# Petition for Writ of Certiorari — US Airways, Inc. v. Barnett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0450%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 535 U.S. 391 ## Text Supe coun, US [) ‘eS 001250 FEB - 1 200 No. oer tice OF THE CLERK IN THE Supreme Court of the Anited States US AIRWAYS, INC., Petitioner, ROBERT BARNETT, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI LAWRENCE M. NAGIN JENNIFER C. MCGAREY US Airways, Inc. 2345 Crystal Drive Arlington, VA 22227 (703) 872-5210 DIPANWITA DEB AMAR O’MELVENY & MYERS LLP 275 Battery Street San Francisco, CA 94111 (415) 984-8700 WALTER E. DELLINGER (Counsel of Record) SRI SRINIVASAN* O’MELVENY & MYERS LLP 555 13th Street, N.W. Washington, D.C. 20004 (202) 383-5300 * Admitted in California ROBERT A. SIEGEL O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071 (213) 430-6000 Attorneys for Petitioner lou) ee QUESTIONS PRESENTED The Americans with Disabilities Act (“ADA”) prohibits covered employers from “discriminating” in the terms and conditions of employment, and defines “discrimination” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise quali- fied individual with a disability who is an applicant or an employee.” 42 U.S.C. § 12112(b)(5)(A). The questions pre- sented in this petition are: l. Whether, as the en banc Ninth Circuit held below, the ADA requires an employer to reassign a disabled em- ployee to a different position as a “reasonable accommo- dation” even though another employee is entitled to hold the position under the employer’s bona fide and estab- lished seniority system, or whether, as other courts of ap- peals have held, the ADA’s “reasonable accommodation” requirement does not compel an employer to disregard the nghts of other employees under its seniority policy. Whether, as the en banc Ninth Circuit held below, evi- dence of an employer’s failure to engage in an interactive process with a disabled employee to identify reasonable accommodations precludes the employer from obtaining summary judgment in an ADA action, or whether, as other courts of appeals have held, any failure on the part of the employer to engage in such an interactive process is of no legal consequence in determining whether the employer violated the ADA. ll CORPORATE DISCLOSURE STATEMENT Petitioner US Airways, Inc., is a wholly owned subsidi- ary of US Airways Group, Inc., a publicly held company. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED ..........:::+:so+ssessesssessoessvessneseeeseeeees i CORPORATE DISCLOSURE STATEMENT ...........0--0--0-: ii TABLE OF AUTHORITIES .........::.:ccescecssessesssessseesseeseeeeeees v ee nemeneesensunsonsneans l a eeenueennanes l CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. .........::cc:ccesseessessessseessesssesenseveee l STATEMENT OF THE CASE.........:cccscesssessesssessvessvesseeeveen l REASONS FOR GRANTING THE WRIT .............-.0-s0000- 11 I. THE NINTH CIRCUIT’S EN BANC HOLDING THAT THE ADA’S “REASONABLE ACCOMMODATION” REQUIREMENT COMPELS REASSIGNMENT OF A DISABLED EMPLOYEE TO A POSITION RESERVED FOR OTHER EMPLOYEES UNDER THE EMPLOYER’S SENIORITY SYSTEM CONFLICTS WITH DECISIONS OF OTHER COURTS OF APPEALS AND WITH THE LETTER AND SPIRIT OF THE a 13 iV TABLE OF CONTENTS (continued) fl. THE NINTH CIRCUIT’S EN BANC HOLDING THAT AN EMPLOYER’S FAILURE TO ENGAGE IN AN “INTERACTIVE PROCESS” PRECLUDES THE GRANT OF SUMMARY JUDGMENT IN THE EMPLOYER’S FAVOR CONFLICTS WITH DECISIONS OF OTHER CIRCUITS AND WITH THE TERMS AND STRUCTURE OF THE ADA......... 20 ET 30 — Page(s) Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir. 1998), cert. denied, 526 U.S. 1144 (1999) ......cccccccsssssssvssssssseeesseseeee 17 Benson v. Northwest Airlines, Inc., oe 17 Brodie v. General Chem. Corp., ae 16 Cassidy v. Detroit Edison Co., os 17 Celotex Corp. v. Catrett, re see Ee tatetinceresnstnnatenessenmntneneneniennmnenniinden 30 Cleveland v. Policy Mgmt. Sys. Corp., Cravens v. Blue Cross & Blue Shield, kL 24 Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678 (7th Cir. 1998)... eee 18, 19 Daugherty v. City of El Paso, ES Ce iiedcitccrenenincsrcinunninmeninnnmmetis 19 Davis v. Florida Power & Light Co., 205 F.3d 1301 (11th Cir. 2000), cert. Fo Gg 17 Donahue v. Consol. Rail Corp., 224 F.3d 226 (3d Cir. 2000)...........-cccecccercceereeseessenees 24, 25 Duckett v. Dunlop Tire Corp., i OU 19 vi TABLE OF AUTHORITIES (continued) Page(s) Eckles v. Consol. Rail Corp., TO 17 EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000)..............ccceceeeseeeeeeeeee 12,19 EEOC v. Sara Lee Corp., No. 00-1534, 2001 WL 20797 NE passim Feliciano v. State of R.1., OE 17, 30 Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir. 1999). ecceeeeeees 21,24 Foley v. Interactive Data Corp., Oe 16 Foreman v. Babcock & Wilcox Co., A GG 15,17 Garcia-Ayala v. Lederle Parenterals, Inc., ON 29 Jackan v. New York State Dep't of Labor, 205 F.3d 562 (2d Cir. 2000), cert. denied, ee ee Se cnrccentonitpilncaiennenetaniniemsmanatas 21,29 Jackson v. Integra, Inc., a 16 Jacques v. Clean-Up Group, Inc., i ED 23 Kralik v. Durbin, i Oe 17 vii TABLE OF AUTHORITIES (continued) Page(s) Moses v. American Nonwovens, Inc., pA Lf) le 4 22, 23 Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000)............ceccccccceeeeeeeeeees 23, 28 Small v. Springs Indus., Inc., gk Ee 16 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999)..0000 eee passim Soto-Ocasio v. Federal Express Corp., st 23 Taylor v. Phoenixville Sch. Dist., 2 es U. 25, 29 Terrell v. USAir, Coen SR 14 Toussaint v. Blue Cross & Blue Shield, 292 N.W.2d 880 (Mich. 1980)..................ccccececeseceeeeeeeees 16 Vajda v. Arthur Andersen & Co., 624 N.E.2d 1343 (Ill. App. Ct. 1993) .0......ccccccceceneneeees 16 Wernick v. Federal Reserve Bank, ig ee 18 Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997) ...00........ccccceceeeeeeeeeees passim Willis v. Pacific Maritime Ass'n, Nos. 97-16778 & 97-16779, 2001 WL ee Ge, Ca Se cccerrnnsesesemenessenins 10, 17 vill TABLE OF AUTHORITIES (continued) Page(s) STATUTES a ease Oe SD cneemnenerseseneestpnsmmenne | as Ge ee cnrencennmnmne | is © Se tetencnnnme 2, 30 ie Oe Ge ctnnnsnmnntinnninnmmensiei 14 ee Oe Se ienccantretnerenenncnnitenememnne 16 A RR 2, 29 a TR © Fr ee ccnersssesemnesnssrermscennnee passim A 26, 29 as Oe ceertinnnincnncntienntntnenicnneiiintiniinamaiii 26, 28 RULES AND REGULATIONS ME 21, 27 29 C.F.R. Pt. 1630, App. § 1630.9 0.0... cceeeeeeeeeeeee 21, 27 OTHER AUTHORITIES : EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, (Mar. 1, 1999] EEOC Compl. Man. SEUUIIITTI Ute lcsiiinisienhihelineitieinscedainiesbeeindenteiatinictiendescnnneestnensuenl 27 PETITION FOR A WRIT OF CERTIORARI Petitioner US Airways, Inc. (“US Airways”), respectfully prays that a writ of certiorari issue to review the en banc judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The en banc opinion of the United States Court of Ap- peals for the Ninth Circuit in this case is reported at 228 F.3d 1105 (9th Cir. 2000), and is reprinted in the Appendix to this Petition (“App.”) at App. la. The opinion of the panel of the Ninth Circuit is reported at 196 F.3d 979 (9th Cir. 1998), and is reprinted at App 41a. The opinions of the Uniied States District Court for the Northern District of California (Jensen, J.) are unreported and are reprinted at App. 79a and App. 88a. JURISDICTION The en banc opinion of the Court of Appeals was issued on October 4, 2000. On December 27, 2000, Justice O’Connor granted petitioner an extension until February 1, 2001, to file this petition. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Americans with Disabilities Act is codified at 42 U.S.C. §§ 12110 et seqg., and pertinent provisions are re- printed at App. 11 la. STATEMENT OF THE CASE The Americans with Disabilities Act (“ADA” or “Act’”) 2 prohibits covered employers from “discriminating” in the terms of employment against a “qualified individual with a disability,” 42 U.S.C. § 12112(a), i.e., “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment posi- tion that such individual holds or desires,” § 12111(8). The ADA defines “discrimination” to encompass “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a dis- ability who is an applicant or an employee, unless [the em- ployer] can demonstrate that the accommodation would im- pose an undue hardship on the operation of the business of such [employer].” § 12112(b)(5)(A). This case involves two important questions regarding the ADA’s “reasonable accommodation” requirement. The first is whether an employer fails to provide “reasonable accom- modations” for a disabled employee by refusing to reassign him to a position that is reserved for more senior employees under the employer’s bona fide and established seniority sys- tem. The second is whether evidence of an employer’s fail- ure to participate in an interactive process with a disabled employee to identify reasonable accommodations is of any legal significance in determining whether the employer has violated the ADA. A. Factual Background. Respondent Robert Barnett (“Barnett”) was employed by US Airways and its predecessor for ten years as a customer service agent. App. 2a. He worked in various positions in that role, including at the gate, ticket counter, ramp area, cargo area, and mailroom. App. 49a-50a. In 1990, Barnett injured his back while working in a cargo position. He at- tempted to return to the cargo position after taking a leave of absence, but was unable to perform the physical require- ments of handling freight. App. 50a. Barnett therefore sought to transfer to another position. Jd. 3 For several decades, US Airways has maintained a sen- iority system for the purpose of equitably determining its employees’ duty assignments, work shifts, layoffs, and — as is especially pertinent here — position transfers. App. 59a. Barnett used his seniority to transfer into a swing-shift posi- tion in the mailroom. App. 2a. In March and August of 1992, both Barnett’s doctor and his chiropractor recom- mended that he avoid heavy lifting and excessive bending and twisting. Jd. The doctor determined that the functions of the swing-shift mailroom position were within Barnett’s physical capabilities. Jd. In August 1992, all of US Airways’ cargo and mailroom positions came open for bidding from employees according to the level of seniority they had attained under the com- pany’s seniority system. App. 50a. Barnett became aware that employees with greater seniority planned to exercise their nghts to transfer into the swing-shift position in the mailroom, and that his senionty thus would only entitle him to a cargo position. App. 2a. On August 31, 1992, Barnett wrote a letter to his supervisor requesting as an accommoda- tion under the ADA that he be assigned to a permanent posi- tion in the mailroom even though other employees had a right to that position under the terms of the company’s sen- iority policy. App. 50a. US Airways responded the next day by creating a tempo- rary “limited duty” position for Barnett in the mailroom. /d. Although under US Airways’ policies such “limited duty” positions usually expire after sixty working days, the com- pany maintained Barnett’s limited duty position for almost five months while they assessed his situation. App. 51a. Barnett’s supervisors met with him on January 20, 1993, informing him that he had insufficient seniority for a regular position in the mailroom, and they could no longer maintain the extra, limited duty position. /d. They further advised Barnett that he would be placed on job injury leave based on 4 their understanding that his condition prevented him from performing the duties of the cargo position to which his sen- iority nights entitled him, and that his salary would be con- tinued for One month. /d. Three days later, Barnett wrote a letter to his supervisors proposing two alternative accommodations to his disability: (1) providing him special lifting equipment for the cargo po- sition; or (2) modifying the cargo position to eliminate all lifting and moving work, leaving only desk work. /d. Within the next several days, US Airways received letters from two of Barnett’s doctors stating that his disability pre- clude‘ nim from working in any position other than in the mailroom. /d. In March 1993, the company denied Bar- nett’s requested accommodations, advising him to bid for another position. /d. Bamett made no subsequent bids for any other position. App. 3a. B. District Court Proceedings. In November 1994, after obtaining a nght to sue letter from the Equal Opportunity Employment Commission (“EEOC”), Barnett filed this action against US Airways in the United States District Court for the Northern District of California. App. 5la. Barnett alleged, inter alia, that US Airways had violated the ADA by (1) denying him the ac- commodations he proposed, and (2) failing to participate in an “interactive process” to identify available accommoda- tions upon learning of his disability. App. 94a.' The district court granted summary judgment in favor of US Airways. App. 79a, 88a. The court initially rejected Barnett’s claim that US Airways had violated the ADA by denying Barnett’s proposed accommodations, concluding ' Barnett also alleged that US Airways had retaliated against him for requesting accommodations for his disability; but both the district court and Ninth Circuit rejected that claim, and it is not in issue here. 5 that none of his proposals involved “reasonable” accommo- dations under the ADA. See 42 U.S.C. § 12112(b)(5)A). First, with respect to Barnett’s request that US Airways as- sign him to a permanent position in the mailroom notwith- standing the seniority nghts of other employees to the posi- tion, the court found “the evidence presented by plaintiff . . . insufficient to create a genuine dispute as to whether plain- tiffs request for a modification of USAir’s seniority system was reasonable.” App. 97a. Such a request, the court rea- soned, “could create significant disruptions in the seniority policy.” Jd. The court also rejected Barnett’s two proposals regarding the cargo position.’ After receiving supplemental briefing, the court then de- nied Barnett’s claim that US Airways had violated the ADA by not participating in an “interactive process.” App. 79a- 87a. Initially, the court rejected US Airways’ contention that any failure to engage in an “interactive process” did not itself afford a basis for liability under the ADA, finding that the EEOC’s regulations and the decisions of other courts spe- cifically envision that employers should engage in an “interactive process.” App. 10la. But US Airways had satisfied the “interactive process” requirement here, the court held, because “any delay in responding to plaintiff's requests for accommodation was attnbutable to efforts made [by US Airways] to determine the scope and extent of plaintiff's in- juries and the possible accommodations that might be avail- able.” App. 83a. ? The court found that Barnett’s request to modify the position to in- clude only its clerical functions was not a reasonable accommodation based on the accepted rule that “reasonable accommodation does not require elimination or reassignment of essential job functions,” App. 98a, and that his request for special lifting equipment was not a reasonable accommodation because he had “not demonstrated that the forklifts pro- vided by [US Airways] were insufficient to allow him to perform the lifting functions of the cargo position,” App. 99a-100a. 6 C. The Ninth Circuit’s Panel Decision. 1. A divided panel of the Ninth Circuit affirmed. App. 41a. The panel majority first addressed whether Barnett’s proposed accommodations were “reasonable” under the ADA, noting that “[t]he question of what constitutes a ‘rea- sonable’ accommodation has been the subject of much litiga- tion across this country.” App. 54a. The majority found that the plaintiff bears the burden of establishing the availability of a reasonable accommodation, and therefore that “follow- ing discovery, the plaintiff ... must be able to point to at least one specific reasonable accommodation that was avail- able to the employer” and that would enable him to perform the position’s essential functions. App. 56a. The burden then “switches to the defendant to show that this accommo- dation would constitute an undue hardship.” Jd. The panel majority found that Barnett had faiied to carry his burden of establishing the availability of a reasonable ac- commodation. The panel first determined that the ADA did not require US Airways to make an exception to its seniority system in order to allow Barnett to obtain a permanent posi- tion in the mailroom. App. 57a. That conclusion was based on “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 em- ployees in hiring and reassignment decisions.” App. 59a. The panel rejected Barnett’s contention that those decisions had no application because US Airways’ seniority policy did not result from a collective bargaining agreement. /d. The principle underlying those decisions, the panel reasoned, is that the ADA only requires “equality among disabled and nondisabled employees in hiring and reassignment deci- sions,” not “discrimina[tion] against persons free from dis- ability,” App. 60a (internal quotation marks omitted). And that principle compelled the conclusion that any accommo- dation requiring “violat[ion] of U.S. Air’s legitimate senior- 5 ity policy .. . is unreasonable under the ADA.” App. 6la. The panel also determined that Barnett’s two requests in re- spect to the cargo position did not constitute reasonable ac- commodations, essentially for the reasons given by the dis- trict court. See App. 62a-63a; supra at 5 n.2. The panel then tured to Barnett’s claim that US Airways violated the ADA by failing to engage in an “interactive process,” concluding that the district court had erred in “holding that an employer can be independently liable for failing to engage in an interactive process.” App. 63a. In the panel’s view, “a failure to engage in an interactive process might expose [an employer] to liability for failing to make reasonable accommodation.” App. 64a-65a. But while “an employer’s decision not to engage in an interactive process [thus] may put it at peril” in a subsequent lawsuit, a failure to participate in an interactive process “does not create liability independent from a resulting failure to accommodate the employee’s disability.” App. 66a. The pertinent question, therefore, is “whether the employer failed to make required reasonable accommodations for the employee.” Jd. 2. Judge Betty Fletcher dissented from the panel deci- sion. Noting that “other circuits ... are split on whether a cause of action exists for failing to engage in an interactive process,” she concluded that the ADA imposes liability against an employer for failing to participate in the interac- tive process. App. 72a. In this case, Judge Fletcher found, the district court erred in determining that US Airways had engaged in the interactive process. And because US Air- ways failed to participate in the interactive process, she con- cluded, “the burden placed on Barnett by the majority” to establish the existence of a reasonable accommodation was “more than he should be required to bear.” App. 78a. Judge Fletcher also rejected the majority’s holding that US Airways was not required to make an exception to its seniority system to enable Barnett to obtain a position in the 8 mailroom. Relying on the EEOC’s enforcement guidelines, she found that “reassignment is a reasonable accommoda- tion” under the ADA “for which disabled employees should have priority.” App. 75a. And because she deemed reas- signment to be a reasonable accommodation even in the face of the seniority rights of other employees, she concluded that the burden should shift to require US Airways to demon- strate that making an exception to its seniority policy would impose “an undue hardship” on the company, 42 U.S.C. § 12112(b)(S)(A). App. 76a. D. The Ninth Circuit’s En Banc Decision. The Ninth Circuit granted en banc review, and a divided court rejected the panel majority’s analysis and reversed the district court’s grant of summary judgment to US Airways, remanding the case for trial. Judge Fletcher authored the en banc majority opinion, essentially tracking the reasoning of her panel dissent. 1. a. Judge Fletcher’s opinion for the en banc court first found “that U.S. Air’s failure to engage in [the interactive] process gives rise to liability under the ADA.” App. 4a. The court rejected US Airways’ submission that “Barnett bears the burden of demonstrating the availability of a reasonable accommodation,” reasoning that “exempt[ing] the employer from the process of identifying reasonable accommodation .. conflicts with the goals of the ADA.” App. 11a. After describing in substantial detail the contours of the “interactive process,” the court set out “the consequences for employers who fail to engage in the interactive process in good faith.” App. 17a. The court held that “employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reason- able accommodation would have been possible.” App. 18a. The court “further h{e]ld that an employer cannot prevail at the summary judgment stage if there is a genuine dispute as 9 to whether the employer engaged in good faith in the interac- tive process.” /d. (emphasis added); see id. (“Therefore, summary judgment is available on/y where there is no genu- ine dispute that the employer has engaged in the interactive process in good faith.”) (emphasis added). The court concluded that there was a genuine dispute here regarding whether US Airways had engaged in the in- teractive process, precluding the grant of summary judgment in the company’s favor. App. 19a-2la. The court specifi- cally addressed Barnett’s two proposals regarding the cargo position and found that US Airways’ response did “not re- flect good faith engagement in the interactive process.” App. 20a. In the court’s view, “[t}his is not a case where it is ob- vious that no modification could enable the employee to per- form the essential functions of the job or where the employee has caused the process to break down,” and Barnett’s pro- posals might have led to establishment of an accommodation if US Airways had participated in the interactive process. /d. “Given U.S. Air’s failure to engage in the interactive proc- ess, liability would be appropriate if a reasonable accommo- dation would otherwise have been possible.” Id. The court remanded for trial on that issue.” b. The en banc court then turned to Barnett’s claim that US Airways should have made an exception to its seniority policy to enable him to ob(.in a permanent position in the mailroom. “The key questions,” the court stated, “are * Because of the court’s conclusions that US Airways was obligated to engage in the interactive process and that Barnett thus did not bear the burden of identifying a reasonable accommodation, see App. | la, the court did not assess outside of its discussion of the interactive process whether Barnett’s two requests in respect to the cargo position were rea- posed accommodations only in the course of elaborating the “conse- quences for employers who fail to engage in the imteractive process in good faith.” App. 17a-2la. 10 whether a seniority systém is a per se bar to reassignment as a reasonable accommodation and whether a disabled em- ployee seeking reasonable accommodation should have pn- ority in reassignment.” App. 21a. The court answered both questions in the affirmative, holding “that reassignment is a reasonable accommodation to which diszhie! employees should have priority over nondisabled empioyees,” id., and “that a seniority system is not a per se bar to reassignment,” App. 27a. While noting that “most circuits [have] held that the ADA does not require an accommodation which conflicts with a collective bargaining agreement,” App. 25a n.9, the court found that a “seniority system without more should not bar reassignment” in the absence of a collective bargaining agreement, App. 26a.* The court acknowledged that an employer's seniority policy still might bar reassignment in a particular case. App. 26a-27a. But instead of assessing that question as part of the inquiry into whether a specific reassignment is a “reasonable accommodation,” the court ruled that an employer has the burden of demonstrating that a “particular reassignment would constitute an undue hardship to the employer,” a showing that the court deemed US Airways not to have made for purposes of summary judgment. App. 27a. As a result, whereas the district court and panel majority had both found that a reassignment that conflicts with the nghts of other em- ployees under an employer's seniority system can never con- stitute a reasonable accommodation, the en banc court held that such a reassignment always presents a reasonable ac- commodation, and that the burden therefore rests with the * & panel of the Ninth Circuit has subsequently held that a proposed accommodaton that conflicts with a semiority system established through collective bargaining is per se not reasonable under the ADA. See Willis v. Pacific Maritime Ass'n, Nos. 97-16778 & 97-16779, 2001 WL 21294 (9th Cir. Jan. 10, 2001). The panel distinguished the en banc decision in Barnett as pertaining only to semority policies that do not arise through collective bargaining. /d. at *4. 11 employer to show that making an exception ito its seniority policy presents an “undue hardship.” 3. Judge Trott, joined by Judges O’Scannlain and Klein- feld, issued a dissenting opinion. In the dissenting judges’ view, the panel majority was correct in concluding that a re- assignment in conflict with an employer's established and bona fide seniority system is not a reasonable accommoda- tion under the ADA. See App. 36a-40a.° REASONS FOR GRANTING THE WRIT The Ninth Circuit’s divided en banc decision raises two important and recurring questions under the ADA, both of which implicate a conflict among the courts of appeals. The first question is whether reassignment of a disabled em- ployee to a position earmarked for another employee under the employer’s established and bona fide seniority system constitutes a reasonable accommodation under the ADA. The second question is whether an employer’s failure to par- ticipate in an “interactive process” to identify potential ac- commodations is of any legal consequence in determining whether the employer violated the Act, including, as the Ninth Circuit held below, by operating to preclude an em- ployer from obtaining summary judgment. The Ninth Cir- cuit’s resolution of each of those questions conflicts not only with the decisions of other federal circuits, but also with the terms, structure, and intent of the ADA. 1. Although the ADA provides that reassignments some- do so where the position is vacant, the N:nth Circuit held that reassignment of a disabled employee is a/ways a reasonable accommodation even if the position is reserved for another employee under the employer’s established and legitimate * Judge O’Scanniain wrote a separate dissenting opimon arguing that Barnett was not disabled under the ADA. See App. 32a-36a. 12 seniority system. That holding squarely conflicts with a de- cision of the Fourth Circuit and is in substantial tension with decisions of the Fifth and Tenth Circuits. And because there is no material distinction under the ADA between employer- established and collectively bargained seniority policies, the decision also is inconsistent with the unanimous view among the circuit courts to have addressed the issue that the ADA pee ee etn nei et ataanae a collective bargaining agreement. shensieeteneliiatiimaiiietiieinns in the other courts of appeals that the ADA “is not a manda- tory preference act,” and so does not require displacing the nghts of other employees under “a legitimate, nondiscrimi- natory policy of the employer.” EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1028 (7th Cir. 2000) (per Posner, J.) (internal quotation marks omitted). The Ninth Circuit’s de- cision stands in stark contrast with those principles, trans- forming a statute that prohibits employers from discriminat- ing against disabled employees into one that requires em- ployers to discriminate against non-disabled employees. That holding raises significant questions regarding the status under the ADA of the bona fide, nondiscriminatory employ- ment policies of all employers covered by the Act. 2. The Ninth Circuit’s holding that a failure to engage in the interactive process precludes an employer from obtaining summary judgment equally merits this Court’s review. The courts of appeals have adopted differing positions regarding the relevance of the interactive process in assessing whether an employer has violated the Act. A number of