Business Law Questions..

[Northern_Piper]

@Hello_Again

There is a seniority system in the hypo.

but is it the result of a collective bargaining agreement, or is it simply the way the employer has decided to allocate holidays in the work-place. if it is a unionised workplace and the seniority is determined by the collective agreement, that’s one thing - but if it’s a unilateral decision by the employer in an non-unionised workplace, would Hardison apply? Employers in non-unionised workplaces normally have considerably more control over the assignment of tasks, and so simply calling for volunteers might not be enough if the employer has the power to assign work days to individual employees, regardless of the seniority system.

also, the entire debate so far illustrates a key point - to answer a legal question correctly, you have to know what jurisdiction the situation occurs in. For instance, some states have strict employment standards than the federal standard, as some posters have pointed out. Did the exam questions identify the jurisdiction and the applicable law?

[Really_Not_All_That_Bright]

@brazil84

Again, there’s a threshhold question of which law is being applied. Title VII of the Civil Rights Act of 1964? In New York City, what matters most is the New York City Human Rights Law, which says the following:

The OP is in Florida, which has no such statutory provision. One would assume that the question is meant to be answered based on Federal and Florida law.

@Gfactor

Not quite right.

Eh, I got the answer right, if not the reasoning, didn’t I?

[brazil84]

@Really_Not_All_That_Bright

The OP is in Florida, which has no such statutory provision.

There seems to be something out there called the “Florida Civil Rights Act.” Are you saying that the Florida Civil Rights Act doesn’t explicitely define “reasonable accommodation”?

[Gfactor]

@Really_Not_All_That_Bright

Eh, I got the answer right, if not the reasoning, didn’t I?

And I missed a case and a fact in the hypo.

[Gfactor]

@brazil84

There seems to be something out there called the “Florida Civil Rights Act.” Are you saying that the Florida Civil Rights Act doesn’t explicitely define “reasonable accommodation”?

Are you saying it does?

Here’s a link to the statute: http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0760/part01.htm&StatuteYear=2008&Title=->2008->Chapter%20760->Part%20I

[Northern_Piper]

@Gfactor

To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off the Court of Appeals would in effect require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily in Hardison’s place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs.

This last sentence offers another defense for the employer. Scheduling other employees on the plaintiff’s holidays is another form of discrimination. We had a thread about this issue a while back.

This point from Gfactor illustrates the need to state what jurisdiction and what laws are in issue. The Supreme Court of Canada has reached pretty much the opposite conclusion about what “undue hardship” on the employer entails. A de minimis test certainly wouldn’t cut it, as found by the SCC in Ont. Human Rights Commission v. Simpsons-Sears. That was a case of a Seventh Day Adventist who objected to working on Saturday because of her religious beliefs. The SCC ruled in her favour:

In a case of adverse effect discrimination, the employer has a duty to take reasonable steps to accommodate short of undue hardship in the operation of the employer’s business. There is no question of justification because the rule, if rationally connected to the employment, needs none. If such reasonable steps do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part, must sacrifice either his religious principles or his employment.

The complainant first must establish a prima facie case of discrimination. The onus then shifts to the employer to show that he has taken such reasonable steps to accommodate the employee as are open to him without undue hardship. Here, the employer did not discharge the onus of showing that it had taken reasonable steps to accommodate the complainant.

Same legal term being used, “undue hardship”, but it’s been given much different meanings by the two highest courts in Canada and the United States.

[Gfactor]

@Northern_Piper

This point from Gfactor illustrates the need to state what jurisdiction and what laws are in issue. The Supreme Court of Canada has reached pretty much the opposite conclusion about what “undue hardship” on the employer entails. A de minimis test certainly wouldn’t cut it, as found by the SCC in Ont. Human Rights Commission v. Simpsons-Sears. That was a case of a Seventh Day Adventist who objected to working on Saturday because of her religious beliefs. The SCC ruled in her favour: Same legal term being used, “undue hardship”, but it’s been given much different meanings by the two highest courts in Canada and the United States.

To make it even more complicated “undue hardship” under the Civil Rights Act gets a very different meaning than under the Americans with Disabilities Act:

“Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. The ADA’s “undue hardship” standard is different from that applied by courts under Title VII of the Civil Rights Act of 1964 for religious accommodation.

Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA | U.S. Equal Employment Opportunity Commission (Emphasis added.)

I’ve never had a religious accommodation case, but I’ve worked on a bunch of ADA cases.

[brazil84]

@Gfactor

Are you saying it does?

No I am not. I was just trying to figure out what RNATB was saying.

