US Airways, Inc. v. Barnett, Robert (04/29/2002)

Questions presented: Did the 9th circuit err in holding that the Americans with Disabilities Act requires an employer to assign a disabled employee to a different position as a "reasonable accommodation" even though another employee is entitled to hold the position under the employer's bona fide and established seniority system?

BY JOHN MONE, MEDILL NEWS SERVICE

Robert Barnett threw out his back in 1990 while performing his duties as a baggage handler for U.S. Airways, Inc., and suffered extensive orthopedic injuries.

After his injuries, Barnett found he could not extend his body to the extent that his job required of him.

His doctor recommended that he avoid "heavy lifting and excessive bending, twisting, turning, pushing and pulling, and prolonged standing or sitting."

Barnett decided to follow his doctor's orders and transfer to a job in the company mailroom, using his seniority as leverage. His doctor okayed the decision, as the new job requirements were less strenuous than baggage handling.

Barnett wrote his manager, Robert Benson, when he learned that two other employees more senior in status planned to exercise their authority to transfer to the same position. In the letter, he requested that he be allowed to stay in the mailroom as a reasonable accommodation under the Americans with Disabilities Act (ADA).

The Virginia-based U.S. Airways, often called US Air, did not respond immediately to his letter and he stayed in the mailroom for five months, while the company reviewed his claims.

Subsequently, Benson told him that he was to be removed from the mailroom and put on injury leave. Benson provided two options: either U.S. Airways would provide Barnett with special equipment so he could do his job or that his job requirements would be re-tooled so he would only perform warehouse desk work. Barnett applied for both accommodations.

U.S. Airways Assistant Vice President of Human Resources, Ollie Lawrence, wrote to Barnett, saying lifting heavy items at his old position was an essential function, therefore denying his request to stay in the mailroom. Lawrence added Barnett could compete for any other job that fell in his restrictions.

Barnett then filed formal discrimination charges with Equal EmploymentOpportunity Commission. The EEOC issued a formal determination that it was possible U.S. Airways discriminated against Barnett by denying him reasonable accommodation under the ADA.

Under the ADA, employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations. The ADA defines disabled individual as "a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment."

The ADA requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. Under the ADA, employers are mandated by law to work with employees in order to identify and implement appropriate reasonable accommodations.

Barnett claimed that the company failed to engage "in an interactive process" when he filed his claim with the EEOC and that US Airways retaliated against him.

"This man really wants his job back," Barnett's lawyer Richard Davis said."It's almost like the company cut its nose off to spite its face by not helping him."

His original suit was dismissed in 1996 by U.S. District Judge D. Lowell Jensen, but did leave the door open for Barnett to prove the airline did not "engage in an interactive process."

"The evidence offered by [Barnett] in this case, which includes long delays by USAir in responding to [Barnett's] requests for accommodation, is sufficient to avoid summary judgment on this issue if [his] 'interactive process' claim survives," Jensen wrote.

In a 2-to 1 decision, a panel of the 9th Circuit Court of Appeals affirmed.

However, on en banc review by the full 9th Circuit, the appeals court in an 8-to-3 ruling reinstated Barnett's discrimination suit against U.S. Airways, holding that an employer may have to set aside seniority when finding a new job for a qualified disabled worker.

"There is no evidence that Barnett was qualified, without reasonable accommodation, for any other position in San Francisco or elsewhere in the U.S. Air system," Judge Betty B. Fletcher wrote for the majority. "Our conclusion that a 'qualified individual with a disability' includes individuals who could perform the essential functions of a reassignment position, with or without reasonable accommodation, even if they cannot perform the essential functions of the current position is supported by nearly every circuit which has considered the issue."

The dissentors said that Barnett's condition did not fall into ADA guidelines. "The ADA's ambiguous legislative history is of little help in determining whether seniority policies should be treated the same under the ADA and the Rehabilitation Act," Judge Stephen Trott wrote in the dissent.

"The question doesn't come up often, except in cases of unionized workers, where seniority automatically prevails," said Claudia Center, an attorney for Barnett. Center added that companies now look at transfer claims on a case-by-case basis.

On April 16, 2001, the U.S. Supreme Court granted certiorari in the case and limited review to question 1 in US Airway's petition, as set out above.

U.S. Airways declined to comment directly on the case, but Dipanwita Amar, an attorney for U.S. Airways, said that the airline "looks forward to having [its] case heard before the Supreme Court."

As the case pended before the Court, the company was also in the throes of a takeover bid by the commercial airline behemoth United Airlines. United and US Airways announced in May 2000 that the companies had agreed to an $11.6 billion purchase by United. Thirteen months later, on July 1, 2001, United announced it was abandoning the deal.

On April 29, 2002, the Court, divided 5-4 along unusual lines, vacated the lower court opinion that favored Barnett and remanded.

The majority opinion, written by Justice Stephen Breyer, rejected the arguments of both sides in the case, and concluded that although an employer's showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an "accommodation" is not "reasonable," the employee should still be in a position to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case.

The majority cited examples where an employee might be able to show that the seniority system might be trumped by individualized provisions necessitated by the ADA. For instance, that the employer, having retained the right to change the system unilaterally, exercises the right fairly frequently, reducing employee expectations that the system will be followed, to the point where the requested accommodation will not likely make a difference, or that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter.

Joining in the majority were Chief Justice William Rehnquist and Justice John Paul Stevens, Sandra Day O'Connor, and Anthony Kennedy.

Justices Antonin Scalia, Clarence Thomas, David Souter, and Ruth Bader Ginsburg dissented.