circuits have correctly held that the interactive process should play no role in assessing whether an employer has violated the Act. A different group of circuits, however, agree with the Ninth Circuit that the interactive process bears on an employer’s liability, particularly at the summary judgment stage. The position of the Ninth Circuit and the other cvurts to 13 attach significance to the inieractive process cannot be squared with the terms and structure of the ADA. The Act itself makes no mention of an “interactive process,” and the EEOC regulations only discuss the “interactive process” as a recommended means of accomplishing the statutory objec- tive of identifying reasonable accommodations, not as an end in itself. There is thus no basis for concluding that a failure to participate in an interactive process should affect the de- termination of whether an employer has violated the Act. In fact, the ADA specifically makes the interactive process relevant to a logically distinct and subsequent issue, viz., whether an employer found to have violated the Act must pay damages. Contrary to the view of the Ninth Circuit, therefore, the interactive process should play no role in de- termining whether an employer has violated the Act, includ- ing at summary judgment. I. THE NINTH CIRCUIT’S EN BANC HOLDING THAT THE ADA’S “REASONABLE ACCOMMO- DATION” REQUIREMENT COMPELS REAS- SIGNMENT OF A DISABLED EMPLOYEE TO A POSITION RESERVED FOR OTHER EMPLOY- EES UNDER THE EMPLOYER’S SENIORITY SYSTEM CONFLICTS WITH DECISIONS OF OTHER COURTS OF APPEALS AND WITH THE LETTER AND SPIRIT OF THE ADA. The Ninth Circuit held below that reassignment of a dis- abled employee is a “reasonable accommodation” under the ADA even if other employees have nghts to the position un- der the employer’s established and bona fide seniority pol- icy, and that an employer therefore must make an exception to its seniority policy unless it can establish that the action “would impose an undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). That holding merits this Court’s review. First, several courts of appeals have reached the opposite conclusion, holding that reassignment 14 at the expense of another employee’s nghts under a seniority policy is not a “reascnable accommodation.” In addition, the issue presents fundamental and recurring questions about the implications of the ADA’s “reasonable accommodation” re- quirement for the nondiscriminatory employment policies of all covered employers. 1. It is an accepted rule that the ADA’s “reasonable ac- commodation” requirement does not compel an employer to create a new position. See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc). In de- scribing the scope of an employer’s obligation to reassign a disabled employee to an existing position, the ADA states that the “term ‘reasonable accommodation’ may include .. . reassignment to a vacant position,” 42 U.S.C. § 12111(9). The statute thus makes clear that a reassignment of a dis- abled employee “may” constitute a “reasonable accommoda- tion” in some circumstances, and can only do so when the position is “vacant.” The Ninth Circuit nonetheless held that reassignment is always a “reasonable accommodation” even if an employer’s legitimate and established seniority policy entitles a different employee to the position, and that an employer thus can ad- here to its policy only by proving an “undue hardship” in the particular circumstances. The decision essentially eliminates an employee’s threshold burden to establish that a reassign- ment is a “reasonable” accommodation, holding that any re- quested reassignment will suffice notwithstanding a more senior employee’s nights to the position and automatically shifting the burden to the employer to establish an “undue hardship.” See Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998) (“A plaintiff does not satisfy her initial burden by simply naming a preferred accommodation,” because “she must show that the accommodation is ‘reasonable.’”’). The Ninth Circuit’s holding that reassignment is a “rea- sonable accommodation” even if another employee is enti- 15 tled to the position under an established seniority policy con- flicts with the opinions of several other circuit courts. In EEOC v. Sara Lee Corp., No. 00-1534, 2001 WL 20797 (4th Cir. Jan. 9, 2001), the Fourth Circuit faced precisely the same situation confronted by the Ninth Circuit below but reached the opposite conclusion. There, as here, the senior- ity policy was internal and not part of a collective bargaining agreement. See id. at *1. But the Fourth Circuit held that a reassignment in conflict with that policy is per se not a rea- sonable accommodation, and that the ADA’s reasonable ac- commodation standard thus does not require an employer to make an exception to its seniority policy. See id. at *4-*6. According to Chief Judge Wilkinson’s opinion for the court, “{a}lthough the ADA allows an employee to transfer to a va- cant position,” there is “no statutory right to supercede Sara Lee’s seniority system.” Jd. at *5. “To mandate that a com- pany exempt workers from this long-standing policy,” the court explained, “would disrupt the legitimate expectations of Sara Lee’s long-time employees.” Jd. at *5. The Fourth Circuit specifically recognized that its decision was in con- flict with the decision below. See id. at *4. The Ninth Circuit’s en banc decision is also in substan- tial tension with the Fifth Circuit’s opinion in Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (Sth Cir. 1997) and the Tenth Circuit’s opinion in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc). Although Foreman involved a collectively bargained seniority system, with the Fifth Circuit holding that the ADA did not require the em- ployer to take action inconsistent with the collective bargain- ing agreement, the court went on to state: “Regardless, even if there were no CBA in place, B & W would not be obli- gated to accommodate Foreman by reassigning him to a new position.” 117 F.3d at 810. The Tenth Circuit adopted an intermediate position in Smith, meanwhile, rejecting the Ninth Circuit’s per se ap- 16 proach and finding that reassignment in conflict with a non- collectively bargained seniority system is an unreasonable accommodation in some circumstances. See Smith, 180 F.3d at 1175-76 (“Because reasonableness is our guide, there may be other important employment policies besides protecting nghts guaranteed under a collective bargaining agreement that would make it unreasonable to require an employer to reassign a disabled employee to a particular job. For exam- ple, an industry may have a well entrenched seniority system which, even though not rooted in a collective bargaining agreement, is so well established that it gives rise to legiti- mate expectations by other, more senior employees to a job that the disabled employee might desire.”’). Not only is the Ninth Circuit’s decision directly in con- flict with the Fourth Circuit’s opinion in Sara Lee Corp. and in substantial tension with opinions from the Fifth and Tenth Circuits, but the conflict deepens when the many decisions involving collectively bargained seniority policies are taken into account. As the Fourth Circuit recognized in Sara Lee Corp., “[njo reason exists for creating a different rule for le- gitimate and non-discriminatory policies that are not a part of a collective bargaining agreement. All workers — not just those covered by collective bargaining agreements — rely upon established company policies.” 2001 WL 20797, at *5.° And a position presumably is equally “vacant” or occu- pied under the ADA, see 42 U.S.C. § 12111(9)(B), regard- less whether the seniority system at issue is employer- implemented or collectively bargained. See Smith, 180 F.3d ° Employer-initiated policies, like collective bargaining agreements, frequently create legal rights. See id.; see also Jackson v. Integra, Inc., 952 F.2d 1260 (10th Cir. 1991); Toussaint v. Blue Cross & Blue Shield, 292 N.W.2d 880, 895 (Mich. 1980); Foley v. Interactive Data Corp., 765 P.2d 373, 388-89 (Cal. 1988); Smail v. Springs Indus., Inc., 357 S.E.2d 452 (S.C. 1987); Vajda v. Arthur Andersen & Co., 624 N.E.2d 1343 (Ii. App. Ct. 1993); Brodie v. General Chem. Corp., 934 P.2d 1263 (Wyo. 1997). 17 at 1170 (“if other employees ... have a legitimate contrac- tual or seniority right to a vacant position, it is not consid- ered vacant for reassignment to the disabled employee’’). The decision below therefore is inconsistent with the unanimous view among the courts of appeals that an ac- commodation that interferes with the seniority rights of other employees under a collective bargaining agreement is per se unreasonable. See Feliciano v. State of R.I., 160 F.3d 780, 786-87 (1st Cir. 1998); Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997); Foreman, 117 F.3d at 809-10; Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998); Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996); Ben- son v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995); Aldrich v. Boeing Co., 146 F.3d 1265, 1271 n.5 (10th Cir. 1998), cert. denied, 526 U.S. 1144 (1999); Davis v. Florida Power & Light Co., 205 F.3d 1301, 1306-07 (11th Cir. 2000), cert. denied, 121 S. Ct. 304 (2000).’ 2. The Ninth Circuit’s decision also conflicts with the broader principle followed in the other courts of appeals that the ADA does not compel an employer to ignore a bona fide, nondiscriminatory employment policy. Indeed, the Fourth Circuit singled out the decision below as the lone outlier when observing that “[v]irtually all circuits that have consid- ered the issue have held that the ADA’s reasonable accom- modation standard does not require an employer to abandon a legitimate and non-discriminatory company policy.” Sara Lee Corp., 2001 WL 20797, at *4 (citing cases). That rule of ’ The Ninth Circuit itself has adopted that position, see Willis v. Pa- cific Maritime Ass'n, Nos. 97-16778 & 97-16779, 2001 WL 21294 (9th Cir. Jan. 10, 2001), distinguishing the decision below as not involving a collective bargaining agreement. There is no basis under the ADA for that distinction, as we have explained, and even if there were, the deci- sion below still squarely conflicts with the Fourth Circuit’s opinion in Sara Lee Corp. and is in tension with the opinions of the Fifth Circuit in Foreman and the Tenth Circuit in Smith. 18 course encompasses seniority policies of the type at issue here. See id. at *5 (“A seniority system provides a prime example of a policy that a company is entitled to respect.”); Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678 (7th Cir. 1998) (“Nothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory company policies defining . . . entitlements to intra~-company transfers.”). Such a policy serves important institutional objectives of consistent and equitable treatment and fair notice, affording a “neutral and non-arbitrary method of resolving sensitive questions in the workplace” and “allow[ing] all workers to know the rules of the game before a decision is made.” Sara Lee Corp., 2001 WL 20797, at *5. The decision below re- quires an employer to upset its employees’ legitimate expec- tations. To be sure, an employer conceivably could attempt to show in a particular case that making an exception to its policy presents an “undue hardship,” but that opportunity in fact is of little practical significance. Because a refusal to make an exception from its policies might well give rise to litigation, and because an employer might not prevail in liti- gation in establishing an “undue burden,” the possibility of guessing wrong will lead the employer to make exceptions to its nondiscriminatory policies in virtually every instance. /d. at *4. (“An employer must . . . be able to set a general policy and avoid uncertainty and litigation over every request for an exception.”’). The Ninth Circuit’s ruling thus essentially converts a statute that bars discrimination against disabled employees into one that requires discrimination against non-disabled employees. That result, as several courts of appeals have held, is “inconsistent with the nondiscriminatory aims of the ADA.” Dalton, 141 F.3d at 679; see Wernick v. Federal Re- serve Bank, 91 F.3d 379, 384-85 (2d Cir. 1996) (“Congress intended simply that disabled persons have the same oppor- tunities available to them as are available to nondisabled per- 19 sons”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (Sth Cir. 1995) (“[W]e do not read the ADA as requiring affirma- tive 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.”). The other circuits therefore have refused to find in the ADA’s reasonable accommodation standard a requiremeni that employers make exceptions to their nondiscriminatory policies. See Dalton, 141 F.3d at 678-89 (temporary light- duty program); Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (11th Cir. 1997) (salary continuation policy).® Of course, the ADA -— like all antidiscrimination laws — requires employers to take measures that benefit a particular * Then Chief Judge Posner’s opinion for the Seventh Circuit in EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000), like- wise concludes that “the Americans with Disabilities Act is n0t a manda- tory preference act,” id. at 1028, and spells out some of the potential problems inherent in the Ninth Circuit’s contrary approach: Suppose that A and B are both applying for the same job, Job X. A was severely disabled years ago and placed in an office job with the company. B was less severely disabled, and not being able to work in his present job has also applied for X. A is not only more severely disabled than B; he is also, let us as- sume, certain to perform the job much better than B, although B meets the minimum qualifications for the job. Under the [EEOC’s] view, B is entitled to the job. Or suppose, to take a variant case, that B is a 29-year-old white male with severe tennis elbow . . . and A is a 62-year-old black woman with no disability, and again they are applying for the same job. Under the [EEOC’s] view, even though A is not only the better applicant but also a member of one of the minority groups that the laws administered by the EEOC are supposed to be protecting, B, the white male, is entitled to the job. Thus on the [EEOC’s] view there is a hierarchy of protec- tions for groups deemed entitled to protection against discrimi- nation. Id. at 1027. 