A Meaningful Decision for Employers

I have to admit a liking for a good judicial opinion, especially one well written and intellectually honest. So, when Randee Chafkin alerted her fellow staff at the Coordinating Council on Access and Mobility (CCAM) about an ADA decision related to commuting to work, I did not hesitate to read the whole opinion to glean some helpful hints for transit and transportation providers, employers, advocates and people with disabilities.

The question posed in Colwell v. Rite Aid is whether a disability that does not handicap one in any way at work can be counted as a disability - which requires accommodation - where the only disadvantage is an inability to drive to or from work, in this case at night after the public transit buses stopped running and where taxi service was unavailable.

Procedural Pointers

Colwell does not require that the employer assist with transportation or advocate for improved transportation options. Nor does Colwell speak to other transportation-challenged populations, such as people who temporarily or permanently do not drive due to low income or preference. Presumably it applies to discrimination on the basis of age itself. However, as people with disabilities are overrepresented among low income populations, those with disabilities that make driving dangerous or impossible can glean much from the decision.

Another important tidbit to keep in mind is that Colwell was decided on a summary judgment motion, which is basically the stage where a judge rules, if asked (and the motion is very common), whether the allegations could lead - after a jury trial - to a judgment for the person who is suing. Generally, if the plaintiff wins, the suit settles because going the distance to a trial and perhaps appeals is a time consuming and expensive process.

Shift Request

The plaintiff was a part-time employee in her sixties who developed a serious eye problem in one eye that led to blindness in that eye. She asked her employer, a large chain drugstore, to accommodate her visual disability with assignment to day shifts instead of her usual night shifts. The plaintiff had managed thus far to get rides to work and the employer refused the request. (Other information in the opinion suggested that the manager was none too fond of the plaintiff otherwise.)

The defendant, Rite Aid, argued that the commute to work fell outside of the workplace and therefore commuting difficulties did not require accommodation. The Third Circuit saw the legal landscape very differently. "[W]e hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates."

Reasonable Accommodation

The ADA's provision for reasonable accommodations, the Third Circuit found, explicitly includes "modified work schedules." "[P]ersons who may require modified work schedules are persons with mobility impairments who depend on a public transportation system that is not currently fully accessible."

And the Court declared flat out that the ADA covers getting to work even though transportation to employment does not involve any accommodation at the workplace.

Refusing to comment on a Second Circuit opinion that held an employer to task for not paying for a parking space for an employee who was unable to walk long distances, the Third Circuit agreed that "T]here 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."

Hence, if the plaintiff had lived and worked in an area with evening bus service, Rite Aid would not have had to spend all this money on attorneys and, presumably, writing out a nice size settlement check to end the suit with an ex-employee.

The only kernel that employers must pay attention to in Colwell is that the "ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work." (Emphasis supplied.) There is no hint that something other than a shift change, such as paying for an accessible and quality bus stop, would ever fall within the realm of an ADA reasonable accommodation.

Reading the Tea Leaves

The Third Circuit's language poses all sorts of questions about access to streets, intersections, quality transit and other mobility options. Maybe that's just the lawyer in me, hoping that people bring lawsuits just to have interesting questions answered as much as to correct injustice. However, most courts - with the Supreme Court sometimes an exception - tend to be rather conservative institutions and recognize that their role is not to impose social change, but to leave that to legislatures and the executive branch.

With the Supreme Court soon to include four justices who grew up in New York City, three from the transit-rich boroughs of Brooklyn, the Bronx and Manhattan (admittedly, even Queens is better than most of the country), and who have worked in New York, DC and Cambridge, questions of reasonableness in terms of transportation and commutes will be tinged with their transit-rich and mobility-wealthy experiences.

Employers: Be Accommodating and Prevent Litigation

As the Joblinks Transportation Center has shown in its Transportation Toolkit for the Business Community and other products, employers can be proactive in terms of commuting and accommodating employees' needs for public transit and other mobility options.

Specifically addressing the commuting needs of people with disabilities, Joblinks will be hosting another in a series of vanpool webinars. Vanpooling: A Promising Transportation Option for Commuters with Disabilities will be held on August 11, 2010 at 2 p.m. Eastern Time. The webinar will cover the ways in which vanpool providers serve riders with disabilities, the potential for greater use of vanpools by persons with a variety of disabilities, and ideas for partnering at the state and local levels to create more accessible vanpools across the country.

To register, visit http://guest.cvent.com/d/5dqft2/4W.

Of course, the accommodation and mobility of employees with disabilities are issues that all are free to raise during the online national paratransit dialogue that Easter Seals Project ACTION (ESPA) is hosting until Aug. 6.

