Case No. 01-3973 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________________________ BEVERLY J. RAUEN Plaintiff/Appellant, v. UNITED STATES TOBACCO MANUFACTURING LIMITED PARTNERSHIP, Defendant/Appellee. ________________________________________________________ On Appeal from the United States District Court For the Northern District of Illinois, No. 99-CV-6972, The Honorable Milton I. Shadur, Presiding _________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellant _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel JOSEPH A. SEINER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 TABLE OF CONTENTS Page TABLE OF CONTENTS............i TABLE OF AUTHORITIES.......................iii STATEMENT OF INTEREST..................... 1 STATEMENT OF THE ISSUE.................... 1 STATEMENT OF FACTS AND PROCEEDINGS BELOW ..... 2 STANDARD OF REVIEW...................5 SUMMARY OF ARGUMENT ......................5 ARGUMENT..........................6 AN EMPLOYER MAY BE REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION TO AN EMPLOYEE WHO CAN PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB WITHOUT ACCOMMODATION.................. 6 A. The Plain Language of the Statute Requires Employers to Provide Reasonable Accommodations to Employees Who Can Perform the Essential Functions of the Job Without an Accommodation.......... 7 B. There is Significant Authority Requiring Employers to Provide Reasonable Accommodations to Employees Who Can Perform the Essential Functions of the Job Without an Accommodation....10 1. Accommodating Limitations That Affect Performance of Marginal Job Functions........... 11 2. Modified Work Schedules............................. 13 3. Access to Employment Facilities................. 15 4. Equal Benefits and Privileges of Employment........ 16 5. Providing Leave.....................17 CONCLUSION..........................18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Amadio v. Ford Motor Co., 238 F.3d 919 (7th Cir. 2001) 18 Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir. 1995) 12 Bratten v. SSI Services, 185 F.3d 625 (6th Cir. 1999) 12 Chevron U.S.A. v. Echazabal, 122 S. Ct. 2045 (2002) 11 Chevron, U.S.A. v. NRDC, 467 U.S. 837 (1984) 11 Deane v. Pocono Med. Ctr., 142 F.3d 138 (3d Cir. 1998) (en banc) 11 Del Raso v. United States, 244 F.3d 567 (7th Cir. 2001) 5 EEOC v. MCI Telecommunications Corp., 993 F. Supp. 726 (D. Ariz. 1998) 17 Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000) 18 Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996) 6 Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591 (7th Cir. 1998) 14 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) 12 Hoffman v. Caterpillar, Inc., 256 F.3d 568 (7th Cir. 2001) 12, 16 Holt v. Olmsted Twp. Bd. of Trustees, 43 F. Supp. 2d 812 (N.D. Ohio 1998) 15 Langon v. Department of Health & Hum. Services, 959 F.2d 1053 (D.C. Cir. 1992) 7 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) 5 Philbin v. General Electric Capital Automobile Lease Inc., 929 F.2d 321 (7th Cir. 1991) 11 Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998) 15 Szmaj v. America Telegraph & Tel. Co., 291 F.3d 955 (7th Cir. 2002) 10 Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994) 12 US Airways v. Barnett, 122 S. Ct. 1516 (2002) 6-7 Vande Zande v. Wis. Department of Admin., 44 F.3d 538 (7th Cir. 1995) 7, 16 STATUTES, REGULATIONS AND RULES Americans With Disabilities Act, 42 U.S.C. § 12101-12117 passim 29 C.F.R. §1630.2 passim Fed. R. App. P. 29(a) 1 29 C.F.R. pt. 1630 1 Fed. R. Civ. P. 56(c) 5 CONGRESSIONAL REPORT S. Rep. No. 101-116 (1989) 7, 14 COMMISSION GUIDANCE EEOC, Technical Assistance on Title I of ADA, 8 FEP Manual 405:6981 (BNA) (1992) 12, 13, 14, 17 EEOC, Interpretive Guidance on Title I of ADA, 29 C.F.R. pt. 1630, app. (2001) 12, 17 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is charged by Congress with enforcing Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12117. Under the mandate of § 12116, the EEOC has issued regulations interpreting the ADA, codified at 29 C.F.R. pt. 1630, and technical guidance. This case raises an important question concerning the scope of the reasonable accommodation provision. The district court held that, where a disabled employee is able to perform the essential functions of the job without accommodation, her employer need not provide her with a reasonable accommodation. This interpretation is contrary to the plain language of the statute and, if allowed to stand, would arbitrarily restrict the protections Congress provided to disabled employees in the ADA. Because of the importance of this issue to enforcement of the ADA, we offer our views to the Court as an agency of the United States under Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE<1> Whether an employer is required to provide a reasonable accommodation to an employee who can perform the essential functions of the job without an accommodation. STATEMENT OF FACTS AND PROCEEDINGS BELOW Beverly Rauen has worked for U.S. Tobacco in many capacities since 1968, and at the time relevant to this claim held the position of Software Engineer. (District Court Docket Number (“Doc.”) 42 (Defendant's Statement of Material Facts), Exhibit B (Rauen Deposition), at 11, 65-66). In April 1996, after almost thirty years of employment with U.S. Tobacco, Rauen was diagnosed with rectal cancer and subsequently underwent surgery, radiation treatment, and chemotherapy. (Doc. 42, Exhibit B, at 385-87). Rauen took both short- and long-term disability leave during 1996, but returned to work in January 1997. (Doc. 42, Exhibit B, at 262-64). In 1998, Rauen was diagnosed with breast cancer and metastatic rectal cancer, and was again required to go on long-term disability. (Doc. 42, Exhibit B, at 173, 386-87, 400). Rauen returned to work in January 1999, and worked the entire calendar years of 1999 and 2000 without taking any additional extended leave. (Doc. 42, Exhibit B, at 173-74, 197-98, 261-62). During that period, however, Rauen experienced several problems related to her prior surgeries. (Doc. 42, Exhibit B, at 238-43, 249-50). Her ileostomy caused her to go to the bathroom constantly, to require two liters of fluid a day, and to wear an ostomy appliance that required changing. Id. Rauen also suffers from rapid heartbeat and fatigue, and a weakened immune system. (Id.; Doc. 45 (Plaintiff's Response to Defendant's Motion for Summary Judgment), Exhibit V at ¶ 17). After returning to work in January 1999, Rauen submitted a letter from her doctor to U.S. Tobacco outlining her condition. (Doc. 45, Exhibit B). Rauen's physician stated that because of “complications that have occurred and her need for supplemental fluids, it would be to her benefit that she be able to do her work through a ‘home office.'” Id. In April 1999, U.S. Tobacco responded to this request by scheduling a meeting with human resources managers and the Director of Systems Engineering. (Doc. 42, Exhibit B, at 195-96; Doc. 42, Exhibit C (Waddle Affidavit) at ¶ 65; Doc 42, Exhibit N (Haraf Affidavit), at ¶ 17). At this meeting, U.S. Tobacco discussed different accommodations that might resolve Rauen's difficulties, and Rauen expressed her desire to work at home and to come into the office on an as-needed basis. (Doc. 45, Exhibit V, at ¶11, 17). Rauen did not hear from U.S. Tobacco subsequent to this meeting regarding her accommodation request, and on September 19, 2000, Rauen's doctor provided another letter to U.S. Tobacco indicating that it would be beneficial for Rauen to work from home. (Doc 42, Exhibit B, at 269, 273-74; Doc. 45, Exhibit G). The interactive process between Rauen and U.S. Tobacco subsequently broke down, and Rauen filed claims against U.S. Tobacco under the ADA and Title VII, as well as a claim for intentional infliction of emotional distress. U.S. Tobacco moved for summary judgment on all counts. The district court granted U.S. Tobacco's motion for summary judgment on all of Rauen's federal claims, and dismissed her state law claim without prejudice. 161 F. Supp. 2d 899, 909 (N.D. Ill. 2001). With respect to Rauen's ADA claim, the court found that Rauen had conceded that she was able to perform the essential functions of her job as a Software Engineer without a reasonable accommodation. Id. at 906. The court further indicated that neither party had cited a decision “dealing with the question whether an employer has an obligation to provide a disabled employee with any accommodation where that employee can perform the essential functions of her job without any accommodation.” Id. at 905. The Court subsequently stated that[t]here may perhaps be situations in which an employee, although capable of performing the essential functions of her job, may be entitled to some form of accommodation because it is wholly unreasonable to require her to perform her work without the accommodation. But Rauen's counsel has not made that argument, let alone having adduced any authority to that effect, and this Court (having been unable on its own to locate any decision so holding) is not prepared to enter uncharted territory in that respect. 161 F. Supp. 2d at 906. The district court thus held that an employer need not provide an employee with a reasonable accommodation when that employee can perform the essential functions of the job without an accommodation, and granted summary judgment on Rauen's ADA claim. 161 F. Supp. 2d at 905-06. STANDARD OF REVIEW This Court reviews the grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Del Raso v. United States, 244 F.3d 567, 569 (7th Cir. 2001) (“We review de novo the district court's order granting summary judgment, drawing all reasonable inferences from the record in the light most favorable to the nonmoving party”). Summary judgment is appropriate only if “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Fed. R. Civ. P. 56(c). SUMMARY OF ARGUMENT The district court ruled that because Rauen could perform the essential functions of her job without an accommodation, she was not entitled to any accommodation under the ADA. The district court's overly broad ruling misconstrues the reasonable accommodation requirement and threatens to foreclose a host of accommodations that would arise apart from those needed by an employee to perform the essential functions of the job. The plain language of the ADA requires that an employer reasonably accommodate a disabled employee even when that employee can perform the essential functions of the job without an accommodation. Moreover, the statute, federal regulations, Commission guidance, and case law all provide numerous examples of instances in which an employer is required to accommodate employees who can perform the essential functions of the job. ARGUMENT AN EMPLOYER MAY BE REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION TO AN EMPLOYEE WHO CAN PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB WITHOUT AN ACCOMMODATION. The district court erred in holding that U.S. Tobacco need not provide any accommodation to Rauen because she could perform the essential functions of her position without a reasonable accommodation. This does not mean that an employer must make all accommodations requested by a disabled employee. See, e.g., Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996) (“An employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation”). On remand, the district court should look at whether Rauen's requested home office is a reasonable accommodation and, if it is, whether U.S. Tobacco would suffer undue hardship from providing such an accommodation. See 42 U.S.C. § 12111(9)-(10).<2> It is clear that the district court erred, however, in its blanket ruling that an employer need not provide an accommodation to an employee who can perform the essential functions of the job, as the plain meaning of the statute and numerous examples demonstrate. A. The Plain Language of the Statute Requires Employers to Provide Reasonable Accommodations to Employees Who Can Perform the Essential Functions of the Job Without an Accommodation. The ADA protects persons with disabilities, defined to include individuals with “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A). The Act was designed to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1); see also S. Rep. No. 101-116, at 2 (1989) (ADA designed “to bring persons with disabilities into the economic and social mainstream”). To that end, Title I of the ADA broadly prohibits employers from “discriminating” against a qualified individual with a disability “because of the disability of such individual.” 42 U.S.C. § 12112(a). Discrimination under the ADA includes not making reasonable accommodations to the known limitations of an otherwise qualified individual with a disability. 42 U.S.C. § 12112(b)(5)(A). A “qualified” individual with a disability is one who can perform the “essential functions”<3> of the job in question, with or without reasonable accommodation. Id. § 12111(8). For purposes of this appeal, it is undisputed that Rauen is a qualified individual with a disability. The Commission also assumes for purposes of this brief that Rauen could perform the essential functions of the job without any accommodation.<4> Thus, the sole question is whether U.S. Tobacco is required to reasonably accommodate Rauen's disability-related limitations that do not affect her ability to perform the essential functions of her position. The plain language of the ADA makes it clear that U.S. Tobacco's obligation to provide a reasonable accommodation is independent of whether Rauen can perform the essential functions of her job without a reasonable accommodation. The statute provides that an employer must reasonably accommodate the “known physical or mental limitations of an otherwise qualified individual with a disability.” Id. § 12112(b)(5)(A). In no way does the plain language of the statute limit an employer's obligation to accommodating only limitations that affect performance of the essential functions of an employee's position. Indeed, the term “essential functions” appears only once in the ADA, and in a completely different section of the statute than an employer's duty to reasonably accommodate a disabled employee. Compare 42 U.S.C. § 12111(8) (defining coverage of ADA to include reference to essential functions), with 42 U.S.C. § 12112(b)(5)(A) (imposing duty of reasonable accommodation on employer). Thus, absent undue hardship, an employer must accommodate the physical or mental limitations of disabled individuals of which it is aware. Id. at § 12112(b)(5)(A). This statutory requirement to accommodate disabled employees is therefore unrelated to an employee's ability to perform the essential functions of the job. The district court's decision holding that U.S. Tobacco need not provide any accommodation to Rauen because she could perform the essential functions of her position without a reasonable accommodation is therefore clearly incorrect. There is Significant Authority Requiring Employers to Provide Reasonable Accommodations to Employees Who Can Perform the Essential Functions of the Job Without an Accommodation. The district court's statement that there is no authority on this issue is erroneous. 