We do look for fall to befall us sometime this month, but it has been known to stay mighty hot in Texas in late September and early October. So we read with interest the recent 11th Circuit decision about the bus driver who requested a transfer to an air conditioned bus. When this request was not granted, the driver sued, alleging racial discrimination, illegal retaliation, and a failure to accommodate her disability.
The 11th Circuit found possible merit in only one of those theories—the one based on disability. In the muggy heat of August in Atlanta the driver alleged that she had to pull over to the side of the road due to shortness of breath. Two medical opinions bolstered her case, stating that her difficulty breathing during extreme weather was indicative of a physical impairment.
The school district claimed that it could not accommodate this request. It had some buses with AC, but they were all spoken for by drivers with more seniority. The Americans with Disabilities Act requires employers and governmental entities to “reasonably accommodate” people with disabilities unless doing so would cause “undue hardship” to the employer. The court noted that the plaintiff had previously driven an air conditioned bus, and “so it is difficult to understand how reassignment would upset the bus-allocation process in such a way as to cause undue hardship.”
This case has a long way to go, but at this stage, the court has held that the plaintiff should have her day in court. Her allegations create fact issues that a judge or jury will need to sort out.
So what can we learn from this case? Pay attention to medical reports you receive that indicate that an employee has a “physical or mental impairment” that substantially limits them in a “major life activity.” I think we can all agree that breathing ranks right at the top of “major life activities.” If you get such a report, get creative and flexible in devising “reasonable accommodations” that will enable the employee to continue to work.
The case is Hill v. Clayton County School District, decided by the 11th Circuit Court of Appeals on August 7, 2015. You can find the case at 2015 WL 4663755.
DAWG BONE: SWITCHING THE DRIVER TO A BUS WITH A.C. MIGHT BE A “REASONABLE ACCOMMODATION.”