Labor Law Labor Strategy Union Proof By Walter Orechwa Share Tweet Share The American Disabilities Act (ADA) and its amendments were passed to protect and guarantee the rights of people with disabilities. This act specifically enables them to access and participate in employment, public services, public accommodations, telecommunications and transportation. The ADA’s Title I specifically prohibits discrimination against people with disabilities in every area of employment. This includes everything from recruitment, interviewing, hiring, promotions, benefits, to termination and layoffs. When it comes to respectfully approaching disabilities and diversity in the workplace, unions can ultimately pose a problem.All employers with more than 15 employees, and labor unions, plus some other organizations, must adhere to ADA requirements. However, it doesn’t take a law for ethical leaders to do the right thing. They need to treat people with disabilities in a fair and equitable manner.What is Fair?It’s clear how you, as an employer, must treat job candidates and employees who have disabilities. The question concerns how the ADA is integrated with union contract requirements in practice in the unionized workplace. Per the National Labor Relations Act, the union has a duty to fairly represent all employees without discrimination. However, union contracts have strict requirements about talent management policies. The contracts include everything from promotions, job restructuring, job schedules, changes in job responsibilities, job reassignment and leave policies. The reality is — unions don’t always make it easy to accommodate employees. Essentially, this is because agreeing to exceptions to the contract is usually something they want to avoid.The United Electrical, Radio & Machine Workers of America (UE Union) addresses disability in its online statement. The statement says the ADA gives the union opportunities to represent workers, and there is a long description of how the employer must accommodate the employee in various ways and how accommodation fits within union contract requirements. However, read closer and the union guidelines give a clue as to the difficulty of accommodating people with disabilities in the unionized workplace.Guidelines begin by saying the ADA does not require “bumping”. Therefore, accommodation can mean keeping a person in their old job or placing them in a vacant position. The guidelines go on to say the ADA doesn’t give employers the right to violate the union contract to the detriment of another employee. They also encourage people with disabilities to work with the union if they want accommodation.Unions Protect Their Rights Before the EmployeesTheir explanation goes on to say that “reasonable accommodation” doesn’t have to be the best accommodation. For an employer, the best solution might be placing a disabled union member in a vacant seniority position. Alternatively, a reasonable accommodation from the union’s perspective is keeping the person in a current job, even if they are underutilized. It’s similar to the issue employers have when they want to promote someone based on excellent job performance but are unable to do so because of union contract requirements. This is just one example of how unions make it difficult to navigate disabilities and diversity in the workplace.It’s clear the union is carefully protecting its rights first, above and beyond the rights conveyed in the ADA. The UE Union says this about the ADA, “If used effectively, we can use ADA to strengthen our shop floor unity and the role EU plays in the lives of our members.” In other words, the unions are leveraging the ADA as a means of strengthening their relationship with employees. In reality, you can do the same thing. Hiring and accommodating people with disabilities offers many advantages that include closing labor skills gaps and exercising social responsibility.Negotiating an AccommodationIn many cases, unions can limit your ability to accommodate, due to union contract restrictions. The ADA prohibits collective bargaining agreements from discriminating against people with disabilities. Essentially, the contract requirements create the risk that you may not be able to accommodate your disabled employees like you want. For example, you determine it’s in the best interest of a qualified person with a disability to change a job description or to reassign job duties. Following through with these actions may violate the collective bargaining agreement.The agency responsible for enforcing of the ADA is the Equal Opportunity Commission (EEOC). The EEOC determined an employer considering a reasonable accommodation cannot claim an undue hardship by saying that following through would violate a union contract. The employer and union are expected to negotiate and settle the issue. The real test is whether the accommodation would cause a hardship on other union employees. If it doesn’t, the union must allow the accommodation. If it does, the accommodation moves out of the realm of “reasonable.”You aren’t allowed to bypass the seniority rights of employees to accommodate a person with a disability. The Supreme Court ruled in US Airways v. Barnett that the ADA doesn’t require an employer to place a disabled person into a position when it would violate a seniority system. This gives the union grounds to deny the request to bypass seniority contract requirements. This remains true even if the placement is in the best interests of the employee and workforce.Bypassing seniority contract requirements isn’t considered a reasonable accommodation. You can still attempt to negotiate with the union to allow a one-time accommodation or revise the collective bargaining agreement. In a workplace where the employer and union experience ongoing tension, the union is unlikely to allow any variance.Reluctant to Hire People with Disabilities?Researchers at the IZA Institute of Labor Economics studied the relationship of disability and the unionized workplace. The results were eye-opening. The unionization rate fell more rapidly among employees with disabilities. This is because employers are “reluctant to hire people with disabilities into jobs with union protections.” In a review of union bargaining agreements, it was learned that policies address disability from the perspective of an injured or sick worker who will recover. The contract emphasis is not on inclusion. Also, a tension exists between ADA-protected interests and union interests. Unions operate from a philosophy that the needs of the whole (union workers) are more important than the needs of individuals. With this perspective, a union is not likely to allow a person with a disability to step into a position that doesn’t fit the seniority plan or allow you to change job requirements or allow flexible scheduling to accommodate. The result is a disengaged or underutilized employee.When negotiating a collective bargaining agreement, wise employers insist on including procedures for addressing reasonable accommodations. This often creates a lack of understanding of the relationship of the ADA and the union contract. This ultimately contributes to employers being reluctant to hire people with disabilities into a unionized workplace. It’s an attempt to minimize the risk of additional issues needing negotiating over the life of the contract. Any discussions involving contracts is a time-consuming and costly process, requiring managers to spend time resolving issues. It’s also risky because the union will leverage the discussion as a “marketing tool” by presenting itself as the defender of the struggling employee, when in fact it’s the union contract causing a challenge to accommodation issues. Creating a Respectful Workplace that Accommodates Disabilities and DiversityIn a respectful workplace, all employees are treated fairly and valued. The workplace is defined by its intolerance of harassment or bullying in any form, its championing of diversity and a high quality employer-workforce relationship. Disagreements are constructively addressed, employees feel free to discuss work challenges with management, and reasonable accommodations are welcomed as a means of enabling people with disabilities to work at full capacity. It’s important to recognize that a unionized workplace adds complexity to an employer’s efforts to develop the respectful workplace. The best thing to do is stay union free and avoid the natural tension created for people with disabilities in a unionized workplace.