Johnson v. Board of Trustees of the Boundary County School District No. 101

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRISH JOHNSON, 

Plaintiff-Appellant,

v.

No. 10-35233

BOARD OF TRUSTEES OF THE

BOUNDARY COUNTY SCHOOL  D.C. No.

2:09-cv-00061-BLW

DISTRICT NO. 101; DON BARTLING,

in his capacity as Superintendent OPINION

of the Boundary County School

District No. 101,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

December 8, 2010—Seattle, Washington

Filed December 8, 2011

Before: Diarmuid F. O’Scannlain and Richard A. Paez,

Circuit Judges, and Virginia M. Kendall, District Judge.*

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Paez

*The Honorable Virginia M. Kendall, United States District Judge for

the Northern District of Illinois, sitting by designation.

20873

JOHNSON v. BOARD OF TRUSTEES 20875

COUNSEL

Jason Walta, National Education Association, Washington,

D.C., argued the cause for the plaintiff-appellant and filed

briefs. With him on the briefs were James M. Piotrowski and

Marty Durand, Herzfeld & Piotrowski, Boise, Idaho; and John

E. Rumel, Idaho Education Association, Boise, Idaho.

20876 JOHNSON v. BOARD OF TRUSTEES

Bentley G. Stromberg, Clements, Brown & McNichols, P.A.,

Lewiston, Idaho, argued the cause for the defendants-

appellees and filed a brief.

Dennis J. Dimsey, United States Department of Justice, Civil

Rights Division, Washington, D.C., filed a brief on behalf of

amici curiae the United States and United States Equal

Employment Opportunity Commission. With him on the brief

were Thomas E. Perez, Assistant Attorney General, Samuel

R. Bagenstos, Principal Deputy Assistant Attorney General,

and Roscoe Jones, Jr., Attorney, United States Department of

Justice, Civil Rights Division, Appellate Division, Washing-

ton, D.C.; and P. David Lopez, General Counsel, Carolyn L.

Wheeler, Acting Associate General Counsel, Lorraine C.

Davis, Assistant General Counsel, and Anne Noel Occhialino,

United States Equal Opportunity Commission, Office of Gen-

eral Counsel, Washington, D.C.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a disabled teacher is a “qualified

individual with a disability” under the Americans with Dis-

abilities Act.

I

A

Patricia (“Trish”) Johnson, who had a history of depression

and bipolar disorder, taught special education in the Boundary

County School District No. 101 (“District”) in Idaho for a

decade. In May 2007, Johnson entered into a standard teach-

ing contract with the District requiring her “to have and main-

tain the legal qualifications required to teach” special

JOHNSON v. BOARD OF TRUSTEES 20877

education during the 2007-2008 school year. In Idaho,

“[e]very person who is employed to serve in any elementary

school or secondary school in the capacity of teacher . . . shall

be required to have and to hold a certificate issued under

authority of the state board of education.” Idaho Code § 33-

1201. The Idaho State Board of Education (“ISBE”) issued

Johnson a teaching certificate valid from September 1, 2002

to September 1, 2007. Hence, Johnson’s teaching certificate

was set to expire around the start of the 2007-2008 school

year.

To renew her certificate, Johnson was required to complete

at least six semester hours of professional development train-

ing, at least three of which had to be for college credit, during

the five-year period that her certificate was valid. Idaho

Admin. Code § 08.02.02.060.03. During this period, Johnson

completed a number of courses toward renewal of her certifi-

cate; however, by the summer of 2007, she was still short the

required three semester hours of college credit. According to

Johnson, she had taken “much more than just three hours” of

college-level courses by the start of the summer but had not

received any credit because she never paid for the courses.

