Microsoft Word - Befort FINAL.docx

749

ACCOMMODATING AN EMPLOYEE’S

COMMUTE TO WORK UNDER THE ADA:

REASONABLE, PREFERENTIAL, OR BOTH?

Stephen F. Befort*

ABSTRACT

The federal courts are split on whether a request to accommodate an

employee’s commute to work is a reasonable accommodation under the ADA.

A majority of courts take the position that such a request is inherently

unreasonable either because commuting occurs outside of the work

environment or because granting such a request would amount to

impermissible preferential treatment. A minority of courts, in contrast, find

that commuting-related requests are not unreasonable per se and that the

appropriateness of such requests should be determined on a case-by-case

basis. This Article contends that those courts following the majority position

take a mistaken categorical approach to reasonable accommodation analysis.

Instead, courts should undertake an individualized analysis that focuses on

the effectiveness of the requested accommodation and whether such an

accommodation would impose an undue hardship. More broadly, this Article

asserts that concerns about preferential treatment and the inside/outside

distinction should not automatically defeat an otherwise effective reasonable

accommodation.

ABLE OF CONTENTS

I. Introduction ........................................................................................... 750

II. The Reasonable Accommodation Requirement ............................... 752

III. Accommodating the Commute to Work: A Circuit Split ................. 754

A. The Majority Approach: Commuting Accommodations

are Per Se Unreasonable ............................................................... 754

B. The Minority Approach: The Reasonableness of

Commuting Accommodations Depends on the

Circumstances................................................................................. 757

IV. Policy Objections to Accommodating an Employee’s Commute ... 758

A. Outside the Work Environment .................................................. 759

Gray, Plant, Mooty, Mooty, & Bennett Professor of Law, University of

Minnesota Law School.

750 Drake Law Review [Vol. 63

B. Avoiding Preferential Treatment ................................................. 764

V. Determining Reasonable Accomodations ......................................... 774

A. Reasonable Accommodation ....................................................... 776

1. Is the Requested Accommodation Effective? ........................ 776

2. Is the Requested Accommodation Primarily Personal in

Nature? ...................................................................................... 777

3. Is the Requested Accommodation Unreasonable

Because of its Impact on Coemployees? ............................... 778

B. Undue Hardship ............................................................................. 779

VI. Conclusion ............................................................................................. 783

INTRODUCTION

Jeanette Colwell worked day and night shifts as a cashier at a Rite Aid

drugstore.

She lost vision in her left eye after developing retinal vein

occlusion and glaucoma.

Due to her partial blindness, Colwell had

difficulties driving at night, so she requested that her supervisor assign her

only day shifts.

The supervisor refused, saying that it “‘wouldn’t be fair’ to

the other workers.”

Colwell eventually submitted her resignation.

Some circuits would regard Colwell’s request as a potential reasonable

accommodation, and her employer’s denial of that request could violate the

Americans with Disabilities Act (ADA).

Other circuits would view

Colwell’s request as asking for preferential treatment unrelated to the

performance of her job.

In those jurisdictions, courts find such a request

unreasonable per se, and the employer’s denial of the request would be

perfectly lawful.

This circuit split offers both a macro- and micro-level vantage point for

observing the contours of the ADA’s reasonable accommodation

requirement. With respect to the former, the circuit split is illustrative of the

1. Colwell v. Rite Aid Corp., 602 F.3d 495, 498 (3d Cir. 2010).

2. Id.

3. Id.

4. Id.

5. Id. at 499.

6. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327

(1990) (codified as amended at 42 U.S.C. § 12101 (2012)); see infra Part III.B.

7. See infra Part IV.

2015] Accommodating Commutes to Work Under the ADA 751

confusing state of reasonable accommodation jurisprudence,

resulting in

what Justice Antonin Scalia has described as a “standardless grab bag.”

addition, many courts narrowly construe the reasonable accommodation

obligation, expressing discomfort with what some perceive as a mandate for

preferential treatment.

This underdeveloped and constrained view of the

reasonable accommodation requirement reflects the judiciary’s long-lasting

obsession with determining who qualifies as an individual with a disability

under the ADA.

The ADA Amendments Act (ADAAA) in 2008,

however, lowered the bar for claiming disability status,

which now brings

the issue of what constitutes a reasonable accommodation front and center.

On a micro level, decisions finding that an employer has no obligation

to accommodate an employee’s commute to work generally rely on two

limiting rationales: (1) that an employer is not required to make

accommodations primarily for an employee’s personal benefit in addressing

obstacles outside the workplace,

and (2) that an employer is not required

to treat an employee with a disability in a preferential manner.

Because

courts often apply these limiting principles outside of the commuting

context, it is important to ascertain their proper reach. In essence, the

commuting context provides a microcosm of why many courts are reluctant

8. See, e.g., Nicole Buonocore Porter, Martinizing Title I of the Americans with

Disabilities Act, 47 G

A. L. REV. 527, 546 (2013) (describing the “chaos of the reasonable

accommodation provision”) [hereinafter Porter, Martinizing]; Michael Ashley Stein,

The Law and Economics of Disability Accommodations, 53 D

UKE L.J. 79, 81–82 (2003)

(describing the often-confusing set of reasonable accommodation considerations and

outcomes).

9. US Airways, Inc. v. Barnett, 535 U.S. 391, 414 (2002) (Scalia, J., dissenting).

10. See Matthew Diller, Judicial Backlash, the ADA, and the Civil Rights Model, 21

ERKELEY J. EMP. & LAB. L. 19, 48–50 (2000) (stating that some courts view the notion

of reasonable accommodation as plaintiffs looking for a “handout” or for “special

benefits”).

11. See Mark C. Weber, Unreasonable Accommodation and Due Hardship, 62 FLA.

L. REV. 1119, 1122–23 (2010).

12. ADA Act Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553,

3555–56 (2008) (codified at 42 U.S.C. § 12102 (2012)).

13. See Stephen F. Befort, An Empirical Examination of Case Outcomes Under the

ADA Amendments Act, 70 W

ASH. & LEE L. REV. 2027, 2055, 2064–66 (2013) (reporting

on an empirical analysis of post-ADAAA summary judgment rulings that show an

increased focus on determining whether a plaintiff is a qualified individual with or

without a reasonable accommodation); Weber, supra note 11, at 1123 (stating that the

ADAAA “vastly expand[ed] the range of covered individuals”).

14. See infra Part IV.A.

15. See infra Part IV.B.

752 Drake Law Review [Vol. 63

to endorse accommodations even though they may be effective in enabling

individuals with disabilities to enter and stay in the workforce.

This Article posits that employers and courts should not categorically

dismiss requests for commuting accommodations as inherently

unreasonable. Instead, they should evaluate these requests on a case-by-case

basis to determine whether the desired accommodation would be plausible

and effective, while not imposing an undue hardship. More broadly, this

Article asserts that concerns about the inside or outside of work distinction

and preferential treatment should not defeat an otherwise-effective

reasonable accommodation.

This Article consists of five Parts. Part II provides an overview of the

ADA’s reasonable accommodation requirement. Part III discusses

commuting accommodation decisions, including the majority view that

requests for commuting accommodations are never reasonable and the

minority view that commuting accommodations may be reasonable

depending upon the circumstances. Part IV examines the two principal

reasons cited by courts that have found these accommodations inherently

unreasonable. Finally, Part V offers suggestions on how courts should handle

requests for commuting accommodations, in particular, and how courts

should determine the reasonableness of accommodation requests in general.

II.

THE REASONABLE ACCOMMODATION REQUIREMENT

The ADA prohibits discrimination “against a qualified individual on

the basis of disability.”

The ADA defines a “qualified individual” as “an

individual who, with or without reasonable accommodation, can perform the

essential functions of the employment position that such individual holds or

desires.”

If an employee is otherwise qualified, the employer has an

affirmative obligation to provide the individual with a reasonable

accommodation unless the employer would suffer an undue hardship in

doing so.

16. 42 U.S.C. § 12112(a). An individual has a “disability” for purposes of the ADA

if the individual has “a physical or mental impairment that substantially limits one or

more major life activities of such individual.” 42 U.S.C. § 12102(1)(A).

17. 42 U.S.C. § 12111(8).

18. 42 U.S.C. § 12112(b)(5)(A); see Borkowski v. Valley Cent. Sch. Dist., 63 F.3d

131, 138 (2d Cir. 1995) (“[T]he plaintiff bears the burden of proving either that she can

meet the requirements of the job without assistance, or that an accommodation exists

that permits her to perform the job’s essential functions.”).

2015] Accommodating Commutes to Work Under the ADA 753

“Reasonable accommodation” is defined generally as “any change in

the work environment or in the way things are customarily done that enables

an individual with a disability to enjoy employment opportunities.”

reasonable accommodation may include:

(A) making existing facilities used by employees readily accessible to

and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or modification of

equipment or devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of qualified

readers or interpreters, and other similar accommodations for

individuals with disabilities.

The Equal Employment Opportunity Commission’s (EEOC’s) Interpretive

Guidance states that “[t]his listing is not intended to be exhaustive of

accommodation possibilities.”

The EEOC regulations state that once an individual with a disability

requests an accommodation, the employer should consult with that

employee to ascertain an appropriate reasonable accommodation.

The

regulations envision that the employer will initiate an “informal, interactive

process” with a qualified applicant or employee to “identify the precise

limitations resulting from the disability and potential reasonable

accommodations that could overcome those limitations.”

The ADA excuses an employer from accommodating an individual

with a disability if the accommodation would impose an undue hardship on

that employer.

The statute defines “undue hardship” as “an action

19. Regulations to Implement the Equal Employment Provisions of the Americans

with Disabilities Act, 29 C.F.R. app. § 1630.2(o), at 397 (2014).

20. 42 U.S.C. § 12111(9).

21. 29 C.F.R. app. § 1630.2(o), at 397.

22. See id. (“The determination of which accommodation is appropriate in a

particular situation involves a process in which the employer and employee identify the

precise limitations imposed by the disability and explore potential accommodations that

would overcome those limitations.”); see also 42 U.S.C. § 12112(c)(4)(B) (“A covered

entity may make inquiries into the ability of an employee to perform job-related

functions.”).

23. 29 C.F.R. § 1630.2(o)(3).

24. See 42 U.S.C. § 12112(b)(5)(A) (stating that an employer does not violate the

ADA for failing to provide a reasonable accommodation if the employer can

754 Drake Law Review [Vol. 63

requiring significant difficulty or expense”

and provides a list of factors to

consider.

Unless an undue hardship is shown to exist, an employer’s failure

to provide an accommodation that is otherwise reasonable results in a

violation of the statute.

III.

