OCTOBER TERM, 2001
Syllabus
US AIRWAYS, INC.
v. BARNETT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-1250. Argued December 4, 200l-Decided April 29, 2002
After respondent Barnett injured his back while a cargo handler
for petitioner US Airways, Inc., he transferred to a less
physically demanding mailroom position. His new position later
became open to senioritybased employee bidding under US Airways'
seniority system, and employees senior to him planned to bid on the
job. US Airways refused his request to accommodate his disability
by allowing him to remain in the mailroom, and he lost his job. He
then filed suit under the Americans with Disabilities Act of 1990
(ADA or Act), which prohibits an employer from discriminating
against "an individual with a disability" who with "reasonable
accommodation" can perform a job's essential functions, 42 U. S. C.
§§ 12112(a) and (b), unless the employer "can demonstrate that the
accommodation would impose an undue hardship on the operation of
[its] business," § 12112(b)(5)(A). Finding that altering a
seniority system would result in an "undue hardship" to both US
Airways and its nondisabled employees, the District Court granted
the company summary judgment. The Ninth Circuit reversed, holding
that the seniority system was merely a factor in the undue hardship
analysis and that a case-by-case, fact intensive analysis is
required to determine whether any particular assignment would
constitute an undue hardship.
Held: 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. Pp. 396-406.
(a) Many lower courts have reconciled the phrases "reasonable
accommodation" and "undue hardship" in a practical way, holding
that a plaintiff/employee (to defeat a defendant/employer's summary
judgment motion) need only show that an "accommodation" seems
reasonable on its face, i.
e., ordinarily or in the run of
cases. The defendant/employer then must show special (typically
case-specific) circumstances demonstrating undue hardship in the
particular circumstances. Neither US Airways' position-that no
accommodation violating a seniority system's rules is
reasonable-nor Barnett's position-that "reasonable accommodation"
authorizes a court to consider only the requested accom-
392
Syllabus
modation's ability to meet an individual's disability-related
needs-is a proper interpretation of the Act. Pp. 396-402.
(b) Here, the question is whether a proposed accommodation that
would normally be reasonable is rendered unreasonable because the
assignment would violate a seniority system's rules. Ordinarily the
answer is "yes." The statute does not require proof on a
case-by-case basis that a seniority system should prevail because
it would not be reasonable in the run of cases that the assignment
trump such a system's rules. Analogous case law has recognized the
importance of seniority to employee-management relations, finding,
e. g., that collectively bargained seniority trumps
the need for reasonable accommodation in the linguistically similar
Rehabilitation Act, see,
e. g., Eckles v.
Consolidated
Rail Corp., 94 F.3d
1041, 1047-1048. And the relevant seniority system advantages,
and related difficulties resulting from violations of seniority
rules, are not limited to collectively bargained systems, but also
apply to many systems (like the one at issue) unilaterally imposed
by management. A typical seniority system provides important
employee benefits by creating, and fulfilling, employee
expectations of fair, uniform treatment-e.
g., job security
and an opportunity for steady and predictable advancement based on
objective standards-that might be undermined if an employer were
required to show more than the system's existence. Nothing in the
statute suggests that Congress intended to undermine seniority
systems in such a way. Pp. 402-405.
(c) The plaintiff (here the employee) remains free to show that
special circumstances warrant a finding that, despite the seniority
system's presence, the requested accommodation is reasonable on the
particular facts. Special circumstances might alter the important
expectations created by a seniority system. The plaintiff might
show, for example, that the employer, having retained the right to
change the system unilaterally, exercises the right fairly
frequently, reducing employee expectations that the system will be
followed-to the point where the requested accommodation will not
likely make a difference. The plaintiff might also show that the
system already contains exceptions such that, in the circumstances,
one further exception is unlikely to matter. The plaintiff has the
burden of showing special circumstances and must explain why, in
the particular case, an exception to the seniority system can
constitute a reasonable accommodation even though in the ordinary
case it cannot. Pp. 405-406.
(d) The lower courts took a different view of this matter, and
neither party has had an opportunity to seek summary judgment in
accordance with the principles set forth here. P. 406.
228 F.3d
1105, vacated and remanded.
393
BREYER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, and KENNEDY, JJ., joined.
STEVENS, J.,
post, p. 406, and O'CONNOR, J.,
post, p.
408, filed concurring opinions. SCALIA, J., filed a dissenting
opinion, in which THOMAS, J., joined,
post, p. 411. SOUTER,
J., filed a dissenting opinion, in which GINSBURG, J., joined,
post, p. 420.
Walter E. Dellinger argued the cause for petitioner. With
him on the briefs were
Lawrence M. Nagin and
Robert A.
Siegel.
Claudia Center argued the cause for respondent. With her on the
brief were William C. McNeill III, Eric Schnapper, Todd Schneider,
Guy Wallace, and Robert W Rychlik.*
JUSTICE BREYER delivered the opinion of the Court.
The Americans with Disabilities Act of 1990 (ADA or Act), 104
Stat. 328, 42 U. S. C. § 12101
et seq. (1994 ed. and Supp.
V), prohibits an employer from discriminating against an
"individual with a disability" who, with "reasonable
accommodation," can perform the essential functions of the job. §§
12112(a) and (b) (1994 ed.). This case, arising in the context of
summary judgment, asks us how the Act resolves a potential conflict
between: (1) the interests of a disabled worker who seeks
assignment to a particular position as a "reasonable
accommodation," and (2) the interests of other workers with
superior rights to bid for the job under an em-
*Briefs of
amici curiae urging reversal were filed for
the Air Transport Association of America, Inc., et al. by
John J. Gallagher and
Margaret H.
Spurlin; and for the Equal Employment Advisory Council et al.
by
Ann Elizabeth Reesman.
Briefs of
amici curiae urging affirmance were filed for
the American Federation of Labor and Congress of Industrial
Organizations by
Jonathan P. Hiatt, Deborah Greenfield, James B.
Coppess, Michael H. Gottesman, and
Laurence Gold; and
for the National Employment Lawyers Association et al. by
Brian
East and
Paula A. Brantner.
Peter
J. Petesch, Thomas
J. Walsh, Jr., Timothy S.
Bland, and David S. Harvey, Jr., filed a brief for the Society for
Human Resource Management as amicus curiae.
394
ployer's seniority system. In such a case, does the
accommodation demand trump the seniority system?
In our view, the seniority system will prevail in the run of
cases. As we interpret the statute, to show that a requested
accommodation conflicts with the rules of a seniority system is
ordinarily to show that the accommodation is not "reasonable."
Hence such a showing will entitle an employer/defendant to summary
judgment on the questionunless there is more. The plaintiff remains
free to present evidence of special circumstances that make
"reasonable" a seniority rule exception in the particular case. And
such a showing will defeat the employer's demand for summary
judgment. Fed. Rule Civ. Proc. 56(e).
