Amicus Curiae Brief — US Airways, Inc. v. Barnett

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Supreme Court of the Gnited Santas

US AIRWAYS. INC..

Petitioner,

Vv.

ROBERT BARNETT,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

JONATHAN P. HIATI

DEBORAH GREENFIELD

JAM"S B. COPPESS

815 Sixteenth Street, NW

Washington, DC 20006

MICHAEL H. GOTTESMAN

600 New Jersey Avenue, NW

Washington, DC 20001

LAURENCE GOLD *

805 Fifteenth Street, NW

Washington, DC 20005

(202) 842-2600

* Counsel of Record

WILSON-EPES PRINTING Co . INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

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STATEMENT OF THE CASE. ..ccccccossscccsscccscsesssesessoeees

SUMMARY OF ARGUMENT .............ccccccesseeeeeseeeeees

ARGUMENT...

CONCLUSION

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TABLE OF AUTHORITIES

CASES Page

Aka v. Washington Hospital Center, 156 F.3d

Fe ies Gels BOD vxcccvccoscccscssscccccevesnsscsessseces 7

Alan Wood Steel Co., 4 Lab. Arb. (BNA) 52

(1946) (Brandshain, Arb.)..............cccecceerseeeeeeees 18

Boersig v. Union Electric Co., 219 F.3d 816 (8th

TEED sisstundenersoesnensenes 2» ~~ 16

California Brewers Ass'n v. Bryant, 444 U.S.

SIIIITIIIIIED sitietsadhinestenensemsensencuonscosessnsevedpsenecesesese 10

Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th

IE TID ccnciidciaicatteistaiemaremareneveesecvevovensssssssnssese 8, 21

Davis v. Florida Power & Light Co., 205 F.3d

ee Ee OED Gs BED ‘execcovsocccccvccscescvescssesssesseecs 17,21

EEOC v. Sara-Lee Corp., 237 F.3d 349 (4th Cir.

ee 22

Eckles v. Consolidated Rail Corp., 94 F.3d 1041

(7th Cir. 1996), cert. denied, 520 U.S. 1146

Ea passim

Feliciano v. Rhode Island, 160 F.3d 780 (ist Cir.

Sir iaclcciiesicdiidadndiinstinipenmensseconincnvvesncnesensnansensesnees 21

Foreman v. Babcock & Wilcox Co., 117 F.3d 800

III TT isd pandncnsnensenpnnenseseesonantesnaseane 21

Franks v. Bowman Transportation Co., 424 U.S.

TTI iets tieirnaenitpenenentndnennenenneesenesssssssece 10

Gile v. United Airlines, Inc., 95 F.3d 492 (7th

I I ils teicinnenentecnanemeceeansocsnnsedeeneeses 8

Humphrey v. Moore, 375 U.S. 335 (1964) .......0++. 10

Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997) ....... 21

Lorance v. AT&T Technologies, Inc., 490 U.S.

SITIES -cenctnansttutdpteninnsersvesscoccenvescecsssnsessnneseses 11, 16

Machinists v. Central Airlines, 372 U.S. 682

TT ictal ditasadainanthintnentenenmenanepernntesenensnansscensansse 17

Overly Mfg. Co., 68 Lab. Arb. (BNA) 1343

CORE PP EPMER, PTD.) coccccceseccscecccccccccsccnsensecesscsooes 18

Smith v. Evening News, 371 U.S. 195 (1962)........ 17

iil

TABLE OF AUTHORITIES—Continued

Page

Smith v. Midland Brake, Inc., 180 F.3d 1154

EE Ter Seve passim

Textile Workers v. Lincoln Mills, 353 U.S. 448

GID EIUED ‘cadsenpntannsensnscensntensnmemaneenaneiasomessnaanenenses 17

Trans World Airlines v. Hardison, 432 U.S. 63

a 16

Vaca v. Sipes, 386 U.S. 171 (1967) ......ccccccccceeeeees 17

Willis v. Pacific Maritime Ass'n, 244 F.3d 675

ee 10, 17, 21, 23

STATUTES

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GB UBS. © 120 BOG anccccccccccccccesccscceseccsccssscesees 1,8, 13

Se es On MEI cicrensccesnecsenencnnnnednanssnsenmnanediiees l

ay ee Oe ET cccrncnnscnescenennscscnsnsnnsennssnecs 13, 14

GB UBL. © TSE LARISA) accccccccccscccccccccscescesesceees l

a es Ge GI teidencnmnccsssnsenencenscsevtenensetonees 2, 16

GD UIA. © BF, DOUG IIR cccccceccccescscccesccessssscscsscrsees 17

LEGISLATIVE HISTORY

H.R. Rep. No. 101-485 (II), 101st Cong., Ist

IID cecnceccntnssnonssineserennneccsnemsnenenien 8, 12, 13, 14

S. Rep. No. 101-116, 10lst Cong., Ist Sess.

SITU seteseindttenapsnaneusensensnonepepenennenenenpenednnnamnentens 8, 12, 14

MISCELLANEOUS

F. Elkouri & E. Elkouri, How Arbitration Works

SEEN SEIT i cescsnenscnsnnennnsnneincenttenntcscnnmnes 11, 17, 18,21

R. Freeman & J. Medoff, What Do Unions Do?

TIFT isvcncetensstenstianeenenemecsntenineceneseontonnntsenentatins 18

TABLE OF AUTHORITIES—Continued

Stephen P. Pepe & Scott H. Dunham, Avoiding

and Defending Wrongful Discharge Claims

GED cocsesensssssnssnemmanresescmenssemmmepensnimenanies

S. Slichter, J. Healy & E. Livernash, The Impact

of Collective Bargaining on Management

Page

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

The American Federation of Labor and Congress of Industrial

Organizations (AFL-CIO), a federation of 66 national and

international labor organizations with a total membership of

approximately 13 million working men and women, files this

brief amicus curiae in support of respondent with the consent of

the parties as provided for in the Rules of this Court.'

