them to purchase lift-equipped buses and were thus very moderate in their reservations about the ADA. Members of Congress were the most vigorous opponents. Ultimately, however, the committee sided with its constituents who pushed for lift-equipped, fixed-route bus systems and a supplemental paratransit service for those unable to use standard service. Debate about what to do with intercity bus services such as Greyhound was much more contentious. Senators had responded by removing the original lift mandate and requiring that a three-year study assess the most effective and cost-efficient accessibility. Greyhound and the ABA argued that people who could not manage the steps into an intercity bus should simply be carried onto the bus. The difference with intercity ( over-the-road ) buses was that a lift potentially took away seats and luggage space. Companies such as Greyhound were in many cases the only transpor tation serving rural areas. They argued that the loss of revenue from lift-installation would necessi tate reduced service areas, and that many people would thus be deprived of their only form of transportation. The disability community used the same evidence to make the opposite point: since buses were in some cases the only available form of transportation, it was imperative that persons with disabilities be able to use them. They also argued that it was unfair for Greyhound, which was struggling financially, to point to accessibility as the cause or potential cause of its problems. Ultimately, the committee agreed with the Senate s provision requiring a study and thereby delayed the final decision. The Public Works and Transportation Committee s primary responsibility with respect to the ADA was bus transit, subways, paratransit, and intercity buses, but it had jurisdiction over rail systems operated by transit authorities. Thus, certain commuter rail routes for example, from Balt imore to Washington fell under its jurisdiction. This meant that two different committees had the opportunity to craft rail requirements. The bill the Public Works and Transportation Committee brought before the mark-up, like that of the Energy and Commerce Committee, endorsed the Senate requirements for one car per train, and accessibility for all new vehicles. But an amendment was introduced at the Public Works and Transportation Committee mark-up that removed the accessibil ity requirement for all new vehicles. Proponents of the amendment contended that trains should be approached like airplanes, where only designated seats, not the entire plane, had to be accessible. The amendment attracted a small number of Democrats whose districts had made little headway in rail accessibility. Combined with the votes of Republicans, who almost unanimously supported the amendment, these Democrats votes helped give the amendment a majority. It was a significant defeat for the disability community, since the provision violated one of the community s main principles: accessibility for all new vehicles. The matter was not, however, settled. The amendment created a jurisdictional conflict that had to be settled by House leadership, the House Parliamentarian, and the Rules Committee. Chairman Dingell characteristically and vigorously argued that his committee s jurisdiction should prevail. Democratic leadership on the Public Works and Transportation Committee, on the other hand, especially Congressman Mineta, subtly revealed to Congressman Hoyer and the House leadership that they supported the Energy and Commerce version of the ADA. To the relief of the disability community, the House Parliamentarian and the Rules Committee ruled in favor of Energy and Commerce. Phase iii: judiciary committee After surviving review by the first three committees Education and Labor, Energy and Commerce, and Public Works and Transportation the ADA s final committee hurdle was the Judiciary Committee. This final phase of the House committee process was also a symbolic one: the last chance for opponents of the bill to offer unrestricted amendments. Once the bill went to the House floor, the Rules Committee would allow only certain amendments for consideration. Similar to the Education and Labor Committee, where Subcommittee Chairman Major Owens effectively led the committee s deliberations, Don Edwards (D-CA), Chairman of the Subcommittee on Civil and Constitutional Rights, essentially took the lead in the Judiciary Committee s consideration of the ADA. Moreover, as with the Education and Labor Committee, Congressman Hoyer played a central role in shaping the Judiciary Committee s negotiations and Congressman Bartlett continued to represent the Republican party. The Judiciary Committee held three hearings, on August 3, October 11, and October 12, 1989. The Subcommittee on Civil and Constitutional Rights met for mark-up on April 25, 1990. The full committee held mark-up sessions on May 1 and 2, at which time it reported the ADA favorably to the House, as amended. One of the hottest issues for the Judiciary Committee, which had jurisdiction over portions of the employment and public accommodations titles, was remedies. Prior to the Judiciary Commit tee s consideration of the ADA, the Senate and the White House had reached a breakthrough comp romise on the issue of remedies: the Senate agreed to restrict available employment and public accommodations remedies to those in the Civil Rights Act, which omitted punitive damages. As a result of this agreement, the Education and Labor Committee never even considered changing the available remedies. A crucial development during the Judiciary Committee s deliberations, however, made them a live issue once again. On February 7, 1990, Senator Kennedy and Congressman Hawkins introduced the Civil Rights Act of 1990. This bill amended the Civil Rights Act of 1964 by allowing courts to award compensatory and punitive damages at jury trials, to persons who successfully proved they were victims of discrimination. Because the ADA merely incorporated the remedies of the Civil Rights Act by reference, this proposed change to the Civil Rights Act would also apply to the ADA. Representatives from the disability community contended that this was consistent with earlier agreements with the White House, that the principle all along had been parity with the Civil Rights Act of 1964, regardless of whether those provisions were strengthened or weakened over time. The Bush administration, however, felt betrayed and argued that their negotiated agreement expressly excluded punitive damages from the bill. On March 12, The Washington Post reported rumors that President Bush might withdraw his endorsement of the bill if the ADA did not expressly limit its remedial provisions to injunctive relief, reinstatement, and back pay. That same night, Attorney General Richard Thornburgh wrote a letter to Congressman Steny Hoyer. He said the administration opposed the link to the Civil Rights Act of 1964 and proposed that the conflict be resolved by specifying the current standards of the Act. The most significant contribution of the Judiciary Committee concerned site- specific factors for the determination of reasonable accommodation and readily achievable. When the committee introduced an am- ended version of the ADA to the Subcommittee on Civil and Constitutional Rights on April 25, it sided with the disability community and re tained the cross-reference to the Civil Rights Act of 1964. Congressman F. James Sensen brenner, Jr. (R-WI), however, introduced an amendment to eliminate the reference. Some people with disabilities suggested giving up on the remedies issue in order to save the rest of the bill, but the disability community generally lobbied vigorously to oppose this and all other weakening amend ments. To the relief of disability activists, the Sensenbrenner amendment failed. Sensenbrenner tried to pass the amendment a second time when the full committee met on May 1 and 2, but it was voted down again. In its report on the bill, the Judiciary Committee argued that the Sensenbrenner amendment was antithetical to the very nature of the ADA. It also referred directly to the Civil rights Act of 1990 and stated that any changes there would be applied to the ADA. Sensenbrenner joined five colleagues in authoring Additional Views for the report, where they continued to insist on the need for the Sensenbrenner amendment. They also cryptically threatened that a failure to pass it might jeopardize the entire ADA. The most significant contribution of the Judiciary Committee concerned site-specific factors for the determination of reasonable accommodation and readily achievable (see Appen dix F). Discussions on the topic had begun in earnest between Congressmen Hoyer and Bartlett during the Education and Labor Committee s deliberations and continued throughout the House deliberations. For the most part, the Judiciary Committee introduced the same changes proposed by the Education and Labor Committee. But the Judiciary Committee rearranged the factors for clarity and for different emphasis. It was primarily concerned with avoiding a determination that sided either with the local facility or the covered entity. Rather, the committee stressed that, on a case-by-case and flexible basis, both entities should be evaluated. Moreover, it emphasized that the relationship between the parent company and the local facility should be taken into consideration. The committee made many other changes, most of which were technicalities compared with earlier, more sweeping compromises. In addition to clarifying the cross-referencing on remedies and site-specific factors, the Judiciary Committee added a new section to the bill that encouraged alternative dispute resolution through reconciliation before moving to litigation. And it made technical changes to the interim standards of accessibility. The final amendment accepted by the Judiciary Committee was a package of six amendments introduced by --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00029Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 28:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) Congressman Fish, based on negotiations that included the disability community, the White House, and Congressmen Hoyer and Bartlett. Essentially, three of the amendments came from the disability community, and three from the administration. For the administration, the