Equal Employment Opportunity Commission
 00-1534

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE FOURTH CIRCUIT

 No. 00-1534

 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

  Plaintiff-Appellant,

 v.

 SARA LEE CORPORATION,

  Defendant-Appellee.

 On Appeal from the United States District Court
 for the District of South Carolina

   REPLY BRIEF OF THE EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION

 In its opening brief, the Commission argued that the district
 court erred in granting summary judgment in Sara Lee's favor.  The
 Commission urged that the evidence was sufficient to support a finding
 that the charging party, Vanessa Turpin, had a disability within the
 meaning of the ADA.  The Commission relied upon the undisputed evidence,
 cited by the district court, that Turpin "regularly" experienced nocturnal
 and daytime seizures during the time frame surrounding her separation from
 employment with Sara Lee.  J.A. at 337.  The Commission also argued that
 Sara Lee's mutable, self-imposed seniority policy did not provide a per
 se bar to Turpin's proposed accommodation of being permitted to remain
 in her first shift position in light of her physician's assessment that a
 shift to a second or third shift position would pose a substantial risk of
 increased seizure activity.  Finally, the Commission made the self-evident
 point that Sara Lee's rote application of its seniority policy did not
 constitute a reasonable accommodation within the meaning of the ADA.
 See EEOC Br. at 40 (stressing that Sara Lee made no attempt to "'identify
 the precise limitations imposed by [Turpin's] disability and explore
 potential accommodations that would overcome those limitations'").
  In its brief, Sara Lee contends that the district court properly granted
  summary judgment in Sara Lee's favor.  Yet, on the critical factual
  issues bearing on the disability issue, Sara Lee digresses from the
  very district court decision that it seeks to uphold.  Specifically,
  Sara Lee contends that Turpin experienced daytime seizures "only four
  to five times during the entire fourteen-month period that Turpin
  worked at the Florence facility," Sara Lee Br. at 6, an assertion that
  contradicts the district court's own assessment of the record evidence,
  which establishes a "regular" pattern of daytime seizure activity.
  J.A. at 337.  Sara Lee also makes the counterintuitive argument that it
  provided Turpin with a reasonable accommodation by rigidly adhering
  to the options provided under its self-imposed seniority policy,
  which would have required Turpin to accept a second or third shift
  position in direct contravention of her physician's medical advice.
  Finally, Sara Lee argues that it was not required to accommodate
  Turpin's disability by permitting her to stay in her first shift
  position because an employer is never required, as part of its duty
  of reasonable accommodation under the ADA, to make an exception to a
  self-imposed seniority policy.  For the reasons discussed below (and
  in our main brief), this Court should reject Sara Lee's arguments and
  reverse the district court's erroneous grant of summary judgment.

