Title I Technical Assistance Manual

7.11 Contractual or Other Relationships

An employer may not do anything through a contractual relationship that it cannot do directly. This applies to any contracts, including contracts with:

• training organizations (see above);

• insurers (see above);

• employment agencies and agencies used for background checks (see Chapter V);

• labor unions (see below).

7.11(a)Collective Bargaining Agreements

Labor unions are covered by the ADA and have the same obligation as the employer to comply with its requirements. An employer also is prohibited by the ADA from taking any action through a labor union contract that it may not take itself.

For example: If a union contract contained physical requirements for a particular job that screened out people with disabilities who were qualified to perform the job, and these requirements are not job-related and consistent with business necessity, they could be challenged as discriminatory by a qualified individual with a disability.

The terms of a collective bargaining agreement may be relevant in determining whether a particular accommodation would cause an employer undue hardship.

For example: If the collective bargaining agreement reserves certain jobs for employees with a given amount of seniority, this may be considered as a factor in determining whether it would be an undue hardship to reassign an individual with a disability who does not have seniority to a vacant job.

Where a collective bargaining agreement identifies functions that must be performed in a particular job, the agreement, like a job description, may be considered as evidence of what the employer and union consider to be a job's essential functions. However, just because a function is listed in a union agreement does not mean that it is an essential function. The agreement, like the job description, will be considered along with other types of evidence. (See Chapter II.)

The Congressional Committee Reports accompanying the ADA advised employers and unions that they could carry out their responsibilities under the Act, and avoid conflicts between the bargaining agreement and the employer's duty to provide reasonable accommodation, by adding a provision to agreements negotiated after the effective date of the ADA, permitting the employer to take all actions necessary to comply with the Act.