[Gfactor]

@brazil84

No I am not. I was just trying to figure out what RNATB was saying.

Given my lack of attention to detail in this thread you might take this with a grain of salt, but I looked and didn’t find one.

[LSLGuy]

Tangent / hijack - Given a religious day off accomodation sitution and in the absence of a seniority system, the accomodation of the employer amounts to simply scheduling other employees to work those days. For simplicity in the argument let’s assume the employer has a bunch of what they consider to be interchangable employees. The accomodation is, from the employer’s perspective (interpretted narrowly), administratively trivial & zero direct cost. And so the employer can hardly object on “unreasonable accomodation” grounds.
My question is how the Legislature can argue that requiring the other employees to pick up the slack doesn’t constitute an unfair burden on them. From my personal POV, your religious freeedom extends right up until the point I have to work an extra Saturday because of you.

I fully understand that legislatures are under no obligation to make either good decisions, or logically sound ones. But there is usually some element of sense in there someplace.

And a good employer will interpret its interests a bit more broadly than noted above. Employers have an interest in the morale of all their workers, and they do bear some intangible but real burden when certain of their otherwise-interchangeable workers are more equal than others when it comes to plum days off.

It seems to me much more logical & fair to have the normal working hours of a job be a safe harbor BFOQ & folks whose conscience is incompatible with that BFOQ are welcome to work elsewhere.

Does anyone have insight into a thumbnail sketch of the legislative history and intent? Either North or South of 54 40 (or anywhere else in the civilized world for that matter).

[LSLGuy]

Oops. 54 40 is not a nice thing to say to Canadians. I meant 49th & slipped a gear. Sorry.

If you’re really offended, you’re welcome to have Montana or Vermont; we’re not really using either one & they’re rather pretty.

[Gfactor]

@Northern_Piper

but is it the result of a collective bargaining agreement, or is it simply the way the employer has decided to allocate holidays in the work-place. if it is a unionised workplace and the seniority is determined by the collective agreement, that’s one thing - but if it’s a unilateral decision by the employer in an non-unionised workplace, would Hardison apply? Employers in non-unionised workplaces normally have considerably more control over the assignment of tasks, and so simply calling for volunteers might not be enough if the employer has the power to assign work days to individual employees, regardless of the seniority system.

also, the entire debate so far illustrates a key point - to answer a legal question correctly, you have to know what jurisdiction the situation occurs in. For instance, some states have strict employment standards than the federal standard, as some posters have pointed out. Did the exam questions identify the jurisdiction and the applicable law?

I originally agreed with this, but upon further consideration, Shepardizing the *Hardison *case, and reading the statute, I think the employer is in the clear even without a CBA.

In our view, the seniority system will prevail in the run of cases. As we interpret the statute, to show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not “reasonable.” Hence such a showing will entitle an employer/defendant to summary judgment on the question–unless there is more. The plaintiff remains free to present evidence of special circumstances that make “reasonable” a seniority rule exception in the particular case. And such a showing will defeat the employer’s demand for summary judgment.

---

The question in the present case focuses on the relationship between seniority systems and the plaintiff’s need to show that an “accommodation” seems reasonable on its face, i.e., ordinarily or in the run of cases. We must assume that the plaintiff, an employee, is an “individual with a disability.” He has requested assignment to a mailroom position as a “reasonable accommodation.” We also assume that normally such a request would be reasonable within the meaning of the statute, were it not for one circumstance, namely, that the assignment would violate the rules of a seniority system. See §12111(9) (“reasonable accommodation” may include “reassignment to a vacant position”). Does that circumstance mean that the proposed accommodation is not a “reasonable” one?

 In our view, the answer to this question ordinarily is "yes." The statute does not require proof on a case-by-case basis that a seniority system should prevail. That is because it would not be reasonable in the run of cases that the assignment in question trump the rules of a seniority system. To the contrary, it will ordinarily be unreasonable for the assignment to prevail. 