 ARGUMENT

  1.  Sara Lee begins its brief with a recitation of the supposed
  "glaringly incorrect factual assertions" contained in the Commission's
  opening brief.  Sara Lee Br. at 19.  Sara Lee complains that the "facts
  of this case" must be "distilled from the EEOC's editorializations,"
  id. at 4, which, according to Sara Lee, deviate from the record evidence.
  In fact, it is Sara Lee that has taken liberties with the factual
  record.
  Sara Lee's first example of a "glaringly incorrect factual assertion"
  concerns the Commission's contention that the record, while unclear on
  the precise number of daytime seizures experienced by Turpin, supports a
  finding that Turpin experienced substantial numbers of daytime seizures
  on a regular and on-going basis.  Id. at 19-20.  Sara Lee maintains
  that "[t]his contention completely disregards Turpin's own testimony,
  which was that she had a grand total of four to five daytime seizures
  the entire time she worked at Sara Lee's Florence facility."  Id.
  Sara Lee has misread the record.  Turpin did not testify that she
  experienced daytime seizures "only four to five times during the entire
  fourteenth-month period that [she] worked at the Florence facility."
  Id. at 6.  Turpin testified that she remembers experiencing four
  to five seizures while "at work."  J.A. at 96 (emphasis added).
  There is undisputed evidence that, during this time frame, Turpin
  experienced substantial numbers of daytime seizures away from work.
  Turpin's husband, Benjamin Gethers, provided extensive testimony on
  Turpin's seizure history.   Gethers testified that, as of the date of his
  deposition (in 1999), Turpin was experiencing one or two daytime seizures
  a week.  Id. at 272.  Gethers further testified that because he was not
  around Turpin as much in 1997 (the period surrounding her discharge),<1>
  he did not have "the opportunity to see as many [seizures]."  Id. at 275.
  Nevertheless, even in 1997, Gethers still saw Turpin quite regularly on
  the weekends.  Id.  According to Gethers, Turpin experienced "a lot" of
  daytime seizures during this period.  Id.   Sara Lee contends that "in
  April 1997, one month before she left Sara Lee, Turpin told her physician
  that her daytime seizures had abated."  Sara Lee Br. at 20.  In fact,
  the doctor's notes cited by Sara Lee merely reflect an abatement in the
  daytime seizures as of the date of the April visit; the notes assume that
  a "recurrence" of the daytime seizures was possible, if not likely.<2>
  J.A. at 116.  Further, focusing just on Turpin's recollections, as
  related to her physician, ignores the fact that Turpin's epilepsy
  caused substantial memory lapses.  Id. at 269-70 [Gethers Deposition]
  (describing an incident in which Turpin experienced a daytime seizure
  and had no memory of the seizure); id. at 151-52 [Turpin Deposition]
  (acknowledging the effects of her "bad" memory).  Gethers, who had no
  such memory problems, was in a position to provide the best assessment
  of Turpin's seizure activity.
  Notably, Sara Lee's revisionist view of the facts directly conflicts with
  the district court's own assessment of the record evidence.  The district
  court carefully surveyed the record evidence bearing on the frequency of
  Turpin's daytime seizures.  The court relied, in particular, on Gethers'
  deposition testimony.  The court concluded that, during the relevant time
  frame, Turpin "regularly experienced daytime seizures, including four
  or five while at work."  Id. at 337 (emphasis added) (citing Gethers'
  testimony that he witnessed Turpin having daytime seizures "many times"
  in 1997).  Sara Lee is entitled to defend the district court's ruling,
  as a matter of law, on the basis of the factual record actually before
  the Court.  It is not entitled to rewrite the factual record in a manner
  more to its liking.
  Sara Lee also asserts that the Commission makes a "glaringly incorrect
  factual assertion" in arguing that "Turpin's seizures caused her to
  experience memory loss and confusion."  Sara Lee Br. at 20.  Yet,
  Sara Lee admits that there is some evidence of memory loss,  quibbling
  only with the degree of that loss.  Id. at 20-21.  In a similar vein,
  Sara Lee accuses the Commission of making a "glaringly incorrect factual
  assertion" in arguing that "Sara Lee has made exceptions to its seniority
  policy."  Id. at 21.  Yet, again, Sara Lee does not dispute the fact that
  the seniority policy allows for exceptions and has in fact been excepted
  in the past for "legitimate business reasons."  Id. at 24.  Sara Lee,
  of course, has its own spin on this evidence, which it details at some
  length.  Id. at 21-24.  At this stage of the case, however, the facts
  and inferences are viewed in the light most favorable to the Commission,
  not Sara Lee.  See Providence Square Assocs., L.L.C. v. G.D.F., Inc.,
  211 F.3d 846, 850 (4th Cir. 2000).
  Although falsely accusing the Commission of making incorrect factual
  assertions, Sara Lee proves quite adept at bending the facts to favor
  its position.  Sara Lee, for example, states that the "only evidence
  that [the] nighttime seizures had any effect on Turpin's day-to-day
  functioning is her testimony that she often feels tired the next day
  as if she did not get much sleep the night before."  Sara Lee Br. at 5.
  In fact, Turpin testified that the nocturnal seizures left her feeling
  as if she had "never slept at all."  J.A. at 175.  There is evidence,
  moreover, that Turpin would bite her tongue during the nocturnal
  seizures, "causing eating and drinking problems the next day."  Id. at
  337; see also id. at 268 [Gethers Deposition] (stating that, in the
  morning after a nocturnal seizure, Turpin "can't eat or drink nothing").
  Sara Lee states that Turpin's "ability to operate a motor vehicle or to
  work around heavy machinery was never impaired."  Sara Lee Br. at 6-7.
  The evidence shows, however, that Turpin experienced daytime seizures
