3d Cir. Finds Accommodation Required for Employee Without a Ride to Work

 Colwell v. Rite Aid Corp., is an accommodation case brought under the Americans With Disabilities Act (ADA), recently decided by the Third Circuit, which hears appeals from the federal courts of Delaware, Pennsylvania, and New Jersey. Jon Hyman, at the Ohio Employer’s Law Blog, was the first to post about the Colwell opinion, noting that the decision offers employers some key reminders about best practices when dealing with an employee’s request for accommodations made pursuant to the ADA.


The plaintiff, Colwell, was hired in April 2005 as a part-time clerk at one of Defendant Rite-Aid’s stores. Her schedule varied but she generally worked the 9 a.m. – 2 p.m. shift or the 5 p.m. – 9 p.m. shift. During the summer, she was diagnosed with retinal vein occlusion and glaucoma in her left eye and she later lost vision in her left eye. As a result, she could no longer drive at night.

Because she lived in an area without public transportation or taxis, Colwell had no reliable way to get to work for the evening shift. She asked to be assigned only to the day shifts but her supervisor refused, saying that it “wouldn’t be fair” to other employees. Colwell provided her supervisor with a doctor’s note as proof that she could not drive at night. Again, her supervisor declined Colwell’s request to be assigned only to day shifts. Colwell had to rely on family members to transport her to and from work on the days she was scheduled to work at night.

Colwell contacted her local union representative, who tried unsuccessfully to convince the supervisor to accommodate Colwell’s request. The union rep set up a meeting for him and Colwell to meet in person with the supervisor but he failed to show up and the meeting was canceled.

Colwell, who had grown weary of the whole situation, submitted her letter of resignation. She filed suit a few months later.

The Employer’s Argument

As its defense to Colwell’s claims, Rite Aid argued that it had no duty to accommodate Colwell’s request because an employee’s commute to and from work is not sufficiently related to the job and, therefore, not the proper subject of an accommodation. This is an important point. The parties agreed that Colwell did not need an accommodation once she got to work—the question in this case was whether the employer had a duty to provide an accommodation to enable her to get there in the first place. The trial court agreed with Rite Aid, and held:

the ADA is designed to cover barriers to an employee’s ability to work that exist inside the workplace, not difficulties over which the employer has no control.

The district court went on to find that imputing a duty to accommodate Colwell’s request was tantamount to “mak[ing] an employer responsible for how an employee gets to work, a situation which expands the employer’s responsibility beyond the ADA’s intentions.” Colwell appealed.

The Third Circuit’s Ruling

On appeal, the question before the Third Circuit was “whether a shift-change request can be considered a reasonable accommodation for an employee who cannot drive at night” because of a disability. Before the Third Circuit, Rite Aid argued that it did not have a duty to accommodate Colwell’s request. In fact, it argued, it did not have a duty to even consider her request because her “difficulties amounted to a commuting problem unrelated to the workplace and the ADA does not obligate employers to address such difficulties.”  The Third Circuit disagreed and ruled that, as a matter of law:

the ADA does contemplate an accommodation that involves a shift change to “alleviate [an employee’s] disability-related difficulties in getting to work.”

Here’s the basic rationale.

First, the court pointed to language in the ADA that specifically provides that a shift change may constitute a “reasonable accommodation.” Thus, a change in shifts is a change in a workplace condition entirely under the employer’s control.

Second, the court explained that, despite Rite Aid’s argument to the contrary, the scheduling of shifts is something done inside the workplace. The court distinguished this from an employee’s request for assistance in getting to work. For example, an employer would not have a duty to provide an employee with transportation to or from work. But an employer does have a duty, where reasonable, to accommodate an employee by changing the times that the employee is required to be at work.

For a Jury to Decide

It’s important to understand that the Third Circuit’s reversal does not mean a “win” for the plaintiff. Instead, the case will be remanded back to the district court for trial. At trial, the jury will be asked to decide which party, Colwell or Rite Aid, failed to meet its obligation to fully participate in the “interactive process” required by the ADA. That decision could go either way.

The jury could find for Colwell, based on the claim that the supervisor’s flat refusal to discuss a possible shift change was not a sufficient attempt at an accommodation. Or the jury could find for Rite Aid, based on the claim that the supervisor had agreed to meet with Colwell and her union rep but when the union rep failed to show up at the meeting, Colwell quit before further discussions could be had.

Alternatively, the jury could find that Rite Aid complied with its duty to engage in the interactive process but, for whatever reason, the shift change was not a viable accommodation. This would be a more difficult burden to meet but not an impossible one.

The Key Lesson

For many employers, this case may seem to have been decided on a technicality. The line between getting an employee to work and giving the employee a shift so that she can get to work seems to be a very thin line indeed. Putting aside the narrow difference, employers should look at the facts on a more basic level to derive the lesson to be learned. In other words, what, if anything, about the supervisor’s response just doesn’t seem fair?

The fact that the supervisor refused to even consider the request doesn’t seem quite right, does it? The supervisor’s immediate response was that a shift change wouldn’t have been “fair” to other employees. That may or may not have been the case. Shouldn’t she have at least bothered to ask the other employees?

The real lesson here is one that is a consistent theme in ADA issues: employers should always try to “work something out” when an employee requests an accommodation due to a disability. If you sit down and discuss the possibilities and then flush out as many options as you can, you will be a far better position.

But do it not because you have to; do it simply because you want to. You want to keep your good performers and not to make employees’ working lives any more burdensome than necessary. This is the same reason employers provide benefits and incentive plans. The same motivation should apply when an employee makes a reasonable request—start with the idea that you want to make the accommodation and take it from there.



2 responses to “3d Cir. Finds Accommodation Required for Employee Without a Ride to Work”

  1. Nice analysis. It will be interesting to see if the other Circuits (especially, for me, the 5th Circuit) follow this reasoning.

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