Equal Employment Opportunity Commission v. Charter Communications , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1231
EQUAL EMPLOYMENT O PPORTUNITY C OMMISSION ,
Plaintiff-Appellant,
v.
C HARTER C OMMUNICATIONS , LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:18-cv-01333-BHL — Brett H. Ludwig, Judge.
____________________
A RGUED S EPTEMBER 22, 2022 — DECIDED J ULY 28, 2023
____________________
Before WOOD, HAMILTON , and S T. EVE, Circuit Judges.
HAMILTON , Circuit Judge. In this case we apply the Ameri-
cans with Disabilities Act to an employee whose disability
made it difficult to commute safely to his workplace. The
main question is whether the employee was entitled to a mod-
ified work schedule as an accommodation to make his com-
mute safer. We conclude that the answer is “maybe” and that
the case should not have been resolved on summary judg-
ment.

-- 1 of 26 --

2 No. 22-1231
To summarize, James Kimmons worked in a call center for
defendant Charter Communications. Cataracts in both eyes
made his vision blurry and made seeing in the dark difficult,
and thus made nighttime driving unsafe. Public transit was
not an option on his schedule. Kimmons asked for an earlier
work schedule to reduce his nighttime driving for his long
drive home from work. Charter granted his first request for a
thirty-day change but denied his request to extend the sched-
ule. Alleging that Charter unlawfully failed to accommodate
Kimmons’ disability, the Equal Employment Opportunity
Commission filed this suit. The district court granted sum-
mary judgment to Charter, holding that the employer had no
obligation to accommodate Kimmons’ commute because his
disability did not affect his ability to perform any essential
function of his job once he arrived at the workplace. EEOC v.
Charter Commc’ns LLC, No. 18-cv-1333-bhl, 2021 WL 5988637
(E.D. Wis. Dec. 17, 2021).
The broad question here is whether an employee with a
disability can be entitled to a work-schedule accommodation
to allow him to commute more safely. Different circuits have
articulated different approaches, though as we explain below,
we do not disagree with the results they have reached. Com-
pare Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010)
(reversing summary judgment for employer; employee’s vi-
sion problems made driving at night dangerous, and ADA
could require schedule change to accommodate disability),
and Lyons v. Legal Aid Society, 68 F.3d 1512, 1516–17 (2d Cir.
1995) (reversing dismissal on pleadings; employee’s difficulty
in walking could require accommodation in the form of park-
ing space near work), with Unrein v. PHC-Fort Morgan, Inc.,
993 F.3d 873, 878–79 (10th Cir. 2021) (affirming judgment for
employer; where employee became legally blind and had

-- 2 of 26 --

No. 22-1231 3
long commute, ADA did not require employer to allow un-
predictably flexible schedule depending on employee’s abil-
ity to obtain rides), and Regan v. Faurecia Automotive Seating,
Inc., 679 F.3d 475, 479–80 (6th Cir. 2012) (affirming summary
judgment for employer; employee’s narcolepsy affecting
safety of long commute posed problem outside work environ-
ment, so ADA did not require accommodation).
Based on the ADA’s language, its history, and our circuit’s
precedents, and taking guidance from other circuits, we de-
cline to adopt a bright-line rule to the effect that an employer
never has a duty of reasonable accommodation under the
ADA regarding how its employees with disabilities get to
work. We have no doubt that getting to and from work is in
most cases the responsibility of an employee, not the em-
ployer. But if a qualified employee’s disability interferes with
his ability to get to work, the employee may be entitled to a
work-schedule accommodation if commuting to work is a
prerequisite to an essential job function, such as attendance in
the workplace, and if the accommodation is reasonable under
all the circumstances. The requested accommodation here, a
second thirty-day change to the employee’s work schedule,
was not, at least as a matter of law, unreasonable given Kim-
mons’ circumstances and his job with this particular em-
ployer. His vision impairment interfered with commuting to
work safely, and attendance was an essential function of his
job. There is also a genuine dispute of material fact as to
whether Kimmons was actually disabled.
Before going further, we must note that the parties, the
district court, and we have approached this case as one in
which Kimmons’ physical presence at the workplace was an
essential function of the job. During the Covid-19 pandemic,

-- 3 of 26 --

4 No. 22-1231
of course, many employers and tens of millions of employees
found ways to accomplish work without having many em-
ployees physically present at the workplace. We do not ad-
dress here issues about whether and when physical presence
is an essential job function.
I. Factual and Procedural Background
We review the district court’s summary judgment decision
de novo, viewing all evidence and drawing all reasonable in-
ferences in the non-moving party’s favor. EEOC v. Sears, Roe-
buck & Co., 417 F.3d 789, 796 (7th Cir. 2005) (Sears II). We may
affirm summary judgment only if the record shows “no gen-
uine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. Kimmons’ Vision Impairment
James Kimmons was diagnosed in 2016 with early cata-
racts in the center of his vision that might qualify for surgery.
Although Kimmons’ cataracts were rated as mild, even mild
cataracts at the center of a person’s vision can cause problems.
In low-light conditions, traffic lights glare, and road objects
blur. An optometrist recommended that even if he wore
glasses, Kimmons ought to avoid driving at night.
B. Kimmons’ Request for an Accommodation
In 2016, Kimmons lived in Racine, Wisconsin, and began
working at Charter’s call center in Milwaukee, a one-hour
drive away. Kimmons’ shift started at 12:00 PM and ended at
9:00 PM, so his commute home required nighttime driving.
To reduce the hazard of driving after dark, Kimmons asked
Charter to modify his work schedule in August 2016. He
asked to start earlier and leave earlier. Charter granted his re-
quest, allowing him to start at 10:00 AM and end at 7:00 PM,

