Equal Employment Opportuntiy Commission v. Sara Lee Corporation
 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

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION AS PLAINTIFF-APPELLANT

 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

  This is a public enforcement action brought by the Equal Employment
  Opportunity Commission ("Commission") under the Americans with
  Disabilities Act, 42 U.S.C.  12101, et seq. ("ADA").  The district
  court had jurisdiction of the case under 28 U.S.C.  1331 and 1345.
  Final judgment was entered in the district court on February 25, 2000,
  disposing of all claims with respect to all parties.  Joint Appendix
  ("J.A.") at 335.  The Commission filed a timely notice of appeal on
  April 20, 2000.  J.A. at 363; see F.R.A.P. 4(a)(1).  This Court has
  jurisdiction of the district court's final judgment under 28 U.S.C. 
  1291.

 STATEMENT OF THE ISSUES

  1.  Whether the district court erred in ruling, as a matter of law,
  that the charging party's epilepsy, which resulted in substantial
  daytime and nocturnal seizure activity, was not an actual disability
  within the meaning of the ADA.
  2.  Whether the district court erred in ruling that the charging
  party's proposed accommodation of staying in her first shift position
  was unreasonable as a matter of law because it conflicted with the
  defendant's seniority policy, where that policy was self-imposed and
  subject to modification or adjustment at the defendant's discretion.
  3.  Whether the district court erred in ruling that the defendant
  satisfied its duty of reasonable accommodation by providing the charging
  party with only those options made available under a rote application
  of the defendant's self-imposed seniority policy, options that did
  not take into account the precise limitations imposed by the charging
  party's disability.

