holding that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and that this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation”
How later courts described this case
- holding that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and that this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation”
- explaining that one of the employer's offered accommodations was insufficient because "[t]hat a tool performs a similar function doesn't make it a proper tool for a particular job" and another offered accommodation was merely a recitation of "a right [the employee] already had"
- holding that employers “who fail to 6|| engage in the interactive process in good faith, face liability for the remedies imposed by the 7|| statute if a reasonable accommodation would have been possible.”
- holding that in light of the defendant’s “failure to engage in the interactive process, liability would be appropriate if ¿ reasonable accommodation would otherwise have been possible”
Written by the judges who cited it.
The opinion
TROTT, Circuit Judge,
with whom Circuit Judges O’SCANNLAIN and KLEINFELD join, dissenting:
In taking this case en banc, we ordered that our deceased colleague Judge Charles Wiggins’s panel opinion be vacated. With all respect, I cannot agree with the majority’s new opinion for our court, and because I am unable to improve on Judge Wiggins’s analysis of the important seniority system issue in this case, I republish here his excellent analysis from his extirpated work.
Moreover, I am troubled by the regrettable position in which we leave employers, employees, and the lawyers who advise them in connection with these important and possibly costly decisions. To require them to deal with a seniority system as “merely one factor” leaves them with no guidance, none at all. This default portends litigation in every case where a seniority system blocking the accommodation is respected, and even possibly in cases where it is not, brought in that instance by aggrieved persons earlier in line for the job.
What to do with seniority systems in this context is a policy question for Congress, one which we as judges have no authority or ability to resolve. We are left with legislation by litigation, and we become a nation not of laws, but of lawyers. In any event, forced to decide, I go with Judge Wiggins, and I express posthumously my thanks for his usual clear vision and remarkable service to our court. Here is how he saw it.
The ADA’s ambiguous legislative history is of little help in determining whether seniority policies should be treated the same under the ADA and the Rehabilitation Act. On one hand, there is evidence that Congress considered seniority rights to be merely one factor in reasonable accommodation analysis under the ADA, rather than a dispositive factor. See S.Rep. No. 101-116, at 32 (1989) (“The collective bargaining agreement could be relevant, however, in determining whether a given accommodation is reasonable. For example, if a collective bargaining agreement reserves certain .jobs for employees with a given amount of seniority, it may be considered as a factor in determining whether it is a reasonable accommodation to assign an employee with a disability without seniority to that job.”) H.R.Rep. No. 101-485, pt. 2, at 63 (1990) (same language), reprinted in 1990 U.S.C.C.A.N. 303, 345. On the other hand, the House and Senate Reports also state that reasonable accommodation does not require “bumping” a more senior employee to create a vacancy (although if the employer chose to do so, such bumping would constitute reasonable accommodation). See S.Rep. No. 101-116, at 32 (1989); H.R.Rep. No. 101-485, pt. 2, at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345.
In the face of this ambiguity, I am persuaded by well-reasoned opinions from other circuits that have concluded that the ADA does not require an employer to give disabled employees preference over non-disabled employees in hiring and reassignment decisions. But this is precisely what Barnett requests. U.S. Air’s seniority system is a decades-old system that controls the duty assignments, shifts, transfers, holidays, etc. of U.S. Air’s approximately fourteen thousand customer service agents. Barnett does not claim that U.S. Air’s policy is illegitimate and an excuse for unlawful discrimination. But Barnett does claim that U.S. Air should have left him in the mailroom position, thus excepting him from its seniority policy, because of his disability. Although many ADA cases have held that reasonable accommodation does not require exempting a disabled employee from a collectively bargained seniority system, see, e.g., Foreman v. Babcock & Wilcox, Co., 117 F.3d 800, 810 (5th Cir.1997); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912-13 (7th Cir.1996); Eckles v. Consolidated Rail Corp., *1126 94 F.3d 1041, 1051 (7th Cir.1996) (adopting a “per se” rule that reasonable accommodation does not require “sacrificing the collectively bargained, bona fide seniority rights of other employees”); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir.1995), Barnett argues that his case is different because U.S. Air’s seniority policy is not the result of a collective bargaining agreement. I reject this argument and agree with a Fifth Circuit panel that, in dicta, found Barnett’s claimed distinction to be irrelevant. In Foreman v. Babcock Wilcox Co., 117 F.3d 800 (5th Cir.1997), the Fifth Circuit rejected a disabled employee’s claim that the ADA required his employer to reassign him to a new position even in the face of a collectively bargained seniority provision that would prohibit the requested transfers. The Court rejected the employee’s argument, making clear that its decision was not based on the special status of collective bargaining agreements.
[E]ven if there were no CBA in place, B & W would not be obligated to accommodate Foreman by reassigning him to a new position. “[W]e do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring disabled persons be given priority in hiring or reassignment over those who are not disabled. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.”
Foreman, 117 F.3d at 810 (quoting Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.1995)).
I agree with the Daugherty court and the other circuits that have interpreted the ADA as requiring no more than equality among disabled and nondisabled employees in hiring and reassignment decisions. This principle was well articulated by a recent Seventh Circuit panel:
While Congress enacted the ADA to establish a “level playing field” for our nation’s disabled workers, it did not do so in the name of discriminating against persons free from disability. Restated, the ADA does not mandate a policy of “affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled.”
Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700 (7th Cir.1998) (quoting Daugherty, 56 F.3d at 700 ); see also Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679 (7th Cir.1998) (“[W]e have been unable to find a single ADA or Rehabilitation Act case in which an employer has been required to reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer, and for good reason. The contrary rule would convert a nondiscrimination statute into a mandatory preference statute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees.”) (internal citations omitted); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384-85 (2d Cir.1996) (“Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.”); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir.1997) (“We are aware of no case under either the ADA or the Rehabilitation Act where an employer has been required to transfer an employee to another position where the employer (independent of concerns about disability) has a business policy against the pertinent kind of transfer.”) But see Aka v. Washington Hospital Center, 156 F.3d 1284, 1305 (D.C.Cir.1998) (en banc) (noting that “[a]n employer is not required to reassign a disabled employee in circumstances ‘when such transfer would violate a legitimate, nondiscriminatory policy of the employer,’ ” but also arguing against the dissent’s claim that the ADA “mandat[es] nothing *1127 more than that the employer allow the disabled employee to submit his application along with all of the other candidates”).
Because Barnett’s proposed accommodation would violate U.S. Air’s legitimate seniority policy, I find that the proposed accommodation is unreasonable under the ADA.