STATEMENT OF THE CASE

The Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101, et seq., prohibits discrimination by a “covered entity,”

such as an employer, id. § 12111(2), against “a qualified

individual with a disability because of the disability . . . in

regard to . . . terms, conditions, and privileges of employment,”

id. § 12112(a). The ADA defines discrimination to include “not

making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified . . . employee,

unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the

operation of the business of such covered entity.” /d.

§ 12112(b)(S)A). The statutory definition of the term “reason-

able accommodation” sets out various examples of such an

accommodation, one of which is “reassignment to a vacant

position.” /d. § 12111(9)(B).

This case involves a claim of discrimination based on the

employer’s refusal to provide the plaintiff a reassignment

accommodation. Pet. App. 2a-3a.

'No counsel for a party authored this brief amicus curiae in whole or in

part, and no person or entity, other than the amicus curiae, made monetary

contribution to the preparation or submission of this brief.

In 1992-93, when the events in this case transpired, the

plaintiff, Robert Barnett, was employed in the USAir (now US

Airways) mailroom at the San Francisco International Airport.

Pet. App. 2a. At that time, Barnett’s terms of employment were

governed by the Company’s unilateral employment policies and

were not embodied in any contract of employment.” The USAir

employment policies included a “seniority policy” that provided

for competitive employee bidding for positions based on the

employee’s length of service in a particular job classification.

Id. at 50a.

In August 1992, USAir opened all of its San Francisco

Airport cargo and mailroom positions to bidding. Pet. App. 50a.

Barnett, who had a back injury that prevented him from doing

cargo position work, requested that USAir make an exception to

its seniority policy to allow him to maintain his mailroom

position, even if more senior employees bid for the position. /d.

U.S. Air refused that request and placed Barnett in an extra

short-term “limited duty” mailroom position. /d. at 50a-Sla.

Five months later, US Air terminated that extra position, gave

Barnett paid on-the-job leave for one month, and thereafter

terminated his employment.’

? The International Association of Machinists & Aerospace Workers,

AFL-CIO, subsequently became the collective bargaining representative

under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., of the craft and

class including Barnett’s former job. The working conditions at issue in this

case, including assignment to vacancies, are now governed by the terms of a

collective bargaining agreement between the Machinists Union and US

Airways under the RLA.

* More fully stated, the sequence of events following Barnett’s assignment

to a “limited duty” position was as follows: In January 1993, Barnett’s

supervisors informed him that he would lose his limited duty mailroom

position, because his five month stay in that position had exceeded the sixty

day term for such a position provided for by Company policy. /d. at Sla.

Barnett, who had sufficient seniority to bid for and obtain a cargo position,

requested various changes in the cargo position that would allow him to

perform that job, but USAir declined to make those changes. /d. USAir also

Barnett filed charges with the Equal Employment Oppor-

tunity Commission alleging a number of ADA violations. Pet.

App. 3a. The EEOC found that there was reason to believe that

USAir had discriminated against Barnett by denying him a

reasonable accommodation. /d. Barnett thereafter filed suit

raising both failure to accommodate and retaliation claims under

the ADA. /d. The district court granted summary judgment in

favor of USAir on all of Barnett’s claims.

In the court of appeals, the focus of inquiry centered on

Barnett’s claim that “it would have been a reasonable

accommodation for USAir to allow him to remain in the mail

room, by making an exception to its seniority policy.” Pet.

App. 21a. In response to this claim, USAir argued that “the

ADA guarantees Barnett no more than the opportunity to apply

for and compete for reassignment,” and that he was accorded

this opportunity by the neutral application of the Company’s

seniority policy. /d. at 22a. A panel of the Ninth Circuit

accepted this argument and sustained the district court’s grant of

summary judgment.

On rehearing en banc, the Ninth Circuit held that “an

employer’s unilaterally imposed seniority system [does not]

trump{] a disabled employee’s right to reassignment” under the

ADA. Pet. App. 22a. In so ruling, the court of appeals

acknowledged that “most circuits including our own have...

held that the ADA does not require an accommodation which

conflicts with a collective bargaining agreement.” Id. at 25an. 9

(emphasis added). The court distinguished these cases on the

grounds that “where there is no collective bargaining agreement,

no bargained for rights are involved,” and that a unilaterally

declined to reassign Barnett to one of the regular mailroom positions, which

were at that point being filled by senior employees, on the ground that this

would violate the Company's seniority policy. /d. Because Barnett could not

perform any of the available cargo jobs, he was given paid on-the-job leave

for one month and subsequently terminated from employment.

Id. at 90a.

adopted “seniority system without more should not bar

reassignment.” /d. at 25a-26a.

US Airways (the successor to USAir) petitioned this Court to

address whether reassignment of an employee with a disability

to a position claimed by a more senior employee under the

employer’s unilaterally adopted seniority policy is a “reasonable

accommodation” within the meaning of the ADA.

SUMMARY OF ARGUMENT

The Americans with Disabilities Act (ADA) prohibits

employment discrimination against a qualified employee on the

basis of disability. The Act defines discrimination to include

not making reasonable accommodations to the known physical

or mental limitations of an otherwise qualified employee, unless

the accommodation would impose an undue hardship on the

operation of the employer’s business. Among the “reasonable

accommodations” identified in the statute is “reassignment to a

vacant position.”

