Earlier this year, and in a case of first impression, the 3d U.S. Circuit Court of Appeals upheld an employee’s claim that her employer violated the ADA by refusing to change her work shift after she reported commuting difficulties based upon a visual impairment that made it difficult for her to drive at night. Now, in an unpublished opinion, the 9th U.S. Circuit Court of Appeals has issued a similar decision. In that case, the Court reversed a decision in favor of an employer, allowing an individual’s claim to go to trial on the issue of whether the company failed to accommodate the employee’s visual impairment when it refused to modify her work schedule to daylight only hours. Livingston v. Fred Meyer Stores, Inc., 9th Circ., 08-35597, July 21, 2010.

Michelle Livingston began working for Fred Meyer Stores (Meyer) as a wine steward in April 2005. Livingston has been diagnosed with “depth perception difficulties under low light conditions,” which makes it difficult for her to safely drive or walk outside after dark. In the Fall of 2005, Livingston asked for, and was granted, a modified schedule to allow her to leave work during daylight hours. During that time, Livingston helped increase the store’s wine sales and improve its sales ranking. However, when she again asked for the modified schedule in the Fall of 2006, Meyer refused the request, and ultimately fired Livingston when she refused to work her scheduled shift.

Livingston sued the company, alleging that it failed to accommodate her and then retaliated against her, both in violation of the Americans with Disabilities Act. The district court granted summary judgment in favor of the employer, holding that Livingston did not have a disability because her vision impairment did not substantially limit a major life activity, and that even if Livingston was disabled, a company’s duty to accommodate did not extend to “commute-related limitations.” The Ninth Circuit disagreed, reversing and remanding the case for trial.

A person is substantially limited in a major life activity if she is “significantly restricted” as to the condition, manner or duration under which she can perform that activity, when compared to the average person. Livingston’s impairment prevents her from safely driving or walking at night, when the average person is able to see well enough to do both. The Court held that on that basis, Livingston raised a triable issue of fact regarding whether she is disabled under the ADA in the major life activity of “seeing.”

The Court then specifically addressed the lower court’s finding that the duty to accommodate does not extend to commute-related limitations. It pointed out that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate an employee’s disability-related difficulties in commuting to work and that, therefore, Meyer had a duty to accommodate Livingston’s inability to finish her scheduled shift, so long as such accommodation did not create an undue hardship for the company. Because Meyer had not suffered a hardship when it modified Livingston’s schedule in 2005 – indeed, wine sales increased with Livingston’s help during that period – Livingston is entitled to allow a jury to decide whether Meyer’s failure to accommodate her request in 2006 was a violation of the ADA.

The Court further determined that Livingston’s failure to work her scheduled shift stemmed from her disability, and that conduct “resulting from a disability” is considered to be part of the disability, rather than a separate basis for termination. Therefore, the Court held, Livingston’s claim that she was terminated “because of her disability” should be decided by a jury.

In this case, there was no evidence that Meyer asked for any additional information or engaged in any dialogue with Livingston before refusing her request in 2006, and then terminating her employment. The absence of such evidence created the basis for the Ninth Circuit’s reversal of the district court’s decision in Meyer’s favor. Employers are required to engage in an interactive process in good faith when an employee asks for an accommodation of a disability. That failure can result in liability under the ADA if such reasonable accommodation is possible and appropriate.