UNIONS AND THE ADA:
AN UPDATE ON RECENT DEVELOPMENTS, 2004 - 2005
and JIM SANFORD
Gillespie, Rozen, Watsky, Motley & Jones, P.C.
3402 Oak Grove Ave., Suite 200
Dallas, Texas 75204
American Bar Association -
Section of Labor and Employment Law
NATIONAL CONFERENCE ON EQUAL OPPORTUNITY LAW
March 22 - 25, 2006
La Jolla, California
Unions were early supporters of the legislation that would become the Americans with
Disabilities Act (AADA@ or the AAct@), 42 U.S.C. 12101 et seq., and advocated on behalf of its
passage. Nearly sixteen years ago, when the ADA was first enacted into law, labor unions safely
could predict that their membership would benefit from the ADA=s remedial provisions. Yet, while
the union in its representative capacity commonly relies on the Act=s anti-discrimination
proscriptions to help ailing or injured members remain on the job, the union as an institution has at
times found itself at odds with some of these same provisions. This paper provides a summary of
developments from the last two years in several of these areas.1 In Part I, the paper looks at the
situation where the union itself is the employer and is subject to the ADA in that capacity. From
there, Part II explores the union=s liability under the Act where it is acting in its representative role,
taking a specific look at the union=s Duty of Fair Representation in cases where members complain
of disability discrimination. Part III highlights recent federal court and arbitration decisions applying
the ADA in situations where a collective bargaining agreement (ACBA@) is in place. The paper=s
final section, Part IV, focuses on a particular sub-issue in the CBA context, that of the principle of
The starting off point for this summary was the excellent earlier discussion of this topic
in Jules Smith=s paper AAmericans with Disability Act B The Top Compliance Issues: A Union
Perspective@ delivered at the ABA=s Labor and Employment Law=s 1999 midwinter meeting.
This earlier paper provides a detailed, circuit-by-circuit analysis of the seniority issues discussed
infra. It also evaluates potential union liabilities under a public accommodation theory, a topic
not covered by the present paper.
seniority as it relates to the ADA, considering whether in some situations this principle must give
way to prevent disability discrimination.
I. The Union as Employing Entity
Title I of the ADA expressly subjects unions to the prohibition against discrimination in
employment based on disability.2 42 U.S.C. ' 12111(2). As a covered entity, the union cannot
discriminate against a qualified individual with a disability in regard to job application procedures,
hiring and firing, advancement, training, compensation, or other terms and conditions of
employment. 42 U.S.C. ' 12112(a). Clearly, where the union is the Aemployer,@ as that term is
defined in Section 12111(5)(A), its conduct must conform to the ADA.3
A review of recent decisions discloses no federal court cases brought by union employees
claiming violation of their rights under the ADA. The optimist might conclude that this simply
shows that unions are doing a good job of conforming their employment practices to the law. This
may or may not be so, but for the purposes of this paper, it is sufficient to say that, going forward,
unions should be aware of this potential for liability.
Section 12111(2) reads: AThe term >covered entity= means an employer, employment
agency, labor organization, or joint labor-management committee.@ (emphasis added).
Subsection (B) of Section 12111(5) includes two exceptions to the term Aemployer,@ but
specifically excludes labor organizations from the exception for tax exempt bona fide private
II. The Union as Representative Entity
The following cases involve the union acting in its representative capacity as defendant,
either alone or as a joint defendant in a hybrid action. These cases do not arise under the ADA;
instead, plaintiffs claim under statutes such as the National Labor Relations Act (ANLRA@), 29
U.S.C. ' 151 et seq., the Railway Labor Act (ARLA@), 45 U.S.C. ' 151 et seq., or the Labor
Management Relations Act (ALMRA@), 29 U.S.C. ' 141 et seq. Nevertheless, they relate to the ADA
to the extent that members complain of the union=s conduct in pursuing their grievances of alleged
ADA violation. Subsection A looks at a case where a union member alleged discrimination on the
part of the union itself. Subsection B examines the more common case: where the member alleges a
breach of the union=s Duty of Fair Representation (ADFR@).