However, during that summer Johnson experienced a major

depressive episode that rendered her unable to take any col-

lege courses. Shortly before classes resumed in the fall, John-

son met with the District Superintendent, Dr. Don Bartling,

and explained that her certificate would soon expire because

she had failed to complete the three college credits. Superin-

tendent Bartling informed Johnson that she would need to

petition the District’s Board of Trustees (“Board”) to apply

for provisional authorization from the ISBE to teach without

a certificate during the upcoming school year.

School districts in Idaho could apply for provisional autho-

rization to hire teachers who lacked the appropriate certifica-

tion by submitting a letter of request signed by the

superintendent and chair of the board of trustees explaining

20878 JOHNSON v. BOARD OF TRUSTEES

the need for provisional authorization, “outlining the ‘good

faith effort’ the district made in attempting to hire someone

with appropriate certification,” and specifying the teacher’s

qualifications. Upon ISBE approval, the teacher would be

allowed to teach for a nonrenewable one-year term.

Johnson appeared before the Board on September 6, 2007,

and requested that the Board apply for provisional authoriza-

tion for her to teach during the school year. The Board voted

to deny the request. According to the Chairman of the Board,

Melanie Staples, the reason for the denial was that Johnson

“had five years to get those three credits and didn’t approach

administration until just before school started where her cer-

tificate was up.” Staples testified that the Board applied for

provisional authorizations only when there was an open posi-

tion but no certificated teachers available. Because there were

two certificated special education teachers available to teach

in the District, one of them was hired to fill in for Johnson.

The Board mailed a notice of possible nonrenewal of John-

son’s teaching contract for the 2007-2008 school year to

Johnson on October 1, 2007. Two weeks later, the Board held

a hearing to determine whether Johnson had violated the

terms of her contract by allowing her teaching certification to

lapse. Johnson was represented by counsel at the hearing and

given the opportunity to testify and to present evidence. John-

son testified at length about her history of mental illness, as

well as how her depressive episode during the summer of

2007 had prevented her from completing the required college

credits. At the conclusion of the meeting, the Board decided

to “stand on [its] previous decision” not to seek provisional

authorization because of “Ms. Johnson’s lack of action over

the last five years.” Consequently, Johnson was terminated,

and the substitute teacher filling in for her was hired on a full-

time basis.

B

On January 12, 2009, Johnson filed a complaint against the

Board in state court alleging statutory and constitutional due

JOHNSON v. BOARD OF TRUSTEES 20879

process violations, breach of contract, and disability discrimi-

nation in violation of the Idaho Human Rights Act (“IHRA”),

Idaho Code § 67-5909; the Rehabilitation Act of 1973, 29

U.S.C. § 701 et seq.; and the Americans with Disabilities Act

of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. The Board

removed the action to the district court, which entered sum-

mary judgment in the Board’s favor. This timely appeal fol-

lowed.

II

The sole claims remaining on appeal are the disability-

discrimination claims.1 Johnson contends that the district

court erred in concluding that she was not a “qualified indi-

vidual with a disability” within the meaning of the ADA.

A

[1] Title I of the ADA prohibits “discriminat[ion] against

a qualified individual with a disability because of the disabil-

ity of such individual in regard to . . . the hiring, advance-

ment, or discharge of employees.” 42 U.S.C. § 12112(a)

(2007).2 Thus, to prevail on her disability-discrimination

claims, Johnson “first must show that she is a ‘qualified indi-

vidual with a disability.’ ”3 Fredenburg v. Contra Costa Cnty.

1

Johnson does not contest the district court’s conclusion that her ADA

claim is barred because she failed timely to file a charge with the Equal

Employment Opportunity Commission. Hence, we consider only her

Rehabilitation Act and IHRA claims, though we construe such claims as

we would an ADA claim. See Boose v. Tri-Cnty. Metro. Transp. Dist. of

Or., 587 F.3d 997, 1001 n.5 (9th Cir. 2009); Stansbury v. Blue Cross of

Idaho Health Serv., Inc., 918 P.2d 266, 269 (Idaho 1996).