I
In 1990, Robert Barnett, the plaintiff and respondent here,
injured his back while working in a cargo-handling position at
petitioner US Airways, Inc. He invoked seniority rights and
transferred to a less physically demanding mailroom position. Under
US Airways' seniority system, that position, like others,
periodically became open to senioritybased employee bidding. In
1992, Barnett learned that at least two employees senior to him
intended to bid for the mailroom job. He asked US Airways to
accommodate his disability-imposed limitations by making an
exception that would allow him to remain in the mailroom. After
permitting Barnett to continue his mailroom work for five months
while it considered the matter, US Airways eventually decided not
to make an exception. And Barnett lost his job.
Barnett then brought this ADA suit claiming, among other things,
that he was an "individual with a disability" capable of performing
the essential functions of the mailroom job, that the mailroom job
amounted to a "reasonable accommodation" of his disability, and
that US Airways, in refusing to assign him the job, unlawfully
discriminated
395
against him. US Airways moved for summary judgment. It supported
its motion with appropriate affidavits, Fed. Rule Civ. Proc. 56,
contending that its "well-established" seniority system granted
other employees the right to obtain the mailroom position.
The District Court found that the undisputed facts about
seniority warranted summary judgment in US Airways' favor. The Act
says that an employer who fails to make "reasonable accommodations
to the known physical or mental limitations of an [employee] with a
disability" discriminates
"unless" the employer "can
demonstrate that the accommodation would impose an
undue
hardship on the operation of [its] business." 42 U. S. C. §
12112(b)(5)(A) (emphasis added). The court said:
"[T]he uncontroverted evidence shows that the USAir seniority
system has been in place for 'decades' and governs over 14,000
USAir Agents. Moreover, seniority policies such as the one at issue
in this case are common to the airline industry. Given this
context, it seems clear that the USAir employees were justified in
relying upon the policy. As such, any significant alteration of
that policy would result in undue hardship to both the company and
its non-disabled employees." App. to Pet. for Cert. 96a.
An en banc panel of the United States Court of Appeals for the
Ninth Circuit reversed. It said that the presence of a seniority
system is merely "a factor in the undue hardship analysis."
228 F.3d
1105, 1120 (2000). And it held that "[a] case-by-case fact
intensive analysis is required to determine whether any particular
reassignment would constitute an undue hardship to the employer."
Ibid.
US Airways petitioned for certiorari, asking us to decide
whether
"the [ADA] requires an employer to reassign a disabled employee
to a position as a 'reasonable accommodation'
396
even though another employee is entitled to hold the position
under the employer's bona fide and established seniority system."
Brief for Petitioner i.
The Circuits have reached different conclusions about the legal
significance of a seniority system. Compare 228 F. 3d, at 1120,
with
EEOC v.
Sara Lee Corp., 237
F.3d 349, 354
(CA4 2001). We agreed to answer US
Airways' question.
II
In answering the question presented, we must consider the
following statutory provisions. First, the ADA says that an
employer may not "discriminate against a qualified individual with
a disability." 42 U. S. C. § 12112(a). Second, the ADA says that a
"qualified" individual includes "an individual with a disability
who,
with or without
reasonable accommodation, can
perform the essential functions of" the relevant "employment
position." § 12111(8) (emphasis added). Third, the ADA says that
"discrimination" includes an employer's
"not making reasonable
accommodations to the known physical or mental limitations of
an otherwise qualified ... employee,
unless [the employer]
can demonstrate that the accommodation would impose an
undue
hardship on the operation of [its] business." § 12112(b)(5)(A)
(emphasis added). Fourth, the ADA says that the term "'reasonable
accommodation' may include ... reassignment to a vacant position."
§ 12111(9)(B).
The parties interpret this statutory language as applied to
seniority systems in radically different ways. In US Airways' view,
the fact that an accommodation would violate the rules of a
seniority system always shows that the accommodation is not a
"reasonable" one. In Barnett's polar opposite view, a seniority
system violation never shows that an accommodation sought is not a
"reasonable" one. Barnett concedes that a violation of seniority
rules might help to show that the accommodation will work "undue"
employer "hardship," but that is a matter for an employer to
demonstrate
397
case by case. We shall initially consider the parties' main
legal arguments in support of these conflicting positions.
A
US Airways' claim that a seniority system virtually always
trumps a conflicting accommodation demand rests primarily upon its
view of how the Act treats workplace "preferences." Insofar as a
requested accommodation violates a disability-neutral workplace
rule, such as a seniority rule, it grants the employee with a
disability treatment that other workers could not receive. Yet the
Act, US Airways says, seeks only "equal" treatment for those with
disabilities. See,
e. g., 42 U. S. C. § 12101(a)(9).
It does not, it contends, require an employer to grant preferential
treatment. Cf. H. R. Rep. No. 101-485, pt. 2, p. 66 (1990); S. Rep.
No. 101-116, pp. 26-27 (1989) (employer has no "obligation to
prefer
applicants with disabilities over other
applicants" (emphasis added)). Hence it does not require the
employer to grant a request that, in violating a disability-neutral
rule, would provide a preference.
While linguistically logical, this argument fails to recognize
what the Act specifies, namely, that preferences will sometimes
prove necessary to achieve the Act's basic equal opportunity goal.
The Act requires preferences in the form of "reasonable
accommodations" that are needed for those with disabilities to
obtain the
same workplace opportunities that those without
disabilities automatically enjoy. By definition any special
"accommodation" requires the employer to treat an employee with a
disability differently, i.
e., preferentially. And the fact
that the difference in treatment violates an employer's
disability-neutral rule cannot by itself place the accommodation
beyond the Act's potential reach.
Were that not so, the "reasonable accommodation" provision could
not accomplish its intended objective. Neutral office assignment
rules would automatically prevent the ac-
398
commodation of an employee whose disability-imposed limitations
require him to work on the ground floor. Neutral "break-from-work"
rules would automatically prevent the accommodation of an
individual who needs additional breaks from work, perhaps to permit
medical visits. Neutral furniture budget rules would automatically
prevent the accommodation of an individual who needs a different
kind of chair or desk. Many employers will have neutral rules
governing the kinds of actions most needed to reasonably
accommodate a worker with a disability. See 42 U. S. C. §
12111(9)(b) (setting forth examples such as "job restructuring,"
"part-time or modified work schedules," "acquisition or
modification of equipment or devices," "and other similar
accommodations"). Yet Congress, while providing such examples, said
nothing suggesting that the presence of such neutral rules would
create an automatic exemption. Nor have the lower courts made any
such suggestion. Cf.
Garcia-Ayala v.
Lederle Parenterals,
Inc., 212 F.3d
638, 648
(CA1 2000) (requiring leave beyond that allowed
under the company's own leave policy);
Hendricks-Robinson v.
Excel Corp., 154 F.3d
685,
699 (CA7 1998) (requiring exception to employer's
neutral "physical fitness" job requirement).
In sum, the nature of the "reasonable accommodation"
requirement, the statutory examples, and the Act's silence about
the exempting effect of neutral rules together convince us that the
Act does not create any such automatic exemption. The simple fact
that an accommodation would provide a "preference" -in the sense
that it would permit the worker with a disability to violate a rule
that others must obey-cannot,
in and of itself,
automatically show that the accommodation is not "reasonable." As a
result, we reject the position taken by US Airways and JUSTICE
SCALIA to the contrary.
