By Dave Strausfeld, J.D.
A union could be held liable for discrimination for refusing to process a disabled individual’s grievance even if it did not breach its duty of fair representation, held the Ninth Circuit, ruling on a motion to dismiss. Nothing in the ADA suggests that union members must demonstrate a breach of the fair-representation duty before stating a claim against their union for disability discrimination. Nor does the prima facie case for ADA claims developed in the circuit include a "breach of the duty of fair representation" element. Therefore, the district court erred in applying issue preclusion to dismiss a disabled postal clerk’s ADA claims, citing a separate court’s rejection of her fair-representation claim (Garity v. APWU National Labor Organization
, July 5, 2016, Bybee, J.).
A postal clerk in Nevada alleged that her union, despite her repeated complaints, did nothing about management’s refusal to accommodate her disabilities. Rather than filing and processing her grievances, she claimed, her union sided with management, discriminating against her because of her disabilities. The procedural posture of her case on appeal to the Ninth Circuit was complex, as further discussed below. But the basic question before the appeals court was simple: whether a prima facie claim for disability discrimination against a union necessarily requires a showing that the union breached its duty of fair representation.
Follows Seventh Circuit.
No such showing is required, held the Ninth Circuit, endorsing the Seventh Circuit’s reasoning in Green v. American Federation of Teachers/Illinois Federation of Teachers Local 604
. As the Seventh Circuit’s "persuasive decision in Green
" explained, nothing in Title VII suggests that union members must demonstrate a breach of the union’s contractual duty to provide fair representation before stating a claim for racial, religious, or gender discrimination under Title VII, and there was no reason not to apply this rule to ADA claims as well.
"Just as the Seventh Circuit explained in Green
, we are not authorized to add another element to a prima facie claim under the ADA." Like the prima facie Title VII claim outlined by the Supreme Court in McDonnell Douglas
, the prima facie ADA claims developed in the Ninth Circuit do not include a "breach of the duty of fair representation" element.
ADA and labor law have different goals.
The union’s argument to the contrary "confuses the goals" of antidiscrimination laws with the purposes of labor laws, the appeals court observed. Unions are uniquely knowledgeable when it comes to collective bargaining agreements and employment contracts, and the law affords them some latitude when adjudicating disputes arising from those contracts. But there is "no reason to grant them the same deference" when it comes to determining if unions discriminated against their members on the basis of a protected classification like disability. Put differently, while a union’s duty of fair representation is breached only by conduct that is arbitrary, discriminatory, or in bad faith—a rather deferential standard—this is not the standard that should apply to discrimination claims against a union. The "plaintiff-friendly pleading standards" of statutes such as the ADA make clear that "the free hand unions have in other labor matters does not extend to discrimination suits."
No stare decisis.
True, the Ninth Circuit appeared to indicate otherwise in Beck v. United Food and Commercial Workers Union, Local 99
, where it quoted favorably from a district court opinion that required showing a breach of the duty of fair representation on a sex discrimination claim against a union. But this language was not an endorsement of the district court’s approach. "The better reading of our Beck
decision is that we were explaining how the district court reached its outcome, addressing out-of-circuit precedent in an exploratory or academic fashion." (The out-of-circuit precedent in question was a Seventh Circuit decision that the Seventh Circuit later overruled in Green
Ultimately, the question before the Ninth Circuit here involved issue preclusion, and everything discussed above was merely a necessary step to resolve the preclusion issue. The postal clerk had asserted her duty-of-fair-representation and ADA claims against her union in two separate lawsuits. When a district court judge dismissed her fair-representation complaint, a second district court judge tossed her ADA claims, ruling that she could not re-litigate the question of whether the union breach its fair-representation duty and, without showing such a breach, she could not establish a prima facie claim of disability discrimination against her union.
But finding that this ruling was incorrect, the Ninth Circuit reversed the dismissal of her ADA discrimination and retaliation claims and remanded for further proceedings. The appeals court also rejected the union’s separate claim preclusion argument.