- The Washington Times - Tuesday, April 30, 2002

The Supreme Court ruled yesterday that federal laws requiring companies to accommodate disabled workers do not clear the way for an injured worker to jump ahead of colleagues in a seniority system.
"The seniority system will prevail in the run of cases," said the 5-4 opinion written by Justice Stephen G. Breyer, who said US Airways cargo-handler Robert Barnett "remains free to present evidence of special circumstances" to justify an exception under the Americans with Disabilities Act.
The decision threw out a lower court's finding that a 1990 back injury gave Mr. Barnett the first choice of jobs over more senior co-workers on a case-by-case basis. He took a mailroom job at San Francisco International Airport but lost it to more senior workers.
US Airways has about 14,000 customer-service employees whose assignments, shifts, transfers and holidays are based on seniority with the company.
Justices Antonin Scalia and Clarence Thomas dissented because the decision leaves to "constant litigation" the question of when a seniority system must be ignored and, in their view, "incorrectly subjects all employer rules and practices to the requirement of reasonable accommodation."
Justices David H. Souter and Ruth Bader Ginsburg said in a separate dissent that US Airway's seniority system is not part of a contract and can be modified at the airline's option, so the company should have the burden to show undue hardship.
Justice Breyer was joined in the majority by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O'Connor and Anthony M. Kennedy.
In a separate 5-4 ruling, the court declared unconstitutional a provision of the Food and Drug Modernization Act of 1997, which forbade advertising or other solicitation by pharmacists who compound prescription drugs rather than simply fill them with compounds manufactured elsewhere.
"We conclude, as did the courts below, that provisions regarding advertisement and promotion amount to unconstitutional restrictions on commercial speech," the court said in the opinion written by Justice O'Connor, who was joined by Justices Scalia, Kennedy, Souter and Thomas.
"It would prevent pharmacists with no interest in mass-producing medications, but who serve clienteles with special medical needs, from telling the doctors treating those clients about the alternative drugs available through compounding," the court said, citing as an example specially flavored medicines that help children comply with prescriptions. Many dermatologists also use pharmacies that compound drugs.
Justice Breyer wrote a dissent that objected to permitting ads targeting consumers but not physicians. He was joined by Justices Rehnquist, Stevens and Ginsburg.
The court also agreed to decide next term whether states may seal accident-report data collected under a federal highway-safety law. The case was triggered by the refusal of officials in Pierce County, Wash., to turn records over to two families that filed lawsuits after serious accidents.
The families sought to learn if officials knew that a specific intersection might be dangerous.
The Washington Supreme Court said the federal law allowing records to be withheld is unconstitutional and put the case on hold until the point was decided.
Eleven other states agreed that data collected about dangerous intersections should not be used in lawsuits against them.
In other business yesterday, the justices:
Turned away Cincinnati's effort to revive a law creating "drug-exclusion zones," which made the high-crime area known as Over the Rhine off-limits to people arrested in or convicted of certain drug offenses. The justices let stand an Ohio Supreme Court ruling that the 1996 law violated the constitutional right to travel.
Refused to consider a challenge to Nebraska's paternity laws by Luke Armour, who claimed parental rights to a 3-year-old girl he has never seen. His former girlfriend gave the girl up for adoption, and the high court's refusal to hear his appeal leaves the child with her adoptive parents.

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