US AIRWAYS, INC. v. BARNETT
535 U.S. 391 (2002)
United States Supreme Court.
Argued December 4, 2001.
Although, as I have said, the uncertainty cast upon bona fide seniority systems is the least of the ill consequences produced by today's decision, a few words on that subject are nonetheless in order. Since, under the Court's interpretation of the ADA, all workplace rules are eligible to be used as vehicles of accommodation, the one means of saving seniority systems is a judicial finding that accommodation through the suspension of those workplace rules would be unreasonable. The Court is unwilling, however, to make that finding categorically, with respect to all seniority systems. Instead, it creates (and "creates" is the appropriate word) a rebuttable presumption that exceptions to seniority rules are not "reasonable" under the ADA, but leaves it free for the disabled employee to show that under the "special circumstances" of his case, an exception would be "reasonable." Ante, at 405. The employee would be entitled to an exception, for example, if he showed that "one more departure" from the seniority rules "will not likely make a difference." Ibid.
I have no idea what this means. When is it possible for a departure from seniority rules to "not likely make a difference"? Even when a bona fide seniority system has multiple exceptions, employees expect that these are the only exceptions. One more unannounced exception will invariably undermine the values ("fair, uniform treatment," "job security," "predictable advancement," etc.) that the Court cites as its reasons for believing seniority systems so important that they merit a presumption of exemption. See ante, at 404.
One is tempted to impart some rationality to the scheme by speculating that the Court's burden-shifting rule is
merely intended to give the disabled employee an opportunity to show that the employer's seniority system is in fact a sham—a system so full of exceptions that it creates no meaningful employee expectations. The rule applies, however, even if the seniority system is "bona fide and established," Pet. for Cert. i. And the Court says that "to require the typical employer to show more than the existence of a seniority system might well undermine the employees' expectations of consistent, uniform treatment . . . ." Ante, at 404. How could deviations from a sham seniority system "undermine the employees' expectations"?
I must conclude, then, that the Court's rebuttable presumption does not merely give disabled employees the opportunity to unmask sham seniority systems; it gives them a vague and unspecified power (whenever they can show "special circumstances") to undercut bona fide systems. The Court claims that its new test will not require exceptions to seniority systems "in the run of cases," ante, at 403, but that is belied by the disposition of this case. The Court remands to give respondent an opportunity to show that an exception to petitioner's seniority system "will not likely make a difference" to employee expectations, ante, at 405, despite the following finding by the District Court:
"[T]he uncontroverted evidence shows that [petitioner's] seniority system has been in place for `decades' and governs over 14,000 . . . Agents. Moreover, seniority policies such as the one at issue in this case are common to the airline industry. Given this context, it seems clear that [petitioner's] employees were justified in relying upon the policy. As such, any significant alteration of that policy would result in undue hardship to both the company and its non-disabled employees." App. to Pet. for Cert. 96a.* * *