A. The Union as Defendant
1. Union Did Not Discriminate Where it Made Sound Decision Not to Pursue
Plaintiff, a former flight attendant with bi-polar disorder, failed to raise a
material issue of fact as to whether the flight attendant=s union discriminated against
her by refusing to represent her in grievance proceedings. While a fact issue existed
as to whether Plaintiff suffered from a substantial limitation on the major life
activities of thinking, sleeping, and interacting with others, Plaintiff failed to offer
any evidence to support the third prong of her prima facie case: causation. Plaintiff
had falsified her worker=s compensation claim, which led the airline to terminate her.
The Union was not involved in the termination decision. Furthermore, evidence
showed that Plaintiff had informed the lawyer of a previous felony shop-lifting
conviction, which, under Federal Aviation Administration regulations, would prevent
her from working as a flight attendant. As such, the Union=s inaction neither led to
her termination nor prevented her from successfully grieving that termination.
Finally, plaintiff offered no evidence that the Union=s stated non-discriminatory
reasons for not pursuing the grievance were pretextual. Summary judgment for the
Union was granted.
Cambria v. Assoc. of Flight Attendants, AFL-CIO, No. Civ.A.03-CV-5605, 2005
WL 1563343, 16 AD Cases 1642 (E.D. Pa. 2005)
B. The Union=s Duty of Fair Representation
The following cases involve claims that the union breached its DFR. These cases,
building on earlier precedent, demonstrate that courts tend to defer to the union=s determinations B
both tactical and strategic B about grievance proceedings. As these cases make clear, a union=s
liability does not arise simply where the union is negligent in its representation; more than this is
required. See U.S. Steel Workers of America, AFL-CIO v. Rawson, 495 U.S. 362, 372-373, (1990).
Rather, only where the union acts arbitrarily, discriminatorily, or in bad faith, does it violate this
duty. See Vaca v. Sipes, 386 U.S. 171, 190 (1967).
1. Objective Assessment of Union=s Conduct in DFR Cases Required in 1st
Unhappy with the outcome of his termination hearing, the employee brought a
claim against his union for breach of the duty of the DFR. The employee=s union
attorney, at the employee=s urging, interviewed several potential supporting
witnesses, but soon determined that they were hostile to the employee=s case. The
lawyer therefore pursued an alternate theory, claiming instead that the termination
violated the CBA=s notice provisions. Beginning its analysis, the First Circuit stated
that a court must objectively examine the competence of a union=s actions. To this
end, a court must accord the union=s determinations substantial deference. The DFR
requires at least minimal investigation into the events leading to the grievance. The
court concluded that, where the union representative interviewed potential witnesses,
and where those witnesses were hostile to employee=s claims, the union was within
its discretion not to call them to testify. Further, the union did not breach its DFR in
pursuing an untested theory (i.e., the breach of contract theory). Summary judgment
for the union was granted. While not an ADA case, Emmanuel is instructive as to
how courts will treat the issue in cases where disability discrimination is involved.
Emmanuel v. Int=l Brotherhood of Teamsters, Local Union No. 25, 426 F.3d 416,
178 LRRM 2261 (1st Cir. 2005), petition for cert. filed.
2. Where Last Chance Agreement Eliminates Possibility of Successful
Grievance, no Breach of DFR for Failure to Pursue Arbitration
Plaintiff argued that the Union=s investigation of his grievance was so
perfunctory as to be an egregious disregard of his rights. The evidence showed,
however, that the Union based its decision not to pursue the grievance on the fact that
the employee had signed a Last Chance Agreement. Because the agreement appeared
to eliminate the possibility of filing a grievance, the Union determined that their was
no need to investigate. The Ninth Circuit found that the Union had not breached the
DFR. While a union=s decisions cannot be discriminatory or in bad faith, the court
explained, they need not necessarily be correct. Here, the Union=s decision was not
in bad faith or discriminatory, even if its investigation was minimal, because the
Agreement eliminated the possibility for grievance. Summary judgment for the
Union was granted.
Jacobs v. Georgia-Pacific West, Inc., et al., 144 Fed.Appx. 608 (9th Cir.
3. Union Does Not Breach DFR Where Employer Acts Within Its Discretion
The Union did not breach its DFR, because CBA provision alleged to have
been violated was completely discretionary. To prove breach of this duty, Plaintiff
must show (1) that the union allowed a violation of the CBA to go unrepaired, and
(2) that it was animated by discriminatory animus. Here, Plaintiff showed neither.
