Page

INTRODUCTION 1

STATEMENT OF JURISDICTION.. 1

STATEMENT OF THE ISSUES. 2

PERTINENT STATUTORY AND REGULATORY PROVISIONS. 2

STATEMENT OF THE CASE.. 2

A. Statutory and Regulatory Framework. 2

B. Factual Background. 4

C. District Court Decision. 8

SUMMARY OF THE ARGUMENT.. 10

STANDARD OF REVIEW 11

ARGUMENT 12

A. Kimmons’ disability is relevant to the performance of essential job functions as required by Brumfield because it prevented him from driving safely home from his work site following his assigned shift. 12

B. If necessary, this Court should revisit Brumfield pursuant to Circuit Rule 40(e) to hold that reasonable accommodations may be required even if unrelated to the performance of essential job functions. 22

1. The text of the ADA makes clear that reasonable accommodations may be required even when an employee can perform essential job functions without them.. 22

2. Assuming, arguendo, that the text of the ADA is ambiguous, this Court should defer to EEOC’s regulation clarifying that employers must provide accommodations for purposes beyond performance of essential job functions.. 28

3. Brumfield conflicts with the precedent of this and other courts.. 29

CONCLUSION 33

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

STATEMENT REGARDING SHORT APPENDIX

ADDENDUM

SHORT APPENDIX

TABLE OF AUTHORITIES

Page(s)

Cases

Bay v. Cassens Transp. Co.,
212 F.3d 969 (7th Cir. 2000)......................................... 26

Bell v. O’Reilly Auto Enters., LLC,
972 F.3d 21 (1st Cir. 2020)..................................... 24, 31

Brooks v. Walls,
279 F.3d 518 (7th Cir. 2002)......................................... 20

Brumfield v. City of Chi.,

...... 735 F.3d 619 (7th Cir. 2013)................................... passim

Buckingham v. United States,
998 F.2d 735 (9th Cir. 1993)......................................... 31

Bultemeyer v. Fort Wayne Cmty. Schs.,
100 F.3d 1281 (7th Cir. 1996)................................ 27, 28

Burnett v. Ocean Props., Ltd.,
987 F.3d 57 (1st Cir. 2021)............................... 17, 21, 32

Cal. v. Dep’t of Toxic Substances Control v. Westside Delivery, LLC,
888 F.3d 1085 (9th Cir. 2018)....................................... 25

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984).................................................. 26, 29

Cleveland v. Pol’y Mgmt. Sys. Corp.,
526 U.S. 795 (1999)........................................................... 2

Cloe v. City of Indianapolis,
712 F.3d 1171 (7th Cir. 2013)....................................... 19

Colwell v. Rite Aid Corp.,
602 F.3d 495 (3d Cir. 2010)...................... 15, 16, 19, 21

EEOC v. Kaiser Found. Health Plan of Ga., Inc.,
No. 19-CV-5484-AT, 2021 WL 3508533 (N.D. Ga. Aug. 9, 2021).............................................................. 21, 32

EEOC v. Life Techs. Corp.,
No. WMN-09-2569, 2010 WL 4449365 (D. Md. Nov. 4, 2010).............................................................. 24, 29

EEOC v. Sears, Roebuck & Co.,
417 F.3d 789 (7th Cir. 2005).................................. 18, 20

Fedro v. Reno,
21 F.3d 1391 (7th Cir. 1994)......................................... 30

Feist v. La. Dep’t of Just.,
730 F.3d 450 (5th Cir. 2013).............. 16, 22, 29, 31, 32

Filar v Bd. of Educ. of City of Chi.,
526 F.3d 1054 (7th Cir. 2008)................................ passim

Fuller v. Belleville Area Cmty. Coll. Dist. No. 522,
No. 3:18-cv-01123-GCS, 2020 WL 1287743 (S.D. Ill. Mar. 18, 2020)..................................................... 19, 21, 22

Gile v. United Airlines, Inc.,
213 F.3d 365 (7th Cir. 2000).................................. 19, 32

Hendon v. Wis. Bell, Inc.,
No. 16-C-0941, 2018 WL 1885678 (E.D. Wis. Apr. 19, 2018)............................................................................. 19

Hill v. Assocs. for Renewal in Educ., Inc.,
897 F.3d 232 (D.C. Cir. 2018)...................................... 31

Hooper v. Proctor Health Care Inc.,
804 F.3d 846 (7th Cir. 2015)......................................... 13

Humphries v. CBOCS W., Inc.,
474 F.3d 387 (7th Cir. 2007)......................................... 31

Johnson v. Bd. of Trs. of Boundary Cnty. Sch. Dist. No. 101,
666 F.3d 561 (9th Cir. 2011)......................................... 27

Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co.,
201 F.3d 894 (7th Cir. 2000)......................................... 17

Livingston v. Fred Meyer Stores, Inc.,
388 F. App’x 738 (9th Cir. 2010)................................. 16

Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249 (11th Cir. 2001)..................................... 28

Luckett v. Dart,
No. 14-CV-6089, 2017 WL 3386117 (N.D. Ill. Aug. 7, 2017)............................................................................... 13

Lyons v. Legal Aid Soc’y,
68 F.3d 1512 (2d Cir. 1995))............................ 16, 21, 28

Marx v. Gen. Revenue Corp.,
568 U.S. 371 (2013)......................................................... 26

McWright v. Alexander,
982 F.2d 222 (7th Cir. 1992)......................................... 30

Nat’l Inspection & Repairs, Inc. v. George S. May Int’l Co.,
600 F.3d 878 (7th Cir. 2010)......................................... 11

PGA Tour, Inc. v. Martin,
532 U.S. 661 (2001)........................................................... 2

Richardson v. Chi. Transit Auth.

...... 926 F.3d 881 (7th Cir. 2019)......................................... 26

Sanchez v. Vilsack,

...... 695 F.3d 1174 (10th Cir. 2012)....................... 29, 30, 31

Scalera v. Electrograph Sys., Inc.,

...... 848 F. Supp. 2d 352 (E.D.N.Y. 2012)........................ 24

Spiegla v. Hull,

...... 371 F.3d 928 (7th Cir. 2004)......................................... 30

Stokes v. Nielsen,
751 F. App’x 451 (5th Cir. 2018) (per curiam)......... 30

Sturz v. Wis. Dep’t of Corr.,
642 F. Supp. 2d 881 (W.D. Wis. 2009)....................... 22

United States v. Howze,

...... 343 F.3d 919 (7th Cir. 2003).................................. 30, 31

United States v. Polichemi,

...... 201 F.3d 858 (7th Cir. 2000)......................................... 20

US Airways, Inc. v. Barnett,

...... 535 U.S. 391 (2002)......................................................... 32

Waggoner v. Olin Corp.,
169 F.3d 481 (7th Cir. 1999)......................................... 17

Watson v. Lithonia Lighting,
304 F.3d 749 (7th Cir. 2002)......................................... 27

Whitaker v. Wis. Dep’t of Health Servs.,
849 F.3d 681 (7th Cir. 2017)......................................... 27

White v. Scibana,
390 F.3d 997 (7th Cir. 2004)......................................... 29

Wilkerson v. Shinseki,
606 F.3d 1256 (10th Cir. 2010)..................................... 27

Yochim v. Carson,
935 F.3d 586 (7th Cir. 2019)......................................... 18

Statutes

28 U.S.C. § 1291........................................................................ 2

28 U.S.C. § 1331........................................................................ 1

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.................................................................................. passim

42 U.S.C. § 12101(a)(5)................................................... 23

42 U.S.C. § 12101(a)(7)................................................... 21

42 U.S.C. § 12101(b)(1).................................................... 2

42 U.S.C. § 12111(8)................................................. passim

42 U.S.C. § 12111(9).......................................................... 3

42 U.S.C. § 12111(9)(A)........................................... passim

42 U.S.C. § 12111(9)(B).................................................. 15

42 U.S.C. § 12111(10)(A)............................................... 32

42 U.S.C. § 12112(a)................................................. passim

42 U.S.C. § 12112(b).......................................................... 3

42 U.S.C. § 12112(b)(1).................................................. 23

42 U.S.C. § 12112(b)(5)(A)...................................... passim

42 U.S.C. § 12116............................................................. 29

42 U.S.C. § 12117(a).......................................................... 1

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq........................................................................... 1