2

The ADA was amended by the ADA Amendments Act of 2008

(“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008). Because the

ADAAA’s effective date is January 1, 2009, 122 Stat. at 3559, and

because we have determined that the ADAAA lacks retroactive effect,

Beccerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir.

2009) (per curiam), we rely on the version of the ADA in effect in 2007.

3

For purposes of summary judgment, the Board does not contest that

Johnson is disabled.

20880 JOHNSON v. BOARD OF TRUSTEES

Dep’t of Health Servs., 172 F.3d 1176, 1178 (9th Cir. 1999).

Moreover, she must show that she was “qualified” at the time

of the alleged discrimination.4 See Weyer v. Twentieth Cen-

tury Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir. 2000).

[2] The ADA defines “qualified individual” as “an individ-

ual who, with or without reasonable accommodation, can per-

form the essential functions of the employment position that

such individual holds or desires.”5 42 U.S.C. § 12111(8). The

Equal Employment Opportunity Commission (“EEOC”), the

agency to which Congress delegated authority to implement

Title I of the ADA, see id. § 12116, has promulgated a regula-

tion expanding this definition, see Equal Employment Oppor-

tunity for Individuals with Disabilities, 56 Fed. Reg. 35,726,

35,735 (July 26, 1991). The EEOC regulation provides that a

“qualified individual with a disability” is one “who satisfies

the requisite skills, experience, education and other job-

related requirements of the employment position such individ-

ual holds or desires, and who, with or without reasonable

accommodation, can perform the essential functions of such

position.” 29 C.F.R. § 1630.2(m) (emphasis added). We have

previously adopted the EEOC’s two-step inquiry as the test

for whether an individual is qualified within the meaning of

the ADA. See Bates v. United Parcel Serv., Inc., 511 F.3d

974, 990 (9th Cir. 2007) (en banc).

B

The Board does not contest that Johnson was physically

and mentally capable of performing the functions of a special

4

Here, the discrimination alleged is the Board’s refusal to apply for pro-

visional authorization, i.e., “not making reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual

with a disability.” 42 U.S.C. § 12112(b)(5)(A).

5

The “essential functions” of a job are defined as the “fundamental job

duties,” not including “the marginal functions of the position.” 29 C.F.R.

§ 1630.2(n)(1).

JOHNSON v. BOARD OF TRUSTEES 20881

education teacher at the time it denied her request for provi-

sional authorization. The Board contends, however, that John-

son’s lack of legal authorization to teach in Idaho rendered

her unqualified pursuant to the first step of the two-step quali-

fication inquiry. Johnson responds that we must consider rea-

sonable accommodation in determining whether she satisfied

the job prerequisites. Because Johnson could have obtained

legal authorization to teach had the Board granted her request

for accommodation, she contends that she met the first step.

[3] Initially, we note that the first step of the qualification

inquiry, unlike the second step, contains no reference to rea-

sonable accommodation. If the EEOC had intended to require

employers to provide reasonable accommodation to ensure

that disabled individuals can satisfy the job prerequisites, in

addition to the essential job functions, it presumably could

have said so in the regulation. That the EEOC declined to

include any reference to reasonable accommodation in the

first step suggests that such omission was deliberate. See

Fedorenko v. United States, 449 U.S. 490, 512 (1981).

Our reading is supported by the EEOC’s interpretive guid-

ance on Title I (“Guidance”). In discussing the qualification

inquiry, the Guidance explains that “[t]he first step is to deter-

mine if the individual satisfies the prerequisites for the posi-

tion, such as possessing the appropriate educational

background, employment experience, skills, licenses, etc.” 29

C.F.R. Pt. 1630, App. to § 1630.2(m). Hence, “the first step

in determining whether an accountant who is a paraplegic is

qualified for a certified public accountant (CPA) position is to

examine the individual’s credentials to determine whether the

individual is a licensed CPA.” Id. Absent from this discussion

is any mention of a requirement that the employer consider

whether the individual could become a licensed CPA with

reasonable accommodation.

