David Willis v. Pacific Maritime Association
 97-16778 & 16779

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE NINTH CIRCUIT

 ______________________

 Nos. 97-16778 & 16779
 ______________________

 DAVID WILLIS,

  Plaintiff-Appellant,

   v.

 PACIFIC MARITIME ASSOCIATION,
 et al.,

  Defendants-Appellees.
 PAUL GOMEZ,

  Plaintiff-Appellant,

   v.

 PACIFIC MARITIME ASSOCIATION,
 et al.,

  Defendants-Appellees.

 _____________________________________________________

 On Appeal from the United States District Court
 for the Northern District of California
 _____________________________________________________

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 IN SUPPORT OF APPELLANTS' PETITION FOR REHEARING EN BANC
 _____________________________________________________

       GWENDOLYN YOUNG REAMS
       Associate General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       VINCENT J. BLACKWOOD
       Assistant General Counsel

       BARBARA L. SLOAN
       PAUL D. RAMSHAW
       Attorneys

       EQUAL EMPLOYMENT OPPORTUNITY
        COMMISSION
       1801 L Street, N.W.
       Washington, D.C.  20507
       (202) 663-4721

 STATEMENT OF COUNSEL

  1. I express a belief, based on a reasoned and studied professional
  judgment, that the panel decision is inconsistent with the following
  en banc decision of the United States Court of Appeals for the Ninth
  Circuit, and that consideration by the full Court is necessary to secure
  and maintain uniformity of decisions in this Court:
 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000).

  2. I express a belief, based on a reasoned and studied professional
  judgment, that this appeal involves the following question of exceptional
  importance:
 Whether the panel erred in holding that, as a matter of law, an employer
 or union need never reasonably accommodate a disabled employee where
 the proposed accommodation would conflict with a collectively-bargained
 seniority provision, regardless of whether the employer and/or union
 could otherwise establish that the proposed accommodation would result
 in undue hardship.

                                 Barbara L. Sloan
 Attorney
 Equal Employment Opportunity    Commission

 TABLE OF CONTENTS

             Pages

 STATEMENT OF COUNSEL    i

 TABLE OF CONTENTS   ii

 TABLE OF AUTHORITIES  iii

 STATEMENT OF INTEREST    1

 STATEMENT OF THE ISSUE    1

 BACKGROUND    1

 ARGUMENT

 A CONFLICT BETWEEN A PROPOSED ACCOMMODATION AND
 A COLLECTIVELY BARGAINED SENIORITY PROVISION
 MIGHT CAUSE UNDUE HARDSHIP, BUT IT DOES NOT MAKE
 THE PROPOSED ACCOMMODATION "PER SE UNREASONABLE."    4

 CONCLUSION   15

 CERTIFICATE OF COMPLIANCE   16

 CERTIFICATE OF SERVICE
     TABLE OF AUTHORITIES

 CASES                 Page(s)

 Air Line Pilots Association v. Northwest Airlines,
  199 F.3d 477 (D.C. Cir. 2000)  13

 Aka v. Washington Hospital Center,
  156 F.3d 1284 (D.C. Cir. 1998) (en banc)   4

