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. 
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