[4] According to another section of the Guidance, “the

obligation to make reasonable accommodation is owed only

20882 JOHNSON v. BOARD OF TRUSTEES

to an individual with a disability who is qualified within the

meaning of § 1630.2(m) in that he or she satisfies all the skill,

experience, education and other job-related selection criteria.”

29 C.F.R. Pt. 1630, App. to § 1630.9(a). The Guidance further

provides that “[a]n individual with a disability is ‘otherwise

qualified’ . . . if he or she is qualified for a job, except that,

because of the disability, he or she needs a reasonable accom-

modation to be able to perform the job’s essential functions.”

Id. Such statements make clear that unless a disabled individ-

ual independently satisfies the job prerequisites, she is not

“otherwise qualified,” and the employer is not obligated to

furnish any reasonable accommodation that would enable her

to perform the essential job functions.

The Guidance then provides the following example to illus-

trate when the duty of reasonable accommodation would be

triggered:

For example, if a law firm requires that all incom-

ing lawyers have graduated from an accredited law

school and have passed the bar examination, the law

firm need not provide an accommodation to an indi-

vidual with a visual impairment who has not met

these selection criteria. That individual is not enti-

tled to a reasonable accommodation because the

individual is not “otherwise qualified” for the posi-

tion.

On the other hand, if the individual has graduated

from an accredited law school and passed the bar

examination, the individual would be “otherwise

qualified.” The law firm would thus be required to

provide a reasonable accommodation, such as a

machine that magnifies print, to enable the individ-

ual to perform the essential functions of the attorney

position, unless the necessary accommodation would

impose an undue hardship on the law firm.

JOHNSON v. BOARD OF TRUSTEES 20883

Id. (emphasis added). Again, the Guidance explicitly dis-

claims any requirement of providing reasonable accommoda-

tion to disabled individuals who fail to meet the job

prerequisites on their own.6

C

The EEOC as amicus curiae points out that a different sec-

tion of the Guidance provides that “selection criteria that are

related to an essential function of the job may not be used to

exclude an individual with a disability if that individual could

satisfy the criteria with the provision of a reasonable accom-

modation.” 29 C.F.R. Pt. 1630, App. to § 1630.10 (emphasis

added). Thus, the EEOC asserts that reasonable accommoda-

tion must be considered under the first step of the qualifica-

tion inquiry.7

The Guidance section cited by the EEOC pertains to chal-

lenges to “qualification standards, employment tests or other

6

Johnson concedes that an individual who cannot satisfy the job prereq-

uisites is generally not “qualified” under the first step of the qualification

inquiry but contends that an exception exists “where the employer exer-

cises significant control over an individual’s ability to obtain job-related

qualifications.” We disagree. See EEOC Enforcement Guidance: Reason-

able Accommodation and Undue Hardship under the Americans with Dis-

abilities Act, No. 915.002 (Oct. 17, 2002), at 20 (“There is no obligation

for the employer to assist the individual to become qualified. Thus, the

employer does not have to provide training so that the employee acquires

necessary skills to take a job.” ); see also Williams v. United Ins. Co. of

Am., 253 F.3d 280, 282 (7th Cir. 2001) (holding that an employer is not

required to provide a disabled individual “training that will equip her with

the qualifications for the job . . . that at present she lacks”).

7

Our dissenting colleague suggests that we have not afforded sufficient

deference to the EEOC’s statutory and regulatory interpretations. We dis-

agree. In fact, our conclusion rests on the EEOC’s own regulation and

interpretive guidance. See supra. We part ways on certain aspects of the

EEOC’s litigation position only to the extent that they are off point (as

when the EEOC invokes guidance that is irrelevant on this record) or at

odds with the plain text of the regulation and interpretive guidance.