42 U.S.C. § 2000e-5(f)(1).................................................. 1

42 U.S.C. § 2000e-5(f)(3).................................................. 1

Rules and Regulations

29 C.F.R. § 1630.2(m)........................................................ 4, 26

29 C.F.R. § 1630.2(o)(1).................................................. 28, 29

29 C.F.R. § 1630.2(o)(2)........................................................ 15

29 C.F.R. § 1630.2(o)(4)........................................................ 31

29 C.F.R. pt. 1630, app. § 1630.2(o)................................... 32

29 C.F.R. pt. 1630, app. § 1630.9........................... 26, 27, 31

Fed. R. App. P. 4(a)(1)(B)........................................................ 2

Seventh Circuit R. 40(e).................................................. passim

Other Authorities

Docket, Brumfield v. City of Chi.,
10-cv-4960 (N.D. Ill.)...................................................... 12

Docket, Brumfield v. City of Chi.,
11-3836 (7th Cir.)............................................................. 29

H.R. Rep. No. 101-485, pt. 2 (1990), as reprinted in
1990 U.S.C.C.A.N. 330................................................... 15

INTRODUCTION

This case is about Charter Communications, LLC (Charter)’s refusal to provide James Kimmons—a sales representative with cataract-related night blindness—with an accommodation Kimmons needed to allow him to drive safely home from his workplace following his assigned shift. Although Charter initially granted Kimmons a temporary shift change to allow him to avoid driving home from work in the dark, Charter then refused to extend the accommodation for another thirty days. In so doing, Charter pointed to no undue hardship that would result from this brief extension and provided no explanation for why a request granted mere weeks before had suddenly become unreasonable. Instead, Charter claimed only that the ADA imposed no obligation at all to provide any accommodation related to an employee’s commute. This conclusion, however, runs contrary to the text and legislative history of the ADA and the case law of this Court and other circuits, all of which recognize that an employer must provide reasonable accommodations that allow disabled individuals to readily access the workplace and perform their essential job functions.

STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission (EEOC) brought this enforcement action alleging that Charter violated the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. §§ 12101 et seq., by failing to provide a reasonable accommodation to Kimmons. R.1 at 1.[1] The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(f)(1), (3)). On December 17, 2021, the district court granted summary judgment in Charter’s favor and entered final judgment against EEOC. R.60; R.61. On February 14, 2022, EEOC timely filed a notice of appeal. R.69; see Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the district court erred in holding that Kimmons’ disability was irrelevant to his

ability to perform his essential job functions—and that under Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013), this relieved Charter of any duty under the ADA to accommodate him—where Kimmons’ cataract-related night blindness prevented him from driving safely home from work following his assigned shift.

2. If this Court reads Brumfield as foreclosing even those accommodations necessary to

ensure safe access to the workplace, whether this Court should revisit Brumfield pursuant to Circuit Rule 40(e) because, so interpreted, that decision’s holding is contrary to the text of the ADA, EEOC regulations, and the precedent of this Court and other circuits.

PERTINENT STATUTORY AND REGULATORY PROVISIONS

Pertinent statutory and regulatory provisions are reproduced in the addendum to this brief.

STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

Congress enacted the ADA to create a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). “The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity.” Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 801 (1999). “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment . . . .” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).

The ADA’s prohibitions against employment discrimination are set forth in Title I at 42 U.S.C. § 12112. Section 12112(a) provides: “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

Section 12112(b) states that “[a]s used in subsection (a), the term ‘discriminate against a qualified individual on the basis of disability’ includes” a list of specified employer actions. 42 U.S.C. § 12112(b)(1)-(7). One such specified action is “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent undue hardship. Id. § 12112(b)(5)(A).

Title I’s definitional provision states that “[t]he term ‘reasonable accommodation’ may include”:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Id. § 12111(9).

Congress expressly authorized EEOC to issue regulations to implement Title I of the ADA. 42 U.S.C. § 12116. Consistent with the statute, EEOC’s implementing regulations provide that “[t]he term reasonable accommodation means”:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

29 C.F.R. § 1630.2(o)(1)(i)-(iii).

The statute bars discrimination against “qualified individual[s].” 42 U.S.C. § 12112(a). The statute defines the term “qualified individual” as one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). EEOC’s implementing regulations further provide that:

[t]he term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.

29 C.F.R. § 1630.2(m).

B. Factual Background

James Kimmons experiences cataracts that cause blurred vision and difficulty with glare that interfere with night driving. R.30-5 at 30:3-15, 46:2-14; R.30-55 at 38:6-24, 75:6-23. Dr. Bruce Savin, an optometrist with more than forty years of experience who treated Kimmons, testified that cataracts cause “[t]he crystal clear lens that is in the eye” to “develop opacities within the lens itself. It can be a yellowish hazing called sclerosis, but also can be in the form of . . . spokes, sheets or dots even. It’s like throwing debris against a window in your house. If you have enough of that block the window, you can’t see anymore.” R.30-55 at 13:20-23, 38:16-23. Dr. Savin noted that even mild cataracts can “cause . . . problems” when they are “central to [the] line of sight in the center of the lens,” like Kimmons’ cataracts were. R.30-55 at 39:16-22. Dr. Savin further explained that cataracts can impact night driving because they cause “diminished visual acuity” and blurriness that “typically bothers a patient more in the dark and that’s typically night driving.” R.30-55 at 75:12-14. In addition, glare exacerbates cataracts because “[l]ight rays are being reflected off of those particles or areas of debris in the lens of the eye. The opacities that are appearing in the lens will cause the light to scatter and reflect.” R.30-55 at 75:19-23. Dr. Savin observed in his examination notes that Kimmons suffered from “cat[aract] related blurred [vision]” and recommended that he “consider avoiding night driving—even with new spect[acle prescription].” R.30-59 at 4; see also R.30-57 at 5 (subsequent treatment notes documenting that Kimmons was “cautioned about glare”).

In January 2016, Kimmons applied to work at Time Warner Cable (which Charter acquired later that year). R.34-10; R.34-5 at 12:19-13:1. Kimmons lived in Racine, Wisconsin, about 36 miles (or about a one-hour drive) from the Milwaukee call center where his duties were to be performed. R.30-5 at 31:23-32:2. Kimmons asked about a flexible schedule during the interview process, explaining that he did not drive well at night, and the interviewers responded “[o]h, we can get you out of here [before dark], don’t worry about that.” R.30-5 at 40:3-16.

Charter hired Kimmons as an Inside Sales and Retention Representative in March 2016. R.30-5 at 33:7-12. According to Charter’s Director of Human Resources, the primary duties of such representatives are to “answer the calls that come in” with an eye toward “retain[ing] existing customers” and attempting to “upgrade to services they do not have.” R.34-6 at 19:4-15. During his new-hire training period, Kimmons worked from 8:00 a.m. to 5:00 p.m. R.30-5 at 60:22-25. After he completed his new-hire training in June 2016, Kimmons received a 12:00 p.m. to 9:00 p.m. shift based on Charter’s shift-selection lottery system. R.30-5 at 59:11-60:2. Kimmons explained that this shift “was the only shift that was left” when it was his turn to select during the lottery. R.30-5 at 59:17.

After receiving this shift assignment, Kimmons made a verbal request for a shift change to his supervisor, citing his night blindness. R.30-5 at 65:10-66:19. Kimmons’ supervisor denied this first request. R.30-5 at 65:10-66:19, 84:15-19. Kimmons submitted a second accommodation request in writing dated July 5, 2016, explaining that he did “not drive well after dark at night” and “[w]ou[l]d like to request a[n] earlier shift” that would allow him “to be off the highways before dark” or to access public transportation, which was unavailable “at th[e] late hour” that his current shift ended. R.34-13 at 3. Kimmons requested “to be on a shift starting no lat[]er than 9:00 [a.m.]” which would “allow [him] not to have to be on the highways” after dark. R.34-13 at 3.

Kimmons submitted two physician certification forms in connection with this accommodation request—one from his optometrist, Dr. Savin, and one from his primary care physician, Dr. Reginald Adams. R.30-20; R.30-21. Dr. Savin’s form noted a diagnosis of cataracts and explained that “[d]ue to glare caused by cataracts night glare + strain may be reported by patients + were reported as issues per Mr. Kimmons[’] exam.” R.30-20 at 2. Dr. Adams’ form likewise observed that Kimmons’ condition causes “difficulty driving after dark” and “[s]everely impairs his night vision.” R.30-21 at 3.