He offered no evidence of discriminatory motivation on the union=s part. Further, the
CBA language was completely discretionary (APhysically handicapped employees . . .
may be retained . . .@ (italics added)). The company=s decision not to reinstate
Plaintiff, who suffered from impaired vision, was within its discretion under the
CBA. Thus, Plaintiff could not satisfy the two-prong test for breach of the DFR.
Summary judgment for the Union granted.
Brandon v. Lockheed Martin Aeronautical Systems, et al., 393 F.Supp.2d 1341
(N.D. Ga. 2005).
4. No Breach of DFR Where Plaintiff Offered No Evidence of Arbitrary,
Discriminatory or Bad Faith Conduct
Plaintiff was terminated for inappropriate sexual conduct in the workplace.
He brought a grievance under the CBA, in which his Union represented him. He
asked that his personal attorney be allowed to attend, as well, but the Union refused.
The Arbitrator reached an adverse decision and the Union elected not to pursue the
claim in federal court. Plaintiff filed a hybrid action against both his employer and
the Union, alleging essentially that the Union breached its DFR. The district court
found that the Union=s conduct was not arbitrary, capricious or in bad faith, and
granted summary judgment. Plaintiff failed to plead arbitrariness sufficiently, and
offered no evidence that the Union failed to prepare adequately for the arbitration
because of his disability. Further, he could not show bad faith on the Union=s part.
Plaintiff admitted in deposition that none of the Union representatives exhibited ill
will toward him and he offered no evidence that the Union acted with a dishonest
purpose. As he failed to raise a triable issue of material fact with respect the Union=s
alleged breach of the DFR, the court granted summary judgment for the Union and
dismissed the claims.
Devore v. Rolls-Royce Energy Systems, Inc., et al., 373 F.Supp.2d 750 (S.D. Ohio
5. NLRA Breach of DFR Claim Cannot Proceed Against Union Where
Employer Is Unit of State Government
Plaintiff, a former state librarian, sued the state teacher=s union along with her
former employer for violation of her rights under Title VII and the ADA. The claim
against the union essentially was that it had failed to come to her aid as the State
library discriminated against her because of her disability. The court treated the
claim as one of breach of the duty of fair representation and granted the union=s
motion to dismiss. Because the library was a unit of the state government, it was
exempt from the NLRA=s definition of Aemployer.@ As the CBA and the duty of fair
representation did not arise under the NLRA, but rather under state law, Plaintiff
could not maintain a her claim under the NLRA. Motion to dismiss granted.
Collins v. Illinois, et al., No. 03-3159, 2006 WL 213947 (C.D. Ill. Jan. 27, 2006).
6. Union Not Liable Under DFR Theory Where Plaintiff Cannot Show Breach
In a Section 301 hybrid case, claims against an employer and union are
interlocking B where one fails, the other must also fail. Here, Plaintiff failed to raise
a material fact issue as to whether his termination violated the CBA=s Afor cause@
provisions. Plaintiff was terminated for failing to call in to work, even after five
previous warnings for the same misconduct. Therefore, his claim that the termination
was without cause lacked merit. As there was no violation of the CBA, he could not
show a violation of the union=s DFR. Summary judgment for the employer and the
union was granted.
Marine v. H.J. Mohr & Sons, Co., et al., No. 04 C 2989, 2005 WL 2293673 (N.D.
Ill. Sep. 19, 2005).
7. No Violation of DFR Where Decision Based On Assessment that Employee=s
Felony Conviction Justified Termination and Made Success at Grievance
The Union did not breach its DFR where its decision not to arbitrate
Plaintiff=s discriminatory termination claim (regarding her breast cancer) was
reasonable. Plaintiff argued that the Union=s reliance on the company=s assertion that
the merits underlying the employee=s arrest were irrelevant. The company claimed
that the arrest, alone, justified termination, and the Union concurred. It therefore
chose not to pursue the grievance. The court examined the basis for this decision,
rather than second-guess the Union by reviewing the evidence before it at the time.
Existing case law showed that Plaintiff=s arrest for stabbing ex-husband justified the
termination, even where she later was acquitted of the charge. In other words, her
felony conviction gave the company Ajust cause@ to terminate her, and the Union
reasonably could decide not to pursue the grievance. Summary judgment for the
Union was granted.
Henley v. U.S. Steel Corp., No. 2:03 CV 236, 2005 WL 1384642 (N.D. Ind. 2005).