ACCOMMODATING THE COMMUTE TO WORK: A CIRCUIT SPLIT

A majority of the federal courts that have ruled on the issue hold that

an employer has no duty to provide an employee with a commuting-related

accommodation. The Sixth and Seventh Circuits have adopted this position,

as have lower court and nonreported decisions in the Third and Eleventh

Circuits.

In contrast, the Second, Third, and Ninth Circuits hold that

requests for commuting-related accommodations are not unreasonable per

se and that the appropriateness of these requests should be determined on a

case-by-case basis.

A. The Majority Approach: Commuting Accommodations are Per Se

Unreasonable

The U.S. District Court for the Northern District of Illinois initiated

the majority line of cases with two early decisions. In the 1996 case of

Schneider v. Continental Casualty Co., an employee with severe back pain

“demonstrate that the accommodation would impose an undue hardship on the

operation of the business of such covered entity”).

25. 42 U.S.C. § 12111(10)(A).

26. 42 U.S.C. § 12111(10)(B) (“In determining whether an accommodation would

impose an undue hardship on a covered entity, factors to be considered include: (i) the

nature and cost of the accommodation needed under this chapter; (ii) the overall

financial resources of the facility or facilities involved in the provision of the reasonable

accommodation; the number of persons employed at such facility; the effect on expenses

and resources, or the impact otherwise of such accommodation upon the operation of

the facility; (iii) the overall financial resources of the covered entity; the overall size of

the business of a covered entity with respect to the number of its employees; the number,

type, and location of its facilities; and (iv) the type of operation or operations of the

covered entity, including the composition, structure, and functions of the workforce of

such entity; the geographic separateness, administrative, or fiscal relationship of the

facility or facilities in question to the covered entity.”).

27. See 42 U.S.C. § 12112(b)(5)(A) (defining “discrimination” under the ADA to

include “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”).

28. See infra Part III.A.

29. See infra Part III.B.

2015] Accommodating Commutes to Work Under the ADA 755

requested a transfer to an office closer to her home to reduce the amount of

pain caused by her long commute.

The district court cited to an EEOC

opinion letter that stated employers are only required to “provide

reasonable accommodations that eliminate barriers in the work

environment, not ones that eliminate barriers outside of the work

environment” and ruled that the employer had no obligation to

accommodate Schneider’s commute because it occurred outside of the work

environment.

Four years later, in Bull v. Conyer, the same district court considered

the case of a legally blind employee whose low vision prevented him from

driving.

The employee requested an exemption from night-shift duty to

accommodate his inability to access transportation to work.

The court

noted the employee’s hardship but ruled that the ADA only requires an

employer to assist an employee in performing the job.

The court reasoned,

Accommodations are directed at enabling an employee to perform the

essential functions of a job. . . . Activities that fall outside the scope of

the job, like commuting to and from the workplace, are not within the

province of an employer’s obligations under the ADA. After all, the

ADA addresses discrimination with respect to any “terms, condition, or

privileges of employment.”

Subsequent decisions followed this reasoning with little independent

analysis. The U.S. District Court for the Southern District of Florida ruled

in Salmon v. Dade County School Board that an employer need not transfer

an employee with a bad back to shorten her commute, stating that such an

accommodation was “unrelated to and outside of her job.”

Similarly, in

LaResca v. AT&T, the U.S. District Court for the District of New Jersey held

that an employer has no obligation to exempt an employee with epilepsy

from night-shift work because the employee’s inability to drive “was in

30. See Schneider v. Cont’l Cas. Co., No. 95 C 1820, 1996 WL 944721, at *1–2 (N.D.

Ill. Dec. 16, 1996).

31. Id. at *9 (citing Letter from Elizabeth M. Thornton, Deputy Legal Counsel,

EEOC, to Edmund D. Cooke, Jr., Attorney, Winston & Strawn, in 7 N

AT’L DISABILITY

L. REP. 64, 64 (1995)).

32. See Bull v. Conyer, No. 98 C 7583, 2000 WL 224807, at *1 (N.D. Ill. Feb. 23,

2000).

33. Id. at *9.

34. Id.

35. Id. (citation omitted) (quoting 42 U.S.C. §12112(a) (2012) (emphasis added)).

36. Salmon v. Dade Cnty. Sch. Bd., 4 F. Supp. 2d 1157, 1163 (S.D. Fla. 1998).

756 Drake Law Review [Vol. 63

essence a commuting problem, which AT&T was not legally obligated to

accommodate.”

A Third Circuit decision cited to LaResca in ruling that an

employer has no duty to reassign an employee to a facility closer to the

employee’s home.

The Sixth and Seventh Circuits have issued the two leading decisions

for the majority approach. In Filar v. Board of Education of Chicago, a

substitute teacher was assigned to fill vacancies as they occurred throughout

the city’s school system.

The teacher had difficulty walking because of

osteoarthritis, so she requested that the school board assign her only to

schools near bus stops, but school administrators denied the request.

The

Seventh Circuit ruled in favor of the employer, viewing the proposed

accommodation as an inappropriate request for preferential treatment.

The court quoted an earlier Seventh Circuit decision that stated an

“employer is not required to give the disabled employee preferential

treatment, as by . . . waiving his normal requirements for the job in

question.”

The Sixth Circuit followed suit in Regan v. Faurecia Automotive

Seating, Inc., a 2012 decision.

In that case, an employee with narcolepsy

requested a change in shift hours to avoid commuting in heavy traffic, which

required her to pull over and rest partway through her commute.

The

employer, a manufacturer of automobile seats, refused to permit the

employee to deviate from normal shift hours.

The Sixth Circuit reviewed

the majority line of decisions and ruled:

[T]he Americans with Disabilities Act does not require [the employer]

to accommodate [the employee’s] request for a commute during more

37. LaResca v. AT&T, 161 F. Supp. 2d 323, 335 (D.N.J. 2001). The suit in LaResca

was filed under the New Jersey Law Against Discrimination (NJLAD), which the New

Jersey courts interpret in a manner similar to the ADA. Id. at 334.

38. See Parker v. Verizon Pa., Inc., 309 F. App’x 551, 561 (3d Cir. 2009) (“Verizon’s

failure to accommodate Parker by limiting his commute was not required [under the

ADA].”).

39. See Filar v. Bd. of Educ. of Chi., 526 F.3d 1054, 1057–58 (7th Cir. 2008).

40. Id. at 1059.

41. See id. at 1067–68.

42. Id. at 1068 (quoting Williams v. United Ins. Co. of Am., 253 F.3d 280, 282 (7th

Cir. 2001)) (alteration in original) (internal quotation marks omitted).

43. See Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 479–80 (6th Cir. 2012).

44. Id. at 478.

45. See id. at 478–79.

2015] Accommodating Commutes to Work Under the ADA 757

convenient hours. Under the facts present here, [the employee’s]

proposal of a modified work schedule for purposes of commuting during

hours with allegedly lighter traffic is not a reasonable accommodation.

B. The Minority Approach: The Reasonableness of Commuting

Accommodations Depends on the Circumstances

In three decisions, the Second, Third, and Ninth Circuits have staked

out a position contrary to the majority approach. These decisions are

discussed below in chronological order.

In Lyons v. Legal Aid Society, a legal aid lawyer who was severely

injured in an automobile accident was unable to access public transportation

or walk moderate distances.

She requested that her employer pay for a

parking space near her office, despite the fact that other employees were

responsible for their own parking arrangements.

The employer denied her

request, arguing that her “claim for financial assistance in parking her car

amounts to a demand for unwarranted preferential treatment [on] a matter

of personal convenience.’”

The district court granted the employer’s

motion to dismiss, but the Second Circuit Court of Appeals reversed and

stated,

Plainly there is nothing inherently unreasonable, given the stated

views of Congress and the agencies responsible for overseeing the

federal disability statutes, in requiring an employer to furnish an

otherwise qualified disabled employee with assistance related to her

ability to get to work.

The court explained that the reasonableness of such a request “may well be

susceptible to differing answers depending on, e.g., the employer’s

geographic location and financial resources.”

In Colwell v. Rite Aid Corp., the employer denied Colwell’s request to

work only daytime shifts as an accommodation for her nighttime driving

46. Id. at 480.

47. See Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 1513–14 (2d Cir. 1995).

48. Id. at 1514.

49. Id. at 1516 (quoting Brief of Petitioner-Appellee at 13, Lyons, 68 F.3d 1512 (No.

95-7030)).

50. Id. at 1517 (referencing H.R. REP. No. 101-485, pt. 2, at 61 (1990), reprinted in

1990 U.S.C.C.A.N. 303, 343. and 29 C.F.R. app. § 1630, at 407 (1995)).

51. Id. at 1516.

758 Drake Law Review [Vol. 63

difficulties.

The district court granted the employer’s motion for summary

judgment, finding that the requested accommodation “had nothing to do

with the work environment or the manner and circumstances under which

she performed her work.”

The Third Circuit reversed, holding that a

modified work schedule that serves “to alleviate her disability-related

difficulties in getting to work is a type of accommodation that the ADA

contemplates.”

The court summarized its reasoning as follows:

We therefore hold that under certain circumstances the ADA can

obligate an employer to accommodate an employee’s disability-related

difficulties in getting to work, if reasonable. One such circumstance is

when the requested accommodation is a change to a workplace

condition that is entirely within an employer’s control and that would

allow the employee to get to work and perform her job.

The third decision closely mirrored the facts from Colwell. In

Livingston v. Fred Meyer Stores, Inc., a vision-impaired employee who

worked as a wine steward requested an exemption from shifts that required

her to drive in the dark.

The employer denied the request.

The district

court rejected the employee’s disability discrimination claim, finding that

“the duty to accommodate does not extend to ‘commute-related

limitations.’”

Citing Colwell, the Ninth Circuit reversed, stating that the

employer “had a duty to accommodate Livingston’s inability to finish her

scheduled shift, even though her disability did not affect her ability to

function effectively as a wine steward.”

IV.

POLICY OBJECTIONS TO ACCOMMODATING AN EMPLOYEE’S

COMMUTE

Courts that rule commuting accommodations are unreasonable per se

rely on two principal limiting rationales: commuting accommodations (1) are

52. See Colwell v. Rite Aid Corp., 602 F.3d 495, 498–99 (3d Cir. 2010). The facts of

Colwell are summarized supra text accompanying notes 1–5.

53. Id. at 500 (quoting Colwell v. Rite Aid Corp., No. 3:07cv502, 2008 WL 4748226,

at *9 (M.D. Pa. Oct. 27, 2008)) (internal quotation mark omitted).