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

 Benson v. Northwest Airlines,
  62 F.3d 1108, 1114 (8th Cir. 1995)   12

 Carter v. Tisch,
  822 F.2d 465 (4th Cir. 1987)   9

 Cassidy v. Detroit Edison Co.,
  138 F.3d 629, 634 (6th Cir. 1998) 12

 Davis v. Florida Power & Light Co.,
  205 F.3d 1301 (11th Cir. 2000)  11

 Eckles v. Conrail,
  94 F.3d 1041 (7th Cir. 1996)  12

 Feliciano v. Rhode Island,
  160 F.3d 780, 787 (1st Cir. 1998)  11

 Foreman v. Babcock & Wilcox Co.,
  117 F.3d 800 (5th Cir. 1997) 12

 Gonzagowski v. Widnall,
  115 F.3d 744 (10th Cir. 1997)  9

 Kralik v. Durbin,
  130 F.3d 76 (3d Cir. 1997)  12, 14

 Milton v. Scrivner, Inc.,
  58 F.3d 382 (10th Cir. 1995)  12

 Tooley v. Martin Marietta Corp.,
  648 F.2d 1239 (9th Cir. 1981)  8

 Trans World Airways v. Hardison,
  432 U.S. 63 (1977)  9

 STATUTES and REGULATIONS

 29 U.S.C.  623(f)(2)  10

 Rehabilitation Act of 1973, 29 U.S.C.  791-794   9

 42 U.S.C.  2000e-2(h)  10

 Title I of the Americans with Disabilities Act of 1990,

  42 U.S.C.  12101 et seq.  passim

  42 U.S.C.  12111(2)  10

  42 U.S.C.  12111(9)   5, 9

  42 U.S.C.  12111(10)   5

  42 U.S.C.  12112(5)(A)  5

 29 C.F.R.  1614.203(g)  10

 29 C.F.R. App.  1630.2(p)  5

 34 C.F.R.  104.2  10

 34 C.F.R.  104.11 10

 34 C.F.R.  104.12(b)  9

 45 C.F.R.  84.2  10

 45 C.F.R.  84.11  10

 45 C.F.R.  84.12(b)  9

 LEGISLATIVE HISTORY AND OTHER AUTHORITY

 H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990),
  reprinted at 1990 U.S.C.C.A.N. 267  8, 11, 13

 S. Rep. No. 116, 101st Cong., 1st Sess (1989)   11, 13

 EEOC: Reasonable Accommodation & Undue Hardship
   Under The ADA, 8 FEP Manual (BNA) 405:7601   7STATEMENT OF INTEREST
  The Equal Employment Opportunity Commission interprets and enforces
  Title I of the Americans With Disabilities Act of 1990, 42 U.S.C. 
  12101 et seq. ("ADA"), and other federal employment discrimination laws.
  This case presents an issue of exceptional importance concerning
  the ADA duty to provide reasonable accommodation.  The panel held
  that any proposed accommodation that conflicts with any aspect of
  a collectively-bargained seniority system is per se unreasonable.
  That ruling is inconsistent with this Court's recent decision in
  Barnett v. U.S. Air, 228 F.3d 1105 (9th Cir. 2000) (en banc), as well
  as with the language, structure and legislative history of the ADA.
  We therefore offer our views in support of plaintiffs' petition for
  rehearing en banc.

 STATEMENT OF THE ISSUE

  Whether a proposed accommodation that conflicts with a
  collective-bargained seniority system is per se unreasonable.