Charter issued an employer response form dated August 9, 2016, with the box checked indicating that “[a]ll of part of employee’s accommodation(s) request is approved.” R.34-14 at 2. Charter assigned Kimmons to a 10:00 a.m. to 7:00 p.m. shift (rather than a shift starting before 9:00 a.m. as Kimmons had requested). R.34-14 at 2. Charter also agreed to the accommodation only for a temporary thirty-day period to expire on September 6, 2016. R.34-14 at 2. The form contained boxes that Charter could check to indicate that the requested accommodation was “not related to an essential function of the employee’s job” or that the accommodation would result in “undue business hardship,” but Charter did not check either of these boxes. R.34-14 at 2.

On August 29, 2016, before the thirty-day period ended, Kimmons requested a thirty-day extension of his shift accommodation, explaining that he was working to negotiate termination of his lease with the intent to move to Milwaukee but could not be released from his lease until October. R.34-16 at 3. Charter’s Vice President of Operations, Romona Henderson, denied this request only a few hours after Kimmons submitted it. R.34-16 at 2-3. Henderson did not ask for any additional medical information or explain why Charter would not grant this thirty-day extension after approving the initial shift accommodation, instead stating simply that Kimmons should look into other ways to manage his transportation on his own. R.34-16 at 3. Kimmons explained that no public transportation to Racine was available at the hour his shift ended, but Henderson merely replied that he could look into carpooling or take public transportation partway and find additional transportation the rest of the way. R.34-16 at 2. Kimmons checked with the “bus system to see if they had transportation to Racine after 9:00 [p.m.] and they [did not]” and sought out information from Charter about other employees who lived in Racine but “was told that was confidential information.” R.30-5 at 124:19-21, 125:9-20. Charter did not offer Kimmons any alternative accommodations to assist with his cataract-related difficulties getting home from work. R.30-32 at 85:1-9.

Kimmons sent an email to Charter’s Employee Services Center asking about a mediation process to appeal the accommodation denial. R.34-19 at 2. An individual from the Employee Services Center responded that “what you are asking for is assistance with a commute, which is not required under the ADA. The Company has been kind enough to temporarily change your shift while you attempted to find alternative assistance for your commute, even though it had no legal obligation to do so.” R.34-19 at 2.

Charter’s written policies state that examples of reasonable accommodations include making changes to an employee’s schedule. R.34-15 at 3 (Charter’s ADA Interactive Process Worksheet indicating that “[a] reasonable accommodation may include . . . modifying work schedules”); R.34-18 at 21 (Charter ADA training listing “[a]llow[ing] an employee to come in earlier or later” as examples of potential accommodations). Several Charter employees testified that the company had allowed shift changes as accommodations for other employees and had also allowed employees to informally switch shifts in certain situations. R.30-32 at 60:17-61:20; R.30-34 at 52:20-53;10; R.34-5 at 43:7-23; R.34-6 at 80:20-81:15; R.34-7 at 69:1-11.

After Charter refused to extend Kimmons’ accommodation, he returned to the 12:00 p.m. to 9:00 p.m. shift on September 7, 2016, and continued to work that schedule until Charter terminated him for unrelated reasons on January 25, 2017. R.30-25; R.30-5 at 144:4-10, 148:17-23. Kimmons managed to get to and from work through a combination of public transportation and rides from his girlfriend and various friends. R.30-5 at 69:5-70:17, 149:12-20. Kimmons testified that this arrangement was difficult because his girlfriend was often “running late” to pick him up or drop him off, because she grew frustrated with his requests, and because it was “hard to ask somebody to come get [him]” given uncertainty about his schedule. R.30-5 at 67:25-68:5, 150:1-9.

On September 13, 2016, Kimmons filed a charge of discrimination asserting that Charter denied him a reasonable accommodation by refusing to grant him a shift change. R.43-1. EEOC then brought this enforcement action seeking injunctive relief and compensatory and punitive damages based on Charter’s refusal to accommodate Kimmons’ night blindness. R.1.

C. District Court Decision

The district court granted Charter’s motion for summary judgment and denied EEOC’s motion for partial summary judgment. R.60 at 1-8 (A-1-8).

Contrary to Charter’s argument on summary judgment, the district court assumed “that Kimmons’ alleged night blindness could constitute a disability under the ADA.” R.60 at 4 (A-4) (citing case law “finding disabilities where plaintiffs with night blindness introduced evidence of their difficulty seeing while driving”). The district court instead framed “[t]he dispositive question” as “whether the ADA requires an employer to accommodate an employee who can perform his job’s essential functions without such accommodation.” R.60 at 1 (A-1). In the district court’s view, this Court “disclaim[ed] any such requirement” in Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013), by stating that “‘an employer need not accommodate a disability that is irrelevant to an employee’s ability to perform the essential functions of [his] job.’” R.60 at 1, 5 (A-1, 5) (quoting Brumfield, 735 F.3d at 632).

Thus, in the district court’s view, the “critical question” under Brumfield is whether the employee’s disability “impacts his capacity to perform his job’s essential functions. If it does not, then the employer has no obligation to accommodate it.” R.60 at 5 (A-5). Applying this standard, the court concluded that Kimmons’ “case is . . . a dead ringer for Brumfield” because, “[a]s there, Kimmons’ disability was irrelevant to his ability to perform the essential functions of his job.” R.60 at 5 (A-5). According to the district court, “[n]othing in the record suggest[ed] that Kimmons’ night blindness hampered him as a retention representative in any way” and Kimmons had “testified that he had no difficulty performing any job functions while working in the Milwaukee call center.” R.60 at 5 (A-5). The court thus concluded that “as a matter of law, Charter was not required to accommodate Kimmons.” R.60 at 4 (A-4).

The district court did not adopt a bright-line rule that commute-related

accommodations are outside the ADA’s purview. R.60 at 6 (A-6) (“The issue in this case is not whether the ADA might ever compel an employer to accommodate an employee’s commute.”). Instead, it acknowledged that “[i]f the commute is an essential job function that the employee could perform if the employer reasonably accommodated his disability, then a failure-to-accommodate claim” could potentially be sustained. R.60 at 6 (A-6). But, according to the district court, because “[n]either party contend[ed] that Kimmons’ commute was an essential function of his retention representative position,” Charter had no obligation to accommodate Kimmons, regardless of whether or not the requested accommodation was reasonable. R.60 at 6-7 (A-6-7). As a result, the district court did not reach the issue of whether Kimmons’ requested accommodation was reasonable. See R.60 at 1-8 (A-1-8). Charter did not argue that it was entitled to summary judgment on the basis of undue hardship, R.28 at 1-2 & n.1, and the district court did not consider this issue either, see R.60 at 1-8 (A-1-8). Accordingly, the district court’s grant of summary judgment rested solely on its conclusion that Kimmons’ disability was irrelevant to the performance of essential job functions under Brumfield. R.60 at 1, 4-5 (A-1, 4-5).

SUMMARY OF THE ARGUMENT

James Kimmons experiences cataract-related night blindness and asked Charter for a simple shift accommodation to enable him to drive safely home from work. Although Charter initially accommodated Kimmons, it then refused to extend the accommodation for another thirty days. Charter, however, pointed to no undue hardship that would result from this extension nor did it identify any basis for determining the request to be unreasonable. Instead, Charter claimed that the ADA imposes no obligation at all on employers to provide any accommodation related in any way to an employee’s commute.

The text and legislative history of the ADA, as well as the case law of this Court and other circuits, all recognize however that an employer must, barring undue hardship, provide accommodations that allow disabled individuals to readily access the workplace, which includes traveling safely to and from the workplace so that they can perform their job. The district court nonetheless rejected the failure-to-accommodate claim here, concluding that Kimmons’ disability was not relevant to the performance of essential job functions and thus could not satisfy this Court’s decision in Brumfield. This was error.