20 set of employees. But where the Ninth Circuit’s decision below diverges from the approach of other courts of appeals is in requiring employers to “trample[] on the rights of other employees” held under legitimate and nondiscriminatory employment policies. Sara Lee Corp., 2001 WL 20797, at *6. This Court should grant review to resolve the disagree- ment among the circuits on the status of nondiscriminatory employment policies under the ADA and the square conflict on the status of an employer’s seniority system. Il. THE NINTH CIRCUIT’S EN BANC HOLDING THAT AN EMPLOYER’S FAILURE TO ENGAGE IN AN “INTERACTIVE PROCESS” PRECLUDES THE GRANT OF SUMMARY JUDGMENT IN THE EMPLOYER’S FAVOR CONFLICTS WITH DECI- SIONS OF OTHER CIRCUITS AND WITH THE TERMS AND STRUCTURE OF THE ADA. The en banc decision below adds to the widespread dis- agreement and confusion among the courts of appeals re- garding the legal consequences under the ADA -— if any — of an employer’s alleged failure to engage in an “interactive process” to identify reasonable accommodations. That im- portant and recurring question warrants this Court’s review. That is particularly so because the Ninth Circuit’s holding that an employer’s failure to engage in the interactive proc- ess precludes the entry of summary judgment in its favor cannot be squared with the terms and structure of the ADA, which simply attach no independent legal significance to the interactive process on the threshold issue of liability. 1. The ADA prohibits an employer from “not making reasonable accommodations” for a disabled employee, 42 U.S.C. § 12112(b)(S)(A), but it does not suggest that an em- ployer’s failure to engage in an “interactive process” to iden- tify reasonable accommodations can itself violate the Act — indeed, the Act makes no reference to the term “interactive 21 process.” The Ninth Circuit’s decision below, like those of the other courts that have reached a similar conclusion, grounds the alleged “interactive process” requirement in the EEOC’s regulations and interpretive guidelines. See App. 9a. Those regulations and guidelines recommend that the employer and employee should engage in an “interactive process” in order “[t]o determine the appropriate reasonable accommodation,” 29 C.F.R. § 1630.2(0)(3), and they outline the suggested contours of that process, see 29 C.F.R. Pt. 1630, App. § 1630.9. As we explain separately, see infra at 25-30, a proper understanding of the terms and structure of the ADA and of the EEOC’s regulations reveals that any failure of an em- ployer to engage in the “interactive process” is of no independent legal consequence in determining whether there has been a violation of the Act. But the more salient point for purposes of assessing whether the issue merits this Court’s review is that the courts of appeals have reached conflicting conclusions on the legal relevance under the ADA of an employer’s nonparticipation in the “interactive process.” Indeed, Judge Fletcher, who authored the Ninth Circuit’s en banc decision below, stated in her dissent from the panel disposition that the “circuits ... are split on whether a cause of action exists for failing to engage in an interactive process.” App. 72a. Other courts of appeals have also explicitly noted the conflict among the circuits. See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999) (“Other circuits have considered [the EEOC’s] regulations and interpretive guidelines” relating to the interactive process “and have written differing interpretations of them.”) (comparing cases); cf. Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000), cert. denied, 121 S. Ct. 314 (2000) (“The ADA envisions an ‘interactive process,” and “[cJourts have struggled to define the appropriate burdens of persuasion when that process breaks down and an employee seeks relief on the ground that his employer failed to ‘reasonably 22 sonably accommodate’ his disability.”’). The division among the circuits on the legal relevance of the “interactive process” implicates three interrelated issues: (1) whether an employer’s failure to participate in the “inter- active process” can independently violate the Act; (2) even if not, whether evidence of such a failure nonetheless can pre- clude an employer from obtaining summary judgment; and relatedly, (3) whether evidence of such a failure affects the plaintiff's burden to identify a reasonable accommodation at summary judgment. In this case, the Ninth Circuit held that “employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been pos- sible,” App. 18a, that “an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interac- tive process,” id., and that the interactive process require- ment precludes “[p]utting the entire burden on the [plaintiff] to identify a reasonable accommodation,” App. 1 1a. By contrast, the Eleventh Circuit has held — correctly, in our view — that the employer’s participation in the interactive process is simply of no independent significance in resolving an ADA claim alleging failure to make reasonable accom- modations, including at summary judgment. According to that court, “the ‘interactive process’ envisioned in the regula- tions” simply does not “carry over to a plaintiff's burden of production in court,” and a failure to engage in that process cannot itself violate the ADA and so has no effect on an em- ployer’s entitlement to summary judgment. Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (affirming summary judgment for employer on the ground that “where a plaintiff cannot demonstrate ‘reasonable accommodation,’ the employer’s lack of investigation into reasonable accom- modation is unimportant”); see Moses v. American Nonwov- ens, Inc., 97 F.3d 446, 448 (11th Cir. 1996). The Ninth Cir- 23 cuit’s decision below noted its disagreement with the Elev- enth Circuit’s approach. See App. 11a, 13a. Other courts of appeals have largely adopted the Elev- enth Circuit’s position that the interactive process is of no independent legal significance in assessing whether the em- ployer has violated the Act’s reasonable accommodation re- quirement, including at summary judgment. e The Seventh Circuit has explicitly agreed with the Elev- enth Circuit that “a plaintiff cannot base a reasonable ac- commodation claim solely on the allegation that the em- ployer failed to engage in an interactive process.” Reh- ling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000) (affirming summary judgment for employer) (cit- ing Willis, 108 F.3d at 285, and Moses, 97 F.3d at 448). e The First Circuit has likewise indicated that failure of the interactive process is of no independent significance in assessing whether an employer has violated the Act. See Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 19 (1st Cir. 1998) (affirming summary judgment for em- ployer, and holding that allegation of employer’s failure to engage in interactive process “is of no moment .. . be- cause no reasonable trier of fact could have found, on this record, that plaintiff was capable of performing the duties of [the position] with or without reasonable ac- commodation.”).” A different group of circuit courts, however, agrees with the Ninth Circuit that a failure to participate in the interactive * Somewhat confusingly, the First Circuit went on to state in the same case that ‘[t]here may well be situations in which the employer's failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodations that amounts to a violation of the ADA,”” id. (quoting Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (ist Cir. 1996)), indicating that a failure to participate in the interactive process might itself violate the ADA in some circumstances. 24 process bears to some degree on an employer’s ability to ob- tain summary judgment: e The Eighth Circuit “tend{s}] to agree with those courts that hold that there is no per se liability under the ADA if an employer fails to engage in an interactive process,” but holds nonetheless “that summary judgment is typi- cally precluded when there is a genuine dispute as to whether the employer acted in good faith and engaged in the interactive process.” Fjellestad, 188 F.3d at 952-53; see Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1022 (8th Cir. 2000) (following Fjellestad and holding that district court erred in granting summary judgment to employer given genuine dispute as to employer’s partici- pation in interactive process). e The Tenth Circuit’s approach appears to be somewhat similar. It ruled in an en banc decision that the plaintiff “will not be entitled to recovery unless he can ... show that a reasonable accommodation was possible and would have led to a reassignment position” even if the employer had “failed to fulfill its interactive obligations,” but that “summary judgment would [nonetheless] be premature if there is a genuine dispute regarding whether [the employer] participated in good faith” in the interac- tive process “in attempting to secure a reassignment posi- tion” for the plaintiff. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc). e The Third Circuit attaches less significance to the inter- active process at summary judgment, but still holds that failure to engage in the process can affect an employer’s entitlement to summary judgment in limited circum- stances. See Donahue v. Consol. Rail Corp., 224 F.3d 226, 234-35 (3d Cir. 2000). In particular, the court re- jected the position that an employer’s nonparticipation in the interactive process can “give rise to an independent cause of action” or can “alone suffic{e] to defeat sum- 25 mary judgment,” but determined that “where a universe of potential accommodations has been identified, if the employer refuses in bad faith to engage in the interactive process, ‘we will not readily decide on summary judg- ment that accommodation was not possible and the em- ployer’s bad faith could have no effect.’”” Jd. at 234-35 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 318 (3d Cir. 1999)). In short, some courts have concluded that the interactive process simply plays no role in determining whether an em- ployer has violated the ADA, while others — including the Ninth Circuit below — have found that failure to engage in the process can affect to various degrees an employer's abil- ity to obtain summary judgment on that question.'° The dif- fering approaches have substantial implications for the litiga- tion of ADA ciaims nationwide, particularly in respect to the availability of summary judgment for employers defending against ADA actions. This Court should take this opportu- nity to review the Ninth Circuit’s en banc decision on that issue and to resolve the confusion among the lower courts. 2. The Ninth Circuit’s holding in respect to the interac- tive process — like that of all courts to attach any legal sig- nificance to the failure of an employer to participate in such a process in assessing whether the employer has violated the Act — also conflicts with the terms and structure of the ADA. a. Neither the statute nor the regulations support the conclusion that an employer’s alleged lack of good-faith par- ticipation in the interactive process should affect the assess- ment of whether the employer has violated the ADA, includ- ing at summary judgment. To begin with, the Act’s provi- sions defining the scope of an employer’s obligations make '° Also, the First Circuit has indicated that an employer's failure to engage in the interactive process can itself violate the ADA in some situations. See n. 9 supra. 26 no mention of an “interactive process.” Instead, they simply prohibit an employer from failing to “make reasonable ac- commodations,” without referring to the process followed by the employer in attempting to accommodate an employee’s disability. 42 U.S.C. § 12112(b)(5)(A). And it would make little sense to conclude that failure to follow a particular pro- cedure in identifying reasonable accommodations can itself constitute a substantive failure to provide reasonable ac- commodations. Otherwise, an employee could show a viola- tion of the ADA even if there was no possible way to ac- commodate his disability. See Willis, 108 F.3d at 285. That the ADA attaches no legal significance to the inter- active process regarding the threshold determination whether an employer has violated the Act is made especially clear by Congress’s assignment of legal significance to an employer’s participation in such a process regarding a wholly different — and logically subsequent — issue, viz., the extent of recovery obtainable against an employer found to have violated the Act. In particular, 42 U.S.C. § 198la, which defines the availability of damages in a reasonable accommodations claim under the ADA, specifies that “damages may not be awarded ... where the covered entity demonstrates good faith efforts, in consultation with the person with the disabil- ity who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommoda- tion.” 42 U.S.C. § 198la(a)(3). Congress thereby provided a safe harbor from damages liability for employers who are found to have violated the Act but who engaged in “good faith efforts” with the disabled employee to “identify and make a reasonable accommodation” upon being “informed ... that accommodation is needed.” Jd. It follows that the interactive process cannot also have bearing on the antece- dent question whether an employer has violated the ADA by failing to make reasonable accommodations. Contrary to the conclusions of the Ninth Circuit and 27 other courts, the EEOC regulations and guidelines do not suggest otherwise. The regulations recommend that “[t]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to engage in an informal, interactive process with the qualified individual with a dis- ability.” 29 C.F.R. § 1630.2(0)(3) (emphasis added). But they do not suggest that the Act independently prohibits an employer from failing to engage in such a process. The EEOC’s “interpretive guidance” is largely to the same effect, advising that the “appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9. And al- though that guidance also indicates that “the employer must make a reasonable effort to determine the appropriate ac- commodation,” id., it does not purport to find that the failure to do so violates the ADA. The EEOC’s “Enforcement Guidance” is likewise framed in the nature of a recommendation, stating that the “employer and the individual with a disability should engage in an informal process.