Published October, 2004

McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004)

The Ninth Circuit found that a man had a viable case when he sued the City of Portland for failing to accommodate his disability by refusing to grant him additional time to clear debris from his yard. In this case, a man living with AIDS and several related debilitating conditions received an order from the city to remove debris and trash from his property. The man intended to comply with the order, and did not need financial assistance to do so, but did request additional time for the clean-up because his condition made it difficult for him to do physical work. The city refused to grant an extension on the order, hired a contractor to clear the property, and sent the man a bill for $1,800 to cover the cost of the clean-up. The man sued the city, alleging violations of the Fair Housing Amendments Act (FHAA), the Americans with Disabilities Act (ADA), and parallel state laws, for the city’s failure to provide him with a reasonable accommodation. The city claimed that the man had not adequately stated a claim because he “failed to allege that any accommodation was necessary to afford him an equal opportunity to ‘use and enjoy’ his home.” However, the court indicated that the threshold for pleading discrimination claims under the FHAA is low and the man had alleged enough to at least have his case heard. The court further explained that the FHAA “poses an affirmative duty on public agencies to reasonably accommodate disabled individuals by modifying administrative rules and policies.” The court also found that the man had adequately alleged discrimination under the ADA because “a plaintiff need not allege either disparate treatment or disparate impact in order to state a reasonable accommodation claim.” Therefore, even though the rule was applied consistently to all residents, disabled and otherwise, the claim could still move forward because “the crux of a reasonable accommodation claim is a facially neutral requirement that is consistently enforced.” In other words, even though a requirement is applied equally to all people, a person with a disability may need some modification of the requirement in order to comply with it.