Congress Moves on Bill to Ban Sexual Orientation Discrimination

On April 24, 2002, the Congressional Senate Health, Education, Labor, and Pensions Committee approved the Employment-Non-Discrimination-Act (ENDA or the Bill),1 which, if passed into law, would ban workplace discrimination based on sexual orientation. The Bill, which defines sexual orientation as "homosexuality, bisexuality, or heterosexuality, whether the orientation is real or perceived," makes it unlawful for an employer:

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's sexual orientation; or (2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or adversely affect the status of the individual as an employee, because of such individual's sexual orientation."

For many employers, a federal law prohibiting discrimination on the basis of sexual orientation would not create any new obligations. Several states and local governments already prohibit employers from discriminating against employees based on their sexual orientation.2 Nevertheless, discrimination in employment based on sexual orientation is not prohibited in most jurisdictions. The Senate Health, Education, Labor, and Pensions Committee approved ENDA, in part, to address what the Committee referred to as a "patch-work of protection" for gay and lesbian workers.

ENDA protections are similar to those provided in existing anti-discrimination laws. In addition, ENDA would provide a cause of action for discrimination where an adverse employment action is taken based on an employer's mere "perception" of an employee's or applicant's sexual orientation. This "perceived sexual orientation" provision is similar to language contained in the Americans with Disabilities Act that makes it illegal for an employer to discriminate against an otherwise qualified individual with a disability, whether that disability is real or simply perceived by the employer.3 ENDA would similarly prohibit an employer from discriminating against an employee based on that individual's sexual orientation, whether that specific orientation is real or perceived.

Another interesting aspect of ENDA is that it places additional prohibitions on a specific class of employer-employment agencies. ENDA would make it illegal for an employment agency to "fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of the sexual orientation of the individual or to classify or refer for employment any individual on the basis of the sexual orientation of the individual."

Despite its recent Senate Committee passage, ENDA's ultimate fate is by no means clear. ENDA will be referred to the full Senate where its likelihood of passage is fairly strong. The Bill's future in the House of Representatives is less certain in that, to date, House leaders have expressed little interest in moving to schedule ENDA for a vote.

 

Supreme Court Holds that Seniority Trumps Disability-Usually

In 1990, Congress enacted the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against disabled individuals who can perform the essential functions of the job with or without "reasonable accommodation." An employer's failure to provide reasonable accommodation constitutes illegal discrimination under the ADA unless the employer can demonstrate that a reasonable accommodation would pose an "undue hardship" on the business.

The "reasonable accommodation" requirement is often at odds with an employer's established seniority system. For example, consider a disabled employee who, because of a serious sleep disorder, is no longer able to work on the second shift. The employee requests, as a reasonable accommodation, to be moved to the first shift. The employer, however, has an established seniority system that governs all transfers between shifts, giving those employees with the most seniority the right to any opening. In this situation, is the employer required to ignore its seniority system, and offer the first shift opening to the disabled employee as a reasonable accommodation under the ADA? The Supreme Court addressed this question in its April 2002 ruling in US Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002).

At issue in Barnett was whether US Airways was required under the ADA to make an exception to its long-standing seniority policy to enable Robert Barnett, a 10-year employee with a severe back injury, to remain in his temporary mailroom job and to stay employed with the company. Barnett worked as a baggage handler in the airline's San Francisco terminal until 1990, when he injured his back unloading cargo. After he returned from disability leave, Barnett found that he could not handle the lifting and bending his job required. Barnett's doctor recommended that he avoid heavy lifting and excessive bending, so Barnett, using his seniority, successfully bid for a transfer to a swing-shift cargo handler position in the mailroom, a less strenuous job.

Pursuant to its seniority policy, US Airways opens certain job categories for bid every quarter. In 1992, the airline suffered significant financial losses and decided to lay off about half of its 14,000 customer service employees. At the same time, US Airways decided to open all cargo handler and mailroom positions-including Barnett's position-for bid. Consequently, many senior customer service employees bid for the open cargo handler and mailroom positions.

After Barnett learned that two senior employees were planning to bid for his swing-shift position, he wrote his manager requesting that US Airways make an exception to the seniority policy to allow him to stay in the mailroom. The airline allowed him to stay in the position for five months while it evaluated his request. At the end of the five months, however, Barnett was told he was being removed from the position and put on injury leave because he no longer could perform the cargo handler job. Barnett sent his manager a second letter, proposing two more accommodations: that US Airways provide him with special lifting equipment in the cargo area, or that it restructure his cargo job so that he would do only warehouse office work. Barnett also filed charges with the EEOC. Shortly thereafter, he received a letter from the airline's vice president of human resources denying his alternative requests but informing him he could bid for any job within his restrictions. There was no evidence that Barnett was qualified, without reasonable accommodation, for any other position in the airline's system.

The airline argued that a proposed accommodation that conflicts with an employer-established seniority system is automatically unreasonable-i.e., there is no need to determine whether the requested accommodation would pose an undue hardship because an employer is not required to provide accommodations that are unreasonable. Barnett argued that an employer has the burden to show that the conflict between the requested accommodations and the seniority rules constitutes an undue hardship in each specific case.

The Supreme Court, in remanding the case, rejected both sides' arguments. Specifically, the Court held that an employer's showing that a requested accommodation conflicts with a seniority system is ordinarily sufficient to show, as a matter of law, that an "accommodation" is not "reasonable."4 The Court, however, indicated that the employee could present evidence of special circumstances that make a seniority rule exception reasonable in the particular case.5 To do so, the plaintiff must explain why, in the particular case, an exception to the employer's seniority policy can constitute a "reasonable accommodation" even though in the ordinary case it cannot.

The Court gave the following example: "[t]he plaintiff might show, for example, that the employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing employee expectations that the system will be followed-to the point where one more departure, needed to accommodate an individual with a disability, will not likely make a difference."6 In accordance with its new analytical scheme, the Court ruled for neither party, and remanded the case to the Ninth Circuit Court of Appeals, which was to determine whether Barnett could prove that an exception to US Airways' seniority system would be a reasonable accommodation in this particular case.

Barnett has clear implications for employers with a seniority system. The most obvious implication is that employers must be aware that under some circumstances, they may have to accommodate a disabled employee by permitting an exception to their seniority system. The Supreme Court noted, however, that employers likely can avoid this specific accommodation-the exception to the seniority system-by applying their seniority system consistently and without exception.

Endnotes:
1 S. 1284, 107th Cong. (2002).
2 States that prohibit discrimination in employment on the basis of sexual orientation include: California; Connecticut; Hawaii; Massachusetts; Minnesota; Nevada; New Hampshire; New Jersey; New Mexico; New York (public employers only); Rhode Island; Vermont; and Wisconsin. Similarly, the following cities and other municipalities prohibit discrimination in employment on the basis of sexual orientation: Chicago (and Cook County, IL); San Francisco; Pittsburgh; New York; Denver; Los Angeles; Philadelphia; St. Louis; Kansas City; Minneapolis and St. Paul; Baltimore; Cleveland; Miami and Washington, D.C.
3 42 U.S.C. § 12101.
4 Barnett, 122 S.Ct. at 1525.
5 Id.
6 Id.

This Labor & Employment Update is published by Ross & Hardies to provide a summary of significant developments to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation