Judge Furman Rules That New York City’s Emergency Planning Violates Disability Laws; Orders Parties to Confer on Remedy

This mountain of evidence and argument confirms that planning for, and responding to, emergencies and disasters is a Herculean task, and that, in many — perhaps most — respects, the City has done an outstanding job. But it also reveals that while the City’s emergency preparedness program adequately accommodates the needs of people with disabilities in some respects, it fails to do so in others. Most significantly, the City’s plans are inadequate to ensure that people with disabilities are able to evacuate before or during an emergency; they fail to provide sufficiently accessible shelters; and they do not sufficiently inform people with disabilities of the availability and location of accessible emergency services. Notably, there is no evidence that these failures are a result of intentional discrimination by the City against people with disabilities. But the ADA, the Rehabilitation Act, and the NYCHRL seek to prevent not only intentional discrimination against people with disabilities, but also — indeed, primarily — discrimination that results from “benign neglect.” Alexander v. Choate, 469 U.S. 287, 301 (1985). Moreover, these laws require that a government entity do more than provide a program on equal terms to those with and without disabilities; they require “affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 275 (2d Cir. 2003). The evidence shows that the City has not done so in various ways.

As noted above, the trial in this case was limited to the question of liability. Having found that the City violated the ADA, the Rehabilitation Act, and the NYCHRL in several respects, the Court will proceed to consider the issue of how to remedy those violations. Given the complexity and potential expense involved, there is no question that crafting an appropriate remedy would be better accomplished by those with expertise in such matters and through negotiation, whether court-supervised or otherwise, than by Court order. Further, the United States has indicated that it is able and willing to assist the parties and, if necessary, the Court in addressing the question of remedy. (Statement of Interest of the United States 1 n.2). The parties are therefore directed to meet and confer — in person and with representatives of the Department of Justice, if they elect to participate — about the most productive means of resolving the question of remedies through alternative dispute mechanisms. At the same time, mindful that the Court will impose remedies if the parties cannot agree on them, the parties shall discuss the process and schedule for the remaining litigation, including but not limited to whether there is a need for additional discovery, whether the parties anticipate motion practice, and whether there is a need for another trial on remedies.