Amicus Curiae Brief — US Airways, Inc. v. Barnett

— — — — —

Aug 3] 200! 1

00 sees

In the

Supreme Court of the United States

US AIRWAYS, INC.,

Petitioner,

V.

ROBERT BARNETT,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THE NATIONAL

EMPLOYMENT LAWYERS ASSOCIATION,

NATIONAL ASSOCIATION OF PROTECTION AND

ADVOCACY SYSTEMS, BAZELON CENTER FOR

MENTAL HEALTH LAW, DISABILITY RIGHTS

EDUCATION AND DEFENSE FUND, INC. (DREDF)

AND EIGHT OTHER DISABILITY ORGANIZATIONS

IN SUPPORT OF RESPONDENT

PAULA A. BRANTNER BRIAN EAST

Senior Staff Attorney Counsel of Record

NATIONAL EMPLOYMENT ADVOCACY, INCORPORATED

LAWYERS ASSOCIATION 7800 Shoal Creek Blvd.

600 Harrison Street Suite 171-E

Suite 535 Austin, TX 78757-1014

San Francisco, CA 94107 (512) 454-4816

(415) 227-4655

Attorneys for Amici Curiae

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, ET AL.

(Additional Amici Listed on Inside Cover)

Midwest Law Printing Company/Photex Chicago — (312) 321-0220

IBEST AVAILABLE COPY

Amici Curiae Joining This Brief

National Employment Lawyers Association (NELA)

The Arc of the United States (The Arc)

The Association of Higher Education and Disability (AHEAD)

American Association of People with Disabilities (AAPD)

Thc Disability Rights Education and Defense Fund, Inc. (DREDF)

HalfthePlanet Foundation

The Judge David L. Bazelon Center for Mental Health Law

Lambda Legal Defense and Education Fund, Inc. (Lambda)

The National Association of Protection and Advocacy Systems (NAPAS)

The National Association of Rights Protection and Advocacy (NARPA)

National Mental Health Association (NMHA)

The National Mental Health Consumers’ Self-Help Clearinghouse

i

TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES .....................-. iv

INTEREST OF THE AMICI CURIAE ............... 1

SUMMARY OF ARGUMENT ..................... 1

EE Se 3

I. THE NINTH CIRCUIT CORRECTLY HELD

THAT A DISABLED EMPLOYEE WHO

SEEKS THE REASONABLE ACCOMMO-

DATION OF “REASSIGNMENT TO A VA-

CANT POSITION” HAS PRIORITY UNDER

THE ADA FOR SUCH REASSIGNMENT T.. 3

A. Interpreting “Reassignment to a Va-

cant Position” to Mean “Considering an

Employee for Reassignment to a Va-

cant Position” Violates the Plain

Meaning of the Text and Leads to an

F ...e 3

B. According to the Statutory Reassign-

ment“ Language Its Plain Meaning

Does Not Impermissibly Demand

“Preferential Treatment” of Employees

i. eee eee eee 10

II. THE NINTH CIRCUIT CORRECTLY HELD

THAT A SENIORITY SYSTEM IS NOT A

PER SE BAR TO REASSIGNMENT AS A

REASONABLE ACCOMMODATION ........ 14

III.

ü

A. Interpreting Vacant“ to Mean Vacant

Unless Someone Else Has Rights to the

Job under a Seniority System“ Does

Violence to the Plain Meaning of the

Text and to the Purpose of the Reas-

signment Provision

B. Additional Statutory Language, and

the Legislative History Regarding Col-

lective Bargaining Agreements, Fur-

ther Support the Conclusion That Sen-

iority Systems Cannot Be an Absolute

Bar to Reassignment as a Reasonable

666.

C. Accepting Petitioner’s Extra-Statutory

Construction Would Result in a Sub-

stantial Narrowing of Virtually All

Reasonable Accommodations

D. Employers’ Needs for Stability and

Smooth Business Operations Are Le-

gitimately Considered, on an Individu-

alized Basis, under the “Undue Hard-

„

A “REASONABLE ACCOMMODATION”

UNDER THE ADA IS A MODIFICATION

THAT OPERATES IN AN EFFECTIVE

MANNER TO ENABLE A PERSON WITH A

DISABILITY TO PERFORM AJOB .........

CONCLUSION

APPENDIX A: Interest of Amici Curiae

A. The Term “Reasonable Accommoda-

tion” Is a Term of Art That Does Not

Encompass Issues of Cost or Difficulty,

Which Are Part of the “Undue Hard-

ship” Analysis ......... stineendeseces

. Recognizing that a Reasonable Accom-

modation Means an Effective One Re-

sults in a Logical Apportionment of the

r EI Oe EP

iv

TABLE OF AUTHORITIES

Cases: PAGE(S)

Aka v. Washington Hosp. Ctr.,

156 F.3d 1284 (D.C. Cir. 1998)

D eee 4, 5, 17, 21

Albertson s, Inc. v. Kirkingburg,

1 ED .dicdecceesceeteocessoness 20

Alexander v. Choate,

t in tek ed eed bee 25

Barnett v. US Airways, Inc.,

228 F.3d 1105 (9th Cir. 2000) (en banc) ......... 30

Board of Trustees v. Garrett,

531 U.S. 356, 121 S. Ct. 955,

148 L. Ed. 2d 866 (2001777 20, 27

Bragdon v. Abbott,

Z 8, 16, 25

Bryant v. Better Business Bureau of

Greater Maryland, 923 F. Supp.

rr. eee sees eee 26

Citicorp Indus. Credit, Inc. v. Brock,

r ee eee ee 13

Cleveland v. Policy Management Systems

Corp., 526 U.S. 795 (199 900̊̊vv 2 9, 20

Davis v. York Int'l, Inc.,

1993 U.S. Dist. LEXIS 17649

Pe ee ED no enen eee 27

Vv

Dutton v. Johnson County Bd. of Comm vs,

859 F. Supp. 498 (D. Kan. 1994)............... 27

Eckles v. Conrail,

94 F.3d 1041 (7" Cir. 1996) .................. 16

Gardner v. Morris,

752 F.2d 1271 (8 Cir. 1985) .................. 30

Gile v. United Airlines, Inc.,

95 F.3d 492 (7th Cir. 19990) 4, 25

Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit,

ED Bic esse eee 21

Logan v. Pennaco Hosiery,

1997 U.S. Dist. LEXIS 9965

e eee es 29

Mackey v. Lanier Collection Agency

& Service, Inc., 486 U.S. 825 (1988).............. 5

Mason v. Frank,

SB P.BG SUE WO” Cle. eee hh 30

Meritor Sav. Bank v. Vinson,

,, eee 8

Olmstead v. L. C. by Zimring,

. wccceecccccoescccececceess 20

Pate v. Baker Tanks Gulf South, Inc.,

34 F. Supp. 2d 411 (W.D. La. 1999) ............. 29

PGA Tour, Inc. v. Martin,

U.S. __, 121 S. Ct. 1879,

149 L. Ed. 2d 904 (2001) ................ 5, 19, 20

Prewitt v. United States Postal Service,

662 F.2d 292 (5" Cir. 198177 30

Ransom v. Arizona Bd. of Regents,

983 F. Supp. 895 (D. Ariz. 1997) ͥ 777 0

School Bd. of Nassau County v. Arline,

4 EE occ evict seceooccces 6, 20, 24

Smith v. Midland Brake, Inc.,

180 F.3d 1154 (10% Cir. 1999)

Drees ee 5, 9, 20, 21, 22

South Carolina v. Catawba Indian Tribe, Inc.,

eee ese eee es ese 4

Sutton v. United Air Lines, Inc.,

II OTT TTTT TTT Tre 19

Thomas Jefferson University v. Shalala,

11 K 8

Treadwell v. Alexander,

707 F. ad 473 (11™ Cir. 1973) V 30

Vande Zande v. Wisconsin Dept. of Admin.,

44 F.3d 538 (7th Cir. 1995) ... . 26

Zukle v. Regents of the Univ. of Cal.,

166 F.3d 1041(9™ Cir. 19990·-cͥ⸗ũl eee eens 29

vii

Statutes:

e 9

, 9

J can ecbssicedeciecdceds 11,13

43 U.B.C. § enn) 9, 12, 13

e eee 0 6

43 U.S.C. § IBLIMONB) ......ccccccvcvess 1, 4, 14, 21

. bobs cb cbc cceeccsececccdeess 27

SP SED Gob vecescccccccescvecesc 5, 6, 11

. EE db ocddccuseeccovtedvceees- 11

ri eee eee 25

42 U.S.C, § 12112bC SNA ee eee 7, 20, 22

42 U.S.C. § IZLIABNEMB) .. 0... cece eee ee eeee 11

rie. . eee 2, 16

Regulations and Agency Guidance:

r eee 4

Tk 16

r ̃è˙ ˙... 16, 23

GE OPR. een .cccccccccccccccccecss 24

45 C. r. N. $84.12 aN4) 0.0.2... cece cece ccc eces 17

ö. 23

45 C. F. R. g 84.120) ceeccceeeees 24, 28

29 C.F.R. app. § 1630.2(0) ///;tůj 000 eee. 21, 22

29 C. F. R. app. § 1630. 99. 22, 27

45 C. F. R. pt. 84, Appendix A, p. 315 (1985) 24, 29

EEOC Enforcement Guidance: Reasonable

Accommodation and Undue Hardship

Under the Americans with Disabilities

Act (3/1/99), <http://www.eeoc.gov/docs/

accommodation.htm> .................. 8, 15, 22

Legislative Materials:

