US AIRWAYS, INC. v. BARNETT
535 U.S. 391 (2002)
United States Supreme Court.
Argued December 4, 2001.
Although I am troubled by the Court's reasoning, I believe the Court's approach for evaluating seniority systems will often lead to the same outcome as the test I would have adopted. Unenforceable seniority systems are likely to involve policies in which employers "retai[n] the right to change the seniority system," ante, at 405, and will often "contai[n] exceptions," ibid. They will also often contain disclaimers that "reduc[e] employee expectations that the system will be followed." Ibid. Thus, under the Court's test, disabled employees seeking accommodations that would require exceptions to unenforceable seniority systems may be able to show circumstances that make the accommodation "reasonable in the[ir] particular case." Ante, at 406. Because I think the Court's test will often lead to the correct outcome, and because I think it important that a majority of the Court agree on a rule when interpreting statutes, I join the Court's opinion.
Justice Scalia, with whom Justice Thomas joins, dissenting.
The question presented asks whether the "reasonable accommodation" mandate of the Americans with Disabilities Act of 1990 (ADA or Act) requires reassignment of a disabled employee to a position that "another employee is entitled
to hold . . . under the employer's bona fide and established seniority system." Pet. for Cert. i; 532 U.S. 970 (2001). Indulging its penchant for eschewing clear rules that might avoid litigation, see, e. g., Kansas v. Crane,534 U.S. 407, 423 (2002) (Scalia, J., dissenting); TRW Inc. v. Andrews,534 U.S. 19, 35-36 (2001) (Scalia, J., concurring in judgment), the Court answers "maybe." It creates a presumption that an exception to a seniority rule is an "unreasonable" accommodation, ante, at 403, but allows that presumption to be rebutted by showing that the exception "will not likely make a difference," ante, at 405. The principal defect of today's opinion, however, goes well beyond the uncertainty it produces regarding the relationship between the ADA and the infinite variety of seniority systems. The conclusion that any seniority system can ever be overridden is merely one consequence of a mistaken interpretation of the ADA that makes all employment rules and practices—even those which (like a seniority system) pose no distinctive obstacle to the disabled—subject to suspension when that is (in a court's view) a "reasonable" means of enabling a disabled employee to keep his job. That is a far cry from what I believe the accommodation provision of the ADA requires: the suspension (within reason) of those employment rules and practices that the employee's disability prevents him from observing.
IThe Court begins its analysis by describing the ADA as declaring that an employer may not "`discriminate against a qualified individual with a disability.' " Ante, at 396 (quoting 42 U. S. C. § 12112(a) (1994 ed.)). In fact the Act says more: an employer may not "discriminate against a qualified individual with a disability because of the disability of such individual." 42 U. S. C. § 12112(a) (1994 ed.) (emphasis added). It further provides that discrimination includes "not making reasonable accommodations to the known physi-
cal or mental limitations of an otherwise qualified individual with a disability." § 12112(b)(5)(A) (emphasis added). Read together, these provisions order employers to modify or remove (within reason) policies and practices that burden a disabled person "because of [his] disability." In other words, the ADA eliminates workplace barriers only if a disability prevents an employee from overcoming them—those barriers that would not be barriers but for the employee's disability. These include, for example, work stations that cannot accept the employee's wheelchair, or an assembly-line practice that requires long periods of standing. But they do not include rules and practices that bear no more heavily upon the disabled employee than upon others—even though an exemption from such a rule or practice might in a sense "make up for" the employee's disability. It is not a required accommodation, for example, to pay a disabled employee more than others at his grade level—even if that increment is earmarked for massage or physical therapy that would enable the employee to work with as little physical discomfort as his co-workers. That would be "accommodating" the disabled employee, but it would not be "making . . . accommodatio[n] to the known physical or mental limitations " of the employee, § 12112(b)(5)(A), because it would not eliminate any workplace practice that constitutes an obstacle because of his disability.
* Briefs of amici curiae urging reversal were filed for the Air Transport Association of America, Inc., et al. by John J. Gallagher and Margaret H. Spurlin; and for the Equal Employment Advisory Council et al. by Ann Elizabeth Reesman.Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Deborah Greenfield, James B. Coppess, Michael H. Gottesman, and Laurence Gold; and for the National Employment Lawyers Association et al. by Brian East and Paula A. Brantner.
Peter J. Petesch, Thomas J. Walsh, Jr., Timothy S. Bland, and David S. Harvey, Jr., filed a brief for the Society for Human Resource Management as amicus curiae.
1. Brief for Respondent 3 (quoting Lodging of Respondent 7-8 (letter, dated Mar. 8, 1994, from petitioner's counsel to Equal Employment Opportunity Commission)).
2. Brief for Petitioner 5 (citing App. 21 (declaration in support of petitioner's summary judgment motion)).
3. See post, at 409-410 (O'Connor, J., concurring).
4. See post, at 423 (Souter, J., dissenting).
5. See, e. g., ibid. ("There was no evidence in the District Court of any unmanageable ripple effects from Barnett's request").
1. It is evident from the legislative history that several provisions of Title VII were copied or incorporated by reference into the ADA. See, e. g., S. Rep. No. 101-116, pp. 2, 25, 43 (1989); H. R. Rep. No. 101-485, pt. 2, pp. 54, 76-77 (1990).
2. The House Report singles out Hardison `s equation of "undue hardship" and anything more than a "de minimus [sic] cost" as being inapplicable to the ADA. By contrast, Hardison itself addressed seniority systems not only in its analysis of undue hardship, but also in its analysis of reasonable accommodation. 432 U. S., at 81, 84. Nonetheless, Congress's disavowal of Hardison in light of the "crucial role that reasonable accommodation plays in ensuring meaningful employment opportunities for people with disabilities," H. R. Rep. No. 101-485, pt. 2, at 68, renders that case singularly inappropriate to bolster the Court's holding today.
3. The Court would allow a plaintiff to argue that a particular system was so riddled with exceptions so as not to engender expectations of consistent treatment. Ante, at 405-406.