By specifying that reassignment is a “reasonable accommo-

dation” only where there is a “vacant position,” Congress

intended to make clear that an employer is not required to

displace—or “bump”—another employee in order to accommo-

date an employee with a disability. Accordingly, there is no

question that reassignment to a position that would result in

displacing the incumbent job-holder is not a “reasonable

accommodation” required by the Act.

In the instant case, US Airways argues that reassignment of

an employee with a disability to a position to which a senior

employee has a “legitimate expectation” under an employer-

implemented “seniority policy” is not a “reasonable accom-

modation.” US Airways bases that argument on a unanimous

line of court of appeals decisions holding that a position is not

vacant, even though not presently filled by an incumbent, where

a collective bargaining agreement seniority system gives a

senior employee a “vested priority right” to assume the position.

The theory of these cases is that, under a collective bargaining

agreement seniority system, positions that are assigned on the

basis of seniority are not “vacant” in the sense of being unfilled,

because senior employees have a contractual right to the

positions. Under such a system, an employer that does not

assign a position to the senior employee has “bumped” that

employee, not only from the position at issue but also from the

employee’s rightful place in the seniority “hierarchy.” It follows

that reassigning an employee with a disability to a position so as

to bypass the senior employee with a contractual right to the

position is not a reassignment to a vacant position.

US Airways’ attempt to equate employer-implemented

seniority policies with collective bargaining agreement seniority

systems fails. Employer-implemented seniority policies do not

create vested rights in the covered employees; rather, those

policies leave the employer free to make assignments as the

employer sees fit. Thus, a position covered by an employer-

implemented seniority policy that is not presently filled by an

existing employee is “vacant” and available for a “reasonable

accommodation” reassignment, regardless of whatever

“legitimate expectations” senior employees have with respect to

the position.

Contrary to US Airways, drawing this distinction between

contractual seniority systems and unilaterally adopted seniority

policies is not to say that the parties to a collective bargaining

agreement are free to contract their way out of their obligations

under the ADA. Since the ADA requires reassignment only to a

vacant position and does not require bumping, a collective

bargaining agreement that precludes reassignment to positions

that other employees have a seniority right to fill—with the

result that such positions are not vacant—does not subject

employees with disabilities to discrimination prohibited by the

statute.

US Airways’ contention that contractual seniority systems—

like unilateral seniority policies—do not create contractual

rights in the covered employees is equally meritless. To the

contrary, collective bargaining agreement seniority systems

create rights in the covered employees that are protected by

the federal labor laws. These seniority rights are judicially

enforceable by the employees as a matter of federal law, and

employers are forbidden from unilaterally modifying such rights

until certain statutory conditions are fulfilled. In contrast, an

employer-initiated “seniority policy” is merely a non-binding

guideline for the exercise of management discretion.

US Airways contends that employer-implemented policies

may be stated in cviwactual terms and give rise to contract

rights. But US Airways’ seniority policy is most certainly not

stated in contractual terms. That policy was set out in a

personnel policy guide that explicitly disclaimed any contractual

import and stated that its contents were intended only as

“guidelines for the exercise of management discretion.” Indeed,

US Airways deviated from its own policy in this case, as it had

every management right to do.

ARGUMENT

This case concerns the interplay between the Americans with

Disabilities Act’s “reasonable accommodation” provision for

“reassignment to a vacant position” and an employer-

implemented “seniority policy.” Pet. Br. 4. Insofar as US

Airways treats directly with that interplay the Company argues

that, “[e]ven if disabled employees are entitled to preferential

treatment in reassignment as a general matter, that rule could

not apply in the particular context of a seniority policy.”

Id. at 8.*

* On the question of whether, as a general matter, the ADA’s “reasonable

accommodation” provision requires an employer to give preference to an

employee with a disability in making reassignments, US Airways argues that

“awarding respondent an exception from the seniority policy would amount

to granting him preferential treatment rather than enabling him to compete on

an equal basis” and that “[a]n interpretation requiring employers to give

preference to disabled employees in reassignment decisions would go well

US Airways’ argument in this regard rests on the proposition

that employer-implemented seniority policies “engender

legitimate and settled expectations in employees” and the ADA

does “not require[] employers to interfere with those

expectations.” Pet. Br. 9. The Company builds this argument

on two predicates: (i) the uniform line of court of appeals cases

holding that the ADA does not require a reassignment that

conflicts with the seniority provisions of a collective bargaining

agreement, see Pet. App. 25a n. 9; and (ii) an assertion that

“{t]here is no material distinction under the statute” between the

employee seniority rights created by collective bargaining

agreement seniority provisions and the employee seniority

expectations created by employer-implemented seniority

policies. Pet. Br. 38. See id. at 38-41.

US Airways’ argument is based on a plain misunderstanding

of the scope and nature of the ADA’s reasonable

accommodation provision and of the legal basis on which the

courts of appeals have held that reassignment in conflict with

the seniority provisions of a collective bargaining agreement is

not an ADA-required “reasonable accommodation”—a basis

that does not apply to employer-implemented seniority policies.

Those court of appeals decisions rest on Congress’

determination that a “reasonable accommodation” reassignment

is required only if the reassignment is to a “vacant position.”

None of those decisions rests on, or justifies, balancing, in an

open-ended fashion, the interests of an employee with a

disability against the interests of other employees with seniority

“expectations.”

beyond the basic non-discrimination objectives of the ADA.” Pet. Br. 7 & 8.

Respondent’s brief demonstrates the lack of merit in this argument—which

has been firmly and properly rejected by “numerous courts [that] have

assumed that the reassignment obligation means something more than

treating a disabled employee like any other job applicant,” Smith v. Midland

Brake, Inc., 180 F.3d 1154, 1170 (10th Cir. 1999), quoting Aka v.