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, [Mar. 1, 1999] EEOC Compl. Man. (CCH) § 902, at 5440 (emphasis added). That manual also specifically notes that an employer’s good faith efforts are relevant to damages (as opposed to the threshold finding of a violation). See id. n.22."' In recommending that employers and employees engage in an interactive process, the EEOC regulations recognize that the interactive process is a means of achieving the ADA’s objective of making reasonable accommodations, '' Even if the EEOC regulations or guidelines purported to conclude that an employer's failure to engage in the interactive process can itself violate the ADA, such a conclusion could not be reconciled with the lan- guage and structure of the Act. 28 and not the end of the law itself. The courts of appeals that correctly attach no independent legal significance to the in- teractive process have reached the same conclusion. See Willis, 108 F.3d at 285 (Eleventh Circuit); Rehling, 207 F.3d at 1015-16 (Seventh Circuit). b. The conclusion of the Ninth Circuit and other courts of appeals that an employer’s failure to engage in the interac- tive process affects the resolution of an ADA claim — includ- ing by altering the standards and burdens at summary judg- ment — rests primarily on two basic misconceptions. The first is that an employer would lack sufficient incentive to participate in an interactive process if the failure to do so had no legal consequence in the adjudication of an ADA claim. See App. 18a (“Without the possibility of liability for failure to engage in the interactive process, employers would have less incentive to engage in a cooperative dialogue. ... Therefore, summary judgment is available only where there is no genuine dispute that the employer has engaged in the interactive process in good faith.”). That is simply incorrect. To begin with, the prospect of facing a lawsuit under the ADA for not making reasonable accommodations presents a powerful incentive to discuss and explore potential accom- modations with the employee. And even if the hope of avoiding litigation altogether were not alone sufficient, the statutory safe harbor from damages liability in any litigation undoubtedly presents a substantial incentive to engage in “good faith efforts” to “identify and make a reasonable ac- commodation.” 42 U.S.C. § 1981la(a)(3). The second misconception is that it would be unfair to place the burden of establishing the existence of a reasonable accommodation on an employee where an employer has failed to engage in the interactive process, because the very purpose of that process is to “identify[] and achiev(e] effec- tive” accommodations and “[e]mployees do not have at their disposal the extensive information concerning possible alter- 29 native positions or possible accommodations which employ- ers have.” App. lla; see Taylor, 184 F.3d at 316. That con- cer, too, is unfounded. Any informational barriers that may exist in the workplace at the time that the interactive process should take place are wholly nonexistent at the time of litiga- tion: the plaintiff in an ADA action has access to the full range of tools of discovery to produce evidence of the exis- tence of a reasonable accommodation. See Jackan, 205 F.3d at 568 n.4 (rejecting suggestion “that placing the burden on the plaintiff to prove the existence of a vacancy is unfair, given the employer’s greater access to this information,” be- cause “[o]}nce the litigation has begun, the plaintiff can util- ize the liberal discovery procedures of the Federal Rules... . to identify vacancies that existed at the pertinent time”).'? There is thus no basis for relieving the plaintiff's burden to identify reasonable accommodations at summary judg- ment — or, alternatively, altering an employer’s ability to ob- tain summary judgment — based on whether the employer participated in the interactive process. The plaintiff bears the burden in an ADA case of identifying a reasonable accom- modation that the employer did not provide, see 42 U.S.C. ' § 12112(a), (b)(5)(A); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000) (“the burden of show- ing reasonable accommodation is on the plaintiff’), and the allocation of that burden remains unaffected by the character of the interactive process, including at the summary judg- " See also Willis, 108 F.3d at 287 (rejecting plaintiff's argument “that, as an employee, she was in no position to know what specific ac- commodations were available or how reasonable they were,” because “[w]hatever may be said of her ‘burden’ as an employee in the day-to- day workplace seeking an accommodation for her condition, Plaintiff - as a litgant bringing an ADA action — has failed to produce evidence (after the completion of discovery) of the existence of any ‘accommoda- tion’ at all, ‘reasonable’ or otherwise”) (emphasis in original). 30 ment stage.'’ After all, “[s]ummary judgment for a defen- dant is appropriate when [a] plaintiff ‘fails to make a show- ing sufficient to establish the existence of an element essen- tial to [her] case, and on which [she] wiil bear the burden of proof at trial.” Cleveland, 526 U.S. at 805-06 (quoting Ce- lotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The Ninth Circuit thus erred in holding that US Airways could not “pre- vail at the summary judgment stage if there [was] a genuine dispute as to whether [it] engaged in good faith in the interactive process.” App. 18a. The interactive process should have nothing to do with whether US Airways was entitled to summary judgment, and, more generally, should have no legal significance in assessing whether an employer failed to make reasonable accommodations in violation of the Act. This Court should grant review to correct the erro- neous decision of the Ninth Circuit and to clarify the stan- dards for resolving “reasonable accommodation” claims un- der the ADA. CONCLUSION For the foregoing reasons, the petition for a writ of cer- tiorari should be granted. This Court has made clear that “[aJn ADA plaintiff bears the bur- den of proving that she is a ‘qualified individual with a disability’ — that is, a person ‘who, with or without reasonable accommodation, can per- form the essential functions’ of her job.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (quoting 42 U.S.C. § 12111(8)). It fol- lows that the plaintiff bears the burden of identifying an available “rea- sonable accommodation.” See Feliciano v. State of R.1., 160 F.3d 780, 786 (1st Cir. 1998) (“The plaintiff, as the party who must prove that he or she can perform the essential functions of the position with or without reasonable accommodation, bears the burden of showing the existence of a reasonable accommodation.”). - LAWRENCE M. NAGIN JENNIFER C. MCGAREY US Airways, inc. 2345 Crystal Drive Arlington, VA 22227 (703) 872-5224 DIPANWITA DEB AMAR O’MELVENY & MYERS LLP 275 Battery Street San Francisco, CA 94111 (415) 984-8700 Respectfully submitted, WALTER E. DELLINGER (Counsel of Record) SRI SRINIVASAN* O’MELVENY & MYERS LLP 555 13th Street, N.W. Washington, D.C. 20004 (202) 383-5300 * Admitted in California ROBERT A. SIEGEL O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071 (213) 430-6000 Attorneys for Petitioner APPENDIX - j fe la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 96-16669 D.C. No. CV-94-03874-DLJ ROBERT BARNETT, Plaintiff-Appellant, V. U.S. AiR, INC. Defendant-Appellee Appeal from the United States District Court for the North- ern District of California D. Lowell Jensen, District Judge, Presiding Filed October 4, 2000 Before: Procter Hug, Jr., Chief Judge, Mary M. Schroeder, Betty B. Fletcher, Harry Pregerson, Diarmuid F. O’Scannilain, Stephen S. Trott, Andrew J. Kleinfeld, A. Wal- lace Tashima, Sidney R. Thomas, Raymond C. Fisher, Ronald M. Gould, Circuit Judges. Opinion by Judge B. Fletcher; Gould, Circuit Judge, with whom Circuit Judge Thomas - joins, ing; O’Scanniain, Circuit Judge, with whom Circuit Judges Trott and Kleinfeld join, Dissenting; Trott, Circuit Judge, with whom Circuit Judges O’Scannlain and Kleinfeld join, Dissenting OPINION B. FLETCHER, Circuit Judge: 2a Robert Barnett brought suit under the Americans with Disabilities Act (ADA) and he appeals the district court’s dismissal on summary judgment of his claims. Barnett, who suffered a serious back injury while on the job, argues that U.S. Air discriminated against him by denying him accom- modation, by failing to engage in the interactive process and by retaliating against him for filing charges with the Equal Employment Opportunity Commission (EEOC). This appeal raises several issues of first impression in this circuit, includ- ing the nature and scope of an employer’s obligation to en- gage in the interactive process, whether reassignment is a reasonable accommodation in the context of a seniority sys- tem and the appropriate standard for evaluating retaliation claims under the ADA. We reverse the district court’s grant of summary judgment in favor of U.S. Air on all claims ex- cept for the retaliation claim and we remand for trial. Robert Barnett worked for ten years as a customer ser- vice agent for U.S. Air and its predecessor Pacific Southwest Airlines. In 1990, Barnett injured his back while working in a cargo position for U.S. Air at San Francisco International Airport. After returning from disability leave, Barnett found that he could not perform all of the physical requirements of handling freight. Barnett used his seniority to transfer into the company’s mail room. In March and August of 1992, Barnett’s doctor and chi- ropractor both recommended that he avoid heavy lifting and excessive bending, twisting, turning, pushing and pulling, and prolonged standing or sitting. The doctor concluded that Barnett could perform the job requirements of the swing- shift mail room position. Barnett learned in August of 1992 that two employees with greater seniority planned to exercise their seniority nght to transfer to the mail room. Once bumped, Barnett’s seniority would have limited him to transferring to jobs in the cargo area. Barnett wrote to his 3a station manager, Robert Benson, on August 31, 1992 and requested that he be allowed to stay in the mail room as a reasonable accommodation under the ADA. U.S. Air did not respond to Bamett for five months but allowed him to remain in the mail room for the period while the company was evaluating his claims. On January 20, 1993, Benson, acting on behalf of U.S. Air, informed Barnett that he would be removed from the mail room and placed on job injury leave. There was no substantive discussion of Barnett’s accommodation request. Following the meeting, Barnett sent Benson a second letter suggesting two alterna- tive of accommodating his disability. Barnett pro- posed either that U.S. Air provide him with special lifting equipment in the cargo facility or that the cargo job be re- structured so that he would do only warehouse office work. Barnett filed formal charges of discrimination with the EEOC in February of 1993. On March 4, 1993, Barnett re- ceived a letter from U.S. Air’s Vice President of Human Re- sources denying Barnett’s alternative requests for accommodation but informing him that he could bid for any job within his restrictions. There is no evidence that Barnett was qualified, without reasonable accommodation, for any other position in San Francisco or elsewhere in the U.S. Air system. Barnett made no subsequent bids for any other position. In August of 1994, the EEOC issued a formal determination that there was reason to believe that U.S. Air had discriminated against Barnett by denying him reasonable accommodation under the ADA. After Barnett filed suit, the district court granted U.S. Air’s motion for summary judgment for all claims except Barnett’s claim that U.S. Air discriminated by not participat- ing in the interactive process. Upon receiving supplementary briefing, the district court granted summary judgment to U.S. Air on the claim as well. Barnett, in his appeal, argues that U.S. Air violated the ADA by failing to engage in the inter- 4a active process, by failing to reassign him to the mail room, by failing to provide other reasonable accommodation and by retaliating against him. II We review de novo the district court’s grant of summary judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1997 (9" Cir. 1996). In determining whether there are any genuine issues of material fact, we must view the evidence in the light most favorable to the nonmoving party. /d. Barnett claims that U.S. Air had an obligation to engage in an interactive process to identify possible reasonable ac- commodations. Barnett further asserts that U.S. Air’s failure to engage in this process gives rise to liability under the ADA. The district court concluded that no employer is liable for failing to engage in the interactive process but that U.S. Air had sufficiently engaged in the interactive process to avoid such liability Although disabled Americans have played prominent roles in our nation’s history, from the founders of our Consti- tution to our longest serving President, they have also faced a long history of exclusion. Congress, in the opening section of the ADA, recognized that some “43,000,000 Americans have one or more physical or mental disabilities” and that: individuals with disabilities are a discrete and insular mi- nority who have been faced with restrictions and limita- tion, subjected to a history of purposeful unequal treat- ment, and relegated to a position of political powerless- ness in our society, based on characteristics that are be- yond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the indi- vidual ability of such individuals to participate in, and contribute to, society; 42 U.S.C. § 12101(a){7). Sa The ADA was designed to end the exclusion_of people with disabilities from the workplace and from other realms of social life. President George Bush explained upon sign- ing the ADA: Today, we’re here to rejoice in and celebrate an- other ‘Independence Day,” one that is long overdue. With today’s signing of the landmark Americans for [sic] Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom ... Today’s legislation brings us closer to that day when no Americans will ever again be deprived of their basic guarantees of life, liberty, and the pursuit of happiness. President George Bush, “Remarks on Signing the Ameri- cans with Disabilities Act of 1990,” (July 26, 1990), re- printed in Bernard D. Reams, Jr., et. al., eds., Disability Law in the United States: A Legislative History of the Americans with Disabilities Act of 1990, Public Law 101-336, Vol. I, Document No. 9 (1992). In introducing the ADA, Senator Harkin called the stat- ute “a broad and remedial bill of rights for individuals with disabilities. It is their emancipation proclamation.” 