-- 4 of 26 --

No. 22-1231 5
but for only thirty days. Though not a perfect solution, the
accommodation at least allowed Kimmons to be off the high-
way sometime before dark at that time of year.
Before the thirty days ended, Kimmons asked to extend
his modified schedule for another thirty days while he tried
to move closer to the workplace. Charter’s internal policy per-
mitted work-schedule changes, but Charter summarily de-
nied this request the same day. When Kimmons appealed the
company’s decision, the company responded that “assistance
with your commute” 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.” Charter recommended that Kimmons try public trans-
portation or carpooling with other employees who lived near
him, and “consider all of your own options to manage your
transportation.”
Back to his later work schedule, Kimmons tried other op-
tions for commuting. He tried public transportation, but a
check with the local bus system confirmed that no buses op-
erated after 9:00 PM. He tried carpooling with other employ-
ees. But when Kimmons asked the company for names of
other employees who lived near him, the company said the
information was confidential. As for other options, it was clear
that a taxi or ride-share service would cost more money than
Charter was paying him. Kimmons alleges there was never a
time he worked in the Milwaukee call center when he drove
himself to the office. Instead, through a combination of public
transportation and friends, Kimmons managed to get to
work, a travel arrangement that was frequently unreliable.
Because Kimmons discovered he could not afford it, he

-- 5 of 26 --

6 No. 22-1231
ultimately did not move to Milwaukee. For unrelated reasons,
Kimmons’ employment with Charter ended in January 2017.
C. The District Court Proceedings
Kimmons filed a charge with the Equal Employment Op-
portunity Commission, which invited Charter to conciliate in
2018. Those efforts failed. The EEOC then filed this suit
against Charter alleging that the company violated the Amer-
icans with Disabilities Act by failing to accommodate Kim-
mons’ disability. 42 U.S.C. § 12112(b)(5). The EEOC sought
damages and injunctive relief.
Charter moved for summary judgment, which the district
court granted. The court read our decision in Brumfield v. City
of Chicago, 735 F.3d 619, 631–32 (7th Cir. 2013), as foreclosing
Kimmons’ request for a work-schedule accommodation be-
cause he did not need any accommodation to perform an es-
sential job function once he arrived at work. EEOC v. Charter
Commc’ns, 2021 WL 5988637, at *4.
II. Whether Kimmons Had a Disability
The parties dispute whether Kimmons had a disability
within the meaning of the ADA. The district court assumed
that he did, EEOC v. Charter Commc’ns, 2021 WL 5988637, at
*3, and based on the evidence and the standard for a motion
for summary judgment, we do the same. A “disability” under
the ADA includes “a physical or mental impairment that sub-
stantially limits one or more of the major life activities of such
individual.” 42 U.S.C. § 12102(1). The definition of “substan-
tially limits” was broadened by the ADA Amendments Act of
2008. Under those amendments, “substantially limits” is to be
interpreted consistently with the findings and purposes of the
2008 amendments, 42 U.S.C. § 12102(4)(B), which are set forth

-- 6 of 26 --

No. 22-1231 7
in Sections 2 and 3 of the ADA Amendments Act of 2008, Pub.
L. No. 110–325, 122 Stat. 3553 (2008). Those amendments’
findings and purposes expressly reject case law previously
holding that for an impairment to be substantially limiting, it
must “prevent[ ] or severely restrict[ ] the individual from do-
ing activities that are of central importance to most people’s
daily lives.” ADA Amendments Act of 2008 § 2(b)(4). The 2008
amendments further expressed “Congress’ expectation” that
the EEOC would revise its regulations accordingly. § 2(b)(6).
Under those revised regulations, “‘substantially limits’ shall
be construed broadly in favor of expansive coverage,” such
that an impairment is a disability if it “substantially limits the
ability of an individual to perform a major life activity as com-
pared to most people in the general population.” 29 C.F.R.
§ 1630.2(j)(1)(ii), as amended, 76 Fed. Reg. 16978, 17000 (Mar.
25, 2011).
The EEOC argues that Kimmons’ cataracts amounted to a
disability. Kimmons testified that “everything is just …
opaque…. You just get glare. You don’t actually see an object.”
His optometrist explained that having cataracts is like
“throwing debris against a window in your house. If you have
enough of that block the window, you can’t see anymore.”
Kimmons’ testimony about his inability to drive safely at
night is evidence of how his vision impairment affects major
life activities, such as walking, seeing, and working. See 42
U.S.C. § 12102(2) (list of major life activities).
Charter argues that Kimmons is not disabled, citing
among other things progress notes from a different doctor
who evaluated Kimmons. That doctor’s note did not indicate
that Kimmons expressed any concerns about his vision or
driving at night. And that doctor added information about