8. Union May Refuse to Pursue Grievance Where Employee Violates Last
Plaintiff failed to show a breach of the CBA, where he was subject to a last
chance agreement requiring discharge in the event of a failed drug test. Plaintiff=s
latest drug test came back positive and the company terminated him. As he could
show no CBA violation, under established case law, he could not maintain a claim
for breach of DFR. To succeed on such a claim, a plaintiff has the burden to prove
both elements. Because the last chance agreement clearly set out the consequences of
another failed drug test (i.e., termination), Plaintiff failed to demonstrate a CBA
violation. Thus, his DFR claim could not succeed, even if, the court noted, the Union
acted arbitrarily or in bad faith. Assuming arguendo that Plaintiff had shown a CBA
violation, his claim would still fail. The Union=s activities were not arbitrary,
capricious, or in bad faith. A union is not required by its DFR to pursue meritless
grievances (so-called Aknee pad@ or AHail Mary@ grievances) to the bitter end. In
other words, where the employer=s good graces alone would allow employee to keep
the job, the union may refuse to grieve the complaint. Here, the Union did not breach
its DFR, because of the undisputed violation of the last chance agreement. Summary
judgment for the Union was granted.
Huber v. Int=l Union, United Auto., Aerospace & Ag. Implement Workers of Am.,
et al., No. 1:03-CV-0816-DHF-TAB, 2005 WL 645158, 176 LRRM 3115 (S.D.
Ind. Mar. 3, 2005).
9. NLRA=s Six-Month Statute of Limitations Applies to DFR Claims;
Limitations Period Began When Employee Received Unequivocal Notice of
Union=s Decision Not to Pursue Claim
A former hospital employee, who suffered from Hepatitis-C, HIV, and
alcoholism sued his Union local, alleging breach of the DFR arising from the Union=s
refusal to pursue the employee=s wrongful discharge claim to arbitration. Defendant
moved to dismiss on the grounds that the DFR claim was time-barred, and the district
court granted the motion. DFR claims are governed by the NLRA=s six-month statute
of limitations. The rule in the Second Circuit is that a cause of action accrues when a
plaintiff first could successfully maintain an action based on that cause of action.
Plaintiff=s action against the Union accrued when he received unequivocal notice of
Union=s refusal to arbitrate his claim. Six months after his termination, he received a
letter from the Union stating the Union=s conclusion that there was Avirtually no
likelihood@ of success and that the decision not to arbitrate was final. The court held
that Plaintiff=s receipt of this letter began the clock for NLRA statute of limitations
purposes. Plaintiff failed to file the complaint within six months of that date, and,
consequently, the court dismissed his DFR claim
LaFauci v. St. John=s Riverside Hosp., et al., 381 F.Supp.2d 329 (S.D.N.Y. 2005).
III. Collective Bargaining and the ADA
Collective bargaining agreements nearly universally include
some provision, however generally worded, proscribing
discriminatory conduct. In arbitration cases, this language may
determine the level and scope of protection in that particular
cases that arise under the agreement. See In re Pantex, LLC
[Amarillo, Texas] and Metal Trades Council of Amarillo, Texas, 120
LA 385, 392 (Jennings Oct. 20, 2004) (noting that, in certain
situations, a CBA may not provide for the application of specific
federal laws such as the ADA). Outside of the arbitration setting,
covered employers are subject to the full range of remedial
provisions provided for in the ADA. The following recent cases
examine employer policies alleged to violate the ADA. Most common
among these cases is the claim that the employer failed to
accommodate the employee=s disability, as required by the Act. See
42 U.S.C. 12112(b)(5)(A).
A. Policies in Violation of the ADA
1. Failure to Remedy ADA Violation Is Not a Continuing Violation in the
Seventh Circuit; Limitations Begins to Run When Employee Receives Notice
of Adverse Action
In ADA cases, the limitations period begins to run when the
employee has knowledge of his injury, and not when he determines that the injury is
unlawful. When a work-related injury forced Plaintiff to move out of his bus driver
position and into an administrative job, he was required to change union
memberships, as well. In the move, his seniority transferred for layoff and recall
priority, but not for pay rate determinations. When he returned to a bus driver
position, the School District labeled him as a probationary driver due to the Abreak in
service@ and paid him accordingly. The District notified Plaintiff in May of 2000 that
his seniority had not transferred, but Plaintiff waited nearly two years to file a
discrimination charge. During this time, he and the District were in discussions
about a possible internal resolution to the dispute. When the District later moved for
summary judgment, Plaintiff contended that under the continuing violations doctrine,
the District=s actions were within the limitations period. In other words, so long as
the District had not adjusted his pay seniority, it continued to violate Plaintiff=s rights.