  that interfered with her ability to drive.  J.A. at 265.  Sara Lee states
  that it "has no reason to dispute Turpin's testimony that she continued
  to have occasional nighttime seizures" (Sara Lee Br. at 5), but, in
  fact, there is evidence that Turpin "began to regularly experience
  nocturnal seizures throughout 1997."  J.A. at 337 (emphasis added).
  Repeatedly, Sara Lee makes the statement that Turpin experienced only
  four to five daytime seizures during the entire period that she worked
  at the Florence facility.  Sara Lee Br. at 6, 20.  As demonstrated
  above, this is an inaccurate reading of Turpin's testimony and ignores
  the undisputed evidence of frequent, recurring seizure activity, as
  documented in the district court opinion.
  2.  Its factual distortions aside, Sara Lee's legal defense of the
  district court's decision is unpersuasive.  Sara Lee argues that the
  district court properly granted summary judgment on the disability
  issue.  Sara Lee asserts that "the key factor in determining whether an
  impairment is substantially limiting is the impairment's effect on the
  individual, taking into consideration both the positive remedial and
  possibly negative side effects of corrective measures."  Id. at 29.
  Sara Lee states that "a broad generalization regarding the effect of
  the impairment on the population of sufferers will not suffice."  Id.
  Sara Lee suggests that the Commission has deviated from these principles
  by engaging in a "detailed discourse regarding epilepsy in general."
  Id. at 30.
  Sara Lee has fashioned a straw man.  The Commission acknowledged in
  its opening brief that there "are no per se disabilities under the
  ADA."  EEOC Br. at 18.  The Commission acknowledged that, rather than
  adopting "a laundry list of covered impairments," the ADA adopts a
  "functional test for disability, geared to the impact of an impairment
  on one or more [of an individual's] major life activities."  Id. at 18.
  In arguing the disability point, the Commission did not rest its argument
  on "discourse regarding epilepsy in general."  Sara Lee Br. at 30.
  Nor did the Commission rely solely upon "congressional intent and the
  legislative history of the ADA."  Id.
  The Commission did point out that, in enacting the ADA,  Congress assumed
  that epilepsy would typically meet the standard for a substantially
  limiting impairment, at least in those cases in which there is on-going
  seizure activity.  EEOC Br. at 16-18 (citing the ADA's legislative
  history).  That assumption was rooted in the contemporaneous reports
  on disability status that provided the basis for the ADA's functional
  definition of disability and its figure of 43,000,000 disabled
  individuals.  Id. at 16-17.  Sara Lee does not dispute these points but
  describes them as "immaterial to the issue before this court."  Sara Lee
  Br. at 30.  Yet, the Supreme Court has made clear that this background,
  particularly "the finding that 43 million individuals are disabled," is
  indeed relevant, giving "content to the ADA's terms, specifically the
  term 'disability.'" Sutton v. United Air Lines, Inc., 119 S. Ct. 2139,
  2149 (1999).
  As the Commission explained in opening brief, congressional intent
  would be frustrated if the ADA did not apply in a case of this nature.
  The evidence shows that Turpin has a permanent epileptic condition that,
  even with the mitigating effects of medication, results in substantial
  nocturnal and daytime seizure activity.  The evidence also shows
  that, despite the limitations imposed by her condition, Turpin was
  qualified to do her job.  If someone in Turpin's situation does not
  merit the protection of the ADA, what individual with epilepsy does?
  Although one can envision a more severe case of epilepsy, the more
  severe the condition, the more likely the individual will flunk the
  ADA's qualifications standard and, thus, fall outside the protection of
  the statute.  Congress did not intend to equate disability status under
  the ADA with "utter inabilities."  Albertson's, Inc. v. Kirkingburg,
  119 S. Ct. 2162, 2168 (1999).
  Turning its attention to the facts of this case, Sara Lee argues that
  the evidence is insufficient to sustain a finding of disability under
  any of the specific evidentiary theories advanced by the Commission.
  Sara Lee first asserts that the evidence does not support a finding that
  Turpin is substantially limited in the major life activity of caring
  for herself.  Sara Lee stresses that "there is no evidence that [Turpin]
  was unable to attend to her personal hygiene or nutritional needs,
  to clothe herself, to work, or to move herself physically from place
  to place during the remainder of the time."  Sara Lee Br. at 31-32.
  Sara Lee's argument too narrowly construes the meaning of a
  "substantially limiting" impairment.  To be "substantially limiting,"
  an impairment need not make it impossible for the individual to
  perform the major life activity.  It is enough if the impairment
  "significantly restrict[s]" the "condition, manner or duration" under
  which the individual performs the major life activity.  29 C.F.R. 
  1630.2(j)(1).  There is evidence that "alterations were made in Turpin's
  daily living to ensure that Turpin was not placed in any 'situation'
  that would increase the risk of seizure."  EEOC Br. at 27 (citing
  J.A. at 272-73).  There is evidence that Turpin was required to rely
  upon others, most notably Gethers, to assist her in carrying out daily
  activities on those occasions when Turpin had daytime seizures or break
  downs in memory resulting from the seizure activity.  J.A. at  265,
  272-74, 277-79.  Gethers also assisted Turpin through her sometimes
  harrowing nocturnal seizures.  Id. at 261-64.  Indeed, Gethers opined
  that, without the assistance of a nighttime companion, Turpin could
  well suffer serious physical injury during her nocturnal seizures.
  Id. at 276.  Together with the evidence of sleep deprivation, eating