US Airways also points to the ADA provisions stating that a "
'reasonable accommodation' may include ... reassignment to a
vacant position." § 12111(9)(B) (emphasis added). And
399
it claims that the fact that an established seniority system
would assign that position to another worker automatically and
always means that the position is not a "vacant" one. Nothing in
the Act, however, suggests that Congress intended the word "vacant"
to have a specialized meaning. And in ordinary English, a seniority
system can give employees seniority rights allowing them to bid for
a "vacant" position. The position in this case was held, at the
time of suit, by Barnett, not by some other worker; and that
position, under the US Airways seniority system, became an "open"
one. Brief for Petitioner 5. Moreover, US Airways has said that it
"reserves the right to change any and all" portions of the
seniority system at will. Lodging of Respondent 2 (US Air Personnel
Policy Guide for Agents). Consequently, we cannot agree with US
Airways about the position's vacancy; nor do we agree that the Act
would automatically deny Barnett's accommodation request for that
reason.
B
Barnett argues that the statutory words "reasonable
accommodation" mean only "effective accommodation," authorizing a
court to consider the requested accommodation's ability to meet an
individual's disability-related needs, and nothing more. On this
view, a seniority rule violation, having nothing to do with the
accommodation's effectiveness, has nothing to do with its
"reasonableness." It might, at most, help to prove an "undue
hardship on the operation of the business." But, he adds, that is a
matter that the statute requires the employer to demonstrate, case
by case.
In support of this interpretation Barnett points to Equal
Employment Opportunity Commission (EEOC) regulations stating that
"reasonable accommodation means .... [m]odifications or adjustments
... that
enable a qualified individual with a disability to
perform the essential functions of [a] position." 29 CFR §
1630(o)(ii) (2001) (emphasis added). See also H. R. Rep. No.
101-485, pt. 2, at 66; S. Rep. No. 101-116,
400
at 35 (discussing reasonable accommodations in terms of
"effectiveness," while discussing costs in terms of "undue
hardship"). Barnett adds that any other view would make the words
"reasonable accommodation" and "undue hardship" virtual mirror
images-creating redundancy in the statute. And he says that any
such other view would create a practical burden of proof
dilemma.
The practical burden of proof dilemma arises, Barnett argues,
because the statute imposes the burden of demonstrating an "undue
hardship" upon the employer, while the burden of proving
"reasonable accommodation" remains with the plaintiff, here the
employee. This allocation seems sensible in that an employer can
more frequently and easily prove the presence of business hardship
than an employee can prove its absence. But suppose that an
employee must counter a claim of "seniority rule violation" in
order to prove that an "accommodation" request is "reasonable."
Would that not force the employee to prove what is in effect an
absence, i.
e., an absence of hardship, despite the
statute's insistence that the employer "demonstrate" hardship's
presence?
These arguments do not persuade us that Barnett's legal
interpretation of "reasonable" is correct. For one thing, in
ordinary English the word "reasonable" does not mean "effective."
It is the word "accommodation," not the word "reasonable," that
conveys the need for effectiveness. An
ineffective
"modification" or "adjustment" will not
accommodate a
disabled individual's limitations. Nor does an ordinary English
meaning of the term "reasonable accommodation" make of it a simple,
redundant mirror image of the term "undue hardship." The statute
refers to an "undue hardship on the operation of the business." 42
U. s. c. § 12112(b)(5)(A). Yet a demand for an effective
accommodation could prove unreasonable because of its impact, not
on business operations, but on fellow employees-say, because it
will lead to dismissals, relocations, or modification of em-
401
ployee benefits to which an employer, looking at the matter from
the perspective of the business itself, may be relatively
indifferent.
Neither does the statute's primary purpose require Barnett's
special reading. The statute seeks to diminish or to eliminate the
stereotypical thought processes, the thoughtless actions, and the
hostile reactions that far too often bar those with disabilities
from participating fully in the Nation's life, including the
workplace. See generally §§ 12101(a) and (b). These objectives
demand unprejudiced thought and reasonable responsive reaction on
the part of employers and fellow workers alike. They will sometimes
require affirmative conduct to promote entry of disabled people
into the work force. See
supra, at 397-398. They do not,
however, demand action beyond the realm of the reasonable.
Neither has Congress indicated in the statute, or elsewhere,
that the word "reasonable" means no more than "effective." The EEOC
regulations do say that reasonable accommodations "enable" a person
with a disability to perform the essential functions of a task. But
that phrasing simply emphasizes the statutory provision's basic
objective. The regulations do not say that "enable" and
"reasonable" mean the same thing. And as discussed below, no court
of appeals has so read them. But see 228 F. 3d, at 1122-1123
(Gould, J., concurring).
Finally, an ordinary language interpretation of the word
"reasonable" does not create the "burden of proof" dilemma to which
Barnett points. Many of the lower courts, while rejecting both US
Airways' and Barnett's more absolute views, have reconciled the
phrases "reasonable accommodation" and "undue hardship" in a
practical way.
They have held that a plaintiff/employee (to defeat a
defendant/employer's motion for summary judgment) need only show
that an "accommodation" seems reasonable on its face, i.
e.,
ordinarily or in the run of cases. See,
e. g., Reed v.
LePage Bakeries, Inc., 244 F.3d
254, 259
(CA1 2001)
402
(plaintiff meets burden on reasonableness by showing that, "at
least on the face of things," the accommodation will be feasible
for the employer);
Borkowski v.
Valley Central School
Dist., 63 F.3d
131, 138
(CA2 1995) (plaintiff satisfies "burden of
production" by showing "plausible accommodation");
Barth v.
Gelb, 2 F.3d
1180, 1187
(CADC 1993) (interpreting parallel language
in Rehabilitation Act, stating that plaintiff need only show he
seeks a
"method of accommodation that is reasonable in the
run of cases" (emphasis in original)).
Once the plaintiff has made this showing, the defendant!
employer then must show special (typically case-specific)
circumstances that demonstrate undue hardship in the particular
circumstances. See
Reed, supra, at 258 (" 'undue hardship
inquiry focuses on the hardships imposed ... in the context of the
particular [employer's] operations''') (quoting
Barth,
supra, at 1187);
Borkowski, supra, at 138 (after
plaintiff makes initial showing, burden falls on employer to show
that particular accommodation "would cause it to suffer an undue
hardship");
Barth, supra, at 1187 ("undue hardship inquiry
focuses on the hardships imposed ... in the context of the
particular agency's operations").
Not every court has used the same language, but their results
are functionally similar. In our opinion, that practical view of
the statute, applied consistently with ordinary summary judgment
principles, see Fed. Rule Civ. Proc. 56, avoids Barnett's burden of
proof dilemma, while reconciling the two statutory phrases
("reasonable accommodation" and "undue hardship").
III
The question in the present case focuses on the relationship
between seniority systems and the plaintiff's need to show that an
"accommodation" seems reasonable on its face, i.
e.,
ordinarily or in the run of cases. We must assume that the
plaintiff, an employee, is an "individual with a disability." He
has requested assignment to a mailroom position as a
403
"reasonable accommodation." We also assume that normally such a
request would be reasonable within the meaning of the statute, were
it not for one circumstance, namely, that the assignment would
violate the rules of a seniority system. See § 12111(9)
("reasonable accommodation" may include "reassignment to a vacant
position"). Does that circumstance mean that the proposed
accommodation is not a "reasonable" one?
