WISCONSIN COMMUNITY SERVICES, INC. аnd Wisconsin Correctional Foundation, Incorporated, Plaintiffs-Appellees, v. CITY OF MILWAUKEE, Defendant-Appellant.
No. 04-1966.
United States Court of Appeals, Seventh Circuit.
Decided Sept. 26, 2006.
Reargued En Banc Jan. 18, 2006.
465 F.3d 737
Jan. A. Smokowicz (argued), Milwaukee City Attorney‘s Office, Milwaukee, WI, for Defendant-Appellant.
J. Damian Ortiz, John Marshall Law School Fair Housing Legal Support Center, Chicago, IL, for Amicus Curiae, John Marshall Law School Fair Housing Legal Support Center.
Gregory B. Friel, Dept. of Justice, Civil Rights Div., Washington, DC, for Amicus Curiae, U.S.
Before FLAUM, Chief Judge, and BAUER, POSNER, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD, EVANS and WILLIAMS, Circuit Judges.*
RIPPLE, Circuit Judge.
Wisconsin Community Services (“WCS“),1 a provider of treatment to mentally ill patients, brought this action under Title II of the Americans with Disabilities Act (“ADA“),
I
BACKGROUND
A. Wisconsin Community Services
WCS is a private, non-profit organization that provides a variety of inpatient and outpatient services to individuals afflicted with severe mental illnesses.2 WCS provides patients, who cannot live alone without substantial assistance, with psychiatric treatment, counseling, medication monitoring, transportation and help in finding housing and employment. A number of WCS’ patients have a history of substance abuse, and a majority have had previous run-ins with the criminal justice system; WCS often accepts patient referrals from court-related agencies such as the United States Probation Service. Although WCS staff sometimes will treat patients in their homes, most of WCS’ services are administered in a 7,500 square-foot mental health clinic located at 2023 West Wisconsin Avenue in the City of Milwaukee. Originally, WCS shared this facility with other non-profit organizations, but, as its clientele grew, WCS expanded to occupy the entire building. In 1994, at the time of this initial expansion, WCS employed twenty full-time employees and served 250 patients.
WCS previously had received this type of special use permit for some of its other facilities. It therefore made an offer of purchase for one of the properties, contingent on obtaining the necessary special use permit from the Milwaukee zoning board. The seller of this property, concerned about this contingency, declined to accept the offer. WCS then abandoned its efforts to purchase that property and instead made a similar contingent offer on the other identified property. This facility was an 81,000 square-foot building located about one mile from its current facility at 3716 West Wisconsin Avenue. The larger facility is located in an area zoned as a “local business district.” Milwaukee, Wis. Code § 295-703-1. According to the City Code‘s “use table,” health care clinics, except for nursing homes, are deemed “special uses” for this zone.
B. The First Proceeding Before the Board of Zoning Appeals
Milwaukee‘s City Code defines “special use” as “[a] use which is generally acceptable in a particular zoning district but which, because of its characteristics and the characteristics of the zoning district in which it would be located, requires review on a case by case basis to determine whether it should be permitted, conditionally permittеd, or denied.” Milwaukee, Wis.Code § 295-7-166. Special use designations are instruments of municipal planning that allow city officials to retain review power over land uses that, although presumptively allowed, may pose special problems or hazards to a neighborhood. See generally Delta Biological Res., Inc. v. Bd. Zoning Appeals, 160 Wis.2d 905, 467 N.W.2d 164, 166–67 (Wis.Ct.App.1991).
In Milwaukee, an applicant for a special use permit must present its plans to the Department of City Development (“the DCD“), where they are reviewed by a plan examiner. If the DCD denies the special use application, the applicant may appeal the decision to the Milwaukee Board of Zoning Appeals (“BOZA“), where the application is reviewed, a public hearing is held and evidence is heard. See
Under Wisconsin law, in deciding whether to issue a special use permit, the City‘s zoning officials are guided by four statutory considerations: (1) protection of public health, safety and welfare; (2) protection of the use, value and enjoyment of other property in the neighborhood; (3) traffic and pedestrian safety; and (4) consistency with the City‘s comprehensive plan. See Milwaukee, Wis.Code § 295-59-5.5. After reviewing WCS’ plan, DCD concluded that these criteria had not been met. Specifically, DCD expressed concern over the second factor, protection of neighboring property value. It stated that use of the property as a mental health clinic would jeopardize the commercial revitalization that the neighborhood currently was undergoing. WCS, availing itself of its right to administrative review, then appealed the DCD‘s decision to Milwaukee‘s BOZA.