committee added language clarifying: the meaning of direct threat, the standards by which anticipatory discrimination were valid, and that an employer s view of what constituted essential functions would be considered by courts. For the disability community, the package included clarification about which entities were covered in the public accommodations title and what was meant by commercial facilities. It also provided that places where exams were administered had to be accessible. Additional amendments were introduced, but they failed. Two of these failed amendments a proposal to cap an employer s obligation to provide accommodations at 10 percent of an em ployee s salary, and a proposal to enable employers to remove persons with contagious diseases, such as AIDS, from food handling positions would reemerge on the House floor. On May 2, the Judiciary Committee concluded its deliberations by favorably reporting its version of the ADA to the full House. Moving to the House Floor The ADA proceeded rapidly to the House floor after the Judiciary Committee completed its work. On May 14 and 15, 1990, the four committees submitted their reports, which included four different drafts of the ADA. It was then the task of the Rules Committee to produce a bill that synthesized the four versions. A bipartisan staff working group collaborated to sort out the different texts. The only conflict was between the transportation committees over whether new rail vehicles had to be accessible. Otherwise, it was a matter, albeit a challenging one, of piecing everything together. The staff working group crafted a new bill, H.R. 4807, which they substituted for the text of H.R. 2273. On May 16, the Rules Committee submitted its own report that included the new version of H.R. 2273 and a resolution, H. Res. 394. This resolution provided that, at any subsequent time, the Speaker of the House could take up H.R. 2273, the Americans with Disabilities Act, for consideration on the House floor. Floor deliberations are somewhat of a free-for-all in the Senate: a senator may introduce virtually any amendment, even one that is not germane to the bill, and also filibuster dominating the floor for unlimited time. The House, by contrast, conducts its floor proceedings according to rules established by the Rules Committee. In the case of the ADA, H. Res. 394 submitted a modified closed rule, meaning that general debate would be restricted and that only specific amendments would be allowed for consideration. The resolution provided that at any time after adoption of the resolution the Speaker of the House could resolve the House into the Committee of the Whole House on the State of the Union for consideration of the ADA and the proposed amendments. There would be two hours of general debate: 30 minutes for each committee, split equally between majority and minority members. Eight amendments were approved for consideration. On May 17, only one day after the Rules Committee presented its resolution, the House met to consider passage of the ADA. The first order of business was to accept the closed rule. Minority congressmen protested. Congressman Robert S. Walker (R-PA) called it a totalitarian rule and said the committee used a process which is both undemocratic and . . . sad. Congressman Bill McCollum (R-FL) said the rule was an abomination and ridiculous and suggested that the lack of House activity that session provided plenty of time for free debate. Congressman Lynn Martin (R-IL) complained that only 8 of the 45 amendments proposed to the Rules Committee were accepted, and noted that a proposal to have an open rule was defeated on a strict party line vote. Congressman Newt Gingrich (R-GA) said the ADA was an extraordinarily important bill and that consideration of every amendment submitted to the Rules Committee was therefore appropriate. Congressmen in the majority, however, generally supported the rule and argued that allowing open debate would undermine all the agreements made in the committees and defeat the basic purpose of committee deliberations. As is customary, the House passed the rule on virtually a straight, party-line vote. We have worked closely with businesses, and adopted numerous amendments, to ensure that American business can work with the ADA. Congressman Steny Hoyer Immediately following the vote, the House resolved itself into the Committee of the Whole. Congressman Hoyer took the lead for ADA supporters throughout the deliberations and frequently entered debate to clarify various aspects of the ADA. The general debate provided members an opportunity to make basic statements about the virtues and problems of the bill, review the history of committee deliberations, and note key accomplishments. Hoyer drew special attention to how the ADA was truly the product of thousands and thousands and thousands of people. Similarly, Congressman Owens thanked all of the members of the community of people with disabilities, who 43 million strong raised their voices across the Nation, and it was their push, their sense of empower ment, that has brought us to where we are. Hoyer also emphasized how much business inter ests were taken into consideration: We have worked closely with them, and adopted numerous amendments, to ensure that American business can work with the ADA. Others, however, thought more work needed to be done. Congressman Bartlett was Congressman Hoyer s counterpart in coordinating the efforts to amend the ADA. Congressman McCollum said the issue was not whether to bestow civil rights, but how to minimize costs to the employers while still doing that. Back and forth across the aisle, Democrats emphasized the bill s balance and the need to reject weakening amendments, and Republicans stressed the potential pitfalls of the bill and the need to fine tune it with further amendments. The House considered four of the seven amendments on May 17. Two were noncontrover sial. Congressman John J. LaFalce (D-NY), based on the Small Business Committee hearing he chaired, proposed postponing the time at which civil actions could be brought against a covered entity. Republicans and Democrats united in unanimous support. The House also approved, by voice vote, Congressman James V. Hansen s (R-UT) amendment to allow wheelchair use in wilderness areas. Congressman Jim Olin s (D-VA) amendment, to impose a 10 percent salary cap on the amount of accommodations an employer had to provide an employee, was more contentious. The NFIB strongly endorsed the amendment, and Congressman McCollum called it the small business amendment in this legislation. He suggested that a vote against it would be a vote against small business a position no member was eager to take. The bill would have put a finite dollar cap on accommodations. But, according to ADA supporters, there were two main problems. First, as Congresswoman Patricia Schroeder (D-CO) said: It is great for Donald Trump. It is lousy for the person who is cleaning up after Donald Trump. The amendment would mean that persons with similar disabilities would not be given individualized treatment a central premise of the ADA. Rather, they would be grouped according to income level. Second, as Congressman Bartlett stated forcefully, the amendment would in fact be harmful both to those who are disabled and to the employers themselves. By setting a dollar cap, persons with disabilities might insist on 10 percent of their income as a mandatory level of accommodation, when much less might be needed. The Olin amendment attempts to set a ceiling, said Bartlett, but in fact it sets a floor. Members on both sides argued that they had the White House s support. Congressman Fish, on one hand, said the Bush administration had tried to negotiate a similar amendment at the committee level but concluded that the principle was unacceptable. Congressman Olin, on the other hand, said he had called the White House during the course of deliberations and was told the administration very much favors the amendment. Bartlett put an end to the discussion by declaring that the White House had no position. The final vote was close. The 32 members who did not vote could have passed the amendment, which failed 187 to 213. As with each of the contested amendments, votes split along party lines. Whereas 71 percent of Democrats voted no, 74 percent of Republicans voted yes. The most controversial amendment to reach the floor was the Chapman amendment, which would enable employers to remove persons with contagious diseases, such as AIDS, from food handling positions. The issue of AIDS was not new. It had always been covered by the ADA. From the beginning, many organizations supported the bill precisely because it offered protection to persons with HIV and AIDS. Moreover, the provisions in the ADA that protected persons with AIDS essentially replicated what had already been settled in the Fair Housing Amendments Act. Nevertheless, the Chapman amendment posed a significant challenge to members, most of whom would have preferred the issue did not exist. By this time, in May, 1990, it appeared the ADA would pass; few wanted to stand in its way. But members also feared that being forced to vote on an AIDS amendment during an election year could be damaging: a perfect ten-second sound bite. Moreover, the Chapman amendment was precisely the kind of issue that could kill the ADA. It seemed to represent more than just concerns about contagious diseases: it looked like a way to stop the ADA in its tracks. Congressman Jim Chapman (D-TX) led the debate in favor of his amendment. By having a Democrat such as Chapman lead the charge, supporters of the amendment might counter the perception that it was a Republican amendment and enlist the support of more Democrats. For similar reasons, the lead floor opponent of the amendment was Republican Congressman Fish. Arguments in support of the amendment rested on the claim that customers who knew that food handlers at a given establishment had AIDS would discontinue taking their business there. The reality is that many Americans would refuse to patronize any food establishment if an employee were known to have a communicable disease, said Chapman. He also argued that the hospitality industry was the best employer of persons with disabilities and that it would be foolish to harm that source of employment. Congressman Douglas, who introduced the same amendment