U.S. Supreme Court Rules That Employers Do Not Have To Disturb Seniority
Systems To Accommodate Disabled Employees Absent Proof Of Special Circumstances
By John F. Scalia, Esq. and
A. Kessler, Esq., Greenberg Traurig, Tysons Corner Office
View or download the PDF version of this Alert
In a case of importance to all employers that use seniority systems for
promotion, transfer and termination, a 5-4 majority of the United States
Supreme Court ruled on April 29, 2002 that employers are entitled to a "rebuttable
presumption" that an accommodation requested by a disabled employee under
the Americans With Disabilities Act (ADA) is unreasonable if it conflicts
with seniority rules for job assignments. U.S. Airways, Inc. v. Barnett,
535 U.S. ___, 2002 WL 737494 (2002).
|"The Court held that while "the
seniority system will prevail in the run of cases[,]" a disabled
employee "nonetheless remains free to show that special circumstances
warrant a finding that, despite the presence of a seniority
system . . . the requested ‘accommodation’ is ‘reasonable’ on the
The ADA prohibits an employer from discriminating against a disabled
employee (or applicant) who can perform the essential functions of the job
with or without a "reasonable accommodation." 42 U.S.C. § 12112(a) & (b).
An employer that fails to provide a reasonable accommodation is liable
for disability discrimination, unless the employer can demonstrate that
the accommodation would pose an "undue hardship" on the employer’s business.
The ADA provides specifically that a reasonable accommodation "may include
. . reassignment to a vacant position." Id. at §§ 12112(b)(5)(A) & 12111(9)(B).
However, the statute is silent on how reassignment as a form of reasonable
accommodation interacts with a company’s seniority system, and, in particular,
whether, and under what circumstances, an employer must make exceptions
to its seniority system when reassigning a disabled employee. In the absence
of any specific statutory guidance, lower federal courts have reached conflicting
conclusions about the legal significance of a seniority system on an employer’s
duty to reasonably accommodate a disabled employee under the ADA.
In U.S. Airways, respondent Robert Barnett injured his back while
working as a cargo-handler for petitioner U.S. Airways, Inc. Based on Barnett’s
seniority rights, the company transferred him to a less physically demanding
position in the mailroom. Barnett’s new position later became open to seniority-based
employee-bidding under the Company’s established seniority system, and employees
with more seniority than Barnett planned to bid on the position he currently
held. U.S. Airways refused Barnett’s request to accommodate his disability
by allowing him to remain in the position, and Barnett lost the position
as a result of a neutral application of the seniority system.
Barnett filed suit under the ADA, asserting that U.S. Airways failed
to reasonably accommodate his disability by retaining him in his mailroom
position. The California federal district court found that altering a seniority
system would result in an "undue hardship" to both U.S. Airways and its
non-disabled employees, and granted summary judgment in favor of U.S. Airways.
The Ninth Circuit Court of Appeals reversed the district court, holding
that "a seniority system is not a per se bar to reassignment" but merely
one factor to consider in determining whether a particular accommodation
would impose an undue hardship on an employer. According to the Ninth Circuit,
a case-by-case, fact-intensive analysis was required.
The Supreme Court vacated and remanded the Ninth Circuit’s decision.
The Court held that ordinarily an employer’s showing that a requested
accommodation conflicts with established seniority rules is sufficient to
show that the accommodation is unreasonable (and therefore not required
under the ADA). According to the Court, in situations involving a conflict
between a requested accommodation and a seniority system, "the seniority
system will prevail in the run of cases." The Court recognized the importance
of maintaining the integrity of seniority systems, stating that "the typical
seniority system provides important employee benefits by creating, and fulfilling,
employee expectations of fair, uniform treatment." The Court expressed concern
that "to require the typical employer to show more than the existence of
a seniority system might well undermine the employees’ expectations of consistent,
uniform treatment – expectations upon which the seniority system’s benefits
depend." However, the Court also recognized that "special circumstances
might alter the important expectations" created by the existence of the
seniority system. Therefore, the Court went on to hold that a disabled employee
"nonetheless remains free to show that special circumstances warrant
a finding that, despite the presence of a seniority system . . . the requested
‘accommodation’ is ‘reasonable’ on the particular facts…."
Under the Supreme Court’s "rebuttable presumption" standard, the courts
now must find that a seniority system prevails over an ADA accommodation
request unless the requesting employee can present evidence of special circumstances
that make the request reasonable notwithstanding the existence of the seniority
system. In adopting this rule, the Court rejected the parties’ arguments
and adopted a middle-ground approach. The Court rejected U.S. Airways’ argument
that a proposed accommodation that conflicts with a seniority system is
automatically unreasonable because the ADA only requires equal treatment
for disabled employees and does not require preferential treatment. According
to the Court, U.S. Airways’ argument "fails to recognize what the Act specifies,
namely, that preferences will sometimes prove necessary to achieve
the Act’s basic equal opportunity goal." (Emphasis added.) Yet the Court
also rejected Barnett’s argument that a "reasonable" accommodation merely
means one that is "effective;" the Court explained that "a demand for an
effective accommodation could prove unreasonable because of its impact,
not on business operations, but on fellow employees – say because it will
lead to dismissals, relocations, or modification of employee benefits to
which an employer, looking at the matter from the perspective of the business
itself, may be relatively indifferent."
The U.S. Airways "rebuttable presumption" standard presents significant
implementation and predictability problems for employers because it fails
to delineate any bright-line rules to follow. Most problematic is how an
employer is to know whether a particular set of facts rises to the level
of "special circumstances" such that the employer is obligated to disregard
its seniority system. This and other issues will have to be answered through
litigation and subsequent lower court opinions applying the new U.S.
In the meantime, employers are well-advised to review very carefully
each and every accommodation request made by disabled employees – even where
such a request conflicts with an established seniority system. In reviewing
accommodation requests that implicate seniority systems, employers must
consider not only the impact that the requested accommodation will have
on business operations and on other employees, but also whether any "special
circumstances" exist. Such special circumstances may include the following:
- Whether the employer has made unilateral changes to the seniority
agreement, and, if so, the nature and frequency of those changes;
- Whether any exceptions have been made to the seniority system in the
past, and, if so, the nature and frequency of those exceptions;
- The degree to which the workforce as a whole understands that the
established seniority system allows for exceptions;
- The degree to which making an exception for the disabled employee
will diminish the workforce’s confidence in the seniority system and expectation
that the seniority system will be followed; and
- Any other "special circumstances" that may warrant granting the accommodation
request notwithstanding the existence of the seniority system.
© 2002 Greenberg Traurig
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