  limitations, and the residual effects on thinking and concentrating,
  this evidence is sufficient to raise a fact issue on whether Turpin's
  impairment substantially limited her ability to care for herself.<3>
   Sara Lee also contends that the evidence does not support a finding
   that Turpin was substantially limited in the major life activity of
   sleeping because Turpin merely "'experienced fitful nights of sleep
   twice a week, a condition which affects many adults.'" Sara Lee Br. at
   33 (citing J.A. at 350).  The evidence shows, however, that Turpin's
   nocturnal seizures were characterized by shaking, kicking, salivating,
   and bedwetting.  J.A. at 337.  Turpin would sometimes bite her tongue
   during a nocturnal seizure and would awaken to find her bed covers
   tossed onto the floor and her arm or leg bruised.  Id.  A reasonable
   jury could conclude that the average adult does not inflict injury on
   herself, nor shake, kick, salivate, and bed wet while sleeping and,
   thus, that Turpin's impairment significantly restricts the "manner" or
   "condition" under which she sleeps as compared to "the average person
   in the general population."  29 C.F.R.  1630.2(j)(1).
  Next, Sara Lee argues that the evidence is insufficient to support a
  finding that Turpin was substantially limited in the major life activity
  of thinking.  On this point, Sara Lee stresses that "[t]he undisputed
  evidence shows only three manifestations of Turpin's alleged 'memory
  loss.'" Sara Lee Br. at 34.  However, the Commission's evidence is
  not so easily dismissed.  Turpin acknowledged that her memory "got
  so bad" that she would forget the simplest things.  J.A. at 151.
  Gethers testified that the incidents of forgetfulness were routine;
  in particular, Turpin would typically suffer memory lapses after
  her daytime seizures.  Id. at 269, 272.  The three "manifestations"
  referenced by Sara Lee are merely examples of the types of memory loss
  experienced by Turpin.  They do not represent the sum total of her
  memory loss experience.  These "manifestations," nonetheless, do not
  reflect the types of memory lapses "experienced by the vast majority
  of human beings" (Sara Lee Br. at 35) unless one believes that it is
  typical for the average adult to get into a car to drive to a familiar
  building and draw a complete blank as to where that building is located.
  A reasonable jury could view Turpin's memory loss as constituting a
  substantially limiting impairment.
  Finally, Sara Lee disputes the Commission's contention that
  Turpin's disability status can be established under an "intermittent
  manifestation" theory.  Sara Lee Br. at 36.  Sara Lee concedes that
  at least one circuit court, in an opinion by Chief Judge Posner,
  has embraced this theory.  Id. at 36-37.  Sara Lee disagrees with
  Judge Posner, urging this Court to reject the common sense view that
  an impairment need not be incapacitating at all times to give rise
  to a covered disability.  We respectfully submit that Judge Posner,
  not Sara Lee, has it right.
  Contrary to Sara Lee's argument, the intermittent manifestation theory
  does not ignore "the clear language of the ADA, which requires an
  'impairment' to be 'substantially limiting' before it qualifies as
  a 'disability.'" Id. at 37.  In determining  whether an individual
  is "substantially limited" in a major life activity, three factors
  are considered: (1) the "nature and severity of the impairment;" (2)
  the "duration or expected duration of the impairment;" and (3) the
  "permanent or long term impact, or the expected permanent or long term
  impact of or resulting from the impairment."  29 C.F.R.  1630.2(j)(2).
  These factors focus on the permanent nature of the impairment and its
  long-term or residual effects on the individual.  A permanent impairment
  that manifests itself on an on-going basis in the form of incapacitating
  conscious-altering seizures falls squarely within the definition of a
  substantially limiting impairment.
  This view of statutory coverage has not been supplanted by Sutton
  v. United Air Lines, Inc., Sara Lee's suggestion to the contrary
  notwithstanding.  Sara Lee Br. at 37.  Sutton affects the law on one
  point: it holds that mitigating measures are to be taken into account in
  determining an individual's disability status.  Sutton does not alter the
  disability analysis in those cases in which the effects of an impairment
  are not fully controlled by a mitigating measure.  Sutton makes clear
  that individuals may be covered under the ADA when they "take medicine
  to lessen the symptoms of an impairment so that they can function but
  nevertheless remain substantially limited."  119 S. Ct. at 2149.
  Of course, there may be circumstances where the manifestations of
  the underlying condition are so sporadic that they might not be
  viewed as substantially limiting.  See 2 EEOC Compliance Manual,
  Interpretations (CCH)  902.4,  6884, at p. 5320 (1995) (suggesting
  that the intermittent manifestations of a chronic condition must have
  a "high likelihood of recurrence").    This, however, is not such a
  case; Turpin regularly experienced both nocturnal and daytime seizures.
  J.A. at 337.  There may also be cases where the manifestations, while
  occurring with some frequency, are not themselves substantially limiting,
  e.g., "recurring minor symptoms, such as indigestion or nasal allergies."
  Sara Lee Br. at 37; see 2 EEOC Compliance Manual, Interpretations
  (CCH)  902.4,  6884, at p. 5320 (suggesting that the intermittent
  manifestations  must be "in substantially limiting forms").  Again,
  that is not this case.  Although Sara Lee characterizes the symptoms of
  Turpin's epilepsy as "mild," Sara Lee Br. at 37-38, the evidence shows
  that Turpin's daytime seizures lasted for as long as two minutes each
  and were incapacitating for the duration of the seizure.  J.A. at 338.
  During these seizures, Turpin "would begin shaking, her face would