---

Several factors support our conclusion that a proposed accommodation will not be reasonable in the run of cases. Analogous case law supports this conclusion, for it has recognized the importance of seniority to employee-management relations. This Court has held that, in the context of a Title VII religious discrimination case, an employer need not adapt to an employee’s special worship schedule as a “reasonable accommodation” where doing so would conflict with the seniority rights of other employees. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 79-80 (1977). The lower courts have unanimously found that collectively bargained seniority trumps the need for reasonable accommodation in the context of the linguistically similar Rehabilitation Act. See Eckles v. Consolidated Rail Corp., 94 F. 3d 1041, 1047-1048 (CA7 1996) (collecting cases); Shea v. Tisch, 870 F. 2d 786, 790 (CA1 1989); Carter v. Tisch, 822 F. 2d 465, 469 (CA4 1987); Jasany v. United States Postal Service, 755 F. 2d 1244, 1251-1252 (CA6 1985). And several Circuits, though differing in their reasoning, have reached a similar conclusion in the context of seniority and the ADA. See Smith v. Midland Brake, Inc., 180 F. 3d 1154, 1175 (CA10 1999); Feliciano v. Rhode Island, 160 F. 3d 780, 787 (CA1 1998); Eckles, supra, at 1047-1048. All these cases discuss collectively bargained seniority systems, not systems (like the present system) which are unilaterally imposed by management. But the relevant seniority system advantages, and related difficulties that result from violations of seniority rules, are not limited to collectively bargained systems.

For one thing, the typical seniority system provides important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment. These benefits include “job security and an opportunity for steady and predictable advancement based on objective standards.” Brief for Petitioner 32 (citing Fallon & Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984 S. Ct. Rev. 1, 57-58). See also 1 B. Lindemann & P. Grossman, Employment Discrimination Law 72 (3d ed. 1996) (“One of the most important aspects of competitive seniority is its use in determining who will be laid off during a reduction in force”). They include “an element of due process,” limiting “unfairness in personnel decisions.” Gersuny, Origins of Seniority Provisions in Collective Bargaining, 33 Lab. L. J. 518, 519 (1982). And they consequently encourage employees to invest in the employing company, accepting “less than their value to the firm early in their careers” in return for greater benefits in later years. J. Baron & D. Kreps, Strategic Human Resources: Frameworks for General Managers 288 (1999).

 Most important for present purposes, to require the typical employer to show more than the existence of a seniority system might well undermine the employees' expectations of consistent, uniform treatment--expectations upon which the seniority system's benefits depend. That is because such a rule would substitute a complex case-specific "accommodation" decision made by management for the more uniform, impersonal operation of seniority rules. Such management decisionmaking, with its inevitable discretionary elements, would involve a matter of the greatest importance to employees, namely, layoffs; it would take place outside, as well as inside, the confines of a court case; and it might well take place fairly often. Cf. ADA, 42 U. S. C. §12101(a)(1), (estimating that some 43 million Americans suffer from physical or mental disabilities). We can find nothing in the statute that suggests Congress intended to undermine seniority systems in this way. And we consequently conclude that the employer's showing of violation of the rules of a seniority system is by itself ordinarily sufficient. 

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-1250

In the context of the Civil Rights Act, too, there is a specific statutory provision on point:

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.

http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00002000---e002-.html

[msmith537]

@jtgain

I don’t disagree with you, but these were actual test questions (I paraphrased) which required factual answers. I’m pretty sure that I didn’t miss anything relevant (e.g. The question didn’t specify whether or not the debtor said anything about cashing the check being acceptance. Would that make a difference? I know marking “paid in full” on a check means squat)

IANAL, but it seems to me the best place to start looking for a factual answer would be the relevant case law.
The only questions I have, again, not being a lawyer:
*1. Sally works for XYZ Corp. It is a 24/7/365 outfit. She has recently become a born again Christian and wants Sundays off. The company assigns days off on a seniority based system. The company goes so far as to ask for volunteers to work on Sunday for Sally. Nobody volunteers.

Sally sues her company. Did the employer make “reasonable accomodation”?*

Is her becoming a BAC after accepting employment a factor?
Is it reasonable to expect other employees to pick up her slack on Sundays?
2. Dave owes Jack $700. Dave mails Jack a detailed letter asking him to accept $500 as payment in full and includes a $500 check with the letter. Jack cashes the check and sues Dave for $200.

Does Jack’s acceptance of the $500 negate Dave’s obligation for the other $200? I don’t think it does unless they made an agreement beforehand.

Or is it valid to send a letter indicating that cashing the check indicates acceptance of a new agreement?
Again, you should be looking at what the law says, not people’s opinion of “what is right”.

[Really_Not_All_That_Bright]

@brazil84

There seems to be something out there called the “Florida Civil Rights Act.” Are you saying that the Florida Civil Rights Act doesn’t explicitely define “reasonable accommodation”?

Yes. In fact, it doesn’t address accomodation at all; it prohibits discrimination in employment, and that’s about it. That said, it does require the employer to observe its seniority system consistently:

@Florida Statutes

760.10 Unlawful employment practices.–

(1) It is an unlawful employment practice for an employer:

(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

(b) To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

(2) It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of race, color, religion, sex, national origin, age, handicap, or marital status or to classify or refer for employment any individual on the basis of race, color, religion, sex, national origin, age, handicap, or marital status.