Washington Hospital Center, 156 F.3d 1284, 1304 (D.C. Cir. 1998)—and we

do not treat separately with the argument here.

In point I, infra, we analyze the court of appeals decisions

considering whether reassignment is a “reasonable accom-

modation” in the context of a collective bargaining agreement

seniority system. We then, in point Il, infra, apply the lessons of

those decisions to cases, like this one, considering whether

reassignment is a “reasonable accommodation” in the context of

an employer-implemented “seniority policy.”

I. A. In drafting the ADA’s reasonable accommodation

provision, “Congress . . . significantly cabined the obligation to

offer reassignment.” Smith v. Midland Brake, 180 F.3d at 1170.

Congress did so by “mak[ing] clear that the 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. 31 (1989) (S. Rep.); H.R. Rep. No. 101-485

(Il), p. 63 (1989) (H.R. Rep). See 42 U.S.C. § 12111(9)(B)

(“reassignment to a vacant position” is a “reasonable

accommodation”).

It follows, as the courts of appeals have uniformly concluded,

that “under the terms of the statute, if a position is not vacant it

is not reasonable to require an employer to bump another

employee in order to reassign a disabled employee to that

position.” Smith v. Midland Brake, 180 F. 3d at 1175.° And, a

position is “not vacant,” in the sense contemplated by the ADA,

if “reassign[ing] a disabled employee to th[e] position” would

* Accord Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998)

(“a reassignment will not require creating a new job, moving another

employee, promoting the disabled employee, or violating another employee’s

rights under a collective bargaining agreement”); Gile v. United Airlines,

Inc., 95 F.3d 492, 499 (7th Cir. 1996) (“An employer may be obligated to

reassign a disabled employee, but only to vacant positions; an employer is not

required to ‘bump’ other employees to create a vacancy so as to be able to

reassign the disabled employee.”); Eckles v. Consolidated Rail Corp., 94

F.3d 1041, 1047 (7th Cir. 1996) (emphasis in original), cert. denied, 520

U.S. 1146 (1997) (“the suggestion that reassignment be to a vacant position

suggests that Congress did not intend that other employees lose their

positions in order to accornmodate a disabled coworker”).

“require [the] employer to bump another employee.” Smith v.

Midland Brake, 180 F. 3d at 1175. In common labor relations

parlance, when we say that a position is not vacant because it

belongs to employee A or that a job assignment to employee B

would “bump” employee A, what we mean is that employee A

has an established claim of right to the position.

For example, a position is certainly “not vacant”—and not

open for a “reasonable accommodation reassignment”—if an

employee has been permanently assigned to, and is holding, the

position; and, that is true even when the incumbent employee is

on vacation and physically away from the job. In employment

relationship terms, the incumbent employee’s claim of right to

the position by reason of the permanent assignment is such as to

render it filled and thus “not vacant.”

Conversely, a position that has been temporarily assigned—

either by temporarily reassigning an employee to perform the

job or by contracting with a temporary employment agency to

supply one of the agency’s workers to do the job—is, in

employment relations terms, not filled and, therefore, is

“vacant” (and is open for a “reasonable accommodation

reassignment” to an employee with a disability). That is so,

because the incumbent employee, by reason of the terms of his

temporary assignment, has no claim of right to the job.

Of most direct relevance to this case, in employment relations

terms a position that an employer is contractually bound to

assign to another employee is “not vacant” (and not open for

reasonable accommodation reassignment). For example, if an

employer enters into a contract with a job applicant to hire the

applicant into a position on a particular date, that position is

“not vacant,” and is not open for a reasonable accommodation

reassignment, even though the applicant will not begin to

occupy the position until the specified starting date. The

contract provides the job applicant a claim of right to the

position equal to a claim of right by an incumbent permanent

employee.

B. Against this employment relations background, every

court of appeals to consider the question has concluded that “an

existing position would not truly be vacant, even though it is not

presently filled by an existing employee, if under a collective

bargaining agreement other employees have a vested priority

right to such vacant positions.” Smith v. Midland Brake, 180 F.

3d at 1175 (emphasis added). See Willis v. Pacific Maritime

Ass'n, 244 F.3d 675, 681 (9th Cir. 2001) (“[T]he positions they

requested were not ‘vacant,”” because “(t]he CBA provided that

those jobs should be assigned based on seniority.”). See also id.

at 680 (citing decisions so holding from the First, Third, Fifth,

Sixth, Seventh, Eighth, Tenth & Eleventh Circuits). In other

words, “under a [collectively bargained] seniority system like

that in place at [most unionized workplaces], few positions are

ever truly ‘vacant,’ in the sense of being unfilled,” because

“positions held by less senior employees are open to be bid upon

and acquired by more senior employees.” Eckles v. Consoli-

dated Rail Corp., 94 F.3d at 1047.

These decisions have a sound footing in the law of labor

contracts. “{Ojne of [a collective bargaining agreement

seniority system’s] major functions is to determine who gets or

who keeps an available job.” Humphrey v. Moore, 375 U.S.

335, 346-347 (1964). Under a typical collective bargaining

agreement seniority system, “job assignments . . . are posted for

competitive bidding and seniority is used to determine the

highest bidder.” Franks v. Bowman Transportation Co., 424

U.S. 747, 767 (1976). Thus, “[a] ‘seniority system’ is a scheme

that, alone or in tandem with non-‘seniority’ criteria, allots to

employees ever improving employment rights and benefits as

their relative lengths of pertinent employment increase.”

California Brewers Ass'n v. Bryant, 444 U.S. 598, 605-606

(1980) (footnotes omitted).

