*1 said, in profession someone who once a worked “Mob links hurt Rosemont casino a lot than hair singing that’s older Reading conjunction bid.” headline designing.” significant see two con- We article, with the full text of the the court cepts passage. says in this Roeper Knafel found that thé defendant characterized the having was an It “affair” with Jordan. is mobster, plaintiff not as a a person but as interpret imply that word to believed, is possibly erroneously, who to be a term longer relationship than is contem- organized figure. an crime In another plated prostitu- in the Illinois definitiоn of case, newspaper a article a said woman said, tion. Secondly, despite as we “kidnapped” daughter. her The court reluctance of counsel for the Sun-Times to construction, found an innocent in part argument, concede the obvious at oral “the ‘kidnapped’ because word does not Roeper certainly prostitu- almost refers to offense, necessarily denote a criminal but tion when he about an “older” profes- talks custody also used contexts to describe sion. But it is reasonable to read wrongful Harrison, taking of child.” passage saying although Knafel 1, 276 Ill.Dec. 793 N.E.2d at If 773. these having (i.e., longer an affair term examples subject are to an innocent con Jordan, relationship) demanding struction, the statements which Knafel money so much from him is demeaning she complains certainly judgment are. The say herself. does Roeper Knafel the district court is Affirmed. but, prostitution committed the crime of rather, she making herself sound like
she imply has. The words “sound like”
similarity, identity. short, In Roe-
per is hard on Knafel as revealed
headline of the column: “Is Karla Knafel’s really
affection worth million?” But his $5 (and reasonably subject easily)
words construction; i.e., an innocent one WISCONSIN COMMUNITY SER stops saying short she committed INC., VICES, and Wisconsin Correc crime. Foundation, Inc., tional Service Plain tiffs-Appellees,
Our
is supported by
conclusion
other
Illinois cases.
example,
For
Antonelli
v.
Inc.,
v. Field Enterprises,
115 Ill.App.3d
MILWAUKEE, WISCONSIN,
CITY OF
432,
188,
(1983),
71 Ill.Dec.
words to an innocent construction. Seventh Circuit. in conjunction headline had be read with the story rest of the which the 3, Argued Jan. 2005. plaintiff was to as a “reputed referred Decided June mobster,” or about onе whom the word “supposedly,” “mobster” had perhaps been
“erroneously imputed.” Similarly, in Sala International,
mone Hollinger Inc.,
Ill.App.3d 283 Ill.Dec. 807 N.E.2d (2004), Chicago Sun-Times headline *2 WI,
Robert Theine Pledl (argued), Plaintiffs-Appellees.
Jan (argued), A. Smokowicz Milwaukee Office, City Attorney’s Milwaukee, WI, for *3 Defendant-Appellant. BAUER, EASTERBROOK,
Before
and
WOOD,
Judges.
Circuit
EASTERBROOK,
Judge.
Circuit
Community
(WCS),
Wisconsin
Services
nonprofit corporation, provides
services
for the
prisoners
benefit of former
and
persons
drug-abuse
with mental-health or
problems.
Its web site at www.wiscs.org
the organization’s background
describes
operations,
half-way
current
such as
houses, alcohol
drug-abuse
treatment
programs,
and employment counseling.
outpatient
Its
mental-health clinic in cen-
overcrowded;
tral Milwaukee is
WCS
7,500-square-foot facility
deems the
inade-
quate to serve the 400 clients who frequent
search,
purchased
it. After
building about one mile west of the exist-
ing facility.
(Technically Wisconsin Cor-
rectional Service Foundation bought and
WCS;
leased it to
we refer to both affili-
“WCS.”)
20,000
ates as
It wants to use
square feet
as a
building
this
mental-
health clinic. Because the
in a
structure is
zone, operation
business
of a mental-health
depends
special-use
clinic
on a
permit un-
der Milwaukee’s zoning code.
Mil-
See
waukeе
Code Ordinances
295-603-1.
