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2000 Term, Number 13 / April 16, 2001

Today the Supreme Court granted certiorari in two cases of potential interest to the business community. Amicus briefs in support of the petitioners are due on Thursday, May 31, 2001, and amicus briefs in support of the respondents are due on Monday, July 2, 2001. Any questions about these cases should be directed to Eileen Penner (202-263-3242) or Miriam Nemetz (202-263-3253) in our Washington office.

1. Americans with Disabilities Act Reasonable Accommodation Obligation to Reassign Disabled Employee in Conflict With Employer's Seniority System.  The Supreme Court granted certiorari in U.S. Airways, Inc. v. Barnett, No. 00-1250, to determine whether the Americans with Disabilities Act (ADA) requires an employer to reassign a disabled employee to a vacant position as a "reasonable accommodation" even though another employee is entitled to hold the position under the employer's bona fide and established seniority system. 

The ADA prohibits covered entities from "discriminat[ing] against a qualified individual with a disability" with regard to the terms, conditions, and privileges of employment. 42 U.S.C. 12112(a). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. 12111(8). Accordingly, the ADA prohibits "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. 12112(b)(5). The ADA provides that a "reasonable accommodation" may include "reassignment to a vacant position." 42 U.S.C. 12111(9)(B).

Robert Barnett, who was employed by U.S. Airways in a cargo position, used his seniority to transfer to the company's mail room after injuring his back. Upon learning that two employees with greater seniority planned to "bump" him from his mail room position, Barnett requested that he be allowed to stay in the mail room as a reasonable accommodation under the ADA. After U.S. Airways refused his request, plaintiff brought suit under the ADA. The district court granted summary judgment in favor of U.S. Airways, concluding that U.S. Airways was not required to violate its seniority policy to accommodate Barnett's disability. A panel of the Ninth Circuit affirmed, holding that Barnett "failed to show that a triable issue exists regarding the reasonableness of exempting him from U.S. Airways's seniority system." 157 F.3d 744, 750 (1998).

On rehearing en banc, a divided court reversed the panel majority's decision. 228 F.3d 1105 (2000). Citing the legislative history of the ADA and the EEOC's Compliance Manual, the court concluded that there is no per se rule that reassignment in conflict with an employer's seniority system is not required as a reasonable accommodation. Id. at 1118-1120. The court found that such a per se rule would frustrate the ADA's purposes by sharply limiting or eliminating the availability of reasonable accommodations in many cases. Id. at 1120. Accordingly, the court concluded that the existence of a seniority system is simply one factor to be considered in a "case-by-case fact-specific analysis" of whether a particular reassignment would constitute undue hardship to an employer. Id. at 1120. Absent a showing of undue hardship, the court concluded, the disabled employee should receive priority in reassignment to a vacant position if he or she is qualified for it. Ibid. The court held that summary judgment should not have been granted to U.S. Airways because it failed to show that permanently assigning Barnett to the mail room would unduly disrupt its seniority system. Ibid.

The Fourth Circuit subsequently declined to follow the Ninth Circuit's decision, holding in EEOC v. Sara Lee Corp., 237 F.3d 349, 354 (4th Cir. 2001), that the ADA's reasonable accommodation requirement does not trump an employer's seniority system. The Fourth Circuit reasoned that exempting disabled workers from the employer's seniority policy "could potentially expose the company to the threat of lawsuits by disgruntled employees who were placed behind employees in need of accommodation." Id. at 355. The court also held that exempting disabled workers from seniority policies "would convert a nondiscrimination statute into a mandatory preference statute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees." Ibid. (internal quotation marks omitted).

This case is of obvious interest to all employers covered by the ADA that assign or allow employees to choose their positions on the basis of seniority or other established criteria. The Court's decision will determine whether such an employer presumptively may deny a disabled employee a requested reassignment that conflicts with its established criteria for reassignment, or whether the employer must justify the denial of such a transfer through a fact-intensive showing of undue hardship.

2. Americans with Disabilities Act Disability Defined.  The Supreme Court granted certiorari today in Toyota Motor Mfg., Kentucky, Inc. v. Williams, No. 00-1089, to decide whether an impairment that prevents an individual from performing a limited number of manual tasks associated with one specific job qualifies as a disability under the Americans with Disabilities Act ("ADA"). See 42 U.S.C. 12101 et seq. 
The ADA prohibits employers from discriminating in the terms and conditions of employment against qualified individuals with disabilities. See 42 U.S.C. 12112(a). The ADA defines a "disability" as a "physical or mental impairment that substantially limits one or more" of an individual's major life activities. 42 U.S.C. 12102(2)(A). EEOC regulations define "[m]ajor life activities" to include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. 1630.2(i). EEOC regulations state that individuals are "substantially limited" in a major life activity if they are "significantly restricted as to the condition, manner, or duration under which [they] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. 1630.2(j)(2).

Ella Williams joined Toyota in 1990, and soon began working on an assembly line building car engines with pneumatic tools. Within months, however, Williams developed carpal tunnel syndrome and tendonitis in her hands, neck, and arms. Because of Williams' injuries, Toyota transferred her to its Quality Control Inspection station, where she visually inspected cars for defective paint and wiped down each newly painted car as it passed through the assembly line.

Three years later, Toyota expanded Williams' job duties to include wiping down passing cars with highlight oil at the rate of approximately one car per minute. Williams soon complained of pain in her hands, neck, arms, and shoulders, and requested that Toyota return her to her previous position. According to Williams, Toyota refused. Williams sued under the ADA, claiming that Toyota failed to offer her reasonable accommodation.

The district court granted summary judgment for Toyota, holding that Williams' inability to complete specific assembly-line duties did not qualify as a "disability" under the ADA because it did not preclude her from performing jobs other than "the job of her choice."

The Sixth Circuit reversed. 224 F.3d 840 (2000). The court of appeals began its analysis with Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), in which the Supreme Court held that, to be disabled in the major life activity of "working," "[o]ne must be precluded from more than one type of job,' i.e., a substantial class of jobs.'" 224 F.3d at 843 (quoting Sutton, 527 U.S. at 491). The Sixth Circuit found that, in contrast to the plaintiff in Sutton, Williams was restricted not merely in her ability to work, but also in her ability to perform a "range of manual tasks," whether at work or when "tending to her personal hygiene or carrying out personal or household chores." Id. Because Williams was substantially limited in her ability to perform a whole class of manual tasks that impeded her functioning in both non-work and certain work activities, she was disabled, the Sixth Circuit held. Id.

The Sixth Circuit's decision is in tension with decisions by the Fifth, Eighth and Eleventh circuits, which have held that a plaintiff's inability to perform a narrow category of manual tasks required by his or her job is not a disability. See, e.g., Chanda v. Engelhard/ICC, 234 F.3d 1219, 1223 (11th Cir. 2000); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206-07 (8th Cir. 1997); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).

This case is of great interest to employers. A decision affirming would include within the ADA's protections a large class of individuals, imposing upon employers broader potential liability and greater administrative costs.

This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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