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Justice Breyer The U.S. Supreme Court continues to narrow the scope of the Americans with Disabilities Act. On April 29 the Court held that most employers do not have to disrupt an established seniority system to accommodate the needs of a disabled worker. The 5-to-4 decision in U.S. Airways v. Barnett is a blow to baggage handler Robert Barnett, who injured his back in 1990 while working on the job at San Francisco’s airport. The ruling means that the airline does not have to give Barnett a mail room job as a “reasonable accommodation” under the law. The airline successfully argued that giving the mail room position to Barnett upsets the airline’s established seniority system, making it an unreasonable accommodation. Writing for the majority, Justice Stephen Breyer reasoned: “The typical seniority system provides important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment.” Employers Shouldn’t Cheer Naturally, employer-side practitioners hailed the decision-but the ruling also has a substantial downside for companies. Though Breyer created a presumption favoring established seniority systems, he also spelled out special circumstances in which exceptions might be made. For instance, if the employer has made frequent exceptions to the seniority system in the past, a plaintiff could show that another exception would not upset employees’ expectations about seniority. Plaintiff’s Lawyer Is Hopeful Even Barnett’s lawyer, Claudia Center of the Employment Law Center in San Francisco, sees hope in the ruling. She says the decision contains substantial “saving graces” that soften the blow for the disabled. She adds that the presumption favoring seniority systems places a “relatively modest burden” on plaintiffs to show that an exception is warranted. Center also is optimistic that Barnett will eventually prevail. She says that she will show on remand that the U.S. Airways seniority system is “bogus” and full of exceptions. U.S. Airways attorney Walter Dellinger of the D.C. office of O’Melveny & Myers counters Center’s view. He says the decision is “very satisfactory” for the airline and employers in general. “It means that seniority systems can be effectively and regularly applied, so long as they are not littered with exceptions.” Headaches Ahead But other employer-side attorneys say that the decision will result in costly headaches. “I foresee substantial discovery over how the seniority system has been employed in the past, and what exceptions have been made,” says Philip Berkowitz of Salans Hertzfeld Heilbronn Christy & Viener in New York. “I don’t think employers can rely on a seniority system alone based on this decision.” Justice Sandra O’Connor, who concurred with majority, hinted that employers will not always win. O’Connor advocated a more objective test for determining whether seniority systems should win out over disability claims. She said that if a seniority system is “legally enforceable,” meaning that it gives workers with seniority a legal right to certain jobs, it should prevail. But if not, allowing the disabled worker to take the job is reasonable. Significantly, O’Connor wrote that U.S. Airways’s seniority system was not legally enforceable; hence, making an exception for Barnett would be a reasonable accommodation. But in his dissent, Justice Antonin Scalia sharply criticized the decision for its failure to articulate clear guideposts for future cases having to do with seniority. “Indulging its penchant for eschewing clear rules that might avoid litigation,” Scalia said, the Court answered “maybe” to the question in the case. Justice Clarence Thomas joined Scalia’s dissent. Justice David Souter, joined by Justice Ruth Bader Ginsburg, also dissented-but from the opposite direction. “Nothing in the ADA insulates seniority rules from the ‘reasonable accommodation’ requirement,” Souter wrote. This article originally appeared in Legal Times, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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