20884 JOHNSON v. BOARD OF TRUSTEES

selection criteria that screen out or tend to screen out an indi-

vidual with a disability or a class of individuals with disabili-

ties.” See 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.10. We

have previously observed, in the context of a challenge to an

employer’s “facially discriminatory qualification standard,”

that “it would make little sense to require an ADA plaintiff to

show that he meets a qualification standard that he undis-

putedly cannot meet because of his disability and that forms

the very basis of his discrimination challenge.” Bates, 533

F.3d at 988, 990. If the employee succeeds in showing that the

qualification standard “has the effect of discriminating on the

basis of disability,” the burden then shifts to the employer to

show that “the qualification standard is (1) ‘job-related,’ (2)

‘consistent with business necessity,’ and (3) that ‘performance

cannot be accomplished by reasonable accommodation.’ ” Id.

at 994-95 (quoting 42 U.S.C. § 12113(a)).

Here, however, Johnson does not challenge the Board’s

legal authorization requirement as a discriminatory job pre-

requisite. Rather, the basis for Johnson’s discrimination claim

is the Board’s failure to accommodate her disability, which is

analytically distinct from a claim of disparate treatment or

impact under the ADA. See McGary v. City of Portland, 386

F.3d 1259, 1265-66 (9th Cir. 2004). Because Johnson does

not allege, let alone show, that the Board’s requirement was

discriminatory in effect, the Guidance section pertaining to

discriminatory qualification standards is inapposite.8

III

[5] In sum, an individual who fails to satisfy the job pre-

requisites cannot be considered “qualified” within the mean-

ing of the ADA unless she shows that the prerequisite is itself

8

Accordingly, we reject Johnson’s reliance on cases such as Bates and

Rohr v. Salt River Project Agricultural Improvement & Power District,

555 F.3d 850 (9th Cir. 2009), both of which involved challenges to dis-

criminatory qualification standards under 42 U.S.C. § 12112(b)(6).

JOHNSON v. BOARD OF TRUSTEES 20885

discriminatory in effect. Otherwise, the default rule remains

that “the obligation to make reasonable accommodation is

owed only to an individual with a disability who . . . satisfies

all the skill, experience, education and other job-related selec-

tion criteria.” 29 C.F.R. Pt. 1630, App. to § 1630.9(a).

Because Johnson does not allege that the Board’s legal autho-

rization requirement was itself discriminatory, her failure to

satisfy such requirement rendered her unqualified, and the

Board was not required to accommodate her disability.9

The judgment of the district court is

AFFIRMED.

PAEZ, Circuit Judge, concurring in part, dissenting in part:

I concur in the judgment and in Parts I and II(A) of the

majority opinion. At the time of the alleged discrimination,

Patricia Johnson did not possess the required certification to

be employed as a special education teacher by the Boundary

County School District (the “District”). The accommodation

that she sought—provisional authorization for the District to

hire an uncertified teacher—is an accommodation to a local

school district wholly within the discretion of the Idaho State

Board of Education. The District did not have the authority to

grant provisional authorization, and therefore could not grant

Johnson the accommodation she requested. The district court

properly granted summary judgment to the District.

We therefore need not decide whether the Equal Employ-

ment Opportunity Commission (“EEOC”) has properly inter-

preted its own regulation to include a duty of reasonable

accommodation in the first step of the inquiry into whether a

9

In light of our conclusion, we need not consider the Board’s argument

that the requested accommodation was unreasonable.

20886 JOHNSON v. BOARD OF TRUSTEES

person is a “qualified individual” under the Americans with

Disabilities Act (“ADA”).1 See 29 C.F.R. 1630.2(m) (inter-

preting 42 U.S.C. § 12111(8) of the ADA). The majority,

however, proceeds to give its own interpretation of section

1630.2(m) and rejects the reasonable position of the EEOC.

Because the majority does not afford the requisite deference

due to the EEOC’s interpretation of its own regulations, I can-

not agree with Parts II(B), II(C), and III of Judge

O’Scannlain’s opinion.