Brumfield forecloses failure-to-accommodate claims only when the employee’s disability is completely irrelevant to the performance of essential job functions. Kimmons’ disability cannot be characterized in this manner. Far from being irrelevant to the performance of essential job functions, Kimmons’ night blindness prevented him from driving safely home after his assigned shift from the very location where Charter required that his job duties be carried out. Kimmons’ ability to safely access his work site is plainly a necessary prerequisite to the performance of his essential job functions.

If this Court reads Brumfield as foreclosing even accommodations necessary to ensure safe access to the workplace, then this Court should revisit Brumfield pursuant to Circuit Rule 40(e). See 7th Cir. R. 40(e) (permitting a panel to “overrule a prior [circuit] decision” so long as the panel’s decision “is first circulated among the active members of [the] court and a majority of them do not vote” for rehearing en banc). The text of the ADA, EEOC regulations, this Court’s precedent, and a considerable body of decisions from other circuits confirm that the ADA requires reasonable accommodations beyond those strictly necessary for the performance of essential job functions.

STANDARD OF REVIEW

This Court reviews de novo a district court’s order granting summary judgment. Nat’l Inspection & Repairs, Inc. v. George S. May Int’l Co., 600 F.3d 878, 882 (7th Cir. 2010). This Court “draw[s] all inferences in the light most favorable to . . . the nonmoving party” (here, EEOC) and “will affirm only if [it] find[s] that there is no genuine issue as to any material fact” and that the movant “is entitled to judgment as a matter of law.” Id.

ARGUMENT

The ADA requires employers to make reasonable accommodations for employees with disabilities, including those accommodations needed to make the workplace “readily accessible” to such employees. 42 U.S.C. §§ 12111(9)(A), 12112(b)(5)(A). Kimmons sought such an accommodation, but Charter denied it without any specific suggestion that his request was unreasonable or imposed an undue hardship.

The district court sanctioned Charter’s refusal to accommodate Kimmons, relying entirely on this Court’s holding in Brumfield. But the district court’s reading of Brumfield—and the court’s application of Brumfield to the facts of Kimmons’ case—was error. Brumfield forecloses failure-to-accommodate claims only when the employee’s “disability . . . is irrelevant to [the] employee’s ability to perform the essential functions of her job.”[2] 735 F.3d at 632 (emphasis added). Brumfield presented such a case because, there, no connection existed between the plaintiff’s disability and her essential job functions. Four separate psychological evaluations deemed the plaintiff—a police officer who suffered from “unspecified ‘psychological problems’”—“fit for duty,” id. at 622, 633, and the plaintiff did not identify any accommodation that would have helped her job performance in any way, see Docket, Brumfield v. City of Chi., 10-cv-4960 (N.D. Ill.), ECF No. 13 at ¶ 10 (referring generally to the employer’s failure to “take any action to accommodate plaintiff’s disability” without specifying what accommodation plaintiff requested or desired). This Court therefore emphasized that “nothing in [the plaintiff’s] complaint suggest[ed] that her disability affected her ability to do any aspect of her job.” 735 F.3d at 633. Brumfield thus stands for the narrow proposition that “the ADA does not require an employer to accommodate disabilities that have no bearing on an employee’s ability to perform the essential functions of her job.” Id. (emphasis added); see also Luckett v. Dart, No. 14-CV-6089, 2017 WL 3386117, at *11, 14 (N.D. Ill. Aug. 7, 2017) (reading Brumfield to bar accommodation claims only where the employee’s disability is “irrelevant to his ability to perform his job” or “lacks a causal connection with the accommodation he seeks”).

This Court has cited Brumfield’s holding regarding essential job functions only once, in a case that shared with Brumfield a similarly attenuated connection between the plaintiff’s disability and his ability to perform his basic job duties. In Hooper v. Proctor Health Care Inc., 804 F.3d 846 (7th Cir. 2015), this Court found the plaintiff’s failure-to-accommodate claim waived because his complaint failed to identify any “purported need or request for accommodations.” Id. at 852. This Court nevertheless went on to say that such a claim would fail based on Brumfield. Id. But in Hooper, as in Brumfield, the plaintiff’s disability was irrelevant to his ability to perform essential job functions because his doctor had “cleared [him] to return to work without accommodations.” Id. Hooper, like Brumfield, thus bars accommodation claims only where “‘the employee’s limitations do not affect her ability to perform [her] essential [job] functions’” in any way. Id. (quoting Brumfield, 735 F.3d at 633).

Neither Hooper nor Brumfield addressed a situation like Kimmons’ where the disability at issue impacted the employee’s ability to travel safely to and from the very location where his job duties were performed. Here, two medical professionals explained that Kimmons’ cataracts impaired his night vision and interfered with his ability to drive at night. Kimmons’ optometrist explained that cataracts cause diminished visual acuity that is particularly acute in the dark and recommended that Kimmons avoid night driving. R.30-55 at 75:12-14; R.30-59 at 4. And Kimmons’ primary care physician similarly noted that Kimmons’ cataracts “impair[ed] his night vision” and caused “difficulty driving after dark.” R.30-21 at 3. Kimmons, too, testified that the “glaring . . . of oncoming traffic lights” interfered with his night vision and caused him to avoid night driving entirely. R.30-5 at 30:10-12, 46:2-14. Yet, Charter assigned Kimmons a shift that ended after nightfall. In such a situation, there can be no plausible claim that the disability “is irrelevant to” or has “no bearing on” the performance of essential job functions. Brumfield, 735 F.3d at 632, 633. Instead, it is plain that Kimmons could not perform the essential functions of his job if he could not access the very location where Charter required him to carry out his job duties.

The district court did not appear to question the factual premise that Kimmons’ disability impacted his ability to get home safely from work following his assigned shift and that he requested an accommodation to overcome this barrier. See R.60 at 2 (A-2) (noting Kimmons’ testimony that his “cataracts made driving at night difficult because they caused outside light to glare and obstruct his vision”); R.60 at 4 (A-4) (noting that the parties “agree that Kimmons requested an accommodation based on” his cataracts); R.60 at 4 (A-4) (assuming that Kimmons’ night blindness could constitute a disability). Instead, the district court arrived at the conclusion that “Kimmons’ disability was irrelevant to his ability to perform the essential functions of his job,” R.60 at 5 (A-5), only by focusing myopically on whether Kimmons’ commute itself was an essential job function. The district court appeared to conclude that, because Kimmons’ commute was not itself “an essential function of his retention representative position,” his requested accommodation by definition related to “convenience” rather than “[job] performance.” R.60 at 5, 7 (A-5, 7). But this formalistic application of Brumfield in the context of accommodations needed to get to and from the workplace is at odds with the text and legislative history of the ADA, the case law of this Court and other circuits, and the core purposes the ADA seeks to fulfill.

First, the text and legislative history of the ADA make clear that the statute embraces accommodations aimed at allowing disabled individuals to access the workplace to perform their essential job functions. After all, if employees cannot access the location where their employers require them to work, they cannot work at all. The statute thus specifically envisions accommodations that promote workplace accessibility, stating that the term “reasonable accommodation” may include “making existing facilities used by employees readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12111(9)(A); see also 29 C.F.R. § 1630.2(o)(2)(i) (same). Second, the text of the ADA contemplates the exact type of accommodation Kimmons sought—namely, a modified work schedule—and the legislative history confirms that Congress intended this accommodation to be available to individuals reliant on public transportation due to mobility impairments. 42 U.S.C. § 12111(9)(B) (providing that reasonable accommodations “may include . . . modified work schedules”); H.R. Rep. No. 101-485, pt. 2, at 62-63 (1990), as reprinted in 1990 U.S.C.C.A.N. 330, 345 (acknowledging that “modified work schedules can provide useful accommodations” and that “persons who may require modified work schedules are persons with mobility impairments who depend on a public transportation system that is not currently fully accessible”).