Kreer passim

H.R. REP. NO.101-485(IIT) ................... 20, 21

e ccadcuoeeuednacesseenns passim

136 Cong. Rec. H2471 (May 17, 1990) ............. 28

Treatises:

Oxford English Dictionary (1971) ............... 4, 15

Richard V. Burkhauser & Mary C. Daly,

Employment and Economic Well-Being

Following the Onset of a Disability: The

Role for Public Policy, in Disability, Work,

and Cash Benefits (Jerry L. Mashaw et al.,

r caus wae 6beeekeedeseeeees es

U.S. Commission on Civil Rights,

ACCOMMODATING THE SPECTRUM OF

INDIVIDUAL ABILITIES 102 (1983) ........... 20, 25

Webster’s Third New International

reer eee eee 4, 15

21 CHARLES A. WRIGHT & KENNETH

A. GRAHAM, FEDERAL PRACTICE &

PROCEDURE § 5122 (1977) ....... . „ 6 6 6 6 66

Chai R. Feldblum, Antidiscrimination

Requirements of the ADA, in

IMPLEMENTING THE AMERICANS WITH

DISABILITIES ACT: RIGHTS AND

RESPONSIBILITIES OF ALL AMERICANS

(L. Gostin & H. Beyer eds. 1992) ............ 25, 28

Richard V. Burkhauser, Lessons from the

West German Approach to Disability

Policy, in Disability & Work: Incentives,

Rights, and Opportunities 85 (Carolyn L.

WE, GE, TIED cc cccccccccccccccsceccecs

Law Reviews:

Bonnie Tucker, The Americans with

Disabilities Act: An Overview,

1989 U. Ill. L. Rev. 923 (1989) ........ccccceees

Chai R. Feldblum, The (RJevolution of

Physical Disability Anti-discrimination

Law: 1976-1996, 20 MENTAL AND PHYSICAL

DISABILITY LAW REPORTER 613 (1996) ....... 23,

Donald Olenick, Accommodating the

Handicapped: Rehabilitating Section

504 After Southeastern, 80 COL. L. REV.

c ¼ tn

J. Harvie Wilkinson III, The Dimensions

of American Constitutional Equality,

55 Law & Contemp. Probs. 235 (Winter

D ⅛ͤrᷣÄ—TTT —ͤ ens

John E. Murray and Christopher J. Murray,

Enabling the Disabled: Reassignment and

the ADA, 83 Mara. L. Rev. 721 (Summer

% TJ K tae

Lee, Reasonable Accommodation Under the

Americans with Disabilities Act: The

Limitations of Rehabilitation Act

Precedent, 14 Berk. J. Emp. & Lab. L.

. / 60600065060046 6s

xi

Mark Martin, Accommodating the

Handicapped: The Meaning of

Discrimination Under Section 504

of the Rehabilitation Act, 55 N.Y.U.

e A („. 25

Robert Burgdorf, The Americans with

Disabilities Act: Analysis and

Implications of a Second - Generation

Civil Rights Statute, 26 Harv. Civ.

Rights-Civ. Lib. L. Rev. 413 (19917777) 9, 21

1

INTEREST OF THE AMICI CURIAE’

This case involves the scope and interpretation of the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,

which protects people with disabilities against discrimina-

tion. Amici are national organizations that advocate on

behalf of people with disabilities. Because many of the

members and clients of these organizations have encoun-

tered discrimination in a variety of employment settings,

amici are concerned about the implications that this

Court’s decision will have for reasonable accommodation of

people with disabilities. (A description of each of the amici

appears in Appendix A.)

SUMMARY OF ARGUMENT

I. The ADA specifically identifies “reassignment to a

vacant position” as a reasonable accommodation. 42 U.S.C.

§ 12111(9)(B). The plain meaning of the ADA’s reassign-

ment language requires the employer to reassign a quali-

fied employee with a disability to a vacant position, if

required as an accommodation, rather than (as the Peti-

tioner contends) force the employee to “bid” on the vacant

position.

Petitioner’s construction is not only contrary to the

statute’s plain language, it renders the ADA’s reassign-

ment language meaningless. Petitioner’s construction is

The consents of the parties have been filed with the Clerk of the Court.

Pursuant to Supreme Court Rule 37.6, counsel for amici curiae state that

no counsel for any party authored this brief in whole or in part. No

— — 83 — custen, Chale crambern, or tatle

counsel, made a monetary contribution to the preparation or submission

of the brief. Amicus NELA also wishes to disclose that a member of its

Executive Board, Patricia A. Shiu, is employed by the same organization

employing counsel for respondent, Claudia Center, but that Ms. Shiu

played no part in the amicus decision-making process or the drafting of

this brief.

also contrary to the legislative history, the EEOC’s inter-

pretation, and Congress’ expressed public policy goals. Fur-

thermore, the difference in the protection afforded appli-

cants, who are entitled to no hiring preference, and the

treatment to be afforded current employees, who require

reassignment, was intentional. There is nothing in the

legislative history or the general findings that can over-

come the plain language of the statute on this point.

II. In the instant case, the mail room position that the

Respondent sought was vacant. Petitioner would have the

Court interpret “vacant” to exclude any position “reserved”

under a non-contractual seniority system, in contravention

of the plain language of the statute. Such a construction

would allow employers to unilaterally create a broad

exemption from the ADA’s central requirement of provid-

ing reasonable accommodations. Furthermore, the ADA

cannot be interpreted to give employees with disabilities

lesser protection than the Rehabilitation Act regulations

afforded, 42 U.S.C. § 12201(a), and the “floor” created by

those regulations, together with the legislative history of

the ADA, prohibits construing a seniority system as an

absolute bar to reassignment. Petitioner’s contrary con-

struction would result in a wholesale restriction on all

kinds of reasonable accommodations, whether seniority-

related or not. That construction is not necessary to afford

employers meaningful protection; rather, such protection

is properly considered, on a case-by-case basis, under the

undue hardship defense.

III. Finally, Petitioner essentially seeks to shift the

burden of disproving the undue hardship defense onto the

plaintiff, once again contrary to the express language of

the statute, by requiring the plaintiff to prove the reason-

ableness of any accommodation sought through a cost-

benefit analysis. This is also illogical, and contrary to the

accepted pre-ADA definition of the term reasonable accom-

modation (upon which the ADA’s definition is based). A

3

“reasonable” accommodation is one that is effective in

allowing the plaintiff to perform the job. The defendant has

the burden of showing that the accommodation would

impose an undue hardship, relying on the cost and other

factors listed in the statute.

ARGUMENT

I. THE NINTH CIRCUIT CORRECTLY HELD THAT A

DISABLED EMPLOYEE WHO SEEKS THE REASON-

ABLE ACCOMMODATION OF “REASSIGNMENT TOA

VACANT POSITION” HAS PRIORITY UNDER THE

ADA FOR SUCH REASSIGNMENT.

A. Interpreting “Reassignment to a Vacant Posi-

tion” to Mean “Considering an Employee for

Reassignment to a Vacant Position” Violates

the Plain Meaning of the Text and Leads to

an Absurd Result.

In the instant appeal, it is uncontested that Respondent

had a disability and needed an accommodation. Petitioner

assumes that the only accommodation that would have

been effective was reassignment.’ Yet the Petitioner re-

fused to reassign the Respondent, causing him to lose his

job. Petitioner attempts to justify its refusal to accommo-

date by arguing that reassignment only means allowing an

employee to “bid” on a vacant job—something the Respon-

dent had the right to do anyway. The plain language of the

statute forecloses that contention.

In contrast to the ADA, the Rehabilitation Act (the

ADA’s predecessor) did not define the term “reasonable

accommodation,” and its implementing regulations did not

* Respondent contests this, suggesting that additional accommodations

were available, and that the position Respondent sought did not con-

stitute a reassignment. While we agree with these contentions, we limit

our argument to the issues raised by Petitioner.

4

include reassignment in the definition of that term. See,

e.g., 29 C.F.R. § 84.12(b). As a result, the pre-ADA case law

usually rejected any obligation to reassign an employee.

See, e.g., Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th

Cir. 1996) (collecting pre-ADA cases).

The ADA, however, expressly states that reasonable ac-

commodation may include “reassignment to a vacant posi-

tion.” 42 U.S.C. § 12111(9XB). Reassignment is the noun

form of the verb “reassign,” meaning to assign again.

Webster’s Third New International Dictionary (1969).

“Assign” is a transitive verb meaning “to appoint (one) to

a post or duty.” Jd. See also the Oxford English Dictionary

(1971) (“To appoint, designate, ordain, depute (a person)

for an office, duty, or fate.”). By definition then, reassign-

ment means to appoint an employee to a new position. “An

employee who is allowed to compete for jobs precisely like

any other applicant has not been ‘reassigned’; he may have

changed jobs, but he has done so entirely under his own

power, rather than having been appointed to a new posi-

tion.” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1302

(D.C. Cir. 1998) (en banc).

Not only is Petitioner’s argument contrary to the plain

language of the statute, but Petitioner cites no other statu-

tory language in the reasonable accommodation provision

(or indeed, anywhere in Title I) that supports its reading.

Petitioner simply seeks to imply a limitation that is not

found in the clear statutory language. Such a limitation is

a matter that must be addressed with Congress, not this

Court.

The ADA must be read in such a way as to attribute

meaning to every provision,’ and a narrow construction of

> It is an “elementary canon of construction that a statute should be

interpreted so as not to render one part inoperative.” *

(contin )

the ADA should be rejected when “inconsistent with the

literal text of the statute as well as its expansive purpose.”

PGA Tour, Inc. uv. Martin, U.S. __, 121 S. Ct. 1879,

1892, 149 L. Ed. 2d 904, 922 (2001) (interpreting the

analogous provision in Title III). Petitioner’s argument

that reassignment only means allowing an employee to

“bid” on a vacant job renders the reassignment provision

meaningless. Petitioner’s position would mean that the

reassignment provision only prohibits an employer from

refusing to consider an employee with a disability for a

particular job. But that is already barred by the ADA’s

anti-discrimination provision. See 42 U.S.C. § 12112(a).

Petitioner’s argument leaves nothing in the reassignment

provision that the anti-discrimination provisions do not

already cover.

An employee who on his own initiative applies for and

obtains a job elsewhere in the enterprise would not be

described as having been “reassigned”; the core word

“assign” implies some active effort on the part of the

employer. Indeed the ADA’s reference to reassignment

would be redundant if permission to apply were all it

~ the ADA already prohibits (such) discrimina-

tion. .

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304 (D.C.

Cir. 1998) (en banc) (footnote omitted). See also Smith v.

Midland Brake, Inc., 180 F.3d 1154, 1164-1165 (10 Cir.

1999) (en banc).

Of course, Petitioner contends that “plenty is left” of the

reassignment provision even under its restrictive interpre-

tation, and gives three reasons for its argument. First, it

suggests that the reassignment provision simply means

that the employer must consider the feasibility of assigning

the worker to a different job in accordance with the em-

ployer’s neutral selection criteria. Pet. Br. at 25-26. Peti-

tioner thus claims that including the term reassignment in

the list of reasonable accommodations was simply a way to

distinguish earlier Rehabilitation Act precedent that found

reassignment was never required.

What is missing from the Petitioner’s analysis, however,

is a recognition that this Court had found that even under

the Rehabilitation Act, while employers were not required

to reassign an employee with a disability, they could not

“deny an employee alternative employment opportunities

reasonably available under the employer’s existing poli-

cies.” School Bd. of Nassau County v. Arline, 480 U.S. 273,

289 n.19 (1987). Thus, Petitioner’s interpretation of the

ADA’s language is nothing more than what this Court had

already determined was required by the Rehabilitation Act

without this language. And as discussed above, the re-

quirement that an employer consider an employee with a

disability for another job “in accordance with the em-

ployer’s neutral selection criteria” is already governed by

another section of the ADA. 42 U.S.C. § 12112(a).

Petitioner’s second explanation for why “plenty is left” is

that including reassignment in the definition of reasonable

accommodation is a way to make clear that if an employee

with a disability transfers to another job, the employer

may need to consider an accommodation in the new posi-

tion. Pet. Br. at 26-27. This argument is simply belied by

the placement of reassignment within the reasonable

accommodation definition. 42 U.S.C. § 12111(9). More to

the point, it cannot be rationally argued that mention of

reassignment was required in order to ensure that an

employer offered needed accommodations in any job that

its employee with a disability might hold. The statute ex-

pressly requires accommodations for both applicants and

7

employees. 42 U.S.C. § 12112(b\5)A). The legislative his-

tory is consistent.

In a last attempt to find some substance to its view of

reassignment, Petitioner argues that including the word

reassignment will “typically” require the employer “to work

with a disabled employee to identify available positions

and to determine the employee’s ability to perform the

responsibilities of (and his degree of interest in) any such

positions.” Pet. Br. at 27. Such assistance may well be part

of an accommodation (although there is nothing in the

statute about it), and as pointed out above, the statute

already requires a reasonable accommodation in a new

position, if necessary. But whatever the value of such help

from the employer, it is surely not a reassignment.

Petitioner’s interpretive efforts are also contrary to the

ADA’s legislative history and the EEOC’s interpretation of

the Act. The legislative history refers to an actual “trans-

fer” to prevent unemployment, not merely “considering”

an employee for another position. Specifically, Congress

found:

Reasonable accommodation may also include reassign-

ment to a vacant position. If an employee, because of

disability, can no perform the essential func-

tions of the job that or he has held, a transfer to

another vacant job for which the person is qualified

may prevent the employee from being out of work and

the] employer from losing a valuable worker. (empha-

sis ).

H.R. REP. NO. 101-485(II), at 63 (1990). Not surprisingly,

perhaps, Petitioner never once cites this passage, nor the

very similar language found in the Senate Report, S. REP.

101-116 at 32.

Moreover, the EEOC flatiy rejects Petitioner’s view. The

agency’s guidance, written in question and answer format,

states:

Does reassignment mean that the employee is permit-

ted to compete for a vacant position? No. 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.

EEOC Enforcement Guidance: Reasonable Accommodation

and Undue Hardship Under the Americans with Disabili-

ties Act, Question 29 (3/1/99), <http://www.eeoc.gov/docs/

accommodation.htm>. According to the EEOC, Petitioner’s

interpretation “nullifies the clear statutory language stat-

ing that reassignment is a form of reasonable accommoda-

tion,” since “even without the ADA, an employee with a

disability may have the right to compete for a vacant

position.” Id. at n.87.°

Finally, there are strong public policy reasons for re-

jecting Petitioner’s extra-textual view. When considering

the ADA, Congress was well aware that unemployment

among people with disabilities was an enormous problem‘

As an administrative interpretation of the ADA, this guidar at least

TD i Fh

courts and litigants properly resort guidance.” Bragdon

Abbott, 524 U.S. 624, 642 (1998); Meritor Sav. Bank v. Vinson, 477 U.S.

57, , 65 (1986). To the extent that the EEOC interpretive guidance is in

terpreting EEOC’s own regulations, — en-

titled to greater deference. See Thomas Jefferson u. Shalala,

512 U.S. 504, 512 (1994).

® Statistically, Congress found that two-thirds of all working age Amer-

icans with disabilities were not working at all, yet two-thirds of those

who were not working wanted to work—over 8 million people. H. REP.

NO. 10148500, at 32; S. REP. NO. 101-116, W 2

(continued...)

with huge financial and social costs.’ Congress also saw the

inadequacies of the Rehabilitation Act, expressly noting

that despite that law, employment rates and income of

people with disabilities continued to fall.* Congress rec-

ognized that reassignment could help to address those

serious problems, finding that “a transfer to another

(continued)

history noted that? not working’ is perhaps the truest definition of what

it means to be disabled in America.” H.R. REP. NO. 101-485(II), at 32.

Congress expressly found that employment discrimination persisted,

42 U.S.C. § 12101(aX3), and that people with disabilities occupied an

inferior status in our society, and were severely disadvantaged vocation-

ally and economically. 42 U.S.C. § 12101). The legislative record

documented the human costs relating to unnecessary dependency, e.g.,

H.R. REP. NO. 101-485(I11), at 43, as well as the huge dollar cost of such

dependency to the country. 42U.S.C. § 12101(aX9) (disability discrimina-

tion “costs the United States billions of dollars in unnecessary expenses

resulting from dependency and nonproductivity”); Cleveland v. Policy

r — Corp., 526 U.S. 795, 801 (1999). See also 8. Rep.

0. 116, at 9.

