cbupdateshead.jpg
Client Bulletin No. 339
April 30, 2002

SUPREME COURT HOLDS THAT SENIORITY TRUMPS
DUTY TO ACCOMMODATE UNDER THE ADA . . . MOST OF THE TIME

How far must an employer go to fulfill its duty of reasonable accommodation under the Americans with Disabilities Act ("ADA")? Does the ADA mean that a disabled employee gets preference over more senior employees? On April 29, 2002, the U.S. Supreme Court resoundingly answered this question . . . "probably not."

Although the Court splintered over the details, all but two (Justices Souter and Ginsburg) generally supported employers’ rights to have and to honor seniority systems, even if that meant having to deny a reasonable accommodation to an ADA-disabled employee.

Many employers, both union and non-union, have seniority systems in place to promote fairness and deter disputes about entitlement to promotions and transfers, entitlement to work particular shifts, eligibility for vacation, and priority in layoff situations. If the seniority policy is part of a collective bargaining agreement, the employer may be required to follow it or face arbitration. Even if the employer is non-union, the policies may be legally enforceable in the many states that consider employee handbook provisions to be "contracts." In all cases, the employees at these companies often feel that the seniority system has "force of law" and have a strong expectation that it will be followed.

This was apparently the case at U.S. Airways, whose seniority policy (in a non-union workplace) was at issue in the Supreme Court decision. The U.S. Airways policy had been in place for "decades" and governed more than 14,000 employees. Robert Barnett was a former cargo handler who had been transferred to a less physically demanding position in the mailroom after injuring his back. After Barnett had been in the mailroom position for approximately two years, employees with more seniority than Barnett bid on and bumped him from his position. The airline refused Barnett’s request to be allowed to stay on the job despite his lack of relative seniority; thus, Barnett lost his job and sued U.S. Airways under the ADA.

U.S. Airways won summary judgment, and won on appeal before a three-judge panel of the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and Northern Mariana Islands). However, Barnett appealed to the full Ninth Circuit, and won. U.S. Airways appealed to the U.S. Supreme Court, who agreed to hear the seniority issue.

The Supreme Court majority (by Justice Breyer, joined by Chief Justice Rehnquist, and Justices Stevens, O’Connor, and Kennedy) held that, generally, an employer is entitled to a presumption that deviation from its seniority policy is an "unreasonable accommodation" and not required by the ADA. Ordinarily, the Court said, an employer in this situation will win summary judgment. However, the majority also said that the employee may defeat summary judgment by presenting evidence, for example, that the employer made frequent exceptions to its seniority policy, or frequently amended its policy to the extent that "one more exception" would not make much difference. Other highlights of the decision:
  • The majority saw no significant difference between a collectively bargained seniority policy and a seniority system in a non-union workplace .
  • It appears that an employee will bear the burden of showing that it would be "reasonable" for the employer to make an exception to its seniority policy.
  • The Supreme Court suggested that the "reasonableness" of the proposed accommodation is a separate issue from "undue hardship." This is good news for employers because the employee generally bears the burden of proving "reasonableness," but the employer bears a heavy burden of showing that a reasonable accommodation presents an "undue hardship" to the employer.

If you need help in determining whether your seniority policy will pass muster under the Supreme Court’s analysis, or if you need help in handling reasonable accommodation requests, please don’t hesitate to contact your Constangy attorney.