Seniority trumps ADA, Supreme Court rules.

Seniority systems generally prevail over disabled workers' rights, the U.S. Supreme Court has ruled. (U.S. Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002).)

"An employer's showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an `accommodation' is not `reasonable.' However, the employee remains free to present evidence of special circumstances that makes a seniority-rule exception reasonable in the particular case," wrote Justice Stephen Breyer in the 5-4 decision in April.

U.S. Airways had asked the Court to decide how the ADA resolves a conflict between the interests of a disabled worker who requests reassignment to a vacant position as a "reasonable accommodation" and those of more-senior workers who have the right to bid for the job under the company's seniority system.

"This decision is troubling," said Monica McFadden, a Chicago lawyer and chair-elect of ATLA's Employment Rights Section. "Under the Court's ruling, where there is any form of seniority system--mandatory or voluntary--moving a disabled worker to another position that can accommodate the worker's disabilities is no longer considered a reasonable accommodation. This is contrary to congressional intent and the language of the statute."

Yet, there is good news for plaintiffs, she said. To argue for an exception to the seniority system, plaintiffs will need additional discovery into how the employer has enforced that system. "The Court is now saying, `We will allow you to conduct an evidentiary examination into that issue,'" McFadden said.

The plaintiff in the case, Robert Barnett, injured his back in 1990 while working as a cargo handler for U.S. Airways. Under the company's seniority system--which opens certain jobs periodically to seniority-based employee bidding--he transferred to a mail room position that was less physically demanding. In 1992, when Barnett learned that two more-senior employees intended to bid for his job, he asked U.S. Airways to accommodate his disability by making an exception to the seniority system that would let him remain in the position. The employer allowed him to stay on the job for five months while it considered the matter and eventually decided not to make the exception.

Barnett lost his job and filed suit under the ADA. The district court granted summary judgment in favor of the airline, and the Ninth Circuit reversed. The Supreme Court vacated the appeals court's judgment and remanded the case.

In discussing its rationale for generally favoring seniority systems, Breyer pointed to "employee expectations of fair, uniform treatment." This, McFadden noted, is an unusual development.

"U.S. employment law is dominated by the `at-will' doctrine," she said. "To paraphrase several state supreme courts, an employer can hire, fire, transfer, or demote an employee for any reason, no reason, or a morally reprehensible reason" as long as it doesn't use "any of the very rare illegal factors protected by law.

"Generally, employee expectations of fairness are not legally enforceable. But here, the Court has, for the first time, allowed previously unenforceable employee expectations to trump another worker's federally guaranteed civil rights."

In a dissent, Justice David Souter, joined by Justice Ruth Bader Ginsburg, noted that "it is hard to see the seniority scheme here as any match for Barnett's ADA requests, since U.S. Airways apparently took pains to ensure that its seniority rules raised no great expectations." Justices Antonin Scalia and Clarence Thomas wrote a separate dissent.

McFadden said the bottom line for plaintiff attorneys is this: "If your disability case relies on a job reassignment in a company with a unionized or nonunionized seniority system, you probably cannot help your client unless you either have a `vacant' position--which now means both that no one else is in it and that no one else has a claim to it under the seniority system--or the time and resources to go in and challenge the seniority system. This is another sad day for the rights of disabled workers."