In our view, the answer to this question ordinarily is "yes."
The statute does not require proof on a case-by-case basis that a
seniority system should prevail. That is because it would not be
reasonable in the run of cases that the assignment in question
trump the rules of a seniority system. To the contrary, it will
ordinarily be unreasonable for the assignment to prevail.
A
Several factors support our conclusion that a proposed
accommodation will not be reasonable in the run of cases. Analogous
case law supports this conclusion, for it has recognized the
importance of seniority to employee-management relations. This
Court has held that, in the context of a Title VII religious
discrimination case, an employer need not adapt to an employee's
special worship schedule as a "reasonable accommodation" where
doing so would conflict with the seniority rights of other
employees.
Trans World Airlines, Inc. v.
Hardison,
432 U. S. 63,
79-80 (1977). The lower courts have unanimously found that
collectively bargained seniority trumps the need for reasonable
accommodation in the context of the linguistically similar
Rehabilitation Act. See
Eckles v.
Consolidated Rail
Corp., 94 F.3d
1041, 1047
1048 (CA7 1996) (collecting cases);
Shea v.
Tisch, 870 F.2d
786, 790
(CA1 1989);
Carter v.
Tisch,
822 F.2d
465, 469
(CA4 1987); Jasany v.
United States Postal
Service, 755 F.2d
1244,
1251-1252 (CA6 1985). And several Circuits, though
differing in their reasoning, have reached a similar conclusion in
the context of seniority and the ADA. See
Smith v.
Mid-
404
land Brake, Inc., 180 F.3d
1154, 1175 (CAlO 1999);
Feliciano v.
Rhode
Island, 160 F.3d
780, 787
(CAl1998); Eckles, supra, at 1047-1048.
All these cases discuss
collectively bargained seniority
systems, not systems (like the present system) which are
unilaterally imposed by management. But the relevant seniority
system advantages, and related difficulties that result from
violations of seniority rules, are not limited to collectively
bargained systems.
For one thing, the typical seniority system provides important
employee benefits by creating, and fulfilling, employee
expectations of fair, uniform treatment. These benefits include
"job security and an opportunity for steady and predictable
advancement based on objective standards." Brief for Petitioner 32
(citing Fallon & Weiler, Firefighters v. Stotts: Conflicting
Models of Racial Justice, 1984 S. Ct. Rev. 1, 57-58). See also 1 B.
Lindemann & P. Grossman, Employment Discrimination Law 72 (3d
ed. 1996) ("One of the most important aspects of competitive
seniority is its use in determining who will be laid off during a
reduction in force"). They include "an element of due process,"
limiting "unfairness in personnel decisions." Gersuny, Origins of
Seniority Provisions in Collective Bargaining, 33 Lab. L. J. 518,
519 (1982). And they consequently encourage employees to invest in
the employing company, accepting "less than their value to the firm
early in their careers" in return for greater benefits in later
years. J. Baron & D. Kreps, Strategic Human Resources:
Frameworks for General Managers 288 (1999).
Most important for present purposes, to require the typical
employer to show more than the existence of a seniority system
might well undermine the employees' expectations of consistent,
uniform treatment-expectations upon which the seniority system's
benefits depend. That is because such a rule would substitute a
complex case-specific "accommodation" decision made by management
for the more uniform, impersonal operation of seniority rules. Such
management
405
decisionmaking, with its inevitable discretionary elements,
would involve a matter of the greatest importance to employees,
namely, layoffs; it would take place outside, as well as inside,
the confines of a court case; and it might well take place fairly
often. Cf. ADA, 42 U. S. C. § 12101(a)(1) (estimating that some 43
million Americans suffer from physical or mental disabilities). We
can find nothing in the statute that suggests Congress intended to
undermine seniority systems in this way. And we consequently
conclude that the employer's showing of violation of the rules of a
seniority system is by itself ordinarily sufficient.
B
The plaintiff (here the employee) nonetheless remains free to
show that special circumstances warrant a finding that, despite the
presence of a seniority system (which the ADA may not trump in the
run of cases), the requested "accommodation" is "reasonable" on the
particular facts. That is because special circumstances might alter
the important expectations described above. Cf.
Borkowski,
63 F. 3d, at 137 ("[A]n accommodation that imposed burdens that
would be unreasonable for most members of an industry might
nevertheless be required of an individual defendant in light of
that employer's particular circumstances"). See also
Woodman
v.
Runyon, 132 F.3d
1330, 1343-1344 (CAlO 1997). The plaintiff might show, for
example, that the employer, having retained the right to change the
seniority system unilaterally, exercises that right fairly
frequently, reducing employee expectations that the system will be
followed-to the point where one more departure, needed to
accommodate an individual with a disability, will not likely make a
difference. The plaintiff might show that the system already
contains exceptions such that, in the circumstances, one further
exception is unlikely to matter. We do not mean these examples to
exhaust the kinds of showings that a plaintiff might make. But we
do mean to say that the plaintiff must bear
406
the burden of showing special circumstances that make an
exception from the seniority system reasonable in the particular
case. And to do so, the plaintiff must explain why, in the
particular case, an exception to the employer's seniority policy
can constitute a "reasonable accommodation" even though in the
ordinary case it cannot.
IV
In its question presented, US Airways asked us whether the ADA
requires an employer to assign a disabled employee to a particular
position even though another employee is entitled to that position
under the employer's "established seniority system." We answer that
ordinarily the ADA does not require that assignment. Hence,
a showing that the assignment would violate the rules of a
seniority system warrants summary judgment for the employer-unless
there is more. The plaintiff must present evidence of that "more,"
namely, special circumstances surrounding the particular case that
demonstrate the assignment is nonetheless reasonable.
Because the lower courts took a different view of the matter,
and because neither party has had an opportunity to seek summary
judgment in accordance with the principles we set forth here, we
vacate the Court of Appeals' judgment and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
While I join the Court's opinion, my colleagues' separate
writings prompt these additional comments.
A possible conflict with an employer's seniority system is
relevant to the question whether a disabled employee's requested
accommodation is "reasonable" within the meaning of the Americans
with Disabilities Act of 1990. For that
407
reason, to the extent that the Court of Appeals concluded that a
seniority system is only relevant to the question whether a given
accommodation would impose an "undue hardship" on an employer, or
determined that such a system has only a minor bearing on the
reasonableness inquiry, it misread the statute.
Although the Court of Appeals did not apply the standard that
the Court endorses today, it correctly rejected the
per se
rule that petitioner has pressed upon us and properly reversed the
District Court's entry of summary judgment for petitioner. The
Court of Appeals also correctly held that there was a triable issue
of fact precluding the entry of summary judgment with respect to
whether petitioner violated the statute by failing to engage in an
interactive process concerning respondent's three proposed
accommodations.