 BACKGROUND

  The International Longshore & Warehouse Union ("ILWU") and the
  Pacific Maritime Association ("PMA"), an association of employers,
  maintain a hiring hall through which dock workers obtain referrals for
  job assignments on a day-to-day basis.  Paul Willis became a member
  of the ILWU in 1967.  In 1986, after sustaining various injuries, he
  asked to be placed on the waiting list for the Dock Preference Board
  ("DPB").  Under the collective bargaining agreement between the ILWU
  and the PMA, DPB members had first priority for light-duty assignments.
  Employees generally moved off the waiting list onto the DPB, based
  on seniority.  Because the list was capped at 30 members, however,
  there were more people on the waiting list than spots on the DPB.
  Despite repeated requests, Willis, who had nearly 20 years seniority, did
  not obtain placement on the DPB before he retired in 1996.  He asserts
  that others with lower seniority were placed on the DPB ahead of him.
  PMA explained the presence of less senior members on the DPB in two ways:
  once an individual was placed on the DPB, he remained there even if more
  senior workers were added to the waiting list; and, in 1995, defendants
  dissolved a number of "gangs" of dock workers and, by agreement, some
  "gang members" were placed on the DPB ahead of more senior workers on
  the waiting list.
  Paul Gomez became a union member in 1988.  After injury and illness,
  Gomez sought placement on the DPB and/or a transfer to Local 34, for
  maritime clerks.  Membership in Local 34 was limited to employees with
  5 or more years of seniority.  Gomez' requests were denied based on
  his lack of seniority.
  Plaintiffs brought accommodation claims under the ADA and state law.
  The district court dismissed the suits, stating that "[r]easonable
  accommodation under the ADA does not require employers to reassign
  employees in a way that would violate the seniority rights of
  other employees under a bona fide seniority system."  ER 1524.
  Since more senior longshoremen were available, the court concluded, no
  accommodation was required.  A panel of this Court affirmed.  On July 6,
  1999, however, the panel deferred issuance of the mandate pending the
  outcome of the rehearing petition in Barnett v. U.S. Air, 179 F.3d 1251
  (9th Cir. 1999).
  After the en banc decision in Barnett was issued, the panel issued
  a new decision once again affirming dismissal of these suits.
  Characterizing the proposed accommodation as a request to "transfer
  to a position involving permanent light duty work," slip op. at 333,
  the panel concluded that such accommodation was "per se unreasonable"
  because it would "directly conflict" with "the collectively bargained
  seniority rights of other employees."  See id. at 338.
  The panel acknowledged that Barnett "declined to adopt a per se rule
  where a seniority system was unilaterally imposed by an employer," and
  held instead that defendants must prove that a proposed accommodation
  that conflicts with a seniority system would result in undue hardship.
  See slip op. at 343.  Rather than follow Barnett, however, the panel
  announced a special rule for collectively bargained seniority provisions.
  The panel noted that other circuits have reached a similar result,
  by analogy to Rehabilitation Act cases.  Id. at 342-44.  The panel
  also relied on a "plain reading" of the ADA which, as it acknowledged,
  says nothing about seniority systems.  Id. at 343.  Finally, the panel
  asserted that its per se rule was required because any other rule would
  be unduly burdensome for employers.  Id. at 345.  The panel added that
  employers and unions are "certainly . . . free to bargain for specific
  language that creates an exception to the seniority system to accommodate
  employees with disabilities," but that no liability would result from
  their failure to do so.  Id. at 346.

 ARGUMENT

 A CONFLICT BETWEEN A PROPOSED ACCOMMODATION AND A COLLECTIVELY BARGAINED
 SENIORITY PROVISION MIGHT CAUSE UNDUE HARDSHIP, BUT IT DOES NOT MAKE
 THE PROPOSED ACCOMMODATION "PER SE UNREASONABLE."