He further argued that he was unable to act upon the original violation until he was
personally convinced that the District would not take remedial action, and so long as
they were in discussions, there was the possibility that the District would remedy the
violation. The district court disagreed with both points, and granted summary
judgment. At the Seventh Circuit, the court confirmed what was settled law in the
Circuit: that the failure to remedy an unlawful employment action is not a discrete
actionable event. Further, the limitations period begins to run Awhen the employee
knows he has been injured, not when he determines that the injury was unlawful.@
(Internal citations omitted). Thus, Plaintiff=s claims were time-barred. Summary
judgment for Defendant was granted.
Stepney v. Naperville School Dist. 203, 392 F.3d 236, 16 A.D. Cases 357 (7th Cir.
2. Employee Must Show More than Mere Allegations of Past Failure to
Accommodate to Demonstrate Pretext in the Eighth Circuit
Employer terminated Plaintiff following an extended leave of
absence and her failure to report to a physical examination, as permitted by the CBA.
Plaintiff sued Employer for disability discrimination and failure to accommodate her
disability. Employer moved for summary judgment, which the district granted on the
grounds that her claims were untimely and that she had not proven a prima facie case.
On appeal, the Eighth Circuit affirmed. Assuming arguendo that Plaintiff=s claims
were not barred by the statue of limitations, the court applied a burden-shifting
approach to determine whether discrimination was involved in the termination.
Again, assuming arguendo that Plaintiff could prove a prima facie case, the court
held that she failed to show that Employer=s non-discriminatory reason for discharge
(i.e., failure to appear for physical examination) was pretextual. Her only evidence of
pretext was that Employer discriminated against her in the distant past and allegedly
failed to accommodate her disabilities in the recent past. While an employer=s failure
to accommodate is evidence of pretext in the Eighth Circuit, Plaintiff offered only
allegations of Employer=s past failure, and these were insufficient to rebut Employer=s
proffered reason for the termination. Summary judgment for Defendant affirmed.
Henderson v. Ford Motor Co., 403 F.3d 1026 (8th Cir. 2005).
3. Federal Court Lacked Jurisdiction to Apply ADA Where Rights Under RLA
The Union sued for declaratory relief, claiming that the
company=s policy of requiring foremen and welders to obtain commercial drivers
licenses and DOT certification violated the ADA. The company moved to dismiss on
jurisdictional grounds. Under the RLA=s mandatory arbitration provisions, the court
lacks jurisdiction to settle Aminor disputes@; in other words, federal courts may not
interpret or apply terms of a CBA covered by the Act. The Union proposed two
accommodations in response to the licensing policy: one, the Aselective waiver,@
suspended the policy for disabled applicants; the other, the Ageneral waiver,@ withheld
its application for all job seekers. The court considered the selective waiver and
concluded that it amounted to a preference for disabled applicants, one which might
conflict with the CBA=s seniority provisions. In order to uphold this accommodation,
the court would be forced to examine the consequences on seniority rights on a case-
by-case basis. It refused to do so and granted summary judgment as to this
accommodation. On the other hand, with respect to the general waiver, the court
found that it had jurisdiction. Because the waiver would apply to all applicants,
regardless of disability, there would be no need to examine the seniority provisions.
Motion to dismiss granted in part and denied in part.
Brotherhood of Maintenance Way Employees, et al. v. Burlington Northern Santa
Fe Railway Co., 383 F.Supp.2d 1000, 17 AD Cases 95 (N.D. Ill. 2005)
4. Fact Issue Existed as to Whether Defendant Participated in AInteractive
Process@ in Good Faith
A fact issue existed as to whether County acted in good faith in
rejecting Plaintiff=s proposed accommodation. Plaintiff suffered from Multiple
Sclerosis resulting in chronic migraine headaches. Subsequent to being hired as a
county corrections officer, Plaintiff requested that he be accommodated with a
restriction on overtime assignments. The County rejected the proposal, claiming that
it would violate the overtime provisions of the CBA that mandated that junior
officers were to bear the brunt of overtime assignments. During the negotiations,
however, the union representative stated that the union would not object to a
limitation on overtime hours. Defendant argued that because union representative
did not give assurances that union would not later grieve complaint, any overtime
restriction would be in violation to CBA and would be per se unreasonable. The
district court noted that the request for accommodation triggers an Ainteractive
process@ through which the parties determine whether a reasonable accommodation
can be reached. Both parties have a duty to participate in this process in good faith.