in the Judiciary Committee, supported it because perception is reality. Significantly, Chapman, Douglas and others admitted that there was no known evidence that AIDS could be transmitted through food handling. The amendment was needed not to stop the spread of AIDS, they said, but to protect businesses from fears and prejudice. We should not make exceptions to the principle in ADA that employment decisions should not be based on myth or stereotype. Mr Chairman, the Congress must not enshrine ignorance and prejudice in the law. Congressman Hamilton Fish For ADA supporters, as Congressman Ted Weiss (D-NY) said, The Chapman amendment flies in the face of the very purpose of the ADA by institutionalizing irrational discrimination. Congressman Jim McDermott (D-WA), who was also a physician, said he would support the amendment if it protected public health. But the amendment is not about the reality of contagious disease, he explained. It is about the fear of contagious disease. The amendment established public policy in contradistinction to known facts in deliberate deference to the fears and prejudice of others. This, he said, was bad medicine, bad science, bad public policy. Congressmen Don Edwards (D-CA) and Steny Hoyer likened the amendment to arguments used a gainst the Civil Rights Act: that white custom ers would not eat in restaurants where black Americans were served, as Edwards put it. Hoyer simply called it the Jim Crow amend ment of 1990. Largely due to the efforts of Congressman Hoyer, the Bush administration entered the Chapman debate by issuing formal statements on the medical facts of AIDS and food handling. Louis W. Sullivan, Secretary of Health and Human Services (HHS), and Dr. William L. Roper, Director of the Centers for Disease Control (CDC), wrote letters on the issue. They flatly repudiated the notion that persons diagnosed with HIV or AIDS posed a health risk in the context of food handling. Congressman Fish brought the floor debate to a close by pleading: We should not make exceptions to the principle in ADA that employment decisions should not be based on myth or stereotype. Mr. Chairman, the Congress must not enshrine ignorance and prejudice in the law. Congressman Chapman, however, prevailed. In a strikingly close vote 199 to 187 the House supported the exclusion of persons with contagious and communicable diseases from food handling. The 46 members who abstained from voting easily could have swayed the tally. Although it was not as pronounced as in some of the other amendments, this issue also tended to split on party lines. Whereas 80 percent of Republicans supported the measure, 67 percent Democrats opposed it. The Chapman amendment was the last of the day. The disability community, which made a commitment to staying united no matter what the cost, had encountered a significant defeat. Persons with HIV and AIDS, they believed, were equally entitled to civil rights protections. They also feared that allowing one group to fall prey to prejudice might establish a trend. Would persons with mental illness, for whom exclusions had also been proposed, be next? Where would it stop? More than anything else, it seemed inconceivable to embrace a nondiscrimination law that patently enshrined discrimination based on irrational fear. Although the Chapman amendment was the first major defeat for the disability community in congressional floor deliberations, three more threatening amendments were left for consideration on May 22, 1990. Two concerned transportation. The Lipinski amendment was a repeat of the amendment passed by the Public Works and Transportation Committee and overruled by the Rules Committee: it rejected the requirement that all new rail vehicles had to be accessible. William O. Lipinski (D-IL) argued that his amendment provided better accessibility and did not weaken the ADA: it would guarantee space according to demand. --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00030Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 43:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) (1) One car per train rule. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person who provides intercity rail transportation to fail to have at least one passenger car per train that is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in accordance with regulations issued under section 244, as soon as practicable, but in no event later than 5 years after the date of enactment of this Act. (2) New intercity cars. (A) General rule. Except as otherwise provided in this subsection with respect to individuals who use wheelchairs, it shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to purchase or lease any new rail passenger cars for use in intercity rail transportation, and for which a solicitation is made later than 30 days after the effective date of this section, unless all such rail cars are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as prescribed by the Secretary of Transportation in regulations issued under section 244. (B) Special rule for single-level passenger coaches for individuals who use wheel chairs. Single-level passenger coaches shall be required to (i) be able to be entered by an individual who uses a wheelchair; (ii) have space to park and secure a wheelchair; (iii) have a seat to which a passenger in a wheelchair can transfer, and a space to fold and store such passenger s wheelchair; and (iv) have a restroom usable by an individual who uses a wheelchair, only to the extent provided in paragraph (3). (C) Special rule for single-level dining cars for individuals who use wheelchairs. Single-level dining cars shall not be required to (i) be able to be entered from the station platform by an individual who uses a wheelchair; or (ii) have a restroom usable by an individual who uses a wheelchair if no restroom is provided in such car for any passenger. (D) Special rule for bi-level dining cars for individuals who use wheelchairs. Bi-level dining cars shall not be required to (i) be able to be entered by an individual who uses a wheelchair; (ii) have space to park and secure a wheelchair; (iii) have a seat to which a passenger in a wheelchair can transfer, or a space to fold and store such passenger s wheelchair; or (iv) have a restroom usable by an individual who uses a wheelchair. (3) Accessibility of single-level coaches. (A) General rule. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person who provides intercity rail transportation to fail to have on each train which includes one or more single-level rail passenger coaches (i) a number of spaces (I) to park and secure wheelchairs (to accommodate individuals who wish to remain in their wheelchairs) equal to not less than one-half of the number of single-level rail passenger coaches in such train; and (II) to fold and store wheelchairs (to accommodate individuals who wish to transfer to coach seats) equal to not less than one-half of the number of single-level rail passenger coaches in such train, as soon as practicable, but in no event later than 5 years after the date of enactment of this Act; and (ii) a number of spaces (I) to park and secure wheelchairs (to accommodate individuals who wish to remain in their wheelchairs) equal to not less than the total number of single-level rail passenger coaches in such train; and (II) to fold and store wheelchairs (to accommodate individuals who wish to transfer to coach seats) equal to not less than the total number of single-level rail passenger coaches in such train, as soon as practicable, but in no event later than 10 years after the date of enactment of this Act. (B) Location. Spaces required by subparagraph (A) shall be located in single-level rail passenger coaches or food service cars. (C) Limitation. Of the number of spaces required on a train by subparagraph (A), not more than two spaces to park and secure wheelchairs nor more than two spaces to fold and store wheelchairs shall be located in any one coach or food service car. (D) Other accessibility features. Single-level rail passenger coaches and food service cars on which the spaces required by subparagraph (A) are located shall have a restroom usable by an individual who uses a wheelchair and shall be able to be entered from the station platform by an individual who uses a wheelchair. (4) Food service. (A) Single-level dining cars. On any train in which a single-level dining car is used to provide food service (i) if such single-level dining car was purchased after the date of enactment of this Act, table service in such car shall be provided to a passenger who uses a wheelchair if (I) the car adjacent to the end of the dining car through which a wheelchair may enter is itself accessible to a wheelchair; (II) such passenger can exit to the platform from the car such passenger occupies, move down the platform, and enter the adjacent accessible car described in subclause (I) without the necessity of the train being moved within the station; and (III) space to park and secure a wheelchair is available in the dining car at the time such passenger wishes to eat (if such passenger wishes to remain in a wheel chair), or space to store and fold a wheelchair is available in the dining car at the time such passenger wishes to eat (if such passenger wishes to transfer to a dining car seat); and (ii) appropriate auxiliary aids and services, including a hard surface on which to eat, shall be provided to ensure that other equivalent food service is available to individuals with disabilities, including individuals who use wheelchairs, and to passengers traveling with such individuals. Unless not practicable, a person providing intercity rail transportation shall place an accessible car adjacent to the end of a dining car described in clause (I) through which an individual who uses a wheelchair may enter. (B) Bi-level dining cars. On any train in which a bi-level dining car is used to provide food service (i) if such train includes a bi-level lounge car purchased after the date of enactment of this Act, table service in such lounge car shall be provided to individuals who use wheelchairs and to other passengers; and (ii) appropriate auxiliary aids and services, including a hard surface on which to eat, shall be provided to ensure that other equivalent food service is available to individuals with disabilities, including individuals who use wheelchairs, and to passengers traveling with such individuals. (b) Commuter Rail Transportation. (1) One car per train rule. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person who provides commuter rail transportation to fail to have at least one passenger car per train that is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in accordance with regulations issued under section 244, as soon as practicable, but in no event later than 5 years after the date of enactment of this Act. (2) New commuter rail cars. (A) General rule. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to purchase or lease any new rail passenger cars for use in commuter rail transportation, and for which a solicitation is made later than 30 days after the effective date of this section, unless all such rail cars are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as prescribed by the Secretary of Transportation in regulations issued under section 244. (B) Accessibility. For purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), a requirement that a rail passenger car used in commuter rail transportation be accessible to or readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, shall not be construed to require (i) a restroom usable by an individual who uses a wheelchair if no restroom is provided in such car for any passenger; (ii) space to fold and store a wheelchair; or (iii) a seat to which a passenger who uses a wheelchair can transfer. (c) Used Rail Cars. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to purchase or lease a used rail passenger car for use in intercity or commuter rail transportation, unless such person makes demonstrated good faith efforts to purchase or lease a used rail car that is readily accessible to and usable by individuals with disabilities, including individuals who use wheel chairs, as prescribed by the Secretary of Transportation in regulations issued under section 244. (d) Remanufactured Rail Cars. (1) Remanufacturing. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to remanufacture a rail passenger car for use in intercity or commuter rail transportation so as to extend its usable life for 10 years or more, unless the rail car, to the maximum extent feasible, is made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as prescribed by the Secretary of Transportation in regula tions issued under section 244. (2) Purchase or lease. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to purchase or lease a remanufactured rail passenger car for use in intercity or commuter rail transportation unless such car was remanufactured in accordance with paragraph (1). (e) Stations. (1) New stations. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to build a new station for use in intercity or commuter rail transportation that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as prescribed by the Secretary of Transportation in regulations issued under section 244. (2) Existing stations. (A) Failure to make readily accessible. (i) General rule. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a responsible person to fail to make existing stations in the intercity rail transportation system, and existing key stations in commuter rail transportation systems, readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as prescribed by the Secretary of Transportation in regulations issued under section 244. (ii) Period for compliance. (I) Intercity rail. All stations in the intercity rail transportation system shall be made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as soon as practicable, but in no event later than 20 years after the date of enactment of this Act. (II) Commuter rail. Key stations in commuter rail transportation systems shall be made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as soon as practicable but in no event later than 3 years after the date of enactment of this Act, except that the time limit may be extended by the Secretary of Transportation up to 20 years after the date of enactment of this Act in a case where the raising of the entire passenger platform is the only means available of attaining accessibility or where other extraordinarily expensive structural changes are necessary to attain accessibility. (iii) Designation of key stations. Each commuter authority shall designate the key stations in its commuter rail transportation system, in consultation with individuals with disabilities and organizations representing such individuals, taking into consider ation such factors as high ridership and whether such station serves as a transfer or feeder station. Before the final designation of key stations under this clause, a commuter authority shall hold a public hearing. (iv) Plans and milestones. The Secretary of Transportation shall require the appropriate person to develop a plan for carrying out this subparagraph that reflects consultation with individuals with disabilities affected by such plan and that establishes milestones for achievement of the requirements of this subparagraph. (B) Requirement when making alterations. (i) General rule. It shall be considered discrimination, for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), with respect to alterations of an existing station or part thereof in the intercity or commuter rail transportation systems that affect or could affect the usability of the station or part thereof, for the responsible person, owner, or person in control of the station to fail to make the alterations in such a manner that, to the maximum extent feasible, the altered portions of the station are readily accessible to and usable by individuals with disabili ties, including individuals who use wheelchairs, upon completion of such alterations. (ii) Alterations to a primary function area. It shall be considered discrimination, for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), with respect to alterations that affect or could affect the usability of or access to an area of the station containing a primary function, for the responsible person, owner, or person in control of the station to fail to make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area, and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of such alterations, where such alterations to the path of travel or the bathrooms, --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00031Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 44:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). (C) Required cooperation. It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for an owner, or person in control, of a station governed by subparagraph (A) or (B) to fail to provide reasonable cooperation to a responsible person with respect to such station in that responsible person s efforts to comply with such subparagraph. An owner, or person in control, of a station shall be liable to a responsible person for any failure to provide reasonable cooperation as required by this subparagraph. Failure to receive reasonable cooperation required by this subparagraph shall not be a defense to a claim of discrimination under this Act. SEC. 243. CONFORMANCE OF ACCESSIBILITY STANDARDS. Accessibility standards included in regulations issued under this part shall be consistent with the minimum guidelines issued by the Architectural and Transportation Barriers Compliance Board under section 504(a) of this Act. SEC. 244. REGULATIONS. Not later than 1 year after the date of enactment of this Act, the Secretary of Transportation shall issue regulations, in an accessible format, necessary for carrying out this part. SEC. 245. INTERIM ACCESSIBILITY REQUIREMENTS. (a) Stations. If final regulations have not been issued pursuant to section 244, for new construction or alterations for which a valid and appropriate State or local building permit is obtained prior to the issuance of final regulations under such section, and for which the construc tion or alteration authorized by such permit begins within one year of the receipt of such permit and is completed under the terms of such permit, compliance with the Uniform Federal Accessi bility Standards in effect at the time the building permit is issued shall suffice to satisfy the requirement that stations be readily accessible to and usable by persons with disabilities as required under section 242(e), except that, if such final regulations have not been issued one year after the Architectural and Transportation Barriers Compliance Board has issued the supplemental minimum guidelines required under section 504(a) of this Act, compliance with such supplemental minimum guidelines shall be necessary to satisfy the requirement that stations be readily accessible to and usable by persons with disabilities prior to issuance of the final regulations. (b) Rail Passenger Cars. If final regulations have not been issued pursuant to section 244, a person shall be considered to have complied with the requirements of section 242 (a) through (d) that a rail passenger car be readily accessible to and usable by individuals with disabilities, if the design for such car complies with the laws and regulations (including the Minimum Guidelines and Requirements for Accessible Design and such supplemental minimum guidelines as are issued under section 504(a) of this Act) governing accessibility of such cars, to the extent that such laws and regulations are not inconsistent with this part and are in effect at the time such design is substantially completed. SEC. 246. EFFECTIVE DATE. (a) General Rule. Except as provided in subsection (b), this part shall become effective 18 months after the date of enactment of this Act. (b) Exception. Sections 242 and 244 shall become effective on the date of enactment of this Act. TITLE III PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE ENTITIES SEC. 301. DEFINITIONS. As used in this title: (1) Commerce. The term commerce means travel, trade, traffic, commerce, transpor tation, or communication (A) among the several States; (B) between any foreign country or any territory or possession and any State; or (C) between points in the same State but through another State or foreign country. (2) Commercial facilities. The term commercial facilities means facilities (A) that are intended for nonresidential use; and (B) whose operations will affect commerce. Such term shall not include railroad locomotives, railroad freight cars, railroad cabooses, railroad cars described