Disability rights activist says state building code violates civil rights law

For more than two years, disability rights activist Dorothy Dean has been fighting the city of Burlington and a number of state agencies over what she and her lawyer see as violations of the Americans with Disabilities Act (ADA) — a federal civil rights law — in the state building code. 

The ADA, which was signed into law in 1990 after a long fight by activists, extends equal rights to Americans with disabilities by requiring accommodations to allow them to fully participate in society through wheelchair ramps, sloped curbs and accessible restrooms. Title I of the ADA is about making sure people with disabilities have equal access to employment while Title II ensures people have equal access to public life. 

“The promise of the ADA is that people with disabilities have every right to be part of the daily life of society,” Dean, the executive director of statewide advocacy organization Disability Justice, says. “That includes the economic, educational, religious, but also the civic. It’s to guarantee that every person can exercise their rights as a citizen.” 

The problem in Burlington began when a small retail business requested permission from the city not to construct any restrooms. Under the ADA, when buildings are rezoned they’re considered “new construction” and therefore need to be fully compliant with the law, which requires accessible restrooms.

The Burlington Common Council, following the advice of City Attorney John Bjelajac, voted to allow the business to delay building an accessible restroom for five years, according to a 2019 article in the Racine Journal-Times. When Dean raised questions at a number of council meetings, Bjelajac pointed to the state building code, which he said allows an exemption to the ADA’s restroom requirement if certain conditions are met. 

Dean describes the issue as  a fundamental misunderstanding of what the ADA does. It’s not just equal employment opportunities, it’s also making sure people with disabilities aren’t excluded, so she’s fighting to make sure people’s civil rights aren’t stepped on. 

“The root is still people do not understand what the ADA means and what it’s intended for,” says Dean, who can’t use stairs “The ADA is on the third burner back behind the backburner and no one wants to take it on and I don’t blame them but at the same time I’m not going to wait. I’m old, I want to see some movement on this.”

Section SPS 362.2902 of the Wisconsin building code states that businesses don’t need public restrooms if there won’t be more than 25 occupants in the building, other restrooms are available nearby and the omission is approved by the local government. 

“In summary, the action taken by the Common Council in its September 4 vote not only comports with the laws of Wisconsin and the ADA, but also was in full keeping with the very spirit and intent of ADA and its enforcement guidelines,” Bjelejac wrote to Dean in an August 2019 letter. 

But disability rights experts say there isn’t a provision in the ADA that allows states to grant exemptions and doing so causes real harm.

“I know of nothing in the Americans with Disabilities Act that allows states to waive the requirements it imposes,” Monica Murphy, the managing attorney for Disability Rights Wisconsin, says. “Obviously anything that limits accessibility limits access for people with disabilities. The ADA was signed into law in 1990. There is no excuse for building inaccessible buildings 31 years later.”

With Burlington pointing to the state and saying it allows an exemption to the ADA, Dean went looking for answers from a number of state agencies, including the Department of Justice and the office of Gov. Tony Evers, but especially the Department of Safety and Professional Services (DSPS) because it’s responsible for maintaining the state building code and is the agency that grants the exemptions. 

Most of the answers Dean got, she says, were unsatisfying. Nobody could tell her how or when the restroom provision was inserted into the building code, nobody could do anything to make sure the ADA was being followed and nobody could tell her how often these exemptions were being granted across the state. 

She is sure, though, that Wisconsin is the only state in the country with such a provision in its code and that the provision violates the law. 

“She’s unable to make headway with this administration to get through to their heads that there is no waiver of the ADA,” Dean’s attorney Jeff Spitzer-Resnick says. “You can read the ADA up and down and you’re not going to find an ability for states to grant waivers. Our state thinks it’s OK to grant waivers for building permits. If we’re just talking about what ended up happening, the local building authority said the state says we’re allowed to waive it so we’re going to waive it. We have no idea how often that happens around the state.”

“The state is doing something that’s blatantly illegal and then is giving carte blanche to local building authorities to do so, too,” he adds. 

In letters to Attorney General Josh Kaul and DSPS Secretary Dawn Crim, Dean and Spitzer-Resnick have urged them to see that this provision is illegal and stop local building commissions from granting exemptions. 

“​​The DSPS has no legal authority to grant exemptions to an ADA requirement no matter what the reason,” Spitzer-Resnick wrote in a letter to Kaul. “The ADA restroom requirement is a federal standard. We believe that in order to protect Wisconsin government from liability for approving ADA non-compliant buildings that you should inform the Secretary of DSPS, Dawn Crim, of the legal violation that her agency is promoting. We do not believe there is any legal authority for the State of Wisconsin to approve non-compliant ADA buildings nor does the ADA provide leeway for DSPS to provide ADA exemptions through so-called ‘special circumstances.’” 

Dean has also filed a civil rights complaint with the U.S. Department of Justice, but says the disability rights division is understaffed and slow to respond — even though state officials told her the federal government would jump in if the law were being violated. 

A DSPS spokesperson said the decision about the Burlington restroom was made by the city and the agency had no part in it, and added that the enforcement of the ADA is up to the federal government. 

“The Department of Justice enforces federal law, including the ADA,” the spokesperson, Jennifer Garrett, said. “We would refer anyone to the Department of Justice. I believe Dorothy Dean could tell you she was referred to the DOJ in this case, so that’s the recourse.”

But Dean says the federal government has been inactive. 

“I have been told so many times the feds are taking care of that and it’s not exactly true,” she says.

Dean could file a lawsuit, but says she wants to avoid the costs of that. Otherwise, without state agencies willing to put their foot down and say these exemptions won’t be granted anymore, the provision would need to be removed from the building code legislatively. 

Dean has spoken with several Democratic legislators during her fight and even found support. 

“The burden needs to be, it’s the cost of operating a business and it’s your legal obligation,” says Rep. Jonathan Brostoff (D-Milwaukee). “If it’s too burdensome, that’s like saying it’s too burdensome to have a stairwell or a door. If you can’t afford to build a door, don’t open your business. If you can’t afford to allow a wheelchair, that’s it. At the end of the day, this is a cut and dried thing, especially for new buildings.”

But even with a few legislators on Dean’s side, any bill they introduce is unlikely to see the light of day in the Republican-controlled Legislature. 

“There are legislative fixes of course but you have [Robin] Vos in charge of the Assembly and [Devin] LeMahieu in charge of the Senate,” Brostoff, a friend of Dean who has spoken with her about the issue, says. “There are other avenues of course, lawsuits are one of the mechanisms. And again, I think a lot of civil rights legislation doesn’t get its proper respect and the ADA is an example of that.”

But Dean says she will keep pressing to make sure Wisconsinites with disabilities don’t lose hard-fought civil rights. 

“I kept seeing people were getting the short end of the stick,” she says. “They have to have that structure with things as simple as a restroom. They’ve got to have that structure or how can they live independently?”