161 F. Supp. 2d at 905. The statute, federal regulations, EEOC guidance, and case law provide numerous examples illustrating that employers are required to provide a reasonable accommodation to an employee who can perform the essential functions of his or her job without an accommodation.<5> These authorities identify a number of accommodations that may be provided to an employee who can perform the essential functions of the job without an accommodation, including: (1) accommodating limitations that affect performance of marginal functions of the job; (2) modifying work schedules; (3) providing access to employment facilities; (4) providing equal benefits and privileges of employment; and (5) providing leave. These examples lend further support to the plain meaning of the statute requiring employers to accommodate all known physical or mental limitations of disabled workers, because the accommodations are not connected to the employee's ability to perform the essential functions of the job. Based on the rationale applied to the accommodation analysis in these situations, then, there is no legal support for the district court's restrictive reading of the duty to accommodate in this case.<6> 1. Accommodating Limitations That Affect Performance of Marginal Job Functions. An employer may be required to reasonably accommodate a disabled employee by restructuring that employee's job. 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii).<7> The EEOC's guidance explains that “[a]n employer or other covered entity may restructure a job by reallocating or redistributing non-essential, marginal job functions. . . . An employer or other covered entity is not required to reallocate essential functions.” 29 C.F.R. pt. 1630, app. at 358 (2001) (emphasis added). Thus, for example, if a member of a cleaning crew in an office building has a prosthetic leg that enables him to walk well but makes climbing stairs a difficult and painful task, the employer would be required to eliminate the employee's marginal job function of sweeping the stairs. See EEOC, Technical Assistance on Title I of ADA, 8 FEP Manual (BNA) 405:6981, 7614 (1992).<8> The case law further supports the requirement that employers must reasonably accommodate limitations in the ability to perform the marginal functions of an employee's job by altering or eliminating them. See, e.g., Hoffman v. Caterpillar, Inc., 256 F.3d 568, 577 (7th Cir. 2001) (noting that ADA requires employer to make accommodations to enable employee to perform essential job functions “including removing nonessential functions from the job”); Bratten v. SSI Services, 185 F.3d 625, 632 (6th Cir. 1999) (noting ADA requires that marginal job functions must be accommodated or shifted); Benson v. Northwest Airlines, 62 F.3d 1108, 1112 (8th Cir. 1995) (stating that job restructuring includes reallocating the marginal functions of employee's job). The case law and the EEOC's guidance thus distinguish between marginal and essential job functions, and provide that an employer must reallocate only an employee's marginal job functions (either by restructuring or eliminating them) as a reasonable accommodation. Thus, job restructuring is a clear example of the law requiring employers to provide a reasonable accommodation to an employee who can perform the essential functions of the job without an accommodation. 2. Modified Work Schedules. An employer may be required to accommodate a disabled employee's need for a flexible work schedule – an accommodation not directly related to an employee's ability to perform the essential functions of his job. See 42 U.S.C. § 12111(9)(B) (defining reasonable accommodation to include part-time or modified work schedules); 29 C.F.R. § 1630.2(o)(ii) (including “modifications or adjustments” under definition of reasonable accommodation). Thus, for example, the Commission's guidance provides that an employer would be required to provide an HIV positive employee with a 45-minute break during the work day to allow the side effects of nausea-inducing medication to subside. EEOC, Technical Assistance on Title I of ADA, 8 FEP Manual (BNA) 405:7618. The employee in this example clearly can perform the essential functions of his position without an accommodation; however, the Commission's guidance, as well as the statute and regulations, provide that the employer must still accommodate the employee's disability-related limitations. Id.; 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(ii). In addition, the Commission's guidance provides that a reasonable accommodation may include modifying an employee's work schedule if that employee is dependent upon public transportation and requires a different schedule to use that system. EEOC, Technical Assistance on Title I of ADA, 8 FEP Manual (BNA) at 405:7010; see also S. Rep. No. 101-116, at 31 (1989) (“[o]ther 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”). Again, the employee in that example is still able to perform the essential functions of the job without an accommodation, but