Lawsuit Against New York City Shows Importance of Inclusive Planning for People with Disabilities
By Elizabeth Webster, Senior Law & Policy Analyst
At the FEMA National Preparedness Symposium this past August, June Isaacson Kailes, Disability Policy Consultant and Associate Director for the Center for Disability and Health Policy at Western University of Health, stated that, “disasters are always inclusive; response and recovery are not, unless we plan for it.”
New York City now has a class-action lawsuit proceeding against it for just this reason: the City, allegedly, failed to adequately address the needs of people with disabilities in its emergency preparedness plans, and these community members were adversely impacted by Hurricane Irene (and then again by Hurricane Sandy). This case follows a trend in litigation centering on the failure of local governments to adequately plan for people with disabilities as part of their emergency preparedness programs. Several previous cases have found that such a failure to plan discriminates against people with disabilities in violation of Title II of the Americans with Disabilities Act (ADA), as well as Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act). In a 2011 case, Plaintiffs successfully showed the City of Los Angeles violated the ADA and the Rehabilitation Act based on the failure of its emergency preparedness programs to address the unique needs of people with disabilities. Additionally, in 2007, the U.S. Department of Justice (DOJ) began an investigation into the emergency operations program of Broward County, Florida to review its emergency preparedness and management program for ADA compliance. The DOJ found that improvements needed to be made to Broward County’s emergency management procedures and policies, trainings, and shelter facilities in order for them to meet the needs of people with disabilities and to be ADA compliant.
It is the New York City Office of Emergency Management’s responsibility to develop emergency plans, and yet the Plaintiffs in the current case argue that “New Yorkers with disabilities had no idea how they could be evacuated, what shelters, if any, were accessible, how they would obtain life-sustaining medications, or how they could be transported when buses and subways stopped running.”1 The complaint also provided many specific examples of ways the City’s plans and response efforts failed to be accessible, including alleging the inaccessibility of City shelters, which, in some cases, resulted in the turning away of City residents with disabilities, as well as the failure to include American Sign Language interpreters during televised emergency announcements, and the early cessation of accessible transportation, including paratransit, bus, and subway services, well in advance of when the hurricane was supposed to impact New York.
The problem is that although the City has planned for the “general” public, the City’s emergency plans are inadequate and/or fail to provide for the needs of people with disabilities. Therefore, the Plaintiffs seek a declaration that this is a violation of the ADA, the Rehabilitation Act, and the New York City Human Rights Law. The Plaintiffs also want the City to be required to “develop and implement a[n] emergency preparedness program that addresses the unique needs of people with disabilities during emergencies.” The Plaintiffs’ request is reasonable; they simply want the City to be required to address its planning deficiencies.
At this time, the class of “[a]ll people with disabilities, as defined by the Americans with Disabilities Act, who are within the City of New York and the jurisdiction served by the City of New York’s emergency preparedness programs and services” has been certified, and, this December, the case will move forward on the issue of whether the City failed in its planning responsibilities.
Advocating for the equal treatment of all people, which of course includes people with disabilities, is critical. Cases brought against localities for ADA and other violations are an important step in changing the culture of emergency management, and ensuring people with disabilities are adequately planned for. Right now, New York City and the United States, generally, are still working towards inclusiveness. Disability advocacy groups have encouraged efforts to integrate and include people with disabilities and functional needs in the planning process, so we can plan with people with disabilities and functional needs, for people with disabilities and functional needs. As the Plaintiffs’ pleading states, this will help ensure people’s unique needs are met. At the very least, this case, and those like it, will reinforce and raise awareness about the importance of including all members of the community in the emergency planning process. This will hopefully lead other offices of emergency management to reevaluate their plans and procedures to ensure they are inclusive, and to develop strategies to achieve inclusiveness.
1. For more information on the case, see Trial Pleading for the Brooklyn Center for Independence of the Disabled et al. v. Michael R. Bloomberg and the City of New York, No. 11 CIV 6690 (S.D.N.Y. Sept. 26, 2011), 2011 WL 4445718.