135 Cong. Rec. S 4984 (May 9, 1989) (statement of Sen. Harkin) reprinted in Disability Law, Vol. V1, Document No. 36. Citing a nationwide poll, Senator Harkin pointed out that sixty-six percent of working-age disabled persons who are not working, or some 8.2 million persons, want to have a job and that eighty-two percent of people with disabilities would give up their government benefits in favor of fill-time employment. /d. at S 4985. Thus, the workplace protec- tions of the ADA are central to the Act’s goals of assuring “equality of opportunity, full participation, independent liv- ing, and economic self-sufficiency” for people with disabili- ties. 42 U.S.C. § 12101(a\8). 6a Title I of the ADA insures full opportunities for people with disabilities in the workplace by requiring reasonable accommodation of employees’ disabilities by their employ- ers. The ADA prohibits employers from discriminating against a disabled employee’ by “not making reasonable ' The district court determined that Barnett was “disabled” under the ADA and U.S. Air concedes that they did not raise this issue to the court on appeal. In his dissent, Judge O’Scanniain argues that U.S. Air has not waived the issue of whether Barnett is “disabled.” However, the law of this circuit is that issues not raised in a party’s opening brief are waived. See Paracaor Finance v. General Elec. Capital Corp., 96 F.3d 1151, 1168 (9" Cir. 1996) (Judge O’Scannlain writing for the court). Only last year, Judge O’Scannlain reaffirmed this principle as the law of our circuit on at least three separate occasions. See Smith v. Marsh, 194 F.3d 1045, 1052 (9 Cir. 1999) (“arguments not raised by a party in its opening brief are deemed waived.”); Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1046 n.7 (9th Cir. 1999) (“Brook- field chose not to argue its trademark dilution claim or its state law causes of action in its opening brief. We accordingly deem those issues waived.”); Zukle v. Regents of University of California, 166 F.3d 1041, 1045 n.10 (9th Cir. 1999) (Zukle did not raise her race, sex or sexual harassment claims in her opening brief; therefore she has waived any appeal from the district court’s grant of summary judgment on these claims.”). Issues are deemed waived, as Judge O’Scannlain has pointed out, despite the existence of supplemental briefing. See Kreisner v. City of San Diego, | F.3d 775, 778 n.2 (9th Cir. 1993). As we explained in Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (internal citation omitted): “We review only issues which are ar- gued specifically and distinctly in a party’s opening brief. We will not manufacture arguments for appellant, and a bare assertion does not pre- serve a claim.” We have consistently regarded issues raised for the first time in reply briefs as waived. See Omega Environmental, Inc. v. Gil- barco, Inc., 127 F.3d 1157, 1167 (9th Cir. 1997); McMillan v. United States, 112 F.3d 1040, 1047 (9” Cir. 1997). Thus, since U.S. Air failed to raise the issue of Barnett’s “disability” in its opening and reply bref, this issue was waived despite the filing of supplemental briefs. As U.S. Air was fit to raise this issue before the district court, before our decision 7a accommodations to the known physical or mental limita- tions of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)/A). The ADA defines a “qualified individual with a disability” as “an indi- vidual with a disability who, with or without reasonable ac- commodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). U.S. Air argues that Barnett is not covered under the ADA because he was not “qualified” for the cargo position due to his disability. If Barnett could perform the essential functions of the cargo position “with or without reasonable accommodation” he would be qualified under the ADA. 42 in Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir. 1997), came down, it had the opportunity to raise the issue in a cross-appeal. Furthermore, the facts of this case do not fit under our ruling in Thompson. In Thompson, the only restriction imposed on the plaintiff was a twenty five pound lifting restriction. Id. at 539. In contrast here, as the dissent concedes, Barnett faced further restrictions regarding pro- longed standing or sitting and excessive or repeated bending, twisting, ally the only “crucial limitation.” There is no basis in the record for this conclusion. The question of whether Barnett is “disabled” is analytically distinct from an analysis of the functions of the mail room position, which the dissent appears to rely on. Nonetheless, the job analysis of the mail room position, which did not involve an assessment of the position’s longed standing or sitting or excessive bending, stooping, pulling or pushing ° 8a U.S.C. § 12112(b)(5)(A). Furthermore, the statutory defini- tion of a “qualified individual” covers individuals who can perform the “essential functions” of a position which the individual either “holds or desires.” Therefore, even if Bar- nett could not perform the essential functions of the cargo position, if he could perform the essential functions of an- other position in the company which he “desires” he is cov- ered under the ADA. The plain language of the statute re- quires this reading of the statute. To read the statute other- wise would render the word “desires” meaningless. See Gustasfon v. Alloyd Co., 513 U.S. 561, 574 (1995) (“the Court will avoid a reading which renders some words alto- gether redundant”). Our conclusion that a “qualified indi- vidual with a disability” includes individuals who could per- form the essential functions of a reassignment position, with or without reasonable accommodation, even if they cannot perform the essential functions of the current position is supported by nearly every circuit which has considered the issue. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161-62 (10" Cir. 1999) (en banc) (collecting cases). Barnett asserts that U.S. Air failed to fulfill its obliga- tion to engage in an interactive process to find a reasonable accommodation. The legislative history makes clear that employers are required to engage in an interactive process with employees in order to identify and implement appro- priate reasonable accommodations. The Senate Report ex- plained that: “A problem-solving approach should be used to identify the particular tasks or aspects of the work envi- ronment that limit performance and to identify possible ac- commodations . . . employers first will consult with and in- volve the individual with a disability in deciding on the ap- propriate accommodation.” S. Rep. No. 101-116, at 34 (1989); see also H.R. Rep. No. 101-485, pt. 2, at 65 (1990). The ADA authorizes the EEOC to issue regulations im- plementing the ADA. See 42 U.S.C. § 12116. The EEOC 9a regulations outline the nature of the interactive process: To determine the appropriate reasonable accommo- dation it may be necessary for the [employer] to ini- tiate an informal, interactive process with the quali- fied individual with a disability in need of the ac- commodation. This process should identify the pre- cise limitations resulting from the disability and po- tential reasonable accommodations that could over- come those limitations. 29 C.F.R. § 1630.2(0)(3). The phrase “may be necessary” is merely a recognition that in some circumstances the employer and employee can easily identify an appropriate reasonable accommodation. Any doubt that the EEOC views the interactive process as a mandatory obligation is resolved by the EEOC’s interpretive guidance, which states that “the employer must make a rea- sonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best deter- mined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1620.9. The EEOC’s Enforcement Guidance also specifies the nature of the interactive process: “The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate accommodation.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual (CCH), § 902, No. 915.002 (March 1, 1999), at 5440. The interactive process is triggered either by a request for accommodation by a disabled employee or by the em- ployer’s recognition of the need for such an accommoda- tion. An employee requesting a reasonable accommodation should inform the employer of the need for an adjustment due to a medical condition using “’plain English’ and need 10a not mention the ADA or use the phrase ‘reasonable accom- modation.’”” /d. at 5438. In some circumstances, according to the EEOC, the employee need not even request the ac- commodation: “An employer should initiate the reasonable accommodation interactive process without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is ex- periencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable ac- commodation.” Jd. at 5459. Almost all of the circuits to rule on the question have held that an employer has a mandatory obligation to engage in the interactive process and that this obligation is tiggered either by the employee’s request for accommodation or by the employer’s recognition of the need for accommodation. See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952 (8 Cir. 1999) (“when the disabled individual requests accommodation, it becomes necessary to initiate the interac- tive process”); Smith, 180 F.3d at 1172 (holding that the duty to engage in the interactive process is triggered once the employee “convey([s] to the employer a desire to remain with the company despite his or her disability and limita- tions” and that “the obligation to engage in an interactive process is inherent in the statutory obligation to offer a rea- sonable accommodation to an otherwise qualified disabled employee”); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999) (holding that the employer’s duty to en- gage in the interactive process is triggered “[o]nce the em- ployer knows of the disability and the employee’s desire for accommodations” and that the employer must “‘meet the employee half-way’” by requesting additional information) (quoting Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7" Cir. 1996)); Bultemeyer, 100 F.3d at 1285 (“The employer has to meet the employee half-way, and if it appears that the employee may need an accommo- lla dation but doesn’t know how to ask for it, the employer should do what it can to help”); Taylor v. Principal Fin. Group Inc., 93 F.3d 155, 165 (5 Cir. 1996) (“Thus, it is the employee’s initial request for an accommodation which triggers the employer’s obligation to participate in the inter- active process of determining one”). But see Willis v. Conopco, 108 F.3d 282, 285 (11™ Cir. 1997) (holding that the plaintiff must produce evidence that a reasonable ac- commodation is available before an employer is obligated to engage in the interactive process).’ U.S. Air argues that Barnett bears the burden of demon- strating the availability of a reasonable accommodation. To put the entire burden for finding a reasonable accommoda- tion on the disabled employee or, effectively, to exempt the employer from the process of identifying reasonable ac- commodation, conflicts with the goals of the ADA. The interactive process is at the heart of the ADA’s process and essential to accomplishing its goals. It is the primary vehi- cle for identifying and achieving effective adjustments which allow disabled employees to continue working with- out placing an “undue burden” on employers. Employees do not have at their disposal the extensive information con- cerning possible alternative positions or possible accommo- dations whieh employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks ? The First Circuit, in Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1* Cir. 1996), opted for a case-by-case approach but explained that “[t}here may well be situations in which the employer’s failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA.” Later cases have suggested that the employee bears the burden of show- ing reasonable accommodation but have continued the case-by-case ap- proach: “[t]hese are difficult, fact intensive, case-by-case analyses, ill- served by per se rules or stereotypes.” Garcia-Ayala v. Lederle Par- enterals, Inc., 212 F.3d 638, 650 (1* Cir. 2000). 12a shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has. As the Third Circuit explained, since the regulations re- quire the interactive process to identify appropriate accom- modations, “it would make little sense to insist that the em- ployee must have arrived at the end product of the interac- tive process before the employer has a duty to participate in that process.” Taylor, 198 F.3d at 316. At the same time, the employee holds essential information for the assessment of the type of reasonable accommodation which would be most effective.’ While employers have superior knowledge regarding the range of possible positions and can more eas- ily perform analyses regarding the “essential functions” of each, employees generally know more about their own ca- pabilities and limitations. The statute further does not allow employers to avoid reasonable accommodation absent a showing of undue hard- ship. The ADA’s reasonable accommodation requirement puts the burden on the employer to show that a proposed * Under the Rehabilitation Act, the Fifth Circuit held that “the bur- den of persuasion in proving inability to accommodate always remains on the employer.” Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5* Cir. 1981). We followed the Fifth Circuit in holding that “the burden of persuasion in proving inability to accommodate always re- mains on the employer.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9” Cir. 1985). However, our later cases under the Rehabilitation Act sug- gested a higher burden for plaintiffs. See Buckingham v. United States, 998 F.2d 735, 740 (9" Cir. 1993) (“[P)laintiffs must only provide evi- dence sufficient to make at least a facial showing that reasonable ac- commodation is possible”); Mustofa v. Clark County Sch. Distr., 157 F.3d 1169, 1176 (9th Cir. 1998) (“{Plaintiff] bears the initial burden of showing that ‘the suggested accommodation would, more probably than not, have resulted in his ability to perform the essential functions of his job”). 