Zoning Ap
Milwaukee’s Board of
peals
hearing
held
and denied WCS’s
request
a special-use permit.
for
Its deci
sion refused to take
account
federal
statutes,
such as Title
of the Americans
with Disabilities
Act
the Rehabilitation
Act,
may
require governmental bodies
exceptions
to make
for the benefit of dis
persons.
abled
After the district court
(and
reminded the
City)
Board
regulation, 28 C.F.R.
41.53. Milwaukee
clause re-
supremacy
the Constitution’s
to comply
propriety
actors
does not
and local
either
quires all state
law,
F.Supp.2d 842
regulations
see 173
But
gloss.
with federal
or
see
(E.D.Wis.2001),
hearing was held.
College
new
Community
v.
Southeastern
same, because the Davis,
was the
410-11,
outcome
99 S.Ct.
U.S.
could have
(1979)
that WCS
Board concluded
(doubting the validi-
The district
off on the
is liable nonetheless if
failed to reason
wrong
by assuming
foot
that
may
ably
“WCS
handicap
accommodate the
of the
[prevail] by showing
plaintiff.”
intentional discrimi
323
say
F.3d at
To
that
nation, disparate impact, or failure to reasonable accommodation is an “alterna
not,
make a
theory
however,
reasonable accommodation.” 309 tive
of
is
liability”
added).
F.Supp.2d
(emphasis
at 1104
As
say
theory independent
that
is
of both
explained Hemisphere Building,
we
in
intentional discrimination and disparate
requirement
FHAA’s accommodation
impact;
is
that would
Hemisphere
contradict
not free standing.
Building,
See also Brandt v.
which
panel
Shep
Good
(7th Cir.1996).
Chebanse,
172
82
Ac
herd Manor did not purport
to do. We
commodation in
parlance
the FHAA’s
is
this
of
passage
Shepherd
understand
Good
by
impact
the means
disparate
which
as a
of
point
Manor
restatement
made
zoning
alleviated.
If
building-code
Hemispherе Building:
or
reasonable ac
heavily
rule bears more
on
than
theory
commodation is a
independent of
city
on other
persons,
change
must
intentional discrimination because it is the
rules to
necessary
the extent
disparate
to redress
which
impact
means
is allevi
In
adverse effect.
panel
absence
dis
ated. The
Shepherd
Good
Manor
however,
parate impact,
there
no
suggest
need
did not
a duty
there is
for accommodation under
FHAA.
accommodate
regulations
when laws and
disparate
neither discriminate nor cause
A requirement
imposes
equal cost
Proof of
effects.
one or the other is essen
all persons
on
dispa-
does
have such a
tial.
(disabled
impact.
everyone
rate
as
Just
or
not)
housing
needs
prefer
According WCS,
would
Supreme
Court
(disabled
less,
not)
pay
everyone
so
disapproved
approach
or
this court’s
in US
Barnett,
needs
prefer
medical care and would
to Airways, Inc. v.
U.S.
(2002).
pay less.
If
applies
Milwaukee
the same
S.Ct.
L.Ed.2d 589
That
rules to
clinics
dental-
seniority
mental-health
decision considered
systems
how
clinics,
health
12112(b)(5)(A),
§
there is nеither
discrimina-
interact with
U.S.C.
tion nor disparate impact. The statutes do the accommodation
I
requirement
Title
ADA,
city
forgiving
to be more
of the
which
employment.
covers
find
form
The district court did not
as a
discrimi-
This section defines
accommo-
making
zoning
nation “not
rules
more
Milwaukee’s
bear
heavi
physical or mental
to the known
dations
ly on
kind of
medical services that the
indi-
qualified
of an otherwise
limitations
especially frequently
disabled need
than on
applicant
an
disability
who is
vidual with
of medical
that all
kinds
services
mem
entity
such
employee,
unless
сovered
populace require.
bers of the
Milwaukee’s
the accommodation
can demonstrate that
rules,
its
criteria
zoning
stated
on
hardship
an undue
impose
would
treat
special-use permits,
mental-health
such covered
operation of
business
identically.
clinics
Both
dental-health
obligation
that an
entity”. Barnett held
“health clinics” under
system almost al-
depart
seniority
from a
See Milwaukee
scheme.
