Robert Barnett v. U.S. Air, Inc.

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 accommodation, 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, including the nature and scope of an employer's obligation to engage in the interactive process, whether reassignment is a reasonable accommodation in the context of a seniority system 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 except for the retaliation claim and we remand for trial.

* Robert Barnett worked for ten years as a customer service 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 chiropractor 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 mailroom position. Barnett learned in August of 1992 that two employees with greater seniority planned to exercise their seniority right to transfer to the mailroom. Once bumped, Barnett's seniority would have limited him to transferring to jobs in the cargo area. Barnett wrote to his station manager, Robert Benson, on August 31, 1992 and requested that he be allowed to stay in the mailroom as a reasonable accommodation under the ADA.

U.S. Air did not respond to Barnett for five months but allowed him to remain in the mailroom 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 mailroom 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 alternative means of accommodating his disability. Barnett proposed either that U.S. Air provide him with special lifting equipment in the cargo facility or that the cargo job be restructured 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 received a letter from U.S. Air's Vice President of Human Resources 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 participating in the interactive process. Upon receiving supplementary briefing, the district court granted summary judgment to U.S. Air on that claim as well. Barnett, in his appeal, argues that U.S. Air violated the ADA by failing to engage in the interactive process, by failing to reassign him to the mail room, by failing to provide other reasonable accommodation and by retaliating against him.

We review de novo the district court's grant of summary judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th 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. Id.

Barnett claims that U.S. Air had an obligation to engage in an interactive process to identify possible reasonable accommodations. 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 an 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 Constitution 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 minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

42 U.S.C. S 12101(a)(7).

The ADA was designed to end the exclusion of people with disabilities from the workplace and from other realms of social life. As President George Bush explained upon signing the ADA:

Today, we're here to rejoice in and celebrate another `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 Americans with Disabilities Act of 1990," (July 26, 1990), reprinted 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 statute "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. VI, 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 full-time employment. Id. at S 4985. Thus, the workplace protections of the ADA are central to the Act's goals of assuring "equality of opportunity, full participation, independent living, and economic self-sufficiency" for people with disabilities. 42 U.S.C. S 12101(a)(8).

Title I of the ADA insures full opportunities for people with disabilities in the workplace by requiring reasonable accommodation of employees' disabilities by their employers. The ADA prohibits employers from discriminating against a disabled employee1 by "not making reasonable accommodations to the known physical or mental limitations 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. S 12112(b)(5)(A). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. S 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 U.S.C. S 12112(b)(5)(A). Furthermore, the statutory definition 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 Barnett could not perform the essential functions of the cargo position, if he could perform the essential functions of another position in the company which he "desires" he is covered under the ADA. The plain language of the statute requires this reading of the statute. To read the statute otherwise would render the word "desires" meaningless. See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) ("the Court will avoid a reading which renders some words altogether redundant"). Our conclusion that a "qualified individual with a disability" includes individuals who could perform 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 (10th Cir. 1999) (en banc) (collecting cases).

Barnett asserts that U.S. Air failed to fulfill its obligation 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 appropriate reasonable accommodations. The Senate Report explained that: "A problem-solving approach should be used to identify the particular tasks or aspects of the work environment that limit performance and to identify possible accommodations employers first will consult with and involve the individual with a disability in deciding on the appropriate 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 implementing the ADA. See 42 U.S.C. S 12116. The EEOC regulations outline the nature of the interactive process:

To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

29 C.F.R.S 1630.2(o)(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 reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability. " 29 C.F.R. Pt. 1630, App. S 1630.9. 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), S 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 employer's recognition of the need for such an accommodation. 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 not mention the ADA or use the phrase `reasonable accommodation.' " Id. at 5438. In some circumstances, according to the EEOC, the employee need not even request the accommodation: "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 experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. " Id. 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 triggered 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 (8th Cir. 1999) ("when the disabled individual requests accommodation, it becomes necessary to initiate the interactive 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 limitations" and that "the obligation to engage in an interactive process is inherent in the statutory obligation to offer a reasonable 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 engage in the interactive process is triggered "[o]nce the employer 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 (7th 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 accommodation 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 (5th Cir. 1996) ("Thus, it is the employee's initial request for an accommodation which triggers the employer's obligation to participate in the interactive process of determining one"). But see Willis v. Conopco, 108 F.3d 282, 285 (11th Cir. 1997) (holding that the plaintiff must produce evidence that a reasonable accommodation is available before an employer is obligated to engage in the interactive process).2

U.S. Air argues that Barnett bears the burden of demonstrating the availability of a reasonable accommodation. To put the entire burden for finding a reasonable accommodation on the disabled employee or, effectively, to exempt the employer from the process of identifying reasonable accommodations, 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 vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an "undue burden" on employers. Employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks 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 require the interactive process to identify appropriate accommodations, "it would make little sense to insist that the employee must have arrived at the end product of the interactive process before the employer has a duty to participate in that process." Taylor, 184 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.3 While employers have superior knowledge regarding the range of possible positions and can more easily perform analyses regarding the "essential functions " of each, employees generally know more about their own capabilities and limitations.