On March 22, 2001, BOZA held a hearing on WCS’ appeal. At the outset, WCS argued that, even if its proposal did not meet the special-use criteria, the ADA required BOZA to modify these criteria so that WCS would have the same opportunity to obtain a permit as would a clinic serving non-disabled individuals. BOZA denied this request because it did not believe that it had the authority to deviate from the City‘s zoning code. Indeed, BOZA prohibited WCS from introducing evidence on the issue. Confined to making its case under the unmodified special use considerations, WCS presented evidence in an effort to refute the perception that the mental health clinic posed a safety threat and would discourage businesses from locating in the neighborhood. This evidence included testimony from a security official who told BOZA that, based on his own investigation, WCS’ patients had not been the source of any safety problems in WCS’ current neighborhood. WCS also presented letters from its current neighbors to the same effect. Finally, WCS submitted evidence of an award it had received from the National Institute of Justice for exemplary care of previously institutionalized individuals with mental health needs.
BOZA then heard testimony in opposition to the permit. An attorney representing several area businesses testified that opening a mental health clinic that serves a large number of young, unemployed males with histories of mental illness and illegal behavior substantially increases the chance of crime and anti-social behavior in the neighborhood. In a similar vein, a nearby high school voiced its fear that WCS’ clients would be riding public transit alongside its “young and vulnerable” students. R.15, Ex.B-1 at 43. Additionally, a neighborhood organization encouraged residents to object to WCS’ request; it circulated leaflets that argued that the clustering of WCS’ clientele “in one location on a daily basis raises a serious risk for the health and well being of people living and working in surrounding neighborhoods.”
On May 9, 2001, BOZA voted unanimously to deny WCS’ application for a special use permit. The accompanying written decision said only that the proposed use was inconsistent with the considerations set forth in the zoning code. However, several board members orally announced the reasoning behind their decision. One member noted that the “overwhelming” opposition from neighborhood residents convinced him that the WCS clinic would have “a damaging effect upon neighboring business.”
C. The First Federal Court Proceeding
Although Wisconsin law allows for direct review by a Wisconsin state court of adverse BOZA decisions, see
The district court held that BOZA had violated the federal disability laws when it failed even to consider making a reasonable modification to its policies to accommodate WCS’ request. The court began its analysis by noting the basic Supremacy Clause principle that federal laws are superior to conflicting local laws. See
D. The Second Proceeding Before the Board of Zoning Appeals
On September 12, 2002, BOZA reconvened a public hearing to decide whether, and to what extent, the ADA and the Rehabilitation Act required it to modify its zoning policies in considering WCS’ application for a special use permit. BOZA heard testimony regarding the necessity of a modification, whether such modification was a reasonable accommodation and whether it might work any fundamental change on the City‘s zoning practices.
Jill Fuller, WCS’ clinic administrator, was the first to testify. She described the state of overcrowding at WCS’ current facility and the effect that these conditions were having on WCS’ patients. Individuals with severe mental disabilities, Fuller explained, are particularly sensitive to external stimuli and often have poor social skills. Overcrowding in the common area of WCS’ facility—a room described by another WCS administrator as noisy, smoky and packed—created an extremely stressful environment for these patients and caused their symptoms to become more acute. Additionally, Fuller testified that overcrowding compromised the privacy of one-on-one therapy sessions, which represent a primary component of WCS’ treatment.
WCS then presented testimony from its executive director, Stephen Swigart. He described the search process undertaken by WCS to find a new facility that, in addition to being of adequate size, would satisfy the clinic‘s need for a central location, access to public transit, a serviceable floor plan, low renovation costs and a safe neighborhood. Swigart testified that, after being denied the special use permit, WCS had worked with city planners to
Finally, WCS presented expert testimony from Dr. Nancy Frank, the Chair and Associate Dean of the Department of Architecture and Urban Planning at the University of Wisconsin-Milwaukee. She opined that locating the mental health clinic at WCS’ desired location, 3716 West Wisconsin Avenue, would have a positive rather than an adverse effect on the surrounding neighborhood. Pointing out that a properly zoned health clinic already was located directly across the street from the proposed site, Frank noted that WCS’ clinic would be a consistent addition to the neighborhood and encourage commercial uses of a similar nature. In addition, Frank testified that the building at 3716 West Wisconsin Avenue had been mostly vacant for some time. According to Frank, the goal of city planners seeking to revitalize a commercial area should be to fill vacant space as quickly as possible. Frank predicted that relocating WCS and all of its employees to the area would attract businesses such as “restaurants, dry cleaners [and] coffee shops” eager to serve the new influx of professionals. R.45, Ex.F-2 at 58. Frank further stated that “[i]t‘s actually a strategy in urban redevelopment to try to get a good non-profit anchor in an area first because they‘re often less dependant on having an area that already has a lot of consumer demand, and you can then build on that employee base.”
