Don’t deny ADA accommodation due to ‘potential’ seniority break

After 18 years as a truck driver, Donald Dilley developed back trouble and was limited by his doctor to lifting less than 60 pounds at a time. Dilley asked for routes that didn't require any heavy lifting. All routes were handed out based on seniority, and he was ranked fifth out of 42 drivers.

But Dilley's employer denied the accommodation and fired him. Reason: The company argued that the seniority system under its collective bargaining agreement could be violated if a more senior driver one day asked for that new route and the company had to keep Dilley in that position.

He sued, claiming the company violated the Americans with Disabilities Act (ADA). A lower court jury sided with Dilley and an appeals court agreed.

The court rejected the company's argument that Dilley's request would have violated the seniority system. It said the prospect was "remote" that Dilley, ranked fifth in seniority, would be displaced by a more senior driver. (Dilley v. SuperValu Inc., No. 00-1200, 10th Cir., 2002)

Advice: Don't try to deny an employee's accommodation request by saying that doing so could eventually lead to a violation of the seniority rules.

It's true that a key Supreme Court ruling this year said that, in most cases, employers don't have to override their seniority system to accommodate the needs of a disabled worker. (US Airways v. Barnett) But that case involved a direct violation of seniority. The disabled worker sought to jump over those with greater seniority, the company said no and the court backed it up.

This case involved a potential violation of seniority rules, i.e. the seniority agreement could one day be violated if we accommodate this worker. Trying to point to such potential or possible problems to prove your case won't fly in court.