  take on a blank expression, and she would be completely unaware of,
  and unresponsive to, her surroundings."  Id.  This is a textbook case
  for applying the intermittent manifestation theory.
  3.  Although arguing that the Commission's case founders on the
  disability issue, Sara Lee also argues, in the alternative, that it
  provided Turpin with a reasonable accommodation.  Sara Lee claims that
  it met its duty of reasonable accommodation under the ADA by offering
  Turpin the "'three options' (changing shifts, layoff, or severance)"
  made available to all employees under a rote application of Sara Lee's
  seniority policy.  Sara Lee Br. at 40.
  This is mystifying argument.  By definition, a reasonable accommodation
  is a "change in the work environment or in the way things are
  customarily done."  Interpretive Guidance on Title I of the Americans
  with Disabilities Act, 29 C.F.R. Pt. 1630, App.  1630.2(o) (emphasis
  added).  Here, Sara Lee did not change anything; it tenaciously clung
  to its self-imposed seniority policy in the face of Turpin's request
  for accommodation.  Sara Lee, moreover, made no attempt to "identify
  the precise limitations imposed by [Turpin's] disability and explore
  potential accommodations that would overcome those limitations."  Id.
  Sara Lee concedes that it had no contact with Turpin's physician, at the
  time of the events in question, and that its in-house medical director,
  Dr. Egnatz, "was not a neurologist and did not examine Turpin or review
  her medical records."  Sara Lee Br. at 21.  Sara Lee concedes that,
  from its perspective, the "only question before Sara Lee was whether
  it should deviate from its seniority policy to accommodate an employee
  with an alleged disability."  Id. (emphasis added).  It is one thing to
  argue, as Sara Lee does, that the company was not required to provide
  Turpin with an accommodation that would conflict with the company's
  self-imposed seniority policy.  It is another thing to argue that,
  by doing nothing other than invoking that policy, Sara Lee in fact
  accommodated Turpin's disability.
  Sara Lee contends that the Commission's argument would have the "perverse
  effect of discouraging employers from adopting policies that accommodate
  individuals with disabilities," since, "if an employer has to deviate
  from its policies to accommodate employees with disabilities, then the
  employer with fewer 'accommodation' policies is better off than the
  employer with progressive, pro-accommodation policies."  Id. at 42.
  This misconstrues the Commission's argument.  The Commission is not
  arguing that an employer must always make changes in its policies in
  order to accommodate a disabled individual.  If an employer has an
  "accommodation" policy and if that policy, in a particular case,  is
  effective in permitting a disabled individual to perform the essential
  functions of a job, the employer may stand on the policy; it need not
  provide the disabled individual with a "better" accommodation that is
  more to the individual's liking.  See Interpretive Guidance on Title I of
  the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App.  1630.9.
  The problem here is that Sara Lee had no such "accommodation" policy.
  It had nothing but a self-imposed seniority policy that provided the
  same three options to all affected employees, none of which took into
  account the "precise limitations imposed by [Turpin's] disability."
  Id. at App.  1630.2(o).  This led Turpin to request a modification
  to the policy.  By standing on its self-imposed seniority policy,
  Sara Lee did nothing to "accommodate" Turpin's disability.
  Sara Lee contends that Turpin should have attempted "to adjust" to
  a second or third shift position.  Sara Lee Br. at 44. This argument
  ignores the fact that such a change was directly contrary to the medical
  advice of Turpin's neurologist, Dr. Healy.  See EEOC Br. at 39-40.
  Sara Lee's contention that Dr. Healy's opinion was based on the mistaken
  assumption that "Sara Lee was requiring Turpin to work a rotating,
  or swing, shift rather than an unchanging second or third shift" (Sara
  Lee Br. at 17) is simply wrong.  Dr. Healy opined that any change to
  a second or third shift position could have the immediate consequence
  of intensifying Turpin's seizure activity, leading to even greater
  seizure activity in the long run, given the medical evidence "that if
  a seizure happens, then it's more apt to repeat."<4>  J.A. at 108-09,
  116, 306.  Dr.  Egnatz had a different opinion but "Dr. Egnatz was not a
  neurologist and did not examine Turpin or review her medical records."
  Sara Lee Br. at 21.  Egnatz moreover, never spoke to Dr. Healy or
  Dr. Ducker (Turpin's other physician).  J.A. at 342.  Nor did anyone
  else at Sara Lee.  Id. at 341-42.  It was not Turpin  "who broke off
  the interactive process by refusing to even attempt to adjust to a
  new shift."  Sara Lee Br. at 44.  It was Sara Lee that broke off the
  interactive process by making no reasonable attempt to identify the
  precise limitations imposed by Turpin's condition.
  4.  Finally, Sara Lee maintains that it was not required to accommodate
  Turpin's disability by permitting her to stay in the first shift
  position, since such an accommodation was inconsistent with the supposed
  dictates of the company's self-imposed seniority policy.  Sara Lee
  contends that the ADA's duty of reasonable accommodation may never be
  read to require employers "to deviate from their seniority policies."
  Id. at 48.
  There are several flaws in Sara Lee's argument.  To begin with, Sara Lee
  relies upon a body of inapposite circuit court case law holding that an
  accommodation is per se unreasonable when it compromises the seniority
  rights of other employees, as established under a collective bargaining
  agreement ("CBA").  Sara Lee Br. at 48-49 (citing cases).  In this line
  of cases, courts have recognized that "'collectively bargained seniority