The statute further does not allow employers to avoid reasonable accommodation absent a showing of undue hardship. The ADA's reasonable accommodation requirement puts the burden on the employer to show that a proposed accommodation will cause undue hardship.4See 42 U.S.C.S 12112(b)(5)(A) (an employer violates the ADA by "not making reasonable accommodations . . . unless such covered entity can demonstrate that the accommodation would impose 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 triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation. 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.5

We next turn to the requirements of the interactive process. 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 employers should follow when engaging in the interactive process:

[T]he Committee believes the employer should consider four informal steps to identify and provide an appropriate accommodation.

The first informal step is to identify barriers to equal opportunity. This includes identifying and distinguishing between essential and nonessential job tasks and aspects of the work environment of the relevant position(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 accommodations, the third informal step is to assess the reasonableness of each in terms of effectiveness and equal opportunity.

...The final informal step is to implement the accommodation 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 hard ship.

...The expressed choice of the applicant or employee 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, pt. 2, at 66 (1990), U.S.Code Cong. & Admin. News at 348-49.

The EEOC also outlines the four steps critical to the interactive process. Once a request for a reasonable accommodation has been made, the EEOC requires an employer to:

(1) Analyze the particular job involved and deter mine its purpose and essential functions;

(2) Consult with the individual with a disability to ascertain 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 accommodated, 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 accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

29 C.F.R. Pt. 1630, App. S 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 perform the job effectively. Both sides must communicate directly, exchange essential information6 and neither side can delay or obstruct the process. See Smith, 180 F.3d at 1172 ("The interactive process includes good-faith communications between the employer and employee."); Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) ("A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, 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 employees so that both parties discover the precise limitations and the types of accommodations which would be most effective. The evaluation of proposed accommodations requires further dialogue and an assessment of the effectiveness of each accommodation, in terms of enabling the employee to successfully perform the job. See 29 C.F.R. Pt. 1630, App.S 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.

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." Beck , 75 F.3d at 1135-37.

Most circuits have held that liability ensues for failure to engage in the interactive process when a reasonable accommodation would otherwise have been possible. See Smith, 180 F.3d at 1174; Taylor, 184 F.3d at 317-18; Bultemeyer, 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 extend beyond those proposed:

an employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations. In making that determination, the jury is entitled to bear in mind that had the employer participated in good faith, there may have been other, unmentioned possible accommodations.

Taylor, 184 F.3d at 317-318.

A number of circuits have further held that an employer cannot prevail at summary judgment if there is a genuine dispute as to whether the employer engaged in the interactive 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 typically be precluded"); Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633-34 (7th Cir. 1998) (refusing to grant an employer 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 facilitating the integration of disabled employees into the workplace. Employers who reject this core process must face liability when a reasonable accommodation would have been possible. Without the interactive process, many employees will be unable to identify effective reasonable accommodations. 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 accommodations. 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 solving based on open and individualized exchange in the workplace that the ADA intended. Therefore, summary judgment 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 interactive 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 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 interactive process.7

In this case, Barnett triggered the interactive process obligation by communicating to U.S. Air his desire for accommodation 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 reasonable 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 devices and proposed that U.S. Air purchase a low-tech device to assist him 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 function 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 accommodation.

It is less clear whether Barnett's other suggestion of modifying the cargo position to require only deskwork was a reasonable accommodation. Although U.S. Air argues that this accommodation would require the elimination of essential functions of the cargo job, it may only have required reassignment of functions among personnel. Although U.S. Air had performed a job analysis on the position in 1992, for purposes of workers' compensation, this analysis did not involve an assessment of the position's essential functions. The duties of the cargo position were divided between front office, warehouse and lifting cargo. Not all cargo agents lifted cargo on any given day and employees 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 dispute 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 reasonable 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 seniority. 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 right he already had, a reasonable accommodation 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 appropriate if a reasonable accommodation would otherwise have been possible. There remains conflicting evidence in the record as to whether a reasonable accommodation without undue hardship to the employer was possible. Thus, a triable issue of fact exists on this issue.

Barnett argues that it would have been a reasonable accommodation for U.S. Air to allow him to remain in the mailroom, by making an exception to its seniority policy. The ADA explicitly states that reasonable accommodation may include reassignment. See 42 U.S.C. S 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 disabled employees should have priority over non-disabled employees and even when transfers are normally not allowed:

The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though they are not available to others. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, unless it could show that the reassignment caused an undue hardship. And, if an employer 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 essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be undue hardship." Id. at 5452.

U.S. Air argues that the ADA guarantees Barnett no more than the opportunity to apply for and compete for reassignment. However, the EEOC leaves no doubt that reassignment involves more than a mere opportunity for disabled 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." Id. 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 disabled 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 reassignment "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." Id. 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 reassignment is "one of the forms of reasonable accommodation specifically mentioned by the statute to be utilized if necessary 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 imposed seniority system trumps a disabled employee's right to reassignment has not been answered directly by any other circuit.8 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 any per se rule barring reassignment in the context of seniority systems.

The legislative history indicates that a collective bargaining agreement can be a factor in determining the reasonableness of an accommodation but rejects any per se bar. As explained in the House Report:

if a collective bargaining agreement reserves certain jobs for employees with a given amount of seniority, it may be considered as a factor in determining whether it is a reasonable accommodation to assign an employee with a disability without seniority to the job. However, the agreement would not be determinative on the issue.

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 agreements will incorporate provisions allowing for 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."