228 F.3d
1105, 1117 (CA9 2000) (en bane). This latter holding is
untouched by the Court's opinion today.
Among the questions that I have not been able to answer on the
basis of the limited record that has been presented to us are: (1)
whether the mailroom position held by respondent became open for
bidding merely in response to a routine airline schedule change, 1
or as the direct consequence of the layoff of several thousand
employees; 2 (2) whether respondent's requested accommodation
should be viewed as an assignment to a vacant position,3 or as the
maintenance of the status quo; 4 and (3) exactly what impact the
grant of respondent's request would have had on other
employees.5
1 Brief for Respondent 3 (quoting Lodging of Respondent 7-8
(letter, dated Mar. 8, 1994, from petitioner's counsel to Equal
Employment Opportunity Commission)).
2 Brief for Petitioner 5 (citing App. 21 (declaration in support
of peti-
tioner's summary judgment motion)).
3 See
post, at 409-410 (O'CONNOR, J., concurring). 4 See
post, at 423 (SOUTER, J., dissenting).
5 See,
e. g., ibid. ("There was no evidence in the
District Court of any unmanageable ripple effects from Barnett's
request").
408
As I understand the Court's opinion, on remand, respondent will
have the burden of answering these and other questions in order to
overcome the presumption that petitioner's seniority system
justified respondent's discharge.
JUSTICE O'CONNOR, concurring.
I agree with portions of the opinion of the Court, but I find
problematic the Court's test for determining whether the fact that
a job reassignment violates a seniority system makes the
reassignment an unreasonable accommodation under the Americans with
Disabilities Act of 1990 (ADA or Act), 42 U. S. C. § 12101
et
seq. (1994 ed. and Supp. V). Although a seniority system plays
an important role in the workplace, for the reasons I explain
below, I would prefer to say that the effect of a seniority system
on the reasonableness of a reassignment as an accommodation for
purposes of the ADA depends on whether the seniority system is
legally enforceable. "Were it possible for me to adhere to [this
belief] in my vote, and for the Court at the same time to [adopt a
majority rule]," I would do so.
Screws v.
United
States, 325 U. S.
91, 134 (1945) (Rutledge, J., concurring in result). "The
Court, however, is divided in opinion,"
ibid., and if each
Member voted consistently with his or her beliefs, we would not
agree on a resolution of the question presented in this case. Yet
"[s]talemate should not prevail,"
ibid., particularly in a
case in which we are merely interpreting a statute. Accordingly, in
order that the Court may adopt a rule, and because I believe the
Court's rule will often lead to the same outcome as the one I would
have adopted, I join the Court's opinion despite my concerns. Cf.
Bragdon v.
Abbott, 524 U. S. 624, 655-656
(1998) (STEVENS, J., joined by BREYER, J., concurring);
Olmstead v.
L. c.,
527 U. S. 581, 607-608
(1999) (STEVENS, J., concurring in part and concurring in
judgment).
The ADA specifically lists "reassignment to a vacant position"
as one example of a "reasonable accommodation." 42
409
u. s. C. § 12111(9)(B) (1994 ed.). In deciding whether an
otherwise reasonable accommodation involving a reassignment is
unreasonable because it would require an exception to a seniority
system, I think the relevant issue is whether the seniority system
prevents the position in question from being vacant. The word
"vacant" means "not filled or occupied by an incumbent [or]
possessor." Webster's Third New International Dictionary 2527
(1976). In the context of a workplace, a vacant position is a
position in which no employee currently works and to which no
individual has a legal entitlement. For example, in a workplace
without a seniority system, when an employee ceases working for the
employer, the employee's former position is vacant until a
replacement is hired. Even if the replacement does not start work
immediately, once the replacement enters into a contractual
agreement with the employer, the position is no longer vacant
because it has a "possessor." In contrast, when an employee ceases
working in a workplace with a legally enforceable seniority system,
the employee's former position does not become vacant if the
seniority system entitles another employee to it. Instead, the
employee entitled to the position under the seniority system
immediately becomes the new "possessor" of that position. In a
workplace with an unenforceable seniority policy, however, an
employee expecting assignment to a position under the seniority
policy would not have any type of contractual right to the position
and so could not be said to be its "possessor." The position
therefore would become vacant.
Given this understanding of when a position can properly be
considered vacant, if a seniority system, in the absence of the
ADA, would give someone other than the individual seeking the
accommodation a legal entitlement or contractual right to the
position to which reassignment is sought, the seniority system
prevents the position from being vacant. If a position is not
vacant, then reassignment to it is not a reasonable accommodation.
The Act specifi-
410
cally says that "reassignment to a
vacant position" is a
type of "reasonable accommodation." § 12111(9)(B) (emphasis added).
Indeed, the legislative history of the Act confirms that Congress
did not intend reasonable accommodation to require bumping other
employees. H. R. Rep. No. 101-485, pt. 2, p. 63 (1990) ("The
Committee also wishes to make clear that reassignment need only be
to a vacant position-'bumping' another employee out of a position
to create a vacancy is not required"); S. Rep. No. 101-116, p. 32
(1989) (same).
Petitioner's Personnel Policy Guide for Agents, which contains
its seniority policy, specifically states that it is
"not
intended to be a contract (express or implied) or otherwise to
create legally enforceable obligations," and that petitioner
"reserves the right to change any and all of the stated policies
and procedures in [the] Guide at any time, without advanc[e]
notice." Lodging of Respondent 2 (emphasis in original). Petitioner
conceded at oral argument that its seniority policy does not give
employees any legally enforceable rights. Tr. of Oral Arg. 16.
Because the policy did not give any other employee a right to the
position respondent sought, the position could be said to have been
vacant when it became open for bidding, making the requested
accommodation reasonable.
In Part II of its opinion, the Court correctly explains that "a
plaintiff/employee (to defeat a defendant/employer's motion for
summary judgment) need only show that an 'accommodation' seems
reasonable on its face, i.
e., ordinarily or in the run of
cases."
Ante, at 401. In other words, the plaintiff must
show that the method of accommodation the employee seeks is
reasonable in the run of cases. See
ante, at 402 (quoting
Barth v.
Gelb, 2 F.3d
1180, 1187
(CADC 1993)). As the Court also correctly
explains, "[o]nce the plaintiff has made this showing, the
defendant/employer then must show special ... circumstances that
demonstrate undue hardship" in the context of the particular
employer's operations.
Ante, at 402. These interpretations
give ap-
411
propriate meaning to both the term "reasonable," 42 U. S. C. §
12112(b)(5)(A), and the term "undue hardship,"
ibid.,
preventing the concepts from overlapping by making reasonableness a
general inquiry and undue hardship a specific inquiry. When the
Court turns to applying its interpretation of the Act to seniority
systems, however, it seems to blend the two inquiries by suggesting
that the plaintiff should have the opportunity to prove that there
are special circumstances in the context of that particular
seniority system that would cause an exception to the system to be
reasonable despite the fact that such exceptions are unreasonable
in the run of cases.
