Henrietta v. Bloomberg

The plaintiffs in this civil rights litigation, indigent New York City residents who suffer from AIDS and other HIV-related illnesses, are clients of New York City's Division of AIDS Services and Income Support ("DASIS"), an agency whose sole function is to assist persons with HIV-related diseases in obtaining public assistance benefits and services. The plaintiffs allege that in spite of DASIS's existence (and in part due to DASIS's ineffectiveness), New York City and New York State are failing to provide them with adequate access to public benefits, and are thereby violating various federal and state statutes, regulations, and constitutional provisions.

Following a bench trial in the United States District Court for the Eastern District of New York (Johnson, J.), the District Court found in plaintiffs' favor, holding that defendants Rudolph Giuliani, as then-Mayor of New York City, and Marva Hammons, as Administrator of the New York City Human Resources Administration and the Commissioner of the New York City Department of Social Services (together, the "city defendants"), by failing to provide adequate access to public benefits and services, had "violated Title II of the Americans with Disabilities Act of 1990 [(the "ADA")], 42 U.S.C. § 12131 et seq. and its implementing regulations; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and its implementing regulations; 42 U.S.C. §§ 1396(a)(8), (a)(19) [sic],2 ... 42 C.F.R. §§ 435.911(a) and (b), and 7 C.F.R. § 273.2, and 42 C.F.R. § 206.10(a)(i); "New York State Social Services Law and implementing regulations and administrative directives; the Due Process clause of the New York State and United States Constitutions; and Article XVII, Sections 1 and 3 of the New York State Constitution." Henrietta D. v. Giuliani, 119 F.Supp.2d 181, 220-21 (E.D.N.Y.2000). It also held defendant Marva E. Glass (the "state defendant"), as Commissioner of the New York State Department of Social Services, vicariously liable for violating the same provisions of the ADA and the Rehabilitation Act based on the violations of the city defendants. Id. at 221. The District Court ordered injunctive relief against all defendants. All defendants appeal the District Court's findings of liability against them and the District Court's imposition of injunctive relief. Because we conclude that the alleged general failure of New York City's public benefits system in this case does not excuse the city defendants from their duty under the ADA and the Rehabilitation Act to ensure that the plaintiff class-members have meaningful access to the benefits to which they are facially entitled, we affirm as to those defendants. Additionally, because we agree with the District Court that the state defendant was subject to suit under the ADA, not shielded by sovereign immunity, and possessed of an obligation to supervise the effective delivery of benefits granted as part of New York State's agreement with the United States, we also affirm as to the state defendant.

The certified plaintiff class consists of "[a]ll DAS-eligible3 persons, i.e., persons who are New York City residents, are Medicaid eligible and meet the medical condition of having either (1) CDC defined AIDS, or (2) an HIV-related condition and a need for home care services." Henrietta D. v. Giuliani, No. 95 Civ. 0641, 1996 WL 633382, at *16 (E.D.N.Y. Oct. 25, 1996). The members of the class assert that they face unique physical hurdles in attempting to access certain public assistance benefits and services. They claim that DASIS, the New York City agency charged with helping them access such benefits and services, is ineffective and systemically fails to achieve its goals. The plaintiffs seek injunctive relief ordering the defendants, various city and state officials charged with implementing New York's social services system, to provide the benefits to which the plaintiff class is entitled.