  rights have a pre-existing special status in the law.'" Davis v. Florida
  Power & Light Co., 205 F.3d 1301, 1307 (11th Cir. 2000) (emphasis added).
  Courts have stressed that "'[c]ollective bargaining, aimed at effecting
  workable and enforceable agreements between management and labor, lies
  at the core our national labor policy.'" Eckles v. Consolidated Rail
  Corp., 94 F.3d 1041, 1048 (7th Cir. 1996).  Courts have opined that
  subjecting collectively-bargained seniority rights to the prohibitions
  of the ADA would lead to disruptions in the grievance and arbitration
  procedures established under CBAs.  Kralik v. Durbin, 130 F.3d 76, 83
  (3d Cir. 1997).  Based on these  concerns, several courts have adopted
  a per se rule, insulating collectively-bargained seniority rights from
  any modification otherwise mandated by the ADA's reasonable accommodation
  requirement.<5>
  Outside the CBA context, the case law takes a decidedly different
  turn.  The lead circuit court authority is Smith v. Midland Brake,
  Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc).  Smith adopts a per
  se rule against any accommodation that would require an employer to
  place a disabled individual in a job that is subject to the "vested
  priority right" of another employee "under a collective bargaining
  agreement."  Id. at 1175.  Smith takes a different approach with respect
  to seniority systems that are "not rooted in a collective bargaining
  agreement."  Id. at 1176.  In  that context, there is no per se rule.
  Instead, an employer must show that the proposed accommodation would so
  "disrupt and violate" a "well entrenched seniority system" that it would
  "constitute a fundamental and unreasonable alteration in the nature of
  the employer's business."  Id. (noting that such a showing would be
  possible in "some circumstances").  Smith does not adopt an ironclad
  rule "that non-collectively-bargained seniority rights constitut[e]
  legitimate expectations on the part of the senior employees that should
  not be violated to accommodate less-senior disabled employees."  Sara
  Lee Br. at 51.  Smith provides employers in cases of this nature with
  an undue hardship defense, a defense that is, by its very nature,
  case-specific.
  Sara Lee cites the panel decision in Barnett v. U.S. Air, Inc.,
  196 F.3d 979 (9th Cir. 1999) in support of its argument that
  non-collectively-bargained seniority rights stand on the same footing
  as collectively-bargained seniority rights.  Sara Lee Br. at 51.
  The Ninth Circuit, however, has granted rehearing en banc in Barnett and
  further ordered that the "three-judge panel opinion . . . not be cited
  as precedent by or to this court."  201 F.3d 1256 (9th Cir. 2000).
  Thus, contrary to Sara Lee's contention, the panel decision does
  not "still stand[]."  Sara Lee Br. at 51 n.19.  Sara Lee also cites
  Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997).
  Foreman, however, involved collectively-bargained seniority rights.
  While there is dictum suggesting that the result would have been the
  same in a case involving non-collectively-bargained seniority rights,
  that dictum reflects the erroneous view that the ADA "requires nothing
  more than that employers treat disabled and non-disabled employees
  equally with respect to personnel decisions."  J.A. at 357-58 (citing,
  e.g., Foreman, 117 F.3d at 810).  As the Commission explained in its
  opening brief (at 32-35), courts have overwhelmingly held that the ADA
  "does not only mandate that individuals with disabilities be treated
  the same as persons without such disabilities;" individuals with
  disabilities "must be accorded reasonable accommodations not accorded
  to other persons in order to ensure that individuals with disabilities
  enjoy 'equality of opportunity, full participation, independent living,
  and economic self-sufficiency.'"  E.g., L.C. v. Olmstead, 138 F.3d 893,
  899 (11th Cir. 1998), aff'd in part, vacated in part on other grounds,
  119 S. Ct. 2176 (1999).
  Sara Lee contends that "[t]he EEOC's distinction between
  non-collectively-bargained seniority systems and those that are
  collectively bargained reflects an outmoded view of the dramatic
  expansion of employee rights of the past twenty years, particularly the
  explosive growth of the cause of action for breach of implied contract
  based on employer policies."  Sara Lee Br. at 52.  The Commission
  anticipated this argument in its opening brief, pointing out that
  Sara Lee's seniority policy expressly allows Sara Lee to modify the
  policy at its discretion, thereby avoiding the imposition of binding
  obligations under an implied contract theory.  EEOC Br. at 36-37 n.8.
  Although Sara Lee claims that the Commission's argument "does not take
  into account South Carolina case law holding that disclaimers do not
  necessarily defeat breach of contract claims," Sara Lee Br. at 56,
  the cases cited by Sara Lee are inapposite, addressing the implied
  contract theory in the discrete context of employee manual or handbook
  provisions. Further, as Sara Lee concedes, the seniority policy in this
  case "was drafted years before the downturn in the hosiery business
  and therefore does not directly address plant closings."  Id. at 9
  (emphasis added).  It is difficult to see how Sara Lee, in the context
  of a plant closing, could "subject[] itself to liability" under a breach
  of contract theory, id. at 56, by failing to follow a seniority policy
  that does "not directly address plant closings."<6>
  Sara Lee asserts that, the company's interests aside, providing Turpin
  with her requested accommodation would be "supremely unfair to Turpin's
  co-workers, who could not take advantage of medical conditions to escape
  the consequences of a plant closing."  Id. at 55-56.  Sara Lee has an
  interesting view of what is "fair."  Turpin has epilepsy, a permanent,
  life-altering condition that may well limit Turpin's ability to obtain