Given the nature of collective bargaining agreement seniority

systems, an employer assignment of a position not presently

filled by an incumbent employee to someone other than the

senior employee “bumps” the senior employee both from the

particular position at issue and from the employee’s rightful

place in the seniority “hierarchy.” Lorance v. AT&T Tech-

nologies, Inc., 490 U.S. 900, 905 (1989). In the “competitive”

sense relevant to deciding who fills a particular job, “seniority is

a relationship between employees in the same seniority unit.” F.

Elkouri & E. Elkouri, How Arbitration Works 807 (Sth ed.

1997). Employees within a particular employment unit—

typically company-wide, plant-wide or department-wide—are

ranked according to total time served on a specified basis—for

example, employment time within a particular department or job

classification. See S. Slichter, J. Healy & E. Livernash, The

Impact of Collective Bargaining on Management 116-117

(1960). Given the hierarchical nature of a competitive seniority

system, “for every person who[] . . . is advanced [within the

system], someone will be adversely affected by such

advancement.” Elkouri & Elkouri, How Arbitration Works 807.

In this regard, the critical point for current purposes is that, in

the collective bargaining agreement context, “[s]eniority is a

contractual right... .” Lorance v. AT&T Technologies, 490

U.S. at 905. Thus, the most senior employee’s claim to a

particular position is—in every legally relevant sense—of at

least the same strength as the claim of a less senior incurabent to

continue holding the position. This is most vividly

demonstrated by the common seniority rule that where a senior

employee’s position is eliminated, the senior employee has a

paramount claim to a position held by a junior incumbent such

as to enable the senior employee to take over the position

notwithstanding the junior employee’s incumbency. See Elkouri

& Elkouri, How Arbitration Works 772-773 (senior employees

are commonly provided this right in layoff situations). See

generally Slichter, Healy & Livernash, The Impact of Collective

Bargaining on Management 158-161.

As the courts of appeals have recognized, where a collective

bargaining agreement seniority system is in place, reading “the

ADA [to] require[] as ‘reasonable accommodation’ that a

disabled individual be given special job placement and job

protection (from bumping) in violation of a bona fide seniority

system in place under a collectively bargained agreement . . .

poses a conflict not so much between the rights of the disabled

individual and his employer and union, but between the rights of

the disabled individual and those of his co-workers.” Eckles v.

Consolidated Rail Corp., 94 F.3d at 1045-46 (footnotes

omitted). And, such a reading of the statute would be contrary

to Congress’ clear statement that ““bumping’ another employee .

. . is not required” by the reasonable accommodation provision.

S. Rep. at 31; H.R. Rep. at 63.

That “the text of the ADA” specifies—by providing for

“reassignment to a vacant position” —that an employer is not

required to bump another employee in order to accommodate an

employee with a disability is explained by “the background of

the ADA’s ‘reasonable accommodation’ concept and the

legislative history of the ADA.” Eckles v. Consolidated Rail

Corp., 94 F.3d at 1047. “[T]he term ‘reasonable accom-

modation’ in the ADA was apparently borrowed from the

regulations issued by the Equal Employment Opportunity

Commission (‘EEOC’) in implementation of the Rehabilitation

Act of 1973.” /d., citing S. Rep. at 31 & H.R. Rep. at 62. And,

“courts have been unanimous in rejecting the claim that

‘reasonable accommodation’ under the Rehabilitation Act

requires reassignment of a disabled employee in violation of a

bona fide seniority system.” Eckles, 94 F.3d at 1047. This

background is particularly significant here, because it shows that

“Congress drafted the ADA against the backdrop of well-

established precedent that ‘reasonable accommodation’ under

the Rehabilitation Act had never been held to require trumping

the seniority rights of other employees.” /d. at 1048.

In short, where a senior employee has a legal claim of right

under the terms of a collective bargaining agreement to a

position not presently occupied by an incumbent, the position is

—

“not vacant.” “Consequently,” in such circumstances, reas-

signment of an employee with a disability in a manner that

bypasses the senior employee who has a contractual right to fill

the position “does not constitute ‘reassignment to a vacant

position,’ but goes further” by displacing an employee whose

claim to the position is at least as strong as that of an incumbent.

Eckles v. Consolidated Rail Corp., 94 F.3d at 1047.

C. It bears emphasis at this point that—contrary to US

Airways’ suggestion—the cases addressing the ADA’s rea-

sonable accommodation reassignment requirement in the

collective bargaining agreement seniority system context are

consistent with the proposition that “parties, including parties to

a collective bargaining agreement, are not free to contract their

way out of the ADA’s prohibitions.” Pet. Br. 39. As the Eckles

court observed, “if the ADA does not require that collectively

bargained seniority rights be compromised in order to

reasonably accommodate a disabled individual,” it cannot be the

case that the parties to an agreement creating such rights “are

guilty of participating in a contractual arrangement that has the

effect of subjecting [a worker with a disability] to prohibited

discrimination.” 94 F.3d at 1046.

It is true, as US Airways notes, Pet. Br. 39, that the ADA’s

definition of “discrimination” includes “participating in a

contractual or other arrangement or relationship that has the

effect of subjecting a covered entity’s qualified individual with a

disability to the discrimination prohibited by [the ADA].”

42 U.S.C. § 12112(b)(2). But “[t}he basic intent of this

provision is that an entity may not do through a contractual

provision what it may not do directly.” H.R. Rep. at 59-60.

Since the ADA only requires “reassignment to a vacant

position,” 42 U.S.C. § 12111(9)(B), a collective bargaining

agreement that precludes reassignment to positions that others

have a seniority right to fill—with the result that such positions

are not vacant—cannot be deemed to “have the effect of

subjecting a covered entity’s qualified individual with a

disability to the discrimination prohibited by [the ADA],” id.