Consistent with these principles, several courts of appeals have held that the ADA requires reasonable accommodations necessary for disabled employees to get to and from the workplace, recognizing the inherent link between such accommodations and performance of essential job functions. In Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010), just as here, an employee sought a change in her work schedule from night to day shifts because her vision impairment made it “dangerous and difficult” for her to drive to and from work at night. Id. at 498. Relying on the ADA’s text and legislative history, the Third Circuit held 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” and rejected the notion that the ADA “strictly limit[s] the breadth of reasonable accommodations to address only those problems that an employee has in performing her work that arise once she arrives at the workplace.” Id. at 505-06. In reaching this conclusion, the Third Circuit found “perplexing” the district court’s claim that the requested accommodation “had nothing to do with the work environment or the manner and circumstances under which [Colwell] performed her work,” emphasizing that “Colwell was certainly required to be at work to perform any of the functions of her job” as a cashier. Id. at 506 (citation omitted, alterations in original); see also Livingston v. Fred Meyer Stores, Inc., 388 F. App’x 738, 740-41 (9th Cir. 2010) (where employee requested modified work schedule due to vision impairment impacting night driving, concluding that employer had a duty to accommodate employee’s “limitations in getting to and from work” even though “her disability did not affect her ability to function effectively as a wine steward” once at the workplace).

Similarly, in Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995), an employee requested financial assistance to pay for a parking space adjacent to her office so that she could access the workplace despite her mobility limitations. Id. at 1513. The Second Circuit held that “there 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.” Id. at 1517. The court explained that “[i]t is clear that an essential aspect of many jobs is the ability to appear at work regularly and on time . . . and that Congress envisioned that employer assistance with transportation to get the employee to and from the job might be covered.” Id. at 1516. The court thus disagreed that Lyons’ requested accommodation was “unrelated to the ‘essential functions’ of her job” or akin to “a demand for an additional fringe benefit in the nature of a ‘personal amenity,’” explaining that “Lyons’s ability to reach her office” was instead “an essential prerequisite to her work in that position.” Id. at 1517; see also Feist v. La. Dep’t of Just., 730 F.3d 450, 453 (5th Cir. 2013) (concluding that on-site parking for employee with mobility limitations could be a reasonable accommodation needed to make the workplace “readily accessible to” the employee pursuant to 42 U.S.C.
§ 12111(9)(A), regardless of whether “the parking situation limited her ability to perform the essential functions of her job” (internal quotation marks omitted)).

Finally, in Burnett v. Ocean Properties, Ltd., 987 F.3d 57 (1st Cir. 2021), the First Circuit affirmed a jury’s finding that installation of push-button doors to allow a paraplegic employee to get his wheelchair through his office building’s heavy wooden doors constituted a reasonable accommodation, concluding that the employee’s ability to perform his job functions once inside the office did not relieve the employer of its duty to facilitate access to the office in the first instance. Id. at 61, 69. These decisions thus reflect the straightforward principle—overlooked by the district court here—that employees’ ability to get to and from the location where they carry out their essential job functions is a necessary prerequisite to performing those functions.

This Court, too, has recognized this inherent link between being present at the workplace—where, as here, an employee cannot perform the job remotely[3]—and performing essential job functions. See, e.g., Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899-900 (7th Cir. 2000) (“[c]ommon sense dictates” that if an employee “is not present” at the workplace, “he is usually unable to perform his job”); Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir. 1999) (except “where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise” (internal quotation marks and citations omitted)).

In keeping with this principle, this Court has made clear that the ADA requires accommodations necessary for disabled employees to access the workplace to perform their essential job functions. And this Court has rejected the notion that an employee’s ability to perform essential job functions once at the workplace relieves an employer of its obligation to provide accommodations allowing the employee to access the workplace in the first instance. In Filar v. Board of Education of City of Chicago, 526 F.3d 1054 (7th Cir. 2008)—which predated Brumfield—a substitute teacher requested that she be assigned only to schools that were easily accessible from bus stops because of her mobility limitations. Id. at 1059. The district court dismissed the claim on the basis that the employee’s “proximity to public transportation d[id] not affect the way in which she teaches Polish in her capacity as a substitute teacher.” Id. at 1066 (citation omitted). This Court disagreed with the district court’s conclusion that “[t]he fact that Filar’s hip condition did not affect her ability to teach” should “end the matter.” Id. at 1067. Instead, this Court explained, the ADA imposes a duty on employers to “‘mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities,’” and Filar could still be eligible for such an accommodation despite her ability to perform her essential job functions once at the workplace as long as that accommodation was reasonable. Id. (quoting 42 U.S.C. § 12111(9)(A)); see also id. at 1067-68 (finding requested accommodation unreasonable due to unrelated concerns like administrative burden). Similarly, in EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005), this Court concluded that
§ 12111(9)(A) obligated the employer to make its facility accessible to an employee with mobility limitations who requested to park closer to the store where she worked and to take a short cut through the store to her workstation, even though the parties agreed that the employee “was able to perform all of the aspects of her job but simply had trouble getting to and from her workstation.” Id. at 802-03. These decisions thus make clear that the ADA requires accommodations necessary for disabled employees to access the workplace, even where those employees can perform all essential functions without accommodation once at the workplace.

This Court’s commute-related decisions are also at odds with the district court’s insistence here that Kimmons’ commute itself be an essential job function. Instead, this Court has analyzed the reasonableness of commute-related accommodations without even considering whether the commute itself constituted an essential job function, much less imposing a requirement to that effect as the district court did here. See Yochim v. Carson, 935 F.3d 586, 591-92 (7th Cir. 2019) (evaluating reasonableness of employer’s response to telework request to accommodate employee’s mobility limitations that impeded public transportation access with no suggestion that public transportation use must itself be essential job function); Cloe v. City of Indianapolis, 712 F.3d 1171, 1176-79 (7th Cir. 2013) (evaluating reasonableness of employer’s response to request for parking space near office to accommodate employee’s mobility limitations without suggesting that parking itself must be essential job function), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016); see also Gile v. United Airlines, Inc., 213 F.3d 365, 372-73 (7th Cir. 2000) (upholding jury verdict finding that employer violated ADA by denying change to day shift in order to alleviate employee’s insomnia that impeded job performance while at work); Colwell, 602 F.3d at 505 n.8 (citing Gile for the proposition that this Court has “at least assumed the existence of . . . an obligation” to “accommodate a disability-related problem outside of the workplace that influences an employee’s ability to perform the essential functions of her job while at work”).

District courts within this Circuit have also eschewed a narrow focus on whether an employee’s commute itself constitutes an essential job function, instead acknowledging that the commute is typically a necessary prerequisite to the performance of basic job duties. See Fuller v. Belleville Area Cmty. Coll. Dist. No. 522, No. 3:18-cv-01123-GCS, 2020 WL 1287743, at *7 (S.D. Ill. Mar. 18, 2020) (rejecting employer’s reliance on Brumfield where employee requested to work at closer worksite due to cataract-related driving difficulties, explaining that if the employee “cannot get to her work location, she cannot perform her job’s essential functions”); Hendon v. Wis. Bell, Inc., No. 16-C-0941, 2018 WL 1885678, at *3 (E.D. Wis. Apr. 19, 2018) (finding unconvincing the argument that employee’s disability-related driving limitations “did not affect her ability to perform the essential functions of her job” but instead “affected only her ability to commute to her job,” given that “an employer is not excused from providing an otherwise reasonable accommodation to an employee simply because it relates to the employee’s ability to get to and from work rather than his or her ability to perform while at work”).

Brumfield did not express any disagreement with this Court’s prior precedent, much less indicate an intent to overrule this precedent through use of Circuit Rule 40(e).[4] Because “[o]verruling [established precedent] requires recognition of the decision to be undone and circulation to the full court under Circuit Rule 40(e),” Brooks v. Walls, 279 F.3d 518, 522 (7th Cir. 2002), Brumfield should not be interpreted, as the district court did here, in a manner that conflicts with this Court’s decisions recognizing that the ADA requires accommodations necessary for a disabled employee to access the workplace even where the employee can perform all essential job functions once at the workplace. See United States v. Polichemi, 201 F.3d 858, 865 (7th Cir. 2000) (reading later panel decision in a manner that avoided conflict with a prior panel decision because later decision “did not purport to overrule” the prior decision and could not “have done so . . . without undergoing circulation to the full court under the procedures established in Circuit Rule 40(e)”), vacated in part on other grounds on reh’g, 219 F.3d 698 (7th Cir. 2000).