I.

At the heart of this appeal is the Idaho State Board of Edu-

cation’s procedure for a school district to obtain provisional

authorization to hire an uncertified teacher. The Board of

Education is vested with the authority to issue teaching certif-

icates, which it delegates to the State Department of Educa-

tion. Idaho Admin. Code 08.02.02.016. At the time Johnson

requested a waiver of certification, the Board had created a

procedure through which local school districts could obtain

provisional authorization to hire uncertified teachers.2 To

apply for authorization, a school district is required to submit

a letter with a statement explaining the need for the request,

detailing the qualifications of the individual the district seeks

to hire, and “outlining the ‘good faith effort’ the district made

in attempting to hire someone with appropriate certification.”

The provisional authorization is valid for only one year, is

1

Johnson’s claim under the ADA was properly dismissed by the district

court. This appeal concerns Johnson’s claims under the Idaho Human

Rights Act (“IHRA”), Idaho Code § 67-5909, and the Rehabilitation Act

of 1973, 29 U.S.C. § 701 et seq. We analyze claims under the IHRA and

Rehabilitation Act, however, as we would a claim under the ADA. See

Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir.

1999); Stansbury v. Blue Cross of Idaho Health Serv., Inc., 918 P.2d 266,

269 (Idaho 1996).

2

See Idaho State Bd. of Educ. Summary of Alternative Authoriza-

tion/Routes to Certification, available at http://www.sde.idaho.gov/site/

teacher_certification/alt_routes.htm.

JOHNSON v. BOARD OF TRUSTEES 20887

non-renewable, and the teacher hired must obtain proper certi-

fication in order to continue teaching once the authorization

expires.

The provisional authorization thus grants authority to a

school district to fill a vacancy with an individual who does

not possess the required state certification, but only after it

has been unable to find a certified teacher, having made a

good faith effort to do so. Presumably, a capable but uncerti-

fied teacher is in many cases better than no teacher at all. The

Board’s policy makes clear, however, that provisional autho-

rization to hire an uncertified teacher is an accommodation of

last resort to local school districts, not an accommodation to

a teacher who does not possess the required certification. See

Idaho State Bd. of Educ. Summary of Alternative Authoriza-

tion/Routes to Certification, available at http://www.sde

.idaho.gov/site/teacher_certification/alt_routes.htm (“[T]his

authorization does not lead to certification, it is an emergency

authorization available to school districts.”). The authoriza-

tion process is an exception to Idaho Code § 33-1201, which

provides that “[e]very person who is employed to serve in any

elementary school or secondary school in the capacity of

teacher . . . shall be required to have and to hold a certificate

issued under authority of the state board of education.” Fur-

ther, the authorization process does not provide a school dis-

trict with the authority to waive the certification requirement

by itself at the request of an uncertified teacher; only the

Board may authorize provisional authorization.

In Albertson’s, Inc. v. Kirkingburg, the Supreme Court held

that an employer is not required under the ADA to accept a

governmentally-approved waiver if the waiver regulation does

not alter substantive licensing requirements. 527 U.S. 555,

577-78 (1999) (concluding that a trucking company did not

violate the ADA when it terminated and refused to rehire a

visually impaired driver for failing to meet Department of

Transportation vision acuity standards even after the driver

obtained a waiver from the Department). That is the case here.

20888 JOHNSON v. BOARD OF TRUSTEES

The provisional authorization procedure is a limited exception

to the state certification standards that Idaho public school

teachers must satisfy. Although provisional authorization was

potentially available, the District was not required to utilize

the procedure to rehire Johnson.

This might be a different case if the District had created the

certification requirement or if it had independent authority

and discretion to waive the certification requirement so that it

could rehire Johnson. Under the teacher certification scheme

that Idaho has adopted, however, both of those responsibilities

rest with the State Board of Education. Johnson therefore has

no basis to complain that the District discriminated against

her in violation of the IHRA and the Rehabilitation Act when

it declined to seek provisional authorization from the state.