 STATEMENT OF THE CASE

  1.  Nature of the Case
  This case involves a claim of disability discrimination under the ADA
  brought against Sara Lee Corporation ("Sara Lee").  The Commission is
  suing at the behest of a charging party, Vanessa Turpin, who worked for
  Sara Lee until May 1997, when she was denied an accommodation that would
  have allowed her to continue working in her position.  The district
  court granted summary judgment in favor of Sara Lee, holding that the
  Commission's evidence was insufficient to support a finding that Turpin
  had a covered disability within the meaning of the ADA.  The court
  also held, as a matter of law, that Sara Lee did not default on its
  obligation to provide a reasonable accommodation to Turpin.
  2.  Course of Proceedings
  The Commission initiated this action in February 1999.  J.A. at 4.
  Sara Lee moved for summary judgment in December 1999.  Id. at 18.
  By order dated February 23, 2000, the district court granted summary
  judgment in favor of Sara Lee.  Id. at 336.  The district court entered
  judgment on February 25, 2000.  Id. at 335.   3.  Statement of Facts
  a.  Vanessa Turpin began working for Sara Lee in September 1989, at
  its Salem, Virginia, factory.  J.A. at 339-40.  In 1992, three years
  into her employment with Sara Lee, Turpin began experiencing seizures
  in her sleep.  Id. at 336.  During one of her initial episodes, Turpin
  woke up on the floor with paramedics "standing over the top of [her]."
  Id. at 58-59.  Turpin consulted a neurologist, who prescribed Dilantin,
  an anti-seizure medication.  Id. at 336.  Despite the medication, Turpin
  continued to experience nocturnal seizures.  Id. at 336-37.
  Turpin's seizures grew worse over time.  By 1997,<1> Turpin was
  experiencing nocturnal seizures on a regular basis.  Id. at 337.
  These seizures were characterized by shaking, kicking, salivating,
  and bedwetting.  Id.  Turpin would sometimes bite her tongue during
  the nighttime seizures, causing eating and drinking problems the
  next day.  Id.  Turpin was typically unaware of the fact that she was
  experiencing a nocturnal seizure, but the seizures were witnessed by
  her husband.  Id.  Turpin, moreover, felt the effects of the seizures.
  After having nocturnal seizures, Turpin would feel tired in the morning,
  as if she had never slept at all.  Id.  Turpin would sometimes awaken,
  after a nocturnal seizure, to find her bed covers tossed onto the floor
  and her arm or leg bruised.  Id.
  Turpin also began experiencing daytime seizures.  Turpin experienced
  numerous daytime seizures in 1997,<2> including 4 or 5 episodes while
  at work.  Id. at 337.  Turpin was able to sense that a daytime seizure
  was about to happen.  Id. at 338.  Turpin would go off to sit elsewhere
  until the seizure would pass.  Id.  During a seizure, Turpin would begin
  shaking; Turpin's face would take on a blank expression, and she would
  become completely unaware of, and unresponsive to, her surroundings.  Id.
  The seizures typically lasted for a few minutes.  Id.  After the seizure,
  Turpin was able to return to the activity she was performing prior to
  the seizure.  Id.
  Turpin's seizures also had a residual impact on her ability to
  concentrate and think.  Turpin, for example, experienced regular memory
  loss and confusion as a result of the seizure activity.  Id. at 339.
  Turpin's memory loss made it difficult for Turpin to remember to take
  her medication more than once a day.  Id.  Turpin's memory loss also
  affected Turpin's ability to perform daily tasks.  Id. at 272, 274, 277.
  Turpin forgot to do simple chores; Turpin would begin driving and then
  forget where she was going and why she was going there.  Id.  On one
  occasion, Turpin got in the car and "started blowing her horn."  Id. at
  269-70.  When asked about the incident, she could not "remember doing
  it."  Id. at 270.  On another occasion, Turpin, on a routine visit to
  see her doctor, forgot how to get to her doctor's office.  Id. at 339.
      Turpin's seizures placed additional burdens on her husband, Benjamin
      Gethers.  Gethers assisted Turpin when she had break downs in her
      memory.  Id. at 272-74, 277-79.  Gethers stepped into drive when
      Turpin sensed that she was going to have a seizure.  Id. at 265.
      Gethers helped Turpin through her nocturnal seizures, waking her up
      while the seizures were on-going, walking her to the bathroom, and
      changing the bed (which was often wet with saliva or urine) so that
      Turpin could go back to sleep.  Id. at 261-64.  Gethers took steps to
      ensure that Turpin was not placed in "any kind of situation" likely
      to increase the risk of a daytime seizure.  Id. at 272-73.
  Turpin was eventually diagnosed with complex partial seizure disorder
  (epilepsy).  Id. at 338.  Turpin's neurologist, Dr. Healy, believes
  that Turpin's seizures will be a "life-long phenomena." Id. at 339.
  Turpin has on-going seizure activity even though she is taking medication
  to counter the effects of the impairment.
  b.  In 1996, Sara Lee closed its Salem, Virginia facility.  Id. at 340.
  The company provided employees of that facility with the option of
  transferring to Sara Lee's Florence, South Carolina facility.  Id.
  Turpin accepted the transfer, working the first shift -- the day shift --
  as an Auto Packaging Machine Operator.  Id.
  In the spring of 1997, Sara Lee decided to close its Hartsville, South
  Carolina plant.  Id.  Sara Lee offered the Hartsville employees the
  option of transferring to other facilities.  Id.  Invoking its internal
  seniority policy, Sara Lee permitted these employees to displace less
  senior employees at these other facilities.  Id.  Most of the more
  senior Hartsville employees elected to transfer to the Florence plant.
  Id. at 341.  A Hartsville employee, with more seniority than Turpin,
  was slotted to assume Turpin's first shift position.  Id.  This meant
  that Turpin would have to transfer to a second or third shift position,
  requiring her to work a night shift of some kind.  Id.
  Upon learning that she was to be removed from her first shift position,
  Turpin contacted her Human Resources manager, Vera Wilson, requesting
  that she be allowed to remain on the first shift.  Id.  Turpin presented
  Wilson with a letter from Turpin's internist, Dr. Ducker.  Id.
  In that letter, dated April 9, 1997, Dr. Ducker stated that, after
  consulting with Turpin's neurologist, Dr. Healy, it was Dr. Ducker's
  opinion that Sara Lee should permit Turpin to remain on the first shift
  because "it is a well known fact that recurrent seizure activity can
  be precipitated by disturbance of sleep pattern."  Id.  Wilson showed