BOZA then heard testimony from Michael Murphy, an alderman representing the area in which WCS was seeking to relocate its clinic. Steadfastly opposed to WCS’ plans, Alderman Murphy stated that “WCS’ thrust to rip an 81,000 square foot building out of the heart of this emerging business district could be fatal to this area.”
On December 22, 2002, BOZA issued a written decision denying the special use permit to WCS. It concluded that WCS’ claim for an accommodation under the disabilities laws failed because such an accommodation was neither reasonable nor necessary. On the question of necessity, BOZA framed the inquiry as “whether the requested accommodation will ameliorate, that is, directly improve the burden of the mental illnesses from which [WCS’ patients] suffer.”
BOZA concluded that, in addition to being unnecessary, the requested accommodation also was unreasonable. In making this determination, BOZA stressed that the relocation of WCS’ clinic to its proposed site would “place an undue financial burden on the district,”
Finally, BOZA determined that the requested accommodation, in addition to being unreasonable and unnecessary, fundamentally would alter the City‘s zoning scheme:
Every time a social service agency, AA club, homeless shelter serving mentally ill homeless pеople; hospital, psychologists or psychiatrists [sic] office, therapists’ office, etc. wanted to locate their business in a zoning district requiring a special use to do so, the City or this Board would have to automatically consider giving them an accommodation under ADA regardless of the special use criteria in the City‘s ordinance.
E. The Second Federal Court Proceeding
On January 24, 2003, WCS reinstated its action in federal court challenging the second BOZA ruling. It alleged that the City‘s refusal to grant WCS a special use permit violated the ADA and the Rehabilitation Act. In determining the standard that it ought to employ in assessing WCS’ accommodation claim, the district court declined, despite the parties’ recommendation, to apply the test that governs cases arising under the Fair Housing Amendments Act of 1988 (“FHAA“). The FHAA requires a reasonable accommodation to zoning rules when necessary to afford a handicapped person the “equal opportunity” to obtain housing.
Instead, relying upon our decision in Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir.2002), the court held that, to satisfy its initial burden, WCS must show that its requested accommodation is (1) reasonable and (2) necessary to enhance affirmatively its disabled patients’ “‘quality of life by ameliorating the effects of the disability.‘” WCS II, 309 F.Supp.2d at 1105 (quoting Oconomowoc Residential Programs, 300 F.3d at 784). Once WCS had made this showing, according to the district court, the City then must “demonstrate unreasonableness or undue hardship in the particular circumstances.”
Applying this framework, the court first assessed the accommodation‘s reasonableness by weighing the benefits to WCS’ clients against the potential cost to the City of issuing the special use permit. In the court‘s view, WCS had presented con-
The court next considered whether WCS had established that its requested accommodation was necessary. First, the court concluded that, for reasons it already had described in its reasonableness assessment, the proposed facility would ameliorate some of the effects of WCS’ patients’ disabilities. Second, the court rejected the City‘s argument that WCS could have moved its clinic to another location where a mental health clinic would not have required a special use permit. Under the court‘s view of the evidence, this option was too costly for WCS. Although recognizing that WCS perhaps could have searched for available properties more effectively, the court held that necessity may be established simply by evidence of a good-faith, albeit failed, attempt to find an alternative to the accommodation requested.
II
DISCUSSION
A.
The legal question before us is whether, and to what extent, a city must modify its zoning standards to prevent them from discriminating against the disabled. The statutes relevant to answering that question are three separate but interrelated federal laws that protect persons with disabilities from discrimination. The first two laws chronologically were the Rehabilitation Act of 1973 and the FHAA. Enactment of the ADA followed in 1990. All three statutory schemes embrace the concept that, in certain instances, the policies and practices of covered entities must be modified to accommodate the needs of the disabled. We now shall examine each statute‘s accommodation requirement in detail.
