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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 391

## Text

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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

TABLE OF AUTHORITIES ...............ssccsssrsssssessssseeeees

STATEMENT OF THE CASE. ..ccccccossscccsscccscsesssesessoeees

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

ARGUMENT...

CONCLUSION

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23

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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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ap ie OP A C0 OI cccccsccceremsensscsscccsnnsennscenenss l
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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

iV

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.

2

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

3

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.

4

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.

5

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

6

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

7

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.

8

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”).

9

“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.

10

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

11

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

12

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

—

13

“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

14
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.

15

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

16

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

17

(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

19

(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

20

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). ]

21

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).

22

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.

23

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].”

CONCLUSION
The decision of the court of appeals should be affirmed.

Respectfully submitted,

JONATHAN P. HIATT
DEBORAH GREENFIELD
JAMES 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0450%3A13. Public record. Not legal advice.