Handing employers a mixed victory, the U.S. Supreme Court recently decided that there is a rebuttable presumption that a seniority system need not bend to a request by a disabled individual for a reasonable accommodation under the Americans with Disabilities Act (ADA). But the court held open the possibility that an exception might have to be made under particular circumstances.
In US Airways, Inc. v. Barnett, the employer had a long-standing seniority based job bidding system in a non-union environment. The policy reserved management’s right to change any and all portions of the seniority system at will. The plaintiff had injured his back while working in a cargo-handling position and had used his seniority rights to transfer to a less physically demanding position in the mailroom. However, all positions covered by the seniority system, including the plaintiff’s position, periodically became open to bidding. When the plaintiff learned that two senior employees wished to bid on his transferred position, he asked to remain in the position as a reasonable accommodation to his disability. His employer chose not to make an exception to the seniority rules, and the plaintiff lost his job.
The plaintiff’s complaint alleged that permitting him to remain in the mailroom despite his lower seniority was a "reasonable accommodation" of his disability, and that US Airways’ refusal to assign him permanently to the position violated the ADA. The district court ruled in favor of US Airways, granting its motion for summary judgment. However, the appellate court overruled the decision, finding that courts must decide on a case-by-case basis whether such an assignment would impose an undue hardship on the employer. The Supreme Court agreed to review the case to determine whether the ADA requires that reassignment of a disabled employee to a position as a reasonable accommodation even though another employee is entitled to the position under a bona fide seniority system.
The ADA prohibits "discrimination against a qualified individual with a disability." Discrimination includes an employer’s "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified . . . employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of business." In US Airways, the employer argued that an employer should never have to make an exception to its seniority system as a reasonable accommodation, while the employee argued that the employer should be required, on a case-by-case basis, to show that violating the seniority system to make an accommodation would create an undue hardship on the operations of the employer.
The closely divided Supreme Court reversed the appellate court’s decision and held that ordinarily the ADA does not require an employer to violate its seniority system in order to make a reasonable accommodation to a disabled employee. However, the court tempered its decision by allowing individual employees to show that the requested accommodation of an exception to the seniority system is reasonable on the particular facts of the employee’s case. According to the Supreme Court, examples of situations warranting such an exception might include a seniority system in which the employer already has made so many exceptions that no employee has an expectation that the system will be followed or "one further departure is unlikely to matter."
There were two dissents. Two justices would have held that the ADA does not require any exception to a seniority system in order to accommodate a disabled employee’s request for a reasonable accommodation. These justices criticized the court’s decision for leaving the issue in a state of uncertainty likely to "be resolved only by constant litigation." Two other justices would have held that the plaintiff had shown that the ADA required making an exception to the seniority system as a reasonable accommodation on his facts.
The ruling is more helpful than harmful to employers in that it bolsters the integrity of seniority systems and further recognizes the legitimacy of a seniority system unilaterally adopted by an employer in a non-union environment. For cases already in litigation, the decision probably will strengthen the employer’s leverage in settlement discussions.
However, many questions remain that employers will have to factor into their risk management regarding the creation and/or alteration of a seniority system and future requests for a reasonable accommodation that would violate a seniority system. For example, reliance on a pure seniority system can be helpful in union avoidance and in lowering the likelihood of viable civil rights claims. In fact, seniority systems increasingly are "seniority plus" systems in which skill sets, performance and ability may be factors, in addition to seniority. While it appears that such a system could be a bona fide seniority system within the Supreme Court’s decision, the question is not free from doubt. Similarly, in the course of bargaining with a union (or due to unilateral management decisions in a non-union environment) a particular position may become, or cease to be, covered by the seniority bidding process. To the extent that the Supreme Court’s decision is construed to permit lower courts to use such changes to override a seniority system to require a reasonable accommodation, it may have the effect of rendering an employer less willing to create "light duty" positions exempt from the seniority system.
Employers facing these situations under the ADA, or other employment disability issues, should seek advice from counsel.