1. The Rehabilitation Act of 1973
The Rehabilitation Act,
The Rehabilitation Act does not contain a general accommodation requirement. Rather, in implementing the Rehabilitation
Nevertheless, the Supreme Court has located a duty to accommodate in the statute generally. In Alexander v. Choate, 469 U.S. 287 (1985), handicapped individuals challenged a proposal by the State of Tennessee to reduce the number of inpatient hospital days that the state Medicaid program would pay hospitals on behalf of Medicaid recipients. Because handicapped individuals spend more time in hospitals, on average, than the non-disabled, the plaintiffs argued that Tennessee‘s proposal had a disproportionate effeсt on the disabled and hence was discriminatory in violation of section 504 of the Rehabilitation Act. After rejecting Tennessee‘s argument that federal law prohibits only intentional discrimination against the handicapped, the Court explained that “a refusal to modify an existing program might become unreasonable and discriminatory.” Id. at 300 (quoting Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 413 (1979)). The Rehabilitation Act‘s promise of “meaningful access” to state benefits, according to the Court, means that “reasonable accommodations in the grantee‘s program or benefit may have to be made.” Id. at 301.
However, in applying this principle, the Court in Choate held that Tennessee‘s proposal, in fact, did not deny the plaintiffs “meaningful access” to Medicaid services. This was because “[t]he new limitation [did] not invoke criteria that have a particular exclusionary effect on the handicapped; the reduction, neutral on its face, [did] not distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having.” Id. at 302. More specifically, the Court noted that there was no “suggestion” in the rеcord “that the illnesses uniquely associated with the handicapped or occurring with greater frequency among them cannot be effectively treated, at least in part, with fewer than 14 days’ coverage.” Id. n. 22. In short, the Court held that, because the denial of benefits was not linked in any way to the
Following Choate, several courts of appeals have adopted the view that the Rehabilitation Act requires public entities to modify federally assisted programs if such a modification is necessary to ensure that the disabled have equal access to the benefits of that program. See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 261, 274-75 (2d Cir.2003). These circuits, including ours, also follow the corollary principle implicit in the Choate decision that the Rehabilitation Act helps disabled individuals obtain access to benefits only when they would have difficulty obtaining those benefits “by reason of” their disabilities, and not because of some quality that they share generally with the public. See, e.g., id. at 276-79 (acknowledging “that the ADA and the Rehabilitation Act are addressed to rules that hurt people with disabilities by reason of their handicap, rather than that hurt them solely by virtue of what they have in common with other people” (internal quotation marks, citations, alterations and emphasis omitted)); Washington v. Indiana High Sch. Athletic Assoc., 181 F.3d 840, 848 (7th Cir.1999) (noting that, in a Rehabilitation Act modification claim, “[t]here must be a causal connection between the disability and [the plaintiff‘s] ineligibility“); Forest City Daly Housing v. Town of N. Hempstead, 175 F.3d 144, 152 (2d Cir.1999) (holding that, for claims under the FHAA, the ADA and the Rehabilitation Act, a proposed accommodation must be “necessary in light of the disabilities” of the plaintiffs; and dismissing claims because “no analogous housing opportunity exist[ed] for persons without disabilities” (internal quotation marks omitted)); Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir.1996) (relying on Choate to require Hawaii to modify a law that required carnivorous animals entering the state, including guide dogs, to be quarantined for 120 days because the quarantine discriminated against the visually impaired “by reason of their disability“); United States v. Bd. of Trs. of the Univ. of Alabama, 908 F.2d 740, 748 (11th Cir.1990) (recognizing that Choate requires an unmodified program to bear more heavily on the disabled on account of their disability and distinguishing the case of a deaf student who, unlike his non-handicapped peers, is less likely to benefit from his classes without a sign-language interpreter).
2. The Fair Housing Amendments Act
The duty to accommodate imposed by the FHAA,
Second, the requested accommodation must be “necessary,” meaning that, without the accommodation, the plaintiff will be denied an equal opportunity to obtain the housing of her choice. See id. at 784; see also Giebeler υ. Μ & Β Assocs., 343 F.3d 1143, 1155 (9th Cir.2003); Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir.1996). This has been described by courts essentially as a causation inquiry. See, e.g., Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 460 (3d Cir.2002) (“This requirement has attributes of a causation requirement. And if the proposed accommodation provides no direct amelioration of a disability‘s effect, it cannot be said to be necessary.” (internal quotation marks and citations omitted)).
In addition, the FHAA links the term “necessary” to the goal of “equal opportunity.”
