A federal appeals panel in Chicago has ruled employers might be obligated to provide workers with Americans with Disabilities Act accommodations related to commuting or risk lawsuits.
The Equal Employment Opportunity Commission filed a lawsuit against Charter Communications on behalf of James Kimmons, a call center employee who claimed he couldn’t drive safely at night due to cataracts. Kimmons worked in Milwaukee and lived in Racine, Wisconsin, about an hour drive, with a shift that ran from noon to 9 p.m. Although Charter moved Kimmons’ shift from 10 a.m. to 7 p.m., it did so only for 30 days and then denied a request for another 30-day change.
In December 2021, U.S. District Judge Brett Ludwig, in the Eastern District of Wisconsin, granted summary judgment to Charter, ruling the cataracts had no effect on Kimmons’ ability to perform his work functions. The EEOC challenged that ruling before the U.S. Seventh Circuit Court of Appeals. Judge David Hamilton wrote the panel’s opinion, issued July 28; Judges Diane Wood and Amy St. Eve concurred.
The Seventh Circuit hears appeals from federal district courts in the states of Illinois, Indiana and Wisconsin. Decisions of the Seventh Circuit can be binding in those three states.
“The broad question here is whether an employee with a disability can be entitled to a work-schedule accommodation to allow him to commute more safely,” Hamilton wrote, noting different federal circuit courts have reached different results on similar questions. Hamilton said the panel wouldn’t “adopt a bright-line rule to the effect that an employer never has a duty of reasonable accommodation under the ADA regarding how its employees with disabilities get to work.”
Factors to be considered when employees request accommodations are whether workplace attendance is mandatory and if all circumstances lead to the conclusion the request is reasonable. The panel said it didn’t address larger questions about the essence of a physical presence at a job site because all parties, and Judge Ludwig, approached Kimmons’ case as if his in-person attendance was essential.
According to case history, Kimmons found no buses operated after 9 p.m. He attempted to carpool, but the company wouldn’t grant a request to know which coworkers might live nearby. Hired transportation would’ve been cost prohibitive. Kimmons said he arranged his own transportation the duration of his time working in Milwaukee and said he stopped working at Charter in January 2017 for reasons unrelated to his commute.
Although Charter contested whether Kimmons had a legally recognized disability, the panel said Judge Ludwig analyzed the situation assuming a disability. The panel did the same and, as such, would not affirm summary judgment on those grounds.
“Our cases have recognized that a work-schedule accommodation can sometimes be required,” Hamilton wrote. The panel then turned to cases in other circuits, notably a 2010 U.S. Third Circuit Court of Appeals opinion, Colwell v. Rite Aid, involving a cashier who lost vision in one eye and had to sue to get the pharmacy to assign her daytime only shifts because she could no longer drive in the dark. That worker, Hamilton wrote, was “not actually asking for help” in how she commuted, just a schedule change within Rite Aid’s control.
Other cases involved those where employees couldn’t prove the reasonableness of their requested changes based on factors beyond the parties’ control — such as traffic volume — or where a flexible schedule didn’t yield reliable work attendance owing to factors an employer couldn’t dictate.
“Deciding whether a work-schedule accommodation of a disability that affects a commute is reasonable depends on a highly fact-specific inquiry that considers the needs of both employer and employee. The employee bears the burden to make a preliminary showing that his requested accommodation is reasonable on its face,” Hamilton wrote. “An employer may defend on the grounds that no accommodations would be reasonable and/or that the proposed accommodations would impose an undue hardship on its operations, with the employer bearing the burden of showing undue hardship.”
The panel said courts making these decisions need to “focus on the precise accommodations at issue,” because it might be reasonable to make a short-term shift change while a worker tries to find housing closer to the office.
“An employee who has chosen to live far from the workplace or failed to take advantage of other reasonable options, including public transportation, will rarely if ever be entitled to an employer’s help in remedying the problems,” Hamilton wrote. “Any analysis for work-schedule accommodations for commuting will likely need to consider whether the accommodation would unduly burden the business operation.”
While the panel said it didn’t try to name all possible relevant factors in future decisions, it did conclude Kimmons’ request to have an extra 30 days of the earlier shift could’ve met a jury’s standard of reasonableness and said Charter failed to show granting the request would’ve created an undue hardship. It reversed Judge Ludwig’s ruling and remanded the complaint for further proceedings.