  alternative employment.  By denying Turpin's requested accommodation,
  Sara Lee effectively forced Turpin out of a job.  If Sara Lee had
  provided the accommodation, the result would have been far less
  Draconian:  a more senior employee would have been forced to work a
  second or third shift position until such time as a position opened up on
  the first shift.  In a perfect world, everyone would have their choice
  of jobs and shifts.  In the real world, decisions have to be made.
  Sara Lee objects to the "unfairness" of placing the interests of "a
  ten-year employee" above those of "twenty- and thirty-year employees."
  Id. at 57.  The Commission objects to the unfairness of placing the
  interests of a non-disabled employee above those of disabled employees,
  who face unique barriers to employment not confronted by the non-disabled
  employee.  See Mark C. Weber, Foreward: A Symposium on Individual Rights
  and Reasonable Accommodations Under the Americans with Disabilities
  Act, 46 DEPAUL L. REV. 871, 875 (1997) (noting that "[c]o-workers,
  like others, need to realize that different treatment is necessary in
  order to create true equality for individuals with disabilities;" the
  "baseline of what is a fair allocation of workplace joys and sorrows has
  to be adjusted when individuals come to work with limits that require
  reasonable accommodation").
  In enacting the ADA, Congress fashioned reasonable accommodations,
  e.g., "part-time or modified work schedules,"  that would permit
  disabled employees, as much as possible, to retain their employment.
  42 U.S.C.  12111(9)(B); see also H.R. Rep. No. 101-485(II), 101st
  Cong., 2d Sess. 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345
  (expressing the desire that disabled employees be retained in their
  jobs, if at all possible, to "prevent the employee from being out of
  work and [the] employer from losing a valuable worker").  Congress was
  undoubtedly aware that, in many cases, providing these accommodations
  would affect the interests of other employees; for example, modifying
  the work schedule of one employee almost inevitably affects the work
  schedules of other employees.  Congress' solution was not to insulate
  other employees from the effects of the ADA's reasonable accommodation
  requirement.<7>  It was to provide an undue hardship defense for cases
  in which the employer can prove that the accommodation would be unduly
  disruptive of its operations.  See 29 C.F.R.  1630.2(p).
  It is significant, in this regard, that the ADA contains no special
  protection for seniority systems.  This is in marked contrast to Title
  VII of the Civil Rights Act of 1964, which provides explicit protection
  for bona fide seniority systems.  See 42 U.S.C.  2000e-2(h); see also
  46 DEPAUL L. REV. at 874 (stressing that because "[s]eniority is given
  special protection under the terms of Title VII, . . . consideration
  of that aspect of worker expectations under Title VII may not be very
  informative with regard to the proper interpretation of the Americans
  with Disabilities Act, which lacks any seniority protections").  Plainly,
  Congress knows how to provide special protection for seniority rights
  when it wants to.  The omission of any such protection in the ADA,
  which otherwise borrows heavily from Title VII's provisions, see,
  e.g., 42 U.S.C.  12117(a), provides strong evidence that Congress
  did not intend to invest seniority rights with any special status
  under the ADA.  See Russello v. United States, 464 U.S. 16, 23 (1983)
  (Congress is presumed to act "'intentionally and purposely in the
  disparate inclusion of exclusion'" of language in related statutory
  provisions); 2B N. SINGER, SUTHERLAND'S STATUTORY CONSTRUCTION 
  51.02 at 122-23 (5th ed. 1992) ("'where a statute, with reference to
  one subject contains a given provision, the omission of such provision
  from a similar statute concerning a related subject is significant to
  show that a different intention existed'").
  One final point.  Even assuming that a consistently applied, on-point,
  self-imposed seniority system could override the protections of the ADA,
  no such policy exists in this case.  As noted above, the seniority
  policy in this case does not "directly address plant closings."
  J.A. at 38.  By its plain terms, the policy does not apply to the plant
  closing/transfer scenario at issue in this case.  Although the company
  retains the discretion to apply the policy to plant closings, it has not
  always done so.  Id. at 320-21.  The policy permits Sara Lee "to make
  modification changes to the provisions of [the] policy and the inclusive
  policies involved."  Id. at 42.  The policy authorizes Sara Lee's
  Company-wide Seniority Review Board to deviate from seniority levels
  with respect to laid off employees seeking an "Interplant Transfer."
  Id. at 50.  Sara Lee claims that its workers view the seniority policy as
  "sacred" (Sara Lee Br. at 53) but when asked to explain "what would have
  been the effect on Sara Lee's operations" if "an exception had been made
  in Vanessa Turpin's case," Sara Lee had no real answer.  EEOC Br. at
  37-38 n.9.  This is far removed from the type of "well entrenched"
  seniority system that might lie beyond the reach of the ADA.  See Smith,
  180 F.3d at 1176.              Sara Lee is worried that "[a]doption
  of the EEOC's position on accommodation could undermine the ADA and
  actually fan societal resentment against disabled individuals."  Sara Lee
  Br. at 57.  We appreciate Sara Lee's concern with the enforcement of the
  ADA and the interests of disabled workers.  Congress, however, was aware
  of the dangers of an unconstrained reasonable accommodation requirement.
  Congress fashioned a legislative solution:  the undue hardship defense.
  Here, Sara Lee disclaims any reliance on that defense (id. at 49 n.17),
  and for good reason; the record provides no support for any such defense.
  See EEOC Br. at 36-37.