(3) It is an unlawful employment practice for a labor organization:

(a) To exclude or to expel from its membership, or otherwise to discriminate against, any individual because of race, color, religion, sex, national origin, age, handicap, or marital status.

(b) To limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

(c) To cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(4) It is an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of race, color, religion, sex, national origin, age, handicap, or marital status in admission to, or employment in, any program established to provide apprenticeship or other training.

(5) Whenever, in order to engage in a profession, occupation, or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person’s race, color, religion, sex, national origin, age, handicap, or marital status.

(6) It is an unlawful employment practice for an employer, labor organization, employment agency, or joint labor-management committee to print, or cause to be printed or published, any notice or advertisement relating to employment, membership, classification, referral for employment, or apprenticeship or other training, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, national origin, age, absence of handicap, or marital status.

(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

(8) Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer, employment agency, labor organization, or joint labor-management committee to:

(a) Take or fail to take any action on the basis of religion, sex, national origin, age, handicap, or marital status in those certain instances in which religion, sex, national origin, age, absence of a particular handicap, or marital status is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.

(b) **Observe the terms of a bona fide seniority system, a bona fide employee benefit plan such as a retirement, pension, or insurance plan, or a system which measures earnings by quantity or quality of production, which is not designed, intended, or used to evade the purposes of ss. 760.01-760.10. However, no such employee benefit plan or system which measures earnings shall excuse the failure to hire, and no such seniority system, employee benefit plan, or system which measures earnings shall excuse the involuntary retirement of, any individual on the basis of any factor not related to the ability of such individual to perform the particular employment for which such individual has applied or in which such individual is engaged. This subsection shall not be construed to make unlawful the rejection or termination of employment when the individual applicant or employee has failed to meet bona fide requirements for the job or position sought or held or to require any changes in any bona fide retirement or pension programs or existing collective bargaining agreements during the life of the contract, or for 2 years after October 1, 1981, whichever occurs first, nor shall this act preclude such physical and medical examinations of applicants and employees as an employer may require of applicants and employees to determine fitness for the job or position sought or held. **

(c) Take or fail to take any action on the basis of age, pursuant to law or regulation governing any employment or training program designed to benefit persons of a particular age group.

(d) Take or fail to take any action on the basis of marital status if that status is prohibited under its antinepotism policy.

(9) This section shall not apply to any religious corporation, association, educational institution, or society which conditions opportunities in the area of employment or public accommodation to members of that religious corporation, association, educational institution, or society or to persons who subscribe to its tenets or beliefs. This section shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporations, associations, educational institutions, or societies of its various activities.

(10) Each employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice provided by the commission setting forth such information as the commission deems appropriate to effectuate the purposes of ss. 760.01-760.10.

[Gfactor]

@msmith537

2. Dave owes Jack $700. Dave mails Jack a detailed letter asking him to accept $500 as payment in full and includes a $500 check with the letter. Jack cashes the check and sues Dave for $200.

Does Jack’s acceptance of the $500 negate Dave’s obligation for the other $200? I don’t think it does unless they made an agreement beforehand.

Or is it valid to send a letter indicating that cashing the check indicates acceptance of a new agreement?

It depends:

(a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply.

(b) Unless subsection (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

(c) Subject to subsection (d), a claim is not discharged under subsection (b) if either of the following applies:

(1) The claimant, if an organization, proves that (i) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (ii) the instrument or accompanying communication was not received by that designated person, office, or place.

(2)** The claimant, whether or not an organization, proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. **This paragraph does not apply if the claimant is an organization that that sent a statement complying with paragraph (1)(i).

(d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.

U.C.C. - ARTICLE 3 - NEGOTIABLE INSTRUMENTS (2002) | Uniform Commercial Code | US Law | LII / Legal Information Institute (Emphasis added.)

All of the bolded portions present potential issues:
Was the debt subject to a bona fide dispute?
If so, did Jack return the funds within 90 days?
If so, did Jack know that the check was tendered in full satisfaction of the debt?

[brazil84]

@Really_Not_All_That_Bright

Yes. In fact, it doesn’t address accomodation at all; it prohibits discrimination in employment, and that’s about it.

I wouldn’t assume that there is no religious accommodation requirement just because it’s not specifically mentioned. A google search I did suggests that there is a disability accommodation requirement in the FCRA.

That said, it does require the employer to observe its seniority system consistently:

Actually, it seems that there is a safe harbor for employers who follow a seniority system. Based on the earlier comments in this thread, it seems that Title VII is not as clear on this point.

