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Seniority doesn’t trump disability, a 9th U.S. Circuit Court of Appeals en banc panel ruled Wednesday in a decision that gives injured workers an edge over co-workers with more experience in assignments. “We hold that reassignment is a reasonable accommodation and that a seniority system is not a per se bar to reassignment,” wrote Senior Judge Betty Fletcher. “However, a seniority system is a factor in the undue hardship analysis.” The majority opinion, which elicited two dissents among three judges on the 11-judge panel, held that an employee reassigned to another job in order to accommodate a disability could not be replaced by other co-workers under a seniority system. The opinion conflicts with decisions from at least two other circuits. In his dissent, Judge Stephen Trott said that the opinion stood for the proposition that employers could be obligated to “bump” a senior employee from an assignment in order to provide a position for a disabled employee. The opinion stems from a suit brought by Robert Barnett, a cargo mover at San Francisco International Airport, against his employer, U.S. Air. Barnett sued the airline for discrimination under the ADA after he injured his back. He was initially reassigned to a job in the mail room. But Barnett was later removed from the mail room job because more senior co-workers wanted the job. Ruling in favor of U.S. Air on a summary judgment motion, U.S. District Judge D. Lowell Jensen held that Barnett’s injury did not qualify him for protection under the ADA. But Barnett appealed to the 9th Circuit, arguing that the airline violated the ADA by not providing him with accommodations, by not talking with him about ways to accommodate his disability and by failing to keep him in the mail room. After he was removed from the mail room job, Barnett was told he could return to a cargo job. But Barnett’s request for accommodations — either special equipment to help move cargo or paperwork duties — was never addressed or even discussed by management, according to the opinion. Senior Judge Charles Wiggins, who has since died, wrote the first opinion for the 9th Circuit. He ruled in favor of the airline, holding that, among other things, Barnett’s injury wasn’t even covered under the ADA. Judge Pamela Rymer joined him in the majority, while Fletcher dissented. The en banc majority in Barnett v. U.S. Air Inc., 00 C.D.O.S. 8184, held that U.S. Air should not have been granted summary judgment because there was a “genuine dispute” over whether the airline made a “good faith” effort to communicate with Barnett about the accommodation. In particular, Fletcher held that employers have a duty to consult with disabled workers about the best ways to accommodate their needs. “The [ADA's] legislative history makes clear that employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations,” wrote Fletcher. Plaintiff’s attorney Noah Lebowitz praised that portion of that decision. “It clarifies for an employer what an employer has to do when an employee asks for an accommodation,” said Lebowitz, of Schneider, McCormac & Wallace. “The employer is charged with common sense.” Judge Ronald Gould, meanwhile, concurred separately, calling the majority’s opinion “excellent.” “Under the statute’s express terms,” Gould wrote, “the ‘difficulty or expense’ of an accommodation should not be considered in assessing ‘reasonable accommodation, but, rather, considered only in assessing ‘undue hardship.’” But in dissent, which was joined by Judges Diarmuid O’Scannlain and Andrew Kleinfeld, Judge Trott argued that granting Barnett’s request to stay in the mail room would have violated U.S. Air’s “legitimate” seniority policy. “I am persuaded by well-reasoned opinions from other circuits that have concluded that the ADA does not require an employer to give disabled employees preference over non-disabled employees in hiring and reassignment decisions.” Judge O’Scannlain, in separate dissent, asserted that Barnett’s injury didn’t even qualify him for ADA protection. He was joined by Trott and Kleinfeld.

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