The district court’s rigid application of Brumfield in the context of accommodations needed to make the workplace “readily accessible” under § 12111(9)(A) would lead to untenable results if allowed to stand, foreclosing even the most fundamental accommodations necessary to promote workplace accessibility. For example, under the district court’s logic, an employee who required modification to his office doors in order to enter the workplace would have no entitlement to such an accommodation unless use of the doors itself constituted an essential job function. But the case law imposes no such requirement. See, e.g., Burnett, 987 F.3d at 69 (affirming jury verdict that ADA required accommodation to allow wheelchair-bound employee to enter office doors despite employee’s ability to perform job duties once inside the workplace); EEOC v. Kaiser Found. Health Plan of Ga., Inc., No. 19-CV-5484-AT, 2021 WL 3508533, at *5 (N.D. Ga. Aug. 9, 2021) (ADA required accommodation to allow employee to avoid using revolving office doors that exacerbated her claustrophobia, regardless of whether she had difficulty performing essential job functions once inside the workplace). And the ADA’s core objectives of ensuring “equality of opportunity” and “full participation” in the workplace, 42 U.S.C. § 12101(a)(7), do not countenance a result that would leave disabled employees stranded outside their workplace doors.

Thus, the text and legislative history of the ADA, the decisions of this Court and other circuits, and the ADA’s core purposes all establish that employers must provide accommodations that allow disabled employees to readily access the location where their essential job functions are performed. This obligation exists even where the disabled employee in question manages to access the workplace without an accommodation but does so only with great difficulty. See, e.g., Colwell, 602 F.3d at 499, 505-06 (employee with vision impairment that made night driving dangerous could be entitled to shift-change accommodation where she “assert[ed] that shuttling her to and from work for night shifts created a hardship for her family,” even though she “did not miss a day of work because of her vision loss except for medical treatment”); Lyons, 68 F.3d at 1514, 1517 (employee stated failure-to-accommodate claim by alleging that employer failed to pay for nearby parking space to allow her to access workplace despite mobility limitations, even though employee was able to attend work without accommodation by paying for her own parking space); Fuller, 2020 WL 1287743, at *7 (rejecting argument that employee who requested to work at closer worksite due to cataract-related driving difficulties required “no reasonable accommodation because she continues to work at the [more distant] office without a reasonable accommodation,” emphasizing that employee had “found [only] a temporary solution” that appeared to “no longer [be] available or . . . sustainable”). Kimmons need not show that “it was physically impossible” to get to and from the workplace “before defendant was obligated to provide [him] with an accommodation.” Sturz v. Wis. Dep’t of Corr., 642 F. Supp. 2d 881, 888 (W.D. Wis. 2009) (rejecting this as a “disturbing standard for determining whether an accommodation is reasonable”). It thus poses no bar to the failure-to-accommodate claim here that, after Charter denied his accommodation request, Kimmons managed to get home from work at night by depending on friends who were often unreliable or exasperated by his requests. R.30-5 at 67:25-68:5, 150:1-9. The district court thus erred by holding that Charter had no obligation to provide any accommodation to Kimmons to enable him to drive safely home from the workplace following his assigned shift.

If this Court concludes that Brumfield forecloses even those accommodations necessary to allow safe access to the workplace, then this Court should revisit Brumfield pursuant to Circuit Rule 40(e). The text of the ADA, EEOC regulations, this Court’s prior precedent, and a considerable body of decisions from other circuits all indicate that the ADA’s reasonable accommodation mandate extends beyond performance of essential job functions.

1. The text of the ADA makes clear that reasonable accommodations may be required even when an employee can perform essential job functions without them.

The text of the ADA’s reasonable accommodation provision “gives no indication that an accommodation must facilitate the essential functions of one’s position.” Feist, 730 F.3d at 453; see 42 U.S.C. § 12112(b)(5)(A) (prohibiting “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” absent undue hardship). The statute gives several examples of what may constitute a “reasonable accommodation” but nowhere limits the definition to only those accommodations required for performance of essential job functions. Id. § 12111(9). While it is true that the ADA contemplates accommodations that allow an individual to “perform the essential functions of [an] employment position,” id. § 12111(8), the ADA’s concerns extend more broadly to other goals, such as making the workplace “readily accessible” to disabled employees, id. § 12111(9)(A), and ensuring equal benefits, privileges, and opportunities in the workplace, see id. § 12112(a) (prohibiting discrimination in “advancement, . . . job training, and other terms, conditions, and privileges of employment”); id. § 12112(b)(1) (prohibiting limiting or segregating individuals because of disability); id. § 12101(a)(5) (expressing concern that “individuals with disabilities continually encounter various forms of discrimination, including . . . relegation to lesser services, programs, activities, benefits, jobs, or other opportunities”).

Moreover, the statute defines the term “qualified individual” to include those who can perform essential job functions “without reasonable accommodation.” Id. § 12111(8) (emphasis added). The fact that the statute protects such individuals from “discriminat[ion] . . . on the basis of disability,” id. § 12112(a), and specifically defines such discrimination as including the failure to “mak[e] reasonable accommodations,” id. § 12112(b)(5)(A), forecloses any argument that individuals who can perform essential job functions without an accommodation are ineligible to receive one. Indeed, prior to Brumfield, this Court relied on this statutory language to reach precisely this conclusion. In Filar, this Court explained that because the ADA defines the term “qualified individual” as an individual “‘who, with or without reasonable accommodation, can perform the essential functions of the employment position,’” an employee’s ability to “‘perform the essential functions’ of [her] . . . position despite her disability and ‘without reasonable accommodation’” does not prevent her from bringing a failure-to-accommodate claim. 526 F.3d at 1067 (quoting 42 U.S.C. § 12111(8)). Thus, this Court reasoned, it would run counter to the textual definition of a “qualified individual” to require the plaintiff to show as a prerequisite to sustaining a failure-to-accommodate claim that she was unable to perform the essential functions of her teaching position without an accommodation. Id.

Other courts have also relied on the statutory definition of a “qualified individual” to reach this same conclusion. In Bell v. O’Reilly Auto Enterprises, LLC, 972 F.3d 21 (1st Cir. 2020), cert. denied, 141 S. Ct. 2755 (2021), the First Circuit held that “[t]he district court erred . . . when it instructed the jury that, for a disabled employee to make out a failure-to-accommodate claim, he must demonstrate that he needed an accommodation to perform the essential functions of his job.” Id. at 24. In the First Circuit’s view, by defining a “qualified individual” as one who could perform the essential functions of the employment position “‘with or without reasonable accommodation,’” the ADA made clear that “[a]n employee who can . . . perform the essential functions of his job without accommodation remains eligible to request and receive a reasonable accommodation.” Id. (quoting 42 U.S.C. § 12111(8)). Multiple district courts have also drawn the same conclusion from this statutory language. See, e.g., Scalera v. Electrograph Sys., Inc., 848 F. Supp. 2d 352, 366 (E.D.N.Y. 2012) (reading this statutory language as indicating that “the requested accommodations d[o] not necessarily have to go to essential functions of the job”); EEOC v. Life Techs. Corp., No. WMN-09-2569, 2010 WL 4449365, at *5 (D. Md. Nov. 4, 2010) (“Implicit in th[e] definition” of a “qualified individual” is “the expectation that some accommodations are provided to do more than just permit the qualified individual with a disability to perform the essential functions of the position.”).

This Court acknowledged in Brumfield that the statutory definition of a “qualified individual” includes those who can perform essential job functions even without an accommodation but emphasized that the ADA’s reasonable accommodation requirement applies only to “otherwise qualified individuals.” 735 F.3d at 632; see also 42 U.S.C. § 12112(b)(5)(A) (prohibiting “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”). Thus, Brumfield reasoned, while “the ADA’s other anti-discrimination provisions protect all qualified individuals, the reasonable-accommodation requirement applies only to the known physical or mental limitations of otherwise qualified individuals.” 735 F.3d at 632. And the term “otherwise qualified individual,” according to Brumfield, refers to those individuals who are qualified “on paper” but cannot perform the essential functions of their job without an accommodation. Id. This is because, in Brumfield’s view, individuals who are both qualified on paper and able to perform essential job functions without an accommodation are “qualified for the position in every relevant respect” and thus cannot be said to be “‘otherwise qualified.’” Id. (quoting 42 U.S.C. § 12112(b)(5)(A)).