ESPA also has a few distance learning events coming up in August that address accessible transportation, one concerning rural areas and one to cover paratransit and demand-response services.

National Online Paratransit Dialogue

As part of the commemoration of the 20th anniversary of the Americans with Disabilities Act, Easter Seals Project ACTION (ESPA) is hosting a National Paratransit Online Dialogue to discuss progress to start the next 20 years.

ESPA's online dialogue is designed to address calls for programs to decrease service or provide innovative options in a time of tight budgets. This dialogue will provide an opportunity for providers and stakeholders to share experiences, paratransit practices, challenges, and recommendations. ESPA is defining paratransit for the purpose of this dialogue to include ADA complementary service and a range of traditional and beyond-ADA demand response services for people with disabilities, older adults, customers of community programs, and/or the general public. Paratransit services are typically door-to-door or curb-to-curb reservation-based services.

I will personally join the dialogue. Although I believe in universal design and accessible streets, transit and other mobility options, I am well aware that at some point many of us need assistance beyond curb-to-curb transportation, whether due to cognitive difficulties, physical challenges or both.

Let us make full use of the paratransit online dialogue to improve the lives of the most transportation-challenged among us.

And happy birthday to the ADA!

Ambassador Blogs

Okay, we all know that not every second of work is a productive one. Studies show that the mind needs to wander, that doodling can be productive and that intermittent short rests (even napping) are healthy strategies.

Where am I going with this? I have a productive way for you to waste a little time, and really, while it is passive, you might gain quite a bit.

Write this on your Calendar

Ambassador blogs are a monthly cornucopia of what is going on in public and human services transportation around the country - what are the issues in coordination, veterans mobility, medical and senior transportation, and much more. While I can do a monthly roundup of highlights, I really do think that reading the blogs is a high-benefit twenty minutes that you will spend each month.

Just to tempt you, here are July's highlights.

Highlights for July

Ambassador Dan Dirks discusses the effect of the oil spill on a transit agency in Mississippi.

Ambassador Roland Mross writes about tax revenue declines and decreased transit funding in Indiana.

Ambassador Jo Ann Hutchinson beams her spotlight on travel training for students with disabilities and Mississippi's collaborative planning process.

Ambassador Rex Knowlton has used the very moving words from a letter he received from a grateful parent about the life-changing success that travel training has brought to her and her daughter.

The ambassador blogs are linked from each ambassador's page, accessible from the NRC's homepage at www.NRCtransportation.org.

Be a Pilot Community

Less than a week is left to volunteer to be a pilot for the walk-friendly communities project. July 19 is the deadline to apply for this Federal Highway Administration program.

[This is} a nationwide program with the goal of encouraging towns and cities throughout the United States to establish (or recommit to) a high priority for encouraging and supporting more safe walking. The program is aimed at improving a wide range of conditions and facilities related to walking, including safety, transportation, access, and physical activity.

The current deadline is for a second round of the program, which will test the tools developed in the first round. Details are available at http://www.walkfriendly.org/pilot.cfm.

Information about bike/ped programs is also available at http://www.pedbikeinfo.org/.

Define Your Terms

At the National Resource Center (NRC), we help define transportation terms for you and those with whom you work. We have a 13-page Glossary of Transportation Terms. Included is everything from "Access Board" to "Volunteer Network," with apologies to the letter "Z" and its few counterparts at the end of the alphabet.

Many organizations are listed, as are as transportation-specific terms such as "busway," (which my spellcheck is displeased with) and government funding terms, such as the ever-important "match."

Feel free to forward the link or print out. The glossary is available at http://web1.ctaa.org/webmodules/webarticles/articlefiles/TransportationGlossary.pdf - or find it through the NRC website at www.NRCtransportation.org.

Funding Deadline Changes

From the Federal Register:

On June 1, 2010, DOT published a notice (75 FR 30461) announcing the availability of funding and requesting proposals for DOT's National Infrastructure Investments grant program under the FY 2010 Appropriations Act. The DOT is referring to the grants for National Infrastructure Investments as ``TIGER II Discretionary Grants.''

DOT is extending the deadline to submit pre-applications for TIGER II Discretionary Grants from July 16, 2010, at 5 p.m. EDT to July 26, 2010, at 5 p.m. EDT. The deadline for submitting final applications is not being extended, and remains August 23, 2010, at 5 p.m. EDT.

Apologies to anyone who also reads the Express Stop. I have an almost identical post there today. Really have to figure out the two-blog strategy.

