408
O'Connor, J., concurring
As I understand the Court's opinion, on remand, respondent will have the burden of answering these and other questions in order to overcome the presumption that petitioner's seniority system justified respondent's discharge.
Justice O'Connor, concurring.
I agree with portions of the opinion of the Court, but I find problematic the Court's test for determining whether the fact that a job reassignment violates a seniority system makes the reassignment an unreasonable accommodation under the Americans with Disabilities Act of 1990 (ADA or Act), 42 U. S. C. § 12101 et seq. (1994 ed. and Supp. V). Although a seniority system plays an important role in the workplace, for the reasons I explain below, I would prefer to say that the effect of a seniority system on the reasonableness of a reassignment as an accommodation for purposes of the ADA depends on whether the seniority system is legally enforceable. "Were it possible for me to adhere to [this belief] in my vote, and for the Court at the same time to [adopt a majority rule]," I would do so. Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). "The Court, however, is divided in opinion," ibid., and if each Member voted consistently with his or her beliefs, we would not agree on a resolution of the question presented in this case. Yet "[s]talemate should not prevail," ibid., particularly in a case in which we are merely interpreting a statute. Accordingly, in order that the Court may adopt a rule, and because I believe the Court's rule will often lead to the same outcome as the one I would have adopted, I join the Court's opinion despite my concerns. Cf. Bragdon v. Abbott, 524 U. S. 624, 655-656 (1998) (Stevens, J., joined by Breyer, J., concurring); Olmstead v. L. C., 527 U. S. 581, 607-608 (1999) (Stevens, J., concurring in part and concurring in judgment).
The ADA specifically lists "reassignment to a vacant position" as one example of a "reasonable accommodation." 42
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007