Given the dispute over whether the CBA would allow a limitation on overtime, found
that a genuine issue of fact existed as to whether the County acted in good faith in
refusing Plaintiff=s proposal. Summary judgment for the County was denied.
Smith v. Burlington County N.J., et al., No. 02-5581, 2004 WL 1932850, 15 A.D.
Cases 1530 (C.D. N.J. Jul. 27, 2004).
B. Failure to Make Reasonable Accommodation
1. Employer Did Not Fail to Accommodate Disabled Employee Where
Employee Did Not Satisfy Reasonable Pre-Condition to the Accommodation
Plaintiff, a postal worker, developed was diagnosed with
anxiety and post-traumatic stress disorder. Shortly thereafter, he requested a transfer
from one post office location to another to help him better manage his condition. The
Post Office initially rejected this request, but later agreed to it on the condition that
Plaintiff explain numerous unauthorized absences. Plaintiff offered no explanation,
and instead, filed a charge of disability discrimination. At trial, the district court held
that the Post Office had made all reasonable accommodations, including reducing
Plaintiff=s workload and facilitating the transfer request. On appeal, the Tenth Circuit
affirmed the district court=s finding for the Post Office on the failure to accommodate
claim. Plaintiff=s failure to meet the one reasonable condition placed on his transfer,
undid his claim. In the court=s view, the Post Office made all reasonable efforts to
accommodate Plaintiff. Only his failure to explain the absences prevented the
transfer. Judgment for the Post Office on the failure to accommodate affirmed; other
portions of the district court=s decision were reversed and remanded.
Jordan v. U.S. Postal Serv., 379 F.3d 1196 (10th Cir. 2004).
2. Employer Not Required to ABump@ Non-Disabled Employee in Order to
Accommodate Plaintiff=s Disability
Defendant, a hotel resort, did not violate the ADA in refusing
the request of one of its bar tenders that he be placed on Alight duty@ due to a back
injury. Defendant argued that, at the time of the request, all of the Alight duty@
positions were occupied by other bargaining unit employees, and that to
accommodate Plaintiff, it would have to Abump@ one of these employees, in violation
of the seniority provisions of the CBA. Plaintiff countered that the ADA required the
hotel to create a vacancy for him. The district court disagreed and granted summary
judgment. According to the court, the plain language of the ADA, EEOC
regulations, and predominant case law demonstrated that an employer was not
required to Abump@ current employees under its duty to make reasonable
accommodation. While the Ninth Circuit had not so held, the court explained, other
circuits (the Seventh and Tenth specifically) had rejected the argument. The hotel
was therefore not required to accommodate Plaintiff by moving another employee out
of a Alight duty@ position. As the requested accommodation was unreasonable,
summary judgment for Defendant was granted.
Soone v. Kyo-Ya Co., Ltd., 353 F.Supp.2d 1107, 16 AD Cases 740 (D.Hi. 2005).
3. Summary Judgment Not Proper Where Employee Raises Fact Issues
Regarding At Least One Position for Which He Is Qualified
Plaintiff requested a shift to another position within
Defendant=s plant, because of a debilitating condition that worsened his eyesight.
The parties were unable to agree on an accommodation position, and Plaintiff filed a
charge of disability discrimination. The district court found there to be too much
contradictory evidence to grant either party=s motion for summary judgment. As it
was his burden to prove such a position was available, Plaintiff suggested several
jobs for which he had sufficient seniority to transfer into. Defendant objected that
this move would violate the CBA. The court credited Plaintiff=s evidence that he was
eligible for and capable of performing in these positions. It also noted that a letter of
agreement between the company and the union seemed to suggest that an employee
with sufficient seniority could Abump@ into a position occupied by a more junior
employee. Given the conflicting evidence, the court denied summary judgment.
Martin v. Daimler Chrysler, No. 1:03CV0695, 2005 WL 2218357 (S.D. Ind. 2005).
C. Recent Arbitration Decisions
1. Accommodation Not Reasonable Where Costs Greatly Outweigh Benefits to
Employer, a hospital, acted reasonably in terminating an
employee, who suffered severe allergic reaction to the hospital=s general disinfectant,
after a one-year absence. In response to the employee=s allergic reaction, the hospital
carefully researched alternative cleaners, considering product availability,
effectiveness against viruses, and overall cost. In the end, it decided not to switch
products because alternative products cost substantially more. The Arbitrator viewed
this decision as reasonable, particularly for the fact that alternative cleaners contained
the same ingredient to which Employee was allergic. Because the costs of
accommodation greatly outweighed the benefits to the disabled employee, requiring
the hospital to undertake such an accommodation would impose an undue hardship.
The Arbitrator declined to force the hospital to switch cleaners. Grievance denied.
In re South Peninsula Hospital [Homer, Alaska] and General Teamsters Local
959 (Landau, 2004).
2. No Disparate Treatment Where Comparators Qualified for Higher-Paying
Position from Which Disabled Employee Was Demoted
Employer did not violate its CBA by demoting Employee, who
was under permanent weight lifting restriction due to an on-the-job back injury. The
Union failed to prove any reasonable accommodation provision, the Arbitrator
concluded, because its suggested position also required a significant amount of heavy
lifting. The Union also failed to prove that Employee received disparate treatment on
account of her injury. The Union argued that, because the company paid some
employees at a higher pay grade for which they were eligible, even though it assigned
those individuals to lower-classified positions, it was discriminating against
Employee. The Arbitrator distinguished the two cases: in the former, the employees
were qualified for the pay grade, even if they worked elsewhere; in the latter,
Employee was not qualified any longer due to the lifting restriction. Grievance
In re Georgia-Pacific Corp. [Pennington, Alabama] and Paper, Allied Industrial,
Chemical & Energy Worker Int=l Union, Local 3-0950, 121 LA 97 (Nicholas
3. Arbitrator Refused to Read ADA into CBA Where Agreement Was Silent As
to Its Applicability
The company was not precluded by the ADA or the CBA from
demoting an employee from a position for which poor vision disqualified him. The
Union argued that the CBA=s non-discrimination language (that A[n]o employee . . .
seeking employment will be discriminated against by reason of . . . disability@) made
the agreement subject to the ABA. It further argued that CBA language (Ain the event
a person is permanently disqualified from his/her position . . .@) prevented
disqualifying employees unless the physical requirements of the job changed.
Turning to the first claim, the Arbitrator refused to read the ADA into the contract.
Arbitrators are reluctant, he noted, to apply statutes about which the CBA is silent.
As to the second argument, the Arbitrator disagreed that the job requirements must
change to warrant demotion. Instead, he concluded that the CBA language allowed
the inference that the company could remove an employee whose medical condition
changed, even where physical requirements of the job remained the same. Grievance
In re BWXT PANTEX, LLC [Amarillo, Texas] and Metal Traders Council of
Amarillo, Texas, 120 LA 385 (Jennings 2004).
IV. Seniority Issues and the ADA
In its 2002 decision in U.S. Airways, Inc. v. Barnett, the Supreme Court addressed the issue
of whether the ADA requires an employer to violate seniority rules in order to satisfy its reasonable
accommodation duty. 535 U.S. 391 (2002). The Court held that the ADA does not create an
automatic exemption from the duty to accommodate in cases where the differential treatment will
violate disability-neutral rules, such as seniority rules. Id. at 398. Nevertheless, Ain the run of cases@
it would be unreasonable to allow an accommodation to violate seniority rules, id. at 403, and the
plaintiff bears the burden of showing special circumstances exist that make exception to the rules
reasonable in that particular case. Id. at 405. In Barnett, the employer unilaterally imposed the
seniority regime, but the opinion applies equally to seniority systems created under CBAs. See id. at
406. Indeed, prior to Barnett, multiple Circuit Courts of Appeals had come to the same conclusion
in the collective bargaining context. See, e.g., Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th
Cir. 1996); Shea v. Tisch, 870 F.2d 786 (1st Cir. 1989); Carter v. Tisch, 822 F.2d 465 (4th Cir. 1987);
Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1987); Jasany v. U.S.Postal Serv., 755
F.2d 1244 (6th Cir. 1985). For that reason it is instructive to review recent cases that confront the
thorny circumstance where the duty to accommodate comes into conflict with a CBA seniority
A. Recent Cases Applying the Barnett Rule
1. Fact Issue Existed as to Which Definition of Seniority Controlled for CBA
Purposes: Plant Seniority v. Departmental Seniority
Employee, who suffered from narcolepsy and cataplexy,
claimed that his employer failed to accommodate by refusing a requested shift change
from the night shift to the day-shift, or alternatively, that his tardy arrivals be excused
from the company=s progressive discipline plan, as per his doctor=s recommendations.