-- 7 of 26 --

8 No. 22-1231
how Kimmons’ vision affected major life activities only be-
cause Kimmons requested it. The factual dispute means that
we cannot affirm summary judgment on the alternative
ground that Kimmons did not have a disability. See, e.g.,
EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 439 (7th Cir. 2000)
(Sears I) (reversing summary judgment granted on similar
ground).
III. Effects on an Essential Job Function
The next question is whether Kimmons was entitled to a
modified schedule to accommodate his disability-related dif-
ficulties in commuting. To answer that question, we consider
the ADA’s statutory language, its history, and case law. We
determine that if an employee’s disability substantially inter-
feres with his ability to travel to and from work, the employee
may be entitled to a reasonable accommodation if commuting
to work is a prerequisite to an essential job function, including
attendance in the workplace, and if the accommodation is rea-
sonable under all the circumstances.
The Americans with Disabilities Act begins with Con-
gress’s findings, which include that “individuals with disabil-
ities continually encounter … the discriminatory effects of …
transportation … barriers.” 42 U.S.C. § 12101(a)(5). To counter
these effects, among others, the ADA requires an employer to
make “reasonable accommodations” for an employee with a
disability, absent undue hardship on the employer’s opera-
tions. § 12112(b)(5)(A). The ADA provides a non-exclusive, il-
lustrative list of potential accommodations. That list includes
“part-time or modified work schedules.” § 12111(9)(B). That’s
what Kimmons wanted here.

-- 8 of 26 --

No. 22-1231 9
Modified work schedules also appear in the ADA’s legis-
lative history. The report of the House Committee on Educa-
tion and Labor explained that reasonable accommodations
could include “modified work schedules” to accommodate
some people with disabilities who are “denied employment
opportunities because they cannot work a standard sched-
ule.” H.R. Rep. No. 101-485, pt. 2, at 62–63 (1990), as reprinted
in 1990 U.S.C.C.A.N. 303, 335–36. The House Report added:
“Other persons who may require modified work schedules
are persons who depend on a public transportation system
that is not currently fully accessible.” Id. The report also said
that an accommodation could extend to helping an employee
get to work, noting that a qualified person with a disability
seeking employment at a store that is “located in an inacces-
sible mall” would be entitled to reasonable accommodation in
helping him “get to the job site.” H.R. Rep. No. 101-485, pt. 2,
at 61, as reprinted in 1990 U.S.C.C.A.N. at 334. The report of
the Senate Committee on Labor and Human Resources also
endorsed modified work schedules as potentially reasonable
accommodations and noted that “modified work schedules
can be a no-cost way of accommodation.” S. Rep. No. 101-116
at 31 (1989).
Consistent with this statutory language and its history,
our cases have recognized that a work-schedule accommoda-
tion can sometimes be required. For example, in Gile v. United
Airlines, Inc., 213 F.3d 365, 368 (7th Cir. 2000) (Gile II), we af-
firmed a jury verdict for an employee who asked for a modi-
fied work schedule—daytime shifts—to accommodate her
disabilities. Although “a shift transfer may not have cured”
the employee’s condition, a “rational jury easily could con-
clude that a shift transfer would have alleviated [the

-- 9 of 26 --

10 No. 22-1231
employee’s] symptoms such that [the employee] could have
performed her job.” Id. at 373.
In Sears II, we addressed mobility issues, though at and
around the workplace rather than in a commute. 417 F.3d 789.
There, the employee worked in retail but developed a condi-
tion that limited her ability to walk more than one city block.
Id. at 792–94. She asked for accommodations that would
shorten her walk through the large retail store and avoid the
need to take a long walk to a mall food court for lunch breaks.
The employer effectively denied these requested accommoda-
tions, and we reversed summary judgment for the employer.
The employee was “able to perform all of the aspects of her
job but simply had trouble getting to and from her work-
station within the store.” Id. at 802. Getting to the employee’s
workstation was a prerequisite for her performing any essen-
tial function of her job.
Gile II and Sears II inform our analysis but do not control
this case since neither addressed commuting between home
and workplace. We find more pointed guidance from four de-
cisions by four other circuits, though their language tends to
point in opposite directions. We address them in chronologi-
cal order.
In Lyons v. Legal Aid Society, the plaintiff was an attorney
who had been severely injured in a traffic accident. 68 F.3d at
1513. After years of surgery and therapy, she was able to re-
turn to work, but she could walk only short distances and
with great difficulty. She could not manage public transit
from her home to her office. She asked her employer to ac-
commodate her disability by paying for a parking space near
her office and the courts where she would practice. The em-
ployer refused, so the employee spent between 15 and 26

