Legal Update: Commuting Accommodation Not Required in Sixth Circuit

A reasonable under the Americans with Disabilities Act (ADA) might be to alter an employee’s work schedule.  But a wrinkle that has come up recently is whether the employer must accommodate an employee’s commute with a schedule change.  The Sixth Circuit ruled that it did not in Regan v. Faurecia Auto Seating, 6th Cir., No. 11-1356, 5/10/2012.  Regan has narcolepsy; she can fall asleep at work or when driving, although the condition is mostly controlled with medication.  She informed the company of her condition when she was hired in 2005. Two things happened in 2008 that changed her commuting pattern.

First, she moved to a location about 79 miles from the company’s plant in Troy, Michigan when her husband took a job in that area. Her previous commute was about 24 miles.  Second, her department’s start time was moved from 6 a.m. to 7 a.m. because materials needed for the work did not arrive from other departments until after 6 a.m. Regan asked to be kept at the previous start time or else to be allowed to work through lunch and leave early. Her reason was to avoid heavy traffic, which caused her to tire more easily and which would require her to take rest breaks. The manager who made the schedule changes told Regan she could take leave under the Family Medical Leave Act (FMLA) or quit.  She got essentially the same response from the HR manager, who provided the FMLA paperwork, told Regan to fill it out, and that afterward they could discuss possible accommodations. She did not complete the paperwork but sent a doctor’s note to her supervisor, the line manager, and the HR manager supporting her to maintain the old start time.  She got no response; all three company officials denied receiving the doctor’s note. When the new schedule took effect she quit and sued under ADA and state law.  Federal district court gave summary judgment to the company. The court ruled that Regan’s condition did not limit a major life activity and the ADA did not require an accommodation to minimize her commute time. The court also ruled that the state laws followed the ADA, and so the outcome was the same. She appealed.

The Court of Appeals found that the ADA was concerned with barriers within, not without, the workplace.  So even if Regan were disabled, accommodating her commute with more convenient hours was not required.  The court cited to an unpublished Ninth Circuit decision and to district court cases in Illinois, New Jersey, and Florida.  Regan had also claimed sex discrimination in that males allegedly were allowed to work through lunch and leave early.  However, the court found that denying her that schedule adjustment did not rise to the level of an adverse employment action.  And the denial of both her schedule requests, either start early or leave early, could not support a claim of constructive discharge.

Millman and Kabir (2011) previously noted that the First, Second, Third, and Ninth Circuits have precedents that support accommodations in commuting.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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