Before turning to the plaintiffs' specific complaints, it is necessary briefly to canvass the structure of the New York public benefits system. Congress has authorized the grant of federal money to consenting States in exchange for promises that the States will provide to qualifying individuals certain forms of public assistance, such as food stamps, welfare benefits, and Medicaid coverage. See, e.g., 7 U.S.C. §§ 2011-2036 (food stamps); 42 U.S.C. §§ 601-619 (assistance to needy families); 42 U.S.C. §§ 1396-1396v (Medicaid). Pursuant to such a federal-state cooperative program, New York provides eligible New Yorkers with public financial assistance benefits, see, e.g., N.Y. Soc. Serv. Law §§ 131-a, 157 to 59, 348 to 49, Medicaid benefits, see N.Y. Soc. Serv. Law §§ 363 to 39, and food stamps, see N.Y. Soc. Serv. Law § 95. The New York State Department of Social Services4 oversees the statewide benefits system, but the programs are administered on a day-to-day basis by 58 local county districts, one of which is New York City. See N.Y. Soc. Serv. Law § 61. "In the administration of public assistance funds, whether they come from Federal, State, or local sources, the authority and responsibility is that of the county commissioners of social services, not the counties; the local commissioners act on behalf of and as agents for the State." Beaudoin v. Toia, 45 N.Y.2d 343, 408 N.Y.S.2d 417, 380 N.E.2d 246, 247 (1978). While the local agencies operate the benefits system, including processing applications for benefits and making eligibility determinations, the state agency is required to "supervise all social services work." N.Y. Soc. Serv. Law § 20(2)(b). The state agency oversees the local districts largely through administration of a "fair hearing" system whereby applicants for, and recipients of, state-provided public benefits may challenge local district decisions before an impartial administrative law judge, and may ultimately seek judicial review. See N.Y. Soc. Serv. Law § 22. Thus, both the city defendants and the state defendant play a role in the administration of New York's social services system, and the nature of the relationship between the state defendant and the city defendants is a key issue that we explore below.

The City of New York sought in 1997 to assist its HIV-afflicted residents in their efforts to access public services and benefits by combining under one umbrella several city agencies that endeavored to assist that population. See N.Y. City Admin. Code § 21-126 et seq. ("the DASIS law"). The DASIS law aims to "provide access to [publicly subsidized benefits and services] to every person with clinical/symptomatic HIV illness ... or with AIDS." N.Y. City Admin. Code § 21-126. The DASIS law specifically locates DASIS within the New York City Department of Social Services. See id. ("There shall be a division of AIDS services within the New York city department of social services.").

The DASIS law imposes procedural rules designed to facilitate access to existing federal, state, and local welfare benefits and also mandates certain benefits that can arguably be characterized as additional substantive benefits. Procedural rules include, for example, an "intensive case management" requirement with specified minimum caseworker-client ratios, see N.Y. City Admin. Code § 21-127, and a requirement that services or benefits be provided within twenty business days of an application where no law or regulation provides a different time frame, see N.Y. City Admin. Code § 21-128(c)(2). Most of the services and benefits to which DASIS helps facilitate access are programs available to non-disabled individuals in addition to the plaintiff class, and the DASIS law makes clear that "[a]ny eligible person shall receive only those benefits and services for which such person qualifies in accordance with the applicable eligibility standards established pursuant to local, state or federal statute, law, regulation or rule." Id. at § 21-128(b). Some of the services to which DASIS is intended to facilitate access, however, are available only to those afflicted with HIV-illness. See, e.g., N.Y. Comp.Codes R. & Regs. tit. 18, § 352.3(k)(1) (providing emergency shelter allowances for the HIV-afflicted population); N.Y. City Admin. Code § 21-128(b) (providing for access to enhanced rental assistance for the HIV-afflicted population and their family members residing with them). Additionally, the DASIS law requires continued provision of "transportation and nutrition allowances" in the same amounts that they had been provided prior to enactment of the DASIS law (although the city council and the mayor retain the power to adjust the amounts in the event of a "material reduction" in the state's "funding allocation"). See N.Y. City Admin. Code § 21-127. As we discuss below, an issue in this litigation is whether the DASIS law represents an attempt to provide the plaintiff class with additional, substantive benefits unavailable to other members of the population (as the defendants contend) or whether (as the plaintiffs contend) the DASIS law aims merely to provide an accommodation to the plaintiff class designed to facilitate meaningful access to benefits available to other similarly situated people.

Against this backdrop, we turn to the District Court's findings with respect to the plaintiffs' allegations that DASIS has failed adequately to provide the services it is supposed to provide. The District Court's extensive and thorough findings of fact are set forth in its reported opinion, Henrietta D., 119 F.Supp.2d at 184-204, and we pause here only to emphasize the key facts relevant to this appeal.