Although I am troubled by the Court's reasoning, I believe the
Court's approach for evaluating seniority systems will often lead
to the same outcome as the test I would have adopted. Unenforceable
seniority systems are likely to involve policies in which employers
"retai[n] the right to change the seniority system,"
ante,
at 405, and will often "contai[n] exceptions,"
ibid. They
will also often contain disclaimers that "reduc[e] employee
expectations that the system will be followed."
Ibid. Thus,
under the Court's test, disabled employees seeking accommodations
that would require exceptions to unenforceable seniority systems
may be able to show circumstances that make the accommodation
"reasonable in the[ir] particular case."
Ante, at 406.
Because I think the Court's test will often lead to the correct
outcome, and because I think it important that a majority of the
Court agree on a rule when interpreting statutes, I join the
Court's opinion.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
The question presented asks whether the "reasonable
accommodation" mandate of the Americans with Disabilities Act of
1990 (ADA or Act) requires reassignment of a disabled employee to a
position that "another employee is entitled
412
to hold ... under the employer's bona fide and established
seniority system." Pet. for Cert. i; 532 u. S. 970 (2001).
Indulging its penchant for eschewing clear rules that might avoid
litigation, see,
e. g., Kansas v.
Crane, 534 U. S. 407, 423 (2002)
(SCALIA, J., dissenting);
TRW Inc. v.
Andrews, 534 U.
S. 19, 35-36 (2001) (SCALIA, J., concurring in judgment), the Court
answers "maybe." It creates a presumption that an exception to a
seniority rule is an "unreasonable" accommodation,
ante, at
403, but allows that presumption to be rebutted by showing that the
exception "will not likely make a difference,"
ante, at
405.
The principal defect of today's opinion, however, goes well
beyond the uncertainty it produces regarding the relationship
between the ADA and the infinite variety of seniority systems. The
conclusion that any seniority system can ever be overridden is
merely one consequence of a mistaken interpretation of the ADA that
makes all employment rules and practices-even those which (like a
seniority system) pose no
distinctive obstacle to the
disabled-subject to suspension when that is (in a court's view) a
"reasonable" means of enabling a disabled employee to keep his job.
That is a far cry from what I believe the accommodation provision
of the ADA requires: the suspension (within reason) of those
employment rules and practices
that the employee's disability
prevents him from observing.
I
The Court begins its analysis by describing the ADA as declaring
that an employer may not" 'discriminate against a qualified
individual with a disability.'"
Ante, at 396 (quoting 42 U.
S. C. § 12112(a) (1994 ed.)). In fact the Act says more: an
employer may not "discriminate against a qualified individual with
a disability
because of the disability of such individual."
42 U. S. C. § 12112(a) (1994 ed.) (emphasis added). It further
provides that discrimination includes "not making reasonable
accommodations
to the known physi-
413
calor mental limitations of an otherwise qualified
individual with a disability." § 12112(b)(5)(A) (emphasis
added).
Read together, these provisions order employers to modify or
remove (within reason) policies and practices that burden a
disabled person "because of [his] disability." In other words, the
ADA eliminates workplace barriers only if a disability prevents an
employee from overcoming them-those barriers that would not be
barriers
but for the employee's disability. These include,
for example, work stations that cannot accept the employee's
wheelchair, or an assembly-line practice that requires long periods
of standing. But they do not include rules and practices that bear
no more heavily upon the disabled employee than upon others-even
though an exemption from such a rule or practice might in a sense
"make up for" the employee's disability. It is not a required
accommodation, for example, to pay a disabled employee more than
others at his grade level-even if that increment is earmarked for
massage or physical therapy that would enable the employee to work
with as little physical discomfort as his co-workers. That would be
"accommodating" the disabled employee, but it would not be "making
... accommodatio[n]
to the known physical or mental
limitations" of the employee, § 12112(b)(5)(A), because it
would not eliminate any workplace practice that constitutes an
obstacle
because of his disability.
So also with exemption from a seniority system, which burdens
the disabled and nondisabled alike. In particular cases, seniority
rules may have a harsher effect upon the disabled employee than
upon his co-workers. If the disabled employee is physically capable
of performing only one task in the workplace, seniority rules may
be, for him, the difference between employment and unemployment.
But that does not make the seniority system a disability-related
obstacle, any more than harsher impact upon the more needy disabled
employee renders the salary system a disability-related obstacle.
When one departs from this understanding, the
414
ADA's accommodation provision becomes a standardless grab
bag-leaving it to the courts to decide which workplace preferences
(higher salary, longer vacations, reassignment to positions to
which others are entitled) can be deemed "reasonable" to "make up
for" the particular employee's disability.
Some courts, including the Ninth Circuit in the present case,
have accepted respondent's contention that the ADA demands
accommodation even with respect to those obstacles that have
nothing to do with the disability. Their principal basis for this
position is that the definition of "reasonable accommodation"
includes "reassignment to a vacant position." § 12111(9)(B). This
accommodation would be meaningless, they contend, if it required
only that the disabled employee be
considered for a vacant
position. The ADA already prohibits employers from discriminating
against the disabled with respect to "hiring, advancement, or
discharge ... and other terms, conditions, and privileges of
employment." § 12112(a). Surely, the argument goes, a disabled
employee must be given preference over a nondisabled employee when
a vacant position appears. See
Smith v.
Midland Brake,
Inc., 180 F.3d
1154, 1164-1165 (CAlO 1999) (en banc);
Aka v.
Washington Hospital Center, 156 F.3d
1284, 1304-1305
(CADC 1998) (en banc). Accord, EEOC
Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, 3 BNA EEOC Compliance
Manual, No. 246, p. N:2479 (Mar. 1, 1999).
This argument seems to me quite mistaken. The right to be given
a vacant position so long as there are no obstacles to that
appointment (including another candidate who is better qualified,
if "best qualified" is the workplace rule) is of considerable
value. If an employee is hired to fill a position but fails
miserably, he will typically be fired. Few employers will search
their organization charts for vacancies
415
to which the low-performing employee might be suited. The ADA,
however, prohibits an employer from firing a person whose
disability is the cause of his poor performance without first
seeking to place him in a vacant job where the disability will not
affect performance. Such reassignment is an accommodation
to the
disability because it removes an obstacle (the inability to
perform the functions of the assigned job) arising solely from the
disability. Cf.
Bruff v.
North Mississippi Health
Services, Inc., 244 F.3d
495, 502
(CAS 2001). See also 3 BNA EEOC Compliance
Manual,
supra, at N:2478 ("[A]n employer who does not
normally transfer employees would still have to reassign an
employee with a disability").
The phrase "reassignment to a vacant position" appears in a
subsection describing a variety of potential "reasonable
accommodation[s]":
"(A) making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and
"(B) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities." § 12111(9)
(emphasis added).
Subsection (A) clearly addresses features of the workplace that
burden the disabled
because of their disabilities.
Subsection (B) is broader in scope but equally targeted at
disability-related obstacles. Thus it encompasses "modified work
schedules" (which may accommodate inability to work for protracted
periods), "modification of equipment and devices," and "provision
of qualified readers or interpreters."