In fact, support programs for with disabilities were costing our

country billions. Robert Burgdorf, Americans with Disabilities Act:

Analysis and Implications of a Second-Generation Civil Rights Statute,

26 Harv. Civ. Righta-Civ. Lib. L. Rev. 413, 425 nn. 68-69 (1991). See also

H.R. REP. NO. 101-485(II), at 43 (statement by then-President Bush).

See also Smith v. Midland Brake, Inc., supra, 180 F.3d at 1168 (“the

ADA has multiple objectives, and by defining discrimination as it did to

include the failure to offer reasonable accommodations, one of Congress’

objectives was to facilitate economic independence for otherwise qualified

disabled individuals.) Ransom v. Arizona Bd. of Regents, 983 F. Supp.

895, 901 (D. Ariz. 1997) (one of the ADA was “to reduce societal

costs of dependency and vity”).

* The ADA’s legislative history documented, among other things, that

(1) despite the best 2 nee

still lead their lives in an state of isolation and dependence,”

and (2) despite the Rehabilitation Act, the Census Bureau reported (in

July 1989) that the percentage of men with a work disability who were

full time fell 7 percent between 1981 and 1988, and the income

of workers with disabilities dropped sharply compared to other workers.

H.R. REP. NO. 101-485(II), at 32 (1990). These census results were also

reported in Bonnie Tucker, The Americans with Disabilities Act: An

Overview, 1989 U. III. L. Rev. 923, 926 n.22 (1989).

10

vacant job for which the person is qualified may prevent

the employee from being out of work and [the] employer

from losing a valuable worker.” H.R. RVP. NO. 101-485(II),

at 63. Public policy “is served best when qualified disabled

employees are reassigned to vacant positions, regardless of

whether a more qualified non-disabled person has ex-

pressed interest in the position or the job has been posted.”

John E. Murray and Christopher J. Murray, Enabling the

Disabled: Reassignment and the ADA, 83 Mara. L. Rev.

721, 739-740 (Summer 2000). In fact, this is the only in-

terpretation of the reassignment language that ensures

that no one, whether able-bodied or not, loses their employ-

ment. Id. at 740.

Sound public policy strongly supports this “plain text”

reading of reassignment. Congress might have chosen a

different way to balance the competing concerns of high

unempluyment and a history of discrimination on the one

hand, and employer autonomy on the other. The fact is

that Congress did not; we must follow the statute that

Congress enacted.

B. According to the Statutory “Reassignment”

Language Its Plain Meaning Does Not Imper-

missibly Demand “Preferential Treatment” of

Employees with Disabilities.

As explained above, the statutory “reassignment to a

vacant position” language must mean that an incumbent

employee who faces a disability-related obstacle to contin-

ued employment is entitled to priority in reassignment.

Petitioner argues, however, that the statutory text cannot

be given its plain import, because to do so would purport-

edly require granting “preferential treatment” to workers

with disabilities. Pet. Br. at II. B. In making this argument,

Petitioner leans heavily on general statutory findings and

passages in the legislative history that do not even purport

11

to address this specific issue. Neither of these sources can

overcome the plain import of the statutory text.

At the outset, we should note that the concept of prefer -

ential treatment” does little to aid analysis here. On the

one hand, it is clear (as Petitioner concedes, Pet. Br. at 19)

that the ADA’s “reasonable accommodation” requirement

demands that an employer provide some things to employ-

ees with disabilities that the employer may deny to non-

disabled employees. To use Petitioner’s own example, an

employer may be required to give breaks during the work-

day to enable an employee with a disability to take medica-

tion, even if it has a firm policy of denying breaks to em-

ployees generally. Pet. Br. at 19. On the other hand, there

is nothing in the statute that requires an employer, in

making an initial hiring decision, to choose a qualified

candidate with a disability where an equally or more qual-

ified nondisabled candidate also applies.’ In the break-time

case, all parties here might agree that the ADA requires

something “extra” regardless of whether that “extra” is

characterized as the removal of a barrier to equal opportu-

nity or as “preferential treatment.” In the hiring-decision

case, on the other hand, all parties would likely concede

that the statute requires nothing “extra” at all.

In the case of an incumbent employee who seeks reas-

signment to a vacant position to overcome a disability-

related barrier to continued employment, the text makes

plain that the ADA does require that the employee with a

disability receive priority. Against that plain text, Peti-

tioner points to general language in two congressional find-

ings. One of these findings (42 U.S.C. § 12101(aX8)) de-

clares that:

Ot course, the employer would not be permitted to discriminate

* t’s

a), N),

Sp

12

[T]he Nation’s proper goals regarding individuals with

disabilities are to assure equality of opportunity, full

participation, independent living, and economic self-

sufficiency for such individuals.

The other finding (42 U.S.C. § 12101(a)(9)) states that:

[Tjhe continuing existence of unfair and unnecessary

discrimination and prejudice denies people with dis-

abilities the opportunity to compete on an equal basis

and to pursue those opportunities for which our free

society is justifiably famous, and costs the United

States billions of dollars in unnecessary expenses re-

sulting from dependency and nonproductivity.

Pointing to the “equality of opportunity” and “opportunity

to compete on an equal basis” language in these findings,

Petitioner argues that the ADA could never require that an

employer give an employee with a disability priority in

selection for a given position—even in the context of re-

assignment. To support this reading, Petitioner cites two

passages in the legislative history that state that “the

employer has no obligation under this legislation to prefer

applicants with disabilities over other applicants on the

basis of disability.” H.R. REP. 101-485 (ID, at 56; accord S.

REP. NO. 101-116, at 26-27.

These statements cannot bear the weight Petitioner

places on them. Even assuming that the statute makes

clear that its only purpose was to provide “equality of

opportunity” to people with disabilities, such a general

invocation of a contested concept would be an unstable

foundation on which to construct a wholesale rejection of

the unambiguous statutory language providing for job

reassignment. After all, the reasonable accommodation

10 See, e.g., J. Harvie Wilkinson III, The Dimensions of American Con-

„FTTTTbTT00TCT0T0T0T0TTTTT

(“(E)quality of opportunity is the most i i

that I have discussed. It presents a staggering definitional difficulty,

especially for the courts.”).

13

requirement (and the specific application of that require-

ment to require priority in reassignment) plainly advances

equality of opportunity by assuring that people with dis-

abilities are not deprived of opportunities to work due to

arbitrary, unnecessary, and thoughtless obstacles to em-

ployment. In any event, however, the very findings on

which Petitioner relies make clear that “equality of op-

portunity”—however defined—cannot be cabined in the

manner Petitioner suggests as the only purpose of the

statute. Rather, the findings speak as well of “full partici-

pation, independent living, and self-sufficiency,” 42 U.S.C.

§ 12101(a\(8), and of avoiding the “billions of dollars in

unnecessary expenses resulting from dependency and

nonproductivity,” 42 U.S.C. § 12101(aX9). Giving incum-

bent employees with disabilities the option of non-competi-

tive job reassignment plainly advances these statutory

purposes, for it provides the intervention necessary to keep

people with disabilities in the workforce and off of the dis-

ability benefits rolls (from which rolls few ever emerge).

Cf. Citicorp Indus. Credit, Inc. v. Brock, 483 U.S. 27, 36

(1987) (holding that “[wJhile improving working conditions

was undoubtedly one of Congress’ concerns it was certainly

not the only aim of the FLSA” and refusing to depart from

1 See, e. g., Richard V. Burkhauser & Mary C. Daly, Employment and

Economic Well-Being Following the Onset of a Disability: The Role for

Public Policy, in Disability, Work, and Cash Benefits 59, 77-86 (Jerry L.

Mashaw et al., eds., 1996) (observing that “only a tiny percentage of

those who go into [disability benefits] programs ever return to the

workforce” and urging interventions, like the ADA, “that attack the

employment problem before individuals begin to receive disability

trousfers”); Richard V. Burkhauser, Lessons from the West German

Approach to Disability Policy, in Disability & Work: Incentives, Rights,

and Opportunities 85 (Carolyn L. Weaver, ed. 1991) (noting the “positive

attribute” of the ADA that “it seeks to keep people who become work-

impaired on the job; through its job accommodation mandate it inter-

venes before these workers have left their jobs and become trapped in the

disability system”).

14

the plain meaning of the FLSA’s “hot goods” provision

where it served other statutory purposes).

Two sentences in committee reports cannot override the

plain import of the statutory text. But neither of the pas-

sages quoted by Petitioner addresses the situation at issue

here—reassignment of an incumbent worker who faces

a disability-related obstacle to continued employment.”

Rather, both deal with the situation of an initial applicant.

They simply make the uncontested point that an employer

need not prefer an initial applicant with a disability over

an equally or more qualified nondisabled applicant. Where

an incumbent employee with a disability is concerned, how-

ever, reassignment can keep the employee in the workforce

and away from dependency on disability benefits programs.

