Sometimes, even when an employer offers an ostensibly reasonable accommodation under the Americans with Disabilities Act (ADA), the employee in question isn’t sat- isfied. Such was the circumstance in Hamedl v. Verizon, an appellate court decision that likely left the plaintiff with an even greater sense of dissatisfaction.
The plaintiff suffered from back pain. So, to spend less time sitting in traffic, he requested to work the night shift — from midnight until 8 a.m. His employer, Verizon, tentatively agreed.
Pursuant to a collective bargaining agreement (CBA) with the plaintiff’s union, however, employee shift preferences were to be assigned according to seniority. And, after recalculating his service time, the company realized that the plaintiff didn’t have adequate seniority to qualify for the midnight shift.
Rather than override its seniority policy in violation of the CBA, Verizon reassigned the plaintiff to the 8 a.m. to 5 p.m. shift. It did, however, offer to modify the shift so that the plaintiff could start at 6 a.m., thereby avoiding the morning rush.
The employee sued anyway, claiming that the company had failed to accommodate him under the ADA. The 6 a.m. start time, he contended, still resulted in an extended com- mute. But there was no dispute that the plaintiff would avoid all traffic by arriving at the office at 5:30 a.m., only thirty minutes before his modified shift.
Establishing a case
To establish a prima facie case of failure to accommodate for a disability, a plaintiff must show that:
- He or she is a person with a disability as defined under the ADA,
- His or her employer had notice of the disability,
- He or she could perform the essential functions of the job in question with a reasonable accommodation, and
- The employer failed to make such an accommodation.
Verizon argued that the plaintiff couldn’t establish a prima facie case because it had indeed provided him with a reasonable accommodation. The district court agreed. It found that the company’s offer to reassign the plaintiff to a specially modified day tour was a reasonable accommo- dation. What’s more, the plaintiff hadn’t shown why he had to work the midnight shift rather than the proffered modified day shift.
The court also held that the plaintiff hadn’t shown how the minor inconvenience of arriving to work thirty minutes early to avoid traffic made Verizon’s accom- modation unreasonable. Meanwhile, his employer had shown that an assignment to the midnight shift would be unreasonable because it would violate the CBA. The plaintiff appealed.
Providing no evidence
The U.S. Court of Appeals for the Second Circuit affirmed the district court’s decision. It found that the employer had offered the plaintiff a reasonable accommo- dation, and the plaintiff’s preference for the night shift in no way rendered that accommodation unreasonable.
The plaintiff also claimed on appeal that Verizon had retaliated against him for taking Family and Medical Leave Act (FMLA) leave. He asserted that his reassign- ment from the midnight shift to the day shift upon return- ing from said leave was an adverse action.
The district court had held that, even if the reassign- ment was considered adverse, the plaintiff’s reassignment occurred only after Verizon discovered that it had miscal- culated his seniority. Thus, there was no causal connection between the employee’s reassignment and the medical leave. The Second Circuit agreed, holding that the plain- tiff failed to provide any evidence of a causal connection between his taking FMLA leave and Verizon reassigning his shift.
Engaging in a process
As this case illus- trates, when employees request an accommodation for a disability, their employer doesn’t necessarily have to provide that specific, preferred accommodation. Employers can provide any accommodation for a disability as long as it’s reasonable. That said, employers should always engage in an interactive process with disabled employees to try to arrive at a mutually agreeable accommodation.
Exceptions to seniority rules may affect reasonability
In Hamedl v. Verizon, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s decision that the plaintiff’s desired accommodation under the Americans with Disabilities Act (ADA) would have been unreasonable because it would violate a seniority rule established under a collective bargaining agreement. (See main article.) When considering similar circumstances, employers should be mindful of the U.S. Supreme Court’s decision in U.S. Airways v. Barnett.
Here, the plaintiff had been assigned to a new position within the company after becoming disabled. But when senior employees sought the position, he lost his job. The plaintiff claimed the employer should have made an exception to its seniority rule as a reasonable accommodation. The district court rejected the claim, stating that an exception would be an undue hardship for the employer. The U.S. Court of Appeals for the Ninth Circuit disagreed and reversed, stating that the seniority rule was only one factor in the undue burden analysis.
The Supreme Court disagreed with both lower courts and held that an employer’s showing that a requested accommoda- tion conflicts with seniority rules is ordinarily sufficient to prove that the accommodation is unreasonable. But an employee may present evidence of “special circumstances” that makes an exception to the seniority rule feasible. The Court cited several examples, including the employer’s retention of the right to change the seniority system unilaterally, along with its exercise of that right “fairly frequently.” It also cited instances when a system already contained exceptions “such that, in the circumstances, one further exception is unlikely to matter.”
Thus, even though an accommodation that requires superseding a seniority rule is ordinarily considered unreasonable, an employer who has made exceptions to a seniority rule in the past should be prepared to do so again as a reasonable accommodation.