As an initial matter, the District Court, after hearing the testimony of several individuals afflicted with HIV-related illness, agreed with the plaintiffs that the physical challenges and medical risks faced by the plaintiff class create unique barriers with respect to obtaining access to public benefits and services:

People living with HIV and AIDS develop numerous illnesses and physical conditions not found in the general population, and experience manifestations of common illnesses that are much more aggressive, recurrent, and difficult to treat. Infections and cancers spread rapidly in a person whose immune system has been compromised, and the effectiveness of medicine is diminished by nutritional problems that limit the body's ability to absorb what is ingested. Illnesses that are not lethal to the general population can kill an HIV-infected person. For all these reasons, persons with AIDS and HIV-related disease experience serious functional limitations that make it extremely difficult, if not impossible in some cases, to negotiate the complicated City social service system on their own.

* * * * * *

The opportunistic infections and chronic conditions that result from a weakened immune system limit the HIV-infected person's ability to engage in regular activities of daily life such as traveling, standing in line, attending scheduled appointments, completing paper work, and otherwise negotiating medical and social service bureaucracies....

Functional limitations also develop from the primary drugs used to combat AIDS and HIV-related disease.... An individual receiving this common regime of prescription drugs likely will be restricted in his or her ability to walk, stand, or travel. Other side effects include enhanced neuropathy, diarrhea, nausea, and vomiting.

* * * * * *

The requirement that persons with AIDS and advanced HIV disease travel to and wait in infection-ridden public waiting rooms can be dangerous, and even life-threatening, for this population, all of whom suffer from severely weakened immune systems.

Id. at 185-86 (internal citations and paragraph numbering omitted).

The District Court concluded that DASIS was designed to address these obstacles, and most of the testimony at trial dealt with the plaintiffs' allegations that DASIS generally failed to provide the services that it was mandated by law to provide. After hearing testimony from DASIS clients, DASIS employees, advocates for DASIS clients, and experts, the District Court concluded that the allegations were well-founded, finding that DASIS was "chronically and systematically failing to provide plaintiffs with meaningful access to critical subsistence benefits and services, with devastating consequences." Id. at 209.

The District Court discussed several different aspects of the evidence in reaching this conclusion. First, it cited the testimony of various plaintiffs who had testified that they frequently had limited contact with DASIS caseworkers and often had received untimely responses or no response to requests made through DASIS. See id. at 186-95. Second, the District Court noted that the testimony of two individuals who had assisted DASIS clients supported the testimony of the DASIS clients that DASIS was disorganized and often unresponsive. Id. at 195-99. For example, the Director of the Legal Advocacy Program of Bronx AIDS Services testified that she had "experienced extensive problems in working with clients trying to access benefits and services through DASIS," and that "(i) there [were] problems reaching case workers, (ii) her clients' public assistance cases ha[d] been improperly terminated without notice or adequate notice, and (iii) she had experience[d] significant problems with regard to relocating clients, including having clients lose apartments or face eviction because of DASIS'[s] failure timely to assist the clients." Id. at 195-96 (internal quotation marks omitted). She further testified that she had encountered "daily problems reaching case managers that include calling but the case manager's phone is off the hook, not having her calls returned or not receiving a response to written correspondence or waiting several hours at a DASIS office to speak to someone concerning one of her clients." Id. at 196.

Third, the District Court pointed to a statistical analysis of DASIS's performance in processing thirty-one rental assistance applications, prepared by Dr. Ernest Drucker, a professor of epidemiology and social medicine at Montefiore Medical Center who specializes in examining AIDS and its effects on the New York City population. Id. at 199. The District Court summarized the results of the report:

In over 77% of [the cases analyzed], the City failed to meet its own mandated time frames of 20 business days or approximately 30 calendar days. For those applicants who were not acted upon with [sic] the legally mandated time frames, the median length of time was 63 days but the range for applicants was up to 132 calendar days. The considerable delays in the approval of rental assistance shown in this report provide probative evidence of delays that are typical and systemic.

Id. at 199-200. The District Court concluded with respect to the Drucker study that "the foregoing facts credibly demonstrate systemic problems in DASIS' efficient and timely administration of benefits." Id. at 203.

