On Monday, April 29, 2002, the U.S. Supreme Court decided an interesting ADA (Americans with Disabilities Act) issue by a 5-4 split among the Justices. US Airways, Inc. v. Barnett, a case on appeal from a federal court in California, protects seniority systems in the workplace but does not hold them inviolate to the requests of disabled employees.
Summary. The ADA prohibits an employer from discriminating against a disabled employee who, with (or without) "reasonable accommodation," can perform the essential functions of the job. This recent decision provides some guidance to employers who ask, "What is a reasonable accommodation?" The specific issue addressed by the US Airways Court is whether it is a "reasonable accommodation" to move a disabled employee to a particular job assignment when doing so is contrary to the company's seniority system. The Court's answer is that generally, it would not be reasonable to require an employer to disturb a well-established seniority system as an accommodation of a disabled employee. But the Court will permit the disabled employee to show that there are "special circumstances" that render the requested accommodation a reasonable one, despite its impact on the company's seniority system.
Factual background. Robert Barnett, a US Airways cargo handler at the San Francisco International Airport, was transferred to a cushy mailroom job in 1990 after he hurt his back at work. Barnett did not want to be bumped out of the mailroom by more senior employees, so in 1992 he asked US Airways to accommodate his back disability by allowing him to stay in the mailroom indefinitely. This would require the airline to make an exception to its seniority system, which otherwise would periodically put the desirable mailroom job up for "bidding" by other employees. (The seniority system involved here was issued under a corporate policy manual, not a collective bargaining agreement.) US Airways decided not to disturb its seniority system, and five months later Barnett lost the mailroom job to a more senior co-worker. Barnett then sued, claiming that US Airways illegally discriminated against him by denying his requested "reasonable accommodation."
Litigation history. The federal district judge stopped Barnett's case before trial, granting US Airways' motion for summary judgment because of US Airways' argument that disturbing its well - established seniority system could never be a "reasonable accommodation" to a disabled employee. The Ninth Circuit Court of Appeals reversed, ruling that it was inappropriate to rule on the case before trial on the basis of US Airways' seniority system. The Supreme Court vacated and remanded for further pre-trial proceedings under a new "general rule with exceptions" test - Barnett will now be permitted to attempt to overcome summary judgment by showing that there are "special circumstances" that make his request a reasonable one.
The case is interesting because the nine-member Supreme Court issued five separate opinions in a rather unique mix of conservative and liberal justices (link provided below) to deal with what appears to be a relatively simple issue. (Justice O'Connor flatly writes in her concurrence that she joins the majority only because the Court was divided and she wants to avoid a "stalemate.")
Majority opinion. The majority of the Court, in an opinion written by Justice Breyer and joined by Chief Justice Rehnquist and Justices Stevens, O'Connor, and Kennedy, stated that as a general rule, a request to violate a seniority system is not a reasonable accommodation -- "unless there is more." This means that employers should be able to obtain summary judgment in a lawsuit filed by a disabled employee for whom the company refuses to violate an established seniority system. But the employee/plaintiff can overcome summary judgment by showing "special circumstances" that make the request to violate the seniority system "reasonable." For example, according to the majority, it may be reasonable to disturb a seniority system that has been changed so often in the past, there is no longer a reasonable expectation it will be followed at all. Or if the seniority system already has so many exceptions, one more won't make a difference.
Two concurring opinions. Justice O'Connor concurred with the outcome of the majority, but wrote separately to articulate a unique rationale. Under Justice O'Connor's proposed "legally enforceable" test, rejected by the majority, only a "legally enforceable" seniority system (as strong as one in a binding collective bargaining agreement) has an impact on a request for accommodation, because the ADA lists "reassignment to a vacant position" as an example of a reasonable accommodation. If the seniority system is not legally enforceable, the position requested is "vacant" under the law, and must be offered to a disabled employee as a reasonable accommodation. On the other hand, a legally enforceable seniority system gives a senior employee the right to the position in question, such that the position is never truly vacant. US Airways, like many employers, reserves the right to change its employment policies unilaterally and without notice, so such policies are not "legally enforceable" (according to O'Connor) and should not be used to escape the necessary accommodation of disabled employees.
Justice Stevens also concurred with the majority, but wrote separately to list the issues to be decided by the trial judge on remand.
Two dissenting opinions. In a highly critical opinion, Justices Scalia and Thomas dissented because the majority's adopted "general rule with exceptions" test is inherently uncertain and is likely to trigger "constant litigation." They would prefer to adopt a per se rule protecting seniority systems from the requests of disabled employees, because seniority systems do not burden a disabled employee "because of" the disability. According to Justices Scalia and Thomas, "Indulging its penchant for eschewing clear rules that might avoid litigation, the Court answers 'maybe'" to a question best answered with a "yes" or "no."
Justices Souter and Ginsburg dissented for different reasons. They believe that the ADA (unlike Title VII and the ADEA) does not statutorily protect an employer's decisions made according to seniority systems. Further, they believe US Airways "took pains to assure that its seniority rules raised no great expectations," so Barnett's request to keep his mailroom job cannot reasonably be viewed as an undue hardship on US Airways. Souter notes that most employment lawyers would agree that the US Airways seniority system did not create a contract right. Therefore, with US Airways admittedly free to modify its seniority system at will, US Airways should have the burden of showing that doing so presents an undue hardship, as opposed to the majority's result, which burdens Barnett to show "special circumstances."
Conclusion. In short, the US Airways decision provides some protection for employers with well-established seniority systems, but also invites future litigation over the "special circumstances" that will permit a disabled employee to get in front of a jury on a claim of disability discrimination. If you would like more information on this or other ADA issues, please do not hesitate to contact one of the Buchanan Ingersoll labor and employment attorneys. The link to the Courts' five opinions in this recent decision is provided below for reference.
US Airways, Inc. v. Barnett, No. 00-1250 (April 29, 2002), The Official Website of the Supreme Court of the United States.