Use seniority to assign tasks and take bias off the table
Employees who sue for race and many other forms of discrimination must prove they were treated differently than a similarly situated co-worker who doesn’t belong to the same protected class.
When employers adopt and follow a seniority system to assign tasks, employees who try to claim discrimination have a tough time finding someone similarly situated to compare. And that means the employer often wins.
Recent case: Angela Tyson, who is black, worked for Gannett at a newspaper production facility. Her job involved assembling the newspaper, stacking it and loading it onto machines for distribution to readers. The job required her to stand 90% of the time and to push up or lift up to 35 pounds.
Employees such as Tyson were assigned to specific jobs at the beginning of each shift based strictly on seniority. Because Tyson was a relatively new hire, she hardly ever got her choice of tasks. More senior employees could avoid heavy lifting by opting for easier jobs.
After Tyson slipped and hurt herself, she took sick leave. When she was ready to return to work, her doctors told her she couldn’t lift more than 25 pounds. She remained off work because others were more senior and kept picking the easier tasks.
Tyson sued, alleging race discrimination. She claimed there was a white co-worker who also was on a lifting restriction who returned to work. But the company said the co-worker wasn’t a valid comparator—she had far more seniority and therefore was able to pick tasks within her restriction.
The 7th Circuit Court of Appeals dismissed Tyson’s case. It reasoned that since Tyson couldn’t point to any similarly situated nonblack employee who got preferential treatment, she couldn’t show race discrimination. (Tyson v. Gannett Co., No. 07-2832, 7th Cir., 2008)
Seniority trumps even the ADA
As a general rule, courts are quite reluctant to tell employers to shelve well-established seniority systems—even when doing so would allow people with disabilities to be accommodated.
In 2002, the U.S. Supreme Court ruled, "An employer’s showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an accommodation is not ‘reasonable.’" (U.S. Airways, Inc. v. Barnett, 122 S. Ct. 1516, 2002)
Advice: Consistently apply your seniority policy. If disabled employees or applicants can show that you arbitrarily enforce the seniority policy, they’ll have an easier time proving that your accommodation rejection is a smoke screen for bias.
