DOVER, Del. (AP) — A Delaware judge is weighing whether a medical facility violated the state’s equal accommodation law by refusing to complete a sports physical for a boy with Down syndrome who wanted to compete in Special Olympics.
The judge heard arguments Thursday in an appeal filed by the boy’s parents after the State Human Relations Commission determined that businesses do not have to provide reasonable accommodations to people with disabilities under Delaware’s Equal Accommodations Law.
The law prohibits discrimination in places of public accommodation based on race, age, marital status, creed, religion, color, sex, disability, sexual orientation, gender identity, or national origin.
According to court records, Michelle Ray took her 12-year-old son to a MedExpress Urgent Care facility in Wilmington in February 2019 so he could get the required physical. The family was told that the boy, who has a speech disorder, could not pass the vision test because medical staff could not understand his responses when asked what he saw on an eye chart, and that the physical could therefore not be completed.
“The statute says that a business cannot deny a service on the basis of disability,” said Tony Sierzega, an attorney with the Community Legal Aid Society who is representing the Ray family. “What happened here was very clear. The Rays’ child was denied a service.”
Maria Granaudo, an attorney for MedExpress, argued that there was no refusal of service.
“It was just, we can’t provide the service, not that we don’t want to,” she told Superior Court Judge Vivian Medinilla. “It was that we unfortunately, weren’t able to do it, despite the fact that mom and the family members were there.”
After the incident at MedExpress, the Ray family was able to get the boy’s primary care physician to conduct the exam, and he was able to compete in Special Olympics.
The Rays later filed a discrimination complaint with the state, but Division of Human Relations Director Romona Fullman recommended that the commission dismiss the complaint because it failed to state claim on which relief could be granted.
Commission chairwoman Gail Tarlecki agreed, dismissing the complaint in February 2020 and rejecting a request for reconsideration five months later. Tarlecki wrote, incorrectly, that the General Assembly chose to include a specific requirement for reasonable accommodation based on gender identity but chose not to include the same requirement based on disability.
“I think ‘requirement’ is probably not the best word to use,” Deputy Attorney General Daniel Mulveny acknowledged when the judge questioned the language used by Tarlecki.
Tarlecki referred in her July 2020 decision to a 2013 amendment that allows, but does not require, a business to provide reasonable accommodations based on gender identity in areas where disrobing is likely, such as locker rooms. No similar permissive allowance is spelled out for the disabled or any other protected class.
Tarlecki suggested in her order that the Ray family could seek relief in federal court under the Americans with Disabilities Act.
Sierzega, the attorney for the Rays, said forcing Delawareans with disabilities to file federal lawsuits to get their rights enforced is unfair. He noted that the Delaware law is explicitly intended to prevent discrimination against any person based on disability or a host of other factors, including race, age and religion, and includes language stating that it “shall be liberally construed.
Not interpreting the law as requiring reasonable accommodations for people with disabilities makes it useless for them, Sierzega suggested.
“It’s sad that the state and DHR’s interpretation effectively says ... that Delaware doesn’t protect you,” he said.
Mulveny, the attorney for the Human Relations Commission and Division of Human Relations, said there are valid policy arguments to be made on both sides, but that any policy decisions must be made by the General Assembly. He also argued that, in the context of equal accommodation, reasonable accommodation asks for people with disabilities to be treated differently, as opposed to equally.
“If there is such a requirement, it should be spelled out, and in this case, the General Assembly didn’t put it in the statute,” Mulveny said, adding that the requirement that the law be liberally construed is not a license to rewrite it.
“By making a reasonable accommodation, you’re in fact treating one class differently,” he added.
That prompted the judge to question whether allowing reasonable accommodations based on gender identity but not on other factors such as race or disability, as the law currently does, is discriminatory.
“Doesn’t that then carve out a special place for gender identity?” Medinilla asked.