Most employers know they must explore the possibility of making a reasonable accommodation requested by a disabled worker. But what if an employee wants an accommodation that conflicts with your seniority system? And how far do you have to go in working with the employee to accommodate their request? In a surprising reversal of its own earlier decision, the federal Ninth Circuit Court of Appeals has now ruledthat your reasonable accommodation obligations are broader than you may realize.
Low Seniority Results In Bumping
After suffering an on-the-job back injury, U.S. Air employee Robert Barnett couldn’t perform his cargo handler duties at the San Francisco International Airport. So he used his seniority to get a transfer to the mailroom. But Barnett learned he would be bumped from his new job because two employees with greater seniority planned to move into his department. Barnett then asked his manager to allow him to retain his mailroom position as a reasonable accommodation for his disability.
Accommodation Requests Denied
U.S. Air responded five months later that Barnett would be removed from the mailroom and placed on leave. Although Barnett suggested alternative accommodations, including using special lifting equipment for the cargo job and restructuring the position, U.S. Air allegedly denied his requests, but told him he could bid for any job he could perform within his medical restrictions.
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Lawsuit Erupts
Barnett sued, arguing that the airline violated the Americans with Disabilities Act by failing to assign him to the mailroom, even though doing so would violate the seniority policy. He also charged that U.S. Air was liable for failing to discuss other accommodation options with him.
The airline countered that it wasn’t required to alter its seniority system to accommodate Barnett and that it wasn’t legally obligated to work on accommodation alternatives with him. A three-judge Ninth Circuit panel originally sided with U.S. Air on both issues.
Seniority System Doesn’t Trump Obligation To Accommodate
In a major reversal, the full Ninth Circuit, with 11 judges participating, reheard the case and ruled that employers must consider reassigning a disabled worker who can’t perform their current job to a vacant position, regardless of seniority.
A seniority system—whether created by an employer or a union contract—doesn’t automatically bar the transfer. Instead, the seniority rights of other workers are just one factor in determining whether the proposed accommodation is an undue hardship, presenting a significant difficulty or expense for the employer.
No Hardship On Employer
In this case, U.S. Air didn’t show that the mailroom reassignment would have been an undue hardship. Because Barnett already held the job, no one else would have been bumped by allowing him to keep it. And, only one position would have been removed from the seniority bidding process.
Employer May Be Liable For Not Discussing Options
Barnett triggered U.S. Air’s ADA obligation by asking for an accommodation and proposing several options. The company, however, allegedly didn’t seriously consider his suggestions and offered no practical alternatives.
The court ruled that you must engage in an “interactive process” with disabled employees, working with them to identify appropriate accommodation options.
It’s extremely risky to refuse to consider or discuss accommodations suggested by a disabled worker. That’s because you’ll be liable if you could have found an arrangement that allowed the employee to perform the essential duties of their position. Note that California also recently amended its disability discrimination rules to require the interactive process.
The appellate court sent the case back to the trial court to determine whether the airline is liable for failing to accommodate Barnett.
How To Limit Lawsuit Risks
Under this decision, a disabled worker who can no longer perform their current job must be offered a vacant position they are qualified for. This rule applies even if the reassignment may conflict with a seniority system—unless you can prove that the transfer would pose an undue hardship. Unfortunately, the court has provided scant guidance on how to determine what would constitute undue hardship.
Until this issue is sorted out by the courts, if you have a seniority system it’s best to focus on how you can accommodate disabled workers rather than on proving undue hardship. Here are some suggestions:
- Explore all accommodation options. Consult with the employee about alternative accommodation possibilities. You only have to consider reassignment when no other reasonable accommodation will allow the employee to continue performing their current job.
- No need to bump others. You have to consider a transfer only if there is a vacant position that the employee can handle with or without an accommodation.
- You can choose the accommodation. If two accommodations are possible and one is more costly or difficult than the other, you can choose the simpler or less expensive one if it’s equally effective—even if it’s not the employee’s first choice. Plus, if reassignment is the only option and the worker qualifies for a number of vacant positions, you can decide which one to offer.
- Negotiate with the union. If your seniority system is part of a collective bargaining agreement, you may be able to negotiate with the union to create an exception to the contract when necessary to help you meet your ADA obligations.