§ 12112(b)(2). While a worker with a disability has the right to

be reassigned to a vacant position—provided that the

accommodation is otherwise reasonable and not an undue

hardship—the Act does not require that employers or unions

depart from traditional practices in order to create vacancies.

US Airways also notes that the House and Senate reports on

the ADA state that “[a]n employer cannot use a collective

bargaining agreement to accomplish what it otherwise would be

prohibited from doing under this legislation.” Pet. Br. 39,

quoting S. Rep. at 32 & H.R. Rep. at 63. But this sentence

appears in a paragraph that begins by explaining that the

treatment accorded collective bargaining agreements under

§ 504 of the Rehabilitation Act “also applies to the ADA.” H.R.

Rep. at 63. And, as Eckles v. Consolidated Rail Corp. notes,

“Congress drafted the ADA against the backdrop of well-

established precedent that ‘reasonable accommodation’ under

the Rehabilitation Act had never been held to require trumping

the seniority rights of other employees.” 94 F.3d at 1048.

Moreover, immediately after the sentence of the committee

reports invoked by US Airways, the reports provide the

following example of what it would mean for “an employer [to]

use a collective bargaining agreement to accomplish what it

otherwise would be prohibited from doing under this Act”:

For example, a collective bargaining agreement that

contained physical criteria which caused a disparate impact

on individuals with disabilities and were not job-related

and consistent with business necessity could be challenged

under this Act. [H.R. Rep. at 63; S. Rep. at 32.]

It is obvious, then, that what Congress meant to preclude was an

employer defending discriminatory job qualifications on the

ground that they are embodied in a collective bargaining

agreement.

Il. US Airways insists that the logic of the cases considering

reassignment as an ADA “reasonable accommodation” in the

context of collective bargaining agreement seniority systems

governs reassignment in the context of employer-implemented

“seniority policies.” Pet. Br. 37-39. In essence, US Airways’

argument is that collective bargaining agreement seniority

systems and employer-implemented seniority polices are

identical in the following way: “an existing position would not

truly be vacant, even though it is not presently filled by an

existing employee, if under a collective bargaining agreement

[seniority system or an employer-implemented seniority policy]

other employees have a vested priority right [or a legitimate

expectation] to such vacant positions.” Smith v. Midland Brake,

180 F.3d at 1175.

On the salient point of whether a position is “truly vacant,” no

such identity can be drawn between collective bargaining

agreement seniority systems and employer-implemented senior-

ity policies. Smith v. Midland Brake and like cases “address

only collectively bargained seniority systems that establish

rights in other employees.” Eckles v. Consolidated Rail Corp.,

94 F.3d at 1046 n. 9 (emphasis added).

The court of appeals cases recognize that limit because only

the senior employee’s vested priority contract right to an

unoccupied position accords the employee a claim of right to the

position at least as strong as the claim that an incumbent has to

the position she is presently occupying. And, it is that claim of

right that supports the conclusion that the position is filled—not

vacant—and that assigning the position to another employee

requires the employer to bump the first employee from the

position.

In contrast, employer-implemented seniority policies that only

provide guidelines for the exercise of management discretion do

not provide the senior employee any claim of right to a position

not presently filled. Rather, the very point of such a policy is to

state the employer’s preferred assignment approach while

maintaining the employer’s prerogative to deviate, as the

employer sees fit, from that approach in ways that disadvantage

the senior employee and disappoint his seniority expectations.

Under such a policy, the senior employee has no right to fill a

position not presently held by an incumbent and the employer

has every right to pass over the senior employee in disregard of

the policy. Thus, where an employer-implemented seniority

policy is in effect—as where any management discretion

assignment policy is in effect—a position not permanently

assigned to, and being filled by, an existing employee is a

“vacant position” and one open to reasonable accommodation

reassignments.

To be sure, US Airways would deny any relevant distinction

between collective bargaining agreement seniority systems and

employer-implemented seniority policies on the theory that

“where a seniority system is part of a collective bargaining

agreement, the employees themselves do not possess contract

rights,” Pet. Br. 40 n. 15, and that contractual seniority systems

like seniority policies do not create “vested priority rights” in

employees but only “seniority expectations.” This reflects a

fundamental misunderstanding of the nature of a collective

bargaming agreement.

There is no question that “[sjeniority is a contractual right,”

Lorance v. AT&T Technologies, 490 U.S. at 905, or that, where

a “senior employee” has been denied a position to which he is

entitled under a collective bargaining agreement seniority

system, the employee “ha[s] been deprived of his contractual

rights under the collective-bargaining agreement.” Trans World

Airlines v. Hardison, 432 U.S. 63, 80 (1977).

“Seniority systems contained in CBAs . . . create rights in

union members which are protected by the National Labor

Relations Act (NLRA), 29 U.S.C. § 151-187,” or, as in the case

of railroads and airlines, by the Railway Labor Act, 45 U.S.C.

§§ 151-188. Boersig v. Union Electric Co., 219 F.3d 816, 822

(8th Cir. 2000).° In two mutually reinforcing senses,

“collectively bargained seniority rights have a pre-existing

special status in the law.” Eckles v. Consolidated Rail Corp., 94

F.3d at 1052.

In the first place, contractual seniority rights are judicially

enforceable as a matter of federal statutory law. See Textile

Workers v. Lincoln Mills, 353 U.S. 448, 454 (1957); Machinists-

v. Central Airlines, 372 U.S. 682, 694-695 (1963). In this

regard, US Airways could not be more wrong when it suggests

that only “the union . . . is entitled to enforce the contract.” Pet.

Br. 40 n. 15. For it is clear that the employees, too, are entitled

to enforce their rights under the collective bargaining agreement.

See Smith v. Evening News, 371 U.S. 195, 200 (1962); Vaca v.