416
There is no reason why the phrase "reassignment to a vacant
position" should be thought to have a uniquely different focus. It
envisions elimination of the obstacle of the
current
position (which requires activity that the disabled employee
cannot tolerate) when there is an alternate position freely
available. If he is qualified for that position, and no one else is
seeking it, or no one else who seeks it is better qualified, he
must be given the position. But "reassignment to a vacant
position" does
not envision the elimination of obstacles to
the employee's service in the new position that have nothing to do
with his disability-for example, another employee's claim to that
position under a seniority system, or another employee's superior
qualifications. Cf. 29 CFR pt. 1630, App. § 1630.2(0), p. 357
(2001) (explaining "reasonable accommodation" as "any change in the
work environment or in the way things are customarily done that
enables an individual with a disability to enjoy
equal
employment opportunities" (emphasis added));
Aka v.
Washington Hospital Center, supra, at 1314-1315 (Silberman,
J., dissenting) (interpreting "reassignment to a vacant position"
consistently with the other accommodations listed in § 12111(9),
none of which "even alludes to the possibility of a preference for
the disabled over the nondisabled").
Unsurprisingly, most Courts of Appeals addressing the issue have
held or assumed that the ADA does not mandate exceptions to a
"legitimate, nondiscriminatory policy" such as a seniority system
or a consistent policy of assigning the most qualified person to a
vacant position. See,
e. g., EEOC v.
Sara Lee Corp.,
237 F.3d
349, 353-355
(CA4 2001) (seniority system);
EEOC
v.
Humiston-Keeling, Inc., 227 F.3d
1024, 1028-1029 (CA72000) (policy of assigning the most
qualified applicant);
Burns v.
Coca-Cola Enterprises,
Inc., 222 F.3d
247, 257-258
(CA6 2000) (policy of reassigning employees
only if they request a transfer to an advertised vacant position);
Cravens v.
Blue Cross and Blue Shield of Kansas
City,
417
214 F.3d
1011, 1020
(CA8 2000) (assuming reassignment is not
required if it would violate legitimate, nondiscriminatory
policies);
Duckett v.
Dunlop Tire Corp., 120 F.3d
1222, 1225 (CAll 1997) (policy of not reassigning salaried
workers to production positions covered by a collective-bargaining
unit);
Daugherty v.
El Paso, 56
F.3d 695, 700
(CA5 1995) (policy of giving full-time
employees priority over part-time employees in assigning vacant
positions).
Even the Equal Employment Opportunity Commission, in at least
some of its regulations, acknowledges that the ADA clears away only
obstacles
arising from a person's disability and nothing
more. According to the agency, the term "reasonable accommodation"
means
"(i) [m]odifications or adjustments to a job application process
that enable a qualified applicant with a disability to be
considered for the position such qualified applicant desires;
or
"(ii) [m]odifications or adjustments to the work environment ...
that enable a qualified individual with a disability to
perform the essential functions of that position; or
"(iii) [m]odifications or adjustments that enable a
covered entity's employee with a disability to enjoy equal
benefits and privileges of employment as are enjoyed by its
other similarly situated employees without disabilities." 29 CFR §
1630.2(0) (2001) (emphasis added).
See also 29 CFR pt. 1630, App. § 1630.9, at 364 ("reasonable
accommodation requirement is best understood as a means by which
barriers to ... equal employment opportunity ... are removed or
alleviated").
Sadly, this analysis is lost on the Court, which mistakenly and
inexplicably concludes,
ante, at 398, that my position here
is the same as that attributed to US Airways. In rejecting the
argument that the ADA creates no "automatic exemption" for neutral
workplace rules such as "break-
418
from-work" and furniture budget rules,
ante, at 397-398,
the Court rejects an argument I have not made.
II
Although, as I have said, the uncertainty cast upon bona fide
seniority systems is the least of the ill consequences produced by
to day's decision, a few words on that subject are nonetheless in
order. Since, under the Court's interpretation of the ADA,
all workplace rules are eligible to be used as vehicles of
accommodation, the one means of saving seniority systems is a
judicial finding that accommodation through the suspension of
those workplace rules would be unreasonable. The Court is
unwilling, however, to make that finding categorically, with
respect to all seniority systems. Instead, it creates (and
"creates" is the appropriate word) a
rebuttable presumption
that exceptions to seniority rules are not "reasonable" under the
ADA, but leaves it free for the disabled employee to show that
under the "special circumstances" of his case, an exception
would be "reasonable."
Ante, at 405. The employee would be
entitled to an exception, for example, if he showed that "one more
departure" from the seniority rules "will not likely make a
difference."
Ibid.
I have no idea what this means. When is it possible for a
departure from seniority rules to "not likely make a difference"?
Even when a bona fide seniority system has multiple exceptions,
employees expect that these are the
only exceptions. One
more unannounced exception will invariably undermine the values
("fair, uniform treatment," "job security," "predictable
advancement," etc.) that the Court cites as its reasons for
believing seniority systems so important that they merit a
presumption of exemption. See
ante, at 404.
One is tempted to impart some rationality to the scheme by
speculating that the Court's burden-shifting rule is
419
merely intended to give the disabled employee an opportunity to
show that the employer's seniority system is in fact a sham-a
system so full of exceptions that it creates no meaningful employee
expectations. The rule applies, however, even if the seniority
system is "bona fide and established," Pet. for Cert. i. And the
Court says that "to require the typical employer to show more than
the existence of a seniority system might well undermine the
employees' expectations of consistent, uniform treatment .... "
Ante, at 404. How could deviations from a sham seniority
system "undermine the employees' expectations"?
I must conclude, then, that the Court's rebuttable presumption
does not merely give disabled employees the opportunity to unmask
sham seniority systems; it gives them a vague and unspecified power
(whenever they can show "special circumstances") to undercut
bona fide systems. The Court claims that its new test will
not require exceptions to seniority systems "in the run of cases,"
ante, at 403, but that is belied by the disposition of this
case. The Court remands to give respondent an opportunity to show
that an exception to petitioner's seniority system "will not likely
make a difference" to employee expectations,
ante, at 405,
despite the following finding by the District Court:
"[T]he uncontroverted evidence shows that [petitioner's]
seniority system has been in place for 'decades' and governs over
14,000 ... Agents. Moreover, seniority policies such as the one at
issue in this case are common to the airline industry. Given this
context, it seems clear that [petitioner's] employees were
justified in relying upon the policy. As such, any significant
alteration of that policy would result in undue hardship to both
the company and its non-disabled employees." App. to Pet. for Cert.
96a.
***
420
Because the Court's opinion leaves the question whether a
seniority system must be disregarded in order to accommodate a
disabled employee in a state of uncertainty that can be resolved
only by constant litigation; and because it adopts an
interpretation of the ADA that incorrectly subjects all employer
rules and practices to the requirement of reasonable accommodation;
I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,
dissenting.
"[R]eassignment to a vacant position," 42 U. S. C. § 12111(9)
(1994 ed.), is one wayan employer may "reasonabl[y] accommodat[e]"
disabled employees under the Americans with Disabilities Act of
1990 (ADA), 42 U. S. C. § 12101
et seq. (1994 ed. and Supp.
