The City of Buffalo isn’t complying with disability civil rights law
On July 26, the 32nd anniversary of the Americans with Disabilities Act (ADA), leaders of Buffalo’s disability community held a news conference and called on their city to respect their rights under federal law.
“I'm ashamed to say that Buffalo does not have an ADA coordinator as of yet,” said BJ Stasio, Buffalo resident and co-vice president of the Self Advocacy Association of New York State (SANYS), which represents and is run by people with developmental disabilities.
Under Title II of the ADA, municipalities with over 50 employees are required to have an appointed ADA coordinator, who handles complaints, accommodations, and ensures the city is not in violation of federal law.
At the time of the news conference, the city had been without a coordinator for seven months, and according to WBFO investigation, still does not. It has been 11 months since the position was filled.
“We need somebody we can go to and say this [concern] needs to be dealt with or people can get in real serious trouble in their lives if they don't have the supports that they need,” said Mike Rogers, the SANYS western region organizer.
An ADA Coordinator isn’t just a legal obligation. For disabled residents, the ADA coordinator can serve as the gateway to accessing city services and vital communications.
For example, in Buffalo, at least 7,800 people are Deaf, hard of hearing or have a hearing disability, according to U.S. Census data. However, a WBFO investigation has found Mayor Byron Brown’s administration still struggles to provide ASL interpretation at all news conferences, despite disability organizations and Deaf residents voicing their concerns directly to the mayor for over 20 months. Providing interpreters is an accommodation an ADA coordinator would be responsible for coordinating.
“We want to be clear about the fact that the mayor's response on this issue in the past has been quite frustrating, which is why we're shocked that at this point, on the 32nd anniversary, we need to bring it to the public's attention,” Todd Vaarwerk, chief policy officer at Western New York Independent Living, said at the July news conference.
“Every day the city doesn't have one, they're in violation of federal law,” Vaarwerk added.
And this is not the city’s only violation of Title II of the ADA.
Title II requires not only a publicly-known and knowledgeable appointed ADA coordinator, but an up-to-date grievance procedure, an up-to-date disability discrimination form, and an up-to-date public notice of the city’s ADA provisions. WBFO was able to confirm through knowledgeable sources these documents have not been updated for at least six years, meaning, the city has been at face value, not compliant for at least six years.
As multiple sources have illustrated to us, non-compliance with the ADA has caused frustration and problems for disabled residents. Additionally, according to a legal expert, the city is also currently vulnerable to private lawsuits. The Department of Justice also has the ability to enforce the ADA, and has enforced provisions under Title II in other cities through lawsuits and settlements, according to their website.
A city spokesperson says that they’re in the process of hiring a full-time employee for the Mayor’s Office of Equity, Diversity and Inclusion, who would be appointed as the ADA coordinator.
At the same time, the lack of answers for the disability community has prompted a council member to propose a new “ADA advocate” position, who would handle both ADA coordination and disability advocacy. That resolution will be heard in Common Council today at 9:45 a.m.
Deaf community faces barriers due to accommodation inconsistencies
When a white supremacist shot and killed 10 Black people at the Tops Market on Jefferson Avenue on May 14, elected officials worked quickly to inform the public of what had happened.
By 5:50 p.m., three hours and twenty minutes after the shooting, Brown held a news conference with multiple other officials.
The one person missing was a sign language interpreter.
“There is a Deaf person that lives maybe a block, maybe two from Tops, and did express concern because wasn't sure what was going on,” said David Wantuck, who is a Deaf community member and works at Deaf Access Services. “When the emergency press briefing happened, all this person saw was a bunch of police cars coming in, ambulances, Emergency Response Team, and was not sure what was going on until later on, which was a very concerning matter.
According to Census data, over 4,000 Deaf, hard of hearing or people with hearing disabilities live on Buffalo’s East Side.
“Yes, emergencies happen. Things do get overlooked in certain ways,” Wantuck said, “but lives are at stake for everyone. And this was impactive for a person that lives walking distance from an incident that is very tragic.”
A review of videos on Brown’s Facebook page shows that in the next nine news conferences or distribution event updates he held and posted, none had a sign language interpreter (Brown is visible in eight of these videos). This includes a detailed, one-hour update on May 16. Brown did not appear with a sign language interpreter until a full week after the shooting, at a moment of silence for the victims on May 21.
This is not the first, nor the last time, that Brown was inconsistent with sign language interpreters.
“They have provided interpreters from time to time, but it seems like there are certain situations that does arise where the interpreters are not being provided, especially in big major cases, such as the Tops shooting and COVID,” said Wantuck, adding that it included when curfews were happening during the pandemic.
