Federal Case Update
November 13, 2000 by Beeson Tayer & Bodine
Employer’s Seniority Policy Does Not Trump Disabled Employee’s Request for Accommodation
The Ninth Circuit Court of Appeals, in Barnett v. U.S. Air, Inc. (October 4, 2000) ruled that non-union employer’s seniority policy does not automatically trump a disabled employee’s request to transfer into a different position as an accommodation under the ADA. The case arose when Barnett sustained an on-the-job injury that left him unable to perform his duties as a customer service agent. Barnett used his seniority to transfer into a position in U.S. Air’s mailroom. When Barnett learned that two employees with greater seniority planned to bid into the mailroom position, he asked U.S. Air to allow him to remain in the position as an accommodation under the ADA. U.S. Air, five months later, notified Barnett that he was being removed from the position and placed on injury leave.
Barnett filed a complaint with the EEOC and eventually suit in federal court. The District Court dismissed the case and Barnett appealed.
On appeal, U.S. Air argued that the ADA does not require it to deviate from its established seniority policy. However, the Ninth Circuit ruled to the contrary. The court noted that the history of the ADA and the policies of the EEOC reveal that seniority should not be an automatic bar to reassignment even when the seniority rights are established by collective bargaining. Given that the seniority system in Barnett was not collectively bargained, there was no reason it should automatically trump Barnett’s request for accommodation. The court held that an employer’s obligation to accommodate under the ADA is extinguished only when accommodation would constitute an “undue hardship.” While a seniority system is a factor to consider in the undue hardship analysis and may constitute one in certain cases, the analysis must be done on a case-by-case basis.
It should be remembered that Barnett, while appearing to undercut the Ninth Circuit’s previous rulings that the seniority provisions of a CBA trump the accommodation requirements of the ADA, is not a case involving a CBA. This decision, however, signals that the court is prepared to overrule those prior decisions when again presented with an analogous case involving a CBA.
Union Members’ Suit under California Overtime Laws Preempted
On July 19, 2000, the Ninth Circuit ruled that employees of Southern California Gas Company who filed suit for unpaid overtime could not recover under California’s overtime laws. Firestone v. Southern California Gas Co. 219 F.3d 1063 (9th Circ. 2000). Affirming the District Court, the Court of Appeals reasoned that because the detailed and complex pay provisions of the workers’ collective bargaining agreement with Southern California Gas would need to be reviewed and interpreted to determine whether they were correctly compensated, “the claim is not ‘independent’ of the collective bargaining agreement.” As the collective bargaining agreement was implicated, federal labor law, and not any state law, was the appropriate avenue to redress claims relating to compensation.
9th Circuit Decides to Take Another Look at Consolidated Freightways’ Spying
In our June 2000 newsletter we reported that a three judge panel of the Ninth Circuit Court of Appeals found that Consolidated Freightways’ clandestine surveillance of employees in its restrooms did not violate California’s constitutional right to privacy. On September 27, 2000, however, the court announced that it would review the matter again, this time en banc or with all judges participating rather than a three judge panel. In the meantime the panel’s decision may not be used as a precedent.
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