V). The Court today holds that a request for reassignment will
nonetheless most likely be unreasonable when it would violate the
terms of a seniority system imposed by an employer. Although I
concur in the Court's appreciation of the value and importance of
seniority systems, I do not believe my hand is free to accept the
majority's result and therefore respectfully dissent.
Nothing in the ADA insulates seniority rules from the
"reasonable accommodation" requirement, in marked contrast to Title
VII of the Civil Rights Act of 1964 and the Age Discrimination in
Employment Act of 1967, each of which has an explicit protection
for seniority. See 42 U. S. C. § 2000e-2(h) (1994 ed.)
("Notwithstanding any other provision of this subchapter, it shall
not be an unlawful employment practice for an employer to [provide
different benefits to employees] pursuant to a bona fide seniority
... system ... "); 29 u. S. C. § 623(f) (1994 ed.) ("It shall not
be unlawful for an employer ... to take any action otherwise
prohibited [under previous sections] ... to observe the terms of a
bona fide seniority system [except for involuntary retirement] ...
"). Because Congress modeled several of the
421
ADA's provisions on Title VII,l its failure to replicate Title
VII's exemption for seniority systems leaves the statute ambiguous,
albeit with more than a hint that seniority rules do not inevitably
carry the day.
In any event, the statute's legislative history resolves the
ambiguity. The Committee Reports from both the House of
Representatives and the Senate explain that seniority protections
contained in a collective-bargaining agreement should not amount to
more than "a factor" when it comes to deciding whether some
accommodation at odds with the seniority rules is "reasonable"
nevertheless. H. R. Rep. No. 101-485, pt. 2, p. 63 (1990)
(existence of collectively bargained protections for seniority
"would not be determinative" on the issue whether an accommodation
was reasonable); S. Rep. No. 101-116, p. 32 (1989) (a
collectivebargaining agreement assigning jobs based on seniority
"may be considered as a factor in determining" whether an
accommodation is reasonable). Here, of course, it does not matter
whether the congressional committees were right or wrong in
thinking that views of sound ADA application could reduce a
collectively bargained seniority policy to the level of "a factor,"
in the absence of a specific statutory provision to that effect. In
fact, I doubt that any interpretive clue in legislative history
could trump settled law specifically making collective-bargaining
agreements enforceable. See,
e. g., § 301(a), Labor
Management Relations Act, 1947, 29 U. S. C. § 185(a) (permitting
suit in federal court to enforce collective-bargaining agreements);
Textile Workers v.
Lincoln Mills of Ala., 353 U. S. 448 (1957)
(holding that § 301(a) expresses a federal policy in favor of the
enforceability of labor contracts);
Charles Dowd Box Co. v.
Courtney, 368 U. S.
1 It is evident from the legislative history that several
provisions of Title VII were copied or incorporated by reference
into the ADA. See,
e. g., S. Rep. No. 101-116, pp. 2,
25, 43 (1989); H. R. Rep. No. 101-485, pt. 2, pp. 54, 76-77
(1990).
422
502, 509 (1962) ("Section 301(a) reflects congressional
recognition of the vital importance of assuring the enforceability
of [collective-bargaining] agreements"). The point in this case,
however, is simply to recognize that if Congress considered that
sort of agreement no more than a factor in the analysis, surely no
greater weight was meant for a seniority scheme like the one before
us, unilaterally imposed by the employer, and, unlike
collective-bargaining agreements, not singled out for protection by
any positive federal statute.
This legislative history also specifically rules out the
majority's reliance on
Trans World Airlines, Inc. v.
Hardison, 432
U. S. 63 (1977),
ante, at 403, a case involving a
request for a religious accommodation under Title VII that would
have broken the seniority rules of a collective-bargaining
agreement. We held that such an accommodation would not be
"reasonable," and said that our conclusion was "supported" by Title
VII's explicit exemption for seniority systems. 432 U. S., at
79-82. The committees of both Houses of Congress dealing with the
ADA were aware of this case and expressed a choice against treating
it as authority under the ADA, with its lack of any provision for
maintaining seniority rules.
E. g., H. R. Rep. No. 101-485,
pt. 2, at 68 ("The Committee wishes to make it clear that the
principles enunciated by the Supreme Court in
TWA v.
Hardison ... are not applicable to this legislation"); S.
Rep. No. 101-116, at 36 (same).2
2 The House Report singles out
Hardison's equation of
"undue hardship" and anything more than a "de minimus
[sic]
cost" as being inapplicable to the ADA. By contrast,
Hardison itself addressed seniority systems not only in its
analysis of undue hardship, but also in its analysis of reasonable
accommodation. 432 U. S., at 81, 84. Nonetheless, Congress's
disavowal of
Hardison in light of the "crucial role that
reasonable accommodation plays in ensuring meaningful employment
opportunities for people with disabilities," H. R. Rep. No.
101-485, pt. 2, at 68, renders that case singularly inappropriate
to bolster the Court's holding today.
423
Because a unilaterally imposed seniority system enjoys no
special protection under the ADA, a consideration of facts peculiar
to this very case is needed to gauge whether Barnett has carried
the burden of showing his proposed accommodation to be a
"reasonable" one despite the policy in force at US Airways. The
majority describes this as a burden to show the accommodation is
"plausible" or "feasible,"
ante, at 402, and I believe
Barnett has met it.
He held the mailroom job for two years before learning that
employees with greater seniority planned to bid for the position,
given US Airways's decision to declare the job "vacant." Thus,
perhaps unlike ADA claimants who request accommodation through
reassignment, Barnett was seeking not a change but a continuation
of the status quo. All he asked was that US Airways refrain from
declaring the position "vacant"; he did not ask to bump any other
employee and no one would have lost a job on his account. There was
no evidence in the District Court of any unmanageable ripple
effects from Barnett's request, or showing that he would have
overstepped an inordinate number of seniority levels by remaining
where he was.
In fact, it is hard to see the seniority scheme here as any
match for Barnett's ADA requests, since US Airways apparently took
pains to ensure that its seniority rules raised no great
expectations. In its policy statement, US Airways said that "[t]he
Agent Personnel Policy Guide is
not intended to be a
contract" and that "USAir reserves the right to change any and all
of the stated policies and procedures in this Guide at any time,
without advanced notice." Lodging of Respondent 2 (emphasis in
original). While I will skip any state-by-state analysis of the
legal treatment of employee handbooks (a source of many lawyers'
fees) it is safe to say that the contract law of a number of
jurisdictions would treat this disclaimer as fatal to any claim an
employee
424
might make to enforce the seniority policy over an employer's
contrary decision.3
With US Airways itself insisting that its seniority system was
noncontractual and modifiable at will, there is no reason to think
that Barnett's accommodation would have resulted in anything more
than minimal disruption to US Airways's operations, if that.
Barnett has shown his requested accommodation to be "reasonable,"
and the burden ought to shift to US Airways if it wishes to claim
that, in spite of surface appearances, violation of the seniority
scheme would have worked an undue hardship. I would therefore
affirm the Ninth Circuit.
3 The Court would allow a plaintiff to argue that a particular
system was so riddled with exceptions so as not to engender
expectations of consistent treatment.
Ante, at 405-406.
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