Most recently, we considered the “equal opportunity” limitation in deciding an FHAA claim brought by a group home challenging a city‘s ad hoc decision to shut off the water supply to the group home‘s land. See Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561-64 (7th Cir.2003). Rejecting the group home‘s claim that the city had to modify its decision because shutting off its water harmed its disabled residents by preventing them from living in group homes, we stated that “[c]utting off the water prevents anyone from living in a dwelling, not just handicapped people.” Id. at 562. Put differently, the plaintiff‘s accommodation claim failed because the disability suffered by the group home‘s residents did not deny them an equal opportunity to obtain housing.5
This case concerns Title II, commonly referred to as the public services portion of the ADA. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.”
As courts have held, municipal zoning qualifies as a public “program” or “service,” as those terms are employed in the ADA, and the enforcement of those rules is an “activity” of a local government.6 Section 12131(2) goes on to define “qualified individual with a disability” as
(emphasis added).7an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Unlike Title I and Title III, Title II of the ADA does not contain a specific accommodation requirement.8 Instead, the
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
Before proceeding with an assessment of the case before us, we pause for a closer examination of the regulation promulgated under the ADA because the text of this regulation gives us several important guideposts for the resolution of this case. First, as our cases already hold, failure to accommodate is an independent basis for liability under the ADA. Second, the plain language of the regulation also makes clear that an accommodation only is required when necessary to avoid discrimination on the basis of a disability. Third, the regulation states, in its plain language, that any accommodation must be a reasonable one. We shall now examine each of these features of the regulation, keeping in mind that Congress has expressed its desire that interpretation of the ADA be compatible with interpretation of the other federal disability statutes, a point also made clear in several holdings of the Supreme Court.11
Under the Title II regulation, a modification must be “necessary to avoid discrimination on the basis of disability.”
Similarly, there is a minor difference between the Title II regulation and the FHAA‘s accommodation provision. Although the FHAA‘s accommodation provision does contain an express necessity requirement, the text is different from the ADA regulation. The FHAA version reads “necessary to afford ... equal opportunity,”
The regulation also requires that any accommodation be a reasonable one. In the context of the FHAA, we have interpreted this requirement to mandate an inquiry into whether the accommodation is “both efficacious and proportional to the costs to implement it.” Oconomowoc Residential Programs, 300 F.3d at 784. In the zoning context, a municipality may show that a modification to its policy is “unreasonable if it is so at odds with the purpose behind the rule that it would be a fundamental and unreasonable change.”
Under the law of this circuit, a plaintiff need not allege either disparate treatment or disparate impact14 in order to state a reasonable accommodation claim under Title II of the ADA. See Washington, 181 F.3d at 846-48 (describing the showing of a failure to accommodate as an independent method of proving discrimination under Title II); cf. Good Shepherd Manor Found., 323 F.3d at 561-62 (holding that “reasonable accommodation is a theory of liability separate from intentional discrimination“). In sum, a Title II claim under the ADA “may be established by evidence that (1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant‘s rule disproportionally impacts disabled people.” Washington, 181 F.3d at 847. The district court resolved WCS’ claim employing the second approach, see Wisconsin Community Serv., 309 F.Supp.2d at 1104, and our case law provides support for such a cause of action.15
B.
With the key legislative provisions in full view, we turn now to the task of applying them to the case before us. In essence, we must decide whether, and to what extent, the Rehabilitation Act and Title II
WCS submits that the City must waive application of its normal special-use criteria for WCS because it has shown that granting the permit will ameliorate overcrowding, a condition that particularly affects its disabled clients. Before accepting this position, however, we must ask whether WCS has satisfied the “necessity” element contained in the Rehabilitation Act as interpreted by Choate and in the Title II regulation, see
As we already have discussed, with respect to the Rehabilitation Act, Choate held 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. See Choate, 469 U.S. at 302; cf. Hemisphere Bldg. Co., 171 F.3d at 440 (asking whether the rule in question, if left unmodified, hurts “handicapped people by reason of their handicap, rather than ... by virtue of what they have in common with other people, such as a limited amount of money to spend on housing” (emphasis in original)). The inquiry is the same under the ADA regulation, which asks whether a modification is “necessary to avoid discrimination on the basis of disability.”
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 reсord indicates, the City would have rejected similar proposals from non-profit health clinics serving the non-disabled. WCS contends that Title II‘s accommodation requirement calls, in such a situation, for “‘preferential’ treatment and ‘is not limited only to lowering barriers created by the disability itself.‘” Appellee‘s Br. at 30 n.5 (quoting Giebeler, 343 F.3d at 1154). WCS’ view, however, is inconsistent with the “necessity” element as it has been defined under the Rehabilitation Act, the FHAA and Title II of the ADA. On this record, because the mental illness of WCS’ patients is not the cause-in-fact of WCS’ inability to obtain a suitable facility, the program that it seeks modified does not hurt persons with disabilities “by reason of their handicap.” Hemisphere Bldg. Co., 171 F.3d at 440 (emphasis in original).