Fourth, the District Court noted that even a key DASIS official had acknowledged the failure of DASIS to properly monitor its caseload:

Deputy Commissioner Caldwell testified that DASIS was not fully in compliance with the legal requirements of the DASIS Law in either December 1997 or in June 1998, and is not today fully compliant with the DASIS Law. Deputy Commissioner Caldwell further admitted that, despite the mandates of the DASIS Law, DASIS does not track the length of time required to process requests for many benefits and services, including those administered by the State; the total number of persons placed in permanent housing; the average length of time to reopen cases closed; or the average length of time required to comply with fair hearing decisions.

Id. at 203 (internal citations and paragraph numbering omitted).

The District Court held that the plaintiffs had demonstrated that they required special accommodations in order to access public benefits and services, and concluded that the DASIS law, if properly complied with, would provide the necessary accommodations to the HIV-positive population, id. at 208, but that DASIS was not functioning as the DASIS law had intended:

At this time, the Court finds that plaintiffs demonstrated at trial that ... DASIS... is broken, i.e., that defendants are failing to make the reasonable accommodations necessary to ensure plaintiffs meaningful access to, and an equal opportunity to benefit from, the social welfare benefits and services that defendants provide to eligible New York City residents. The extensive evidence proffered at trial — from representative plaintiffs, from some of the City's largest providers of services to the plaintiff class, from expert testimony, and from the City's own performance-tracking reports — establishes unequivocally that defendants are chronically and systematically failing to provide plaintiffs with meaningful access to critical subsistence benefits and services, with devastating consequences.

Id. at 209.

Based on these findings and conclusions, the District Court ruled in the plaintiffs' favor, holding that New York City had failed to provide the plaintiffs with meaningful access to public assistance benefits and services in violation of Title II of the ADA and section 504 of the Rehabilitation Act. Specifically, the District Court found that the DASIS law provided the reasonable accommodations requested by the plaintiffs, and that the City's failure to comply with the DASIS law violated the ADA and the Rehabilitation Act. Id. at 208-09, 214. The District Court also found the state defendant liable for violating the ADA and § 504 based on her failure to supervise New York City in the provision of public benefits and services. Id. at 216-17.5

At the trial, the District Court had precluded the defendants from introducing evidence designed to demonstrate that the plaintiffs were in fact receiving benefits on terms no worse than other individuals qualified to receive the same public benefits. Specifically, the defendants had hoped to have Patricia Smith, the Executive Deputy Commissioner of the Family Independence Administration of the City Human Resources Administration, testify about the manner in which services are provided to the non-disabled. The District Court explained its preclusion of the evidence in its opinion, holding that "[p]laintiffs have alleged, and demonstrated, that defendants have failed to provide them with the reasonable accommodations required by the federal disability statutes, thus failing to ensure them meaningful access to the benefits to which they are entitled," and that "[a] comparison with the manner in which benefits are administered to the non-disabled is thus not required, for the question of equality of administration is irrelevant to a claim for reasonable accommodations." Id. at 213.

In addition to finding the city defendants and the state defendant liable under the ADA and the Rehabilitation Act, the District Court also found the city defendants liable for violations of the Medicaid Act and its implementing regulations, as well as for violations of the New York State Social Services Law and its implementing regulations and administrative directives, based on the city's repeated terminations of welfare benefits without adequate notice and hearing. Id. at 214-16, 219-20. The District Court further held that the city defendants' failure to provide the plaintiff class with adequate access to benefits violated the New York State Constitution's mandate that "[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions." Id. at 217-19 (quoting N.Y. Const. Art. 17 § 1).

The District Court's conclusions of law announced its intention to award the plaintiffs both declaratory and permanent injunctive relief. See id. at 204, 214. It "retain[ed] full jurisdiction over compliance with this judgment," but referred the matter to "the Honorable Cheryl L. Pollak, United States Magistrate Judge to will [sic] monitor compliance with the terms of this order for a period of three years from this date." Id. at 221. It stated that "Magistrate Judge Pollak shall have the power to compel compliance with the requirements of this judgment, and to recommend penalties and sanctions in the event of noncompliance." Id.

Prior to finalization of the form of injunction by the Magistrate Judge, the defendants attempted to appeal the District Court's judgment in plaintiffs' favor to this court. However, we dismissed the appeal for lack of jurisdiction, holding that the judgment of the District Court was not final (and thus not yet appealable under 28 U.S.C. § 1291) until the permanent injunction was issued by the District Court. See Henrietta D. v. Giuliani, 246 F.3d 176, 180-81 (2d Cir.2001). We rejected the contention that we had jurisdiction based on 28 U.S.C. § 1292(a)(1)'s exception to 28 U.S.C. § 1291, which permits interlocutory review of the grant of injunctions, holding that the mere fact that the District Court had ordered the fashioning of injunctive relief and compliance with various statutes was not enough to trigger interlocutory review and that jurisdiction in the Second Circuit would lie only once the "plaintiffs are granted at least part of the ultimate, coercive relief they seek." Id. at 182-83.

In a decision dated December 11, 2001, the District Court, over several objections by the defendants, accepted and issued an injunctive order prepared by the Magistrate Judge. The injunction provides that

[t]he City of New York, through [DASIS]... shall (a) provide access to public benefits and services to every person with clinical symptomatic HIV illness or with AIDS who requests assistance and (b) ensure the provision of public benefits and services to eligible persons with clinical/symptomatic HIV illness or with AIDS, and (c) comply with all legally-mandated time frames for the delivery of benefits and services.

In addition, the injunction requires DASIS to provide "intensive case management" and to maintain specified ratios of caseworkers and supervisors to cases at each field office. It also requires DASIS to enact a number of procedural reforms designed to provide clearer recordkeeping, more efficient response to requests, and meaningful and efficient explanation and notice of actions on benefit applications. The order requires the City to "appoint a representative to handle all problems that DASIS clients are experiencing as reported by Plaintiffs' counsel or their representative `Troubleshooter.'" The plaintiffs' counsel and their representatives have the right "to conduct on-site inspections of DASIS centers" to monitor compliance with applicable law. The order also requires that the state defendant "supervise" the city defendants' compliance with the order, and that the state defendant institute a number of procedural reforms with respect to the fair hearing process it oversees.

Both the city and state defendants appeal.6 The city defendants argue that the facts found by the District Court do not establish a violation of the ADA, the Rehabilitation Act, or the Medicaid Act, and argue that because in their view no violation of federal law was demonstrated, the District Court should have declined to exercise pendent jurisdiction over the state law claims. The state defendant notes its agreement with the city defendants that none of the defendants violated the relevant statutes and regulations, but contends that even if the city defendants violated federal law, the District Court erred in imposing liability on the state defendant.

We review a district court's bench trial findings of fact for clear error and its conclusions of law de novo. See Celardo v. GNY Auto. Dealers Health & Welfare Trust, 318 F.3d 142, 145 (2d Cir.2003). Factual findings should "not be set aside unless they are without adequate support in the record, are against the clear weight of the evidence, or are the product of an erroneous view of the law." Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 657, 116 L.Ed.2d 749 (1991). "We may overturn an order granting a permanent injunction `if the district court relied upon a clearly erroneous finding of fact or incorrectly applied the law.'" Rodriguez v. City of New York, 197 F.3d 611, 614 (2d Cir.1999) (quoting Gen. Media Communications, Inc. v. Cohen, 131 F.3d 273, 278 (2d Cir.1997)), cert. denied, 531 U.S. 864, 121 S.Ct. 156, 148 L.Ed.2d 104 (2000).

A. Whether the Plaintiffs Have Established That They Are Entitled to a Reasonable Accommodation

The ADA was enacted to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1) (2000). Its first three titles proscribe discrimination against individuals with disabilities in employment and hiring (Title I), access to public services (Title II), and public accommodations (Title III). The plaintiffs in this case rely upon the anti-discrimination provision of Title II, which provides as follows: "Subject to the provisions of this subchapter, 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, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act similarly provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a) (2000).