There is no textual support, however, for reading the term “otherwise qualified individual” in this manner. As noted above, supra at 23, Congress expressly protected individuals who can perform essential job functions “without accommodation” from “discriminat[ion] . . . on the basis of disability,” 42 U.S.C. §§ 12111(8), 12112(a), and defined such discrimination as including the failure to provide reasonable accommodations, id. § 12112(b)(5)(A). It defies logic to think that Congress’s addition of the undefined term “otherwise” in § 12112(b)(5)(A) actually signaled a contrary intent to exclude such individuals from the statute’s reasonable accommodation protections. To the contrary, Congress can be expected to “speak clearly” before it “includes exceptions in statutes that serve to undermine broader statutory purposes.” Cal. Dep’t of Toxic Substances Control v. Westside Delivery, LLC, 888 F.3d 1085, 1098 (9th Cir. 2018). Indeed, we are aware of no other circuit that has followed Brumfield in concluding that Congress intended such a drastic departure from the ADA’s core purposes when it used the word “otherwise” in § 12112(b)(5)(A).

Nor is Brumfield’s reading of the term “otherwise” necessary to avoid rendering that term superfluous. Congress’s use of a particular phrase is not “superfluous if Congress included it to remove doubt” as to a particular element of the statute. Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013). And, here, as EEOC’s interpretive guidance explains,[5] Congress’s use of the term “otherwise qualified” in § 12112(b)(5) was simply “intended to make clear that the obligation to make reasonable accommodation is owed only to an individual with a disability who is qualified within the meaning of [29 C.F.R.] § 1630.2(m) in that he or she satisfies all the skill, experience, education, and other job-related selection criteria.” 29 C.F.R. pt. 1630, app. § 1630.9; see 29 C.F.R. § 1630.2(m) (requiring that individuals satisfy “the requisite skill, experience, education, and other job-related requirements of the employment position” to be “qualified”). For example, “if a law firm requires that all incoming lawyers have graduated from an accredited law school and have passed the bar examination,” an “individual with a visual impairment who has not met these selection criteria” would not be “‘otherwise qualified’ for the position” and would not be “entitled to a reasonable accommodation.” 29 C.F.R. pt. 1630, app. § 1630.9. In other words, Congress used the term “otherwise qualified” simply to “remove doubt,” Marx, 568 U.S. at 385, that an employer might have to accommodate an individual who patently lacked the minimum qualifications for the job.

To say that an individual is “otherwise qualified,” then, means that the individual meets the statutory definition of a “qualified individual” (i.e., can perform the essential functions of the job either with or without a reasonable accommodation), and also “otherwise” meets the employer’s job-related selection criteria. See, e.g., Bay v. Cassens Transp. Co., 212 F.3d 969, 975-76 (7th Cir. 2000) (“We therefore find that [plaintiff] was not ‘otherwise qualified’ under the ADA because he lacked the necessary DOT certification” required for the position.); Johnson v. Bd. of Trs. of Boundary Cnty. Sch. Dist. No. 101, 666 F.3d 561, 565-66 (9th Cir. 2011) (“[U]nless a disabled individual independently satisfies the job prerequisites, she is not ‘otherwise qualified,’ and the employer is not obligated to furnish any reasonable accommodation . . . .”); Wilkerson v. Shinseki, 606 F.3d 1256, 1263 (10th Cir. 2010) (individual was not “otherwise qualified for employment as a boiler room operator” because he “failed to meet the minimum physical requirements of the position”) (Rehabilitation Act). Contrary to Brumfield’s reasoning, then, an individual who is already able to perform the essential functions of the job without an accommodation would not necessarily be “qualified for the position in every relevant respect,” 735 F.3d at 632, because that individual could lack the requisite skills, education, or experience to satisfy the employer’s selection criteria. Borrowing from the example in EEOC’s guidance, a lawyer with a vision impairment who required an accommodation to assist him with navigating entry to his office but who could perform his legal duties without this accommodation would not be “qualified for the position in every relevant respect,” id., if he lacked required credentials like graduation from an accredited law school. See 29 C.F.R. pt. 1630, app.
§ 1630.9.

In cases where there is no dispute about whether an employee meets the minimum selection criteria for the position, there is no meaningful distinction between the term “otherwise qualified individual” in § 12112(b)(5)(A) and the term “qualified individual” in § 12111(8), and indeed courts have understood those terms to be functionally equivalent in that context. See, e.g., Whitaker v. Wis. Dep’t of Health Servs., 849 F.3d 681, 684 (7th Cir. 2017) (concluding that “[a]n employee is ‘otherwise qualified’ when she is capable of performing the ‘essential functions’ of the job with or without a reasonable accommodation” (citing Brumfield, 735 F.3d at 631)); Watson v. Lithonia Lighting, 304 F.3d 749, 753 (7th Cir. 2002) (“A person is ‘otherwise qualified’ within the meaning of the ADA only if she can perform . . . [her job] (with or without an accommodation).”); Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1284-85 (7th Cir. 1996) (analyzing whether plaintiff was an “otherwise qualified individual” by determining whether he had shown he was a “qualified individual” within the meaning of § 12111(8)); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1258 (11th Cir. 2001) (explaining that the plaintiff “was ‘otherwise qualified’ for [his] job if he could perform its essential functions with or without reasonable accommodation” (citing 42 U.S.C. § 12111(8)); Lyons, 68 F.3d at 1514 (“‘[O]therwise qualified’ means that the individual, ‘with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.’” (quoting 42 U.S.C. § 12111(8))). There is thus no basis to read the term “otherwise qualified individual,” as Brumfield does, as limited to only those individuals who require an accommodation to allow them to perform the essential functions of their job.

Brumfield’s interpretation of the term “otherwise qualified individual” also conflicts with EEOC’s regulation at 29 C.F.R. § 1630.2(o)(1), which makes clear that the ADA requires accommodations beyond those necessary for performance of essential job functions. Brumfield asserted that this regulation “defines ‘reasonable accommodation’ to refer to workplace adjustments ‘that enable an individual with a disability who is qualified to perform the essential functions of that position,’” but this selectively quotes the relevant regulation. 735 F.3d at 633 (quoting 29 C.F.R. § 1630.2(o)(1)(ii)). While subsection (ii) of the regulation, which Brumfield cited, refers to accommodations that enable an employee “to perform the essential functions” of a position, subsections (i) and (iii) contemplate accommodations needed to allow an individual to “be considered for . . . [a desired] position” or to “enjoy equal benefits and privileges of employment,” neither of which necessarily pertain to the performance of essential job functions. 29 CF.R.
§ 1630.2(o)(1)(i)-(iii). Thus, an accommodation “that enables an individual to perform the essential functions of a position is only one of three categories of reasonable accommodation” that the regulation contemplates. Feist, 730 F.3d at 453; see also Sanchez v. Vilsack, 695 F.3d 1174, 1181-82 (10th Cir. 2012) (finding that this regulation “contemplate[s] accommodations that are wholly unrelated to the essential functions of a job” and refusing to “split with [EEOC] . . . by adopting a rule that accommodations are required only if an employee cannot perform the essential functions of her job”) (Rehabilitation Act).

This regulation is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it was “promulgated in the exercise of [the rulemaking] . . . authority” granted to EEOC by Congress in 42 U.S.C. § 12116, see White v. Scibana, 390 F.3d 997, 1000 (7th Cir. 2004) (citation omitted), and because it plainly reflects a “permissible construction of the statute,” Chevron, 467 U.S. at 843; see also Feist, 730 F.3d at 453 & n.4 (relying on this regulation and suggesting that it should be entitled to Chevron deference); Life Techs., 2010 WL 4449365, at *4 (relying on this regulation for conclusion that employers must provide accommodations beyond those that “minimally permit disabled employees to do their job” and finding that this regulation is entitled to Chevron deference). Thus, to the extent that this Court finds the statutory text ambiguous, it should defer to EEOC’s regulation that interprets the statute to require accommodations for purposes beyond performance of essential job functions.