in section 242 or covered under this title, railroad rights-of-way, or facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968 (42 U.S.C. 3601 et seq.). (3) Demand responsive system. The term demand responsive system means any system of providing transportation of individuals by a vehicle, other than a system which is a fixed route system. (4) Fixed route system. The term fixed route system means a system of providing transportation of individuals (other than by aircraft) on which a vehicle is operated along a prescribed route according to a fixed schedule. (5) Over-the-road bus. The term over-the-road bus means a bus characterized by an elevated passenger deck located over a baggage compartment. (6) Private entity. The term private entity means any entity other than a public entity (as defined in section 201(1)). (7) Public accommodation. The following private entities are considered public accom modations for purposes of this title, if the operations of such entities affect commerce (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. (8) Rail and railroad. The terms rail and railroad have the meaning given the term railroad in section 202(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C. 431(e)). (9) Readily achievable. The term readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include (A) the nature and cost of the action needed under this Act; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composi tion, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. (10) Specified public transportation. The term specified public transportation means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis. (11) Vehicle. The term vehicle does not include a rail passenger car, railroad locomotive, railroad freight car, railroad caboose, or a railroad car described in section 242 or covered under this title. SEC. 302. PROHIBITION OF DISCRIMINATION BY PUBLIC ACCOMMODATIONS. (a) General Rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommoda tions of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. (b) Construction. (1) General prohibition. (A) Activities. (i) Denial of participation. It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. (ii) Participation in unequal benefit. It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privi lege, advantage, or accommodation that is not equal to that afforded to other individu als. (iii) Separate benefit. It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accom modation, or other opportunity that is as effective as that provided to others. (iv) Individual or class of individuals. For purposes of clauses (i) through (iii) of this subparagraph, the term individual or class of individuals refers to the clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement. (B) Integrated settings. Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual. (C) Opportunity to participate. Notwithstanding the existence of separate or different programs or activities provided in accordance with this section, an individual with a disability shall not be denied the opportunity to participate in such programs or activities that are not separate or different. (D) Administrative methods. An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administra tion (i) that have the effect of discriminating on the basis of disability; or (ii) that perpetuate the discrimination of others who are subject to common administrative control. (E) Association. It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. (2) Specific prohibitions. (A) Discrimination. For purposes of subsection (a), discrimination includes (i) the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provi sion of the goods, services, facilities, privileges, advantages, or accommodations being offered; (ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations; (iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differ ently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden; (iv) a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and (v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable. (B) Fixed route system. (i) Accessibility. It shall be considered discrimination for a private entity which operates a fixed route system and which is not subject to section 304 to purchase or lease a vehicle with a seating capacity in excess of 16 passengers (including the driver) for use on such system, for which a solicitation is made after the 30th day following the effective date of this --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00032Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 45:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) subparagraph, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. (ii) Equivalent service. If a private entity which operates a fixed route system and which is not subject to section 304 purchases or leases a vehicle with a seating capacity of 16 passengers or less (including the driver) for use on such system after the effective date of this subparagraph that is not readily accessible to or usable by individuals with disabilities, it shall be considered discrimination for such entity to fail to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheel chairs, equivalent to the level of service provided to individuals without disabilities. (C) Demand responsive system. For purposes of subsection (a), discrimination includes (i) a failure of a private entity which operates a demand responsive system and which is not subject to section 304 to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities; and (ii) the purchase or lease by such entity for use on such system of a vehicle with a seating capacity in excess of 16 passengers (including the driver), for which solicita tions are made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities (including individuals who use wheelchairs) unless such entity can demonstrate that such system, when viewed in its entirety, provides a level of service to individuals with disabilities equivalent to that provided to individuals without disabilities. (D) Over-the-road buses. (i) Limitation on applicability. Subparagraphs (B) and (C) do not apply to over-the-road buses. (ii) Accessibility requirements. For purposes of subsection (a), discrimination includes (I) the purchase or lease of an over-the-road bus which does not comply with the regulations issued under section 306(a)(2) by a private entity which provides transportation of individuals and which is not primarily engaged in the business of transporting people, and (II) any other failure of such entity to comply with such regulations. (3) Specific Construction. Nothing in this title shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advan tages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or proce dures or by the provision of auxiliary aids or services. SEC. 303. NEW CONSTRUCTION AND ALTERATIONS IN PUBLIC ACCOMMODATIONS AND COMMERCIAL FACILITIES. (a) Application of Term. Except as provided in subsection (b), as applied to public accom modations and commercial facilities, discrimination for purposes of section 302(a) includes (1) a failure to design and construct facilities for first occupancy later than 30 months after the date of enactment of this Act that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this title; and (2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). (b) Elevator. Subsection (a) shall not be construed to require the installation of an elevator for facilities that are less than three stories or have less than 3,000 square feet per story unless the building is a shopping center, a shopping mall, or the professional office of a health care provider or unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities. SEC. 304. PROHIBITION OF DISCRIMINATION IN SPECIFIED PUBLIC TRANSPORTA TION SERVICES PROVIDED BY PRIVATE ENTITIES. (a) General Rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce. (b) Construction. For purposes of subsection (a), discrimination includes (1) the imposition or application by a entity described in subsection (a) of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully enjoying the specified public transportation services provided by the entity, unless such criteria can be shown to be necessary for the provision of the services being offered; (2) the failure of such entity to (A) make reasonable modifications consistent with those required under section 302(b)(2)(A)(ii); (B) provide auxiliary aids and services consistent with the requirements of section 302(b)(2)(A)(iii); and (C) remove barriers consistent with the requirements of section 302(b)(2)(A) and with the requirements of section 303(a)(2); (3) the purchase or lease by such entity of a new vehicle (other than an automobile, a van with a seating capacity of less than 8 passengers, including the driver, or an over-the-road bus) which is to be used to provide specified public transportation and for which a solicitation is made after the 30th day following the effective date of this section, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; except that the new vehicle need not be readily accessible to and usable by such individuals if the new vehicle is to be used solely in a demand responsive system and if the entity can demonstrate that such system, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service provided to the general public; (4)(A) the purchase or lease by such entity of an over-the-road bus which does not comply with the regulations issued under section 306(a)(2); and (B) any other failure of such entity to comply with such regulations; and (5) the purchase or lease by such entity of a new van with a seating capacity of less than 8 passengers, including the driver, which is to be used to provide specified public transporta tion and for which a solicitation is made after the 30th day following the effective date of this section that is not readily accessible to or usable by individuals with disabilities, including individuals who use wheelchairs; except that the new van need not be readily accessible to and usable by such individuals if the entity can demonstrate that the system for which the van is being purchased or leased, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service provided to the general public; (6) the purchase or lease by such entity of a new rail passenger car that is to be used to provide specified public transportation, and for