Request By:
Mr. James L. Cherry
President
Action League for
Physically Handicapped Adults
3901 Atkinson Drive
Louisville, Kentucky 40218
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter which we received on March 11, 1977 (being your second mailing of this letter as we did not receive your first one of January 10, 1977) in which you ask if it would not be reasonable to construe the intent of the 1976 Equal Opportunities Act (KRS 207.130 - KRS 207.240), specifically KRS 207.150 therein, as requiring that all new construction and renovation of places of employment be in a manner to include barrier-free design to ensure handicapped citizens equal employment opportunities.
We presume that your organization is asking about employers in the private sector since, as we will discuss at the end of this letter, recent enactments by the Kentucky Legislature have provided a means to help eliminate this problem in public buildings or places of public accommodation.
First, we note that subsection (1) of KRS 207.150 contains the following language:
No employer shall fail or refuse to hire, discharge or discriminate against any handicapped individual with respect to wages, rates of pay, hours, or such persons' physical handicap unless such handicap restricts that individual's ability to engage in the particular job or occupation for which he or she is eligible, or unless otherwise provided by law; nor shall any employer limit, segregate or classify handicapped individuals in any way which would deprive or tend to deprive any handicapped individual of employment opportunities or otherwise affect employe status because of physical handicap, unless such handicap constitutes a bona fide and necessary reason for such limitation, segregation or classification. This subsection shall not be construed to require any employer to modify his physical facilities or grounds in any way, or exercise a higher degree of caution for a handicapped individual than for any person who is not a handicapped individual.
Specifically in your letter, you state:
The obvious reason for not requiring modifications of places of employment was to protect employers against being required to make expensive renovations to existing buildings. If the above reasoning is a valid consideration, isn't it also valid to construe the intent of the law to require that all new construction and renovations of places of employment constructed after the enactment of the 1976 Equal Opportunities Act shall include Barrier Free Design to ensure handicapped citizens equal employment opportunities?
This office appreciates your letter. However, from the above quote from your letter, we are of the opinion that your organization is attempting to construe the intent of the Legislature by what it did not say in light of what it did say. As recognized in
Lewis v. Creasey Corporation, Ky., 248 S.W. 1046 (1923), the primary rule for the construction of statutes is to ascertain the intention of the Legislature from the words it employed in enacting the statute, and not what the Legislature may have intended but did not express. See Lewis, Ky., 248 S.W. at 1048. Thus, though we may ascertain the intent of the Legislature here from the words it did employ, viz no required renovation of existing structures for handicapped employees, this office is of the opinion that we may not ascertain the intention of the Legislature from the words it did not express, viz a construction of the statute that no new building be erected except with barrier-free design for the handicapped employee.
Concerning the elimination of the problem in which your organization is interested, we are including copies of KRS 227.200 through KRS 227.400, including KRS 227.300, as amended, 1976. Note, in particular, KRS 227.200(b) and (c), defining public buildings and places of public accommodation respectively, and KRS 227.230 and KRS 227.305, providing for the state fire marshall's issuance of minimum requirements for facilities for physically handicapped persons in public buildings and places of public accommodations to be constructed or remodeled after June 21, 1974.