54. Id. at 504.

55. Id. at 505 (citing 29 C.F.R. § 1630.2(o)(1)(ii)–(iii) (2005)).

56. See Livingston v. Fred Meyer Stores, Inc., 388 F. App’x. 738, 739 (9th Cir. 2010).

57. Id.

58. Id. at 740.

59. Id. at 741.

2015] Accommodating Commutes to Work Under the ADA 759

outside the work environment and thus outside the scope of the ADA’s

requirements,

and (2) amount to inappropriate preferential treatment for

the disabled.

Because courts apply these concepts beyond the realm of

commuting, their proper reach is salient to the larger issue of requests for

reasonable accommodations generally.

A. Outside the Work Environment

A number of decisions have found requests for commuting

accommodations to be inherently unreasonable because commuting occurs

outside the work environment.

The U.S. District Court for the Southern

District of Florida, for example, stated that “[w]hile an employer is required

to provide reasonable accommodations that eliminate barriers in the work

environment, an employer is not required to eliminate those barriers which

exist outside the work environment.”

The U.S. District Court for the

Northern District of Illinois similarly found that commuting

accommodations are outside the scope of the ADA because getting to work

does not affect any “terms, condition or privilege of employment.”

The apparent origin of this inside or outside of the work environment

distinction is a 1995 advisory letter issued by the EEOC’s Deputy General

Counsel.

This nonbinding letter advised,

An employer is required to provide reasonable accommodations

that eliminate barriers in the work environment, not ones that eliminate

barriers outside the work environment. For example, an employer

would not be required to provide transportation to work as a reasonable

accommodation for an employee whose disability makes it . . . difficult

or impossible to use public or private means of transportation, unless

the employer provides such transportation for employees without

disabilities.

60. See, e.g., Salmon v. Dade Cnty. Sch. Bd., 4 F. Supp. 2d 1157, 1163 (S.D. Fla.

1998).

61. See, e.g., Filar v. Bd. of Educ. of Chi., 526 F.3d 1054, 1067–68 (7th Cir. 2008).

62. See, e.g., Bull v. Coyner, No. 98 C 7583, 2000 WL 224807, at *9 (N.D. Ill. Feb.

23, 2000); Salmon, 4 F. Supp. 2d at 1163; Schneider v. Cont’l Cas. Co., No. 95 C 1820,

1996 WL 944721, at *9 (N.D. Ill. Dec. 16, 1996).

63. Salmon, 4 F. Supp. 2d at 1163 (citing Schneider, 1996 WL 944721, at *9).

64. Bull, 2000 WL 224807 at *9 (quoting 42 U.S.C. § 12112(a) (2000)).

65. Thornton, supra note 31.

66. Id.

760 Drake Law Review [Vol. 63

This view, in essence, treats an employee’s commute as a type of personal

accommodation that is not required under the ADA.

In this regard, the

EEOC’s Interpretive Guidance makes a distinction between required job-

related accommodations and adjustments or modifications that assist the

individual “throughout his or her daily activities, on and off the job.”

Such

non-required personal use items include “prosthetic limb[s], wheelchair[s],

and eyeglasses.”

In a similar vein, an employer is not obligated to monitor

an employee’s use of medications.

However, a rigid inside–outside dichotomy is troublesome in several

respects. First, the automatic disqualification of commuting

accommodations is inconsistent with legislative and regulatory guidance.

Notes from a House of Representatives Committee on the ADA indicate

that “persons who may require modified work schedules are persons with

mobility impairments who depend on a public transportation system that is

not currently fully accessible.”

The EEOC’s Interpretive Guidance

similarly states that required accommodations might include “making

employer provided transportation accessible, and providing reserved

parking spaces.”

As the Colwell court concluded, this guidance “does not

strictly limit the breadth of reasonable accommodations to address only

those problems that an employee has in performing her work that arise once

she arrives at the workplace.”

Second, the blanket rejection of commuting accommodations

contradicts the preferred method for determining the appropriateness of a

reasonable accommodation. The EEOC’s Interpretive Guidance describes

67. See 29 C.F.R. app. § 1630.9, at 403–04 (2014) (stating that a job-related

accommodation is one that “specifically assists the individual in performing the duties of

a particular job”).

68. Id. at 403.

69. Id.

70. See EQUAL EMPLOY’T OPPORTUNITY COMM’N, Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities

Act (Oct. 17, 2002) (citing Robertson v. Neuromed. Ctr., 161 F.3d 292, 296 (5th Cir.

1998)), available at http://eeoc.gov/policy/docs/accommodation.html [hereinafter

EEOC, Enforcement Guidance].

71. H.R. REP. NO. 101-485, pt. 2, at 62–63 (1990), reprinted in 1990 U.S.C.C.A.N.

303, 345.

72. 29 C.F.R. app. § 1630.2(o), at 397; see also Thornton, supra note 31 (stating that

modified work schedules and parking spot assignments are examples of “workplace

barriers” that may require accommodations).

73. Colwell v. Rite Aid Corp., 602 F.3d 495, 505 (3d Cir. 2010).

2015] Accommodating Commutes to Work Under the ADA 761

reasonable accommodation analysis as a fact-specific, individualized inquiry

that is performed on a case-by-case basis.

As stated in the findings section

of the ADA:

If an employer denies an employee’s request for accommodations

before making fact-specific inquiries, then its decision is likely to be

arbitrary or biased. The reasonable accommodations framework is best

for achieving the ADA’s goals because it instead forces employers to

assess employees with disabilities on the basis of their merit.

Third, not all reasonable accommodations occur within the

geographical boundaries of the workplace. Perhaps the best example is a

leave of absence which, by definition, permits an employee with a disability

to leave the work environment temporarily. Although not listed in the

statute, both the EEOC and courts recognize that a leave of absence may

serve as a type of reasonable accommodation.

Fourth, most potential commuting accommodations have their roots

within the work environment. Several of the commuting decisions involved

requests for modified work schedules to avoid driving at night

or during

times of heavy traffic volume.

Even though the employee’s commute may

occur beyond the physical boundaries of work, a change in the employee’s

work schedule “is clearly a change in a workplace condition entirely under

the employer’s control.”

The ADA expressly lists “modified work

schedules” as a recognized type of reasonable accommodation.

The EEOC

74. See 29 C.F.R. app. § 1630.9, at 403–04.

75. Samrah Mahmoud, Determining the Appropriate Framework for Commuting

Accommodations Under the Americans with Disability Act, 2 U.C.

IRVINE L. REV. 1023,

1039 (2012).

76. See Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 782 (6th Cir.

1998) (“Medical leave as an accommodation is not a novel concept.”) (citing Ansonia

Board of Education v. Philbrook, 479 U.S. 60, 71–74 (1986)); Criado v. IBM Corp., 145

F.3d 437, 443 (1st Cir. 1998) (“A leave of absence and leave extensions are reasonable

accommodations in some circumstances.”) (citing Rodgers v. Lehrman, 869 F.2d 253, 259

(4th Cir. 1989)); EEOC, Enforcement Guidance, supra note 70; see also Stephen F.

Befort, The Most Difficult ADA Reasonable Accommodation Issues: Reassignment and

Leave of Absence, 37 W

AKE FOREST L. REV. 439, 445 (2002).

77. See, e.g., Colwell, 602 F.3d at 498; LaResca v. AT&T, 161 F. Supp. 2d 323, 326

(D.N.J. 2001).

78. See, e.g., Regan v. Faurecia Auto. Seating, Inc. 679 F.3d 475, 478 (6th Cir. 2012);

Salmon v. Dade Cnty. Sch. Bd., 4 F. Supp. 2d 1157, 1159 (S.D. Fla. 1998).

79. See Colwell, 679 F.3d at 505–06.

80. 42 U.S.C. § 12111(9)(B) (2012).

762 Drake Law Review [Vol. 63

Enforcement Guidance states that an employer should grant a request for a

modified work schedule unless it would cause an undue hardship.

Therefore, a request for a modified work schedule should not be deemed

unreasonable per se simply because the motivation for such a request flows

from a nonwork reason. As requests for modified work schedules in order

to accommodate an employee’s disability-related limitations have been

found to be reasonable for other nonwork-related reasons, there is no

principled reason to single out requests based upon commuting-related

concerns for automatic disqualification.

Fifth, a commuting accommodation is not a personal accommodation

akin to requiring an employer to provide a blind employee with a guide dog

or to monitor an employee’s medication regimen.

The latter

accommodations are deemed personal because they benefit an employee

throughout the day, “both on and off the job.”

By contrast, the purpose of

commuting is to get to work. While some trips taken by a disabled worker

are primarily personal in nature, such as driving to a grocery store or to visit

a health care provider, transportation from home to work is undertaken

primarily—if not wholly—for the purpose of enabling an employee to

perform his or her job.

Workplace access is a central goal of the ADA.

Both Title II and Title

III, applicable to public services and places of public accommodation,

mandate that new facilities be “readily accessible to and usable by”

individuals with a disability.

With respect to the employment provisions of

Title I, the statute provides that a reasonable accommodation may include

“making existing facilities . . . readily accessible to and usable by individuals

with disabilities.”

The EEOC’s Technical Assistance Manual on Title I

81. See EEOC, Enforcement Guidance, supra note 70 (citing US Airways, Inc. v.

Barnett, 535 U.S. 391, 398 (2002)) (“An employer must provide a modified or part-time

schedule when required as a reasonable accommodation, absent undue hardship, even if

it does not provide such schedules for other employees.”); see also 29 C.F.R. §

1630.2(o)(4) (2014).

82. See 29 C.F.R. app. § 1630.9, at 403–04; see also discussion supra text

accompanying notes 70–73.

83. See EEOC, Enforcement Guidance, supra note 70 (citing 29 C.F.R. app. § 1630.9

(1997)).

84. See 42 U.S.C. §§ 12101(a)(5) (2012) (“[I]ndividuals with disabilities continually

encounter various forms of discrimination, including . . . the discriminatory effects of . . .

transportation . . . barriers.”).

85. 42 U.S.C. § 12146 (Title II); 42 U.S.C. § 12183(a) (Title III).

86. 42 U.S.C. § 12111(9)(A).

2015] Accommodating Commutes to Work Under the ADA 763

advises employers to provide access for “an individual employee with a

disability to perform the essential functions of his/her job, including access

to a building, to the work site, to needed equipment, and to all facilities used

by employees.”

While the principal focus of these provisions is on the

removal of architectural barriers,

the Technical Assistance Manual

discusses access to a “work site” and remarks that some individuals “are

excluded because of rigid work schedules that allow for no flexibility for

people with special needs caused by disability.”

A logical extension of this

principle is that an employer should be required to remove transportation-

related barriers to workplace access, unless doing so would impose an undue

hardship.

