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Court Continues Closing the ADA Window by Ruth O'Brien May 20, 2002 -- The tiny window of recourse for people with disabilities who seek accommodations in the workplace got even tinier a few weeks ago. In its 5-4 decision April 29, made all the more complicated by a total of four different concurring and dissenting opinions, the Supreme Court ruled in U.S. Airways v. Barnett that while a seniority system does not always "trump" accommodation requests, it "will prevail in the run of cases." Except in "special" circumstances, the Court held, the Americans with Disabilities Act gives a worker with a disability no chance of obtaining an accommodation that would violate a seniority system.
U.S. Airways, the Court decided, should make no exception for accommodating Robert Barnett, a cargo handler, who after having sustained a serious back injury on the job, wanted to hold onto his position in the mail room, where he had already been working for two years. When two workers with more seniority put bids in for Barnett's mailroom position, he was bumped. And being bumped back to his cargo position, a position he could not handle given his back problem, meant that Barnett was terminated by U.S. Airways. The idea that a seniority system should not just be one factor in figuring out if an accommodation was "reasonable" is puzzling. As the Ninth Circuit Court argued, Congress said as much when it passed the ADA. But now the Supreme Court has switched the burden to the plaintiff, who must now go looking for the special circumstances that would make violating a seniority system reasonable. What these circumstances would be is not terribly clear. The Supreme Court fears that workers with disabilities will, willy-nilly, be asking for reasonable accommodations on a "complex case-specific basis." This would jeopardize the "more uniform, impersonal operation of seniority rules." As Justice Antonin Scalia said in another disability case, "the rules are the rules." The Supreme Court is concerned that managers would (dare I say it?) be using too much discretion in determining what work conditions would suit an individual worker. What is equally puzzling is that the Court arrived at this conclusion with U.S. Airways. This company's seniority system is not the product of a collective bargaining agreement. No one disputes that the seniority system was "unilaterally imposed by management." In its personnel handbook, U.S. Airways very carefully pointed out that its seniority system should not be misconstrued. It is not a contract. Management can modify any work condition for any employee at will. That's right. No lawsuits, please. When it pleases management to place someone at the head of the seniority line, that's okay. The rules are the rules. There will be "fair, uniform treatment" as the majority described seniority systems in general -- or at least when management says so. What a great seniority system! It provides the perfect way for management to avoid the issue of ever reassigning workers who sustain injuries or get sick on the job. This system binds workers, but not management. This logic reminds me of my mother who, battle-weary after umpiring one fight too many between me and my sisters, finally said, "life's not fair." I guess people with disabilities have just got to get used to it. Or at least that is what seven of the nine justices on the Court say. Writing in a dissent that castigated the majority for permitting employees to violate a seniority system in even "special circumstances," Scalia got one thing right: he said the uncertainty could be resolved only by "constant litigation." Let's hope it does lead to such litigation. Since the Supreme Court still said "maybe," there's opportunity for disabled people to occasionally win a reassignment -- or at least expose the sham ones as Scalia describes. Let's hope that disabled people and their co-workers, who could also get ill or injured on the job, protest. The window is tiny and getting smaller, but it is not shut yet.
Ruth O'Brien, Associate Professor at John Jay College and the Graduate Center of the City University of New York, is the author of Crippled Justice: The History of Modern Disability Policy in the Workplace (University of Chicago Press, 2001).
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