GT Alert

U.S. Supreme Court Rules That Employers Do Not Have To Disturb Seniority Systems To Accommodate Disabled Employees Absent Proof Of Special Circumstances

May 2002
By John F. Scalia, Esq. and David A. Kessler, Esq., Greenberg Traurig, Tysons Corner Office

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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 particular facts….""

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. Airways standard.

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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