NY Court Rule Poses Privacy, Bias Concerns for Disabled Parties

The New York court system’s new rule allowing one party in a case to request disability accommodations without notifying the other party poses privacy and bias concerns for litigants and lawyers, according to attorneys and disability rights advocates.

While sources agreed there are good intentions behind the recently finalized rule, which applies to the state’s trial courts, some said it falls short of its stated goal of “promoting access to justice for individuals with invisible disabilities” and properly balancing “confidentiality against the due process and ethical concerns implicated.”

“I do worry that the finalized language falls short, and in some cases might actually increase exclusion and opportunities to perpetuate the stigma of disability,” said Maya Rose Goldman, staff attorney at the National Center for Law and Economic Justice.

The rule, adopted Feb. 16, was developed with input from the court system’s Advisory Committee on Access for People with Disabilities. It’s especially focused on helping those with invisible disabilities—such as chronic pain or fatigue, neurological or cognitive impairments, and psychiatric disorders—maintain their privacy.

The rule “ensures that judges remain compliant with all ethical standards regarding ex parte communications with parties and attorneys,” the state’s Chief Administrative Judge Joseph Zayas said in a news release.

The Office of Court Administration didn’t respond to a request for comment.

Countering Judicial Bias

Joe Ranni of Ranni Law Firm, who also serves on the New York State Bar Association’s Committee on Disability Rights, said he hoped the court would implement what he calls a “truly ex parte” process—one in which a judge who’s not presiding over the case makes the decision on the accommodation.

“The reason we have that process is to avoid bias relating to disability infiltrating the decision-making process that’s unrelated to the disability itself,” Ranni said. He equated his desired outcome to a company’s human resources department communicating an employee’s accommodation request to a manager.

“Implicit bias is a concern. It’s a thing. Unfortunately judges are no more immune to that than the rest of us,” said Rachel Granfield, senior staff attorney at Legal Services NYC.

Letting the judge presiding over the case make the decision eliminates the opportunity for an independent decision-making process, Ranni said. “There’s no ability to separate the disability from the person making the decision,” he added.

Kristin Glen, former surrogate judge of New York County and member of the New York State Bar Association’s Committee on Disability Rights, said putting the decision in the hands of the judges is a good thing as long as it’s also coupled with judicial education. The judge presiding over the case has a better sense of how the accommodation will affect the proceedings, she added.

In their comment letter, groups including Mobilization for Justice and Disability Rights New York said that they’ve heard judges explicitly say they would use the information in that way during judicial training sessions the organizations have held on disability accommodations.

Requiring the judge in the case to rule on a request “will create a chilling effect as litigants seek to avoid having judges draw improper inferences from their disclosures,” the groups wrote.

Confidentiality Concerns

The final rule establishes requirements that go further than what’s mandated by the Americans With Disabilities Act, Goldman said.

Someone making an accommodation request must disclose what their disability is, which isn’t required under federal law. Though ex parte accommodation requests are supposed to be confidential, it also includes a provision that says the information might be shared with other parties if a judge sees fit, which Goldman said could lead to discrimination from the judge and other parties in the case.

“A request for an accommodation necessarily leads one to the conclusion that that person has a disability. So it is basically outing someone without their permission,” Goldman said.

In their written comments, legal aid and disability rights advocacy groups pointed to the ADA’s rules for state and local government services that say the primary focus should be on compliance and whether discrimination has occurred, not whether someone meets the definition of a disability.

But Glen said the rule “allows for that kind of nuance of generally protecting against disclosure, but certainly allowing it to the extent that it is needed to determine whether the accommodation is going to affect the substance of the proceedings.”

Among the disclosure exceptions are if the accommodation application or supporting material contains information about a party’s disability that the court believes is important in determining the merits of the case, and if an accommodation request could “unduly prejudice” the rights of another party.

Anyone making an accommodation request—even if that request is later withdrawn—would have to “basically acquiesce” to the possibility that the information could be disclosed to the other party and potentially even used against them, said Goldman.

“Unfortunately, disability is still very stigmatized, and there’s a lot of discrimination against people with disabilities,” Goldman said.

Room for Revisions

Despite the concerns, Ranni said he’s confident the people he works with who have disabilities will have better access than they did before because of the rule, and that it will be tweaked and updated over time.

Ranni suggested a more streamlined process for lawyers who are seeking accommodations so they don’t have to submit separate accommodation requests to multiple judges, such as one application on file with the courthouse.

Glen said she’d like to see the court system keep records of the kinds of accommodations that are requested and for which disabilities, which could raise awareness of how people with disabilities navigate the court system.

“Within the disability rights movement, the argument is for universal design. It shouldn’t be that there’s something special for a person with a disability; it should just be built into the design so everyone can function in what we have,” Glen said.

Glen did warn that having “overburdened” judges fill out more paperwork could breed resentment.

Goldman and Glen suggested more training and resources for judges to guide them on how to process accommodation requests and make determinations.

“If the court system does decide to revise this rule, I would encourage more participation from constituents with disabilities,” Granfield said. “I would encourage them to include disability advocacy groups, to really speak with folks about their issues in accessing the court system and what would make that more possible.”