Sipes, 386 U.S. 171, 185-186 (1967).

In addition, collectively bargained seniority rights are made

more durable by the provisions in both the NLRA and the RLA

specifically forbidding an employer from modifying such rights

until the agreement containing them has run its term and until

the employer has satisfied its statutory duty to bargain over the

modification. 29 U.S.C. § 158(d); 45 U.S.C. § 152, Seventh.

The fact that seniority rights may be modified by mutual

agreement between the employer and the union does not mean

that the rights provided by a collective bargaining agreement are

any less the employees’ rights. See Pet. Br. 40 n. 15. The union

negotiates the agreement—and any changes to it—as the agent

of the employees. And, many of the provided rights—seniority

in particular—are, by their nature, personal to the employees.

In sum, “seniority benefits exist as ‘rights’ only to the extent

made so by contract.” Elkouri & Elkouri, How Arbitration

® Accord Willis v. Pacific Maritime Ass'n, 244 F .3d at 680-681 (where an

ADA case “involves a bargained for seniority system contained inaCBA...

the rights of other union members under the National Labor Relations Act...

are implicated”); Davis v. Florida Power & Light Co., 205 F.3d 1301, 1307

(ith Cir. 2000)(“[w]e agree with the Seventh Circuit that ‘collectively

bargained seniority rights have a pre-existing special status in the law’”’).

Works 809. And, “practically all the collective agreements that

unions have negotiated . . . contain[] seniority provisions .. .

that significantly circumscribe th[e] freedom of employers,”

Overly Mfg. Co., 68 Lab. Arb. (BNA) 1343, 1345 (1977) (Jones,

Arb.), by vesting employees with contractual seniority rights.

In contrast, “[bjefore the existence of a contract, . . . the

employer has all rights in connection with promotions and

transfers and need pay no heed to seniority of the workers... .”

Elkouri & Elkouri, How Arbitration Works 809, quoting Alan

Wood Steel Co., 4 Lab. Arb. (BNA) 52, 54 (1946) (Brandshain,

Arb.). “In the nonunion sector, management often takes account

of seniority but can ignore it when it chooses.” R. Freeman & J.

Medoff, What Do Unions Do? 123 (1984). In that setting,

where seniority rights are not established by contract, a seniority

policy is a non-binding statement of normal management

procedure, which management is free to follow or ignore.

US Airways counters that “employment policies are often

determined to give rise to contract rights even when not the

product of collective bargaining.” Pet. Br. 40. But the very

treatise cited by US Airways to demonstrate this possibility—

Stephen P. Pepe & Scott H. Dunham, Avoiding and Defending

Wrongful Discharge Claims (2000)—advises that

disclaimers in employee handbooks and personnel manuals

or statements that the employer reserves the right to make

unilateral changes or modifications can negate the

contention that such employee handbooks or personnel

manuals create a binding employment contract. To be

effective, disclaimers should be clear, conspicuous and

unambiguous. [/d. § 2:24.]

And, USAir heeded this advice by prefacing the “Customer

Service Agent Personnel Policy Guide” containing the Compan

seniority policy, JA 21, with a very clear disclaimer that “[t}he

Agent Personnel Policy Guide is not intended to be a contract

(express or implied), or otherwise to create legally enforceable

obligations for continued employment.”

’ The introduction to USAir’s Customer Service Agent Personnel Policy

Guide reads, in its entirety, as follows:

This Agent Personnel Policy Guide is intended to provide guidelines

for the exercise of management discretion in personnel matters that

pertain to the conditions under which you work. /t is intended to guide

your Supervisor's decisions regarding interpretation and imple-

mentation of policies and regulations that apply to your job

classification.

You are encouraged to read the Agent Personnel Policy Guide. To

assist you in reviewing the Guide, your Supervisor is responsible to

assure that:

—the Agent Personnel Policy Guide is readily available for your

review at all times. Your Supervisor will advise you of its

conveniently accessible assigned location so that you never

have to ask to see it.

_— your use of the Guide will not be hampered or questioned in

any way.

—policies and regulations are reviewed with all employees new

to classifications covered by the Agent Personnel Policy

Guide. |

The Agent Personnel Policy Guide is not intended to be a contract

(express or implied), or otherwise to create legally enforceable

obligations for continued employment on the part of either USAir or its

employees. You are free to leave USAir at any time or for any reason,

and USAir reserves a similar right. This means that you and USAir

both have the right to terminate the employer-employee relationship at

any time, with or without advance notice and with or without cause.

This is called “employment at will” and nothing in this Agent

Personnel Policy Guide is intended to alter this employer-employee

relationship. No individual has the authority to alter this “employment

at will” relationship, or otherwise modify or alter USAir policy. Any

modification of USAir policy, or any contract for employment must be

in writing, and signed by an officer of the Human Resources

department.

This Agent Personnel Policy Guide supersedes and replaces all

previous personnel policies, practices and guidelines. However, USAir

The difference between contract-based rights and the

expectations created by unilateral empioyer policies is well

illustrated by USAir’s initial response to Barnett’s request for an

accommodation.

Under USAir’s seniority policy, vacant positions are filled by

competitive bidding on the basis of “group classification

seniority,” i.e., on the basis of service in one of the defined

groups of jobs. JA 25 & 28. However, it was also USAir’s

policy to create special “limited duty” positions for periods of

no more than sixty working days that would not be filled by

competitive bidding. Pet. App. 51a. When Barnett learned that

he was about to be displaced from the mailroom by one of two

senior employees bidding on the job, USAir put him into a

“limited duty” position in the mailroom. And, USAir then

ignored its own policy and allowed Barnett to stay in the

“limited duty” position for five months. If USAir were

contractually bound to follow the terms of its policy, keeping

Barnett for more than two months would have violated the

rights of senior employees seeking a job in the mailroom. As

matters stood, however, USAir was free to leave Barnett in the

mailroom for as long as the Company wished without any

concern that a senior employee could assert that his or her

seniority rights had been violated.

