The axiom of preventive law is that we live in such a litigious society that you can’t prevent a lawsuit. However, you can take steps where if you get sued you can win that lawsuit. A case that illustrates as to what happens when you do not have preventive law systems is United Spinal Association v. Board of Elections in the City of New York, _ F. Supp. 2d__, 2012 WL 3222663 (S.D. N.Y. August 8, 2012) (this case was recently profiled in an USA today article), an abbreviated version of which I found on the Internet. In this case, United Spinal Association and Disabled in Action, organizations consisting of people with mobility and/or vision impairments residing in New York City and who are registered to vote, brought a suit against the Board of Elections in the city of New York alleging violations of title II and § 504 of the Rehabilitation Act. That is, the suit alleged that the Board of Elections in the city of New York violated title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act because voting places were in many cases inaccessible to people with disabilities. Id. at**1-6. In a decision by Deborah Batts of the Southern District of New York, the court granted summary judgment to the plaintiffs finding that the Board of Elections in the city of New York simply did not provide meaningful access to persons with disabilities with respect to voting. Id. at **1,11. Some of the things that the court said that the Board of Elections in New York simply do not do or have in place included: 1) when the Americans with Disabilities Act went into effect, it required public entities to do a self-evaluation and then develop a transition plan so as to notify the public as to how it would come into compliance with the Americans with Disabilities Act, and the Board of Elections in the city of New York had done no such thing. Id. at *5. Second, the Americans with Disabilities Act also requires governmental entities having 50 or more employees to have an Americans with Disabilities Act coordinator and the Board of Elections in the city of New York had no such thing. Id. Third, evidence was presented that many voting sites were not visited on election days by Board of Elections personnel and that complaints to the Board of Election were not resolved. Id. at *11. Finally, the court noted with approval the plaintiffs suggestion that the Board of Elections have an individual identified among on-site poll workers at each location to monitor poll site accessibility. Id. The court also noted with approval plaintiffs suggestion that the Board of Election partner with the third-party in order to assess and identify accessibility needs and possible solutions in time for the upcoming presidential election. Id.
Preventive law tips: This case gives us a lot of preventive law tips. First, a governmental entity of 50 or more employees is required to have a person designated as an Americans with Disabilities Act coordinator as well as an internal grievance procedure for handling complaints of disability-based discrimination. See 28 C.F.R. § 35.107. Since they already take federal funds in all probability, they should already have a § 504 coordinator. There is no reason why the 504 coordinator and the ADA coordinator cannot be the same. Further, this ADA/504 coordinator should be prepared to deal with issues beyond just employment, and be able to call on knowledgeable legal counsel whenever appropriate. Second, if you are a governmental entity and have not done a self-evaluation and a transition plan (I have been surprised over the years at the number of governmental entities that did not do this within the timeframe required by the Americans with Disabilities Act), you may want to get with legal counsel to see if it would be a good idea to do one now. Regardless, preventive law demands that even if you do not do a formal transition and self-evaluation plan that it be done informally as the risks need to be known. Third, remember that “fundamental alteration,” is a different concept than inconvenience. Finally, make sure there is a system for taking complaints about issues dealing with inaccessibility and a way to resolve them.