-- 10 of 26 --

No. 22-1231 11
percent of her net salary for a parking space. She sued under
the ADA and the Rehabilitation Act. The district court dis-
missed on the pleadings.
The Second Circuit reversed, recognizing the broad and
flexible reach of reasonable accommodations under both stat-
utes. 68 F.3d at 1515–16. The employer argued that it did not
provide parking or commuting help for any other employees,
so it should not be required to help the plaintiff. The Second
Circuit disagreed: “whether it is reasonable to require an em-
ployer to provide parking spaces may well be susceptible to
differing answers depending on, e.g., the employer’s geo-
graphic location and financial resources, and … the determi-
nation of the reasonableness of such a requirement will nor-
mally require some development of a factual record.” Id. at
1516.
In observations that we endorse here, the Second Circuit
wrote that “the accommodation obligation does not require
the employer to make accommodations that are ‘primarily for
the [individual’s] personal benefit,’ such as an ‘adjustment or
modification [that] assists the individual throughout his or
her daily activities, on and off the job,’ or to provide ‘any
amenity or convenience that is not job-related.’” 68 F.3d at
1516, quoting EEOC’s Interpretive Guidance on Title I of the
Americans with Disabilities Act, 29 C.F.R. pt. 1630, app. at 412
(1995); accord, 29 C.F.R. pt. 1630, app. at 424 (2022). On the
pleadings, at least, the Lyons court rejected the employer’s
contention that a paid parking space would be only “an addi-
tional fringe benefit in the nature of a ‘personal amenity’ un-
related to the ‘essential functions’” of the employee’s job. Id.
at 1517. The reasoning of Lyons favors the EEOC’s position in

-- 11 of 26 --

12 No. 22-1231
this case, treating the reasonableness of the requested accom-
modation as a disputed issue of fact.
The Third Circuit took a similar approach in a case with
facts remarkably close to this case. In Colwell v. Rite Aid Corp.,
the plaintiff was a retail clerk in a pharmacy who worked both
daytime and evening shifts. 602 F.3d at 498. After she was em-
ployed, she lost her vision in one eye, which made it danger-
ous and difficult for her to drive to work at night. Public
transit was not available at night. The plaintiff asked to be as-
signed only daytime shifts, but the employer refused. The
plaintiff sued under the ADA for a modified work schedule.
The district court granted summary judgment for the em-
ployer on the theory adopted by the district court here, that
the plaintiff did not need any accommodations to do her work
once she arrived at the workplace.
The Third Circuit reversed. Its opinion noted the statutory,
regulatory, and legislative history points we have cited above,
as well as the Second Circuit’s decision in Lyons. 602 F.3d at
505. “We therefore hold that under certain circumstances the
ADA can obligate an employer to accommodate an em-
ployee’s disability-related difficulties in getting to work, if
reasonable. One such circumstance is when the requested ac-
commodation is a change to a workplace condition that is en-
tirely within an employer’s control and that would allow the
employee to get to work and perform her job.” Id. at 505–06,
citing 29 C.F.R. § 1630.2(o)(1)(ii)–(iii) (2005) (defining reason-
able accommodations). Rejecting a sharp line between on-site
accommodations and transportation accommodations, the
Third Circuit wrote: “As a cashier, Colwell was certainly re-
quired to be at work to perform any of the functions of her
job, and any change in shifts is clearly a change in a workplace

-- 12 of 26 --

No. 22-1231 13
condition entirely under the employer’s control.” Id. at 506.
The plaintiff in Colwell was also not actually asking for help
“in the method or means of her commute,” but only a change
in schedule that was within the employer’s control. Id. The rea-
soning of Colwell squarely supports the EEOC’s position in
this case.
On the other hand, defendant Charter finds support for its
position in the Sixth Circuit’s decision in Regan v. Faurecia Au-
tomotive Seating, Inc., which affirmed summary judgment for
the employer. 679 F.3d at 480. There, the employee had narco-
lepsy but had managed her commute until two changes oc-
curred. First, she moved seventy-nine miles away from her
job, so that her commute took two to four hours each way.
Second, her employer changed the schedule for her depart-
ment for efficiency reasons. The later schedule meant that the
employee had to commute during heavier traffic, which she
found much more tiring and dangerous for her. She asked to
modify her work schedule back to the earlier time she had
managed to cope with, but the employer refused. She sued
under the ADA, and the district court granted summary judg-
ment for the employer.
The Sixth Circuit affirmed, citing a non-precedential Ninth
Circuit decision and several district court decisions denying
similar accommodations on the theory that the relevant barri-
ers were outside the work environment. 679 F.3d at 480. The
opinion did not cite Colwell or Lyons. The Sixth Circuit also
noted that the plaintiff had not presented evidence or argu-
ment supporting her theory that her proposed schedule
would actually provide a commute with lighter traffic. The
court summarized its decision in terms of convenience: the