Code
Ordi
“impose
hardship”
an undue
ways would
(definition),
nances
295-7-31
295-59-
business,
did not
though
Court
on
criteria).
parties
5.5
(special-use
possibility that
modifica-
rule out the
some
agree that more than 785 acres zoned for
tions
not do so.
use
“health
lie
clinics”
within WCS’s
ADA,
governs
Title II of the
which
clinic,
preferred area for its new
and that
claim,
compara-
any language
lacks
WCS’s
have purchased
space
WCS could
or leased
12112(b)(5)(A).
§to
accommoda-
ble
of this land—and would
done
FHAA, from which
requirement
tion
of the
cost,
so but for the
which it deemed exces
borrowed,
has
the rule of decision
been
parties
sive. The
debate whether WCS
different structure.
Instead
di-
search;
thorough
out a
carried
Milwaukеe
per-
recting
employer
treat disabled
says
diligence
that with more
WCS could
solicitude,
does,
I
Title
special
sons with
*6
have acquired
properly
building
a
zoned
the FHAA defines as discrimination “a
budget.
acknowledges
within its
this
WCS
make
accommoda-
refusal
to
says
but
that
its search was reasonable.
rules,
practices, or
policies,
tions in
ser-
however,
law,
the
this
On our view of
vices,
may be
when such accommodations
for
Searching
is irrelevant:
bar
debate
necessary
person equal op-
to afford such
gains
any
no
for
than for
is
harder WCS
enjoy
dwelling”
to
a
portunity
use
market,
entity in
so
other
the real-estate
added).
(emphasis
point
The
of this clause
the need to search is not
source
opportunity” which,
“equal
is to assure
—
Hemisphere Building,
disparate impact.
in
we concluded
the
means freedom from
adverse effects
in
costs
experience
WCS would
extra
local laws and rules that affect disabled
market,
as it would need
going back
disability, yet
persons because of that
do
brokerage
pay
to
another
commission
pose
equivalent
but non-
problems
might
capital
loss
need to absorb
regulation
persons. The Title
prices
dropped,
if real estate
have
(though,
FHAA,
to
clause in the
is similar
this
of a new
expect
gain
buyer
it
as a
could
accommodations that “are neces-
requiring
old),
as a seller of the
but
site what
loses
sary
28 C.F.R.
to avoid discrimination”.
ex
perspective
is
ante.
appropriate
35.130(b)(7).
in
Nothing
under-
Barnett
any
rights
not obtain
extra
under
WCS did
way
opportuni-
mines
read “equal
we
building
buying
law
while
federal
ty”
Hemisphere Building.
in
language
up in
air. Other-
special-use issue was
problem
fi-
The
that WCS encountered is
city
strong-arm
аnyone
wise
could
nancial,
pose
and Milwaukee’s rules
making a
expedient of
commitment
financial
to all would-
same
considerations
then
the sunk
More-
pointing
costs.
property.
be users of
over,
(7th Cir.2002).
Milwaukee,
experienced
WCS
in re-
success
questing special-use permits
zoning
up
barking
wrong
Milwaukee is
tree
variances for its other facilities.
Over
that
arguing
judges
federal
must “defer”
years
requested special
WCS has
treat-
to local
deciding
codes when
what
ment of seven parcels, and six of these
accommodations are reasonable. Federal
requests
granted
have been
but the
rules;
supersede
statutes
state and local
—all
impact
involved in this suit. Disparate
one
whether an
is
accommodation
difficult to
say
is
see. We don’t
is
law,
required is one of
though
federal
however;
impossible,
may have more
WCS
proposed
extent which a
accommodation
evidence
offer.
disrupt
would
state
must
policy
weigh
balance,
predeces
as Barnett and its
hope
may
best
for WCS
lie
also, e.g.,
sors
See
show.