13a accommodation will cause undue hardship.* See 42 U.S.C. § 12112(b\(5)(A) (an employer violates the ADA by “not making reasonable accommodations . . . unless such covered entity can demonstrate that the accommodation would im- pose an undue hardship on the operation of the business of such covered entity”.). Therefore, we join explicitly with the vast majority of our sister circuits in 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 trig- gered by an employee or an employee’s representative giv- ing notice of the employee’s disability and the desire for accommodating. In circumstances in which an employee is unable to make such a request, if the company knows of the existence of the employee’s disability, the employer must assist in initiating the interactive process.” We next turn to the requirements of the interactive proc- ess. Both the legislative history and the EEOC regulations detail the nature of the interaction required of employers and employees. The Senate Report outlined four steps which * In analyzing undue hardship, the focus is on the impact of a possi- ble accommodation on the employer. Conversely, in assessing reason- able accommodations the primary focus is on whether the accommoda- tion effectively allows a disabled employee to successfully perform the job. See 29 CFR. pt. 1630, App. § 1630.9. * In keeping with the statutory requirements, employers must notify applicants and employees of the reasonable accommodation provisions, who is entitled to an accommodation and what is necessary to trigger the interactive process. See 42 U.S.C. § 121115 (“Every employer, em- ployment agency, labor organization, or joint labor-management commut- tee covered under this subchapter shall post notices in an accessible for- mat to applicants, employees, and members describing the applicable provisions of this chapter.”). l4a employers should follow when engaging in the interactive process: [T]he Committee believes the employer should con- sider four informal steps to identify and provide an ap- propriate accommodation. The first informal step is to identify barriers to equal opportunity. This includes identifying and distinguish- ing between essential and nonessential job tasks and as- pects of the work environment of the relevant posi- tion(s). ... Having identified the barriers to job performance caused by the disability, the second informal step is to identify possible accommodations. ... Having identified one or more possible accom- modations, the third informal step is to assess the rea- sonableness of each in terms of effectiveness and equal opportunity. ... The final informal step is to implement the ac- commodation that is most appropriate for the employee and the employer and that does not impose an undue hardship on the employer’s operation or to permit the employee to provide his or her own accommodation if it does not impose an undue hardship. ... The expressed choice of the applicant or em- ployee shall be given primary consideration unless an- other effective accommodation exists that would provide a meaningful equal employment opportunity. S. Rep. No. 101-116, at 35 (1989); see also H.R. Rep. No. 101-485, pt. 2, at 66 (1990). The EEOC outlines the four steps critical to the interac- tive process. Once a request for a reasonable accommoda- tion has been made, the EEOC requires an employer to: 15a (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to as- certain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommo- dated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position and; (4) Consider the preference of the individual to be ac- commodated and select the implement the accommoda- tion that is most appropriate for both the employee and the employer. 29 C.F.R. Pt. 1630, App. § 1630.9. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees. The shared goal is to identify an accommodation that allows the employee to per- form the job effectively. Both sides must communicate di- rectly, exchange essential information® and neither side can delay or obstruct the process. See Smith, 180 F.3d at 1172 (“The interactive process includes good-faith communica- tions between the employer and employee.”); Beck v. Uni- * Under the Rehabilitation Act, employers were required to “gather — sufficient information from the applicant and from qualified experts as needed to determine what accommodations are necessary to enable the applicant to perform the job safely.” Mantolete, 767 F.2d at 1423. We note that an employer cannot ask an employee for documentation unre- lated to establishing the existence of a disability and the necessity of ac- commodation. Therefore, an employer generally cannot ask for an em- ployee’s complete medical records because they are likely to contain information unrelated to the disability at issue. See EEOC Enforcement Guidance, EEOC Compliance Manual at 5440. l6a versity of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7™ Cir. 1996) (“A party that obstructs or delays the interactive proc- ess is not acting in good faith. A party that fails to commu- nicate, by way of initiation or response, may also be acting in bad faith.”’). In order to demonstrate good faith, employers can point to cooperative behavior which promotes the identification of an appropriate accommodation. Employers should “meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered employee’s request, and offer and discuss available alternatives when the request is too burdensome.” Taylor, 184 F.3d at 317. The interactive process requires that employers analyze job functions to establish the essential and nonessential job tasks. In order to identify the barriers to job performance, employers must consult and cooperate with disabled em- ployees so that both parties discover the precise limitations and the types of accommodations which would be most ef- fective. The evaluation of proposed accommodations re- quires further dialogue and an assessment of the effective- ness of each accommodation, in terms of enabling the em- ployee to successfully perform the job. See 29 C.F.R. Pt. 1630, App. § 1630.9. Once the employer and employee have identified and assessed the range of possible reasonable accommodations, the legislative history directs that “the expressed choice of the applicant shall be given primary consideration unless another effective accommodation exists that would provide a meaningful equal employment opportunity.” S. Rep. No. 101-116, at 35 (1989); see also H.R. Rep. No. 101-485, at 67 (1990). An appropriate reasonable accommodation must be effective, in enabling the employee to perform the duties of the position. 17a We next turn to the consequences for employers who fail to engage in the interactive process in good faith. The Seventh Circuit held that “courts should attempt to isolate the cause of the breakdown [in the interactive process] and then assign responsibility” so that “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” Beci:, 75 F3d. at 1135-37. Most circuits have held that liability ensues for failure to engage in the interactive process when a reasonable ac- commodation would otherwise have been possible. See Smith, 180 F.3d at 1174; Taylor, 184 F.3d at 317-18; Bulte- meyer, 100 F.3d at 1285; Principal, 93 F.3d at 165. The range of possible reasonable accommodations, for purposes of establishing liability for failure to accommodate, can ex- tend beyond those proposed: an employer who acts in bad faith in the interactive process will be liable if the jury cah reasonably conclude thai the employee would have been abie to perform the job with accommodations. In mak- ing that determination, the jury is entitled to bear in mind that had the employer participated in good faith, there may have been other, unmentioned pos- sible accommodations. Taylor, 184 F.3d at 317-318. A number of circuits have further held that an employer cannot prevail at summary judgmez.i if there is a genuine dispute as to whether the employer engaged in the interac- tive process in good faith. See Fjellestad, 188 F.3d at 953 (“we find that summary judgment is typically precluded when there is a genuine dispute as to whether the employer acted in good faith and engaged in the interactive process of seeking reasonable accommodations”); Taylor, 184 F 3d at 318 (“where there is a genuine dispute about whether the employer acted in good faith, summary judgment will typi- -_- 18a cally be precluded”); Baert v. Euclid Beverage, Lid., 149 F.3d 626, 633-34 (7 Cir. 1998) (refusing to grant an em- ployer summary judgment because disputes of fact remained about which party caused the breakdown in the interactive process). The interactive process is the key mechanism for facili- tating the integration of disabled employees into the work- place. Employers who reject this core process must face liability when a reasonable accommodation would have been possible. Without the interactive process, many em- ployees will be unable to identify effective reasonable ac- commodations. Without the possibility of liability for failure to engage in the interactive process, employers would have less incentive to engage in a cooperative dialogue and to explore fully the existence and feasibility of reasonable ac- commodations. The result would be less accommodation and more litigation, as lawsuits become the only alternative for disabled employees seeking accommodation. This is a long way from the framework of cooperative problem solv- ing based on open and individualized exchange in the work- place that the ADA intended. Therefore, summary judg- ment is available only where there is no genuine dispute that the employer has engaged in the interactive process in good faith. We hold that employers, who fail to engage in the inter- active process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. We further hold that an em- ployer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer en- gaged in good faith in the interactive process.’ ” If an employer fails to participate in or obstructs the interactive process, injunctive relief is an available remedy to insure compliance with the requirement of good faith interaction and to require reasonable 19a In this case, Barnett triggered the interactive process ob- ligation by communicating to U.S. Air his desire for ac- commodation based on his disability. In fact, Barnett went even further and identified, in addition to assignment to the mail room, at least two different accommodations which might have allowed him to remain in the cargo facility. However, U.S. Air appears not to have seriously considered the suggestions. U.S. Air rejected all three of Barnett’s proposed reason- able accommodations and offered no practical alternatives. The special lifting equipment Barnett requested for the Cargo position may well have been an adequate reasonable accommodation. Barnett researched mechanical lifting de- vices and proposed that U.S. Air purchase a low-tech device to assist hirn in the loading and unloading of cargo. U.S. Air’s only offer was for a forklift to lift individual suitcases. Proposing the use of a forklift to lift an individual suitcase is like giving Barnett a shotgun to swat a fly or a Phillips head screwdriver for a flat screw. U.S. Air might as well have told Barnett to use a backhoe. That a tool performs a similar functions doesn’t make it a proper tool for a particular job. Barnett sought a mechanical accommodation to compensate for his disability; U.S. Air, in effect, ignored his request. Thus, U.S. Air’s failure to engage in the interactive process foreclosed at least one potentially reasonable accommoda- tion. It is less clear whether Barnett’s other suggestion of modifying the cargo position to require only desk work was a reasonable accommodation. Although U.S. Air argues that this accommodation would require the elimination of accommodation. See 42 U.S.C. § 12117(a) (making injunctive relief available under Title 1 of the ADA by incorporating the remedies of § 2000e-5). 20a essential functions of the cargo job, it may only have ‘e- quired reassignment of functions among personnel. Al- though U.S. Air had performed a job analysis on the posi- tion in 1992, for purposes of workers’ compensation, this analysis did not involve an assessment of the position’s es- sential functions. The duties of the cargo position were di- vided between front office, warehouse and lifting cargo. Not all cargo agents lifted cargo on any given day and em- ployees were apparently allowed to trade job duties and avoid lifting cargo. Yet, the title of the position is a general one of “cargo agent.” Thus, there is a sufficient factual dis- pute to require further proceedings to evaluate whether this accommodation would have required any elimination of the essential functions of the position. U.S. Air rejected each of Barnett’s several proposed rea- sonable accommodations and merely offered that Barnett could apply for any position for which he was qualified given his restrictions and for which he had sufficient senior- ity. U.S. Air did not seek to have a dialogue with Barnett but instead rejected his proposed accommodations by letter. The time between Barnett’s initial accommodation request and U.S. Air’s rejection letter was nearly five months. This delay and U.S. Air’s failure to communicate do not reflect good faith engagement in the interactive process on the part of U.S. Air. Nor is U.S. Air’s offer to Barnett to bid on other jobs, a nght he already had, a reasonable accommoda- tion of a disabled employee. There is no evidence in the record that Barnett was qualified for any other position, without accommodation, in San Francisco or elsewhere in the U.S. Air system. This is not a case where it is obvious that no modification could enable the employee to perform the essential functions of a job or where the employee has caused the process to break down. Given U.S. Air’s failure to engage in the interactive process, liability would be ap- propriate if a reasonable accommodation would otherwise have been possible. There remains conflicting evidence in 2la the record as to whether a reasonable accommodation with- out undue hardship