The U.S. Supreme Court has provided employers some assistance in determining how to reconcile their obligations to reasonably accommodate a qualified person with a disability (as required by the ADA) with their seniority systems.
In the case before the Court (U.S. Airways v. Barnett), the employer had an industry typical seniority system not collectively bargained. Mr. Barnett was denied the opportunity to remain on a job which fit his disability because he could not successfully compete for it because of his limited seniority. A fact ignored by the Court, (and not relevant, apparently, under U.S. Airways’ seniority system) was that Mr. Barnett’s disability arose out of an on-the-job injury. A fact considered by the Court, but found not as a basis for favoring Mr. Barnetts argument, was that U.S. Airways had reserved the right to change its seniority system as and when it chose to do so.
The Court emphasized the importance of seniority systems to all employees and held that U.S. Airways’ unilaterally adopted and administered seniority system was equivalent to an undue hardship defense and implementation of that system trumped its statutory duty to accommodate Mr. Barnett’s disability. The Court made it clear that if the seniority system were collectively bargained, the outcome would have been the same.
The Court left the door open, however, to any employee who could prove “special circumstances,” giving as examples a pattern of unilateral changes in the seniority system so that it was not routinely strictly enforced or a seniority system which contained so many exceptions that a further exception in a particular case would not disturb the expectations of the employees covered by the system.
What can employers learn?
- If you are inclined to assist disabled workers and you have a seniority system which you have unilaterally adopted, it should be reviewed. If you have reserved the right to make changes, the door is open to do that.
- Of course, if you are in a collective bargaining situation, the union may seek contractual relief from the seniority system for workers injured on the job. Michigan courts have now agreed that an employer may lawfully “discriminate” in these kinds of situations in favor of workers whose disabilities are the result of on-the-job injuries.
- Before you deny an accommodation to a disabled worker based on your seniority system, you need to be sure that there are no “special circumstances” which would favor the worker.
- If you are trying to manage your workers compensation costs by providing light duty or other accommodations to find jobs for your workers with disabilities, you run the risk of a claim by non-disabled employees who have superior seniority entitlement to the “favored” work.