The ADA Generally Will Not Require Employers to Abandon Seniority Systems in Filling Vacant Positions
The Employment and Labor Law Alert
May 1, 2002
The Americans with Disabilities Act, 42 U.S.C. Sec. 12101 et seq. (“ADA”) requires employers to honor requests for reasonable job accommodations from disabled employees unless the requested accommodation will cause the employer “undue hardship.” Regulations promulgated under the ADA provide that reasonable accommodation may include assignment to a vacant position. The courts have generally held that the ADA does not require an employer when filling job vacancies to ignore a seniority system that is part of a collective bargaining agreement. In US Airways Co., Inc. v. Barnett, 2002 WL 737494 (April 29, 2002), the United States Supreme Court undertook to decide whether employers who have unilaterally adopted seniority systems for filling job vacancies are required to disregard those systems when a disabled employee requests a vacant position as a reasonable accommodation for his or her disability or whether such a requirement would constitute an undue hardship.
Barnett worked as a cargo handler for US Airways until his back condition rendered him unable to continue in that job. He applied for and was given a vacant position in the mailroom. After he had worked in the mailroom for 2 years, he learned that two more senior employees had bid on the job pursuant to the company’s seniority system. He then requested to remain in that job as a reasonable accommodation for his disability. The employer ultimately denied his request and terminated his employment. The trial court ruled for the employer, holding that to require the employer to alter its seniority system would constitute an “undue hardship.” The Court of appeals, however, reversed the trial court, holding that the seniority system was only one factor to be considered in the “undue hardship” analysis.
The Supreme Court, in an opinion by Justice Breyer, recognized that an employer’s workforce will generally place great reliance on the company’s seniority system, even one adopted unilaterally by the company as opposed to one embodied in a collective bargaining agreement. Thus the court reasoned that, although a request to fill a vacant position might constitute a request for a reasonable accommodation on its face, generally the company will successfully be able to maintain that requiring it to alter its seniority system will amount to an unde hardship. The Court allowed for the possibility, however, that “special circumstances” might require the employer to grant the requested accommodation. The Court did not provide an exhaustive list of such circumstances but gave as examples situations where the employer routinely ignored its own seniority system or where its seniority system already contained exceptions such that one more exception would not frustrate the expectations of the workforce.
Justices Scalia and Thomas dissented, arguing that the Court’s “special circumstances” exception was ill conceived. On the other hand, Justices Souter and Ginsberg dissented on the grounds that there should be no presumption of undue hardship arising from the existence of the seniority system, agreeing, in essence, with the Court of Appeals that the existence of the seniority system was only one factor to consider in deciding whether the requested accommodation was a reasonable one.
Although the Court allowed for the possibility that special circumstances might require employers to disregard their seniority systems or filling job vacancies, in the face of a request for a reasonable accommodation by a disabled employee, an employer should generally feel secure that it can rely on a bona fide seniority system that it consistently applies to its workforce. What remains to be seen is how the Court will deal with other policies that employers have invoked to deny requests for vacant jobs made by disabled employees, such as a policy that the job will be given to the most qualified applicant or a policy that full time employees will be given preference over part-time employees. Will such policies always be upheld in the face of a disabled employee’s request to fill a vacant position or will the courts give the disabled employee the opportunity to demonstrate that special circumstances warrant a contrary result?