A commuting accommodation that enables access to the workplace

serves the fundamental purpose of the ADA’s reasonable accommodation

requirement.

A core function of a reasonable accommodation is to assist

an individual with a disability to perform “the essential functions” of the

job.

Courts have held that regular and predictable attendance at the

workplace is an essential function of most jobs.

Accordingly, an effective

commuting accommodation that enables an individual with a disability to

maintain regular and predictable attendance in the workplace could be a

87. EEOC, A TECHNICAL ASSISTANCE MANUAL ON THE EMPLOYMENT

PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT III-17 (1992)

[hereinafter EEOC, T

ECHNICAL ASSISTANCE MANUAL] (emphasis omitted).

88. See id. at III-19 (giving “[e]xamples of accommodations” including “installing a

ramp at the entrance to a building” and “removing raised thresholds”); see also 42 U.S.C.

§ 12182(b)(2)(A)(iv) (specifically defining “a failure to remove architectural barriers”

impeding access as discrimination).

89. EEOC, TECHNICAL ASSISTANCE MANUAL, supra note 87, at III-2.

90. See, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 505 (finding that a requested

accommodation in the form of “a change to a workplace condition that is entirely within

an employer’s control and that would allow the employee to get to work and perform

her job” may be reasonable).

91. See EEOC, TECHNICAL ASSISTANCE MANUAL, supra note 87, at III-2 (stating

that the ADA is designed to remove “unnecessary barriers” that prevent people with

disabilities from performing their jobs and benefitting from continued employment).

92. See 42 U.S.C. § 12111(8) (defining a “qualified individual” as a person who is

capable of “perform[ing] the essential functions” of the job “with or without reasonable

accommodation”); 29 C.F.R. § 1630.2(n)(1) (2014) (“The term essential functions means

the fundamental job duties of the employment position the individual with a disability

holds or desires.”).

93. See, e.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237–38

(9th Cir. 2012).

764 Drake Law Review [Vol. 63

reasonable accommodation required by the ADA.

Finally, the rigid inside–outside distinction is inconsistent with the

ADA’s broad policy goals. The statute’s findings section states that “the

Nation’s proper goals regarding individuals with disabilities are to assure

equality of opportunity, full participation, independent living, and economic

self-sufficiency for such individuals.”

It goes on to state that the purpose of

the ADA is “to provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities.”

These

remedial goals are further bolstered by the ADAAA, which provides for a

broader and more inclusive interpretation of the statute.

A regime in which

all commuting accommodations are automatically disqualified as

unreasonable clearly runs counter to these policies by reducing

opportunities for participation in the workforce and economic self-

sufficiency.

B. Avoiding Preferential Treatment

Courts also deny commuting accommodations to avoid treating

individuals with disabilities in a preferential manner.

In Filar v. Board of

Education of City of Chicago, for example, a school district denied a request

by a teacher with osteoarthritis to be assigned only to schools near bus

stops.

The Seventh Circuit approved, ruling that an “employer is not

required to give the disabled employee preferential treatment, as by . . .

waiving his normal requirements for the job in question.”

100

94. 42 U.S.C. § 12101(a)(7).

95. Id. § 12101(b)(1).

96. See Americans with Disability Act Amendments Act of 2008, Pub. L. No. 110-

325, § 2(b)(1), 122 Stat. 3553, 3554 (2008) (stating that a purpose of the ADAAA is to

“reinstat[e] a broad scope of protection”); see also Mahmoud, supra note 75, at 1028

(“Congress’s statement of intent in amending the ADA was a clear endorsement of a

broader, more inclusive interpretation of the statute.”) (citing Americans with Disability

Act Amendments Act of 2008, 122 Stat. at 3555–57); Weber, supra note 11, at 1123.

97. See Mahmoud, supra note 75, at 1037 (“If the inability of individuals with

disabilities to travel to and from the workplace prevents them from holding productive

jobs, they will be unable to compete on an equal basis. . . . Thus, accommodating only

those problems that are confined to the physical bounds of the workplace would not

realize the goal of assuring full participation and economic self-sufficiency for individuals

with disabilities.”).

98. See, e.g., Filar v. Bd. of Educ. of Chi., 526 F.3d 1054, 1067–68 (7th Cir. 2008).

99. See id. at 1059.

100. Id. at 1067–68 (alteration in original) (quoting Williams v. United Ins. Co. of

2015] Accommodating Commutes to Work Under the ADA 765

In contrast, the Second Circuit in Lyons v. Legal Aid Society rejected

an employer’s argument that an employee’s request for a parking space close

to work was a request for preferential treatment.

101

The employer argued

that the employee’s “claim for financial assistance in parking her car

amounts to a demand for unwarranted preferential treatment . . . [on] ‘a

matter of personal convenience.’”

102

The Second Circuit rejected that

argument, finding that “there is nothing inherently unreasonable . . . in

requiring an employer to furnish an otherwise qualified disabled employee

with assistance related to her ability to get to work.”

103

Concerns that an accommodation may result in preferential treatment

are not limited to the commuting context.

104

Indeed, these concerns have

been most frequently voiced in cases involving requests for reassignment to

new positions.

105

According to the EEOC, an employee with a disability is

entitled to reassignment if the desired position is vacant and the employee is

qualified to perform the duties of that position.

106

The preferential treatment

issue arises when an employee’s request for reassignment clashes with an

employer’s existing transfer and assignment policy.

107

When this occurs, many courts have ruled that reassignment is not

required on the grounds that it would impermissibly privilege the employee

with a disability over the employee who would be entitled to the position

under the terms of the transfer and assignment policy. In Daugherty v. City

of El Paso, a part-time city bus driver was denied reassignment to a different

position because of a policy that gave full-time city employees priority.

108

Am., 253 F.3d 280, 282 (7th Cir. 2001)) (internal quotation marks omitted).

101. See Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 1516–17 (2nd Cir. 1995).

102. Id. at 1516 (quoting Brief of Petitioner-Appellee at 13, Lyons, 68 F.3d 1512 (No.

95-7030)).

103. Id. at 1517.

104. See Diller, supra note 10 and accompanying text.

105. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with

Disabilities, Illness and Parenting Responsibilities under United States Law, 9 Y

ALE J.L.

& FEMINISM 213, 222 (1997) (“The controversy surrounding whether or not the ADA is

an ‘affirmative action’ statute has largely centered on [the reassignment] requirement.”).

106. See 29 C.F.R. § 1630.2(o) (2014).

107. See Stephen F. Befort & Tracey Homes Donesky, Reassignment Under the

Americans with Disabilities Act: Reasonable Accommodation, Affirmative Action, or

Both?, 57 W

ASH. & LEE L. REV. 1045, 1063–78 (2000) (reviewing conflicting caselaw on

the interplay between reassignment accommodations and employer transfer and

assignment policies).

108. Daugherty v. City of El Paso, 56 F.3d 695, 698–700 (5th Cir. 1995).

766 Drake Law Review [Vol. 63

The court concluded that the city was not required to make an exception to

that policy, stating that the ADA does not require “affirmative action in

favor of individuals with disabilities, in the sense of requiring that disabled

persons be given priority in hiring or reassignment over those who are not

disabled.”

109

Similarly, in Equal Employment Opportunity Commission v.

Humiston-Keeling, Inc., the Seventh Circuit concluded that “the ADA does

not require an employer to reassign a disabled employee to a job for which

there is a better applicant, provided it’s the employer’s consistent and honest

policy to hire the best applicant for the particular job in question.”

110

contrary result, the court opined, would give “bonus points” to individuals

with disabilities and constitute “affirmative action with a vengeance.”

111

Other courts have adhered to the EEOC’s position and ruled that

employers’ transfer and assignment policies must give way to their obligation

under the ADA to reassign qualified employees with disabilities.

112

For

example, the Tenth Circuit in Smith v. Midland Brake held that the

reassignment obligation trumps an opposing “best qualified” employer

policy.

113

The court found that any other interpretation would be “not only

contextually indefensible, [but also] illogical.”

114

In the 2002 case of US Airways, Inc. v. Barnett, the Supreme Court

109. Id. at 700.

110. EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir. 2000). The

Seventh Circuit has since overruled the Humiston-Keeling decision. See EEOC v. United

Airlines, Inc., 693 F.3d 760 (7th Cir. 2012) (holding that Humiston-Keeling “did not

survive” the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)).

111. Humiston-Keeling, 227 F.3d at 1027, 1029; see also Dalton v. Subaru-Isuzu

Auto., Inc., 141 F.3d 667, 679 (7th Cir. 1998) (holding that requiring an employer to

reassign disabled employees “when such a transfer would violate a legitimate,

nondiscriminatory policy of the employer . . . would convert a nondiscrimination statute

into a mandatory preference statute”) (citation omitted); Duckett v. Dunlop Tire Corp.,

120 F.3d 1222, 1225 (11th Cir. 1997) (finding no requirement under the ADA that an

employer transfer employees to another position when the employer “has a business

policy against the pertinent kind of transfer”).

112. See, e.g., Smith v. Midland Brake, Inc., 180 F. 3d 1154, 1166–67 (10th Cir. 1999)

(en banc); Carlos A. Ball, Preferential Treatment and Reasonable Accommodation Under

the Americans with Disabilities Act, 55 A

LA. L. REV. 951, 959 (2004) (stating that some

courts have held that if an employee with a disability is qualified for another position,

the employer “must reassign the employee even if there are other more qualified

individuals who are also interested in the same position”).

113. Midland Brake, 180 F.3d at 1667, 1170.

114. Id.

2015] Accommodating Commutes to Work Under the ADA 767

addressed the preferential treatment issue.

115

Robert Barnett worked for US

Airways in a cargo-handling position.

116

He injured his back and successfully

sought reassignment to “a less physically demanding mailroom position.”

117

US Airways had a longstanding seniority policy that afforded senior

employees a preference in bidding on various positions, and two senior

employees placed bids to transfer to the mailroom position that Barnett

occupied.

118

Barnett asked US Airways to make an exception to the seniority

policy, but US Airways denied the request.

119

Barnett lost his job as a result

of the seniority bidding process.

120

The Supreme Court granted certiorari to decide whether “the [ADA]

requires an employer to reassign a disabled employee to a position as a

‘reasonable accommodation’ even though another employee is entitled to

hold the position under the employer’s bona fide and established seniority

system.”

121

In response, the members of the Court issued five separate

opinions, with a five-vote majority controlling.

122

The majority opinion began its analysis by summarizing the dueling

positions of the parties as to what Congress meant to encompass in the term

“reasonable accommodation.”

123

US Airways contended that the ADA

requires only equal treatment for individuals with disabilities and that

Barnett’s request, by subverting an existing seniority system, was

preferential treatment and therefore inherently unreasonable.