which a solicitation is made later than 30 days after the effective date of this paragraph, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; and (7) the remanufacture by such entity of a rail passenger car that is to be used to provide specified public transportation so as to extend its usable life for 10 years or more, or the purchase or lease by such entity of such a rail car, unless the rail car, to the maximum extent feasible, is made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. (c) Historical or Antiquated Cars. (1) Exception. To the extent that compliance with subsection (b)(2)(C) or (b)(7) would significantly alter the historic or antiquated character of a historical or antiquated rail passenger car, or a rail station served exclusively by such cars, or would result in violation of any rule, regulation, standard, or order issued by the Secretary of Transportation under the Federal Railroad Safety Act of 1970, such compliance shall not be required. (2) Definition. As used in this subsection, the term historical or antiquated rail passenger car means a rail passenger car (A) which is not less than 30 years old at the time of its use for transporting individu als; (B) the manufacturer of which is no longer in the business of manufacturing rail passenger cars; and (C) which (i) has a consequential association with events or persons significant to the past; or (ii) embodies, or is being restored to embody, the distinctive characteristics of a type of rail passenger car used in the past, or to represent a time period which has passed. SEC. 305. STUDY. (a) Purposes. The Office of Technology Assessment shall undertake a study to determine (1) the access needs of individuals with disabilities to over-the-road buses and over-the-road bus service; and (2) the most cost-effective methods for providing access to over-the- road buses and over-the-road bus service to individuals with disabilities, particularly individuals who use wheelchairs, through all forms of boarding options. (b) Contents. The study shall include, at a minimum, an analysis of the following: (1) The anticipated demand by individuals with disabilities for accessible over-the-road buses and over-the-road bus service. (2) The degree to which such buses and service, including any service required under sections 304(b)(4) and 306(a)(2), are readily accessible to and usable by individuals with disabilities. (3) The effectiveness of various methods of providing accessibility to such buses and service to individuals with disabilities. (4) The cost of providing accessible over-the-road buses and bus service to individuals with disabilities, including consideration of recent technological and cost saving developments in equipment and devices. (5) Possible design changes in over-the-road buses that could enhance accessibility, including the installation of accessible restrooms which do not result in a loss of seating capacity. (6) The impact of accessibility requirements on the continuation of over-the-road bus service, with particular consideration of the impact of such requirements on such service to rural communities. (c) Advisory Committee. In conducting the study required by subsection (a), the Office of Technology Assessment shall establish an advisory committee, which shall consist of (1) members selected from among private operators and manufacturers of over-the-road buses; (2) members selected from among individuals with disabilities, particularly individuals who use wheelchairs, who are potential riders of such buses; and (3) members selected for their technical expertise on issues included in the study, including manufacturers of boarding assistance equipment and devices. The number of members selected under each of paragraphs (1) and (2) shall be equal, and the total number of members selected under paragraphs (1) and (2) shall exceed the number of members selected under paragraph (3). (d) Deadline. The study required by subsection (a), along with recommendations by the Office of Technology Assessment, including any policy options for legislative action, shall be submitted to the President and Congress within 36 months after the date of the enactment of this Act. If the President determines that compliance with the regulations issued pursuant to section 306(a)(2)(B) on or before the applicable deadlines specified in section 306(a)(2)(B) will result in a significant reduction in intercity over-the-road bus service, the President shall extend each such deadline by 1 year. (e) Review. In developing the study required by subsection (a), the Office of Technology Assessment shall provide a preliminary draft of such study to the Architectural and Transportation Barriers Compliance Board established under section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792). The Board shall have an opportunity to comment on such draft study, and any such comments by the Board made in writing within 120 days after the Board s receipt of the draft study shall be incorporated as part of the final study required to be submitted under subsection (d). SEC. 306. REGULATIONS. (a) Transportation Provisions. (1) General rule. Not later than 1 year after the date of the enactment of this Act, the Secretary of Transportation shall issue regulations in an accessible format to carry out sections 302(b)(2) (B) and (C) and to carry out section 304 (other than subsection (b)(4)). (2) Special rules for providing access to over-the-road buses. (A) Interim requirements. (i) Issuance. Not later than 1 year after the date of the enactment of this Act, the Secretary of Transportation shall issue regulations in an accessible format to carry out sections 304(b)(4) and 302(b)(2)(D)(ii) that require each private entity which uses an over-the-road bus to provide transportation of individuals to provide accessibility to such bus; except that such regulations shall not require any structural changes in over-the-road buses in order to provide access to individuals who --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00033Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 46:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) use wheelchairs during the effective period of such regulations and shall not require the purchase of boarding assistance devices to provide access to such individuals. (ii) Effective period. The regulations issued pursuant to this subparagraph shall be effective until the effective date of the regulations issued under subparagraph (B). (B) Final requirement. (i) Review of study and interim requirements. The Secretary shall review the study submitted under section 305 and the regulations issued pursuant to subparagraph (A). (ii) Issuance. Not later than 1 year after the date of the submission of the study under section 305, the Secretary shall issue in an accessible format new regulations to carry out sections 304(b)(4) and 302(b)(2)(D)(ii) that require, taking into account the purposes of the study under section 305 and any recommendations resulting from such study, each private entity which uses an over-the-road bus to provide transportation to individuals to provide accessibility to such bus to individuals with disabilities, including individuals who use wheelchairs. (iii) Effective period. Subject to section 305(d), the regulations issued pursuant to this subparagraph shall take effect (I) with respect to small providers of transportation (as defined by the Secre tary), 7 years after the date of the enactment of this Act; and (II) with respect to other providers of transportation, 6 years after such date of enactment. (C) Limitation on requiring installation of accessible restrooms. The regulations issued pursuant to this paragraph shall not require the installation of accessible restrooms in over-the-road buses if such installation would result in a loss of seating capacity. (3) Standards. The regulations issued pursuant to this subsection shall include standards applicable to facilities and vehicles covered by sections 302(b)(2) and 304. (b) Other Provisions. Not later than 1 year after the date of the enactment of this Act, the Attorney General shall issue regulations in an accessible format to carry out the provisions of this title not referred to in subsection (a) that include standards applicable to facilities and vehicles covered under section 302. (c) Consistency With ATBCB Guidelines. Standards included in regulations issued under subsections (a) and (b) shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 504 of this Act. (d) Interim Accessibility Standards. (1) Facilities. If final regulations have not been issued pursuant to this section, for new construction or alterations for which a valid and appropriate State or local building permit is obtained prior to the issuance of final regulations under this section, and for which the construction or alteration authorized by such permit begins within one year of the receipt of such permit and is completed under the terms of such permit, compliance with the Uniform Federal Accessibility Standards in effect at the time the building permit is issued shall suffice to satisfy the requirement that facilities be readily accessible to and usable by persons with disabilities as required under section 303, except that, if such final regulations have not been issued one year after the Architectural and Transportation Barriers Compliance Board has issued the supplemental minimum guidelines required under section 504(a) of this Act, compliance with such supplemental minimum guidelines shall be necessary to satisfy the requirement that facilities be readily accessible to and usable by persons with disabilities prior to issuance of the final regulations. (2) Vehicles and rail passenger cars. If final regulations have not been issued pursuant to this section, a private entity shall be considered to have complied with the requirements of this title, if any, that a vehicle or rail passenger car be readily accessible to and usable by individuals with disabilities, if the design for such vehicle or car complies with the laws and regulations (including the Minimum Guidelines and Requirements for Accessible Design and such supplemental minimum guidelines as are issued under section 504(a) of this Act) governing accessibility of such vehicles or cars, to the extent that such laws and regulations are not inconsistent with this title and are in effect at the time such design is substantially completed. SEC. 307. EXEMPTIONS FOR PRIVATE CLUBS AND RELIGIOUS ORGANIZATIONS. The provisions of this title shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e)) or to religious organizations or entities controlled by religious organizations, including places of worship. SEC. 308. ENFORCEMENT. (a) In General. (1) Availability of remedies and procedures. The remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000a-3(a)) are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this title or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 303. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this title does not intend to comply with its provisions. (2) Injunctive relief. In the case of violations of sections 302(b)(2)(A)(iv) and section 303(a), injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this title. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this title. (b) Enforcement by the Attorney General. (1) Denial of rights. (A) Duty to investigate. (i) In general. The Attorney General shall investigate alleged violations of this title, and shall undertake periodic reviews of compliance of covered entities under this title. (ii) Attorney general certification. On the application of a State or local govern ment, the Attorney General may, in consultation with the Architectural and Transpor tation Barriers Compliance Board, and after prior notice and a public hearing at which persons, including individuals with disabilities, are provided an opportunity to testify against such certification, certify that a State law or local building code or similar ordinance that establishes accessibility requirements meets or exceeds the minimum requirements of this Act for the accessibility and usability of covered facilities under this title. At any enforcement proceeding under this section, such certification by the Attorney General shall be rebuttable evidence that such State law or local ordinance does meet or exceed the minimum requirements of this Act. (B) Potential violation. If the Attorney General has reasonable cause to believe that (i) any person or group of persons is engaged in a pattern or practice of discrimi nation under this title; or (ii) any person or group of persons has been discriminated against under this title and such discrimination raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court. (2) Authority of court. In a civil action under paragraph (1)(B), the court (A) may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this title (i) granting temporary, preliminary, or permanent relief; (ii) providing an auxiliary aid or service, modification of policy, practice, or procedure, or alternative method; and (iii) making facilities readily accessible to and usable by individuals with disabili ties; (B) may award such other relief as the court considers to be appropriate, including monetary damages to persons aggrieved when requested by the Attorney General; and (C) may, to vindicate the public interest, assess a civil penalty against the entity in an amount (i) not exceeding $50,000 for a first violation; and (ii) not exceeding $100,000 for any subsequent violation. (3) Single violation. For purposes of paragraph (2)(C), in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation. (4) Punitive damages. For purposes of subsection (b)(2)(B), the term monetary damages and such other relief does not include punitive damages. (5) Judicial consideration. In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this Act by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability. SEC. 309. EXAMINATIONS AND COURSES. Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals. SEC. 310. EFFECTIVE DATE. (a) General Rule. Except as provided in subsections (b) and (c), this title shall become effective 18 months after the date of the enactment of this Act. (b) Civil Actions. Except for any civil action brought for a violation of section 303, no civil action shall be brought for any act or omission described in section 302 which occurs (1) during the first 6 months after the effective date, against businesses that employ 25 or fewer employees and have gross receipts of $1,000,000 or less; and (2) during the first year after the effective date, against businesses that employ 10 or fewer employees and have gross receipts of $500,000 or less. (c) Exception. Sections 302(a) for purposes of section 302(b)(2) (B) and (C) only, 304(a) for purposes of section 304(b)(3) only, 304(b)(3), 305, and 306 shall take effect on the date of the enactment of this Act. TITLE IV TELECOMMUNICATIONS SEC. 401. TELECOMMUNICATIONS RELAY SERVICES FOR HEARING-IMPAIRED AND SPEECH-IMPAIRED INDIVIDUALS. (a) Telecommunications. Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding at the end thereof the following new section: SEC. 225. TELECOMMUNICATIONS SERVICES FOR HEARING-IMPAIRED AND SPEECH-IMPAIRED INDIVIDUALS. (a) Definitions. As used in this section (1) Common carrier or carrier. The term common carrier or carrier includes any common carrier engaged in interstate communication by wire or radio as defined in section 3(h) and any common carrier engaged in intrastate communication by wire or radio, notwith standing sections 2(b) and 221(b). (2) TDD. The term TDD means a Telecommunications Device for the Deaf, which is a machine that employs graphic communication in the transmission of coded signals through a wire or radio communication system. (3) Telecommunications relay services. The term telecommunications relay services means telephone transmission services that provide the ability for an individual who has a hearing impairment or speech impairment to engage in communication by wire or radio with a hearing individual in a manner that is functionally equivalent to the ability of an individual who does not have a hearing impairment or speech impairment to communicate using voice communication services by wire or radio. Such term includes services that enable two-way communication between an individual who uses a TDD or other nonvoice terminal device and an individual who does not use such a device. (b) Availability of Telecommunications Relay Services. (1) In general. In order to carry out the purposes established under section 1, to make available to all individuals in the United States a rapid, efficient nationwide communication service, and to increase the utility of the telephone system of the Nation, the Commission shall ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States. (2) Use of General Authority and Remedies. For the purposes of administering and enforcing the provisions of this section and the regulations prescribed thereunder, the Commission shall have the same authority, power, and functions with respect to common carriers engaged in intrastate communication as the Commission has in administering and enforcing the provisions of this title with respect to any common carrier engaged in interstate communication. Any violation of this section by any common carrier engaged in intrastate communication shall be subject to the same remedies, penalties, and procedures as are applicable to a violation of this Act by a common carrier engaged in interstate communication. (c) Provision of Services. Each common carrier providing telephone voice transmission services shall, not later than 3 years after the date of enactment of this section, provide in compliance with the regulations prescribed under this section, throughout the area in which it offers service, telecommunications relay services, individually, through designees, through a competitively selected vendor, or in concert with other carriers. A common carrier shall be considered to be in compliance with such regulations (1) with respect to intrastate telecommunications relay services in any State that does not have a certified program under subsection (f) and with respect to interstate telecommunica tions relay services, if such common carrier (or other entity through which the carrier is providing such relay services) is in compliance with the Commission s regulations under subsection (d); or (2) with respect to intrastate telecommunications relay services in any State that has a certified program under subsection (f) for such State, if such common carrier (or other --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045) --------------- FIDO MESSAGE AREA==> TOPIC: 233 NFB BLIND NEWS Ref: EBY00034Date: 07/28/97 From: JULIE DAWSON Time: 11:00am \/To: ALL (Read 0 times) Subj: 47:Equality of Opportunity -- HISTORY.TX11:00:3307/28/97 From: Julie Dawson Subject: Equality of Opportunity -- HISTORY.TXT (fwd) entity through which the carrier is providing such relay services) is in compliance with the program certified under subsection (f) for such State. (d) Regulations. (1) In general. The Commission shall, not later than 1 year after the date of enactment of this section, prescribe regulations to implement this section, including regulations that (A) establish functional requirements, guidelines, and operations procedures for telecommunications relay services; (B) establish minimum standards that shall be met in carrying out subsection (c); (C) require that telecommunications relay services operate every day for 24 hours per day; (D) require that users of telecommunications relay services pay rates no greater than the rates paid for functionally equivalent voice communication services with respect to such factors as the duration of the call, the time of day, and the distance from point of origination to point of termination; (E) prohibit relay operators from failing to fulfill the obligations of common carriers by refusing calls or limiting the length of calls that use telecommunications relay services; (F) prohibit relay operators from disclosing the content of any relayed conversation and from keeping records of the content of any such conversation beyond the duration of the call; and (G) prohibit relay operators from intentionally altering a relayed conversation. (2) Technology. The Commission shall ensure that regulations prescribed to implement this section encourage, consistent with section 7(a) of this Act, the use of existing technology and do not discourage or impair the development of improved technology. (3) Jurisdictional separation of costs. (A) In general. Consistent with the provisions of section 410 of this Act, the Commission shall prescribe