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.