Providing Ride to Work Reasonable Accommodation? Wrong Question

In Colwell v Rite Aid Corp., the Third Circuit Court of Appeals might provide a preview of what it’s going to be like under the Americans with Disabilities Act Amendments Act (ADAAA), even though the Colwell case arose before the ADAAA became effective and was decided under the old ADA. In deciding this case, the Third Circuit makes it clear that it is applying the old ADA, not the new ADAAA. However, it seems unlikely that any court can decide a disability discrimination case these days, regardless of whether it was filed before or after the ADAAA’s effective date, without at least subconsciously taking into account that a new day has dawned for disability discrimination cases.

The employee worked part-time for Rite Aid, either the 9 a.m to 2 p.m. shift or the 5 p.m. to 9 p.m. shift. She developed a serious vision problem, finally losing all sight in her left eye. Consequently, she was no longer able to drive at night. Because the employee lived in an area where public transportation wasn’t easily accessible, she requested to be assigned only to day shifts. Her supervisor refused on the basis that “it wouldn’t be fair” to other employees. A lawsuit ensued claiming that Rite Aid had failed to provide the employee with a reasonable accommodation.

The trial court dismissed the case without a jury trial, finding that an employer’s duty of reasonable accommodation extended only to making it possible for an employee to work once she arrived, not to enabling her to get to work. The Third Circuit disagreed. The court pointed to language in the ADA that specifically refers to the possibility of a shift change being a reasonable accommodation. Since the employee had asked for a shift change, the Third Circuit ruled that the trial court had incorrectly interpreted the employee’s request for a reasonable accommodation. The case was returned to the trial court for a full trial.

It’s true that the employee may very well have stated a valid claim under the old ADA, but the ADAAA specifically overturns certain U.S. Supreme Court cases, one of which might have been relied on to decide this case in favor of Rite Aid. Whether I’m right about the court in this case being influenced by the new ADAAA without meaning to be, it will be easier for employees to get a jury trial under the new law than was the case under the old one in light of the reversal by Congress of the Supreme Court cases clearly favorable to employers in disability discrimination or reasonable accommodation cases.

The Colwell decision underscores an employer duty that existed under the ADA and is even more significant under the ADAAA. An employer must consider an employee’s request for a reasonable accommodation. In this case, it’s arguable that the employee’s supervisor didn’t. He immediately responded “no” to her request, saying it wouldn’t be fair to other employees. How did he know that off the top of his head? What would the other employees have said had they been asked?

This case is a reminder of something that was true under the old ADA and is even more true under the ADAAA. When an accommodation request is made, the employer must engage in an interactive process with the employee to determine whether the accommodation can be made — whether it’s reasonable, whether it will cause an undue hardship. Knee-jerk responses have never been appropriate, and with the ADAAA, they’ll get you in trouble every time. While we’re at it, how will a jury decide a case involving a half-blind employee who can’t drive at night and requests from a large employer only day-shift work?

Perhaps this case was correctly decided under the old ADA. Perhaps the Third Circuit wasn’t influenced in the slightest by the ADAAA. The Colwell case should still be seen as an eye-opening development. The playing field for disability discrimination cases has changed — or perhaps is changing. It no longer favors employers. It favors employees. Employers must keep this in mind when dealing with employees who may be disabled and who make accommodation requests. Employers should make sure they know what the rules are now. Until the full meaning of the ADAAA is settled, an employer should always get legal advice when a disability or accommodation question arises to make sure it’s being handled correctly.

For additional discussion of the Colwell case, see Jon Hyman and Molly DiBianca.

1. 

   MD says:

   April 21, 2010 at 1:29 pm

   What if an employer ignores a request for reasonable accommodation, say about 5 months. When the employee follows up on the request, nobody has even entertained the idea?
2. 

   John Phillips says:

   April 21, 2010 at 2:29 pm

   Then it’s time for the employer to entertain the idea — and quickly. There’s still a question of whether it’s a reasonable request, whether it would cause an undue hardship. But the interactive process needs to move forward.
3. 

   Joan says:

   April 26, 2010 at 9:10 am

   The fact that the supervisor responded so quickly is indicative of the perils facing every employer — you are only as strong as your weakest supervisor! Under the ADAAA this will become all the more critical as the burden of providing your standing as a person with a disability (as an employee) has been lowered, thus raising the bar for all supervisors to not “ready, fire, aim”.
4. 

   John Phillips says:

   April 27, 2010 at 3:43 pm

   Joan,

   Thanks for your comment. Very good points.

   We probably ain’t seen nothing yet.

   John
5. 

   zlp says:

   April 28, 2010 at 1:30 pm

   My experience is that supervisors are hesitant to agree to an arguably reasonable accommodation because they’re concerned that more and more employees will request the same. So, what if, in the Colwell fact pattern, 50% of the employees request day shifts because of a disability. Who’s left to work the evening shift? I’m not saying that’s realistic, but to a supervisor, that’s scary.
6. 

   John Phillips says:

   April 29, 2010 at 11:44 am

   zlp,

   for your comment. Your observations are very good ones.

   While you’re right about a lot of supervisor concerns when it comes to this kind of situation, those concerns carry little to no weight from a legal perspective. These concerns, which aren’t completely crazy by any means, have always been there since the ADA became effective. With the definition of disability being much broader now, the concerns will become more problematic.

   I suspect it’s going to get a lot scarier.

   Thanks again.

   John