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Don’t count on seniority system to block reassignment of disabled

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in Discrimination and Harassment,Employment Law,Human Resources

After injuring his back while working in a cargo job for USAir, Robert Barnett used his seniority to transfer to the company's mailroom. When he learned two workers with more seniority might bump him, he asked to stay as a reasonable accommodation.

USAir took five months to respond and finally told Barnett he would have to take job injury leave. The company rejected two other options Barnett proposed: restructuring his cargo job to eliminate lifting or providing special lifting equipment.

Barnett sued, and the U.S. 9th Circuit Court of Appeals refused to throw out his claims under the Americans with Disabilities Act (ADA). A seniority system isn't an automatic bar to reassignment of a worker with a disability, the court said, and it also faulted the company for failing to work closely with Barnett to find a reasonable accommodation. (Barnett v. U.S. Air Inc., No. 96-16669, 9th Cir., 2000)

Advice: Whether or not your seniority system is based on a collective bargaining agreement, this court and the Equal Employment Opportunity Commission say that doesn't automatically block reassignment of a worker with a disability. You still need to show that changing the seniority system would create an undue hardship on your company.

You also have to make a reasonable effort to work with the employee on an accommodation. Barnett had researched his options and proposed a low-tech device to help him load and unload cargo. USAir's counteroffer would allow him to use a forklift for individual suitcases, an option the court likened to giving him a shotgun to swat a fly.

Free advice is available from the Searchable Online Accommodation Resource (SOAR) at www.jan.wvu.edu/soar. A service of the Job Accommodation Network, it allows you to search by type of disability and job function. Or call the network at (800) 526-7234.

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