Interesting Seventh Circuit Case on Reasonable Accommodation in Zoning Decisions

On Wednesday, the Seventh Circuit issued its decision in Wisconsin Community Services, Inc. v. City of Milwaukee. Wisconsin Community Services (WCS) had sought a zoning variance to permit it to operate an outpatient mental-health clinic in an area Milwaukee had zoned for business. (The city has a separate zoning designation for medical clinics, but WCS did not find any suitable parcels in the areas zoned for medical clinics.) The city denied the variance, and WCS sued under Title II of the ADA. Although the district court granted summary judgment to WCS, the Seventh Circuit reversed by a 2-1 vote. Judge Easterbrook wrote the majority opinion, joined by Judge Bauer. In that opinion, the court ruled that Title II does not require accommodation of zoning rules unless those rules have a disparate impact on people with disabilities: "If a zoning or building-code rule bears more heavily on disabled than on other persons, the city must change the rules to the extent necessary to redress the adverse effect." But the court ruled that no accommodation is necessary "[i]n the absence of disparate impact." Although the Supreme Court's decision in US Airways v. Barnett seems to suggest that the requirement of reasonable accommodation requires no showing of either disparate treatment or disparate impact, the majority determined that the accommodation provision in ADA Title I, which the Court interpreted in Barnett, was materially different from the accommodation requirement that applies under ADA Title II. The majority accordingly reversed the grant of summary judgment to WCS, and remanded for further proceedings in which WCS will have an opportunity to show that the zoning rules had a disparate impact on people with disabilities or that the failure to grant a variance rested on intentional discrimination against people with disabilities.

Judge Wood dissented. She read Barnett as holding that "[a]t least for purposes of Title I of the ADA . . . the accommodation requirement imposes special responsibilities on employers that could not be derived from either the intentional discrimination theory or the disparate impact theory." And she read the accommodation requirement in the Title II regulations to be "substantively identical to the language the Court was construing in Title I."

The majority opinion seems directly to conflict with the Second Circuit's decision in Henrietta D. v. Bloomberg, 331 F.2d 261, 273-277 (2d Cir. 2003), which squarely held that disparate impact is not required to make out a case for denial of accommodation under ADA Title II. This seems like a plausible case for en banc review. But if the Seventh Circuit can't be persuaded to take the case en banc, I imagine the plaintiffs would conclude they're best off going back before the district court and trying to make out a case of disparate impact and/or disparate treatment rather than trying to take the case to the Supreme Court in this interlocutory posture.