NCD 

National Council on Disability 

Policy Brief Series: Righting the ADA 

No. 10

Reasonable Accommodation After Barnett

March 5, 2003
Table of Contents 

Synopsis 

Introduction 

Barnett and Seniority 

Barnett and Reasonable Accommodation 

Barnett Aftermath 

Criteria for “reasonable” 

Evidentiary Burden on Plaintiff 

Conclusion 

Post-Script 

2
Reasonable Accommodation after Barnett

Synopsis 

In the recent decision of U.S. Airways, Inc., v. Barnett, the U.S. Supreme Court 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. The decision is troubling because it allows 

employers to evade providing accommodations that do not cause an “undue hardship,” by 

endorsing a separate “reasonableness” standard into the law’s requirement for reasonable 

accommodation. While the “undue hardship” defense was extensively studied and specific 

factors negotiated during the legislative process, the “reasonableness” standard created by the 

Court is subject to subjective and therefore arbitrary decision making. This is all the more 

problematic because the U.S. Supreme Court reasoning is being stretched by the lower courts 

beyond the situation of seniority or even employment. This paper will address the implications 

of Barnett by examining the impact of the decision on recent appellate cases. The paper 

concludes with a brief discussion of some of the larger economic and social issues raised when 

historically established employment priorities such as seniority are accorded precedence over the 

civil rights goals of the ADA. 

Introduction 

Title I of the Americans with Disabilities Act (ADA)1

 was intended to level the 

employment playing field in the United States for people with disabilities,2 and critical to this 

goal is the right to reasonable accommodation3

. By enumerating a list of possible 

accommodations available under the ADA and explicitly including “reassignment,”4 Congress 

differentiated between the meaning and scope of reasonable accommodation under the ADA and 

prior court interpretations of the same term under the Rehabilitation Act.5 Title I also enlarged 

the scope of the Rehabilitation Act’s non-discrimination mandate by applying it to the private 

sector as well as the public sector,6 and by making it clear that the obligations of the law 

extended to all major players in the workforce, including labor unions.7

 Furthermore, the ADA— 

unlike Title VII of the Civil Rights Act8

 and the Age Discrimination in Employment Act 

(ADEA)9

—does not make any exemption for the provision of reasonable accommodation due to 

the operation or requirements of bona fide seniority systems. 

Most courts faced with apparent conflict between the ADA’s reasonable accommodation 

rights and collectively bargained rights have maintained a traditional preference for giving 

priority to collectively bargained rights despite the ADA’s stated legislative goals, broader 

mandate, and indications from the Congressional record.10 In the twelve years since the ADA’s 

enactment, numerous scholars have called attention to the possibility for conflict between the 

ADA and the National Labor Relations Act (NLRA)11 and have called on courts to clarify how 

job reassignment under the ADA interacts with seniority-imposed priorities for filling 

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employment vacancies.12 

In U.S. Airways, Inc., v. Barnett,

13 the U.S. Supreme Court finally addressed the 

interaction of job reassignment under the ADA and seniority systems. The case did not involve 

collective bargaining or union rights, though for the general public and most of the media, this 

detail was lost in the mis-characterization of the decision as a stark confrontation between 

seniority rights and disability rights14. The Supreme Court’s reasoning, while not appearing to 

give a complete victory to seniority systems over job reassignment for employees with 

disabilities, ignores certain aspects of the congressional record, and gives lower courts an almost 

unfettered discretion to extrapolate from Barnett’s holding on reasonable accommodation, vis a 

vis seniority systems, to any other accommodations that could have an impact on fellow 

employees. Moreover, the decision’s implications potentially stretch beyond Title I and 

employment issues to other rights recognized under the ADA. 

This paper will examine the implications of the Barnett decision, especially in light of 

prior circuit court decisions on reasonable accommodation, and look at how subsequent cases are 

interpreting Barnett. The paper will then address some of the larger issues raised by the case; 

what happens when the employment and economic goals of the ADA seem to clash with already 

established economic priorities and expectations; who has the higher “right” to a job when 

demand is higher than supply? If—as the legislative history acknowledges—people with 

disabilities have been economically and socially marginalized for decades, how could a place be 

made for these millions of previously excluded people without having any effect on those who 

are already within the economic mainstream? 

Barnett and Seniority 

The facts in Barnett raised a conflict between a worker’s job reassignment under the 

reasonable accommodation provisions of the ADA and an employer’s seniority rules. Robert 

Barnett had been employed as a cargo handler for U.S. Airways for ten years when he injured his 

back, thereafter transferring under U.S. Airways’ unilaterally adopted personnel policy to a less 

physically demanding mailroom position that accommodated his disabilities. Two years later, 

Barnett learned that his position was going to become open for bid under the seniority system 

established under that same personnel policy. He also learned that two employees with greater 

seniority intended to bid for his mailroom job. Barnett asked U.S. Airways to not place the 

mailroom position up for bid as an accommodation to Barnett’s disability. After some months of 

consideration, U.S. Airways rejected his request, refusing also to provide alternative 

accommodations such as lifting equipment that could have enabled Barnett to perform a cargo 

position job for which he had adequate seniority. Barnett lost his job and brought an action under 

Title I of the ADA. The district court granted U.S. Airways summary judgment upon concluding 

that modification of a seniority system constitutes per se “undue hardship” under the ADA to 

both the employer and other non-disabled employees. The district court’s decision was affirmed 

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on appeal to the 9th Circuit 15 and subsequently reversed in an en banc rehearing. The en banc 

panel concluded that the presence of a seniority system was only one factor to consider in the 

undue hardship analysis.16 

The U.S. Supreme Court framed the issue before them as a potential conflict between 

“the interests of a disabled worker who seeks assignment to a particular position as a ‘reasonable 

accommodation’” and “the interests of other workers with superior rights to bid for the job under 

an employer’s seniority system.”17 The majority decision resolved this conflict not by analyzing 

the statutory factors set forth to determine whether an accommodation would pose an “undue 

hardship,”18 but instead, imported a “reasonableness” standard from the term “reasonable 

accommodation.” The court stated: 

The statute does not require proof on a case-by-case basis that a seniority system 

should prevail. That is because it would not be reasonable in the run of cases that 

the assignment in question trump the rules of a seniority system. To the contrary, 

it will ordinarily be unreasonable for the assignment to prevail.19 

The seniority system and personnel policy at issue in Barnett was one that had been 

unilaterally adopted by an employer. The U.S. Airways Agent Personnel Policy Guide stated that 

it was not intended to be a contract, and did not create legally enforceable obligations for 

continued employment. U.S. Airways reserved the right to change any and all of its stated 

policies and procedures at any time without advance notice.20 The Supreme Court was not 

required to read these facts as an actual or potential conflict between the rights of employees 

since the seniority system in this case did not purport to give any employee vested or legally 

enforceable rights that could interfere with the accommodation rights given by the ADA.21 The 

Supreme Court’s intention to develop a new interpretive approach that encompassed not only the 

interaction of seniority rights and job reassignment, but also the concept of reasonable 

accommodation is signaled by its decision to read the central issue as a direct conflict between 

the rights of employees, and its subsequent bypassing of any need for analyzing seniority under 

the employer’s undue hardship defense. 

Barnett and Reasonable Accommodation 

The term “reasonable accommodation” is a term of art that was previously used in the 

Rehabilitation Act Section 504 regulations. It describes types of accommodations which an 

employee with a disability may need in order to have an equal opportunity to succeed in an 

employment position.22 The focus of the phrase has always been employee need.23 The phrase 

“undue hardship,” which established a limit to an employer’s obligation to provide reasonable 

accommodation, was also taken from the Section 504 regulations. Virtually all discussion and 

debate about how an employer could defend itself against a claim for accommodation centered 

around the “undue hardship” definition.24 In other words, “reasonable” was never considered by 

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Congress or the drafters of the legislation as an independent modifier for the kinds of 

accommodation that employers were legally obligated to provide under the ADA. 

A number of circuit courts had considered aspects of reasonable accommodation, 

including Congress’s understanding of the legislative scheme, prior to Barnett, though not 

always within the context of seniority.25 In developing a new approach to reasonable 

accommodation, the Supreme Court conclusively addressed some of the issues that previous 

circuit decisions had raised and about which no judicial consensus had previously emerged. 

First, the Court firmly acknowledged that an accommodation cannot automatically be deemed 

unreasonable merely because it requires the employer to give a “preference”—in the sense of 

different treatment—to employees with disabilities. Second, the court gave independent 

significance to “reasonable” as a modifier of accommodation. In the majority opinion of Justice 

Breyer: 

The simple fact that an accommodation would provide a “preference”—in the

sense that it would permit the worker with a disability to violate a rule that others

must obey—cannot, in and of itself, automatically show that the accommodation

is not “reasonable.”

. . . .

. . . in ordinary English the word “reasonable” does not mean “effective.” It is the

word “accommodation,” not the word “reasonable,” that conveys the need for

effectiveness. . . . The statute refers to an “undue hardship on the operation of the

business.” Yet a demand for an ineffective accommodation could prove

unreasonable because of its impact, not on business operations, but on fellow

employees – say because it will lead to dismissals, relocations, or modification of

employee benefits to which an employer, looking at the matter from the

perspective of the business itself, may be relatively indifferent.26

The ADA states in considerable detail the kinds of financial, administrative and structural 

factors that courts should consider when deciding whether an accommodation will place an 

undue hardship on employers.27 The ADA’s legislative history also shows that Congress 

considered, and chose not to include as “reasonable,” certain kinds of effective accommodations, 

even though their provision might not cause undue hardship in specific circumstances (i.e., 

redistributing essential functions, creating new positions, providing personal prosthetic 

devices.)28 Neither the legislative text nor history mention modification of seniority policies as 

inherently unreasonable, yet the Supreme Court concluded that “to show that a requested 

accommodation conflicts with the rules of a seniority system is ordinarily to show that the 

accommodation is not ‘reasonable’.”29 

The determination that accommodations under the ADA must be “reasonable” as well as 

not impose an undue hardship on employers, immediately raises at least two further questions. 

First, what are the criteria by which “reasonable” will be judged? Second, what is the impact of 

this finding on the evidentiary burden carried by plaintiff employees who must establish that 

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their requests are reasonable accommodations—are employees placed in the difficult position of 

having to prove the absence of any negative effect on an employer’s personnel policies or on 

other employees? While these questions are clearly related, this paper will first consider how 

they have been answered previously by two circuit courts, and then look more closely at the 

implications of the Supreme Court’s opinion on the issues. 

The 7th Circuit in Vande Zande v. State of Wisconsin Department of Administration30 was 

the first circuit court to import considerations of proportionality into the term “reasonable.” 

Vande Zande involved an employee whose paralysis made her prone to developing pressure 

ulcers that required home stay for several weeks. During one such period, Vande Zande worked 

from home for eight weeks using a laptop computer, and was provided with enough work to be 

able to make up all but 16.5 hours of full time work. She then had to make up the 16.5 hours out 

of sick leave, which she could otherwise have carried forward indefinitely. Vande Zande also 

worked on a floor in which the pre-ADA built kitchen sink was set two inches higher than the 34 

inches convenient for a person in a wheelchair, though she did have access to a nearby bathroom 

sink that was 34 inches high. While Vande Zande’s workplace made some accommodations for 

her disability, her supervisor refused to provide Vande Zande with a desktop computer for her 

home (which she believed would enable her to make up all her full time hours during periods of 

home stay) and would not spend approximately $150 to lower the kitchen sink on Vande Zande’s 

floor. 

The district court entered summary judgment for the employer, and the 7th Circuit 

affirmed the decision on the grounds that the employee’s requested accommodations were not 

“reasonable” as a matter of law. Employers were not required “to expend even modest amounts 

of money to bring about an absolute identity in working conditions between disabled and 

nondisabled workers,” but were only obligated to do “what is necessary to enable the disabled 

worker to work in reasonable comfort.”31 This declaration seems to establish an amorphous 

“reasonable comfort” limitation on accommodations, one that is wholly disconnected from the 

employer’s undue hardship defense, and not even clearly connected to the employee’s subjective 

comfort level or freedom from discrimination at work. What is the standard for deciding when a 

worker with a disability is able to work “in reasonable comfort”?32 

An example of the arbitrariness of the “reasonable” standard is the court’s assumption 

that the plaintiff’s request to periodically work at home as an accommodation to flare ups in her 

disability was not reasonable. The court simply stated, without any evidentiary proof, that 

“[m]ost jobs in organizations public or private involve team work under supervision rather than 

solitary unsupervised work, and team work under supervision generally cannot be performed at 

home without a substantial reduction in the quality of the employee’s performance. This will no 

doubt change as communications technology advances, but is the situation today. . . . An 

employer is not required to allow disabled workers to work at home, where their productivity 

inevitably would be greatly reduced.”33 This pronouncement came during a decade of rapidly 

expanding telecommunications options that allowed many different kinds of employees the 

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option of performing their work functions outside of a centralized workplace. Even without a 

desktop computer, the plaintiff in Vande Zande managed to work all but 16.5 hours out of her 

home in an eight week period. It is difficult to understand how the court could then draw the 

conclusion that it is generally not reasonable to allow employees to work at home. 

In its analysis, the Vande Zande court rejected the contention that “reasonable 

accommodation” is a term that collectively means only an apt or efficacious modification 

required by the employee with a disability. Instead the court advanced the idea that “‘reasonable’ 

may be intended to qualify (in the sense of weaken) ‘accommodation’ in just the same way that 

if one requires a ‘reasonable effort’ of someone this means less than the maximum possible 

effort, or . . . requires something less than the maximum possible care.”34 The court reasoned that 

even if an accommodation would not be an “undue hardship” on the employer it could still be 

unreasonable. The court compares costs to the relative benefit to the employee, a consideration 

which is not a factor in the undue hardship analysis.35 Ultimately , the court found that: 

[C]osts enter at two points in the analysis of claims to an accommodation. The 

employee must show that the accommodation is reasonable in the sense both of 

efficacious and of proportional to costs. Even if this prima facie showing is made, 

the employer has an opportunity to prove that upon more careful consideration the 

costs are excessive in relation either to the benefits of the accommodation or to 

the employer’s financial survival or health.36 

Subsequently, in Aka v. Washington Hospital Center,

37 the D.C. Circuit Court considered 

the issue of the potential priority conflict between reasonable accommodation requirements and 

requirements of collective bargaining agreements. The majority in this en banc decision did not 

address the particulars of which factors could be considered under a determination of whether a 

requested accommodation is “reasonable.” The majority simply decided that reassignment to a 

vacant position in the particular case did not necessarily require violation of the collective 

bargaining agreement in question, and was therefore not prima facie unreasonable. Thus, it also 

did not constitute grounds for granting summary judgment. In Aka, the full D.C. Circuit 

considered “reasonable accommodation” in the context of Plaintiff’s status as an employee who 

had worked for 19 years as an operating room orderly before undergoing bypass surgery, after 

which, he was restricted to work that involved a “light or moderate level of exertion.” The 

hospital employer declined to transfer the plaintiff to a job compatible with his medical 

restrictions. Plaintiff was instructed to apply for vacant jobs as the hospital posted them. The 

district court granted summary judgment to the employer on a number of grounds.38 The court 

found that the hospital’s collective bargaining agreement prevented the hospital from reassigning 

employees with disabilities outside of the agreement’s usual job-application process. Any 

conflict between the job reassignment obligations under the ADA and other employees’ rights 

under the collective bargaining agreement had to be resolved in favor of the agreement.39 On 

appeal, a majority of the 7th Circuit panel reversed the reasonable accommodation decision.40 The 

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hospital moved for a rehearing en banc. The panel decision was upheld by a majority of the full 

circuit. 

The full D.C. Circuit refused to assign priority to either the collective bargaining 

agreement or the ADA based on a finding of insufficient facts to determine if a conflict existed 

in the case before them. Implicit in this decision is the understanding that there is no pre-existing 

legal principle that automatically gives priority to either the ADA or the collective bargaining 

agreement in the event of a conflict between the action that each requires of employers. 

According to the D.C. Circuit, such a conflict should be determined and resolved on a case-bycase factual analysis. The majority then applied this understanding by first analyzing the 

hospital’s collective bargaining agreement. In particular, the circuit court noted that the 

collective bargaining agreement contained a provision stating that any employee who became 

disabled and consequently unable to perform a job “shall be reassigned to another job he is able 

to perform whenever, in the sole discretion of the Hospital, such reassignment is feasible and 

will not interfere with patient care or the orderly operation of the Hospital.” The circuit court 

also reasoned that whenever possible, collective bargaining agreements should be interpreted so 

as to be consistent with other federal laws. Since the collective bargaining agreement seemed to 

give the employer the discretion and right to reassign employees with disabilities in at least some 

circumstances, there was no need to consider whether the agreement would allow for 

reassignment in every case where it is mandated by the ADA. 

Second, the D.C. Circuit Court refuted the hospital’s interpretation of the ADA’s text. In 

so doing, it was pointed out that “reassign” under the ADA “must mean more than allowing an 

employee to apply for a job on the same basis as everyone else.”41 Additionally, the circuit court 

emphasized that since the ADA already prohibits discrimination in job application procedures, 

such a narrow interpretation of “reassignment” would render the provision meaningless as a 

reasonable accommodation. Furthermore, the court rejected the hospital’s argument that the 

ADA can never be interpreted so as to require employers to give a “preference” to an employee 

with a disability. The majority acknowledged the legislative history’s warning against giving 

preferences to applicants with disabilities, but distinguished this from “[t]he ADA’s reasonable 

accommodation requirement [which] treats disabled and non-disabled employees differently.” 

Different treatment under the ADA is not prohibited merely because it could be interpreted as a 

“preference.” The majority reasoned that such actions “need not always be highly disruptive to 

an employer’s operations or seriously infringe the interests of other employees.”42 

The Aka decision did not address key issues concerning reasonable accommodation under 

the ADA, such as how evidentiary presumptions are raised and overcome by the parties and the 

extent to which courts can consider non-cost-related factors when addressing whether a request 

for a reasonable accommodation can be denied. However, the decision established an 

interpretive approach that recognized both the ADA’s legislative history and the structural 

intentions of its drafters. The fact that a requested accommodation may require different 

treatment for employees with disabilities was acknowledged, and the D.C. Circuit did not grant 

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independent significance to “reasonable” as a modifier of accommodations. Most importantly, 

the court refused to allow the mere possibility of conflict with a collective bargaining agreement, 

in and of itself, to overcome the accommodation mandate of the ADA. In this regard, even the 7th 

Circuit in Vande Zande did not adopt hard and fast rules for deciding when a requested 

accommodation would not be “reasonable” and therefore not required. Instead, both circuits 

emphasized a flexible need for proportionality. 

Barnett Aftermath 

Criteria for “Reasonable” 

By importing a reasonableness standard without definition, the Supreme Court creates, 

rather than eliminates or reduces, uncertainty in the ADA about when accommodations are 

required. The issues in Barnett concerned seniority systems and the majority’s decision 

emphasized “the importance of seniority to employee-management relations” and the benefits of 

“creating, and fulfilling, employee expectations of fair, uniform treatment.”43 However, now that 

the door is open, the reasonableness standard can be used outside of the seniority context. 

The extent to which the Barnett analysis could be extended outside of the seniority 

system analysis is demonstrated in Mays v. Principi.44 In the case, Mays, a staff nurse employed 

by Department of Veterans Affairs (VA), injured her back and was subsequently placed on a 10 

lb. lifting restriction. She was reassigned to a clerical job rather than to a nursing position that 

did not require patient care. Mays brought action under the ADA for a failure to provide 

reasonable accommodation. The 7th Circuit Court affirmed the district court’s granting of 

summary judgment to the VA, finding support in: 

[A] recent decision of the Supreme Court [Barnett] which holds that an employer 

is not required to give a disabled employee superseniority to enable him to retain 

his job when a more senior employee invokes an entitlement to it conferred by the 

employer’s seniority system. If for “more senior” we read “better qualified,” for 

“seniority system” we read “the employer’s normal method of filling vacancies,” 

and for “superseniority” we read “a break,” U.S. Airways becomes our case.45 

By simply equating “normal method of filling vacancies” with a “seniority system,” the 

decision bypasses any analysis of the employer’s “normal method.” Seniority rights have an 

established and historic place in employee-management relations, a judicial history of 

consideration,46 and a self-evident effect on the expectations and potentially legal rights of other 

employees. The manner in which the VA’s administration chose to fill vacancies, especially the 

particular vacancies in question in Mays v. Principi, generally may or may not have shared these 

factors in common with seniority systems. However, the 7th Circuit Court did not even seem to 

find it necessary to make the analysis. 

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This lack of critical analysis is especially ominous given the VA’s apparent lack of 

information concerning the existence, requirements, and availability of nursing positions in the 

VA that did not require patient care. The 7th Circuit Court ruled for the VA merely because it 

claimed to have better qualified applicants rather than existing employees with a legal right or 

expectation to the positions in question. In other words, the 7th Circuit ruled against Mays’ 

request for accommodation because even “assuming that she was qualified for such a job, if 

nevertheless there were better qualified applicants—the evidence is uncontradicted that there 

were—the VA did not violate its duty of reasonable accommodation by giving the job to them 

instead of to her.”47 

Fortunately, other circuit courts have not taken Barnett to such an unreasoned extreme. In 

Dilley v. SuperValu, Inc.,

48 the court considered a truck driver’s request for reassignment to a 

route that accommodated his back disability by not requiring lifting above 60 lbs. The employer 

argued that based on the Barnett decision, the employee’s request was prima facie unreasonable 

since it “would have required SuperValu to violate the terms of its collective bargaining 

agreement with the union representing its warehouse employees.”49 The 10th Circuit Court 

pointed out that “it is the direct violation of a seniority system that has been held unreasonable 

under the governing case law.”50 Based on such reasoning, the 10th Circuit Court thereby 

concluded that there was only a slim chance that the plaintiff—ranked 5th out of 42 drivers in 

seniority—might be placed in a position that is later requested by a more senior driver. The 

plaintiff’s present request for accommodation was not rendered unreasonable merely because it 

might potentially violate the seniority system if a more senior employee requested the plaintiff’s 

position. 

Other circuit decisions have had the opportunity to read Barnett broadly, but have 

similarly refused to extend the Supreme Court’s reasoning beyond the ambit of established 

seniority rights, or outside the context of a substantive motion to consider the merits of an ADA 

defense. The 3rd Circuit has declined to grant summary judgment to one employer who claimed 

that its neutral hiring procedure “policy” constituted a defense to an employee’s ADA claim 

because the employee did not follow the procedure when he requested a transfer.51 In essence, 

the 3rd Circuit Court refused to adopt the Supreme Court’s creation of a presumptive exception to 

reasonable accommodation requests that reshapes either the interactive accommodation 

procedure or the evidentiary defense burden that employers ordinarily must meet when they deny 

a prima facie reasonable accommodation.52 

The 10th Circuit considered an employer’s refusal to comply with an Equal Employment 

Opportunity Commission (EEOC) subpoena seeking information about job vacancies, and 

ultimately dismissed the employer’s contention that the existence of a collective bargaining 

agreement and a well-entrenched seniority system served to “take off the table” those positions 

for which the plaintiff sought information; therefore, rendering the information irrelevant.53 The 

court’s decision was influenced by its disinclination to allow the employer’s “request to litigate 

in a subpoena-enforcement proceeding a question that essentially goes to the merits of its ADA 

defense.”54 The 10th Circuit’s clear intimation that the employer’s mere assertion of a collective 

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bargaining agreement or prevailing seniority rights does not necessarily alter the defendant 

employer’s obligation to assert the merits of an ADA defense. This raises another critical issue 

not adequately addressed in Barnett: the evidentiary question of who bears the burden of 

establishing that a requested accommodation is or is not unreasonable? 

Evidentiary Burden on Plaintiff 

Both Dilley v. SuperValu and Mays v. Principi illustrate how deeply intertwined 

substantive and evidentiary issues are in reasonable accommodation cases. Under the ADA, the 

plaintiff must establish the denial of a reasonable accommodation, but the statute places the 

burden of proving the defense “undue hardship” on the employer.55 Placing such a practical 

burden of proof on defendant employers is justified by the fact that it is much easier for 

employers, given their position and access to records, to prove the presence of a business 

hardship than for employees to prove its absence. Since the Supreme Court in Barnett decided 

that requests for modification of a bona fide seniority system are presumptively not 

“reasonable,” the persuasive burdens established by the ADA have been reversed in this context. 

Employees either accept immediate defeat or must somehow meet the heavy burden of 

establishing the absence of unreasonableness. The Supreme Court attempted to reconcile the 

introduction of an evidentiary presumption of unreasonableness with the ADA’s statutory 

scheme of placing a defensive burden of proof on employers. The majority decided that even 

though the employer only needs to show the existence of a seniority system to raise the 

presumption that modification of it would be unreasonable, an employee “remains free to show 

that special circumstances warrant a finding that, despite the presence of a seniority system 

(which the ADA may not trump in the run of cases), the requested ‘accommodation’ is 

‘reasonable’ on the particular facts.56“ The Court mentioned that one way an employee could 

overcome the presumption is by showing as a matter of fact that the employer retains and 

frequently uses the unilateral right to alter the seniority system57. If an employee succeeds in 

overturning the presumption, then once again the employer cannot avoid providing 

accommodation without proving that doing so would be an undue hardship. 

The Supreme Court’s creation of an extra-legislative rebuttable per se exception to the 

ADA’s reasonable accommodation mandate has resulted in a situation that seems to favor 

employers, but does not necessarily require lower courts to let employers off the evidentiary 

hook. Most of the circuit decisions that have been decided after Barnett have paid more attention 

to the evidentiary framework established in the decision than to the question of what will be 

considered “reasonable” in the abstract. Notably, the decisions have mostly refused to grant 

summary judgment for defendants. 

The 3rd Circuit was one of the first appellate courts to implicitly interpret Barnett more 

narrowly.58 In Shapiro v. Township of Lakewood, the plaintiff employee worked as an emergency 

medical services technician until he injured his back lifting an elderly patient. He wrote a 

number of letters to his employer requesting “reasonable accommodation” and information about 

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available positions. The defendant employer’s only response was to advise Shapiro to go to the 

municipal building where vacant municipal positions were posted and apply for a position per 

the usual procedures. Even though the plaintiff established that at least five positions for which 

the plaintiff was qualified came open between his first request for accommodation to his 

bringing of legal action, the district court granted the employer’s request for summary judgment 

on the ground that the plaintiff did not apply for specific transfers by responding to the postings 

in accordance with the employer’s usual “policy.” Instead of directly addressing the 

characterization of the transfer procedure as a disability-neutral rule, the 3rd Circuit chose to 

emphasize the evidentiary process elaborated in Barnett where the court takes a “two-step 

approach for cases in which a requested accommodation in the form of a job reassignment is 

claimed to violate a disability-neutral rule of the employer.”59 That is, the lower court was not 

free to enter summary judgment against a plaintiff employee “simply because he did not comply 

with Lakewood’s policy regarding transfer applications.” The plaintiff must still be given the 

opportunity to show that the accommodation he requests is reasonable on its face. The fact that 

the Supreme Court found one type of requested accommodation—waiver of seniority system 

rules—prima facie unreasonable, did not mean that other types would also be found 

unreasonable. This conclusion is supported by the Supreme Court’s caveat that a plaintiff 

“remains free to show that special circumstances warrant a finding”60 that even a seniority 

system violation is reasonable on the facts of a particular case. 

In one of the most recent decisions in this area, the 10th Circuit dealt with an EEOC 

subpoena issued on behalf of an employee with diabetes whose 20 year employment with the 

defendant employer ended with the latter’s claimed inability to transfer the plaintiff to an 

equivalent position that would accommodate the restricted work schedule required by the 

plaintiff’s diabetes.61 Specifically, the employer refused to provide the EEOC with information 

relating to employees holding All-Purpose Clerk Checker positions (name, date of hire, date in 

that position, and years of seniority) in any of Defendant’s three store locations. The EEOC 

needed the information to determine whether the defendant could have offered the plaintiff a 

reasonable accommodation. The defendant asserted that the information regarding the two 

locations where the plaintiff had not worked was irrelevant. According to the defendant, their 

hiring at those locations was subject to a collective bargaining agreement under which “vacant” 

positions were already spoken for62. The 10th Circuit found that as a matter of fact, the collective 

bargaining agreement did not apply to the particular positions for which information was sought. 

The 10th Circuit Court rejected the defendant’s argument that the information was irrelevant 

because of an entrenched company policy that the other employees at any particular store 

location had a prevailing right to any vacancy occurring at that location. In the court’s analysis, 

“the information requested by the EEOC remains relevant . . . to determine whether there was in 

fact a position that was either not offered to any incumbents or not accepted by any incumbent.” 

In other words, the defendant’s bald assertion of policy did not foreclose the possibility that the 

employee’s requested transfer could have been factually reasonable. Further, the court explicitly 

distinguished between Midland Brake’s holding with regard to a collective bargaining 

agreement’s effect on the “vacancy” status of an open position, and the defendant’s attempt to 

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extend the holding to a unilaterally asserted employment policy, whether entrenched or not. The 

holding in Barnett, taken at its broadest, could have been interpreted as providing support to the 

defendant’s position since Barnett did not distinguish between the rights established under 

collective bargaining agreements and those given under unilaterally imposed employer seniority 

systems. However, the 10th Circuit only cited the Supreme Court for the proposition that an 

accommodation cannot be rendered not “reasonable” by the mere fact that it would result in a 

“preference.63“ Also of interest is the fact that the 10th Circuit rebuked the defendant for trying 

“to turn a summary subpoena-enforcement proceeding into a mini-trial by . . . interpos[ing] 

defenses that are more properly addressed at trial.”64 The clear implication is that an employer’s 

assertion that an entrenched store policy makes a requested accommodation unreasonable 

remains something that must be asserted and established by defendants at trial. Still, the 10th 

Circuit’s reasoning in this context does not foreclose summary judgment for the employer if the 

requested position was desired by an employee with more seniority. 

Mays v. Principi interpreted the evidentiary principles set out in Barnett in a particularly 

invidious way. The defendant employer merely gave evidence that there were more qualified 

applicants for the positions that plaintiff employee requested as an accommodation. There was 

no further inquiry into how, or by whom, those positions were actually filled. Yet, such evidence 

was held sufficient for obtaining summary judgment. On the other hand, a number of other 

circuit courts have interpreted Barnett in ways that actually help the plaintiff—softening the preBarnett situation whereby some circuits had applied a pure per se exception rule once seniority 

system or collective bargaining rights had been established. A few circuits refer to Barnett in 

rather idiosyncratic ways. The 9th Circuit, in Zivkovic v. Southern California Edison Company 

simply used the Supreme Court’s Barnett decision as an implicit (explicit in Justice Stevenson’s 

concurring judgment) affirmation of the 9th Circuit’s interpretation of the interactive process as 

an independent requirement of the ADA’s reasonable accommodation provision.65 The 7th Circuit 

in Oconomowoc Residential Programs, Inc., v. City of Milwaukee, deciding an ADA Title II and 

Fair Housing Amendments Act case that occurs completely outside of the employment context, 

cites Barnett for the proposition that “[t]he burden is on the plaintiffs to show that the 

accommodation it seeks is reasonable on its face.”66 Further, Barnett is cited for the proposition 

that after the plaintiff succeeds in its prima facie showing, “the defendant must come forward to 

demonstrate unreasonableness or undue hardship in the particular circumstances.” Oconomowoc 

therefore reveals the clear danger that Barnett’s requirement for “reasonableness” will be 

extended beyond the employment arena, providing courts the interpretive license to impose 

limits on all rights extended under the ADA simply by deciding whether a given accommodation 

or modification is “reasonable.” 

Conclusion 

Fundamentally, Barnett elevates workplace norms over individualized assessment. As a 

remedial measure for historic and systemic discrimination against people with disabilities, the 

ADA requires “reasonable accommodation.” Reasonable accommodation is not direct 

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“affirmative action”. Rather, it requires individualized assessments of what a job requires and 

what a given person with a disability can do. If the Court elevates American workplace goals of 

consistency and impersonal rule-based management above individual assessment, seniority and 

other union-based rules will always have the advantage over ADA and other civil rights laws67. 

The Supreme Court stated that: 

[T]o require the typical employer to show more than the existence of a seniority 

system might well undermine the employees’ expectations of consistent, uniform 

treatment – expectations upon which the seniority system’s benefits depend. That 

is because such a rule would substitute a complex case-specific “accommodation” 

decision made by management for the more uniform, impersonal operation of 

seniority rules.68 

The Supreme Court refuses to place a greater evidentiary burden on employers with 

regard to seniority systems other than showing they exist, because the court is afraid of 

undermining employee expectations, and does not want to encourage employers to “substitute a 

complex case-specific ‘accommodation’ decision made by management for the more uniform, 

impersonal operation of seniority rules.” Yet, such an individualized approach lies at the very 

heart of ADA reasonable accommodation. The court is essentially making a value decision: it is 

more important to preserve impersonal systemic rules than evaluate the real abilities of 

individuals with disabilities and the essential requirements of jobs. This is the message that many 

lower courts will pick up on, and the process has already begun: Mays v. Principi. 

Post-Script 

Robert Barnett first learned in 1992 that his job at U.S. Airways was being opened for 

seniority bidding. Six months later, U.S. Airways officially refused his request for 

accommodation under the ADA. Ten years later, the U.S. Supreme Court decided that employer 

seniority rules take precedence over ADA reassignment rights “in the run of cases.”69 Since 

being laid off by U.S. Airways in 1993, Mr. Barnett’s life essentially has been placed on hold. 

He has been both unemployed and underemployed, working in temporary data entry, property 

maintenance and seasonal positions.70 Currently in his 40s, he essentially faces the same bleak 

employment statistics that people with disabilities face generally, despite his experience and 

proven 12 year employment record with U.S. Airways. Furthermore, the Supreme Court’s 

remand of his case to district court has been stayed due to U.S. Airways’ declaration of 

bankruptcy in the fall of 2002. 

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The National Council on Disability wishes to acknowledge the contributions of Arlene 

Mayerson, Directing Attorney, Disability Rights Education and Defense Fund (DREDF), 

Berkeley, California, and Silvia Yee, DREDF International Law Fellow, to this topic 

paper. 

1. 42 U.S.C. §§ 12101 et seq. 

2. Congress found that “discrimination against individuals with disabilities persists in such 

critical areas as employment” and that “census data, national polls, and other studies have 

documented that people with disabilities, as a group, occupy an inferior status in our society, and 

are severely disadvantaged socially, vocationally, economically, and educationally.” One of the 

purposes of the ADA was “to provide a clear and comprehensive national mandate for the 

elimination of discrimination against individuals with disabilities.” See 42 U.S.C. §§ 12101 

(a)(3), (a)(6) and (b)(1). 

3. “The term ‘reasonable accommodation’ may include: 

(A) making existing facilities used by employees readily accessible to and usable by 

individuals with disabilities; and 

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant 

position, acquisition or modification of equipment or devices, appropriate adjustment or 

modification of examinations, training materials or policies, the provision of qualified 

readers or interpreters, and other similar accommodations for individuals with 

disabilities.” 42 U.S.C. § 12111(9). See also 29 C.F.R. § 1630.2(o). 

4. See 42 U.S.C. § 12111(9): “The term ‘reasonable accommodation’ may include: . . . 

reassignment to a vacant position . . .” See also H.R. REP. NO. 485(II), 101st Cong., 2d Sess. at 

63 (199), reprinted in 1990 U.S.C.C.A.N. 267, 345: “Reasonable accommodation may also 

include reassignment to a vacant position. If an employee because of disability, can no longer 

perform the essential functions of the job that she or he has held, a transfer to another vacant job 

for which the person is qualified may prevent the employee from being out of work and [the] 

employer from losing a valuable worker. Efforts should be made, however, to accommodate an 

employee in the position that he or she was hired to fill before reassignment is considered.” 

5. 29 U.S.C. § 794(a). See also 29 C.F.R. § 1613.704(b)(1)-(2) (1995): “[r]easonable 

accommodation may include, but shall not be limited to: (1) Making facilities readily accessible 

to and usable by handicapped persons, and (2) job restructuring, part-time or modified work 

schedules, acquisition or modification of equipment or devices, appropriate adjustment or 

modification of examinations, the provision of readers or interpreters, and other similar actions.” 

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Compare with the scope of “reasonable accommodation” under the ADA, 42 U.S.C. § 12111(9). 

6. The ADA applies to all business entities that employ fifteen or more persons: 42 U.S.C. 

§ 12111(5)(A)(1994).

7. See § 12111(2).

8. Under Title VII, employers may “apply different standards of compensation, or different

terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit

system”: 

42 U.S.C. § 2000e-2(h)(1994). ADEA states that “[i]t shall not be unlawful for an employer,

employment agency, or labor organization . . . to observe the terms of a bona fide seniority

system”: 29 U.S.C. § 623(f)(2)(1994).

9. 29 U.S.C. § 621 et seq.

10. S. REP. No. 116 at 32: “the provision of all types of reasonable accommodations is essential

to accomplishing the critical goal of this legislation – to allow individuals with disabilities to be

part of the economic mainstream of our society.”

11. 29 U.S.C. §§ 151-169 (1994).

12. See for example R. Bales, “Title I of the Americans with Disabilities Act: Conflicts Between

Reasonable Accommodation and Collective Bargaining,” in 2 Cornell J. of L. and Pub. Pol’y

161; Brian P. Kavanaugh, “Collective Bargaining Agreements and the Americans with

Disabilities Act: A Problematic Limitation on ‘Reasonable Accommodation for the Union

Employee,” 1999 U. Ill. L. Rev. 751.

13. 122 S.Ct. 1516 (2002). 

14. Headlines like “Justices: Seniority trumps disability - In S.F. case, Supreme Court limits 

law’s scope,” Bob Egelko, San Francisco Chronicle, April 30, 2002, and “Does Seniority Trump 

Accommodation,” Business Resource Center, USA at 

http://www.brcweb.net/test/informed_management_seniority.html follow a trend of presenting 

ADA issues as direct conflicts between the rights of people with disabilities and the rights of 

everyone else. The tendency to perceive disability rights as a kind of “privilege” that requires 

infringing on “normal” rights is especially prevalent in a time of economic slow-down and 

increasing unemployment when a “survival of the fittest” attitude flourishes. 

15. 196 F.3d 979 (9th Cir. 1998, as am. 1999). 

16. 228 F.3d 1105 (9th Cir. 2000). 

17. 122 S.Ct. 1516, 1519 (2002). 

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18. See 42 U.S.C. 12111(10)(B): In determining whether an accommodation would impose an

undue hardship on a covered entity, factors to be considered include:

(i) the nature and cost of the accommodation needed under this Act;

(ii) the overall financial resources of the facility or facilities involved in the provision of the

reasonable accommodation; the number of persons employed at such facility; the effect on

expenses and resources, or the impact otherwise of such accommodation upon the operation of

the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a

covered entity with respect to the number of its employees; the number, type, and location of its

facilities; and

(iv) the type of operation or operations of the covered entity, including the composition,

structure, and functions of the workforce of such entity; the geographic separateness,

administrative or fiscal relationship of the facility or facilities in question to the covered entity.

19. Id. at 1518.

20. Brief for Respondent at 2, U.S. Airways, Inc., v. Barnett, 122 S.Ct. 1516 (2002) (No. 00--

1250).

21. The American Federation of Labor and Congress of Industrial Organizations, a federation of

66 national and international labor organizations, filed an Amicus brief in support of Barnett,

pointing out that collectively bargained “seniority rights are judicially enforceable by the

employees as a matter of federal law, and employers are forbidden from unilaterally modifying

such rights until certain statutory conditions are fulfilled” but “an employer-initiated ‘seniority

policy’ is merely a non-binding guideline for the exercise of management discretion.” Brief of

the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae in

Support of Respondent at 6, U.S. Airways, Inc., v. Barnett, 122 S.Ct. 1516 (2002) (No. 00--

1250).

22. 42 U.S.C. § 12111(9), supra note 3.

23. The Equal Employment Opportunity Commission (EEOC) regulations on the ADA state that: 

“1) The term reasonable accommodation means:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with

a disability to be considered for the position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under

which the position held or desired is customarily performed, that enable a qualified individual with

a disability to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy 

equal benefits and privileges of employment as are enjoyed by its other similarly situated employees 

without disabilities.” 29 C.F.R. § 1630.2(o). 

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24. “The term ‘undue hardship’ means an action requiring significant difficulty or expense, when 

considered in light of the factors set forth in subparagraph (B)”: 42 U.S.C. 12111(10). 

Subparagraph (B) lists four factors, which broadly speaking, relate to financial considerations, 

see supra note 18. “Undue hardship” was the topic of considerable debate at the ADA’s 

enactment. See for example 135 Cong. Rec. S10735, S10736 (daily ed. Sept. 7, 1989) 

(Statements of Sens. Hatch and Harkin); 135 Cong. Rec. S10773 (daily ed. Sept. 7, 1989) 

(Statements of Sens. Helms and Harkin); 136 Cong. Rec. H2429 (daily ed. May 17, 1990) 

(Statement of Rep. Bartlett); and 136 Cong. Rec. H2471-H2475 (daily ed. May 17, 1990) 

(Debate on Rep. Olin Amendment to Put Cap on Undue Burden). 

25. See for example Vande Zande v. State of Wisconsin Department of Administration, 44.F.3d 

538 (7th Cir. 1996), and Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998). 

26. 122 S.Ct. 1516, 1521-22 (2002). 

27. See 42 U.S.C. § 12111(10)(A). 

28. See 42 U.S.C. § 12111(8), (9); S.REP. No. 116 at 31, 33. 

29. 122 S.Ct. 1516, 1519 (2002). 

30. 44 F.3d 538 (7th Cir. 1996). 

31. Id. at 546. 

32. At trial, the district court was concerned with the plaintiff’s potentially endless list of 

picayune accommodations, none of which involved any degree of undue hardship for the 

employer. The problem with the court’s reasoning is that it continues to mis-characterize 

accommodations as a kind of charitable favor on the part of the employer; employers could stop 

short of providing further accommodations once they had expanded enough ‘goodwill’ on an 

employee. 

33. Id. at 544-45. 

34. 44.F.3d 538, 542 (7th Cir. 1996). 

35. Id. at 542-43. 

36. Id. at 543. 

37. 156 F.3d 1284 (D.C. Cir. 1998). 

38. Much of the case, at all levels of hearing, revolved around the evidentiary standard that an 

employment discrimination plaintiff must meet to survive summary judgment once the employer 

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has provided a legitimate, nondiscriminatory reason for his actions. 

39. Aka v. Washington Hospital Center, 1996 WL 435026 (D.C. Dist.). 

40. Aka v. Washington Hospital Center, 116 F.3d 876 (D.C. Cir. 1997). 

41. 156 F.3d 1284, 1304 (D.C. Cir. 1998). 

42. Id. at 1305 (fn. 29). The majority’s last point was given significant weight in the dissenting 

opinion of Silberman, J. (joined by Williams and Ginsburg, JJ.), who argued for a narrow 

understanding of “reassignment to a vacant position” as merely the chance to compete on equal 

terms for a vacant position, as this “fits in with the common theme of regulating the relationship 

between disabled employee and employer without directly affecting non-disabled employees.” 

43. Id. at 1524. 

44. 301 F.3d 866 (7th Cir. 2002). 

45. Id. at 872. 

46. A number of courts have given collectively bargained seniority systems priority over the 

similarly-worded accommodation rights accorded under Title V of the Rehabilitation Act, 29 

U.S.C. § 790 et.seq. See Shea v. Tisch, 870 F.2d 786, 790 (1st Cir. 1989); Carter v. Tisch, 822 

F.2d 465 (4th Cir. 1987); Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir. 1985). 

Cases that address collectively bargained seniority systems in the context of the ADA have 

generally reached the same conclusion: Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th 

Cir. 1999); Feliciano v. Rhode Island, 160 F.3d 780 (1st Cir., 1998). 

47. 301 F.3d 866, 872 (7th Cir. 20002). 

48. 296 F.3d 958 (10th Cir. 2002). 

49. Id. at 963. 

50. Id. 

51. Shapiro v. Township of Lakewood, 292 F.3d 356 (3rd Cir. 2002). 

52. Id. at 360-61. 

53. Equal Employment Opportunity Commission v. Dillon Companies, Inc., 2002 WL 31516342 

at 5 (10th Cir. 2002). 

54. Id. 

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55. Board of Trustees of The Univ. of Ala. v. Garrett, 121 S.Ct. 955, 967 (2001). 

56. 122 S.Ct. 1516, 1525 (2002). 

57. Id. 

58. Shapiro v. Township of Lakewood, 292 F.3d 356 (3rd Cir. 2002). 

59. Id. at 361. 

60. U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516, 1525 (2002). 

61. Equal Employment Opportunity Commission v. Dillon Companies, Inc., 2002 WL 31516342 

(10th Cir. 2002). 

62. The Defendants cited Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999) in 

support of this proposition. This approach was endorsed by Justice O’Connor in her concurring 

majority opinion in Barnett, 122 S.Ct. 1516, 1526-28 (2002). 

63. Equal Employment Opportunity Commission v. Dillon Companies, Inc., 2002 WL 

31516342, at 5 (10th Cir. 2002). 

64. Id. at 5. 

65. 2002 WL 31027935, at 7 (9th Cir. 2002). The 9th Circuit acknowledged that the district court, 

which had granted the Defendant employer’s summary judgment motion, did not have the 

benefit of the Barnett ruling, but in its own decision barely references the Supreme Court 

decision, mentioning only that it vacated the 9th Circuit’s own Barnett decision on other grounds. 

66. 2002 WL 1811325, at 7 (7th Cir. 2002). Oconomowoc involved the city of Milwaukee’s 

denial of a zoning variance for the plaintiff’s operation of a community living facility for brain 

injured and developmentally disabled individuals in the city. The proposed facility was for a sixperson home with non-live-in, 24-hour staff, and required a waiver of the city’s ordinance 

restricting group homes from operating within 2500 feet of one another. The plaintiffs brought 

their case under the Fair Housing Amendments Act (FHAA) and the ADA. The FHAA does use 

the actual phrase “reasonable accommodation” in its definition of unlawful discrimination (“a 

refusal to make reasonable accommodations in rules, policies, practices, or services, when such 

accommodations may be necessary to afford such person equal opportunity to use and enjoy a 

dwelling”: 42 U.S.C., § 3604(f)(3)(B)). Title II of the ADA actually uses the phrase “reasonable 

modifications”, and the regulations interpreting Title II require public entities to “make 

reasonable modifications in policies, practices, or procedures when the modifications are 

necessary to avoid discrimination on the basis of disability, unless the public entity can 

demonstrate that making the modifications would fundamentally alter the nature of the service, 

program or activity”: 42 U.S.C. §12115(2). While the 7th Circuit has interpreted substantive 

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requirements for reasonable accommodation under the FHAA and the ADA as comparable (see 

Dadian v. Village of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001)), by simply citing Barnett in a 

Title II case without any actual analysis, the 7th Circuit in Oconomowoc potentially opens the 

door to importing the Supreme Court’s specific reading of “reasonable accommodation,” and 

general rationale for developing per se exceptions to accommodation in the employment context, 

to reasonable modifications required under Title II. 

67. There is the further point that the exclusion of people with disabilities from the workforce 

means that all aspects of the workforce as it has historically evolved, including seniority rules, 

can be understood as having a negative impact on employees with disabilities. Vikram David 

Amar & Alan Brownstein (“Reasonable Accommodations Under the ADA” in 5 Greenbag 2d 

361, 366 (2002)), in analyzing Justice Scalia’s dissent in Barnett, point out: 

Don’t seniority rules “bear more heavily” on disabled workers because such workers 

have shorter work histories with particular employers, in part due to an historical (and 

economically rational) pre-ADA unwillingness by employers to modify workplace rules 

to accommodate the physical needs of the disabled? Don’t disabilities alter a person’s 

vocational path and make longevity at any one employer less likely? Robert Barnett may 

be the exception – he became disabled after he was employed and remained (or rather 

tried to remain) with his existing employer. But don’t seniority rules more generally hurt 

disabled persons more than others and thereby pose “distinctive” problems for the 

disabled? 

68. 122 S.Ct. 1516, 1524 (2002). 

69. 122 S.Ct. 1516, 1518 (2002). 

70. Personal Communication with Robert Barnett’s counsel, February 2, 2003. 

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