WCS responds that the Supreme Court‘s decision in US Airways, Inc. υ. Barnett, 535 U.S. 391 (2001), has overruled the principle, central to previous Title II accommodation decisions, that the proposed modification must be necessary to avoid discrimination on the basis of a disability. In Barnett, a case decided under Title I of the ADA, a U.S. Airways baggage handler injured his back and requested transfer to a mailroom position that recently had become available. US Airways refused because, under its seniority policy, the company was required to award the position to
According to WCS’ characterization, in Barnett, the seniority policy treated the disabled and non-disabled alike, and it was a non-disability characteristic (seniority) that denied Barnett the job. WCS sees no distinction between Barnett and the present case: Just as the plaintiff in Barnett was ineligible for the mail room position because of his seniority rather than his disability, WCS was ineligible for a special use permit because it was a non-profit health clinic, not because its clients were disabled. Because the Supreme Court allowed Barnett‘s claim to go forward, albeit with a heightened burden of persuasion, WCS submits that it has satisfied the necessity element of its accommodation claim.
We cannot accept this argument. Barnett and the present case simply deal with different analytical problems. Fairly read, Barnett did not deal with the issue of necessity-causality, which was addressed in the cases we discussed earlier. Rather, it dealt with the second question that courts must confront in Title II accommodation cases: whеther the accommodation was reasonable. Yet, this element cannot be reached until it has been determined that an accommodation is necessary because a person‘s disability is the cause for his being denied the service or benefit. As we explained earlier, to satisfy Title II‘s necessity element, a plaintiff must show that, “but for” its disability, it would have received the ultimate benefit being sought—which, in WCS’ case, is a larger facility. Washington, 181 F.3d at 849. The same is true under the Rehabilitation Act. See Choate, 469 U.S. at 302. If the City‘s zoning rules are to be compared to the seniority policy in Barnett, WCS must demonstrate that, because of its clients’ disabilities, it cannot relocate to a suitable site. Only then will the unmodified policy hurt the disabled on account of their disability. Only then will the modification be “necessary to avoid discrimination on the basis of disability.”
The district court assumed that the proposed modification could be deemed “necessary” even if the disabilities suffered by WCS’ patients were not the cause-in-fact of its inability to find a larger building. The district court failed to apply a “but for” causation standard in determining the necessity element of WCS’ accommodation claim. Choosing this course was error in light of the prevailing standards under our case lаw. We therefore must 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.16
Conclusion
For the foregoing reasons, we reverse the judgment of the district court and remand for proceedings consistent with this opinion. The City may recover its costs in this court.
REVERSED and REMANDED.
EASTERBROOK, Circuit Judge, concurring.
One question on which the parties have disagreed is whether
The regulation provides:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demоnstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
A proposed accommodation is required only if it is “necessary” to “avoid discrimination“. That an alteration in zoning rules would be convenient or helpful to a plaintiff does not make the change “necessary.” Moreover, “discrimination” exists only if the zoning regulation (or other rule at issue) hurts “handicapped people by reason of their handicap, rather than ... by virtue of what they have in common with other people, such as a limited amount of money to spend” (maj. at 737, 748, 749, 751-52, 754, all quoting from Hemisphere Building Co. v. Richton Park, 171 F.3d 437, 440 (7th Cir.1999) (emphasis in original)). That was the panel‘s view as well. 413 F.3d at 646.
In a brief amicus curiae filed at the court‘s request, the Civil Rights Division of the Department of Justice told us that this regulation creates an accommodation requirement distinct in the sense that disparate impact may be established by casespecific as well as statistical evidence. In employment-discrimination litigation under Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act, a “disparate impact” means a statistically significant adverse effect of a rule that is neutral in its terms. There is no good reason, however, why a regulation mаy not take a different approach to disparate-impact theories in disability-discrimination cases, where the circumstances of the affected persons may be so different—and the number of zoning or housing-code rules so numerous—that statistical analysis would be impractical. Title II does not specify a regimen for disparate-impact analysis, which means that a regulation requiring local zoning rules to yield when “necessary” to avoid applicant-specific disparate impacts that occur by reason of disability is a reasonable way to implement the statute. So I accept the Civil Rights Division‘s reading of this regulation, and I understand the court‘s opinion to do so too.
Notes
individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices