United States: Employers Dealt A Wild Card - Seniority System Trumps A Request For Accommodation

Co-authored by Mr Bruce Alper

In a recent decision, the United States Supreme Court kept a tight reign on the Americans with Disabilities Act ("ADA") by limiting an employee’s right to a "reasonable accommodation." In US Airways v. Barnett, 122 S. Ct. 1516 (2002), the Supreme Court considered whether a proposed accommodation which would normally be considered reasonable would become unreasonable if it would result in a violation of a company’s seniority system. The Court, after considering this conflict between the interests of a disabled worker seeking a position of "reasonable accommodation" and the interests of employees with superior rights to bid for that job pursuant to the company’s seniority system, held that an employer is not required to violate its seniority system to accommodate a disabled employee.

US Airways involved an airline cargo handler with a back injury who used his seniority rights to transfer to a position in the mailroom which was less physically demanding. Several years later after Barnett learned that other employees higher in seniority intended to bid on his mailroom position, Barnett requested that US Airways accommodate his disability by permitting him to remain in the mailroom position. US Airways refused his request to make an exception to the established seniority system, and Barnett was terminated.

Barnett filed suit against his former employer, claiming discrimination under the ADA. The District Court granted summary judgment for the employer, finding that an employer discriminates under the ADA when it fails to make a reasonable accommodation for a disabled employee unless the employer demonstrates that the requested accommodation imposes an undue hardship on the business. The Ninth Circuit reversed, holding that the court must evaluate undue hardship on a case-by-case basis.

According to the Supreme Court, "the typical seniority system provides important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment." The Court held that ordinarily an employer’s showing that the requested accommodation would violate the seniority system would warrant summary judgment in favor of the employer. However, if the plaintiff can present evidence of what the Court called "more," then he can defeat summary judgment. The Court defined "more" as special circumstances in a plaintiff’s particular case which would show that the requested accommodation is reasonable. For example, the plaintiff may show that the employer frequently exercises its right to unilaterally change the seniority system, or that the seniority system already contains exceptions. In those instances, the plaintiff can argue that employees have a reduced expectation that the system will be uniformly followed, and that one more departure to accommodate a disabled employee would not be an out-of-the-ordinary exception.

In so holding, the Court likened the issue presented to the context of a Title VII religious discrimination case, where an employer need not adapt to an employee’s special worship schedule as a "reasonable accommodation" where doing so would conflict with the seniority rights of other employees. Similarly, with respect to the Rehabilitation Act, collectively bargained seniority trumps a requested accommodation.

Only five justices joined in the majority opinion and two of those wrote separately that the majority should have afforded more protection to employers. Four justices dissented in two separate opinions. In dissent, Justice Scalia wrote that the ruling incorrectly subjects all employer rules and practices to the requirement of reasonable accommodation. Justice Scalia further attacked the majority’s creation of a "rebuttable presumption." Specifically, he states that the majority gives plaintiffs a "vague and unspecified power whenever they can show special circumstances to undercut bona fide systems." Scalia is particularly concerned that the Court’s new standard will only result in constant litigation over "special circumstances."

While the decision in US Airways clearly favors employers by limiting a disabled employee’s ability to disrupt a seniority system in order to accommodate his disability, employers must recognize that the Court did carve out an exception which will allow the plaintiff to at least survive summary judgment. As discussed above, if the plaintiff can articulate an employer’s exception to the seniority system, the employer may lose its safe harbor. In effect, this ruling discourages employers from making exceptions to the established seniority system in order to insulate employers from ADA discrimination charges. Therefore, the holding in US Airways should prompt employers to evaluate their current seniority systems and determine whether lenient enforcement must be curbed or regular exceptions eliminated. In any event, Justice Scalia’s prediction of heightened litigation over the existence of special circumstances will likely result as the Court’s new standard is potentially unclear.