As the District Court correctly noted, "[a]lthough there are subtle differences between these disability acts, the standards adopted by Title II of the ADA for State and local government services are generally the same as those required under section 504 of federally assisted programs and activities." Henrietta D., 119 F.Supp.2d at 206 (internal quotation omitted). Indeed, unless one of those subtle distinctions is pertinent to a particular case, we treat claims under the two statutes identically. See Weixel v. Bd. of Educ., 287 F.3d 138, 146 n. 6 (2d Cir.2002); Rodriguez, 197 F.3d at 618 ("Because Section 504 of the Rehabilitation Act and the ADA impose identical requirements, we consider these claims in tandem."); Cercpac v. Health & Hosps. Corp., 147 F.3d 165, 167 (2d Cir.1998). None of the distinctions between the two statutes is relevant here. Accordingly, the District Court properly "consider[ed the] ... ADA and Rehab Act claims together," Henrietta D., 119 F.Supp.2d at 206, and we do so as well.

In order to establish a violation under the ADA, the plaintiffs must demonstrate that (1) they are "qualified individuals" with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs' disabilities. See Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998). Additionally, to establish a violation under the Rehabilitation Act, a plaintiff must show that the defendants receive federal funding. Id. The defendants concede that the plaintiffs are qualified individuals with disabilities, that the defendants receive federal funding, and that the city defendants are subject to both the ADA and the Rehabilitation Act. The defendants deny, however, that plaintiffs have proven that they have been discriminated against because of their disability as that concept is defined under the ADA and Rehabilitation Act.

The defendants argue that because the plaintiffs have not demonstrated that they are receiving less access than persons without disabilities to the services they seek, they have failed to show that they are "denied the benefits of the services, programs, or activities of a public entity," 42 U.S.C. § 12132, "by reason of [their] disability," id. (emphasis added), rather than as a result of other forces (such as systemic breakdowns within the entire social services system) that affect the non-disabled as well as the plaintiffs. The plaintiffs counter that they have demonstrated the requisite causal relationship based on the District Court's findings that the plaintiff class, because of the disabilities faced by its members, requires special accommodations in order to obtain meaningful access to social service benefits. They argue that they therefore need only show that such accommodations are not adequately being made available, and that they are not required to demonstrate disparate impact. The question, then, is whether a Title II plaintiff, to succeed on a claim alleging failure reasonably to accommodate, must also establish an adverse disparate impact on persons with the plaintiff's kind of disabilities.

We first note that the plaintiffs advance a "reasonable accommodation" claim, 42 U.S.C. § 12112(b)(5)(A); Alexander v. Choate, 469 U.S. 287, 300-01, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), and, contrary to the defendants' characterization, do not expressly rely on a theory of disparate impact. Our threshold question therefore is whether a Title II plaintiff who wishes to proceed on a reasonable accommodation theory must in any event also establish disparate impact. Put another way, we must determine whether the "concept of discrimination" embraced by the ADA demands that plaintiffs identify a "comparison class" of "similarly situated individuals given preferential treatment." Olmstead v. L.C., 527 U.S. 581, 598, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (plurality op.). We follow our fellow circuits, and the suggestions of the Olmstead plurality, in concluding that it does not.

Our analysis of the requirements of a reasonable accommodation claim begins with the Supreme Court's opinion in Choate. There, in interpreting the scope of section 504 of the Rehabilitation Act, the Court suggested that the relevant inquiry asks not whether the benefits available to persons with disabilities and to others are actually equal, but whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled. See Choate, 469 U.S. at 301, 105 S.Ct. 712. The Court explained that "an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.... [T]o assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made." Id.

The obligation reasonably to accommodate derives from the statute itself. Title I of the ADA states that "the term `discriminate' includes.... not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A).7 In interpreting the statutory terms we look to the views of the Justice Department, which was charged by Congress with issuing regulations implementing both the ADA and Section 504. See Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 n. 8 (2d Cir.1997); see also Olmstead, 527 U.S. at 598, 119 S.Ct. 2176 (reserving question whether Justice Department regulations are entitled to mandatory deference, but observing they at least "warrant respect").

The Justice Department's regulations, as we understand them, do not require a showing of disparate impact in reasonable accommodation cases. The Department's ADA regulations prohibiting "discrimination" provide in relevant part that:

A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability —

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a