  The panel erred in holding that the proposed accommodations in this
  case are "per se unreasonable" simply because they conflict with
  a collectively bargained seniority system.  In Barnett, this Court
  flatly rejected a per se rule, holding that the ADA requires defendants
  to provide accommodations unless they would cause undue hardship.
  The panel here marginalized Barnett, limiting it to cases where the
  seniority provision is employer-imposed.  On the contrary, while the
  fact that a seniority system is collectively bargained might affect
  the result in a particular case, the approach should be the same.
  Congress made clear that covered entities, both unions and employers,
  must reasonably accommodate disabled employees unless such accommodation
  would result in undue hardship.  By effectively eliminating covered
  entities' obligation to prove undue hardship, the panel ignores Congress'
  intent and undermines the ADA's purpose of ensuring disabled employees
  full participation in the workplace.
  The ADA imposes on covered entities, including employers and unions (see
  42 U.S.C.  12111(2)), the duty to provide reasonable accommodation,
  short of undue hardship, to otherwise qualified disabled employees.
  The statute expressly provides that reasonable accommodation may include
  modification of existing policies and reassignment to a vacant position.
  42 U.S.C.  12111(9).  The statute specifies that a covered entity
  violates the ADA by "not making reasonable accommodations to the
  known physical . . . limitations of an otherwise qualified individual
  with a disability . . . unless such covered entity can demonstrate
  that the accommodation would impose an undue hardship."  42 U.S.C. 
  12112(5)(A).  Undue hardship means "an action requiring significant
  difficulty or expense," and may encompass the accommodation's impact
  on other employees as well as on the business as a whole.  42 U.S.C. 
  12111(10); 29 C.F.R. App.  1630.2(p).  There is no explicit exception
  for seniority systems of any kind.
  In its en banc decision in Barnett, this Court considered whether an
  employer could be required to reassign a plaintiff to a position for
  which he lacked the requisite seniority under the employer-created
  seniority system.  After carefully reviewing the statutory language
  and framework, as well as the legislative history and applicable
  EEOC guidance, the Court concluded that such accommodation was not
  unreasonable as a matter of law.  The Court noted that "in assessing
  reasonable accommodations, the primary focus is on whether the
  accommodation effectively allows a disabled employee to successfully
  perform the job."  Barnett, 228 F.3d at 1113 n.4; see also id. at 1122
  (Gould, J., concurring) ("An accommodation is reasonable if it will
  work for the employee.").  In contrast, the impact that a proposed
  accommodation would have on the employer should properly be considered
  only in assessing undue hardship.  See id. at 1113.  The Court further
  noted that the statute "does not allow employers to avoid reasonable
  accommodation absent a showing of undue hardship."  Id.
  The Court rejected an argument that it would be per se unreasonable
  to require an employer to modify its seniority policy to accommodate
  the plaintiff, reasoning that a per se bar "sharply limit[s] the range
  of available accommodations without any required showing of an undue
  hardship on the employer."  228 F.3d at 1120.  It also "conflicts
  with the basic premise of the ADA, which grounds accommodation in the
  individualized needs of the disabled employee and the specific burdens
  which such accommodation places on an employer."  Id. at 1120-21.
  The Court therefore held that conflicts between proposed accommodations
  and employer-imposed seniority systems should be treated like any
  other claims of undue hardship.  The existence of the conflict would
  be relevant, but not determinative of the issue.  See, e.g., 228 F.3d
  at 1119-21 (citing statute, EEOC guidance and ADA legislative history).
  Although this case also involves a conflict between proposed
  accommodations and a seniority system, the panel ignored Barnett's
  direction to consider whether providing these proposed accommodations
  would result in undue hardship under the circumstances of this case.
  Instead, the panel opted for the per se approach rejected in Barnett,
  holding that the proposed accommodations were per se unreasonable without
  considering undue hardship.  This approach, however, improperly collapses
  undue hardship into reasonable accommodation.  As Judge Gould noted in
  Barnett, 228 F.3d at 1122 (Gould, J., concurring), "[t]he statute makes
  sense only if 'reasonable' refers to the effects of the accommodation
  on the employee's ability reasonably to perform the essential functions
  of the job and does not include effects of difficulty or expense on
  [covered entities]."  See also EEOC: Reasonable Accommodation &
  Undue Hardship Under The ADA, 8 FEP Manual (BNA) 405:7601, 7603
  (in the context of job performance, reasonable accommodation refers
  to changes in workplace policies or practices that enable a disabled
  individual to continue working).  Defendants do not dispute that the
  proposed accommodations here would enable the plaintiffs to continue
  working as dock workers and/or clerks.  They are, therefore, "reasonable
  accommodations" within the meaning of the statute.
  The panel's approach vitiates the defendants' obligation to establish
  undue hardship.  As the Barnett Court stressed repeatedly, the ADA
  "does not allow employers" - and here, unions - "to avoid reasonable
  accommodation absent a showing of undue hardship."  228 F.3d at 1113.
  Nor, consistent with Barnett, could the panel speculate that the