simply requires an accommodation to get to and from his or her place of employment. The case law further demonstrates that the courts view a modified work schedule as a reasonable accommodation. See, e.g., Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591, 601 n.11 (7th Cir. 1998) (“The ADA provides that modified work schedules and part-time employment are broad types of reasonable accommodation which an employer may be required to provide”); Ralph v. Lucent Technologies, 135 F.3d 166, 172 (1st Cir. 1998) (modified work schedule is a form of reasonable accommodation); Holt v. Olmsted Twp. Bd. of Trustees, 43 F. Supp. 2d 812 (N.D. Ohio 1998) (“The language of the statute is clear. The ADA considers a modified work schedule to be a reasonable accommodation”). Thus, modified work schedules provide another clear example of the law requiring employers to provide reasonable accommodations to employees who can perform the essential functions of the job. 3. Access to Employment Facilities. The ADA provides that a reasonable accommodation can include changing existing facilities to make them readily accessible to disabled persons. 42 U.S.C. § 12111(9)(A). The Commission's regulations set forth the same requirement. See 29 C.F.R. § 1630.2(o)(2)(i) (“Reasonable accommodation may include . . . [m]aking existing facilities used by employees readily accessible to and usable by individuals with disabilities . . . .”). Thus, for example, the statute and regulations require that an employer modify a lunch or break room to make it accessible to a disabled employee. This type of accommodation does not assist an employee in performing the essential functions of his job; rather, it accommodates the employee's known physical limitations. See 29 C.F.R. Pt. 1630, app. at 358 (2001) (“This accommodation includes both those areas that must be accessible for the employee to perform essential job functions, as well as non-work areas used by the employer's employees for other purposes. For example, accessible break rooms, lunch rooms, training rooms, restrooms etc., may be required as reasonable accommodations.”); see also Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001) (noting that under statute, a reasonable accommodation may include making facilities used by disabled employees readily accessible); Van Zande v. Wisconsin, 44 F.3d 538, 542 (7th Cir. 1995) (“[a] ramp or lift is thus a reasonable accommodation for a person who like this plaintiff is confined to a wheelchair”). 4. Equal Benefits and Privileges of Employment. An employer must make reasonable accommodations that enable a disabled worker to enjoy the same benefits and privileges of employment as other employees. See 29 C.F.R. § 1630.2(o)(1)(iii) (“reasonable accommodation means . . . [m]odifications 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”). The Commission's guidance provides examples of accommodations that must be made to assure that a disabled employee is receiving the same benefits and privileges as other employees. These examples include providing access to services, transportation, and “parties or other social functions.” EEOC, Technical Assistance on Title I of ADA, 8 FEP Manual (BNA) 405:7613. Clearly, attending an office party is not an essential function of an employee's job. Nevertheless, employers are required to accommodate disabled employees so that they will be able to enjoy that type of non-essential benefit as well. See also EEOC v. MCI Telecommunications Corp., 993 F.Supp. 726, 729 (D. Ariz. 1998) (“Clearly, the right not to be singled out, embarrassed and humiliated by one's employer as a result of a disability is a benefit or privilege of employment”). 5. Providing Leave. An employer may be required to provide leave to a disabled employee as a reasonable accommodation. See 29 C.F.R. pt. 1630, app. at 358 (2001) (“other accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment”). The Commission's guidance provides a number of examples of situations in which leave may be an appropriate accommodation, including leave for training in the use of a guide dog or assistive device, and leave for substance abuse treatment. EEOC, Technical Assistance on Title I of ADA, 8 FEP Manual (BNA) 405:7011, 7615. An employee requiring these types of leave would likely be able to perform the essential functions of the job without an accommodation, but would simply need some time off as a result of his or her physical or mental limitations. These examples thus provide additional instances of the law requiring employers to provide reasonable accommodations to employees who can perform the essential functions of the job without an accommodation. See also Amadio v. Ford Motor Co., 238 F.3d 919, 928 (7th Cir. 2001) (“[u]ndoubtedly, a short, one-week medical leave constitutes a reasonable accommodation in many circumstances”); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000) (“[t]his court and others have held that a medical leave of absence–[plaintiff's] proposed accommodation–is a reasonable accommodation under the Act in some circumstances”). CONCLUSION As demonstrated above, the ADA frequently requires employers to provide reasonable accommodations unconnected to the essential functions of an employee's job. The district court's broad holding that an employer need not provide any accommodation to an employee capable of performing the essential functions of the job conflicts with the plain meaning of the ADA, and is therefore erroneous. For the foregoing reasons, this Court should reverse the district court's ruling that Rauen was not entitled to a reasonable accommodation. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 4285 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed R. App. P. 32(a)(5). _____________________ Joseph A. Seiner August 9, 2002 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 9th day of August, 2002, I caused two copies of the attached brief and a diskette containing the brief in a PDF format to be sent via first class U.S. mail to: Clerk of Court U.S. Court of Appeals for the Seventh Circuit 219 S. Dearborn Street, Room 2722 Chicago, IL 60604 Michael W. Rathsack 111 W. Washington Street Suite 962 Chicago, IL 60602 Attorney for Plaintiff-Appellant David M. Lefkow Holland & Knight 55 W. Monroe Street Chicago, IL 60603 Attorney for Defendant-Appellee __________________________ Joseph A. Seiner EEOC / Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 August 9, 2002 1 We take no position on any other issue raised in this appeal. 2 A home office is certainly within the realm of possible accommodations that employers may be required to provide disabled employees. See, e.g., US Airways v. Barnett, 122 S. Ct. 1516, 1523 (2002) (noting that plaintiff must “show that an ‘accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases”). Whether a home office is a reasonable accommodation ultimately turns on the particular facts of the case. See, e.g., Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995) (holding that except in extraordinary circumstances an employer is not required to permit disabled employees to work at home); Langon v. Dep't of Health & Hum. Servs., 959 F.2d 1053, 1060-61 (D.C. Cir. 1992) (finding issue of fact regarding whether employer must provide employee with multiple sclerosis a work-at-home option as a possible accommodation under the Rehabilitation Act); see also Barnett, 122 S. Ct. at 1524 (holding that plaintiff can show that special circumstances warrant a finding that “the requested ‘accommodation' is ‘reasonable' on the particular facts”). Because the district court did not determine whether working at home would be a reasonable accommodation in this case, the Commission takes no position on this issue. 3 The ADA itself does not explain what “essential functions” are, but Commission regulations define the term as “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). A job function may be essential because, for example, “the reason the position exists is to perform that function,” there are a limited number of employees among whom performance of the function can be distributed, or the incumbent in the position was hired for his or her expertise to perform a highly specialized function. Id. § 1630.2(n)(2). 4 Appellant argues in its brief that the district court erred in finding that Rauen could perform the essential functions of her job without an accommodation. See Appellant's Brief, Argument Section I, at pp. 19-29. In the Commission's view, this Court need not reach that issue, because Rauen is entitled to a reasonable accommodation whether or not she can perform the essential functions of her job without an accommodation. 5 Indeed, Judge Posner remarked recently, “[w]e can imagine a person who though disabled within the meaning of the [ADA] is by heroic efforts able to work even without an accommodation, and we agree that such a person should not be penalized by being deemed not to be disabled and so not entitled to an accommodation when he finally seeks one.” Szmaj v. Am. Tel. & Tel. Co., 291 F.3d 955, 957 (7th Cir. 2002). 6 The district court's confusion on this issue is understandable, as the case law addressing reasonable accommodations often discusses an employer's obligation to accommodate the essential functions of an employee's job. However, the case law does not restrict reasonable accommodations only to those needed to facilitate an employee's performance of essential functions, as the district court erroneously held. 7 The EEOC's regulations on Title I of the ADA are authorized by statute, see 42 U.S.C. § 12116, and therefore are entitled to substantial deference under the rule of Chevron, U.S.A. v. NRDC, 467 U.S. 837 (1984). See Chevron U.S.A. v. Echazabal, 122 S. Ct. 2045 (2002); see also Philbin v. Gen. Elec. Capital Auto. Lease Inc., 929 F.2d 321, 323 (7th Cir. 1991); Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc). 8 As an interpretation of its own regulations, the EEOC's guidance is entitled to “substantial deference” and “must be given controlling weight unless . . . plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 n.7 (7th Cir. 1998).