Ansonia Board
discrimination,
showing
subject
actual
Philbrook,
60,
Educatiоn
479 U.S.
67-
the district court did
reach.
(1986)
107 S.Ct.
natory, and
be entitled to re WOOD, Circuit Judge, dissenting.
*7
lief under federal law. Whether the Board
question
This case raises the
whether
acted with discriminatory
ques
intеnt
ais
City of
required
Milwaukee was
under
tion of fact whose resolution
in
belongs
Title II
with
Americans
Disabilities
first instance to the district court. See
(ADA), 42
§
Act
seq.,
U.S.C.
12131 et
Swint,
273,
Pullman-Standard
456 U.S.
Act,
§
the Rehabilitation
29 U.S.C.
794 et
(1982).
102 S.Ct.
One final remark. special-usе permit The properties for in located have devoted considerable to de energy the area where WCS wanted to locate. bating proposed whether the Concluding accommoda City required aas reasonable, if tion in required one is of law matter to make reasonable accom- (and order to intentional overcome discrimina to modations WCS’s disabled clients or disparate impact. WCS), tion It is. Oco See hence to and that WCS had shown nomowoc Programs, Residential Inc. v. special-use permit was such 35.130(b)(7)(ADA). accommodation, also 28 C.F.R. See district reasonable (containing C.F.R. 41.53 similar in 28 summary judgment granted court implementing the Rehabilitation provision City to issue favor ordered WCS’s Act). regulation says nothing That about majority has vacated that The permit. pre-existing to prove an antecedent need for further the case and remanded order disparate im- intentional discrimination of the whether consideration Instead, prophylactic pact. authorizes City’s to can show that the refusal “necessary to measures that are avoid dis- dis- permit stemmed from actual grant disability,” un- crimination on basis mentally against disabled crimination entity satisfy regulatory less the can facility. I no quarrel users WCS’s justification. showing that such proposition with the way straightforward The most to view view, In my relief. would entitle WCS obligation is as an to take this affirmative however, proceedings further unneces- necessary to steps bring that are already successful- sary, because WCS has up available to the disabled to the services permit it is entitled to the ly shown that enjoy, level the nondisabled which the “reasonable accommodation” under require giving one sense will some benefits ADA in Title of the theory recognized unnecessary to the that are for I there- Act. would and the Rehabilitation A their more fortunate fellow citizens. affirm. fore mobility problem with no would person ramp; miss a person never a wheelchair acknowledges, Title II majority theAs has vision no need an audi Act 20/20 the ADA and the Rehabilitation signal in an elevator that the desired ble against discrimination prohibit intentional But accom floor has been reached. those disabilities, well persons with qualified essential for the disabled modations are disparate impact that have a as measures equal public ser person enjoy access (Henceforth only I refer on the disabled. recognized Supreme Court this vices. all ADA, it is identical for to the because when, concept Airways, Inc. v. Bar US case the Reha- purposes material this nett, U.S. S.Ct. Act.) disagree over we bilitation Where (2002), it acknowledged that L.Ed.2d 589 II of ADA extent which Title “will accommodations some independently obliges persons covered also pro conduct to times affirmative make reasonable accommodations entry intо the people of disabled mote responsible for agency the disabled. 401, 122 Id. at work force.” S.Ct. ADA, Depart- the U.S. administering the Although held that the normal Barnett Justice, a regulation ment issued employer not be run of cases an *8 such an obli- unambiguously imposes that seniority fide to override a bona required gation: to accommodate a disabled system order entity make public A shall reasonable needs, it held that the employee’s also policies, practices or modifications to that be entitled show employee would modifications procedures when the finding circumstances warrant “special the avoid on necessary seniority discrimination that, of a despite presence the disability, public of the enti- ..., basis unless requested ‘accommodation’ system the the making particular can that Id. ty demonstrate on the facts.” is ‘reasonable’ fundamentally pur alter 122 At least for modifications would 1516. at S.Ct. therefore, service, ADA, the program or of Title I of poses the nature of imposes spe requirement accommodation activity. 650
cial
on
responsibilities
employers
majority
position
that
The
that its
concedes
could not
from
inten
be derived
either the
is inconsistent with
that
language
appears
theory
dispa
Shepherd,
tional discrimination
or
Good
the court
where
wrote
“ ‘[fjailure
impact theory.