RELATED CONTENT: A timeline of the City of Buffalo’s lack of ADA coordinator, ASL interpretation
American Sign Language, or ASL, is not the same language as English. The National Institute on Deafness and other Communication Disorders explains ASL as “separate and distinct from English. It contains all the fundamental features of language, with its own rules for pronunciation, word formation, and word order.” That’s why ASL interpretation is important, especially for people who ASL is their first language. It’s also a right under the ADA for people with disabilities to request the effective means of communication that works best for them. Governments “are required to give primary consideration to the choice of aid or service requested by the person who has a communication disability,” according to ADA.gov.
The absence of an interpreter after the Tops shooting led Disability Rights New York to write to Brown explaining his legal obligation to provide an interpreter. The May letter cited a 2020 lawsuit DRNY filed against former New York Gov. Andrew Cuomo for a lack of ASL interpretation at his pandemic briefings. A judge granted a preliminary injunction requiring the Cuomo administration to include an in-frame ASL interpreter during televised briefings.
“Without in-screen, real-time ASL interpretation for important events and public statements, your community members who communicate using ASL are being denied access to important information from the City of Buffalo,” the letter read.
But this problem goes deeper than the interpreter.
When you have a concern or need an accommodation, where do you go?
“You have so many people who are expressing the same concern, its baffling that it's not being addressed sooner, rather than later, and yeah, again, it’s been 11 months since an ADA coordinator position has been filled,” said Wantuck.
Having an employee appointed to be the ADA coordinator is a requirement of Title II of the Americans With Disabilities Act for municipalities with over 50 employees. That employee would be responsible for handling complaints, ensuring compliance, and arranging accommodations, such as an interpreter.
“It's a legal requirement and they're not doing it,” said Todd Vaarwerk, the Chief Policy Officer at Western New York Independent Living. “I don't know how louder we can make it. What it shows, however unintentionally, it shows the mayor's belief that we don't matter.”
A city spokesperson confirmed to WBFO that the position has been vacant for almost a year.
“This [The ADA] is supposed to remedy this problem of accessing public programs and services. So it's like an affirmative duty, not a passive one,” said Attorney Melissa D. Wischerath, who specialized in disability law before joining Lipsitz Green Scime Cambria.
“Yes, the fact that there's not a publicly available or known coordinator is a problem. It begs the question like, are those complaints going if any? Are they being investigated?” added Wischerath.
WBFO attempted to go through the process of obtaining the complaint form and grievance procedure from City Hall that is required by law to be available and is under the responsibilities of an ADA coordinator.
The two copies of the complaint form and one copy of the grievance procedure we received had the name of an ADA coordinator that hasn’t worked here in 10 years. Delia Cadle (now Young), who was the city’s ADA coordinator until 2016, said she did update the documents and they were on the website. Those documents are no longer on the city’s website, and the names of the designated ADA coordinators on the website are incorrect and out of date.
“Imagine not being able to have the ability to speak. Imagine someone needing an interpreter. Imagine someone being blind walking in with a white cane. And take that exact same experience and apply it through those filters,” Vaarwerk said to WBFO. “Now you're a reporter doing research, you know the questions to ask, you've been advised to be patient. But after the first office doesn't help you and the second sends you somewhere else that sends you down somewhere that sends you back up somewhere. After about an hour and a half, what's your state of calm going to be? Now what happens is, is somewhere in that process, you blow your cool. What happens next? Now the cops are involved. And they're taking out the front door of City Hall.”
City hall employees pointed WBFO to Chief Diversity Officer Chantele Thompson multiple times. Despite visiting and calling her office three days in a row, she could not be reached.
Disability organizations and activists have also had trouble finding out who the ADA coordinator is. In a meeting in June with leaders in the disability community, Common Council President Darius Pridgen reached out to Deputy Mayor Crystal Rodriguez-Dabney to try to answer this question, according to Vaarwerk. Pridgen is told, and relays to those in the meeting, that Thompson has been appointed ADA coordinator.
However, in an email to a local disability organization obtained by WBFO, she states she is not the ADA coordinator.
“I am not the designated ADA Coordinator. The council person may have misspoken on that particular detail. However, I am assisting with addressing the needs concerning ASL interpretation,” Thompson wrote in the email.“The ADA Coordinator confirmation is in process with Legal and Human Resources. Once that individual is officially confirmed they will be working closely with my office as issues related to ADA will certainly be influenced by DEI related matters and vice versa. The ADA Committee formation is also underway. Both the committee and the coordinator are high priority items and I am involved with assisting to move things along.”
A city spokesperson says Thompson has been handling “ADA questions in the meantime.”
"If a disabled individual doesn't have a coordinator who's qualified and knowledgeable, that's required under the ADA to help them access certain programs or services, then that is a clear violation under the law,” Wischerath said.
The city says they are planning on filling a Diversity & Inclusion Coordinator position soon that will handle ADA coordination. However, under the law, the ADA coordinator doesn’t have to be hired – a current employee just needs to be appointed.