-- 13 of 26 --

14 No. 22-1231
ADA “does not require [defendant] to accommodate Regan’s
request for a commute during more convenient hours.” Id.
Also supporting defendant Charter’s position is the Tenth
Circuit’s decision in Unrein v. PHC-Fort Morgan, Inc., which
also presented facts close to this case, but with a few key dif-
ferences. 993 F.3d at 878–79. The employee there had been a
dietitian at a hospital for nearly twenty years, with a one-way
commute of sixty miles. But she then developed an eye dis-
ease that rendered her legally blind. Once she got to work, she
could do her job with magnifying equipment the employer
had provided at her request. Getting to work was the prob-
lem. She could not drive herself, and public transportation
and ride services were not available to her. She tried to count
on family and friends for rides, but she could not get to work
on a reliable schedule. She asked for an accommodation in the
form of a flexible schedule, which she and the employer tried
for fifteen months. The experiment was a failure. The em-
ployee’s attendance was erratic and unreliable, and her em-
ployment ultimately ended. She sued under the ADA for fail-
ure to accommodate her vision disability. Entering judgment
against her, the district court found that the plaintiff’s physi-
cal presence at the hospital on a set and predictable schedule
was an essential job function.
The Tenth Circuit affirmed. It found that the requested ac-
commodation was “unreasonable, both as a matter of law and
common sense.” 993 F.3d at 878. The accommodation would
not have allowed plaintiff to fulfill the essential job function
of being physically present on a predictable schedule. The
opinion observed more broadly that the plaintiff was seeking
an accommodation for a transportation barrier, “a problem
she faces outside the workplace unrelated to an essential job

-- 14 of 26 --

No. 22-1231 15
function or a privilege of employment.” Id. The employer did
not and could not control where the plaintiff lived, whether
public transit was available, or whether friends and family
could give her rides, whereas plaintiff had the power on her
own to eliminate the transportation barrier by moving closer
to the hospital or finding more reliable rides. Id. at 878–79.
“Whether a transportation barrier is caused by a broken car
or legal blindness and unreliable rides, the analysis of an em-
ployer’s obligations should not change if transportation is un-
related to an essential job function and not a privilege of em-
ployment.” Id. at 879.1
We could not follow all of the language in all four of these
opinions, but we do not necessarily disagree with the results
of any of these cases. The plaintiff in Regan had chosen to
move much farther away from her job, and that choice aggra-
vated the effects of her disability on her ability to commute
safely. The plaintiff in Unrein was asking for an accommoda-
tion that would have made it impossible for her to meet the
1 Regan and Unrein both cited a non-precedential Ninth Circuit deci-
sion, Robinson v. Bodman, 333 F. App’x 205 (9th Cir. 2009), in which the
employer refused plaintiff’s requested accommodation of being allowed
to work from home full-time. Plaintiff’s work from home had not been
satisfactory. Id. at 208. The Ninth Circuit also said the employer was not
required to accommodate the plaintiff’s transportation problems: “the em-
ployer is not required to eliminate barriers outside the workplace that
make it more difficult for the employee to get to and from work (unless
the employer makes such accommodations for its employees who do not
have disabilities, which the [the employer] does not).” Id., citing Salmon v.
Dade Cty. Sch. Bd., 4 F. Supp. 2d 1157, 1163 (S.D. Fla. 1998), an opinion by
Judge Gold granting summary judgment that has been cited frequently in
cases on accommodation requests involving commuting and work sched-
ules. Robinson is not precedential and is easily distinguishable from this
case on its facts.

-- 15 of 26 --

16 No. 22-1231
essential job function of being physically present on a reliable
schedule.
We offer two general observations about these cases: First,
where a disability makes it difficult for an employee to travel
to and from work safely, the employee usually controls some
key variables, most important where the employee lives, but
the employer controls another key variable, the work sched-
ule. As if looking through opposite ends of a telescope, con-
centrating on the variables the employee controls weighs in
favor of the employer, while concentrating on the employer’s
control over work schedules can weigh in favor of the em-
ployee. These cases present problems that arise from the com-
bination of employee choices and employer choices. Charter
nonetheless invites us to draw a bright line between barriers
inside the workplace, versus outside the workplace, directing
us to EEOC enforcement guidance, EEOC Enforcement Guid-
ance: Reasonable Accommodation and Undue Hardship Under the
ADA, No. 915.002 (Oct. 17, 2002),
https://www.eeoc.gov/laws/guidance/enforcement-guid-
ance-reasonable-accommodation-and-undue-hardship-un-
der-ada. Yet that guidance did not go so far as Charter argues.
Rather, it advised that workplace barriers may include “rules
concerning when work is performed.” Id.; see also Colwell, 602
F.3d at 506 (change in shifts could be reasonable accommoda-
tion for effects of disability on commuting safely). Given the
statutory reference to modified work schedules as reasonable
accommodations and the explanatory references in the legis-
lative history, we decline to draw a bright line between ac-
commodations at the employer’s workplace and accommoda-
tions that address transportation problems.

