Justice Souter also wrote a dissenting opinion in which Justice Ginsburg joined. In reviewing legislative history, Justice Souter concluded that Congress intended to consider the impact on a collectively negotiated seniority system as a “factor” in assessing unwarranted hardship. As a result, he considered it inappropriate that a seniority system unilaterally imposed by an employer and not subject to protection by another federal statute, namely.dem National Labor Relations Act, be “more important.” Employers and unions could also decide to create a committee with an equal number of administrative and union representatives to deal with ADA compliance issues. This joint Employment Services Committee could review requests for appropriate arrangements and cooperate with staff in the informal and interactive process of determining suitable housing. Since the employer and the union would be represented on this committee, their interests could be invoked and protected as part of this process. In addition, during the Committee`s work, it could develop factors for assessing an in demand dwelling, help determine the essential functions of the workplace, determine what housing is available, assess whether the accommodation requested would affect other members of the bargaining unit, how it would impact them, whether other housing could be available, and what the possible consequences of these units might be. The employment discrimination provisions of the ADA apply to unions both as employers and as bargaining partners. Under Title VII (which prohibits discrimination on the basis of race, sex, national origin and religion), the courts found that a union could not interfere with an employer`s obligation to properly consider a worker`s religious observances if the dwelling is not contrary to the collective agreement. It is very likely that the courts will impose a similar application on unions under the ADA. Potential conflicts between the ADA and the LNRA can be reduced or eliminated by the long-term collaborative planning of unions and employers, thereby protecting the interests of unions and all their members through a collective agreement and legal mandates. Because, as discussed by the Western District of Michigan in this case, there is a split between the circuits, it is possible that this could eventually end up in the U.S. Supreme Court.

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