The text accordingly makes clear that such an incumbent

employee must have priority in reassignment.

II. THE NINTH CIRCUIT CORRECTLY HELD THAT A

SENIORITY SYSTEM IS NOT A PER SE BAR TO

REASSIGNMENT AS A REASONABLE ACCOMMO-

DATION.

A. Interpreting “Vacant” to Mean “Vacant Un-

less Someone Else Has Rights to the Job

under a Seniority System” Does Violence to

the Plain Meaning of the Text and to the Pur-

pose of the Reassignment Provision.

The only defense to the accommodation obligation is

undue hardship. But Congress qualified the reassignment

obligation in another way. Under the terms of the statute,

reasonable accommodation includes reassignment to a

vacant position. 42 U.S.C. § 1211109 /B). Petitioner argues

The various passages from the EEOC regulations and interpretive

guidance cited by Petitioner (Pet. Br. at 11, n.2) similarly do not address

the reassignment situation.

15

that reassignment is never available when the employer

has a seniority policy, because under such a plan, no job is

ever “vacant,” but is instead “reserved” for an unknown

(but senior) applicant. Moreover, Petitioner contends that

such job openings are “reserved” even though the unknown

applicant in this case had no contractual right to the

position. This, too, contradicts the plain meaning of the

words Congress chose.

Vacant means “not filled or occupied by an incumbent,”

Webster’s Third New International Dictionary (1969), or

In lot filled, held, or occupied; in respect of which a succes-

sor to the previous incumbent or holder has not been

appointed.” Oxford English Dictionary (1971). The EEOC’s

Enforcement Guidance reflects the word’s plain meaning.

In the view of the agency, “vacant” means that the position

is available when the employee asks for reasonable accom-

modation, or that the employer knows that it will become

available within a reasonable amount of time. Further-

more, a position is considered vacant even if an employer

has posted a notice or announcement seeking applications

for that position. EEOC Enforcement Guidance: Reason-

able Accommodation and Undue Hardship Under the

Americans with Disabilities Act (3/1/99), “Reassignment.”

Petitioner’s extraordinary construction is nothing more

than an attempt to engraft limiting language onto the

statute that Congress did not use.

1 Pet. Br. at 37.

16

\ B. Additional Statutory Language, and the Legis-

lative History Regarding Collective Bargaining

Agreements, Further Support the Conclusion

That Seniority Systems Cannot Be an Absolute

Bar to Reassignment as a Reasonable Accom-

modation.

Petitioner’s position would also necessarily forbid con-

travening the terms of a collectively bargained seniority

systems. This result is contrary to the legislative history

regarding collective bargaining agreements.

At the time of the ADA’s adoption, Congress noted that

the Rehabilitation Act regulations provided that “a recipi-

ent’s obligation to comply with this subpart [employment]

is not affected by any inconsistent term of any collective

bargaining agreement to which it is a party.” H.R. REP.

NO. 101-485(II), at 63, citing 45 C. F. R. § 84.11(c)."* Con-

gress’ intention that even bargained-for seniority systems

do not trump statutory protections also extends to the

ADA. Id.; 42 U.S.C. § 12201(a), quoted in Bragdon v.

Abbott, 524 U.S. 624, 632 (1998) (“Except as otherwise

provided in this chapter, nothing in this chapter shall be

construed to apply a lesser standard than the standards

applied under title V of the Rehabilitation Act . . . or the

regulations issued by Federal agencies pursuant to such

title.”). Therefore, “an employer cannot use a collective

bargaining agreement to accomplish what it otherwise

would be prohibited from doing under this Act.” H.R. REP.

NO. 101-485(II), at 63.“ The Report continues:

„Note that this regulation by its term applies to the subpart on em-

ployment, of which the reasonable accommodation requireme t. 45

C.F.R. § 84.12, is a part.

1 Furthermore, the language in 45 C.F.R. § 84.11(c) is not limited to

union contracts that represent intentional subterfuge, contrary to Judge

Posner’s analysis in Echles v. Conrail, 94 F.3d 1041, 1046 (7 Cir. 1996).

(continued...)

17

The collective bargaining agreement could be relevant,

however, in determining whether a given accommoda-

tion is reasonable. For example, if a collective bargain-

ing agreement reserves certain jobs for employees with

a given amount of seniority, it may be considered as a

factor in determining whether it is a reasonable accom-

modation to assign an employee with a disability with-

out seniority to the job. However, the agreement would

not be determinative on the issue.

Id. (emphasis added). Petitioner’s view, on the contrary,

requires a rejection both of legislative history, Aka, supra,

156 F.3d at 1304, and of the “floor” established by the Re-

habilitation Act regulations. Of course, this Court need

not decide the proper balancing of the ADA’s mandate and

any seniority rights under a collective bargaining agree-

ment, since the seniority policy in the instant case was

unilaterally imposed by Petitioner. It conferred no statu-

tory or contractual rights to anyone.

C. Accepting Petitioner’s Extra-Statutory Con-

struction Would Result in a Substantial Nar-

rowing of Virtually All Reasonable Accommo-

dations.

The relevant accommodation here is ~eassignment, not

the waiver the seniority policy. And the reassignment is

both specifically provided for by statute, and is clearly

eliminating a disability-related barrier to continued em-

* (..continued)

See also 45 C.F.R. § 84.12(aX4) (“A recipient may not participate in a

contractual or other relationship that has the effect of subjecting qual-

ified handicapped applicants or employees to discrimination prohibited

‘© Petitioner's view also makes the

legislative history ing “bump-

ing” meaningless. Compare S.REP. 101-116, at 31; H.R. . 101-4851],

at 63.

18

ployment. Petitioner in essence is complaining that reas-

signment gets the Respondent something he would not

have received otherwise. But that is the point of the ac-

commodation mandate—that suni.times employees must

get something that they would noc have gotten otherwise.

That does not mean that the accommodation, in this case

reassignment, is not eliminating a disability-related bar-

rier to continued employment.

Adopting Petitioner’s view would have an effect far be-

yond the factual context in this case. For one thing, it

would prohibit any other accommodation that was contrary

to an employer’s seniority policies. In Petitioner's view, an

employer with a “neutral” policy of granting more leave to

those employees with more seniority can refuse to grant

additional leave to a junior employee with a disability.

Why? Because (the employer will argue) it is the em-

ployee’s “lack of seniority,” not the disability, that poses

the barrier to his or her continued employment. Likewise,

an employer that reserves its offices for senior employees,

and only provides desks in a common area to those more

junior, can argue that it need not provide an office to an

employee with a disability who requires one (e.g., for the

proper functioning of speech dictation software, or because

the “pool” is not wheelchair-accessible). Why? Again, in

Petitioner’s view, it is the “lack of seniority” that poses the

obstacle. Or suppose that the employer generally assigns

its employees to one of three shifts on a “first come, first

served” basis. The new employee whose therapy needs or

medication side effects require a certain preferred shift is

out of a job, not because of his or her disability, but be-

cause (Petitioner will ergue) of a “lack of seniority.”

Petitioner's view would also create a “neutral policy”

defense even in situations that are not seniority-related.

Suppose in the example above, offices are reserved not for

the most senior employees, but for partners, or vice-

presidents, or anyone meeting certain performance stan-

19

dards. Again the employer can defend its refusal to accom-

modate by arguing that it is the lack of status or rank, not

the disability, that is the obstacle. But such “semantics”

are contrary to the text and framework of the ADA.

In each case above, there is certainly nothing wrong with

the employer’s decision to adopt the neutral policies de-

scribed. But they must give way to the need for a reason-

able accommodation, unless that need would cause an

undue hardship. Cf. PGA Tour, Inc. v. Martin. U. 8.

121 S. Ct. 1879, 149 L. Ed. 2d 904 (2001). In each case, the

requested accommodation might arguably impact other

employees negatively, although it does not have any direct

monetary impact on them. The potential exists for adverse

effects on morale, although by itself, such office grumbling

certainly does not rise to the level of an undue hardship.

Under certain facts, any of the accommodations described

above could be an undue hardship, but that would depend

on a much more specific showing of harm than is present

in the instant case.

D. Employers’ Needs for Stability and Smooth

Business Operations Are Legitimately Consid-

ered, on an Individualized Basis, under the

“Undue Hardship” Defense.

We do not contend that a reassignment in contravention

of a seniority policy is always required. Clearly it is not.

But Congress mandated that a resolution of this issue be

made on an individualised basis under the undue hardship

defense.

In determining the scope of its protections, the ADA requires

an individualized, case-by-case approach. This 8 precedent

supports such an individualized assessment in determining virtually all

aspects of the ADA that the Court has considered, including the

definition of “disability,” Sutton v. United Air Lines, Inc., 527 U.S. 471,

(continued...)

