The United States Court of Appeals for the Seventh Circuit recently joined the Second and Third Circuits in holding that employers may have a duty to accommodate employees who experience difficulties commuting to work due to a disability under the Americans with Disability Act (ADA).1
District Court Decision Granting Employer Summary Judgment
In EEOC v. Charter Communications, the EEOC sued the employer, Charter, for refusing an employee's request for a thirty-day work schedule change to reduce his nighttime driving. The employee had cataracts in both eyes, which impaired his vision and made nighttime driving unsafe. Public transit was not an option on his schedule; therefore, the employee asked Charter to temporarily modify his work schedule to start earlier and leave earlier, while he explored moving closer to work. Charter initially granted the first request for a thirty-day change but denied his request to extend the schedule.
The District Court granted summary judgment in favor of Charter.2 It held the employer had no obligation to accommodate the employee's commute because his disability did not affect his ability to perform any essential function of his job once he arrived at the workplace.
Reversal by the Seventh Circuit Court Focusing on a "Work-Schedule" Accommodation
On appeal, the three-judge panel reversed, concluding that the employee may be entitled to a work-schedule accommodation. Further, the Circuit Court acknowledged that in most cases, getting to and from work is the responsibility of an employee, not the employer. However, the Circuit Court focused on the request being "a work-schedule accommodation to allow him to commute more safely."
In other words, the employee was not seeking to avoid commuting or asking the employer to arrange for transportation for him. While the Circuit Court did not provide a bright-line rule, it held that if an employee's disability substantially interferes with the employee's ability to travel to and from work, the employee may be entitled to a work-schedule accommodation if commuting to work is a prerequisite to an essential job function, including attendance in the workplace, and is reasonable.
The Circuit Court rejected Charter's argument for a firm distinction between accommodations at the employer's workplace and accommodations that address transportation problems. As shown in this case, the two are arguably intertwined. The Court, citing prior EEOC enforcement guidance, stated that workplace barriers may include "rules concerning when work is performed" and also cited the legislative history of the ADA, which recognized modified work schedules as a reasonable accommodation. The Seventh Circuit reaffirmed that the evaluation must be on a case-by-case basis, considering the facts of each case. As such, it was for a jury to determine.
Circuit Split on Commuting Accommodations – Or Not?
The Seventh Circuit decision is helpful in terms of synthesizing what may appear to be contradictory holdings from the various Circuits. It details the various holdings from the key Court of Appeals decisions based on their facts:
- Unrein v. PHC-Fort Morgan, Inc.,3 affirming judgment for employer; where employee became legally blind and had long commute, ADA did not require employer to allow unpredictably flexible schedule depending on employee's ability to obtain rides to work after the hospital employer's fifteen-month experiment of trying such flexible accommodations;
- Regan v. Faurecia Automotive Seating, Inc.,4 affirming summary judgment for employer; employee's narcolepsy affecting safety of long commute posed problem outside work environment and employee moved seventy-nine miles away from her job, so ADA did not require accommodation;
- Colwell v. Rite Aid Corp.,5 reversing summary judgment for employer; employee's vision problems made driving at night dangerous, and ADA could require the employer to make a schedule change to accommodate disability, which was within the employer's control;
- Gile v. United Airlines, Inc. (Gile II),6 affirming a jury verdict for an employee who asked for a day-light shift modified work schedule; "a shift transfer may not have cured" the employee's condition, a "rational jury easily could conclude that a shift transfer would have alleviated [the employee's] symptoms such that [the employee] could have performed her job;"
- EEOC v. Sears, Roebuck& Co.(Sears II),7 reversing summary judgment granted for the employer; employee requested accommodations to shorten her walk through a large retail store and mobility to employee's workstation was a prerequisite for her performing any essential function of her job;
- Lyons v. Legal Aid Society,8 reversing dismissal on pleadings; attorney's difficulty in walking could require accommodation in the form of parking space near work where the cost for a parking space would otherwise be 15 and 26 percent of her net salary to be near her office and the courts, respectively.
The Charter decision reflects the Seventh Circuit's agreement with the results of the above-mentioned decisions. It synthesizes these holdings by noting two key principles: (1) an employee with a disability controls some key variables, such as where the employee lives, but the employer controls another key variable, the work schedule, and who is controlling what variables within the overall scenario matters, and (2) "in most cases, an employer has no duty to help an employee with a disability with the method and means of his commute to and from work," so long as consistent with other employees' treatment. As a result, employers do not necessarily need to provide accommodations with respect to commuting, but they must engage in a careful analysis as to what they control related to the work environment that will reasonably enable the employee to perform their essential functions.
Takeaways with Post-Covid-19 Considerations
Going forward, employers should be mindful that their duty to accommodate a disabled employee may not be limited to accommodations at the workplace. If attendance is an essential function of a position, an employer may need to accommodate an employee's disability-related difficulties in getting to work when they may be within the employer's control, such as work-schedule accommodations, if reasonable. As a result, temporary, modified work schedules may qualify as a reasonable accommodation so long as the change does not unduly burden business operations.
In the post-Covid era, with more employees seeking to work remotely to avoid commuting, this area will continue to evolve. As in all cases involving accommodations, employers should engage in the interactive process, document that process, and carefully consider accommodations based upon disability-related difficulties, including when they relate to commuting to and from work safely. Employers should understand the reasons for the commuting difficulties and what factors are within the employees' control and their anticipated duration, before deciding whether to accommodate.
1. EEOC v. Charter Commc'ns, LLC, 75 F.4th 729 (7th Cir. 2023)
2. EEOC v. Charter Commc'ns, LLC, 2021 WL 5988637. E.D. Wis. Dec. 17, 2021
3. 993 F.3d 873, 878-79 (10th Cir. 2021)
4. 679 F.3d 475, 479-80 (6th Cir. 2012)
5. 602 F.3d 495, 504 (3d Cir. 2010)
6. 213 F.3d 365, 373 (7th Cir. 2000)
7. 417 F.3d 789, 796, 802 (7th Cir. 2005)
8. 68 F.3d 1512 , 1516-17 (2d Cir. 1995)
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