Interesting Seventh Circuit Case on Zoning Accommodations

Yesterday, the Seventh Circuit issued a unanimous en banc decision in Wisconsin Community Services, Inc. v. City of Milwaukee. The case involved a challenge by WCS, which operates an inpatient and outpatient mental health clinic, to Milwaukee's denial of a special use zoning permit for a clinic. The court held that a plaintiff under Title II of the ADA can make out a case for the denial of reasonable accommodation without showing either a discriminatory intent or a class-based disparate impact (and Judge Easterbrook, concurring, emphasized this point). But it also held that the plaintiff must show that the requested accommodation is "necessary to alleviate discrimination," and is not just something that "helps the disabled." The court interpreted earlier cases as holding "that a modification is 'necessary' only when it allows the disabled to obtain benefits that they ordinarily could not have by reason of their disabilities, and not because of some quality that they share with the public generally." And it concluded that, "On the present record, WCS' inability to meet the City's special use criteria appears due not to its client's disabilities but to its plan to open a non-profit health clinic in a location where the City desired a commercial, taxpaying tenant instead. As far as this record indicates, the City would have rejected similar proposals from non-profit health clinics serving the non-disabled." Accordingly, the court chose to "remand to the district court so that it may afford the parties the opportunity to develop the question of whether WCS has been prevented, because of its clients' disabilities, from locating a satisfactory new facility." (All emphases in this paragraph are in original.)

This is one of the most complicated issues in disability discrimination law, but I have to say that I'm not sure how coherent is the line the Seventh Circuit is trying to draw here. A requirement that an accommodation be "necessary to alleviate discrimination" has to turn on some understanding of what is "discrimination." The court quite rightly says that "discrimination" for purposes of the ADA can't be limited to intentional discrimination or practices that have a disparate impact on an entire class of people with disabilities -- disability is individualized, and something could exclude me because of my disability without having any effect on other folks with disabilities. But then when it comes to applying its test, the court seems to fall back on an intentional-discrimination view: Because health clinics that serve the nondisabled would also be denied the permit, there's no evidence that an accommodation that would grant the permit to WCS would be necessary to avoid discrimination.

But I would think that the reasonable accommodation requirement would take a different view of discrimination. If I need a particular kind of chair and desk because of my disability, and I work for an employer who refuses all special requests for office furniture, I'm in the same position as WCS's constitutents were here -- nondisabled people would be denied the same thing I asked for. But like WCS's constituents here, my disability would give me a greater need for the accommodation -- I can't work without the chair and desk; for them it's a matter of convenience. Similarly, WCS's constituents can't live in the community without WCS having clinics around; for people who would visit "non-profit health clinics serving the non-disabled," the stakes aren't as high. To fail to take that into account seems to me to miss the point of the accommodation requirement.