Cite as: 535 U. S. 391 (2002)
Scalia, J., dissenting
merely intended to give the disabled employee an opportunity to show that the employer's seniority system is in fact a sham—a system so full of exceptions that it creates no meaningful employee expectations. The rule applies, however, even if the seniority system is "bona fide and established," Pet. for Cert. i. And the Court says that "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 . . . ." Ante, at 404. How could deviations from a sham seniority system "undermine the employees' expectations"?
I must conclude, then, that the Court's rebuttable presumption does not merely give disabled employees the opportunity to unmask sham seniority systems; it gives them a vague and unspecified power (whenever they can show "special circumstances") to undercut bona fide systems. The Court claims that its new test will not require exceptions to seniority systems "in the run of cases," ante, at 403, but that is belied by the disposition of this case. The Court remands to give respondent an opportunity to show that an exception to petitioner's seniority system "will not likely make a difference" to employee expectations, ante, at 405, despite the following finding by the District Court:
"[T]he uncontroverted evidence shows that [petitioner's] seniority system has been in place for 'decades' and governs over 14,000 . . . Agents. Moreover, seniority policies such as the one at issue in this case are common to the airline industry. Given this context, it seems clear that [petitioner's] employees were justified in relying upon the policy. As such, any significant alteration of that policy would result in undue hardship to both the company and its non-disabled employees." App. to Pet. for Cert. 96a.
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