Trends in the Law

As the array of federally protected employee rights continues to expand, so does the chance that an employer will violate one employee’s rights in attempting to protect another employee’s rights.



For instance, there is a growing tension between an employer’s duty to reasonably accommodate disabilities and union seniority rights.



The Equal Employment Opportunity Commission has issued an enforcement guidance suggesting that seniority rights should not always prevail over an individual’s right to accommodation under the Americans With Disabilities Act. (www.eeoc.gov/docs/accommodation.html).



In its enforcement guidance, the EEOC addressed the issue of whether an employer can claim that a proposed reasonable accommodation imposes an undue hardship simply because it violates a collective bargaining agreement. The EEOC takes the following position regarding the issue of reasonable accommodation versus seniority rights under a collective bargaining agreement:



“First, an employer should determine if it could provide a reasonable accommodation that would remove the workplace barrier without violating the CBA. If no reasonable accommodation exists that avoids violating the CBA, then the ADA requires an employer and a union, as a collective bargaining representative, to negotiate in good faith a variance to the CBA so that the employer may provide a reasonable accommodation, except if the proposed accommodation unduly burdens the expectations of other workers (i.e., causes undue hardship).”



The EEOC’s position conflicts with and is in direct opposition to virtually every federal appeals court that has considered this issue under the ADA. See, e.g., Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997); Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998); Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir. 1998); Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997); Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996); Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995); Milton v. Scrivner, 53 F.3d 1118 (10th Cir. 1995); Willis v. Pacific Maritime Associatioin, 162 F.3d 561 (9th Cir. 1998).



Employers are left shaking their heads.

Affirmative Action vs. Equal Treatment

Similarly, several recent federal appeals courts have grappled with the tension between an employer’s efforts to achieve workplace diversity through affirmative action and the rights of all employees to equal treatment.



Some employers adopt affirmative action plans on their own. In addition, several federal agencies such as the Department of Labor’s Office of Federal Contract Compliance Programs require that certain federal contractors develop and maintain affirmative action plans ensuring that minority employment opportunities exist with the contractor.



Nevertheless, several federal courts have struck down affirmative action plans on the basis that the plans violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, sex, national origin or religion.



For example, in Taxman v. Board of Educ. Of Township of Piscataway, 91 F.3d 1547 (3d. Cir. 1996), the 3rd Circuit Court of Appeals held that a school board’s affirmative action plan of preferring minority teachers over non-minority teachers in layoff decisions where the teachers were equally qualified violated Title VII.



Similarly, in Schurr v. Resorts International Hotel Inc., 196 F.3d 486 (3d. Cir. 1999), the court of appeals held that a gaming casino’s affirmative action plan which favored minorities in certain hiring decisions violated Title VII.



In both cases, the court of appeals’ decisions turned on the fact that neither affirmative action plan served a remedial purpose, i.e., neither plan was designed to correct a manifest imbalance in traditionally segregated categories.



Thus, certain courts have concluded that affirmative action goes too far when the employer favors minority employees over other employees without a showing that it is doing so to remedy an actual history of discrimination, as opposed to simply attempting to address a statistical imbalance in its workforce.



Here again, employers apparently acting in good faith were caught in a tug ‘o war between seemingly opposing federal employment policies.

NLRB Decision