Employee Policies and
Accommodating Persons with Disabilities

In a recent decision, the United States Supreme Court reminded employers not to rigidly apply employment policies to disabled employees who seek accommodations under the Americans with Disabilities Act (ADA). The ADA prohibits an employer from discriminating against an "individual with a disability," who with a"reasonable accommodation" can perform the essential functions of the job. The ADA does not, however, require an employer to make accommodations that impose an undue hardship on business operations.

In Barnett v. US Airways, a disabled employee asked US Airways to make an exception to its seniority system and as an accommodation for his back disability, allow him to permanently work in the mailroom. Under its seniority system, US Airways temporarily placed him in a mailroom position while he recuperated from a back injury. The same seniority system allowed employees with more years of service to periodically bid on the permanent mailroom position. US Airways decided not to make an exception, and Barnett lost his job.

Barnett sued under the ADA, claiming that he qualified as an individual with a disability and the mailroom job amounted to a reasonable accommodation. He further argued that in refusing to assign him to the mailroom job, US Airways discriminated against him.

US Airways asserted that its seniority system required it to allow other employees to seek the mailroom job, and the requested accommodation was therefore not reasonable. US Airways argued that when a requested accommodation violates a disability-neutral workplace rule, it gives the disabled employee a preference when the ADA requires only equal treatment. In rejecting this argument, the Court held that, by definition, any accommodation requires an employer to treat a disabled employee preferentially and "the fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach."

The Court further held that an employer should determine not only whether a proposed accommodation will result in an "undue hardship" to its operations, but also to other employees because an effective accommodation "could prove unreasonable because of its impact, not on business operations, but on fellow employees-say, because it will lead to dismissals, relocations, or modification of employee benefits to which an employer, looking at the matter from a perspective of the business itself, may be relatively indifferent."

The Court acknowledged the importance of seniority systems to employee-management relations and reasoned that because Congress did not displace them, a requested accommodation will require modification of a seniority system only if an employee can show special circumstances such as an employer's frequent changes or exceptions to the system.

In light of this decision, how should supervisors apply employment policies?

• Apply neutral employment policies uniformly, fairly and consistently to all employees.
• If employment policies are not consistently applied, courts will not subordinate reasonable accommodation requests to employment policies.

When a disabled employee requests an accommodation that violates a neutral employment policy, do not automatically reject the request but determine if an exception to the policy will result in an "undue hardship."

Published in the Summer 2002 Edition of In Brief