  proposed accommodation would result in undue hardship; "courts cannot
  assume that which is the employer's burden to prove."  See id. at 1120;
  cf. Tooley v. Martin Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981)
  ("A claim of undue hardship cannot be supported by merely conceivable
  or hypothetical hardships; instead, it must be supported by proof of
  'actual imposition on co-workers or disruptions of the work routine.'")
  (discussing Title VII).  The panel points to nothing in the statute to
  support its assumption that providing an accommodation in the face of
  a conflict with a collectively bargained seniority system results in
  undue hardship as a matter of law.
  Furthermore, use of a per se rule here, as in Barnett, "eliminate[s]
  the most effective or the only effective reasonable accommodation."  See
  228 F.3d at 1120.  Plaintiffs therefore had no choice but to leave the
  workforce, exactly what the ADA was designed to prevent.  See, e.g.,
  H.R. Rep. No. 485(II), 101st Cong. 2d Sess. 63 ("House Labor Report")
  (1990) (purpose of including reassignment as reasonable accommodation
  is to "prevent the employee from being out of work and the employer from
  losing a valuable worker"), reprinted at 1990 U.S.C.C.A.N. 267, 345.
  Notwithstanding these similarities between the issue presented here
  and the issue in Barnett, the panel decided to take an approach
  antithetical to that in Barnett solely because the seniority system
  there was "unilaterally imposed by the employer," whereas here it is
  contained in a collective bargaining agreement.  Slip op. at 343.
  The panel reasoned that the conflict here, unlike that in Barnett,
  implicates the rights of other workers under federal labor law.  Id.
  While that distinction might affect the question of whether a covered
  entity can establish undue hardship, it cannot justify adoption of a
  per se rule.
  The panel noted that other federal statutes which require reasonable
  accommodation have been construed to include a per se rule such as
  the one the panel adopted here.  See, e.g., Carter v. Tisch, 822 F.2d
  465, 467 (4th Cir. 1987) (Rehabilitation Act); Trans World Airways
  v. Hardison, 432 U.S. 63 (1977) (Title VII).  In light of those cases,
  the panel justified its per se rule in this case on the ground that
  Congress "failed to include any provision to counter that precedent in
  the plain language of the ADA."  Slip op. at 343-44.  On the contrary,
  in both the language and the legislative history of the ADA, Congress
  demonstrated that it intended a different result under this statute.
  First, the ADA expressly lists a number of possible accommodations,
  including "modification of policies" and "reassignment to a vacant
  position," in the statute's definition of the term "reasonable
  accommodation."  See 42 U.S.C.  12111(9)(B).  There is no comparable
  provision in the Rehabilitation Act, 29 U.S.C.  791-794, and, until
  recently, courts interpreted reassignment as outside the range of
  reasonable accommodations contemplated by that statute.  See Gonzagowski
  v. Widnall, 115 F.3d 744, 748 (10th Cir. 1997) (explaining prior law).
  See also 34 C.F.R.  104.12(b) & 45 C.F.R.  84.12(b) (more limited
  definition of "reasonable accommodation" under  504 of Rehabilitation
  Act does not include reassignment); but cf. 29 C.F.R.  1614.203(g)
  (adding "reassignment" as possible accommodation under  501).
  In addition, both employers and unions are "covered entities" under the
  ADA and, so, are subject to the duty to make reasonable accommodation.
  42 U.S.C.  12111(2).  The Rehabilitation Act, in contrast, imposes
  the duty to reasonably accommodate only on certain employers.<1>  See
  34 C.F.R.  104.2 & 104.11; 45 C.F.R.  84.2 & 84.11.  By covering
  both employers and unions in the ADA, Congress obviated the need for a
  unilateral contractual breach by the employer and provided the statutory
  grounds for negotiated variances from collective bargaining agreement
  rules in appropriate circumstances.  Thus, the panel's fear that the
  proposed accommodation here would "subject an employer to a Hobson's
  choice of violating the ADA or the NLRA" is exaggerated; unions share
  the duty to accommodate.
  Furthermore, whereas Title VII contains an explicit exemption for bona
  fide seniority systems, Congress omitted such an exemption from the ADA.
  Compare 42 U.S.C.  12101 et seq. (ADA) with 42 U.S.C.  2000e-2(h)
  (Title VII); see also 29 U.S.C.  623(f)(2) (parallel exemption
  for seniority systems in ADEA).  The omission of an exemption for
  seniority systems in the ADA further supports the conclusion that
  Congress intended collectively-bargained seniority rules, like other
  contractual provisions, to give way when necessary to accommodate
  disabled employees.
  Any doubt as to Congress' intent in this regard is removed by reference
  to the legislative history of the ADA.  As this Court recognized in
  Barnett, Congress specified that, while a collective bargaining agreement
  "could be relevant" in determining whether a given accommodation is
  reasonable, it "would not be determinative on the issue."  House
  Labor Report at 63, reprinted at 1990 U.S.C.C.A.N. at 345; accord
  S. Rep. No. 116, 101st Cong., 1st Sess. 32 (1989) ("Senate Report").
  Indeed, it provided examples where a conflict between a collective
  bargaining agreement and an accommodation might arise and, in each case,
  reaffirmed that the agreement was merely one factor to be considered
  in assessing undue hardship.  See, e.g., House Labor Report at 63.
  The panel also relied on ADA cases from other circuits holding
  that accommodation of a disabled employee except in accordance
  with collectively-bargained seniority rights is per se unreasonable.
