In the closing weeks of the United States Supreme Court's 2001-2002 session, the Court issued two more victories for employers in defending claims under the Americans With Disabilities Act (ADA).  In the first of the cases, U. S. Airways, Inc. v. Barnett, the Court held that an employer's seniority policy will ordinarily prevail over the accommodation needs of disabled employees protected under the ADA.  In the second, Chevron U. S. A, Inc. v. Echazabal, the Court ruled that if an employer reasonably believes that a position poses a direct threat to a disabled applicant's own health and safety, it may reject the applicant without violating the provisions of the ADA. 

In Barnett, a cargo handler for U. S. Airways injured his back, and subsequently transferred to a less physically demanding position in the mail room.  That new position later became open to seniority based employees bidding under U. S. Airways' seniority system, and employees more senior than Barnett planned to bid on the job.  U. S. Airways refused Barnett's request to accommodate his disability by allowing him to remain in the mail room and he lost his job.

In a five-to-four decision, the Supreme Court held that an employer's showing that a requested accommodation conflicts with its seniority rules will ordinarily be sufficient to show, as a matter of law, that an "accommodation" is not "reasonable."  Nonetheless, employees remain free to present evidence of special circumstances that might make a seniority rule exception reasonable in a particular case.  Thus, the Supreme Court essentially adopted a middle ground position between the employer's argument that a proposed accommodation that conflicts with an established seniority system is automatically unreasonable, and the employee's argument that the burden is on the employer to prove that an accommodation that conflicts with seniority constitutes an undue hardship. 

In situations that involve a conflict between a requested disability accommodation and a unilateral seniority system, "the seniority system will prevail in the run of cases," the Court said.  The Court added that it would undermine the employees' expectations of consistent, uniform treatment if the burden was on the employer to show more than the existence of a seniority system.

On the flip side, the disabled employee still retains the opportunity to prove that there are "special circumstances" that might alter the important expectations raised by seniority systems.  For instance, the Court noted that if an employee can show that the employer makes fairly frequent changes in the seniority system or exceptions to it, thereby reducing employee expectations that the system will be followed, one more departure will not likely make a difference.  As a general rule, however, seniority systems that are consistently applied will not be trumped by a requested ADA accommodation.

In Chevron, the Court was unanimous in rejecting a claim that an employer may not use the threat-to-self defense as a reason for rejecting a job applicant.  In the Chevron case, an applicant for a position at a Chevron refinery was provisionally hired contingent upon his passing the company's physical examination.  The examination showed liver abnormality or damage, the cause of which was eventually identified as hepatitis C.  Chevron's doctors said that condition would be aggravated by continued exposure to toxins at Chevron's refinery and the company withdrew the job offer.  Mr. Echazabal sued under the ADA.

Chevron relied upon an EEOC regulation that allows employers to assert a defense that a worker's disability on the job would pose a "direct threat" to his own health.  Echazabal argued that the ADA creates an affirmative defense for employers in cases where an employment qualification standard is shown to be "job related" and "consistent with business necessity," but allows only "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," according to the language of the ADA itself.

The EEOC regulation at issue "carries the defense one step further" according to the Supreme Court, and allows an employee to screen out a potential worker based on the risk to his own health or safety.  Echazabal argued that the EEOC exceeded its authority in issuing this regulation and the 9th Circuit Court of Appeals had agreed with him.  The Supreme Court, however, unanimously ruled that allowing employers to assert a threat-to-self defense is a reasonable interpretation of the ADA and specifically held that the Act permits such a regulation.