The issues with the complaint form, grievance procedure, and notice being out of date are also on its face violations, according to Wischerath. If someone tried to file a complaint and could not or it was not resolved, that could be a violation. All of this opens the city up to lawsuits. The Department of Justice also has jurisdiction to sue or seek a settlement with cities not in compliance, which can include compensation for people harmed.
“It’s cheaper to actually get the position in hand, provide the accessibility accommodation, and do it instead of waiting for a lawsuit to happen or waiting until something happens to somebody because of a lack of accommodation being provided and they end up getting hurt,” Wantuck said. “You are not just being impacted financially, but impacting the life of a community member.”
Both Western New York Independent Living and Deaf Access Services have been offering assistance to the city and trying to work with them.
“We have sat with Mayor Brown personally. We have had meetings with him. So it has been informed. He was made aware of it,” Wantuck said.
Councilmember Mitch Nowakowski has filed a resolution that would create a full-time position that would only handle ADA coordination and disability advocacy, calling them an “ADA advocate.”
“There are room for improvement. And yes, there is a light at the end of the tunnel. But how long is that tunnel? That's the question,” Wantuck said.
Compliance could be a long tunnel, but the disability community wants to work with the city
“As an advocate, and a community member as well in both, I want to support and help," said Wantuck.
Wantuck emphasized that the community has experienced frustration, but Deaf Access Services remains committed to being a resource and having an ongoing relationship with the mayor to work on and resolve these issues.
“Ask us, what can we do? What information do you need to know, would like to know, ask us that. I'm happy to help. We're happy to help,” said Wantuck. “So I think it's like that transparency, that transparency needs to be there, they need to be okay with asking us questions. There's nothing wrong with not knowing something. We don't know every little thing in the world. So it's them asking the right questions, and we being there to support them.”
Another relationship that could prove part of the resolution to this problem is one between constituent and council member.
Fillmore District Councilmember Mitch Nowakowski met local disability rights activist and SANYS co-president BJ Stasio at a community event in October. Nowakowski would later take a walk across the Michigan Street Bridge with Stasio, who uses a power wheelchair and lives in the Fillmore District. On that walk, Stasio was able to show and share with his councilman the city issues that need an ADA coordinator.
“I lost years off my life witnessing BJ having to navigate that bridge to simply go to a coffee shop,” said Nowakowski. “And that is where we discovered, really, the need for this position.”
Together, Nowakowski and Stasio created a proposal to create a full-time, salaried position, that would serve as ADA coordinator and would advocate for disabled residents. The position would be called an “ADA Advocate”
“For me, it's not about calling out the city and say, ‘Oh, slap their hands, and you did a bad thing.’ I just want to be totally included in my community, and feel a part of the community that aren't only belongs to me, but the disability community,” said Stasio.
The proposal also says that "ideally, this employee would be a person living with a disability who can bring their experience, insight and qualifications related to the disability community to the role to identify areas of improvement and advise city departments on how their public work and services can be enhanced or made more accessible."
If passed, the resolution would direct the city's Departments of Human Relations and Administration, Finance, Policy and Urban Affairs to create a job description, salary, outline for hiring, decide what department the position would fall under, and report on the impacts this position would have financially or personnel-wise. The city would have to report back by February of 2023.
Stasio says a few months ago, when the Governor was in town reviewing her budget, he went to hear her speak while she was in Buffalo. At that event, he had the chance to ask the mayor when there would be an ADA coordinator, and Stasio claims the mayor said by the end of the year (end of 2022).
Activists say the city is moving fast enough. No matter if a position is created - or if the mayor is trying to hire for a new position - someone needs to be appointed to serve as ADA Coordinator in the interim.
Every day the city does not have someone appointed they are in violation of the Americans with Disabilities Act. Every day they do not have a coordinator, have incorrect notices and documents because there is not one, and there is the risk people do not know who to submit complaints or accommodations to.
But even if the city appoints an ADA coordinator tomorrow, there is going to be work to do to ensure the city comes into compliance, according to Wischerath.
“I think they want to find out what's been going on in the last year or two, in the absence of a coordinator, where have these complaints been going, if any,” said Wischerath.
The city will need to make sure disability complaints haven’t been left unanswered or unresolved.
“So that's a huge problem or correction that they could go ahead and take, and then making sure that their notices are publicly available in multiple places,” added Wischerath.
The city will also have to make sure people know who the new ADA coordinator is, update the documents, public notice, and make sure it is communicated to the public.
In the end, leaders in the disability community shared they just want their city to work with them, to hear them, and to resolve these issues so they have access to their city and the rights they are entitled to.
“We're all members of the same community. And we all should belong in the neighborhoods that we live in,” Stasio added. “This is where I belong. This is my home. And it's important to me.”
This story will be updated as more information becomes available. We are still waiting for a response from the mayor’s spokesperson on several questions.
Grant Ashley and Suha Chowdhury contributed reporting for this investigation.