-- 16 of 26 --

No. 22-1231 17
Second, we repeat that in most cases, an employer has no
duty to help an employee with a disability with the method
and means of his commute to and from work, assuming the
employer does not offer such help to employees without dis-
abilities. Charter warns of “potential unfettered abuse” in ac-
commodation requests, again directing our attention to fur-
ther EEOC guidance. See EEOC Informal Discussion Letter,
ADA: Reasonable Accommodation (June 20, 2001),
https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-
47. That guidance also did not go as far as Charter argues. Ra-
ther, it recognized, just as we have, that “it is the employee’s
responsibility to arrange how s/he will get to and from work”
while also recognizing that “[r]easonable accommodation
may be required to address other issues involving an em-
ployee’s commute to and from work,” such as “adjustment to
his/her working hours if [public] transportation is limited
… .” Id. In the relatively rare cases like this one, where an em-
ployee with a disability seeks an accommodation to make
commuting safer, we expect the ADA’s terms requiring that
any accommodation be reasonable under the circumstances
and not impose an undue burden on the employer (including
other employees), as well as the statutory requirement that
the employee with a disability be able to carry out the essen-
tial job functions, should protect employers from unreasona-
ble demands. See 42 U.S.C. §§ 12111(8), (9) & (10), 12112(b)(5).
Before turning to the details as to whether Kimmons’ re-
quest for an accommodation in this case was reasonable, we
also explain why our decision in Brumfield v. City of Chicago,
735 F.3d 619 (7th Cir. 2013), does not resolve this case. The
district court here understood Brumfield to hold that the ADA
requires no accommodation if the employee’s disability does
not affect his ability to perform essential job functions once

-- 17 of 26 --

18 No. 22-1231
the employee is at work. EEOC v. Charter Commc’ns, 2021 WL
5988637, at *3. We do not read Brumfield so broadly. The plain-
tiff in Brumfield was a police officer who had been fired after
several incidents, including one in which she feigned an in-
jury in front of her supervisor. 735 F.3d at 622–23. She had
unspecified psychological problems that led to several evalu-
ations of fitness for duty, but she passed those evaluations
without anyone identifying any need for any workplace ac-
commodations. The case presented a complex procedural his-
tory including several different suits and issues of claim pre-
clusion, and our opinion addressed primarily the relationship
between Title I and Title II of the ADA, holding that Title II
does not apply to public employment issues, which are gov-
erned by Title I.
The concluding portion of our opinion addressed the
plaintiff’s attempt to assert a claim for failure to accommo-
date, but, remarkably, the plaintiff never seems to have iden-
tified an accommodation she needed or wanted, and our opin-
ion did not identify one either. See 735 F.3d at 630. The prin-
cipal point of our rather abstract discussion of the duty to ac-
commodate was that if the employee can do his or her job
without any accommodation, the ADA does not require the
employer to provide any. Id. at 632. That was clearly correct
as applied to Brumfield, who apparently did not identify any
accommodation she needed or even wanted, other than pos-
sibly the right to engage in unprofessional conduct at work,
such as feigning injuries. We simply did not address in Brum-
field the more nuanced problems that can arise regarding at-
tendance at work, as in this case, including the statutory ref-
erence to modified work schedules and the legislative history
references to employees without accessible public transit, or
accommodations that may be needed for an employee with a

-- 18 of 26 --

No. 22-1231 19
disability to perform essential job functions more safely or
less painfully. See, e.g., Hill v. Associates for Renewal in Educ.,
Inc., 897 F.3d 232, 234, 239 (D.C. Cir. 2018) (reversing sum-
mary judgment against employee and holding that em-
ployee’s disability from amputated leg made job functions
“difficult and painful” and a “reasonable jury could conclude
that forcing [the employee] to work with pain when that pain
could be alleviated by his requested accommodation violates
the ADA.”). Our opinion in Brumfield should not be read as
holding that the ADA imposes no duty to offer reasonable ac-
commodations that affect safety or pain that an employee may
be motivated to overcome. In any event, the parties all agree
here that attendance at work was an essential job function for
Kimmons, and evidence would support a finding that the re-
quested accommodation here would have allowed him to
meet that requirement more safely.
IV. Kimmons’ Requested Accommodation
A. Case-by-Case Evaluation of Scheduling Issues
From what we have said, deciding whether a work-sched-
ule accommodation of a disability that affects a commute is
reasonable depends on a highly fact-specific inquiry that con-
siders the needs of both employer and employee. The em-
ployee bears the burden to make a preliminary showing that
his requested accommodation is reasonable on its face. 42
U.S.C. §§ 12111(10) & 12112(b)(5)(A); U.S. Airways, Inc. v. Bar-
nett, 535 U.S. 391, 401–02 (2002). An employer may defend on
the grounds that no accommodations would be reasonable
and/or that the proposed accommodations would impose an
undue hardship on its operations, with the employer bearing
the burden of showing undue hardship. § 12112(b)(5)(A); Con-
ners v. Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021). Many factors