Have a fabulous Fourth of July. I will be on my porch on Maple Avenue in Takoma Park to watch the parade. Anyone in town can feel free to stop by. But don't bring your car. The Metro is a couple of blocks away. We're very transit-friendly.

Public Involvement in Transit Decision Making

TCRP SYNTHESIS 85: Effective Use of Citizen Advisory Committees for Transit Planning and Operations is a must-read for anyone who either works with public involvement and stakeholder groups, recommends them, or whose work is in some way involves public involvement. In fact, though the report is about the use of public involvement and stakeholder advisory groups in the realm of transit, I would recommend the report to anyone who utilizes or suggests these tools in any decision-making arena.

This is a long report, 76 pages, so I do not expect that many people will read it through. However, because it has valuable information, I am going to do more than provide a blurb. Just reading a couple of sections will be worthwhile. Even in the conclusion I found words of wisdom that added to the depth of fantastic information.

What Coordination Efforts Can Learn about Stakeholder Committees

In our work, we often talk about local and state coordinating councils. Public involvement is a legal requirement of SAFETEA-LU and is increasingly used at all levels of government to inform official decisions and projects. Convening a stakeholder committees is one strategy that is widely used for supplying transit agencies and governmental entities with feedback about proposed projects and changes to service. The report discusses how to effectively form, structure, give purpose to and use these committees for transit planning and project implementation.

The report recommends:

• Clear expectations and communication about committee roles and responsibilities contribute to an advisory committee’s success.
• For committee membership the need for representation of all viewpoints can be balanced with the need to maintain a manageable committee size.
• Agencies find value in the input provided by advisory committees and think of them as an indispensable part of the public involvement process.
• Many agencies employ professional public involvement staff to support committees and other outreach activities.
• Committee evaluation can lead to improved effectiveness.

Flavorful Cookbook for Professionals and Citizens

The case studies are well written, not the usual dull text of most reports, and extremely informative, providing a veritable cookbook for residents, political leaders, government personnel, and non-profit staff of all stripes. The case studies offered a range of purposes for the committees, procedures, membership, sizes, and types of projects and project phases for which the committees were utilized.

What was impressive was the political and governmental appreciation for the input of the committees and in some places the expansion of their use. "The agencies featured in the case studies tended to report on advisory committees as a standard, expected part of the process by community members, staff, and officials."

A Taste of the Findings

Strategies for promoting involvement were extensively covered, such as where to hold meetings, as well as an emphasis on and suggestions for effective facilitation of meetings.

Examples of successful stakeholder advisory groups and their roles are discussed in wonderful detail so that a flavor for what they do, how and why, is available from the black and white of the report as well as information about procedures and lessons learned.

In terms of specifics, here is just one set of recommendations in the area of purposes for which such committees are well suited.

Stakeholder advisory committees are effective to use for:

• A policy, plan, or project is being developed on a local or regional scale.
• Technical information is sufficiently complex to require consistent attention and involvement to make a meaningful recommendation.
• Stakeholder input is needed during a well-defined time period.
• The advisory committee has a clear role in providing input to the decision-making body.
• Community buy-in is needed for a controversial project.
• Opposing stakeholders could benefit from the opportunity to hear each other’s views and problem solve in a collaborative environment.

Caveats

Stakeholder advisory bodies can be costly, due to extensive staff time for training, liaison services, facilitation and recording of proceedings. The committees should be subject to size limitations (or else unwieldy), though the case studies offered many different sizes that worked well. These entities are subject to group dynamics, which can limit effectiveness, and require facilitation, the need for which becomes more pronounced as groups increase in size.

Secretary of Transportation Recognizes Technical Assistance Center

None other than Secretary of Transportation Ray LaHood recognizes our partner Easter Seals Project ACTION (ESPA) in his Fastlane blog yesterday afternoon. There's even a photograph of the whole ESPA crew with the Secretary, Doug Birnie, Erik Weber, and Judy Shanley.

LaHood thanked ESPA for its work "to make our communities more livable for the 54 million Americans with disabilities." He discussed the October 2009 ESPA Youth with Disabilities Transportation Roundtable, which resulted in a plan to address:

five core challenges that need to be solved to increase transportation options for youth with disabilities:

* Share information about transportation resources with youth.
* Train youth to use public transportation.
* Expand limited public transportation service on nights and weekends.
* Include student and school transportation issues in local transportation planning.
* Help planners learn about the family of transportation services, eligibility criteria, and funding streams available.

To read the Secretary's post about ESPA, visit http://fastlane.dot.gov/2010/06/earlier-today-i-blogged-about-older-americans-and-livability-now-as-we-approach-the-20th-anniversary-of-the-americans-with.html.