  See slip op. at 342-45 (citing cases).  However, those decisions cannot
  be reconciled with this Court's en banc decision in Barnett.  With a
  single exception, the decisions do not independently analyze the ADA, but
  simply cite prior cases or reflexively apply the rule from cases under
  the Rehabilitation Act which, as noted above, are inapposite because
  of significant differences between the two statutes.  See, e.g., Davis
  v. Florida Power & Light Co., 205 F.3d 1301, 1306-07 (11th Cir. 2000)
  (citing, e.g., Feliciano); Feliciano v. Rhode Island, 160 F.3d 780, 787
  (1st Cir. 1998) (citing, e.g., Cassidy); Cassidy v. Detroit Edison Co.,
  138 F.3d 629, 634 (6th Cir. 1998) (citing Rehabilitation Act caselaw);
  Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997) (citing Foreman and
  Eckles); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809-10 (5th
  Cir. 1997) (citing, e.g., Benson); Milton v. Scrivner, Inc., 53 F.3d
  1118, 1125 (10th Cir. 1995) (citing nothing); cf. Benson v. Northwest
  Airlines, 62 F.3d 1108, 1114 (8th Cir. 1995) (citing state case).
  The only decision that contains an analysis of the ADA is Eckles
  v. Conrail, 94 F.3d 1041 (7th Cir. 1996).  While we believe that Eckles
  was wrongly decided and much of the court's analysis is inconsistent
  with Barnett, the holding in Eckles is not applicable to this case.
  The Seventh Circuit concluded that the reassignment plaintiff sought
  would not be a reasonable accommodation because, based on the agreement
  there, positions were never "vacant" since they always went to the senior
  qualified applicant.  Accordingly, reassignment was not a reasonable
  accommodation because the ADA specifies that reassignment should be
  only to a "vacant" position.  94 F.3d at 1047.  The court stressed
  that its ruling "should not be interpreted as a general finding that
  all provisions found in collective bargaining agreements are immune
  from limitation by the ADA duty to reasonably accommodate."  Id. at
  1046 n.9 & 1051-52.
  The panel here analogized to Eckles, suggesting that the plaintiffs
  here also sought positions that were not "vacant."  See slip op. at
  343-44.  The analogy is inapt.  Unlike in Eckles, plaintiffs here did
  not seek reassignment to a specific position, but rather placement on
  a list or in a unit that would make them eligible for light duty work.
  In addition, the jobs here, unlike those in Eckles, were day-jobs only,
  and even light-duty jobs were not allocated strictly on seniority; they
  were offered first to persons on the DPB list or in the clerks' union.
  Thus, Eckles does not support adoption of a per se rule in this case.
  Nor does the panel's concern that a case-by-case approach would "leave
  employers too vulnerable to the possibility of guessing wrong when trying
  to weigh the relative benefits and burdens on disabled and non-disabled
  employees."  Slip op. at 345.  Congress addressed that problem by
  including unions in the definition of "covered entity" so that the duty
  to accommodate is not solely the employer's.  In addition, Congress
  urged that "agreements negotiated after the [ADA's effective date should]
  contain a provision permitting the employer to take all actions necessary
  to comply with this legislation" so as to avoid conflicts between a
  collective bargaining agreement and the ADA accommodation duty.  See,
  e.g., House Labor Report at 63, reprinted at 1990 U.S.C.C.A.N. at 346;
  Senate Report at 32 (same).
  The panel suggested that such negotiation is optional.  See slip
  op. at 346.  On the contrary, it should be mandatory.  The ADA does
  not permit defendants to negotiate away substantive statutory rights of
  disabled employees.  See Air Line Pilots Ass'n v. Northwest Airlines,
  199 F.3d 477, 484-85 (D.C. Cir. 2000) (union may not bargain away
  individual statutory rights); Aka v. Washington Hosp. Center, 156 F.3d
  1284, 1303 n.25 (D.C. Cir. 1998) (en banc) (doubting that collective
  bargaining agreement could waive ADA right to reasonable accommodation).
  Given the importance of seniority in American labor law, defendants
  could not consider making an accommodation that infringes on other
  employees' seniority rights if another accommodation, short of undue
  hardship, would meet the disabled employee's needs.  However, the
  panel erred by assuming that where such accommodation is necessary,
  it will always result in undue hardship.  Seniority, even collectively
  bargained seniority, can govern a myriad of employment-related matters
  ranging from assignment to specific jobs to assignment to parking spaces.
  See Kralik, 130 F.3d at 86 (Mansmann, J., dissenting) (noting that all
  accommodations listed in the ADA "will almost always conflict to some
  degree with established seniority systems" in a unionized workplace).
  Arguably, defendants could more easily establish undue hardship where a
  proposed accommodation would deprive a senior employee of a long-awaited,
  permanent, full-time position than merely a more desirable parking space.
  Here, plaintiffs sought inclusion on the DPB list or transfer to the
  clerks' union.  It is unclear to what extent, if at all, these proposed
  accommodations would impact other workers' vested seniority rights.
  For precisely that reason, the ADA requires an individualized assessment
  of undue hardship, rather than a per se rule.
  We therefore urge this Court to take the case en banc and reject the per
  se rule the panel here created to address potential conflicts between a
  proposed accommodation and a collectively-bargained seniority system.
  Rather, the Court should hold that, as in any ADA accommodation case,
  defendants -- unions and employers -- must show that such accommodation
  would result in undue hardship.

