Robert Barnett worked for U.S. Air, which had a policy to allow employees to change jobs under a seniority system. This policy was not part of a collective bargaining agreement. During his employment, Barnett injured his back. After returning from disability leave, Barnett could no longer perform all of the physical requirements of his job, and he used his seniority rights to transfer into a mailroom position. Subsequently, Barnett learned that two employees with greater seniority planned to exercise their seniority rights to transfer to the mailroom, which would have “bumped” Barnett out of the mailroom and into the cargo area of the company, which would require heavy lifting.
Barnett requested that he be allowed to stay in the mailroom as a reasonable accommodation under the ADA. When this accommodation was not provided, Barnett asked that he either be provided with lifting equipment in the cargo facility or that the cargo job be restructured so that he would do only warehouse office work. Ultimately, his employer also denied these additional accommodation requests.
Barnett filed with the Equal Employment Opportunity Commission, which found that U.S. Air had discriminated against Barnett by failing to provide him with a reasonable accommodation. Subsequently, Barnett filed suit under the ADA against his employer on a variety of issues, including the employer’s failure to make an exception to its seniority policy and its refusal to provide him with a reasonable accommodation. The trial court granted summary judgment in favor of the employer, and Barnett appealed the case to the 9th Circuit Court of Appeals. The 9thCircuit affirmed, but following a rehearing by the full panel of the 9th Circuit case, the court ruled that reassignment is a reasonable accommodation available under the ADA, and that a seniority system cannot be a per se bar to reassignment. The court held that a seniority system is a factor in determining if an accommodation would pose an undue hardship, and that a case-by-case fact intensive analysis is required to determine whether any particular reassignment would constitute an undue hardship to the employer. The court went on to hold that if there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if otherwise qualified for a position, should receive the position rather than merely being given the opportunity to compete for the job with non-disabled employees.
THE U.S. SUPREME COURT AGREES TO HEAR THE CASE
The Supreme Court vacated the decision by the 9th Circuit Court of Appeals and remanded the case for further proceedings. The Court declined to adopt U.S. Airways’ position that a reassignment, which violates the rules of a seniority system, would be a “per se” unreasonable accommodation. The Court also rejected U.S. Airways’ argument that the position in question was not vacant as required for the reasonable accommodation of reassignment because the established seniority system would assign that position to another worker automatically. Rather, the Court stated that the position became “open” when it came up for bidding. However, the Supreme Court also rejected Barnett’s argument that a conflict between a seniority system and a request for reasonable accommodation is simply one factor when determining if a request would pose an undue hardship. After rejecting both parties’ positions, the Court held that while a request for reassignment would normally be reasonable, the fact that it would violate the rules of a seniority system ordinarily would make it unreasonable. Therefore, employees seeking such an accommodation would have to show special circumstances that the requested accommodation is reasonable in a particular case. For instance, if an employer retained the right to change the seniority system unilaterally and frequently exercised that right, there would be a stronger argument that it would not be an undue hardship to make an exception for an employee with a disability.
POTENTIAL IMPLICATIONS OF THE CASE
Generally, seniority policies will trump a request for reassignment under the ADA unless an employee can show special circumstances why the seniority policy would not pose an undue hardship on the employer.
The Supreme Court expressly recognized that reasonable accommodations that treat individuals with disabilities differently from other employees are sometimes required to create an equal opportunity. The Supreme Court rejected U.S. Airways’ argument that the ADA did not permit employers to provide preferences to people with disabilities.
While this particular case did not involve a seniority system under a collective bargaining agreement, the Supreme Court’s decision will likely apply to similar reasonable accommodation requests in unionized settings.
The Supreme Court’s decision would appear to resolve the issue of whether a person who requests reassignment as a reasonable accommodation under the ADA is entitled to that particular position if he or she is otherwise qualified, or if the employer is only required to allow that person to compete for the job. The Court implied that if the employee can demonstrate that special circumstances exist to make an exception to the seniority policy, the employee should be placed in the position. However, a recent 7th Circuit decision appears to still require employers to only allow employees with disabilities to compete for the position rather than be placed in the position as an accommodation. See Mays v. Principi, 2002 WL 2019361 (7th Cir. Sept. 5, 2002).
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