124

Barnett

asserted that the term “reasonable accommodation” is synonymous with

“effective accommodation.”

125

In Barnett’s view, a workplace adjustment

qualifies as a reasonable accommodation if it effectively enables an

individual with a disability to perform the essential functions of the job, and

115. See Barnett, 535 U.S. at 397–98; see also Ball, supra note 112, at 962–65.

116. See Barnett, 535 U.S. at 394.

117. Id.

118. Id.

119. Id.

120. Id.

121. Id. at 395–96 (alteration in original) (internal quotation marks omitted)

(quoting Brief for Petitioner at *I, US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), 2001

WL 747864, at *i).

122. See id. at 393; id. at 406 (Stevens, J., concurring); id. at 408 (O’Connor, J.,

concurring); id. at 411 (Scalia, J., dissenting); id. at 420 (Souter, J., dissenting).

123. Id. at 396–402.

124. Id. at 396–97.

125. Id. at 399.

768 Drake Law Review [Vol. 63

“a seniority rule violation, having nothing to do with the accommodation’s

effectiveness, has nothing to do with its ‘reasonableness.’”

126

The majority opinion concluded that reassignments conflicting with the

rules of a seniority system “would not be reasonable in the run of cases.”

127

Nevertheless, the Court recognized a limited exception when an employee

can “show that special circumstances warrant a finding” that the requested

reassignment is reasonable, such as when an employer frequently deviates

from the terms of the seniority system.

In reaching this conclusion, the majority rejected both parties’

positions with respect to the preferential treatment issue.

128

The Court

disposed of US Airways’s argument by reasoning that without more, the fact

that an accommodation would permit an employee with a disability to avoid

the impact of a neutral rule that others must obey does not necessarily make

that accommodation unreasonable.

129

The Court left open the possibility that

some requests for preferential treatment might be unreasonable or impose

an undue hardship

130

but ruled that a request for preferential treatment does

not create an “automatic exemption” from the ADA’s reasonable

accommodation mandate.

131

The Court explained its rationale as follows:

[P]references will sometimes prove necessary to achieve the Act’s basic

equal opportunity goal. The Act requires preferences in the form of

“reasonable accommodations” that are needed for those with

disabilities to obtain the same workplace opportunities that those

without disabilities automatically enjoy. By definition any special

“accommodation” requires the employer to treat an employee with a

disability differently, i.e., preferentially. And the fact that the difference

in treatment violates an employee’s disability neutral rule cannot by

itself place the accommodation beyond the Act’s potential reach.

132

126. Id.

127. Id. at 403–05 (stating that “it will ordinarily be unreasonable for the assignment

to prevail” when it would “trump the rules of a seniority system”).

128. See id. at 397–402.

129. Id. at 397–99.

130. Id. at 400–02.

131. Id. at 398.

132. Id. at 397. Justice Scalia’s dissent argued that the ADA only obligates

employers to accommodate disability-related obstacles, which, according to Justice

Scalia, includes only “those employment rules and practices that the employee’s

disability prevents him from observing.” Id. at 412 (Scalia, J., dissenting) (emphasis

removed). Applying that principle to the case at hand, Justice Scalia concluded that

2015] Accommodating Commutes to Work Under the ADA 769

The majority opinion also rejected Barnett’s contention that an

“effective” accommodation is necessarily a reasonable accommodation.

133

The Court explained that a proposed accommodation could be effective in

terms of enabling job performance, yet still be unreasonable.

134

The Court

noted, “a demand for an effective accommodation could prove unreasonable

because of its impact, not on business operations, but on fellow

employees.”

135

Following Barnett, judicial antipathy toward preferential

accommodations receded.

136

But, the Supreme Court in Barnett did not

endorse preferential reassignment accommodations; it only found them not

inherently objectionable.

137

As a result, many post-Barnett decisions

continue to reject proposed accommodations on preferential treatment

grounds.

138

In 2007, the Eighth Circuit concluded that “the ADA is not an

“‘reassignment to a vacant position’ does not envision that elimination of obstacles . . .

that have nothing to do with his disability—for example, another employee’s claim to

that position under a seniority system, or another employee’s superior qualifications.”

Id. at 416 (emphasis removed). Justice Scalia’s position has been described as

“descriptively inaccurate and normatively unsound” and has not gained traction in

subsequent caselaw. Porter, Martinizing, supra note 8, at 557; Weber, supra note 11, at

1165; see EEOC v. United Airlines, Inc., 693 F.3d 760, 761, 763 (7th Cir. 2003)

(recognizing that the Humiston-Keeling line of reasoning regarding preferential

treatment “did not survive Barnett” because Barnett “rejected [the] anti-preference

interpretation of the ADA”).

133. Barnett, 535 U.S. at 400.

134. Id. at 401 (reasoning that the ADA “will sometimes require [effective]

affirmative conduct to promote entry of disabled people into the work force” but does

not go so far as to “demand action beyond the realm of the reasonable”).

135. Id. at 400.

136. The most notable illustration of this reaction was the Seventh Circuit’s decision

overruling Humiston-Keeling. See United Airlines, 693 F.3d at 761. The court in that case

gave preference to a reassignment request—despite the presence of the employer’s “best

qualified” policy—explaining that Barnett had rejected the anti-preference logic of

Humiston-Keeling. Id. at 763–65.

137. See Barnett, 535 U.S. at 398 (“The simple fact that an accommodation would

provide a ‘preference’—in the sense that it would permit the worker with a disability to

violate a rule that others must obey—cannot, in and of itself, automatically show that the

accommodation is not ‘reasonable.’”).

138. See, e.g., Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483–84 (8th Cir. 2007));

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 867 (7th Cir. 2005)

(“Accommodations which require special dispensations and preferential treatment are

not reasonable under the ADA.”); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457

(6th Cir. 2004) (holding that an employer is not “required to waive legitimate, non-

discriminatory employment policies or displace other employees’ rights in order to

770 Drake Law Review [Vol. 63

affirmative action statute and does not require an employer to reassign a

qualified disabled employee to a vacant position when such a reassignment

would violate a legitimate nondiscriminatory policy of the employer to hire

the most qualified candidate.”

139

In the same year, the Seventh Circuit held

that an employer is not required to provide an employee with a preferential

commuting accommodation.

140

The source of the preferential treatment debate lies in the different

models embodied in the various federal antidiscrimination statutes. Both

Title VII

141

and the Age Discrimination in Employment Act (ADEA)

142

prohibit employers from making adverse employment decisions “because

of” a protected characteristic such as race, sex, or age.

143

These statutes,

however, do not impose any affirmative obligation on employers to assist

employees in satisfactorily performing the essential functions of the job.

144

accommodate a disabled employee” (citing Burns v. Coca–Cola Enters., Inc., 222 F.3d

247, 257 (6th Cir. 2000))); Felix v. New York City Transit Auth., 324 F.3d 102, 107 (2nd

Cir. 2003) (stating that while the ADA requires employers to put employees on “an even

playing field,” the ADA “does not authorize a preference for disabled people

generally”). Other courts reached similar results by denying accommodations that were

not causally related to the employee’s impairment. See, e.g., Peebles v. Potter, 354 F.3d

761, 769 (8th Cir. 2004) (“We do not read the Act as requiring the employer to level the

playing field beyond those undulations that are related to the person’s disability.”);

Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 (8th Cir. 2003) (holding that there is

no cause of action under the ADA when “the reasonable accommodation requested is

unrelated” to the disability).

139. Huber, 486 F.3d at 483 (footnote omitted).

140. Filar v. Bd. of Educ. of Chi., 526 F.3d 1054, 1068–69 (7th Cir. 2008).

141. See Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241

(1964) (codified as amended at 42 U.S.C. § 2000e (2012)).

142. See Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 Stat.

602 (codified as amended at 29 U.S.C. §§ 621–634 (2012)).

143. See 42 U.S.C. § 2000e-2(a)(1) (making it an unlawful employment practice for

an employer “to fail or refuse to hire or . . . otherwise to discriminate against any

individual . . . because of such individual’s race, color, religion, sex, or national origin”);

29 U.S.C. § 623(a)(1) (making it an unlawful employment practice for an employer “to

fail or refuse to hire or . . . otherwise discriminate against any individual . . . because of

such individual’s age”).

144. A limited duty of reasonable accommodation arises under these statutes only

with respect to religion, which is a protected trait under Title VII. See generally 42 U.S.C.

§ 2000e. Title VII, like the ADA, provides that an employer must reasonably

accommodate the religious observances and practices of its employees up to the point of

undue hardship. See id. § 2000e(j). The reasonable accommodation duty for religious

observances, however, is much more limited than that mandated by the ADA; the

Supreme Court has ruled that an employer need not incur more than a de minimus

2015] Accommodating Commutes to Work Under the ADA 771

While the ADA also bans discrimination “on the basis of disability,”

145

goes beyond traditional antidiscrimination laws by requiring employers to

make “reasonable accommodations” that take the form of favorable

adjustments for the disabled.

146

The presence of the reasonable accommodation provision has led some

commentators to characterize the ADA as imposing an affirmative action

requirement. One article described the ADA as “one of the most radical

affirmative action laws in recent U.S. history.”

147

Admittedly, the ADA compels employers to provide favorable

workplace adjustments for individuals with disabilities regardless of whether

those same adjustments are provided to others.

148

The preferential nature of

the reasonable accommodation obligation is discomforting to those who are

accustomed to Title VII’s nondiscrimination model.

149

As this Author previously countered:

[S]ignificant differences distinguish affirmative action with respect to

race and gender, on the one hand, from reasonable accommodation

under the ADA, on the other. Conventional affirmative action

programs consist of pre-designed policies by which employers seek to

increase the proportion of a historically underrepresented minority

group in its overall workforce. Employers typically establish target goals

hardship in providing an accommodation for religious purposes. See Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (“To require TWA to bear more than

a de minimis cost in order to give Hardison Saturdays off [to observe his Sabbath] is an

undue hardship.”).

145. See 42 U.S.C. § 12112(a).

146. See id. § 12112(b)(5)(A) (defining discrimination to include the failure to

“mak[e] reasonable accommodations to the known physical or mental limitations of

otherwise qualified individuals with a disability”).

147. Sandra R. Levitsky, Reasonably Accommodating Race: Lessons from the ADA

for Race-Targeted Affirmative Action, 18 L

AW & INEQ. 85, 85 (2000); see also CHARLES

R. LAWRENCE III & MARI J. MATSUDA, WE WON’T GO BACK: MAKING THE CASE FOR

AFFIRMATIVE ACTION 108 (1997) (“The [ADA] is the most radical affirmative action

program in the nation’s history.”).

148. See Diller, supra note 10, at 43 (stating that race-based affirmative action and

the ADA’s reasonable accommodation framework both “rely on visions of equality that

call for differential treatment of the subordinated individual or group”).

149. See, e.g., US Airways, Inc., v. Barnett, 535 U.S. 391, 419 (2002) (Scalia, J.,

dissenting) (arguing that the majority’s approach “does not merely give disabled

employees the opportunity to unmask sham seniority systems; it gives them a vague and

unspecified power (whenever they can show ‘special circumstances’) to undercut bona

fide systems”).

772 Drake Law Review [Vol. 63

through a statistical comparison of their workforce with the relevant

labor market. Once a plan is established, an employer implements the

plan throughout its recruitment and hiring processes until the numerical

goals for the underrepresented group are met. In contrast, reasonable

accommodation under the ADA occurs on a much more individualized

basis. The reasonable accommodation process occurs only after the

employer and disabled employee have engaged in an interactive process

designed to identify both the essential functions of the position and the

special needs of the disabled person.

Viewed in this light, reassignment under the ADA is much less

pervasive than conventional affirmative action programs in several

respects. First, the reassignment accommodation applies only to

employees and not to applicants. Second, reassignment does not involve

the setting of pre-determined numerical goals or quotas. Third, no other

employee loses employment as a result of a job reassignment since such

a transfer occurs only to an already vacant position. In short,

reassignment operates only as a post-hire mechanism by which an

employer may retain the services of a current employee with a disability,

while affirmative action operates as a pre-hire formula that reserves

employment opportunities for one group of applicants at the expense of

another group of applicants.

150

This comparison underscores the different antidiscrimination formulas

embodied in Title VII and the ADA. Title VII utilizes an equal-treatment

model of discrimination.

151

By prohibiting discrimination “because of”

certain listed characteristics such as an employee’s race or gender, Title VII

compels employers to make employment decisions without reference to

those listed traits.

152

Prohibited discrimination occurs whenever an employer

150. Stephen F. Befort, Reasonable Accommodation and Reassignment Under the

Americans with Disabilities Act: Answers, Questions and Suggested Solutions After US

Airways, Inc. v. Barnett, 45 A

RIZ. L. REV. 931, 968–69 (2003) [hereinafter Befort,

Reasonable Accommodation] (footnotes omitted) (citing Befort & Donesky, supra note

107, at 1085).

151. For a discussion of the equal-treatment model of antidiscrimination statutes,

see generally Paul Steven Miller, Disability Civil Rights and a New Paradigm for the

Twenty-First Century: The Expansion of Civil Rights Beyond Race, Gender and Age, 1

PA. J. LAB. & EMP. L. 511, 515–16 (1998) (describing the traditional civil rights

paradigm as one requiring a “level playing field” for all workers); see also Owen Fiss, A

Theory of Fair Employment Laws, 38 U.

CHI. L. REV. 235, 236–37 (1971) (describing

Title VII’s “norm of color blindness”).

152. See 42 U.S.C. § 2000e-2(a) (2012).

2015] Accommodating Commutes to Work Under the ADA 773

decides not to hire someone because of a specific trait or favorably takes

account of a person’s race or gender in making an employment decision.

153

The ADA requires different treatment by compelling employers to

provide reasonable accommodations to qualified individuals with

disabilities.

154

Under this model, an employer who merely refrains from

treating employees with disabilities differently than other employees may be

engaging in prohibited discrimination.

155

The incorporation of the

reasonable accommodation requirement in the ADA, accordingly,

represents Congress’s recognition that “in order to treat some persons

equally, we must treat them differently.”

156

This objective likely explains Congress’s decision to adopt a different

treatment model of discrimination in the ADA. While consideration of race

or gender may be inappropriate because neither characteristic bears any

inherent relationship to an individual’s work-related abilities, consideration

of disability may be required because the impairment is often directly related

to the ability to perform the job.

157

Reasonable accommodation therefore

153. See id. § 2000e-2(j) (prohibiting preferential treatment of any individual or

group as a way to remedy gender or racial imbalance).

154. For a discussion of how the ADA adopts a different-treatment model of

antidiscrimination law, see generally Ball, supra note 112, at 960 (stating that the ADA

requires preferential treatment “to remove employment-related barriers to job

performance and to provide those employees with an equal opportunity to compete”);

Diller, supra note 10, at 40–44 (“The ADA relies on a different treatment vision of

equality . . . . The reasonable accommodation requirement . . . is based upon a more

complex and richer conception of equality than a simple requirement that the disabled

and nondisabled be treated the same.” (citing Pamela S. Karlan & George Rutherglen,

Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke. L.J. 1, 10–11

(1996))); Miller, supra note 151, at 514 (“[T]he traditional civil rights model of treating

people ‘exactly the same’ does not apply to disability discrimination.”).

155. See Miller, supra note 151, at 514 (“For disabled people who need reasonable

accommodations in order to perform the essential functions of their jobs, ‘equal’

treatment is tantamount to a barrier to employment, not a gateway.”); Mark C. Weber,

Beyond the Americans with Disabilities Act: A National Employment Policy for People

with Disabilities, 46 B

UFF. L. REV. 123, 146 (1998) (“[I]t is impossible to deny that for

disability, if for no other characteristic, perfectly equal treatment can constitute

discrimination.”).

156. Karlan & Rutherglen, supra note 154, at 10 (quoting Regents of Univ. of Cal.

v. Bakke, 438 U.S. 265 (1978)); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 397

(2002) (“The [ADA] requires preferences in the form of ‘reasonable accommodations’

that are needed for those with disabilities to obtain the same workplace opportunities

that those without disabilities automatically enjoy.”) (emphasis in original).

157. See Cheryl L. Anderson, “Neutral” Employer Policies and the ADA: The

774 Drake Law Review [Vol. 63

ensures that persons with disabilities are not deprived of job opportunities

they otherwise might not have access to under a disability-blind statute.

158

The bottom line is that preferential treatment is not inimical to the ADA’s

purpose but part and parcel of the statutory design and key to enabling those

with disabilities to move into mainstream American life, including the

workforce.

159

DETERMINING REASONABLE ACCOMMODATIONS

According to the EEOC, “[w]hether a particular form of assistance

would be required as a reasonable accommodation must be determined on

an individualized, case by case basis.”

160

The Interpretive Guidance advises

that the best means of determining the appropriateness of a requested

accommodation is “through a flexible, interactive process that involves both

Implications of US Airways, Inc. v. Barnett, 51 DRAKE L. REV. 1, 17 (2002) (stating that

ADA claims differ from Title VII claims in that “[d]isability is often an explicit factor in

the employer’s reasons for its actions”); Diller, supra note 10, at 40 (observing that

disabilities “do have an impact on an individual’s ability to perform a job,” and thus

“unlike race, disability is frequently a legitimate consideration in employment

decisions”).

158. See Ball, supra note 112, at 963 (“[P]referential treatment is sometimes

necessary in order to place individuals with disabilities in a position where they are

similarly situated to their nondisabled counterparts.” (citing Befort, Reasonable

Accommodation, supra note 150, at 971)); Diller, supra note 10, at 41 (“[T]he reasonable

accommodation requirement is not a means of giving people with disabilities a special

benefit or advantage; rather, it is a means of equalizing the playing field so that people

with disabilities are not disadvantaged by the fact that the workplace ignores their

needs.”); Weber, supra note 11, at 1152 (stating that the reasonable accommodation duty

“removes the barriers that currently exist to the full participation of people with

disabilities in employment”).

159. See Barnett, 535 U.S. at 397 (finding that the ADA’s reasonable accommodation

requirement, “[b]y definition . . . requires the employer to treat the employee with a

disability differently, i.e., preferentially”); Samuel R. Bagenstos, “Rational

Discrimination,” Accommodation, and the Politics of (Disability) Civil Rights, 89 V

A. L.

REV. 825, 830 (2003) (arguing that “the ADA’s accommodation requirement is

fundamentally of a piece with the core antidiscrimination requirements of Title VII”);

Mary Crossley, Reasonable Accommodation as Part and Parcel of the Antidiscrimination

Project, 35 R

UTGERS L.J. 861, 863 (2004) (arguing that the ADA is “akin to other

antidiscrimination laws” as it is “broadly concerned with the removal of barriers that

prevent historically disadvantaged groups from enjoying equal opportunities”);

Christine Jolls, Antidiscrimination and Accommodation, 115 H

ARV. L. REV. 642, 651,

696–97 (2001) (contending that accommodation and antidiscrimination are overlapping

concepts that both advance broader “antisubordination” goals).

160. 29 C.F.R. app. § 1630.9, at 403–04 (2014).

2015] Accommodating Commutes to Work Under the ADA 775

the employer and the individual with a disability.”

161

The Interpretive

Guidance further states that “[t]his process requires the individual

assessment of both the particular job at issue, and the specific physical or

mental limitations of the particular individual in need of reasonable

accommodation.”

162

The majority view of commuting accommodations represents a flawed

approach to determining the appropriateness of a reasonable

accommodation. Rather than undertaking an individualized examination of

the employee and the job, the majority view adopts a categorical approach

that disqualifies all requests for commuting accommodations as inherently

unreasonable.

163

This categorical approach is inconsistent with the case-by-

case determination envisioned by the EEOC

164

and unduly restricts the

multitude of potential accommodations that could enable individuals with

disabilities to find and keep employment.

Determining the appropriateness of a reasonable accommodation

requires a two-step analysis: (1) Is the proposed accommodation

reasonable? And if so, (2) would it impose an undue hardship?

165

In my

view,

166

these two concepts are not identical. As Justice Stephen Breyer

explained in Barnett, the reasonable accommodation inquiry focuses

generally on whether a work-related adjustment or modification is

“reasonable on its face, i.e., ordinarily or in the run of cases.”

167

The undue

hardship inquiry, on the other hand, focuses narrowly on whether such an

accommodation would impose a significant burden on the employer “in the

particular circumstances.”

168

“Thus, these two concepts resemble the

opposite ends of a telescope with one end focusing broadly and the other

focusing narrowly.”

169

161. Id. at 405.

162. Id.

163. See, e.g., Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 465, 480 (6th Cir. 2012);

Filar v. Bd. of Educ. of Chi., 526 F.3d 1054, 1067–68 (7th Cir. 2008).

164. See 29 C.F.R. app. § 1630.9, at 403–04.

165. See US Airways, Inc. v. Barnett, 535 U.S. 391, 401–02 (2002).

166. But see Weber, supra note 11, at 1124 (arguing that “[r]easonable

accommodation and undue hardship are two sides of the same coin”).