 CONCLUSION

  For the foregoing reasons, the petition for rehearing should be granted.
        Respectfully submitted,

 GWENDOLYN YOUNG REAMS
 Associate General Counsel

 PHILIP B. SKLOVER
 Associate General Counsel

 VINCENT J. BLACKWOOD
 Assistant General Counsel

 BARBARA L. SLOAN
 PAUL D. RAMSHAW
 Attorneys

 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION
 1801 L Street N.W., 7th Floor
 Washington, D.C. 20507
        (202) 663-4721

 CERTIFICATE OF COMPLIANCE

  Pursuant to Federal Rule 32, I certify that the foregoing Brief as
  Amicus Curiae was prepared using Courier New (monospaced) font, 12
  point, and contains 3483 words, from the Statement of Interest through
  the Conclusion, as determined by the Corel Word Perfect 8 word counting
  program.

        ________________________
        Barbara L. Sloan

 CERTIFICATE OF SERVICE

  I certify that two copies of the Commission's Brief In Support Of
  Appellants' Petition For Rehearing En Banc were sent this 31st day of
  January, 2001, by first class mail, postage prepaid, to the following
  counsel of record:

    Kathleen A. McCormac
    SCHNEIDER & McCORMAC
    1700 California Street, Suite 340
    San Francisco, CA  94109

    D. Ward Kallstrom
    LILLICK & CHARLES
    2 Embarcadero Center
    San Francisco, CA  94111-3996

    Richard Zukerman
    LEONARD, CARDER, et al.
    1188 Franklin Street, Suite 201
    San Francisco, CA  94109

       ______________________________

       1  While the Rehabilitation Act would require a union receiving
       federal funds to provide reasonable accommodation to disabled
       participants in the funded program, the duty to accommodate
       would not apply to the union in its capacity as the bargaining
       representative of individuals employed by a covered employer.