20

The ADA’s reasonable accommodation obligation is writ-

ten in mandatory terms. 42 U.S.C. § 12112(bX SNA): Board

of Trustees v. Garrett, 531 U.S. 356, 121 S. Ct. 955,

960, 148 L. Ed. 2d 866, 875 (2001). An accommodation

must be offered, with one exception—undue hardship on

the operation of the business. Jd. By contrast, Petitioner

argues that reassignment to a vacant position need not be

offered in certain situations, even when it is not an undue

hardship, or, indeed, is not a hardship at all. Petitioner

simply intends to create a new defense to reassignment

that is not in statute.” This is impermissible. It is also

contrary to traditional notions of statutory construction.

When a statute lists with particularity the limitations on

a particular provision, but does not include other provi-

sions among the limitations, it may be presumed that

(continued)

483 (1999), who is a “qualified individual,” School Bd. of Nassau County

v. Arline, 480 U.S. 273, 287 (1987) (decided under the Rehabilitation

Act), what constitutes a reasonable “modification” to policies, PGA Tour,

Inc. v. Martin, U.S. 121 S. Ct. 1879, 1896, 149 L. Ed. 2d 904, 927

(2001), — — Cleveland. Policy

also the individualized nature of “undue hardship”), and direct

threat.” . Inc. v. Kirkingburg, 527 U.S. 555, 569 (1999)

The history clearly supports this view. S. REP. NO. 101-

116, at 31 (reasonable accommodation involves a “fact-specific,

case *, HR REP. NO. 101-4880 ll), at 62 (same); H.R. REP.

See Smith, supra, 180 F.3d at 1169 ( more, such as requiring

the reassigned employee to be the best employee for the vacant

job, is judicial gloss unwarranted by the statutory language or its leg-

islative history.)

21

Congress did not include the unmentioned limitation. See,

e. g., Leatherman v. Tarrant County Narcotics Intelligence

& Coordination Unit, 507 U.S. 163, 168 (1993) (“Expressio

unius est exclusio alterius”). Petitioner's argument also

denigrates the defense that Congress did choose to write

into the statute. Moreover, Congress expressly rejected the

notion of per se undue hardships. Vet a per se standard is

exactly what the Petitioner is advocating.

Finally, reasonable accommodation, of course, is only

required for persons with disabilities as defined by statute,

and many workers with disabilities require no accommoda-

tion at all.“ Moreover, the reassignment obligation is al-

ready sufficiently and appropriately limited by the statute

and consistent regulations.“ These limitations include:

1. Reassignment need be only to an existing vacant

job,” so an employer need not create a new job,” or

“bump” another employee.”

Robert Burgdorf, The Americans with Disabilities Act: Analysis and

Implications of a Second-Generation Civil Rights Statute, 26 Harv. Civ.

Rights-Civ. Lib. L. Rev. 413, 462-463, nn.246-247 (1991). The House

Judiciary Committee rejected an amendment that would have limited

accommodations to those costing no more than ten percent of the em-

ployee’s salary, because the intent was to establish a flexible approach.

See H.R. REP. NO. 101-485(III), at 41. See also n.49 below.

„H.R. REP. 101-485(I]), at 67; S. REP. 101-116, at 35.

* Smith, supra, 180 F.3d at 1170 (“Congress has already significantly

cabined the obligation to offer reassignment to a qualified employee who

is disabled so as to ensure that it is not unduly burdensome, or even

* 42 U.S.C. § 12111(9XB).

* 29 C.F.R. app. § 1630.2(0).

* 29 C.F.R. app. § 1630.2(0); S.REP. 101-116, at 31; H.R.REP. 101-

485(I1), at 63.

2. The employee must be “qualified” for any vacant

position.”

3. Reassignment does not require a promotion.”

4. Reassignment may involve a demotion if no equiva-

lent position is vacant.”

5. If more than one appropriate vacancy exists, the

employer may select among them.”

6. Reassignment only applies to employees, not appli-

cants.”

7. Reassignment is the accommodation of last resort,

and only need be considered if the employee cannot

be accommodated in their current job.”

8. No reassignment is required if it poses an “undue

hardship.“

If further limitations are to be sought, they must come

from Congress. Smith, supra, 180 F.3d at 1170.

* 42 U.S.C. § 12112(bX 5A).

* EEOC Enforcement Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act (3/1/99), “Reassign-

ment.”

1 29 C. F. R. app. § 1630.2(0) (1997).

* 29 C. F. R. app. § 1630.9; H.R. REP. 101-485(I1), at 66.

1 29 C.F.R. app. § 1630.2(0); S.REP. 101-116, at 31. See also Part II. C

29 C.F.R app. § 1630.2(0); S.REP. 101-116, at 31; H.R.REP. 101-

48511), at 60.

* 42 U.S.C. § 12112(bX 5A).

23

III. A “REASONABLE ACCOMMODATION” UNDER THE

ADA IS A MODIFICATION THAT OPERATES IN AN

EFFECTIVE MANNER TO ENABLE A PERSON WITH

A DISABILITY TO PERFORM A JOB.

Finally, in an argument that applies not only to the facts

of this case, but to the issue of reasonable accommodations

generally, Petitioner argues that the term “reasonable

accommodation” must mean something more than “effec-

tive accommodation.” Pet. Br. at 15-16. This argument

would seriously, and unnecessarily, weaken the ADA’s

reasonable accommodation requirement. Moreover, it has

no support in the statutory text, nor in the history of how

the terminology came into being. There is no defense of

“unreasonableness.” Simply put, a reasonable accommoda-

tion only becomes unreasonable if it causes an undue

hardship.

A. The Term “Reasonable Accommodation” Is a

Term of Art That Does Not Encompass Issues of

Cost or Difficulty, Which Are Part of the “Un-

due Hardship” Analysis.

The concept of requiring “reasonable accommodations”

for people with disabilities as part of an anti-discrimina-

tion mandate was first introduced in regulations imple-

menting Section 504 of the Rehabilitation Act of 1973,

which defined the term through a list of examples.” The

regulations noted, however, that required modifications

should not be excessively burdensome. Such protection for

employers was included in a specific limitation: if the

* 45 C. F. R. § 84.12. See generally Chai R. Feldblum, The (Revolution of

Physical Disability Anti-discrimination Law: 1976-1996, 20 MENTAL AND

PHYSICAL DISABILITY LAW REPORTER, 613 (1996) (describing evolution of

the reasonable accommodation concept in disability law) (hereinafter

Physical Disability Law).

45 C.F.R. § 84.12(b).

24

recipient could “demonstrate that the accommodation

would impose an undue hardship on the operation of its

program,“ then such an accommodation would not be

required. Various factors were to be considered in assess-

ing undue hardship.” The undue hardship defense was the

only place in which the regulations referenced cost consid-

erations.

The Appendix to the regulations explained that “where

reasonable accommodation does not overcome the effects of

a person’s handicap, or where reasonable accommodation

causes undue hardship to the employer, failure to hire or

promote the handicapped person will not be considered

discrimination.” 45 C.F.R. pt. 84, Appendix A, p. 315

(1985), quoted in School Bd. of Nassau County v. Arline,

480 U.S. 273, 288 n.17 (1987). Thus, an accommodation

was not reasonable if it was ineffective, or if it constituted

an undue hardship.

In interpreting the Rehabilitation Act, most courts fol-

lowed the agency regulations, and considered cost or oper-

ational difficulty as part of the “undue hardship” defense

available to employers. The agency, courts, and commenta-

tors generally treated the word “reasonable” as synony-

mous with “effective.” As noted, the Appendix explained

reasonable accommodation in terms of whether it would

“overcome the effects of a person’s handicap.“ Later

commentators emphasized that a proposed modification

had to be actually effective in order to be required under

the law.“ The influential analysis of the reasonable ac-

* 45 C. F. R. § 84.12(a) (emphasis added).

0 45 C.F.R. § 84.12(c).

45 C. F. R. pt. 84, Appendix A (Reasons ble Accommodation).

See e. g., Donald Olenick, Accommodating the Handicapped: Rehabili-

tating Section 504 After Southeastern, 80 Col. I. REV. 171, 184-86

(continued...)

— et —

25

commodation duty by the U.S. Commission on Civil Rights

reflected its view that the term required individualized

changes that would be effective in allowing an employee to

continue working.“

When Congress drafted the ADA, it borrowed in large

part from the language and framework of the 504 regula-

tions,“ defining as a form of discrimination the failure to

provide a “reasonable accommodation,” unless such accom-

modations would impose an “undue hardship” on a covered

entity.“ In using the 504 regulations as a basis for the

ADA, Congress was adopting a term “reasonable accommo-

* continued)

(1980); Mark Martin, Accommodating the Handicapped: The Meaning of

Discrimination Under Section 504 of ihe Rehabilitation Act, 55 N.Y.U.