II.

There is no need to reach the question—as the majority

does in Parts II(B) and II(C) of the opinion—of whether the

District had a duty under the ADA to apply for provisional

authorization to rehire Johnson as a reasonable accommoda-

tion so that she could ultimately renew her certification. In its

Amicus Brief, the EEOC contends that the “district court

erred in failing to ask the controlling question in granting

defendants’ motion for summary judgment: whether the plain-

tiff would have been ‘qualified’ for her teaching position if

she had received the waiver she sought.” Here, the answer to

the EEOC’s question is clearly “No.” As described above, the

provisional authority, if granted, would have permitted the

District to hire Johnson for one year despite the fact that she

did not possess the required state certification. Even if the

Board of Education had granted the District provisional

authorization to hire Johnson, Johnson still would have lacked

the certification required by section 33-1201.

Because Johnson’s claim would fail even if we accepted

the EEOC’s formulation of the relevant legal question, I see

JOHNSON v. BOARD OF TRUSTEES 20889

no need to opine on the persuasiveness of the EEOC’s inter-

pretation of its own regulation implementing the ADA. Yet

not only does the majority opinion do so, it quarrels with the

agency’s interpretation of its own regulation without regard

for the deference we must afford the EEOC. In Auer v. Rob-

bins, the Supreme Court held that where a particular test “is

a creature of the [agency]’s own regulations, [the agency’s]

interpretation of it is, under our jurisprudence, controlling

unless plainly erroneous or inconsistent with the regulation.”

519 U.S. 452, 461 (1997) (internal quotations omitted); see

also Kraus v. Presidio Trust Facilities Div./Residential Mgmt.

Branch, 572 F.3d 1039, 1045 (9th Cir. 2009) (deferring to

EEOC’s interpretation of its own regulation). The Court

explained that such deference is due even where, as here, the

agency’s position is contained in an appellate brief, so long as

the agency is not attempting to defend its own past actions.

Auer, 519 U.S. at 462 (“There is simply no reason to suspect

that the interpretation does not reflect the agency’s fair and

considered judgment on the matter in question.”).

Here, the EEOC, as amicus curiae, argues that an employer

has a duty to provide reasonable accommodation to a prospec-

tive employee if that accommodation would allow the person

to become qualified for the position. The majority rejects the

EEOC’s position for three reasons. First, the majority argues

that the first part of the two-part definition of “qualified” in

29 C.F.R. § 1630.2(m) contains no reference to reasonable

accommodation. Maj. Op. at 20880. Second, the majority

argues that the EEOC’s interpretive guidance, contained in 29

C.F.R. pt. 1630, app. § 1630.2(m), “explicitly disclaims any

requirement of providing reasonable accommodation to dis-

abled individuals who fail to meet the job prerequisites on

their own.” Maj. Op. at 20883. Third, the majority argues that

the EEOC’s position is incorrect because it relies on inappli-

cable regulations and interpretive guidance governing only

facially discriminatory selection criteria. Maj. Op. at

20883-84. None of these arguments show that the EEOC’s

interpretation of 29 C.F.R. § 1630.2(m) is “plainly erroneous

20890 JOHNSON v. BOARD OF TRUSTEES

or inconsistent with the regulation” and does not reflect the

agency’s “fair and considered judgment.” Auer, 519 U.S. at

461-62.

It is undisputed that the first part of the EEOC’s “qualified

individual” test, which asks whether a person “satisfies the

requisite skills, experience, education and other job-related

requirements of the employment position,” does not contain

a reference to reasonable accommodation. 29 C.F.R.