-- 19 of 26 --

20 No. 22-1231
may be relevant, including the efficacy of a proposed accom-
modation and its effects on the employer’s business opera-
tion, effects on other employees’ workloads and schedules,
and in some cases effects on seniority systems and collective
bargaining agreements. See generally § 12111(10); Barnett, 535
U.S. at 400–02. The analysis should emphasize employee re-
sponsibility for the factors within the employee’s control,
without losing sight of the employer’s control over work
schedules.
1. Accommodating a Disability, Not Personal Preferences
An employee’s proposed accommodation must amelio-
rate the disability, not merely serve personal preferences or
convenience. For disability-related difficulties getting to and
from the workplace, the employee must still show how an ob-
stacle or risk of harm could affect an essential function, but
that may include workplace attendance. The employee must
also show that the requested accommodation would be effec-
tive. Gile II, 213 F.3d at 372 (“an employer need not grant a
disabled employee’s request for an accommodation that
would be an ‘inefficacious change’”), quoting Vande Zande v.
Wisconsin Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995); see
also Regan, 679 F.3d at 478–80 (employee failed to show sched-
ule change would actually ease burden on her; request
seemed to address convenience rather than need). Without
strong justification, all that remains is a “non-work related
barrier[ ] created by personal lifestyle choices,” which the
ADA does not require the employer to help remedy. Unrein,
993 F.3d at 874.
We recognize that employees with and without disabilities
usually choose where to live and have a variety of options
available to reach their workplaces. Employers usually bear

-- 20 of 26 --

No. 22-1231 21
no responsibility for helping an employee with a disability
commute to and from work. Reliable and accessible public
transportation, carpooling, or simply moving closer to the job
may make it “common sense” in many cases that the com-
mute-related barrier is one the employee alone “has the
power to eliminate.” See Unrein, 993 F.3d at 878–79.
At the same time, courts should focus on the precise ac-
commodation at issue, for it may well be that a temporary ac-
commodation at work may enable an employee to stay on the
job while making longer-term changes, such as moving closer
to the job and/or moving within reach of public transit. That’s
the sort of temporary accommodation that Charter denied
Kimmons in this case when he asked for an additional thirty
days of an earlier work schedule while he tried to arrange a
move.
Whether an employee with a disability can show that his
or her commuting situation is the unusual exception requir-
ing accommodation from an employer will depend on many
facts, including the benefits of the accommodation, alterna-
tives to the accommodation, the cost to the employer, and con-
sequences for others. An employee who has chosen to live far
from the workplace or failed to take advantage of other rea-
sonable options, including public transportation, will rarely if
ever be entitled to an employer’s help in remedying the prob-
lems. See, e.g., Regan, 679 F.3d at 478 (employee chose to move
seventy-nine miles away from workplace); Kimble v. Potter,
No. 06 C 2589, 2009 WL 2045379, at *7–8 (N.D. Ill. July 13,
2009) (granting summary judgment against disabled em-
ployee where employee “did not assist herself … by relocat-
ing to an area … that substantially lengthened her commute,
or by ignoring altogether Chicago’s extensive public

-- 21 of 26 --

22 No. 22-1231
transportation system”); but see, e.g., Fuller v. Belleville Area
Cmty. Coll. Dist. No. 522, No. 3:18-cv-01123-GCS, 2020 WL
1287743, at *1 (N.D. Ill. Mar. 18, 2020) (denying motion to dis-
miss where employer rejected request for transfer to closer fa-
cility after employer relocated its workplace to location that
required vision-impaired employee to commute up to eight
hours on public transportation).
2. Undue Hardship on the Employer
Even if the employee makes his preliminary showing, the
employer can show the requested accommodation’s costs or
other burdens are undue. 42 U.S.C. § 12111(10). For example,
the employee’s proposed accommodation must not pose a
“prohibitively weighty” administrative burden on the em-
ployer. In Filar v. Board of Educ., 526 F.3d 1054, 1059 (7th Cir.
2008), the employee was a substitute teacher who was ex-
pected to be available to work at schools all over Chicago. Her
hip condition made it painful to walk and made her unable to
drive. She was denied a request to be staffed at a location
“with minimum walking distance from public transporta-
tion.” She lost her accommodation claim on summary judg-
ment. We affirmed on that claim, partly because it was admin-
istratively unreasonable. Id. at 1068. Among the hundreds of
potential worksites, among the thousands of potential buses,
among the over-ten-thousand potential bus stops, the Filar
employee failed to specify which ones would accommodate
her disability, a request “too barebones” to be reasonable. Id.
Any analysis for work-schedule accommodations for com-
muting will likely need to consider whether the accommoda-
tion would unduly burden the business operation. In Unrein,
for example, the employer originally had granted a work-
schedule accommodation to help an employee to commute to