LAW REV. 881 (1980). The general criticism of the commentators was

acknowledged and addressed in a later Supreme Court case, Alexander

v. Choate, 469 U.S. 287, 300, n. 20 (1985). See generally, Feldblum, Phy-

sical Disability Law, at 614-617 (describing evolution of understanding

of “reasonable accommodation” by courts and commentators.)

% U.S. Commission on Civil Rights, ACCOMMODATING THE SPECTRUM OF

INDIVIDUAL ABILITIES 102 (1983) (“[TJhis chapter uses reasonable

ticular person with a particular program or activity. Individualizing op-

portunities is this definition’s essence.”) (emphasis added).

With a few notable differences, as reflected in Part LA above. While

decisions applying the Rehabilitation Act may provide useful guidance

in interpreting the ADA when the language of the two statutes are

substantially similar, they are certainly less helpful in interpreting text

that differs. Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996).

See also Lee, Reasonable Accommodation Under the Americans with

Disabilities Act: The Limitations of Rehabilitation Act Precedent, 14

Berk. J. Emp. & Lab. L. 201, 206, 223 (1993).

See S. REP. 101-116, passim; Bragdon v. Abbott, 524 U.S. 624, 631-632

(1998). See generally Chai R. Feldblum, Antidiscrimination Requirements

of the ADA, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT:

RIGHTS AND RESPONSIBILITIES OF ALL AMERICANS 35, 37 (L. Gostin & H.

Beyer eds. 1992).

* 42 U.S.C. § 12112(bX5).

26

dation” as the term of art that had developed under such

regulations and case law. The ADA’s legislative history

never discussed the cost or difficulty of a proposed modifi-

cation or device in explaining the “reasonable” part of

reasonable accommodation.“ Instead, such discussion ap-

peared in the analysis of the “undue hardship” defense.“

This is perhaps most clear in the committees’ focus on the

steps to identifying and implementing an appropriate

accommodation. The Committee stated that the first step

is to “identify barriers to equal opportunity,” the second is

to “identify possible accommodations,” and the third is to

assess the reasonableness of each in terms of effective-

ness and equal opportunity. A reasonable accommoda-

tion should be effective for the employee. Factors to be

considered include the reliability of the accommodation

and whether it can be provided in a timely man-

ner. . . The Committee believes strongly that a

reasonable accommodation should provide a meaning-

ful equal employment opportunity. Meaningful equal

employment opportunity means an opportunity to

attain the same level of performance as is available to

nondisabled employees having similar skills and abil-

ities.

The fourth step is to implement the accommodation unless

it imposes an undue hardship.”

4 £g., S. REP. 101-116, at 35-36; H.R. REP. 101-485(I1), at 62-67.

* E.g., H.R. REP. 101-485(I]), at 67-69; S. REP. 101-116, at 35-36.

“ S. REP. 101-116, at 35; H.R. REP. 101-485(I1), at 66 (emphasis added).

“ Notwithstanding the manner in which “reasonable accommodation”

was ordinarily used under Section 504 regulations and case law, some

courts applying the ADA have inappropriately inserted issues of cost and

difficulty into the separate term “reasonable.” See, e.g., Vande Zande v.

Wisconsin Dept. of Admin., 44 F.3d 538, 543 (7th Cir. 1995). Not all

courts, however, have made this misinterpretation. See, e.g. Bryant v.

Better Business Bureau of Greater Maryland, 923 F. Supp. 720, 735-737

(D. Md. 1996) (material differences exist between whether an accommo-

(continued...)

27

Petitioner contends, however, that the employee has the

burden cf proving that the accommodation sought is not

too expensive, and that its costs are outweighed by its

benefits. That makes little sense in light of the clearly

specified defense of “undue hardship,” on which the em-

ployer has the burden of proof,“ and which has a carefully

calibrated definition relating to the financial resources and

type of operation of the business. Again it makes little

sense if the law first puts the burden on the employee,

either to negate these same factors, or to prove that the

accommodation is not too costly without taking into ac-

count those factors.

Moreover, the definitions of “reasonable” offered by Peti-

tioner would greatly water down the undue hardship de-

fense, which requires proof of “significant difficulty or ex-

pense.“ The statutory language is very different from

(continued)

dation is “reasonable” and whether it would cause an “undue hardship”;

“reasonable accommodation” asks whether the accommodation would be

effective); Dutton v. Johnson County Bd. of Comm rs, 859 F. Supp. 498,

507 (D. Kan. 1994) (“For an accommodation to be reasonable, it must be

effective in permitting a disabled worker to perform the essential job

functions”); Davis v. York Int I, Inc., 1993 U.S. Dist. LEXIS 17649*23 (D.

Md. 1993) (“The actual effect that modifications have on the work per-

formance of a disabled individual lies at the heart of determining wheth-

er an employer has made reasonable accommodations for a qualified

disabled person.”). See also the Ninth Circuit’s concurrence by Judge

Gould in the instant case, writing separately to underscore this point.

The EEOC takes this latter position. 29 C.F.R. app. § 1630.9.

Garrett, supra, 121 S. Ct. at 967, 148 L. Ed. 2d at 882-883 (“The Act

also makes it the employer's duty to prove that it would suffer such a

1 42 U.S.C. § 12111(10). The legislative history gives further descrip-

tions, i.e., “unduly costly, extensive, substantial, disruptive, or that will

fundamentally alter the nature of the program.” S. REP. 101-116, at 35;

H.R. REP. 101-485(1]), at 67.

28

Petitioner’s definition of reasonable.“ It would be con-

tradictory to have an extensive description of the high

standard set by the “undue hardship” defense if, in fact,

employers could always prevail under the much more

lenient “reasonable” standard.

In fact, the extensive negotiations that took place re-

garding the factors to be considered in making an “undue

hardship” determination underscore the fact that all those

involved in the passage of the ADA understood that the

core defense to the provision of a reasonable accommoda-

tion would be the “undue hardship” defense. There were

no negotiations regarding what the “reasonable” part of

“reasonable accommodation” meant, and there is nothing

in the legislative history supporting Petitioner’s argument,

because reasonable accommodation was a term of art that

did not include consideration of cost or difficulty.

See Pet. Br. at 17 (arguing that it is the plaintiff who “must establish

that the particular accommodation in question is reasonable i. e., ‘fair,’

‘appropriate’ or ‘suitable’ in the circumstances, ‘proportionate,’ and ‘not

demanding too much).

The Senate bill, as introduced, included the same undue hardship

factors that had been listed in the Section 504 regulations at 45 C.F.R.

§ 84.12(c). These were modified to reflect that the resources and situation

of the overall company should be factored in. See H.R. REP. 101-4851),

at 68-69; see also, Chai R. Feldblum, Antidiscrimination Requirements

of the ADA, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT:

— —hB . — SS on

Beyer eds. 1992) (discussing these negotiations changes). Dur-

ing later consideration of the ADA, the undue hardship factors were split

into four (rather than three) categories. Feldblum, supra, at 46. Finally,

the House of Representatives rejected an amendment that would have

created a presumption of undue hardship if a reasonable accommodation

cost more than 10% of the annual salary of the employee requesting it.

136 Cong. Rec. H2471 (May 17, 1990).

29

B. Recognizing that a Reasonable Accommodation

Means an Effective One Results in a Logical

Apportionment of the Burdens of Proof.

As noted above, the Appendix to the 504 regulations“

made clear that an accommodation was not reasonable if

it was ineffective, or if it constituted an undue hardship.

And contrary to Petitioner’s argument, the word accommo-

dation does not “assume” effectiveness. Rather, accommo-

dation assumes that a modification is one included in, or

similar to, the statutory list of accommodations. This is not

a meaningless distinction. Not all of those accommodations

will work in every case, and there are numerous cases in

which identified accommodations were unavailing because

they would have been ineffective.”

It logically follows that in litigation, the plaintiff's obli-

gation should be to point out the existence of an accommo-

dation that would likely have been effective, meaning one

that would likely have allowed the plaintiff to continue to

perform the essential job functions. The defendant then

has the burden of establishing that such accommodation

would have resulted in an undue burden, based on cost and

the other statutory factors. That was essentially the

analysis of the most influential Rehabilitation Act deci-

0 45 C.F.R. pt. 84, Appendix A, p. 315 (1985), quoted in School Bd. of

Nassau County v. Arline, 480 U.S. 273, 288 n.17 (1987).

1 E. g., Zukle u. Regents of the Univ. of Cal., 166 F.3d 1041(9" Cir. 1999)

(“time off from the clinical portion to study . could not have helped”;

“decelerated schedule would not have aided Zukle in meeting the Medical

School’s academic standards”); Pate v. Baker Tanks Gulf South, Inc., 34

F. Supp. 2d 411, 417 (W.D. La. 1999) (Even with an accommodation

consisting of temporary help, the essential functions of Ms. Pate’s job

were still not being accomplished”); Logan v. Per.naco Hosiery, 1997 U.S.