167. Barnett, 535 U.S. at 401–02.

168. Id. at 402.

169. Befort, Reasonable Accommodation, supra note 150, at 958; see also Barth v.

Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993) (“[A] reasonable accommodations is one

employing a method of accommodation that is reasonable in the run of cases, whereas

the undue hardship inquiry focuses on the hardships imposed by the plaintiff’s preferred

776 Drake Law Review [Vol. 63

A. Reasonable Accommodation

What makes an accommodation reasonable and appropriate? Three

inquiries guide this analysis: the accommodation’s (1) effect, (2) purpose,

and (3) impact.

1. Is the Requested Accommodation Effective?

The first inquiry asks whether the proposed accommodation is

effective.

170

The EEOC’s Enforcement Guidance states that a modification

or adjustment satisfies the reasonable accommodation requirement if it is

effective.

171

According to the EEOC, a proposed accommodation is effective

if it enables an employee to “perform the essential functions of the

position.”

172

If the employee is otherwise qualified for the job, an employer

has a duty to provide an accommodation that would enable the employee to

perform essential functions, unless providing the accommodation would

impose an undue hardship.

173

In the realm of commuting, a modified work schedule may be an

effective accommodation. Assume that regular and predictable attendance

is an essential function for a particular job and that an employee with a sleep

disorder has difficulty showing up for work in a timely fashion for a morning

shift. If a modified work schedule with a later start time enables the

employee to attain regular and predictable attendance, that accommodation

would be effective and presumptively reasonable.

174

But, if the later start

time does not result in regular and predictable attendance, the

accommodation is ineffective, and the employee is not qualified for the

position.

175

accommodation in the context of the particular agency’s operations.”).

170. See Cowell v. Rite Aid Corp., 602 F.3d 495, 505–06 (3d Cir. 2010).

171. EEOC, Enforcement Guidance, supra note 70 (“The employer may choose

among reasonable accommodations as long as the chosen accommodation is effective.”

(citing 29 C.F.R. app. § 1630.9 (1997))).

172. Id. Of course, an employer is required to provide an accommodation only if

doing so is within its control. See Colwell, 602 F.3d at 505.

173. EEOC, Enforcement Guidance, supra note 70.

174. See id. (“Granting an employee time off from work or an adjusted work

schedule as a reasonable accommodation may involve modifying leave or attendance

procedures or policies.”).

175. See id. at n.65 (“[I]f the time during which an essential function is performed is

integral to its successful completion, then an employer may deny a request to modify an

employee’s schedule as an undue hardship.”).

2015] Accommodating Commutes to Work Under the ADA 777

2. Is the Requested Accommodation Primarily Personal in Nature?

An employer is not obligated to provide personal accommodations,

such as a wheelchair or medication monitoring, which benefit an employee

throughout the day, both on and off the job.

176

As noted above, most

commuting accommodations are not personal because their purpose is to

enable an employee to get to work.

177

It is conceivable, however, that a requested commuting

accommodation might be primarily motivated by personal reasons. Take, for

example, the factual scenario presented in Schneider v. Continental Casualty

Co.

178

In that case, the employer hired Schneider to work out of the

company’s downtown Chicago office.

179

Schneider, who was relocating from

Baltimore, rented a townhouse in a far western suburb, which required her

to commute 90 minutes each day.

180

Schneider had a back impairment and

requested a transfer to the Downers Grove office, which was closer to her

residence, to limit the pain associated with the long commute.

181

The

employer denied the request because many of Schneider’s job

responsibilities required her presence in the downtown office.

182

In denying

Schneider’s ADA claim, the U.S. District Court for the Northern District of

Illinois stated,

[W]hen Schneider was hired it was to work out of the Chicago office not

the Downers Grove office. Schneider then made the choice to live in

Aurora rather than Chicago or closer to Chicago. Thus, the limitation

of the hour commute was self-imposed by Schneider and at no time did

she try to change this self-imposed limitation.

183

While the Schneider outcome is a close call, blending both personal and

work-related elements, the case illustrates that an accommodation for an

employee’s choice of residence may be primarily personal in nature.

176. See supra text accompanying notes 70–73.

177. See Carrie Griffin Basas, Back Rooms, Board Rooms—Reasonable

Accommodation and Resistance Under the ADA, 29

BERKELEY J. EMP. & LAB. L. 59, 88

(2008); see also supra Part IV.A.

178. See Schneider v. Cont’l Cas. Co., No. 95 C 1820, 1996 WL 944721, at *1–5 (N.D.

Ill. Dec. 16, 1996).

179. Id. at *1.

180. Id.

181. Id.

182. Id. at *2.

183. Id. at *9.

778 Drake Law Review [Vol. 63

3. Is the Requested Accommodation Unreasonable Because of its Impact on

Coemployees?

The majority opinion in Barnett rejected the plaintiff’s contention that

an effective accommodation is always a reasonable accommodation.

184

The

Court explained that “a demand for an effective accommodation could

prove unreasonable because of its impact, not on business operations, but on

fellow employees.”

185

The Barnett majority held that the reassignment was

unreasonable because it has the effect of dashing the expectations of

coemployees under the terms of US Airways’s seniority system.

186

Building on this logic, a commuting accommodation could be deemed

unreasonable due to its impact on other employees. The EEOC’s

Enforcement Guidance, however, cautions that a proposed accommodation

should not be denied due to a slight impact on coworkers.

187

The

Enforcement Guidance asserts, as examples, that lowered morale or the

imposition of some additional marginal duties on other employees should

not defeat an otherwise reasonable accommodation.

188

On the other hand,

courts have held that “an accommodation that would result in other

employees having to work harder or longer is not required under the

ADA.”

189

Two scholars have suggested standards for determining when an

accommodation’s impact on coworkers should render the accommodation

unreasonable. Alex Long recommends that a requested accommodation

184. US Airways, Inc. v. Barnett, 535 U.S. 391, 399–02 (2002); see supra notes 133–

35 and accompanying text.

185. Barnett, 535 U.S. at 400 (stating that otherwise-effective accommodations may

be unreasonable if they result in “dismissals, relocations, or modification of employee

benefits” of other employees).

186. Id. at 404–05.

187. EEOC, Enforcement Guidance, supra note 70. The Enforcement Guidance,

which was issued prior to Barnett, assumes that an accommodation’s impact on

coemployees is an undue hardship issue rather than a reasonable accommodation issue.

188. See id. (identifying reasonable accommodations related to job restructuring,

including “reallocating or redistributing marginal job functions that an employee is

unable to perform because of a disability”).

189. Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (citing

Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995); 29 C.F.R. § 1630.2(p)(2)(v)).

“Moving one operator to a straight day shift would place a heavier burden on the rest of

the operators in the plant.” Id.; see also Alex B. Long, The ADA’s Reasonable

Accommodation Requirement and “Innocent Third Parties,” 68 M

O. L. REV. 863, 878–79

(2003) (collecting cases).

2015] Accommodating Commutes to Work Under the ADA 779

should be considered unreasonable if “it would violate the contractual rights

of another employee or otherwise result in an adverse employment action . . .

for a nondisabled employee.”

190

Nicole Porter would tilt the balance more

favorably for the employee with a disability, recommending that an

accommodation should be found unreasonable only if it “would lead to the

nondisabled employee’s termination.”

191

While the courts have not yet

endorsed either of these recommendations, both are normatively sound in

that they suggest the impact on a coemployee must be very significant to

render an effective accommodation unreasonable.

192

In the world of commuting, requested accommodations would seldom

fail on these grounds. For example, the employer’s concern in Colwell that

exempting the plaintiff from night-shift work “wouldn’t be fair” to the other

workers would not, by itself, render such an accommodation

unreasonable.

193

B. Undue Hardship

Undue hardship is an affirmative defense to an employer’s reasonable

accommodation obligation.

194

Thus, an employer need not provide an

employee with an accommodation—even a reasonable one—if it can

“demonstrate that the accommodation would impose an undue hardship” on

its operations.

195

190. Long, supra note 189, at 901 (arguing that this standard would place “the

focus . . . on the actual effects or likely effects that providing an accommodation would

have on other employees”).

191. Nicole B. Porter, Reasonable Burdens: Resolving the Conflict Between Disabled

Employees and Their Coworkers, 34 F

LA. ST. U. L. REV. 313, 335 (2007) (noting that this

would be “a relatively rare occurrence”).

192. Cf. EEOC, Enforcement Guidance, supra note 70 (stating that an

accommodation may impose an undue hardship if it would be “unduly disruptive of other

employees’ ability to work”).

193. See Colwell v. Rite Aid Corp., 602 F.3d 495, 498 (3d Cir. 2010) (internal

quotation marks omitted).

194. See 42 U.S.C. § 12112(b)(5)(A) (2012) (excluding accommodations that “would

impose an undue hardship on the operation of the business” from the definition of

discrimination on the bases of disability); 29 C.F.R. app. § 1630.15(d), at 412 (2014) (“An

employer or other covered entity alleged to have discriminated because it did not make

a reasonable accommodation, as required by this part, may offer as a defense that it

would have been an undue hardship to make the accommodation.”).

195. See 42 U.S.C. § 12112(b)(5)(A); see also US Airways, Inc. v. Barnett, 535 U.S.

391, 401–02 (2002) (ruling that once a plaintiff shows a requested accommodation is

reasonable, “the defendant/employer then must show special (typically case-specific)

780 Drake Law Review [Vol. 63

The statute defines undue hardship as “an action requiring significant

difficulty or expense.”

196

The EEOC’s Interpretive Guidance states that

while the undue hardship provision “takes into account the financial realities

of the particular employer . . . , the concept of undue hardship is not limited

to financial difficulty.”

197

The Interpretive Guidance states that the term

circumstances that demonstrate undue hardship in the particular circumstances.”)

196. 42 U.S.C. § 12111(10)(A). The statute provides a list of four factors to consider

in determining whether the proposed accommodation would cause a particular employer

to suffer an undue hardship:

(i) the nature and cost of the accommodation needed under [the ADA];

(ii) the overall financial resources of the facility or facilities involved in the

provision of the reasonable accommodation; the number of persons employed

at such facility; the effect on expenses and resources, or the impact otherwise of

such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the

business of a covered entity with respect to the number of its employees; the

number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the

composition, structure, and functions of the workforce of such entity; the

geographic separateness, administrative, or fiscal relationship of the facility or

facilities in question to the covered entity.

Id. § 12111(10)(B). The regulations add a fifth factor to this list: “The impact of the

accommodation upon the operation of the facility, including the impact on the ability of

other employees to perform their duties and the impact on the facilities ability to conduct

business.” 29 C.F.R. § 1630.2(p)(2)(v).

