Seventh Circuit holds employers may, at least in some circumstances, be required to accommodate a disabled worker’s commuting needs

In a very fact-specific opinion that will likely prove challenging to apply to future fact patterns, the EEOC argued and a 3-judge panel of the Seventh Circuit held that employers may, at least in some circumstances, be required to reasonably accommodate a disabled worker’s commuting needs. The decision is titled EEOC v. Charter Communications LLC.

The plaintiff had a vision disability related to cataracts in both eyes that limited his ability to drive at night. He worked in a call center and asked to have his work schedule moved up by a couple hours, from noon-9:00 PM to 10:00 AM-7:00 PM, so that he could commute during daylight hours while he tried to find a solution. Specifically, the court noted that the company had suggested to him that he needed to find alternative transportation, specifically public transportation or carpooling with fellow employees. The company agreed to move his schedule up by two hours as requested but only on a temporary 30-day basis during which time he was to research public transportation and carpooling. According to the court, neither option panned out. When he checked on the former, he was told public transportation ended at 9:00 PM, making it not an option if he were to go back to the original schedule, and as for the latter, he said he knew of no fellow workers who lived in the city where he did, which was a 1-hour drive from the workplace. He asked the company for a list of workers who lived by him, so that he could ask them if they would carpool with him, but the company refused to tell him any saying it would be a breach of confidentiality. He then asked for another 30-day extension so he could move closer to the workplace; the company refused the extension, according to the court.

The court held that the company would have to explain its refusal to a jury. In the court’s view, the company had asserted that attendance as scheduled was an essential function; therefore, in the court’s view, the plaintiff wasn’t asking for an accommodation to suit his own personal needs or preferences but rather to help him meet an essential function of the job.

Kimmons was not asking for an unaccountable, work-when-able schedule or a permanent accommodation. He did not demand the company itself transport him to work. He asked only for a temporary work schedule that would start and end two hours earlier while he found time to move closer. A jury could have found his requested accommodation to be reasonable.

As even the Seventh Circuit acknowledged in this decision, its opinion is at odds with a number of other decisions, including one by the Tenth Circuit. The case is therefore ripe for review by the full Seventh Circuit and even the Supreme Court.

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USCIS announces new remote I-9 process

During the Covid-era, USCIS was permitting — for the safety of human resources professionals and all individuals involved — I-9’s to be done remotely. That remote process expired with all employers being required to go back and inspect originals of all previously remotely-inspected documents by August 30, 2023. However, the process proved itself so effective that, as a practical matter, USCIS decided to make available and has announced a new remote process that is available to some but not all employers. It is only available under strict procedures dictated by the USCIS. See also the e-Verify instructions for doing this.

For example, and without summarizing all of the procedures:

  • Only employers who participate in e-Verify may use this remote I-9 process. Companies that do not participate in e-Verify may not use this remote process; they must return to live in-person I-9 inspections.
  • Employer who e-Verify and who choose to do remote verifications must then meet all the new requirements. For example,
    • They must use the new I-9 form because it will have to check the box on the new form confirming it used this new “alternative procedure.”
    • They must do the remote inspection by video, live. The employer must, on the video, have the person show them their original I-9 document, confirm it matches what the person previously submitted by email or otherwise, confirm its apparent genuineness, etc.
    • They must then complete the new I-9 form and retain the documents, all as dictated by the government’s requirements.

The government has said it is making available a video tutorial for employers, available to e-Verify companies. Any employer wishing to use this new process should consider watching the government’s tutorial video.

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Fifth Circuit eliminates the Ultimate Employment Decision requirement in Title VII discrimination cases

In a case entitled Hamilton v. Dallas County, the Fifth Circuit eliminated the “ultimate employment decision” requirement in Title VII discrimination cases. The case is significant because the requirement for an employer to have taken an actual adverse employment action, in other words to have made some some “ultimate employment decision” that affected the plaintiff’s employment, has been a threshold requirement that allowed judges to review whether a case warranted litigation. Whether judges should even be doing so has itself been an on-going policy debate.

By eliminating this threshold, the Fifth Circuit may have put itself at odds with a number of other courts creating a split that may well rise to the Supreme Court.

The actual impact of this decision — if it withstands Supreme Court review — is arguable since even the Fifth Circuit still requires the plaintiff to prove the discrimination impacted their “hiring, firing, compensation, or other ‘terms, conditions or privileges’ of her employment.” indeed the Fofth Corcuit characterizes its own decision as simply simplifying its own test to bring it in line with other Circuits, which focus on whether there has been a showing of an impact to hiring, firing, etc. In other words, the decision may be more about the semantics of how the Fifth Circuit phrases its test rather than any substantive split.

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