Dist. LEXIS 9965*7 (N.D. Miss. 1997) (“even if the employer could make

reasonable accommodations that would allow the plaintiff to avoid the

heavy lifting required by the position, the plaintiff still could not perform

the other physical requirements of the job”).

30

sions,” and it has been followed by some courts under the

ADA.“ Though certainly not universally accepted, as Peti-

tioner points out,™ it not only makes logical sense and is

most true to the Rehabilitation Act history, it also has the

advantage of placing the burdens of proof on the party

most likely to have the relevant evidence.“

CONCLUSION

For the foregoing reasons, we respectfully urge the Court

to affirm the judgment of the court of appeals.

Respectfully submitted,

PAULA A. BRANTNER BRIAN EAST

Senior Staff Attorney Counsel of Record

NATIONALEMPLOYMENT ADVOCACY, INCORPORATED

LAWYERS ASSOCIATION 7800 Shoal Creek Blvd.

600 Harrison Street Austin, TX 78757-1014

San Francisco,CA 94107 (512) 454-4816

(415) 227-4555

Attorneys for Amici Curiae

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, ET AL.

August 31, 2001

2 F. g., Gardner v. Morris, 752 F.2d 1271, 1280 (8 Cir. 1985); Treadwell

v. Alexander, 707 F. 2d 473, 478 (11 Cir. 1973); Prewitt v. United States

Postal Service, 662 F.2d 292, 308 (5 Cir. 1981).

Mason v. Frank, 32 F.3d 315, 318-319 (8 Cir. 1994) (“Once the plain-

tiff produces evidence sufficient to make a facial showing that reasonable

accommodation is possible, the burden shifts to the employer to prove

inability to accommodate”). x

Pet. Br. at 15-16.

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1122-1123 (9th Cir. 2000) (en

banc) (Gould, J., concurring). Compare 21 CHARLES A. WRIGHT & KEN-

NETH A. GRAHAM, FEDERAL PRACTICE & PROCEDURE § 5122, at nn. 15-16

(1977).

A-1

Appendix A: Interest of Amici Curiae

Amici Descriptions:

The National Employment Lawyers Association

(NELA) is a voluntary membership organization of more

than 3,000 attorney members who regularly represent

employees in labor, employment, and civil rights disputes.

NELA is the country’s only professional membership

organization of lawyers who represent employees in

discrimination, wrongful discharge, employee benefit, and

other employment-related matters. NELA members have

brought numerous cases under the Americans with Disabil-

ities Act (ADA), and have represented thousands of in-

dividuals in this country who are victims of employment

discrimination based on disability status. As such NELA

has a compelling interest in ensuring that the goals of the

ADA are protected and fully realized. As part of its advo-

cacy efforts, NELA regularly supports precedent setting

litigation affecting the rights of individuals in the work-

place. NELA has filed numerous amicus curiae briefs

before the U.S. Supreme Court and the federal appellate

and district courts regarding the proper interpretation and

application of employment discrimination laws to insure

that the laws are fully enforced and that the rights of

workers are fully protected.

The Are of the United States (The Arc), through its

nearly 1,000 state and local chapters, is the largest na-

tional voluntary organization in the United States devoted

solely to the welfare of the more than seven million

children and adults with mental retardation and their

families. Since its inception, The Arc has vigorously chal-

lenged attitudes and public policy, based on false stereo-

types, which have authorized or encouraged segregation of

people with mental retardation in virtually all areas of life.

A-2

The Arc was one of the leaders in framing and supporting

passage of the ADA.

The Association on Higher Education and Disability

(AHEAD) is a nonprofit organization committed to full

participation in higher education and equal access to all

opportunities for persons with disabilities. Its member-

ship includes approximately 2,000 institutions (including

colleges, universities, not-for-profit service providers and

standardized testing organizations), professionals, and

college and graduate students planning to enter the field

of disability practice. Many of its members are actively

engaged in assuring ADA compliance and in providing

reasonable accommodations to both students and employ-

ees at institutions of higher education, many of which are

covered by collective bargaining agreements. In addition,

AHEAD members actively work with students in establish-

ing vocational plans and job readiness. AHEAD publishes

numerous resources on the implementation of the ADA by

postsecondary educational institutions.

The American Association of People with Disabilities

(AAPD) is a nonprofit, nonpartisan membership organiza-

tion of people with disabilities, their family members and

supporters. AAPD was founded on the fifth anniversary of

the ADA and works to promote policies and programs that

further the ADA’s goals of equality of opportunity, full

participation, independent living and economic self-suf-

ficiency for the more than 56 million children and adults

with disabilities in the U.S.

The Disability Rights Education and Defense Fund,

Inc. (DREDF), based in Berkeley, California, is the na-

A-3

tion’s premier law and policy center dedicated to protecting

and advancing the civil rights of people with disabilities.

DREDF pursues its mission through education, advocacy

and law reform efforts, and is nationally recognized for its

expertise in the interpretation of federal disability civil

rights laws.

HalfthePlanet Foundation is a nonprofit organization

that offers comprehensive, reliable information, products

and services to people with disabilities, their families and

friends. The Foundation administers the well-known web-

site—halftheplanet.com—the most comprehensive disabil-

ity resource on the Web, created by people with disabilities

for people whose lives are touched by disability. Halfthe

Planet Foundation supports the application of technology

to promote the values of the ADA—independent living,

social inclusion, equality of opportunity, economic self-suf-

ficiency, and empowerment.

The Judge David L. Bazelon Center for Mental

Health Law is a national legal advocacy organization

dedicated to advancing the rights and dignity of individu-

als with mental disabilities. The Center has litigated

several cases involving reasonable accommodations under

the ADA and has an interest in ensuring that people with

mental disabilities are able to continue to contribute to

society and to maintain employment through changes in

the work environment that allow them to successfully do

their jobs.

Lambda Legal Defense and Education Fund, Inc.

(Lambda) is a national public interest legal organization

dedicated to the civil rights of lesbians, gay men and

A-4

—

people with HIV/AIDS through impact litigation, education

and public policy work. Founded in 1973, Lambda is the

oldest and largest legal organization addressing these con-

cerns. Lambda has appeared as counsel or amicus curiae

in scores of cases in state and federal courts on behalf of

people living with HIV or other disabilities. Lambda is

particularly concerned with the unique barriers confront-

ing persons with HIV and other stigmatized disabilities

whose hopes for equal opportunity in the workplace hinge

on the removal of needless barriers to their abilities to

work.

The National Association of Protection and Advo-

cacy Systems (NAPAS) is the membership organization

for the nationwide system of protection and advocacy

(P&A) agencies. Located in all 50 states, the District of

Columbia, Puerto Rico, and the federal territories, P&As

are mandated under various federal statutes to provide

legal representation and related advocacy services on be-

half of all persons with disabilities in a variety of settings.

The P&A system comprises the nation’s largest provider of

legally based advocacy services for persons with disabili-

ties. NAPAS facilitates coordination of P&A activities and

provides training and technical assistance to the P&A

network.

The National Association of Rights Protection and

Advocacy (NARPA) was formed in 1981 to provide sup-

port and education for advocates working in the mental

health arena. It monitors developing trends in mental

health law and identifies systemic issues and alternative

strategies in mental health service delivery on a national

scale. Members are attorneys, people with psychiatric his-

tories, mental health professionals and administrators,

A-5

academics, and nonlegal advocates—with many people in

roles that overlap. Central to NARPA’s mission is the

promotion of those policies and strategies that represent

the preferred options of people who have been diagnosed

with mental disabilities. Approximately 40 percent of

NARPA’s members are current or former patients of the

mental health system.

Established in 1909, the National Mental Health Asso-

ciation (NMHA), with its more than 340 affiliates, is

dedicated to promoting mental health, preventing mental

disorders, and achieving victory over mental illness

through advocacy, education, research and services. NMHA

envisions a just, humane and healthy society in which all

people are accorded respect, dignity and the opportunity to

achieve their full potential free from stigma and prejudice.

The National Mental Health Consumers’ Self-Help

Clearinghouse is a national technica! assistance center

established in 1986. It is run by and for people who are

consumers of mental health services and survivors of

psychiatric illness (known as consumers/survivors). Its

mission is to promote consumer/survivor participation in

planning, providing and evaluating mental health and

community support services, to provide technical assis-

tance and information to consumers/survivors interested in

developing self-help services, and advocating to make

traditional services more consumer/survivor-oriented. The

Clearinghouse has an interest in helping people with

mental illness live to their full potential as active members

of the community.