197. 29 C.F.R. app. § 1630.2(p), at 398. Some courts have concluded that the cost of

an accommodation is relevant to the issue of an accommodation’s reasonableness, as

well as to the issue of undue hardship. See, e.g., Monette v. Elec. Data Sys. Corp., 90 F.3d

1173, 1183 n.10 (6th Cir. 1996) (“In our view, determining whether a proposed

accommodation is ‘reasonable’ requires a factual determination of reasonableness

(perhaps through a cost-benefit analysis or examination of the accommodations

undertaken by other employers) untethered to the defendant employer’s particularized

situation.”), abrogated by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir.

2012); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2nd Cir. 1995) (“[A]n

accommodation is reasonable only if its costs are not clearly disproportionate to the

benefits that it will produce.”); Vande Zande v. Wisc. Dep’t of Admin., 44 F.3d 538, 542–

43 (7th Cir. 1995) (“The employee must show that the accommodation is reasonable in

the sense both of efficacious and of proportional to costs. Even if this prima facie

showing is made, the employer has an opportunity to prove that upon more careful

consideration the costs are excessive in relation either to the benefits of the

accommodation or to the employer’s financial survival or health.”). The EEOC

disagrees with the need for a strict cost–benefit analysis. EEOC, Enforcement Guidance,

2015] Accommodating Commutes to Work Under the ADA 781

“‘undue hardship’ refers to any accommodation that would be unduly costly,

extensive, substantial, or disruptive, or that would fundamentally alter the

nature or operation of the business.”

198

The Interpretive Guidance provides

the following example of an accommodation that would fundamentally alter

the nature of an employer’s operation:

[S]uppose an individual with a disabling visual impairment that makes

it extremely difficult to see in dim lighting applies for a position as a

waiter in a nightclub and requests that the club be brightly lit as a

reasonable accommodation. Although the individual may be able to

perform the job in bright lighting, the nightclub will probably be able to

demonstrate that that particular accommodation, though inexpensive,

would impose an undue hardship if the bright lighting would destroy the

ambience of the nightclub and/or make it difficult for the customers to

see the stage show.

199

The existence of an undue hardship must be determined “on a case by

case basis.”

200

The Interpretive Guidance goes on to state that “an

accommodation that poses an undue hardship for one employer at a

particular time may not pose an undue hardship for another employer, or

even for the same employer at another time.”

201

Therefore, the undue

hardship defense is “a floating concept that varies with the nature and cost

of the proposed accommodation, the impact of the proposed

accommodation upon the operation of the facility, and the overall resources

of both the facility in question and the employer in general.”

202

Thus, a

request by an employee with a mobility impairment for an employer-paid

supra note 70, at n.9 (stating that while the employer may weigh costs and benefits in

choosing between two or more options or in arguing whether an accommodation

imposes an undue hardship, a cost–benefit analysis cannot determine whether an

accommodation is reasonable).

198. Id.

199. Id.

200. 29 C.F.R. app. § 1630.15(d), at 412; see also Nunes v. Wal-Mart Stores, Inc., 164

F.3d 1243, 1247 (9th Cir. 1999) (determining that the existence of an undue hardship

“requires a fact-specific, individualized inquiry”); EEOC, Enforcement Guidance, supra

note 70 (“[U]ndue hardship must be based on an individualized assessment of current

circumstances that show that a specific reasonable accommodation would cause

significant difficulty or expense.” (citing 29 C.F.R. app. § 1630.15(d) (1996))).

201. 29 C.F.R. app. § 1630.15(d), at 412.

202. Stephen F. Befort & Holly Lindquist Thomas, The ADA in Turmoil: Judicial

Dissonance, the Supreme Court’s Response, and the Future of Disability Discrimination

Law, 78 O

R. L. REV. 27, 37 (1999).

782 Drake Law Review [Vol. 63

nearby parking spot may result in an undue hardship for a downtown

employer with limited resources but not for a suburban employer with large

resources.

The Enforcement Guidance indicates that undue hardship is

established in the event that a proposed accommodation would significantly

disrupt the employer’s business operations.

203

The EEOC suggests that an

undue hardship would result if an accommodation provided to an employee

with a disability causes other employees to experience a significant decline

in productivity.

204

In a commuting context, a request by an employee for a modified work

schedule may or may not impose an undue hardship. By analogy to the

Enforcement Guidance example, if an employee with a disability is part of a

team that works collaboratively on an assembly line, a request for a later

start time might constitute an undue hardship if the accommodation would

impede the ability of the other team members to perform their jobs in the

employee’s absence.

205

On the other hand, if the employee works

independently, such that a later start time would have no negative effect on

the productivity of other workers, a later start time likely would not

constitute an undue hardship.

206

Some courts have stated that a cost–benefit analysis should be used in

determining the existence of an undue hardship.

207

Under this approach, the

203. See EEOC, Enforcement Guidance, supra note 70 (“Employers should carefully

assess whether modifying the hours could significantly disrupt their operations—that is,

cause undue hardship—or whether the essential functions may be performed at different

times with little or no impact on the operations or the ability of other employees to

perform their jobs.”).

204. See id. (“A crane operator, due to his disability, requests an adjustment in his

work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one

hour later in the evening. The crane operator works with three other employees who

cannot perform their jobs without the crane operator. As a result, if the employer grants

this requested accommodation, it would have to require the other three workers to adjust

their hours, find other work for them to do from 7:00 to 8:00, or have the workers do

nothing. The ADA does not require the employer to take any of these actions because

they all significantly disrupt the operations of the business.”).

205. See id.

206. See id. (“In this situation, the employer could grant the adjustment in hours

because it would not significantly disrupt the operations of the business. The effect of

the reasonable accommodation would be to alter . . . when they performed their

individual assignments.”).

207. See, e.g., Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 139 (2nd Cir. 1995)

2015] Accommodating Commutes to Work Under the ADA 783

benefits provided by an accommodation must be balanced with the costs that

the employer would bear in providing the accommodation. The EEOC

disagrees with this position.

208

In its Enforcement Guidance, the EEOC

states that “[n]either the statute nor the legislative history supports a cost–

benefit analysis to determine whether a specific accommodation causes an

undue hardship.”

209

In support of this view, the Enforcement Guidance cites

to the House of Representatives rejection of a proposed amendment to the

ADA which would have presumed the existence of an undue hardship if a

proposed accommodation would cost more than 10 percent of the

employee’s annual salary to implement.

210

According to the EEOC, the

proper role of the undue hardship defense is not a comparison between costs

and benefits but between costs and the employer’s overall budget.

211

VI.

CONCLUSION

The majority view of commuting accommodations uses a flawed

approach to the reasonable accommodation analysis. Rather than engaging

in the individualized, case-by-case determination envisioned by the EEOC,

courts in the majority view take a categorical approach that all requests for

commuting-related accommodations are unreasonable per se.

212

This

categorical disqualification necessarily denies possible accommodations that

could assist employees in getting to work and inappropriately limits

employment opportunities for individuals with disabilities.

Courts adopting the majority view rely on two principal rationales for

denying commuting accommodation requests. One is that commuting occurs

(“The burden on the employer, then, is to perform a cost/benefit analysis.”); Vande

Zande v. Wisc. Dep’t of Admin., 44 F.3d 538, 543 (7th Cir. 1995) (“The legislative history

equates ‘undue hardship’ to ‘unduly costly.’” (citing S.

REP. NO. 101-116, at 35 (1989))).

208. See EEOC, Enforcement Guidance, supra note 70.

209. Id.

210. Id.; see 136 CONG. REC. H2471–75 (1990).

211. 29 C.F.R. app. § 1630.15(d), at 412 (2014); see also Jeffrey O. Cooper,

Overcoming Barriers to Employment: The Meaning of Reasonable Accommodation and

Undue Hardship in the Americans with Disabilities Act, 139 U.

PA. L. REV. 1423, 1449

(1991) (“[W]hat matters most in determining whether an accommodation causes undue

hardship is not the cost of the accommodation in the abstract, but rather the employer’s

ability to bear the cost.” (citing H.R.

REP. NO. 485, 101st Cong., 2d Sess., pt. 2, at 35));

Weber, supra note 11, at 1150 (“The statutory term requires balancing of

accommodations’ costs, but it is a balance with the overall site-specific resources of the

employer, not with the benefit to the employee nor with anything else.”).

212. See supra Part III.A.

784 Drake Law Review [Vol. 63

outside the work environment and is primarily for the employee’s personal

benefit.

213

The second is that requests for commuting accommodations are

essentially requests for preferential treatment as compared to the remainder

of the employer’s workforce.

214

These two rationales, however, do not warrant an approach that finds

all commuting accommodations unreasonable per se. Although an

employee’s commute is outside of the workplace, many requests for

commuting accommodations are wholly under the employer’s control, such

as modified work schedules or reassignments to different work sites.

215

Additionally, most commuting accommodations are not purely personal in

nature but are designed to ensure access to the workplace and the ability to

perform the job.

216

As to the arguable issue of preferential treatment, the

Supreme Court has explained that a difference in treatment does not create

an automatic exemption from the Act’s reasonable accommodation

requirement.

217

Instead, some preferential accommodations are necessary to

afford individuals with disabilities the same opportunities as those who are

not disabled.

218

These principles apply beyond the commuting context and provide

guidance for the reasonable accommodation analysis as a whole.

Accommodation requests should be analyzed on an individualized basis that

takes into account the interests of both the requesting employee and the

responding employer.

219

Categorical limitations, such as the inside–outside

distinction, should not trump this case-by-case approach.

In undertaking this individualized assessment, three inquiries should

inform the reasonable accommodation analysis. First, would the requested

accommodation be effective in enabling successful performance of essential

job functions?

220

Second, is the requested accommodation primarily work-

related, or is it primarily personal in nature?

221

Third, would the proposed

213. See supra Part IV.A.

214. See supra Part IV.B.

215. See, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 505–06 (3d Cir. 2010).

216. See generally Basas, supra note 177.

217. See US Airways, Inc. v. Barnett, 535 U.S. 391, 397–99 (2002).

218. See id. at 397 (“Were that not so, the ‘reasonable accommodation’ provision

could not accomplish its intended objective.”).

219. See 29 C.F.R. app. § 1630.9, at 403–04 (2014).

220. See supra Part V.A.1.

221. See supra Part V.A.2.

2015] Accommodating Commutes to Work Under the ADA 785

accommodation significantly impair the productivity of other employees?

222

If the answer to each of these questions favors granting an accommodation

to the employee, the accommodation request should be deemed reasonable,

and the employer should be obligated to grant the request unless it would

impose an undue hardship.

222. See supra Part V.A.3.