Collective Bargaining and the Reasonable Accommodation Process

Title I of the Americans with Disabilities Act (ADA) covers employment practices, and forbids discrimination in all terms and conditions of employment against qualified individuals with disabilities. Along with applying to private employers with at least fifteen (15) employees and to state and local government employees, ADA Title I also specifically includes labor organizations and joint labor-management committees. Labor unions are covered both as employers and as bargaining agents under the National Labor Relations Act (29 USC Sections 151-169). The ADA prohibits employers and unions from entering in to collective bargaining agreements that discriminate against individuals protected by the ADA.

How does collective bargaining impact reasonable accommodation?

Under the ADA, an employer must provide an effective reasonable accommodation when a qualified individual with a disability needs an accommodation, unless providing the reasonable accommodation would create an "undue hardship". "Undue hardship" is defined as "requiring significant difficulty or expense" (42 U.S.C. Section 12111(10)(A).) The regulations around "undue hardship" include any action that would be "unduly costly, extensive, substantial or disruptive, or that would fundamentally alter the nature or operation of the business".(29 C.F.R. app. Section 1630.2(p).) Factors in determining when undue hardship is a valid defense include: the size of the business, the size of its budget, the nature of its operation, the number of its employees, the composition and structure of its workforce, the impact of the accommodation on the operation of the facility, and the nature and net cost of the accommodation.

Conflicts between a collective bargaining agreement and reasonable accommodation arise:

when a proposed accommodation would affect the working conditions of others, and
when a proposed accommodation would give preferential treatment to an employee in scheduling or job assignment.

Some accommodations, such as job restructuring or transfer to a preferable shift or light duty position over a more senior employee, may violate the terms of a collective bargaining agreement. The terms of a collective bargaining agreement may be a relevant factor in determining whether a requested accommodation would be an undue hardship on the operation of a business. Since both the employer and the union are covered by the ADA's requirements, including the obligation to provide a reasonable accommodation, the employer should consult with the union and try to work out an acceptable solution.

For more information on reasonable accommodation and collective bargaining issues, visit the ILR Programe on Employment and Disability site.

Case Law

U.S. Airways Inc. V. Barnett

The facts in this case raised a conflict between a worker's job reassignment under the reasonable accommodation provisions of the Americans with Disabilities Act and an employer's seniority rules. Upon injuring his back, a cargo handler for U.S. Airways transferred under U.S. Airways' unilaterally adopted personnel policy to a less physically demanding mailroom position that accommodated his disabilities. When he learned that his position was going to become open for bid under U.S. Airways' seniority system, and that two employees with greater seniority intended to bid for his mailroom job, he asked his employer to not place the mailroom position up for bid as an accommodation to his disability. U.S. Airways rejected his request, refusing also to provide alternative accommodations that could have enabled him to perform a cargo position job for which he had adequate seniority. The employee subsequently lost his job and brought an action under Title I of the ADA.

The District Court granted U.S. Airways summary judgment, concluding that modification of a seniority system constitutes undue hardship under the ADA to both the employer and other non-disabled employees. The decision was affirmed by the Ninth Circuit. The case went to the Supreme Court, which addressed the interaction of job reassignment under the ADA and employer seniority systems, and concluded that in most situations, seniority rights should be given presumptive priority over the reassignment of employees with disabilities.

For more information on U.S. Airways V. Barnett, visit the National Council on Disability site.

Willis V. Pacific Maritime Association

In this case the Ninth Circuit took up the conflict between the ADA and seniority provisions of collective bargaining agreements. The plaintiffs in this case were both longshore workers and members of the "Union". The "Union", in turn, was party to a collective bargaining agreement with the trade association of the main employers of dockworkers. Under the collective bargaining agreement union workers are assigned to available longshore jobs based on seniority. The system also includes provisions for priority assignment of older and disabled workers to light duty positions. The

collective bargaining agreement also governed the transfer of employees from the longshore union to the local marine clerks union.

The plaintiffs were disabled in the course of their employment under the collective bargaining agreement. Each requested light duty assignments, transfer to the clerks union, or both as a result of their disability. Their requests were denied based on seniority. They then sued the Union and Association separately in District Court, and the cases were consolidated and ultimately dismissed in favor of the Union and the Association. The plaintiffs alleged that the defendants discriminated against them by failing to make reasonable accommodation for their disabilities. The Ninth Circuit affirmed the decision of the District Court, holding that "a plain reading of the ADA supports the conclusion that an accommodation that would compel an employer to violate a collective bargaining agreement is unreasonable".

To see the case in its entirety, visit the US Courts site.