§ 1630.2(m); Bates v. United Parcel Serv., Inc., 511 F.3d 974,

990 (9th Cir. 2007) (en banc). The majority states that the

EEOC “presumably” could have included a reference to rea-

sonable accommodation and that its failure to do so “suggests

that such omission was deliberate.” Maj. Op. at 20881. The

majority similarly argues that the interpretive guidance to that

regulation, also silent as to any duty of reasonable accommo-

dation in assisting an applicant to attain “the appropriate . . .

licenses,” 29 C.F.R. pt. 1630, app. § 1630.2(m), should be

read to preclude a duty of reasonable accommodation. The

majority’s interpretation would not be an unreasonable read-

ing of the regulation in a vacuum. There is no reason to rely

on presumptions and inferences from omissions, however,

because the EEOC has spoken through its Amicus Brief. See

Auer, 519 U.S. at 462 (deferring to agency’s position as stated

in appellate brief to the Supreme Court). I see no reason in the

context of this case to take issue with the EEOC’s interpreta-

tion of section 1630.2.

We should avoid contradicting the EEOC when it interprets

its own guidelines in a manner that is not plainly erroneous

or inconsistent with the governing statute or regulation. The

majority states that the EEOC’s interpretive guidance for sec-

tion 1630(a) “explicitly disclaims” any duty of reasonable

accommodation to individuals who fail to meet the job pre-

requisites on their own. Maj. Op. at 20883. The majority

points to an illustration provided by the EEOC concerning

applicants to a law firm. In that example, the interpretive

guidance states that a law firm has no duty to provide a rea-

JOHNSON v. BOARD OF TRUSTEES 20891

sonable accommodation to an applicant who has not yet

passed the bar, but must provide an accommodation to an

applicant who has successfully passed the bar. 29 C.F.R. pt.

1630, app. § 1630.2(a). The majority interprets this example

to mean that the law firm has no duty to provide a reasonable

accommodation so that the applicant can become qualified for

the position. This reads the EEOC’s guidance too broadly.

The guidance merely states that the duty to provide a rea-

sonable accommodation to an employee so that he can per-

form the essential functions of the job does not exist until the

employee is otherwise qualified. 29 C.F.R. pt. 1630, app.

§ 1630.2(m). This does not preclude the existence of a duty

to assist the employee in becoming otherwise qualified if such

assistance is a “reasonable accommodation.” Because these

are separate questions, there is nothing in the guidance that

“explicitly disclaims” the EEOC’s reasonable position

expressed in its Amicus Brief.

There is also no basis for the majority’s suggestion that the

ADA and the EEOC’s regulation exclude a duty of reasonable

accommodation to allow an applicant to meet qualification

standards unless those standards are facially discriminatory.

We have no doubt declared that 42 U.S.C. § 12112(b)(6), per-

taining to “qualification standards, employment tests or other

selection criteria that screen out or tend to screen out an indi-

vidual with a disability,” applies to standards that are facially

discriminatory against disabled persons. See Bates, 511 F.3d

at 989. There is nothing in our prior decisions, however, pre-

cluding the EEOC’s position that section 12112(b)(6) can also

be read to include facially neutral standards that “screen out

an individual with a disability,” especially when an appropri-

ate waiver system is in place.

In sum, the EEOC’s position expressed in its Amicus Brief

is not plainly erroneous, irrational, or inconsistent with either

the ADA or the EEOC’s regulations and interpretive guid-

ance. Although the rule the majority proposes in Part III of the

20892 JOHNSON v. BOARD OF TRUSTEES

opinion is plausible, it is contrary to the reasonable view of

the EEOC, and we ought to defer to the agency’s reasonable

position rather than attempt to give our own interpretation to

the EEOC’s regulation and the governing statute. Because I

see no reason to reject the EEOC’s position that employers

have a duty to provide reasonable accommodation to disabled

individuals who could satisfy job prerequisites with an

accommodation, I would defer to that position. I therefore

respectfully dissent from Parts II(B), II(C), and III. Nonethe-

less, because the District did not have the authority to grant

Johnson a provisional waiver to the required state certifica-

tion, I concur in the court’s judgment.