rate
that
unequivocally
reasonably
theory
accommodate’ is an alternative
of
True,
says,
majority
but we are deal-
646;
liability.” Ante at
quoting 323 F.3d
ing
statute,
with
II of the
it does
Title
at
In an
to squeeze
effort
Good
not contain
same
lan-
accommodation
theory
into
Shepherd
its own
of the FHAA
guage
Literally
I.
that
speaking,
as Title
is
ADA,
suggеsts
hence
it
that rea-
true,
majority
but I do not understand the
independent
sonable accommodation is an
holding
Department
be
that
Jus-
only
theory
by
insofar
it is “the
means
authority
tice
its
it
exceeded
when
issued
disparate
which
impact
is alleviated.”
implementing regulations interpreting
Ante at 646. But
is
what Good
requirements
II.
Title
the con-
To
said.
Shepherd
There is
difference be-
trary,
taking
it states
it is not
issue
a theory
liability
remedy
tween
and a
regulation,
with
C.F.R.
28
a proven
problem
violation. The
not,
35.130(b)(7),
§
in this case.
If
then
majority’s reasoning
is
reflected
approach
Barnеtt’s
accom-
assumption that the
can
suffer a
binding
modation
on
us here:
the lan-
deprivation of
public
access to
services and
35.130(b)(7)
guage
§
substantively
(a)
programs only if
regulations
laws and
language
identical to the
Court
(b)
them,
actively
against
discriminate
or
I,
in Title
construing
42 U.S.C.
regulations
laws and
produce disparate ef-
12112(b)(5)(A).
theories, however,
Both of
fects.
these
majority
avoids
this outcome
comparison
between the effect of
looking to two cases this court
decided
has
practice
on
group
the favored
and the
closely anаlogous
Housing
under the
Fair
practice
effect
on the disfavored
(FHAA),
Amendments Act
42 U.S.C.
group here, the disabled.
—
namely,
3601 eb seq.;
Hemisphere Bldg.
Park,
(7th
Co. v. Richton
problem
many
is that
there are
Cir.1999),
Good Shepherd
Manor
services
facilities that are of interest
Foundation,
Momence,
only
Inc.
323 F.3d
disabled people,
such as the ramps
(7th Cir.2003).
cases,
argues,
Those
and the audible elevator announcements
actually
demonstrate that there is
no
situations,
inde- mentioned earlier.
In those
pendent
requirement
accommodation
un-
way
prove
there wоuld never
be
either
Instead,
der
of these statutes.
impact,
individual animus or
un-
disparate
requirement
accommodation
no inde-
the latter
theory
applied
less
were
far
all;
pendent
remedy
force at
is merely
broadly
normally
more
than it
is. Recall
practices
that have a disparate impact
disparate
theory
impact
was born in
Co.,
As the majority
Griggs
disabled.
sees the
v. Duke
Power
U.S.
world,
(1971),
the absence of
im-
disparate
“[i]n
S.Ct.
that is what the view, In my
its remand. the district understanding
court’s of the law was cor-
rect, findings supported and its of fact are affirm, I the record. I respectfully
therefore dissent. RUTTENBERG,
Andrew
Plaintiff-Appellant,
UNITED LIFE STATES INSURANCE City York, in the of New
COMPANY
subsidiary of American General Cor
poration, Defendant-Appellee.
No. 04-1653. Appeals, States Court of
United
Seventh Circuit.
Argued 2004. Nov.
Decided June 2005. En July Banc
Rehearing Denied