to the employer was possible. Thus, a triable issue of fact exists on this issue. Il Barnett argues that it would have been a reasonable ac- commodation for U.S. Air to allow him to remain in the mail room, by making an exception to its seniority policy. The ADA explicitly states that reasonable accommodation may include reassignment. See 42 U.S.C. § 12111(9)(B). The key questions are whether a seniority system is a per se bar to reassignment as a reasonable accommodation and whether a disabled employee seeking reasonable accommodation should have priority in reassignment. The EEOC’s enforcement guidance makes it clear that reassignment is a reasonable accommodation to which dis- abled employees should have priority over non-disabled em- ployees and even when transfers are normally not allowed: The ADA requires employers to provide reasonable ac- commodations to individuals with disabilities, including reassignment, even though they are not available to oth- ers. Therefore, an employer who does not normally transfer employees would still have to reassign an em- ployee with a disability, unless it could show that the re- assignment caused an undue hardship. And, if an em- ployer has a policy prohibiting transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship. EEOC Enforcement Guidance, EEOC Compliance Manual at 5454. The EEOC explains that a modification in workplace policy can be a reasonable accommodation, absent undue hardship: “[Reassignment] must be provided to an employee who, because of a disability, can no longer perform the es- sential functions of his/her current position, with or without 22a reasonable accommodation, unless the employer can show that it would be undue hardship.” /d. at 5452. U.S. Air argues that the ADA guarantees Barnett no more than the opportunity to apply for and compete for re- assignment. However, the EEOC leaves no doubt that reas- signment involves more than a mere opportunity for dis- abled employees to compete: “Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.” /d. at 5456. En banc decisions in several circuits adopt the EEOC’s position. In Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc), the D.C. Circuit, sitting en banc, rejected the argument that reassignment entitles a dis- abled employee to nothing more than a chance to compete for a position. The D.C. Circuit explained that the view that the ADA requires no priority for disabled employees in re- assignment “misunderstand[s] both the text and legislative history of the statute, and deviate[s] from the construction of the statute by other circuits ... Indeed the ADA’s reference to reassignment would be redundant if permission to apply were all it meant.” /d. at 1304. The Tenth Circuit, sitting en banc, also made clear that the ADA’s “reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world” and pointed out that reas- signment is “one of the forms of reasonable accommodation specifically mentioned by the statute to be utilized if neces- sary and reasonable to keep an existing disabled employee employed by the company.” Smith, 180 F.3d at 1165. The question of whether an employer’s unilaterally im- posed seniority system trumps a disabled employee’s right to reassignment has not been answered directly by any other 23a circuit.* Although there is no legislative history specifically on a seniority system outside of the collective bargaining context, the legislative history that does exist argues against * At best other circuits have opined in dicta as to what approaches the courts should take. In Smith, 180 F.3d at 1176, the Tenth Circuit, in discussing the various situations an employer might face in making a reassignment opined (although the issue was not before it) that “an indus- try may have a well entrenched seniority system which, even though not rooted in a collective bargaining agreement, is so well established that it gives rise to legitimate expectations by other, more senior employees to a job that the disabled employee might desire. Requiring an employer to disrupt and violate any such well-established reasonable exceptions of seniority nights in order to favor a disabled employee in a job reassign- ment could, at least under some circumstances, constitute a fundamental and unreasonable altercation in the nature of the employer's business.” The court cited in Aka at 156 F.3d at 1305, Aka liad at issue a dispute over Aka’s job qualifications and the meaning of the collective bargain- ing agreement that allowed the employer the latitude in some circum- stances in reassignment of disabled employees after stating “It seems clear that WHC [the employer] had power under Section 14.5 of the CBA to reassign its disabled employees to vacant positions in at least some circumstances.” /d. at 1303. It remanded for trial. The court voncluded with this statement: “Given the large number of contingencies that could preclude such a conflict, we see no need to address whether, if such a conflict arose, the CBA of the ADA would give way in the circumstances of this cases.” /d. at 1306. Aka refers to Dalton v. Subaru-Isuzu Automo- bile, Inc., 141 F.3d 667(7th Cir. 1998). The issue before the Seventh Circuit were the qualifications of disabled employees for available jobs: “If any of the plaintiffs had been able to point to a particular job that was filled by a temporary worker while the plaintiff was on disability leave, and then had been able to show that he of she could have done that job consistent with the relevant qualifications, summary judgment would have been wrong. But no one was able to do so.” /d at 679-680. In dicta, it opined that the duties of the employer under the ADA to reassign do not go so far as to extend [the duty to reassign] “to virtually every other job in a company, from the president to the janitors. Nothing ing the ADA requires and employer to abandon its legitimate, nondiscrimina- tory company policies defining job qualifications, prerequisites, and enti- tlements to intra-company transfers.” /d. 24a any per se rule barring reassignment in the context of seniority systems. The legislative history indicates that a collective bar- gaining agreement can be a factor in determining the rea- sonableness of an accommodation but rejects any per se bar. As explained in the House Report: if a collective bargaining agreement reserves cer- tain jobs for employees with a given amount of seniority, it may be considered as a factor in de- termining whether it is a reasonable accommoda- tion to assign an employee with a disability without seniority to the job. However, the agreement would not be determinative on the is- sue. H.R. Rep. No. 101-485, pt. 2, at 63 (1990); see also S. Rep. No. 101-116, at 32 (1989). In addition to rejecting a per se bar, both reports envision that collective bargaining agree- ments will incorporate provision allowing compliance with the ADA “by ensuring that agreements negotiated after the effective date of this title contain a provision permitting the employer to take all actions necessary to comply with this legislation.” Jd. The EEOC aiso rejects any blanket rule that a collective bargaining agreement trumps a reasonable accommodation: “In the EEOC’s view, such a per se rule nullifies Congress’ intent that undue hardship always be determined on a case- by-case basis.” EEOC Guidance, EEOC Compliance Man- ual at 5463. Instead, the EEOC requires a fact specific analysis which treats the collective bargaining agreement (CBA) as another factor in judging undue hardships: First, an employer should determine if it could provide a reasonable accommodation that would remove the workplace barrier without violating the CBA. If no reasonable accommodation ex- 25a ists that avoids violating the CBA, then the ADA requires an employer and a union, as a collective bargaining representative, to negotiate in good faith a variance to the CBA so that the employer may provide a reasonable accommodation, ex- cept if the proposed accommodation unduly bur- dens the expectations of other workers (i.e., causes undue hardship). Undue hardship must be assessed on a case-by-case basis to determine the extent to which the proposed accommodation would affect the expectations of other employ- ees. Among the relevant factors to assess would be the duration and severity of any adverse ef- fects caused by granting a variance and the num- ber of employees whose employment opportuni- ties would be affected by the variance. Id. Both the legislative history and the EEOC reject any per se rule barring reasonable accommodation even when reas- signment would conflict with a collective bargaining agree- ment.” Here, where there is no collective bargaining agree- * Despite this guidance in the legislative history and the EEOC, most circuits including our own have reached the opposite conclusion and held that the ADA does not require an accommodation which conflicts with a collective bargaining agreement. See Davis v. Florida Power & Light Co., 205 F.3d 1301, 1307 (11 Cir. 2000); Willis v. Pacific Maritime Assoc., 162 F.3d 561 (9th Cir. 1998); Feliciano v. State of Rhode Island, 160 F.3d 780,787 (1* Cir. 1998); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6 Cir. 1998); Kralik v. Durgin, 130 F.3d 76, 83 (3d Cir. 1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5 Cir. 1997); Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1051 (7 Cir. 1996); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10™ Cir. 1995); Benson v. Northwest Airlines, 62 F.3d 1108, 1114 (8" Cir. 1995). Willis has been held in abeyance pending the completion of the en banc proceedings in this case. None of the cases listed in this foomote confronted the ques- 26a ment, no bargained for rights are involved. It would seem that the seniority system without more should not bar reas- signment. Without reassignment as a reasonable accommo- dation, even in the context of a seniority system, the goals of the ADA could easily be frustrated. Any per se rule barring reassignment because of conflicts with a seniority system would sharply limit the range of available accommodations without any required showing of an undue burden on the employer. In many cases this would eliminate the most ef- fective or the only effective reasonable accommodation. A per se bar conflicts with the basic premise of the “ADA, which grounds accommodation in the individualized needs of the disabled employee and the specific burdens which such accommodation places on an employer. Only in the vent of “undue hardship” can a seniority system be a bar to reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A). The ADA defines “undue hardship” as “an action requiring significant difficulty or expense.” 42 U.S.C. 12111(10)(A). The statute offers a list of factors to be considered in ap- praising whether there is undue hardship, including the cost of the accommodation, the overall financial resources of the company and the scope of the employer’s operations. See 42 U.S.C. 12111(10)(B).'° While reassignment might con- tion presented to us — we confront a seniority system not grounded in a collective bargaining agreement. '° The ADA has no language protecting the operation of a “bona fide seniority system” similar to that which is included in Title VII. See 42 U.S.C. § 2000e-2(h). We note that the “undue hardship” standard in the ADA is substantially more demanding than the hardship standard in Title VII in the context of “reasonable accommodation” for the religion of employees. See Trans World Airlines v. Hardison, 432_U.S. 63, 84 (1977); Balint v. Carson City, Nevada, 180 F.3d 1047, 1053 (9” Cir. 1999) (en banc) (relying on Hardison in a religious discrimination claim bought under Title VII). The legislative history supports this interpreta- 27a stitute an undue burden in some cases, courts cannot assume that which is the employer’s burden to prove. We hold that reassignment is a reasonable accommoda- tion and that a seniority system is not a per se bar to reas- signment. However, a seniority system is a factor in the un- due hardship analysis. A case-by-case fact intensive analy- sis is required to determine whether any particular reas- signment would constitute an undue hardship to the em- ployer. If there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if reece rae for a position, should receive the posi- on rather merely have an rtuni non-disabled pote ce — pie aniins Summary judgment was inappropriate in this case. Bar- nett initiated the interactive process and suggested remain- ing in the mail room as his preferred accommodation. U.S. Air did not show that the proposed accommodation was an undue hardship. Bamett already occupied the mail room position at the time of his request for reasonable accommo- dation. Therefore, permanently reassigning Barnett to the mail room position as a reasonable accommodation did not require “bumping” any other employee from the position. While this accommodation would eliminate one position tion. See S. Rep. No. 101-116 at 36 (1989) (“The Committee wishes to make it clear that the principles enunciated by the Supreme Court in TWA v. Hardison, 432 U.S. 63 (1977), are not applicable to this legislation. ); see also H. Rep. No. 101-485, p. 2, at 68 (1990) (“By contrast, under the ADA, reasonable accommodation must be provided unless they rise to the level of ‘requiring significant difficulty or expense’ on the part of the employer, in light of the factors noted in the statute - i.e. a significantly higher standard than that articulated in Hardison. This higher standard is a in light of the crucial role that reasonable accommodation plays in ensuring meaningful lo ti amen z gful employment opportunities for people with 28a from the seniority bid process, U.S. Air has failed to dem- onstrate that doing so would cause an undue hardship. It would need to demonstrate that accommodating Barnett in this fashion would cause undue disruption in its seniority system. In its rebuttal, U.S. Air offered only the statement of its Vice President of Human Resources, who feared a “domino effect,’ and a copy of its seniority policy. Yet the record provides no information concerning the number of ADA claimants at U.S. Air, their seniority, or their need to be accommodated by exceptions to he seniority rules.'’ Mere speculation is insufficient to support summary [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0450%3A02. Public record. Not legal advice.