-- 22 of 26 --

No. 22-1231 23
work more safely. 993 F.3d at 875. But the accommodation re-
sulted in the employee’s unpredictable attendance, worse per-
formance, and worse customer satisfaction. Id. In that case,
moreover, the employee was asking for an accommodation
that would not have enabled her to perform the essential job
function of being physically present at the job on a predictable
and reliable schedule. Id. at 878.
3. Other Considerations
We also do not intend to endorse an interpretation of the
ADA where “no good deed goes unpunished.” If the em-
ployer goes further than the law requires, it should not be
“punished for its generosity by being deemed to have con-
ceded the reasonableness of so far-reaching an accommoda-
tion.” Vande Zande, 44 F.3d at 545–46 (employer allowed some
work from home but should not be required to allow full-time
work from home). We have recognized situations where the
employer sufficiently accommodated commute-related barri-
ers posed by an employee’s disability. See, e.g., Cloe v. City of
Indianapolis, 712 F.3d 1171, 1178–79 (7th Cir. 2013) (affirming
summary judgment for employer who accommodated em-
ployee’s walking disability by providing closer parking
space); Yochim v. Carson, 935 F.3d 586, 588, 592–93 (7th Cir.
2019) (affirming summary judgment for employer who ac-
commodated employee’s carpal-tunnel disability by provid-
ing a flexible schedule so employee could avoid enduring
pain on public transportation.); see also Kramer v. Homeward
Bound, Inc., No. 14-cv-15-slc, 2015 WL 4459967, at *6–8 (W.D.
Wis. July 21, 2015) (granting summary judgment for employer
who accommodated employee’s epilepsy “by having others
drive her to appointments and by paying cab fare” during pe-
riod employee could not safely drive herself).

-- 23 of 26 --

24 No. 22-1231
We also emphasize that the employer need not provide the
exact accommodation the employee asks for, which we have
said repeatedly. E.g., Sears II, 417 F.3d at 802; Jay v. Intermet
Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000); Gile v. United
Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (Gile I). The em-
ployer has no duty “to expend even modest amounts of
money to bring about an absolute identity in working condi-
tions between disabled and nondisabled workers.” Vande
Zande, 44 F.3d at 546 (affirming summary judgment against
disabled employee who could reach workplace bathroom
sink but wanted employer to remodel kitchen sink as well).
An employer is not required to bend over backwards to ac-
commodate a disabled employee or “expend enormous sums
in order to bring about a trivial improvement in the life of a
disabled employee.” Id. at 542–43, 545. Instead, “[t]he duty of
reasonable accommodation is satisfied when the employer
does what is necessary to enable the disabled worker to work
in reasonable comfort.” Id. at 546.
We also emphasize that this opinion does not attempt to
identify all factors that might be relevant in determining
whether a proposed accommodation affecting the ability of an
employee with a disability to travel to and from work would
be reasonable or would impose an undue hardship on an em-
ployer’s operations. Based on this case and those from other
circuits discussed above, we expect that such cases will re-
quire a close look at the facts of the specific case rather than
rely on bright-line rules.
B. Kimmons’ Requested Accommodation
We now return more specifically to Kimmons’ requested
accommodation, an extension of his shift change for another
thirty days while he tried to move closer to the workplace. On

-- 24 of 26 --

No. 22-1231 25
this record, a jury could find that would have been a reasona-
ble accommodation. Kimmons ultimately did not move
closer, but neither he nor Charter could know this when Char-
ter denied Kimmons’ request. His vision impairment could
have interfered with his commute due to his difficulty driving
safely at night and a lack of safe and reliable transportation
alternatives. His disability-related difficulties could have in-
terfered with the essential job function of regular attendance
because he was unable to commute safely after his assigned
shift.
Charter points out that the proposed accommodation
might have been inadequate. That is possible but not undis-
puted. And even if Kimmons had to drive at least one way in
darkness during the winter, the proposed accommodation
could still have been reasonable. An accommodation that mit-
igates the employee’s difficulty need not cure all problems.
After all, in Gile II, “a shift transfer may not have cured” the
employee’s condition, but “a shift transfer would have allevi-
ated [the employee’s] symptoms such that [the employee]
could have performed the job.” 213 F.3d at 373. In Kimmons’
case, avoiding driving at night some of the time could be
deemed reasonable.2
2 We acknowledge some tension among our ADA and Rehabilitation
Act cases regarding whether a disabled employee may be entitled to a rea-
sonable accommodation even if his disability does not affect an essential
function of the job. Compare Brumfield, 735 F.3d at 632–33 (answering no),
with McWright v. Alexander, 982 F.2d 222, 227 (7th Cir. 1992) (answering
yes), and Fedro v. Reno, 21 F.3d 1391, 1395–96 (7th Cir. 1994) (answering
yes). Because Kimmons’ impairment could have affected the essential job
function of workplace attendance, we do not try to resolve this tension
here.

-- 25 of 26 --

26 No. 22-1231
Charter has not demonstrated as a matter of law that the
accommodation would have imposed an undue hardship.
Charter also has not shown that the accommodation would
have imposed unfair burdens on other employees or would
have been too costly. This record simply does not establish
beyond dispute that the requested accommodation would
have been unreasonable or imposed an undue hardship.
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.
Conclusion
We prescribe no bright-line rules as to when an em-
ployee’s disability interferes with essential job attendance or
whether particular accommodations are reasonable. Those
questions are reserved for analysis under the facts of a partic-
ular case. But if a qualified individual’s disability substan-
tially interferes with his ability to get to work and attendance
at work is an essential function, an employer may sometimes
be required to provide a commute-related accommodation, if
reasonable under the circumstances.
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.

-- 26 of 26 --