[UltraVires]

Wow, Thanks for all of the responses. I don’t feel like such an idiot now.

As far as the first question, it simply mentioned that the company used a seniority system to assign days off. It didn’t mention the existence of a Union or a CBA. Would that matter? I can’t see how without a union the company would be violating her religious rights, but if it chose to work with a union, then “Oh well, they can violate her rights now.”

In the second question, there were no more details than what I gave. By the wording of the question, I don’t think there was any doubt that the money was owed. It’s just that Dave owed $700, wrote a detailed letter asking to settle the amount for $500, and enclosed a $500 check. No mention of any unsual writing on the check.

Also, nothing on this test was to be Florida specific. That was given beforehand.

[Gfactor]

@jtgain

Wow, Thanks for all of the responses. I don’t feel like such an idiot now.

As far as the first question, it simply mentioned that the company used a seniority system to assign days off. It didn’t mention the existence of a Union or a CBA. Would that matter? I can’t see how without a union the company would be violating her religious rights, but if it chose to work with a union, then “Oh well, they can violate her rights now.”

See post 32.

In the second question, there were no more details than what I gave. By the wording of the question, I don’t think there was any doubt that the money was owed. It’s just that Dave owed $700, wrote a detailed letter asking to settle the amount for $500, and enclosed a $500 check. No mention of any unsual writing on the check.

Also, nothing on this test was to be Florida specific. That was given beforehand.

See post 35.

[Hello_Again]

@jtgain

Wow, Thanks for all of the responses. I don’t feel like such an idiot now.

As far as the first question, it simply mentioned that the company used a seniority system to assign days off. It didn’t mention the existence of a Union or a CBA. Would that matter? I can’t see how without a union the company would be violating her religious rights, but if it chose to work with a union, then “Oh well, they can violate her rights now.”

The presence or absence of a union is not dispositive, if the other employees have an expectation interest with the employer to distribute the work in a particular manner. “Undue burden” doesn’t mean what you think it means. Regardless of the presence of a union, forcing another employer to work an unwanted shift they would not expect to have to work due to an established seniority system legally constitutes an undue burden to the employer. It’s not so much violating her rights, but recognizing that the other employees have competing rights, and the employer does not have to violate those, to satisfy her.

With or without the union, the employer need not do more than solicit volunteers on behalf of the employee, which they did in this case.

jtgain I’m curious if you read Hardison in class. I suspect not, since the fact pattern is almost identical to the professor’s hypo.

[Gfactor]

@Hello_Again

jtgain I’m curious if you read Hardison in class. I suspect not, since the fact pattern is almost identical to the professor’s hypo.

Well, *Hardison * *did *involve a CBA, and that *was * a possible distinction, but *US Airways v. Barnett *http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-1250 made clear that bona fide seniority systems that are not required by a CBA count too, and that a requested accommodation that requires the employer to violate a such a seniority plan are presumptively unreasonable.

*Barnett *was an ADA case, but it reviewed reasonable accommodation cases under several civil rights statutes, noting, “All these cases discuss collectively bargained seniority systems, not systems (like the present system) which are unilaterally imposed by management. But the relevant seniority system advantages, and related difficulties that result from violations of seniority rules, are not limited to collectively bargained systems.” (Emphasis in original).

The Court noted that the plaintiff

nonetheless remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested “accommodation” is “reasonable” on the particular facts. That is because special circumstances might alter the important expectations described above. Cf. Borkowski, 63 F. 3d, at 137 (“[A]n accommodation that imposed burdens that would be unreasonable for most members of an industry might nevertheless be required of an individual defendant in light of that employer’s particular circumstances”). See also Woodman v. Runyon, 132 F. 3d 1330, 1343-1344 (CA10 1997). The plaintiff might show, for example, that the employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing employee expectations that the system will be followed–to the point where one more departure, needed to accommodate an individual with a disability, will not likely make a difference. The plaintiff might show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter. We do not mean these examples to exhaust the kinds of showings that a plaintiff might make. But we do mean to say that the plaintiff must bear the burden of showing special circumstances that make an exception from the seniority system reasonable in the particular case. And to do so, the plaintiff must explain why, in the particular case, an exception to the employer’s seniority policy can constitute a “reasonable accommodation” even though in the ordinary case it cannot.

So it’s clear after *Barnett *that an employer is not required to accommodate an employee in a way that is contrary to a seniority system. Note too, that by including this rule in the “reasonableness” calculation, the court steered clear of the difficulties created by the differing definitions of “undue hardship” under the ADA and the Civil Rights Act.