regulations governing the jurisdictional separation of costs for the services provided pursuant to this section. (B) Recovering costs. Such regulations shall generally provide that costs caused by interstate telecommunications relay services shall be recovered from all subscribers for every interstate service and costs caused by intrastate telecommunications relay services shall be recovered from the intrastate jurisdiction. In a State that has a certified program under subsection (f), a State commission shall permit a common carrier to recover the costs incurred in providing intrastate telecommunications relay services by a method consistent with the requirements of this section. (e) Enforcement. (1) In general. Subject to subsections (f) and (g), the Commission shall enforce this section. (2) Complaint. The Commission shall resolve, by final order, a complaint alleging a violation of this section within 180 days after the date such complaint is filed. (f) Certification. (1) State documentation. Any State desiring to establish a State program under this section shall submit documentation to the Commission that describes the program of such State for implementing intrastate telecommunications relay services and the procedures and remedies available for enforcing any requirements imposed by the State program. (2) Requirements for certification. After review of such documentation, the Commis sion shall certify the State program if the Commission determines that (A) the program makes available to hearing-impaired and speech-impaired individu als, either directly, through designees, through a competitively selected vendor, or through regulation of intrastate common carriers, intrastate telecommunications relay services in such State in a manner that meets or exceeds the requirements of regulations prescribed by the Commission under subsection (d); and (B) the program makes available adequate procedures and remedies for enforcing the requirements of the State program. (3) Method of funding. Except as provided in subsection (d), the Commission shall not refuse to certify a State program based solely on the method such State will implement for funding intrastate telecommunication relay services. (4) Suspension or revocation of certification. The Commission may suspend or revoke such certification if, after notice and opportunity for hearing, the Commission determines that such certification is no longer warranted. In a State whose program has been suspended or revoked, the Commission shall take such steps as may be necessary, consistent with this section, to ensure continuity of telecommunications relay services. (g) Complaint. (1) Referral of complaint. If a complaint to the Commission alleges a violation of this section with respect to intrastate telecommunications relay services within a State and certification of the program of such State under subsection (f) is in effect, the Commission shall refer such complaint to such State. (2) Jurisdiction of commission. After referring a complaint to a State under paragraph (1), the Commission shall exercise jurisdiction over such complaint only if (A) final action under such State program has not been taken on such complaint by such State (i) within 180 days after the complaint is filed with such State; or (ii) within a shorter period as prescribed by the regulations of such State; or (B) the Commission determines that such State program is no longer qualified for certification under subsection (f). . (b) Conforming Amendments. The Communications Act of 1934 (47 U.S.C. 151 et seq.) is amended (1) in section 2(b) (47 U.S.C. 152(b)), by striking section 224 and inserting sections 224 and 225 ; and (2) in section 221(b) (47 U.S.C. 221(b)), by striking section 301 and inserting sections 225 and 301 . SEC. 402. CLOSED-CAPTIONING OF PUBLIC SERVICE ANNOUNCEMENTS. Section 711 of the Communications Act of 1934 is amended to read as follows: SEC. 711. CLOSED-CAPTIONING OF PUBLIC SERVICE ANNOUNCEMENTS. Any television public service announcement that is produced or funded in whole or in part by any agency or instrumentality of Federal Government shall include closed captioning of the verbal content of such announcement. A television broadcast station licensee (1) shall not be required to supply closed captioning for any such announcement that fails to include it; and (2) shall not be liable for broadcasting any such announcement without transmitting a closed caption unless the licensee intentionally fails to transmit the closed caption that was included with the announcement. . TITLE V MISCELLANEOUS PROVISIONS SEC. 501. CONSTRUCTION. (a) In General. Except as otherwise provided in this Act, nothing in this Act shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title. (b) Relationship to Other Laws. Nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivi sion of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act. Nothing in this Act shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employ ment covered by title I, in transportation covered by title II or III, or in places of public accom modation covered by title III. (c) Insurance. Titles I through IV of this Act shall not be construed to prohibit or restrict (1) an insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (2) a person or organization covered by this Act from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (3) a person or organization covered by this Act from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance. Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of title I and III. (d) Accommodations and Services. Nothing in this Act shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to accept. SEC. 502. STATE IMMUNITY. A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State. SEC. 503. PROHIBITION AGAINST RETALIATION AND COERCION. (a) Retaliation. No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act. (b) Interference, Coercion, or Intimidation. It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this Act. (c) Remedies and Procedures. The remedies and procedures available under sections 107, 203, and 308 of this Act shall be available to aggrieved persons for violations of subsections (a) and (b), with respect to title I, title II and title III, respectively. SEC. 504. REGULATIONS BY TO THE ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD. (a) Issuance of Guidelines. Not later than 9 months after the date of enactment of this Act, the Architectural and Transportation Barriers Compliance Board shall issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of titles II and III of this Act. (b) Contents of Guidelines. The supplemental guidelines issued under subsection (a) shall establish additional requirements, consistent with this Act, to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities. (c) Qualified Historic Properties (1) In general. The supplemental guidelines issued under subsection (a) shall include procedures and requirements for alterations that will threaten or destroy the historic signifi cance of qualified historic buildings and facilities as defined in 4.1.7(1)(a) of the Uniform Federal Accessibility Standards. (2) Sites eligible for listing in national register. With respect to alterations of buildings or facilities that are eligible for listing in the National Register of Historic Places under the National Historic Preservation Act (16 U.S.C. 470 et seq.), the guidelines described in paragraph (1) shall, at a minimum, maintain the procedures and requirements established in 4.1.7 (1) and (2) of the Uniform Federal Accessibility Standards. (3) Other sites. With respect to alterations of buildings or facilities designated as historic under State or local law, the guidelines described in paragraph (1) shall establish procedures equivalent to those established by 4.1.7(1) (b) and (c) of the Uniform Federal Accessibility Standards, and shall require, at a minimum, compliance with the requirements established in 4.1.7(2) of such standards. SEC. 505. ATTORNEY S FEES. In any action or administrative proceeding commenced pursuant to this Act, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reason able attorney s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. SEC. 506. TECHNICAL ASSISTANCE. (a) Plan for Assistance. (1) In general. Not later than 180 days after the date of enactment of this Act, the Attorney General, in consultation with the Chair of the Equal Employment Opportunity Commission, the Secretary of Transportation, the Chair of the Architectural and Transporta tion Barriers Compliance Board, and the Chairman of the Federal Communications Commis sion, shall develop a plan to assist entities covered under this Act, and other Federal agencies, in understanding the responsibility of such entities and agencies under this Act. (2) Publication of plan. The Attorney General shall publish the plan referred to in paragraph (1) for public comment in accordance with subchapter II of chapter 5 of title 5, United States Code (commonly known as the Administrative Procedure Act). (b) Agency and Public Assistance. The Attorney General may obtain the assistance of other Federal agencies in carrying out subsection (a), including the National Council on Disability, the President s Committee on Employment of People with Disabilities, the Small Business Adminis tration, and the Department of Commerce. (c) Implementation. (1) Rendering assistance. Each Federal agency that has responsibility under paragraph (2) for implementing this Act may render technical assistance to individuals and institutions that have rights or duties under the respective title or titles for which such agency has responsibility. (2) Implementation of titles. (A) Title I. The Equal Employment Opportunity Commission and the Attorney General shall implement the plan for assistance developed under subsection (a), for title I. (B) Title ii. (i) Subtitle a. The Attorney General shall implement such plan for assistance for subtitle A of title II. (ii) Subtitle b. The Secretary of Transportation shall implement such plan for assistance for subtitle B of title II. (C) Title iii. The Attorney General, in coordination with the Secretary of Transporta tion and the Chair of the Architectural Transportation Barriers Compliance Board, shall implement such plan for assistance for title III, except for --- * Origin: NFBnet <--> Internet Email Gateway (1:282/1045)