Parking as a Reasonable Accommodation When Management is Assigned Parking Spaces
Question:
Is an employer in the city of Chicago required to provide a disabled employee with a parking space if it provides parking spaces for other selected employees such as manager-level employees?
Answer:
Accessible, reserved parking may be a form of reasonable accommodation for a disabled employee under Title I of the Americans with Disabilities Act (“ADA”) if the employer provides parking spaces to all personnel. Unfortunately, the law is unclear with regard to an employer’s designated parking obligations when the employee is not otherwise entitled to a parking space.
Under Equal Employment Opportunity Commission (“EEOC”) interpretive guidance, employers must provide modifications or adjustments to the work environment “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.” See 29 C.F.R. §§ 1630.2(o) (iii). Thus, according to the EEOC, if parking is a benefit or privilege of employment, employers should consider accessible parking as form of reasonable accommodation. See 29 C.F.R. § 1630.2(o)(iii). See also http://www.eeoc.gov/facts/accommodations-attorneys.html (EEOC Hypothetical Example 21 -- assigned parking necessary as accommodation when unassigned parking offered as benefit of employment).
Unfortunately, using the above-stated “guidance,” an employer might argue that providing an accessible reserved parking space as an accommodation to an individual not entitled to a parking space would be an extra, unequal perk, not an equal benefit. An employer could also argue that it is only required to provide reasonable accommodations that eliminate barriers within (not outside) the work environment, and that employers are not typically required to assist workers in getting to and from work. Even more compelling, employers could note that, under the ADA Title III architectural standards for accessibility to places of public accommodation, employers are bound by the minimum disabled parking requirements only if they already provide parking to other employees and/or visitors. See also http://www.eeoc.gov/facts/accommodations-attorneys.html (an employer has the right to choose to provide paid parking while not providing subsidies for use of public transportation); Kornblau v. Dade County, 86 F.3d 193 (11th Cir. 1996) (holding that the ADA does not prohibit an employer from having three separate lots as long as accessible parking is provided in each and that it did not have to provide a disabled employee with one of the reserved spaces closest to the building which were reserved for county commissioners and officials).
Conversely, a disabled employee could reason that a “reasonable accommodation” under the ADA includes “making existing facilities used by employees readily accessible to and usable by individuals with disabilities.” The employee could argue that accessible parking is a necessary accommodation because otherwise he or she could not access the work site. Put another way, accessible parking would be necessary to provide an equal employment opportunity.
While not binding within the Seventh Circuit (which includes Illinois), the First and Second Circuit Courts of Appeals have issued opinions that suggest that an employer might be obligated to provide parking that meets the needs of an individual with a disability, even if parking is not provided to other employees. In 2000, the First Circuit ruled that a store should have permitted an employee who had no legs to park in the customer lot’s accessible spaces, which were closer to the entrance, rather than requiring her to park in the employee parking lot, which had no accessible spaces. The court noted that “[i]t is not sufficient to treat plaintiff as all other employees.” See Marcano-Rivera v. Pueblo International, 232 F.3d 245 (1st Cir. 2000). The Second Circuit went even further. In Lyons v. Legal Aid Society, an employee with a disability requested that her employer pay for a parking space near her office, even though her employer did not provide paid parking for any other employees. The district court had dismissed Lyon’s complaint, stating that the ADA did not require an employer to provide paid parking. The Second Circuit disagreed, holding that a paid parking space was a form of reasonable accommodation. Furthermore, the Court suggested that the fact that other employees did not receive paid parking might be irrelevant to whether an employee with a disability could receive such parking. The Court, however, did not make a final decision in this case, and instead returned the case to the district court for a trial to determine whether the Legal Aid Society could show reasons why it would not be required to provide paid parking for her as an accommodation. See Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995).
While the EEOC has declined to take a position on the specific issue you have raised, it has addressed this question in the form of a 1997 guidance letter. In that matter, an individual had a reserved, underground parking space close to the elevators. Her agency was moving into a new building that had limited underground parking that would be reserved for management personnel. The EEOC advised that, while the law was not clear, the Second Circuit Lyons case “presented an argument” for providing this non-management employee with a covered space. However, the EEOC also stated that the ADA regulations could be used to argue that the agency was meeting its obligation by providing her with an accessible space in the unprotected parking lot if that was where similarly-situated, non-disabled employees would be parking.
Please keep in mind that it never hurts to ask. We advise that you discuss your need for an accessible parking spot with your employer and begin a dialogue to find an amenable solution. You can also discuss a myriad of other effective accommodations with your employer if reserved, accessible parking is not an option (e.g., moving your workstation closer to the parking lot, providing valet parking, allowing work from home, etc.).