3. Brumfield conflicts with the precedent of this and other courts.

Brumfield’s holding conflicts not only with EEOC’s regulation at 29 C.F.R. § 1630.2(o)(1) but also with this Court’s prior precedent. In Brumfield, the employer did not argue that the employee’s disability was irrelevant to performance of essential job functions, and thus the parties did not brief this Court’s prior precedent regarding this issue. Docket, Brumfield v. City of Chi., 11-3836 (7th Cir.), R.5, R.12. But, as noted above, supra at 23-24, this Court in Filar had adopted an interpretation of the statutory text that directly contradicts Brumfield’s, concluding that disabled employees remain eligible for an accommodation even when they “can ‘perform the essential functions’ of . . . [the] position . . . ‘without reasonable accommodation.’” 526 F.3d at 1067 (quoting 42 U.S.C. § 12111(8)). And this Court’s decisions interpreting the Rehabilitation Act had concluded prior to Brumfield that an employer’s accommodation duty extends beyond the performance of essential job functions. Fedro v. Reno, 21 F.3d 1391, 1395-96 (7th Cir. 1994) (Rehabilitation Act envisions accommodations needed not just for performance of essential job functions but also for purposes such as “pursu[ing] therapy or treatment for [a] handicap” and “enjoy[ing] the privileges and benefits of employment equal to those enjoyed by non-handicapped employees”); McWright v. Alexander, 982 F.2d 222, 227 (7th Cir. 1992) (“We also reject the district court’s suggestion that McWright’s claim was defective because the accommodation she requested was not related to any specific condition of her work. . . . The Rehabilitation Act calls for reasonable accommodations that permit handicapped individuals to lead normal lives, not merely accommodations that facilitate the performance of specific employment tasks.” (internal quotation marks and citation omitted)); see also Sanchez, 695 F.3d at 1180-81 (citing Fedro and McWright for the proposition that “[t]he Seventh Circuit has perhaps the most expansive jurisprudence” supporting the notion that an employer’s accommodation duty extends beyond performance of essential job functions). Where, as with Brumfield, a decision is “inconsistent with the majority of [this Court’s] cases,” reconsideration pursuant to Circuit Rule 40(e) is appropriate. Spiegla v. Hull, 371 F.3d 928, 942 & n.7 (7th Cir. 2004); see also United States v. Howze, 343 F.3d 919, 924 (7th Cir. 2003) (invoking Circuit Rule 40(e) where decision at issue was “out of line . . . with how this circuit has analyzed related issues”).

Other circuits have also declined to limit the scope of an employer’s accommodation duty to the performance of essential job functions, with one circuit specifically rejecting Brumfield. Stokes v. Nielsen, 751 F. App’x 451, 454 (5th Cir. 2018) (per curiam) (finding district court’s reliance on Brumfield to be error because “our circuit has explicitly rejected the requirement that requested modifications must be necessary to perform essential job functions to constitute a reasonable accommodation”); see also Bell, 972 F.3d at 24 (holding that an employee who can “perform the essential functions of his job without accommodation remains eligible to request and receive a reasonable accommodation”); Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 239 (D.C. Cir. 2018) (rejecting argument that no accommodation was required where plaintiff “could perform the essential functions of his job without accommodation”); Feist, 730 F.3d at 454 (holding that “the district court erred in requiring a nexus between the requested accommodation and the essential functions of [the employee’s] position.”); Sanchez, 695 F.3d at 1182 (refusing to “split with . . . sibling circuits by adopting a rule that accommodations are required only if an employee cannot perform the essential functions of her job”); Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993) (“[E]mployers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of their job.”) (Rehabilitation Act). The fact that Brumfield is “out-of-step with the outcomes reached in the vast majority of cases outside [this] . . . circuit” provides compelling grounds for reconsideration under Circuit Rule 40(e). Humphries v. CBOCS W., Inc., 474 F.3d 387, 403 & n.12 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008); see also Howze, 343 F.3d at 924 (“[A] circuit that stands alone against the considered view of coordinate courts should be willing to rethink.”).

Adopting the conclusion that the ADA’s reasonable accommodation mandate extends beyond performance of essential job functions does not mean that an employer must grant every request by an individual for a reasonable accommodation. An employer has no obligation to provide an accommodation to an employee who does not have an “actual disability” but is instead only “regarded as” having a disability. 29 C.F.R. § 1630.2(o)(4). Nor must an employer provide “modifications that are primarily for the personal benefit of the individual” or “any amenity or convenience that is not job-related.” 29 C.F.R. pt. 1630, app. § 1630.9. An employer also has no obligation to provide an employee with the specific “accommodation he requests or prefers,” Gile, 95 F.3d at 499, or to provide an accommodation that would impose undue hardship on the employer, 42 U.S.C. § 12112(b)(5)(A); see also id. § 12111(10)(A) (defining undue hardship as “an action requiring significant difficulty or expense”). But none of these concerns are implicated in this case, where Kimmons has an actual disability, where the requested accommodation served the job-related purpose of allowing him to drive safely home from his workplace following his assigned shift, and where the employer neither proposed an alternative accommodation nor raised undue hardship as a basis for entitlement to summary judgment.

Thus, because “[t]he language of the ADA, and all available interpretive authority, indicate” that “reasonable accommodations are not restricted to modifications that enable performance of essential job functions,” Feist, 730 F.3d at 453, this Court should revisit Brumfield’s contrary holding if necessary to sustain the accommodation claim here. This Court should acknowledge that the purpose of a reasonable accommodation extends more broadly to allowing disabled employees to enjoy “the same workplace opportunities that those without disabilities automatically enjoy.” US Airways, Inc., v. Barnett, 535 U.S. 391, 397 (2002); see also 29 C.F.R. pt. 1630, app. § 1630.2(o) (“[A]n accommodation is any change . . . that enables an individual with a disability to enjoy equal employment opportunities.”). Here, even if this Court finds that Kimmons’ ability to travel safely to and from the workplace is not strictly necessary for his performance of essential job functions under a rigid reading of Brumfield, his ability to do so certainly enables enjoyment of equal employment opportunities. See Burnett, 987 F.3d at 69 (ability to access workplace was necessary for employee “to reach a level playing field as an employee without a disability”); Kaiser, 2021 WL 3508533, at *6 (disabled employee’s “ability to enter her work facility” was critical to allowing her “equal access” to workplace opportunities enjoyed by “non-disabled employees”). Kimmons’ requested accommodation thus falls squarely within the scope of the ADA’s reasonable accommodation mandate.

CONCLUSION

For the foregoing reasons, the judgment should be reversed.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIfer s. goldstein

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Chelsea C. Sharon

CHELSEA C. SHARON

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity
Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2889

chelsea.sharon@eeoc.gov

April 11, 2022

[1] “R.#” refers to the district court docket entry. The page numbers refer to the CM/ECF numbers appended to each document except in the case of deposition testimony, where they refer to the internal pagination given by the reporting company. Where a cited document is included in the attached short appendix, “A-#” refers to the pertinent page number(s) in the appendix.

[2] Brumfield addressed a claim brought under the Rehabilitation Act but applied the standards governing ADA claims. 735 F.3d at 630 (recognizing that the Rehabilitation Act generally “incorporates the standards applicable to Title I of the ADA”).

[3] Technological advances have made it possible for many jobs to be performed remotely, but in this case Charter never suggested that Kimmons could have performed his essential duties from home.

[4] It is true, as the district court pointed out, R.60 at 6 (A-6), that Brumfield stated that “[t]he Sears formulation should not be understood to enable a plaintiff to state a failure-to-accommodate claim against her employer even though she was able to perform all essential functions of her job without regard to her physical or mental limitations.” 735 F.3d at 631-32. But Brumfield’s reference to “[t]he Sears formulation” concerned only the “elements of a failure-to-accommodate claim” articulated in Sears. Id. at 631. Brumfield explained that Sears’ formulation of the first element of a failure-to-accommodate claim—namely, that “plaintiff must be a qualified individual with a disability”—contained a “certain imprecision” because it did not make clear that only those individuals who required an accommodation to perform their essential job functions were eligible to receive an accommodation. Id. However, Brumfield nowhere disputed Sears’ holding that an employee who required an accommodation to access the workplace was eligible for an accommodation despite the fact that she could “perform all of the aspects of her job” without any accommodation once inside the workplace. Sears, 417 F.3d at 802.

[5] Although EEOC interpretive guidance is “not entitled to full . . . deference” under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), “it does reflect a body of experience and informed judgment to which courts and litigants may properly resort for guidance” that is entitled to deference under the “Skidmore [v. Swift & Co., 323 U.S. 134 (1944)] standard.” Richardson v. Chi. Transit Auth., 926 F.3d 881, 889 (7th Cir. 2019) (internal quotation marks and citations omitted) (alterations in original).