Kathleen Borkowski, Plaintiff-Appellant,Vs. Valley Central School District, Defendant-Appellee.

(No. 447, Docket 94-7254, United States Court of Appeals, Second Circuit, Decided Aug. 10, 1995, Cit. 63 F.3d 131)

Can a teacher with disabilities, whose disabilities directly affect her capacity to perform her job, insist that her employer provide a teacher’s aide as a form of reasonable accommodation? That was the question at the heart of this appeal.

The plaintiff had suffered head injury due to a motor vehicle accident in 1972, as a result of which she acquired neurological disability, affecting memory, balance, mobility and coordination. In 1987, the school district employed her as a school teacher with a probationary period of three years. However, after the probationary period, the school district did not grant her tenure, and terminated her services on the finding that she was unable to control the students in her classes and students talked, yelled, and whistled without being corrected. Ms. Borkowski was criticized by her school evaluators for remaining seated during classes. They concluded that little learning had occurred during the classes they observed. Ms. Borkowski challenged the action of the school district before the District Court, which dismissed her complaint by a summary judgment, holding that grant of tenure was within the discretion of the school district.

Before the appellate court, Ms. Borkowski maintained, however, that with the provision of a teacher’s aide to assist her in maintaining classroom control, she would be able to perform all of the functions of a library teacher. She further contended that the provision of a teacher’s aide was not unreasonable, and that the school district ought to have looked into such an accommodation before terminating her.

Finding merit in the position of Ms. Borkowski, the appellate court remanded the matter to the District Court to determine whether in the facts and circumstances of the case, Ms. Borkowski was essentially qualified for her job as teacher and whether provision of an assistant would be a reasonable accommodation, not amounting to undue hardship on the school district.


Us Airways, Inc., Petitioner V. Robert Barnett

(Supreme Court Of The United States, On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, No. 00—1250, April 29, 2002)

In 1990, Robert Barnett, the plaintiff and respondent, injured his back while working in a cargo-handling position at petitioner US Airways, Inc. He asked his employer to transfer him to a less physically demanding mailroom position. However, US Airways responded that under their seniority system, other employees senior to him had better claim for the mailroom job. Mr.Barnett asked US Airways to accommodate his disability-imposed limitations by making an exception that would allow him to work in the mailroom. After permitting Barnett to work in the mailroom for five months while it considered the matter, US Airways eventually decided not to make an exception, and Barnett lost his job.

Barnett then filed a suit against his employer under the Americans with Disabilities Act, claiming, among other things, that he was an “individual with a disability” capable of performing the essential functions of the mailroom job, that the mailroom job amounted to a “reasonable accommodation” of his disability, and that US Airways, in refusing to assign him the job, unlawfully discriminated against him. The District Court dismissed his suit by a summary judgment, holding that making an exception to the seniority system was not a reasonable accommodation. The US Supreme Court, however, held that an opportunity must be given to the plaintiff Mr. Barnett to show that in the facts and circumstances of his case, this exception amounted to a reasonable accommodation not creating undue hardship for the employer. Accordingly, the court remanded the matter to the district court for fresh determination.


Archibald -v- Fife Council

(UK House of Lords decision, 1st July 2004, Citation [2004] UKHL 32)

Mrs. Archibald was employed as a sweeper by the local municipality Fife Council in May 1997. She underwent surgery in May 1999, rendering her physically unfit to perform her job. Her employer, after making attempts to reassign her to a job which she could perform, found that such sedentary jobs were at a more senior level and required to be filled by competitive interview. Therefore, the Fife Council dismissed her from its services.

Mrs. Archibald complained to the Employment Tribunal, saying “I feel that I was unfairly dismissed by Fife Council with effect from 12 March 2001 on the grounds of capability. As I am a disabled person in accordance with the terms of the Disability Discrimination Act 1995, I am of the opinion that I have been discriminated against by the council in the way that they sought redeployment opportunities for me.”

In its judgment, The House of Lords discussed the definition and scope of an employer’s duty to make reasonable adjustments under section 6 of the Disability Discrimination Act 1995 and in particular whether it arises at all if an employee becomes totally incapable of doing the job for which she is employed but could do another job within the same organization. Allowing the appeal, the House of Lords remitted the case to the Employment Tribunal so that it could consider whether the employer could have fulfilled its section 6(1) duty to take such steps as it was reasonable in all the circumstances for the council to have to take, by simply transferring Mrs. Archibald to a sedentary job available in the organization and overlooking the requirement of competitive interview.