Employer moved for summary judgment, which the court denied. The court found
that a fact issue existed as to whether employee=s plant seniority versus his
departmental seniority controlled for purposes of the CBA. The court noted that in
the Eighth Circuit (and several other Circuits cited) an employer need not violate the
seniority rights of its CBA in order to accommodate disabled employees. But here,
Plaintiff raised a fact issue as to whether he had sufficient plant seniority to bid for
the day-shift position. Employer, however, claimed that he lacked seniority within
his department to qualify for the shift change. Summary judgment on Employee=s
ADA claim was denied.
Hill v. Kellogg USA, Inc., No. 8:02CV436, 2005 WL 1994944 (D.Neb. August 11,
2. Under Barnett, Company Not Required to Violate CBA In Order to
Accommodate Disabled Employee
Plaintiff could not prove that her suggested accommodation
was objectively reasonable. Because she suffered from Multiple Sclerosis, Plaintiff
look a leave of absence, during which time the company removed her from her
position and replaced her with a more senior employee. The removal was due to
Plaintiff=s failure to fill out a required form within the ninety-day deadline. As a
result, the company offered her several other positions when she later returned to
work, though her condition prevented her from filling any of these positions. She
therefore requested a return to her original position. The company moved for
summary judgment on Plaintiff=s claim that the company=s refusal to Abump@ her back
into the position violated its duty to make reasonable accommodation. Under
Barnett, the court explained, an employer is not obligated to violate the terms of a
CBA=s seniority provisions. Plaintiff=s suggested accommodation would require the
employer to Abump@ a more senior employee from the desired position. As this
would constitute an undue hardship, the employer is not required to do so. Summary
Raymond v. Saturn Corp., et al., No. 1: 04-0065, 2005 WL 1983836 (M.D. Tenn.
3. Exception to Barnett Rule Where Employer Applies CBA Provisions
Plaintiff failed to take advantage of an exception to the Barnett
rule allowing accommodation where an employer has a practice of making
exceptions to the CBA=s seniority provisions. According to the district court, an
employer claim forced by its duty to accommodate to violate the terms of its CBA if,
Ahaving retained the right to change the seniority system unilaterally, [it] exercises
that right frequently, reducing employee expectations that the system will be
followed to the point where one more departure, needed to accommodate an
individual with a disability, will not likely make a difference.@ Plaintiff offered little
more than evidence of technical violations of the seniority rules, instances the court
deemed irrelevant. Thus, Plaintiff failed to show a pattern of exceptions that would
obligate the employer to make an accommodation in her case. Summary judgment
for Defendant was granted.
Shields v. BCI Coca-Cola Bottling Co. of Los Angeles, No. C04-928JLR, 20005
WL 2045887 (W.D. Wash. 2005).
B. The ADA and Seniority in Arbitration
1. Employee Bound by Earlier Statement of Job=s Essential Skills; No CBA
Violation Where Employee Lacks Those Skills
Employer did not violate the CBA=s seniority provisions by
awarding a job to a more junior employee. Grievant earlier had agreed in a
settlement with the state=s equal opportunity employment agency that certain math
(so-called Ashop math@) and reading skills (i.e., the ability to read blue prints) were
essential job skills. Because he failed the employer=s exam that tested these basic
skills on multiple occasions, even after being allowed a longer time to sit for exam
due to his dyslexia, Grievant was not qualified for the position for which he bid.
Because he was not qualified, the company did not violate the CBA in awarding the
job to a co-worker with less seniority. The Arbitrator held that the senior employee
was bound by his earlier agreement. He further concluded that any accommodation
that would require the employer to assign additional staff to aid the senior employee
with math and reading tasks would be unreasonable. Grievance denied.
In re Turbine Engine Components Tech. Corp. [Cleveland, OH] and United Auto
Workers Local 2562, 120 LA 274 (Fullmer 2004).