In just this highly relevant respect, seniority rights under a

collective bargaining agreement seniority system are funda-

mentally different from seniority expectations under an

employer-implemented seniority policy that is merely a

guideline for the exercise of management discretion. “[T]he

reserves the right to change any and all of the stated policies and

procedures in this Guide at any time, without advance notice. For this

reason, all employees are encouragéd to check with their Supervisor

regarding the status of any particular policy, procedure or practice. All

employee questions and comments are welcomed. [Personnel Policy

Guide for Customer Service Agents, (emphasis in first paragraph

added; other emphasis in original). ]

requirement of seniority recognition” in a collective bargaining

agreement is “[o]ne of the most severe limitations upon the

exercise of management discretion.” Elkouri & Elkouri, How

Arbitration Works 806. But consideration of seniority, as “an

exercise of management discretion,” (USAir Personnel Policy

Guide, supra, n. 7), is no restriction on that discretion at all.

And, concomitantly, such discretionary consideration of

seniority provides covered employees with no enforceable rights

and no prior claim to a position that they do not occupy.

It is for just this reason that the Ninth Circuit has recognized a

distinction in ADA reasonable accommodation cases between “a

seniority system [that is] unilaterally imposed by an employer,”

where “no bargained for rights are involved,” and “a bargained

for seniority system contained in a CBA.” Willis v. Pacific

Maritime Ass'n, 244 F.3d at 680. For the same reason, the court

of appeals collective bargaining agreement seniority system

cases have stressed that “only collectively-bargained seniority

systems that establish rights in other employees,”-Eckles v.

Consolidated Rail Corp., 94 F.3d at 1046, make reassignment in

violation of those rights “per se unreasonable,” Willis, 244 F.3d

at 680.°

Ill. The foregoing is not meant to suggest that an employer’s

unilateral seniority policy can never provide a defense to an

ADA reasonable accommodation claim. Once it has been

* See Davis v. Florida Power & Light Co., 205 F.3d at 1306 (“ADA does

not require accommodations . . . that contravene the seniority rights of other

employees under a collective bargaining agreement’); Feliciano v. Rhode

island, 160 F.3d at 787 (“an employer is not required to violate the

provisions of a collective bargaining agreement or the rights of other

employees in seeking such reassignment”); Cassidy v. Detroit Edison Co.,

138 F.3d at 634 (“reassignment will not require . . . violating another

employee’s rights under a collective bargaining agreement”); Kralik v.

Durbin, 130 F.3d 76, 82 (3d Cir. 1997) (“ADA does not require an employer

to take action inconsistent with the contractual rights of other workers under

a collective bargaining agreement”), quoting Foreman v. Babcock & Wilcox

Co., 117 F.3d 800, 810 (Sth Cir. 1997).

determined that an expectation based on an employer seniority

policy does not render an unoccupied position “filled,” the

questions remain whether reassignment to the vacant position is

reasonable and whether such reassignment causes the employer

undue hardship.

“Because reasonableness is [the] guide, there may be other

important employment policies besides protecting rights

guaranteed under a collective bargaining agreement that would

make it unreasonable to require an employer to reassign a

disabled employee to a particular job.” Smith v. Midland Brake,

180 F.3d at 1175-76. For example, a “well-entrenched seniority

system .. . not rooted in a collective bargaining agreement [may

be] so well established that it gives rise to legitimate expec-

tations by other, more senior employees to a job that the dis-

abled employee might desire” with the result that “[rJequiring an

employer to disrupt and violate any such well-established rea-

-senable expectations of seniority rights in order to favor a dis-

abled employee in a job reassignment could, at least under some

circumstances, constitute a fundamental and unreasonable alter-

ation in the nature of the employer’s business.” /d. See, e.g.,

EEOC v. Sara-Lee Corp., 237 F.3d 349, 355 (4th Cir. 2001).

US Airways has not made the context-specific showing

required to excuse an employer’s refusal to reassign an

employee with a disability to a vacant position. USAir had

disclaimed any obligation to adhere to its seniority policy, had

told employees that the policy is discretionary; and in fact had

unilaterally changed the very policy it now invokes. See JA

50-51. What is more, USAir showed by its treatment of Barnett

that the Company did not regard its seniority policy as

precluding accommodation: it kept Barnett in a “limited duty”

mailroom position for five months despite its announced policy

allowing “limited duty” for only two months, without any

apparent adverse consequences to the Company’s operations.

This demonstrates that implementing the discretionary policy

by accommodating Barnett would have caused no undue

disruption of US Airways’ operations.

It is precisely because US Airways cannot show that

accommodating Barnett would have been unreasonable in any

other respect that it strains to invoke the cases holding that “an

accommodation that is contrary to the seniority rights of other

employees set forth in a CBA would be unreasonable per se.”

Willis v. Pacific Maritime Ass'n, 244 F.3d at 679. But, as we

have seen, the cases applying this per se approach to collective

bargaining agreement seniority systems rest on an interpretation

of the reasonable accommodation reassignment provision’s

language limiting such required reassignments to “vacant

positions.” And, the “vacant position” analysis turns on the

understanding that “an existing position would not truly be

vacant, even though it is not presently filled by an existing

employee, if under a collective bargaining agreement other

employees have a vested priority right to such vacant positions.”

Smith v. Midland Brake, 180 F.3d at 1175. This analysis has no

application to employer policies that do not create any “vested

priority right[s].”