Employer Lawfully Denied Accommodation Requests

By Robert D. Shank Jan 8, 2016

An employer properly denied a disabled airline worker’s requests to be assigned permanently to the light-duty job he had temporarily occupied or to be transferred to a different one because the employer had adopted a seniority-based bidding system and had no vacant positions, according to the 7th U.S. Circuit Court of Appeals.

Michael Dunderdale worked for United Airlines as a ramp serviceman, a union position. Ramp servicemen bid for placement to different work areas. The collective bargaining agreement required United to place them according to seniority.

Dunderdale went on leave due to a recurring back injury. When he returned to work, he had several permanent restrictions that prevented him from performing the physical requirements of the ramp serviceman position.

United assigned Dunderdale to a light-duty job scanning luggage, known as a matrix position. At that time, United’s policy was that only ramp servicemen with permanent restrictions could bid for matrix positions.

United changed its bidding policy to allow all ramp servicemen (not just permanently disabled ones) to bid for matrix positions. United made this change to match the language of the collective bargaining agreement regarding work area placement based on seniority.

With this change in policy, Dunderdale did not have sufficient seniority to retain his light-duty position. Dunderdale requested transfer to a no-bid position (that is, a position that was not open for bidding or placed based on seniority), but no vacancies existed at the time. United therefore placed Dunderdale on extended illness leave.

Dunderdale did not apply for any other positions at United while on leave. He requested transfer to a no-bid position two additional times, but United denied those requests. Dunderdale did not seek any other accommodation from United while on leave.

Dunderdale sued United, claiming that it failed to reasonably accommodate his disability.

The trial court ruled for United, and the 7th Circuit agreed.

Dunderdale argued that United should have allowed him to remain in the matrix position. The 7th Circuit disagreed. An employer is not required to assign an employee to a position as an accommodation if it would violate the seniority system, unless special circumstances exist. (Special circumstances exist when an employer fails to maintain a consistent and uniform seniority system on which employees can rely.)

The appeals court found that no special circumstances existed which would trump United’s seniority-based bidding system. United treated all ramp servicemen—whether with disabilities or without—consistently by allowing any of them to bid. That United changed its bidding system without anyone first filing a formal grievance was irrelevant to the appeals court. Increasing reliability and consistent application of a seniority bidding system was a legitimate business interest that the 7th Circuit refused to second-guess.

Dunderdale also argued that United should have allowed him to work in one of the no-bid positions. An employer is not required to “bump” other employees to create a vacancy to accommodate a disabled employee. The appeals court focused on two key time periods in its vacancy analysis: 1) the time of the adverse employment decision; and 2) the time the employee requested reassignment to a vacant position. There were no vacant positions when Dunderdale went on leave or when he made his requests to transfer to a no-bid position.

Dunderdale v. United Airlines, Inc., 7th Cir., No. 14-2911 (Dec. 3, 2015).

Professional Pointer: Courts are reluctant to question employer accommodation decisions that are based on seniority, even when that means the elimination of a disabled employee’s light-duty job. However, employers must be consistent in relying on seniority to fall within this rule.

Robert D. Shank is a shareholder with Denlinger, Rosenthal & Greenberg, the Worklaw® Network member firm in Cincinnati.


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