Justices Won't Review ADA Exception to Seniority

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By Kevin McGowan

May 31 — The U.S. Supreme Court won't review whether United Airlines Inc. violated the Americans with Disabilities Act by removing a ramp service worker with a permanent work restriction from a particular job assignment because he lacked seniority ( Dunderdale v. United Airlines, Inc., U.S., No. 15-1301, cert. denied 5/31/16 ).

The justices May 31 left undisturbed a U.S. Court of Appeals for the Seventh Circuit decision that Michael Dunderdale lacks an ADA claim over his 2011 loss of a disability-related job assignment he performed for more than five years. United decided employee seniority should begin to govern bids for Dunderdale's job and he lacked the requisite seniority to keep the position (807 F.3d 849, 32 AD Cases 621 (7th Cir. 2015) (232 DLR AA-1, 12/3/15).

Dunderdale had urged the justices to resolve a federal appeals court split regarding when “special circumstances” under the ADA override an employer's reliance on a seniority system to deny a requested job accommodation. United waived its right to file an opposing brief.

The ‘Barnett Exception.'

In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729 (2002), the Supreme Court said seniority systems generally trump ADA reasonable accommodation but that there may be “special circumstances” to avoid that rule, such as when an employer “does not maintain a consistent and uniform seniority system on which employees rely” (83 DLR AA-1, 4/30/02).

Dunderdale argued his case fits within the Barnett exception. After job-related back injuries caused Dunderdale to have permanent lifting restrictions, United placed him in the “matrix position,” where he sat at a computer next to a conveyor belt, scanning tags on checked luggage and processing the information on a computer.

Before June 2010, United regarded the matrix position as a “special assignment” reserved for ramp workers with permanent work restrictions. United's practice deviated from the collectively bargained seniority system. But United then made matrix jobs available to all ramp workers based on seniority and it booted Dunderdale because of his relative lack of seniority.

The Circuit Splits

Dunderdale sued under the ADA, but a federal district court dismissed his case. The Seventh Circuit 2-1 affirmed, saying United permissibly applied the seniority rules contained in its union contract.

In Barnett, the Supreme Court said individuals asserting ADA claims must prove “special circumstances” that “make an exception from the seniority system reasonable in the particular case.”

Dunderdale argued he “made exactly that showing” because United before 2011 deviated from seniority by reserving matrix jobs for employees with work restrictions. No employee pressured United to change the practice that only workers with impairments could hold matrix jobs, he said.

“In these ‘special circumstances,' well within the holding of Barnett, the burden should have been shifted to [United] to show that it was unable to accommodate [Dunderdale] without undue hardship,” he said.

The Seventh Circuit's ruling conflicts with Federal Circuit and First Circuit decisions that have correctly applied Barnett to require ADA accommodations when employers haven't consistently followed their own seniority policies, Dunderdale said.

The justices should resolve the circuit split and “reinforce, clarify or redefine” the Barnett exception, Dunderdale said.

Dennis P. Derrick in Essex, Mass., was counsel of record for Dunderdale.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Summaries of labor and employment law cases denied Supreme Court review appear in Section E.

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