 CONCLUSION

  The decision of the district court should be reversed and the case
  remanded.
         Respectfully Submitted,

         C. GREGORY STEWART
         General Counsel

         PHILIP B. SKLOVER
         Associate General Counsel

         LORRAINE C. DAVIS
         Assistant General Counsel

         ROBERT J. GREGORY
         Senior Attorney

         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
         July 26, 2000
         (202) 663

 1  The couple had not yet married.

 2  There is no dispute that, despite the temporary improvement reflected
 in the April 1997 physician's notes, Turpin has continued to experience
 both nocturnal and daytime seizures.  J.A. at 339.  Indeed, if anything,
 Turpin's condition has worsened over time.  Id. at 352 n.9.  There is
 also evidence that, just two months before the April visit, Turpin had
 complained of daytimes seizures in the workplace.  Id. at 117 [notes of
 Turpin's physician].

 3  Sara Lee states that "Turpin has testified that her medical condition
 does not impair her in any significant way."  Sara Lee Br. at 6 (citing
 J.A. at 97-99).  This is not, in fact, Turpin's testimony.  When asked,
 "[h]ave the seizures affected you in any other way in your daily life?",
 Turpin responded, "I don't think so.  Just the seizures.  It's just --
 you know, that's all.  I think."  J.A. 98-99.  It should be kept in mind
 that individuals with disabilities often downplay the impact of their
 conditions, since they aspire to independent living and do not wish to
 concede their limitations.  For that reason, the first-hand accounts of
 other witnesses play a critical role in assessing disability status.
 In this case, Gethers provided such a first-hand account, cataloguing
 the ways in which Turpin's condition interfered with her daily living.
 See, e.g., id. at 272-79.

 4 Dr. Healy offered this opinion both at the time of his deposition in
 this case, J.A. at 108-09, and at the time of the events in questions.
 Id. at 116 [4/9/97 notes of Dr. Ducker] (referencing Dr. Healy's opinion
 that Turpin should stay on the first shift to "lessen the possibility
 of recurrent seizure").

 5  Sara Lee correctly points out that the Commission has issued an
 enforcement guidance under the ADA, which argues against any "per se
 rule that the ADA does not mandate as a reasonable accommodation an
 action that infringes on the seniority rights of another employee in
 a collective bargaining agreement."  Enforcement Guidance: Reasonable
 Accommodation and Undue Hardship Under the Americans with Disabilities
 Act at 26 n.115 (1999) (cited in Sara Lee Br. at 45); see also Eckles
 v. Consolidated Rail Corp., 94 F.3d 1041 (same argument advanced in the
 Commission's brief as amicus curiae).  The Commission, however, is not
 advancing that argument in this litigation, which does not involve a CBA.
 This Court can agree with the Commission that Sara Lee's self-imposed
 seniority policy is not immune from the dictates of the ADA without
 agreeing with the Commission's argument concerning the proper treatment
 of collectively-bargained seniority rights.  By narrowing the scope
 of its argument in this case, the Commission is not ignoring "its own
 pronouncements that there is no real difference between the two types
 of seniority systems," i.e., a collectively-bargained seniority system
 and a self-imposed seniority system.  Sara Lee Br. at 50.  It is simply
 recognizing the reality that, the Commission's position notwithstanding,
 most courts have adopted a per se rule in the CBA context, immunizing
 seniority rights from the reach of the ADA.

 6  In any event, there is a compelling argument that if an employer
 is subject to conflicting obligations under the ADA and state contract
 law, the ADA preempts the state law, leaving the employer free to carry
 out its duty under the ADA without fear of liability to the disabled
 employee's co-worker.  See generally California Fed. Sav. and Loan Ass'n
 v. Guerra, 479 U.S. 272, 281 (1987) (federal law preempts state law
 to the extent the state law "actually conflicts with federal law;" an
 "actual conflict" occurs "either because 'compliance with both federal
 and state regulations is a physical impossibility' or because the state
 law stands 'as an obstacle to the accomplishment and execution of the
 full purposes and objectives of Congress'").

 7  Congress did make clear that the duty of reassignment under the ADA
 was limited to "vacant" positions, 42 U.S.C.  12111(9)(B), meaning
 that other employees need not be "bumped" out of their current jobs
 to make way for the disabled employee.  See H.R. Rep. No. 485(II),
 101st Cong., 2d Sess. at 63, reprinted in 1990 U.S.C.C.A.N. at 345.
 In this case, Turpin did not seek reassignment to another position,
 "vacant" or otherwise.  Turpin sought to stay in her existing position.
 At most, this required Sara Lee to make a modification in Turpin's work
 schedule, permitting her to stay on the first shift despite the change
 in shift supposedly mandated by the seniority policy.