  the letter to Robert Wofford, another Human Resources manager, who,
  in turn, contacted Sara Lee's Corporate Medical Director, Dr. Egnatz.
  Id. at 341-42.  Dr. Egnatz offered the opinion that the change in shift
  would not exacerbate Turpin's seizure disorder so long as Turpin worked
  a non-rotating shift, whether that be the first shift, the second shift,
  or the third shift.  Id. at 342.  Dr. Egnatz was not a neurologist.
  Id. at 312.  Dr. Egnatz never examined Turpin, nor was he given any of
  her "documents or medical records."  Id. at 127, 315-16.  At no point did
  Wilson, Wofford, or Dr. Egnatz speak with either Dr. Ducker or Dr. Healy.
  Id. at 341-42
  Sara Lee decided not to provide Turpin with an accommodation.  Instead,
  Sara Lee chose to "stick with the seniority policy," id. at 135,
  limiting Turpin to the same three options given to any individual being
  bumped from the first shift by virtue of the seniority policy: (1) move
  to second or third shift; (2) go on layoff status with recall rights
  for twelve months (including the right to be recalled to a first shift
  position should one become available); or (3) take a severance package.
  Id. at 342.  Turpin elected to take the severance package.  Id.
  The record shows that the seniority policy invoked by Sara Lee is not
  part of a collective bargaining agreement.  Id. at 340.  The policy,
  instead, is self-imposed.  Id.  Under its policy, Sara Lee  "reserves
  the right to make modification changes to the provisions of [the]
  policy and the inclusive policies involved."  Id. at 42.  The policy
  has built-in flexibility, permitting the company to grant exceptions
  to its seniority rules on a case-by-case basis.  Id. at 50 (authorizing
  the Company-wide Seniority Review Board to deviate from seniority levels
  with respect to laid off employees  seeking an "Interplant Transfer").
  Because the policy "was drafted years before the downturn in the hosiery
  business," it does not "directly address plant closings."  Id. at 38.
  Although the company retains the discretion to apply the policy to plant
  closings, it has not always done so.  When Sara Lee closed its Salem,
  Virginia plant and moved its operations to Florence, South Carolina, it
  waived the seniority policy to encourage Salem employees to transfer to
  Florence, believing this to be in the "best interest" of the company.
  Id. at 320-21.  In this case, Sara Lee chose to apply its seniority
  policy without adjustment or modification.
  c.   The district court granted Sara Lee's motion for summary judgment
  in an order dated February 23, 2000.  The court first ruled that, "as
  a matter of law, Turpin did not suffer from a 'disability' pursuant
  to the ADA's definition during the time period surrounding May 31,
  1997."  Id. at 354.  The court acknowledged that epilepsy constitutes
  an impairment under the ADA.  Id. at 346.  The court also recognized
  that the various life activities identified by the Commission, e.g.,
  sleeping, thinking, and caring for oneself, were "major life activities"
  within the meaning of the ADA.  Id. at 347-48.  The court held, however,
  that Turpin's impairment was not substantially limiting.
  Focusing first on the major life activity of sleeping, the court reduced
  the Commission's proof to evidence that Turpin "experienced fitful
  nights of sleep twice a week, a condition which affects many adults."
  Id. at 350.  The court concluded that, "[o]n the basis of this evidence,
  the EEOC has failed to show that Turpin's sleeping affliction is any
  worse than that which a large segment of the nation's adult population
  suffers from."  Id.  The court next turned to the major life activity
  of thinking, including Turpin's abilities to concentrate and remember.
  Again, the court reduced the Commission's proof to evidence of "a few
  incidents of forgetfulness a week," concluding that "forgetting things
  twice or thrice on a weekly basis is not a substantial limitation on
  one's ability to think, concentrate, or remember things."  Id. at
  352.  Based largely on its finding that "Turpin's epilepsy did not
  substantially limit her ability to sleep and think," the court also
  concluded "that the EEOC failed to produce sufficient evidence from
  which a reasonable jury could find that Turpin's seizures substantially
  limited her ability to care for herself."  Id. at 353.
  Finally, the court addressed "the EEOC's contention that Turpin
  experienced an 'altered consciousness' during her daytime seizures,
  which would interrupt all major life activities, including seeing,
  hearing, walking, communicating, thinking, concentrating, and caring
  for herself."  Id.  On this point, the court stressed that "Turpin's
  seizures were not major motor or grand mal seizures," that "the daytime
  seizures would last only a few minutes at most," and that "once the
  seizure would end, Turpin found herself able to resume whatever activity
  she had been performing before the seizure occurred."  Id. at 353-54.
  In the court's view, "although it is clear that Turpin's seizures
  momentarily limited her ability to engage in any activity for the few
  minutes that her seizure episodes endured," Turpin's "partial seizure
  episodes were simply too temporary to constitute a substantial limitation
  on any major life activity."  Id. at 354.
  Having disposed of the disability issue, the court, "for the sake of
  completing the analysis," also addressed the Commission's argument that
  it would have been a reasonable accommodation for Sara Lee to "modify its
  seniority policy of permitting disabled employees from closed-down plants
  to bump employees with less seniority at another facility," thereby
  allowing Turpin to remain on first shift.  Id. at 354-55.  The court
  ruled, as a matter of law, that "the ADA's reasonable accommodation
  provision [does not require] an employer to exempt an employee from
  its seniority policy to the detriment of another employee."  Id. at
  355-56.  The court rejected the Commission's attempt to distinguish
  this case -- involving a self-imposed seniority policy -- "from the
  many ADA cases holding that reasonable accommodation does not require
  modifying a collectively-bargained-for seniority policy."  Id. at  357.
  The court concluded that "[b]ecause the accommodation sought by Turpin
  would have required Sara Lee to give preference to Turpin and her
  disability over another employee and her seniority rights by placing
  the less-senior Turpin on 'equal' footing with a more-senior employee,
  such requested accommodation was not reasonable, as 'it would convert
  a nondiscrimination statute into a mandatory preference statute.'"
  Id. at 358.
  Alternatively, the court ruled that Sara Lee had satisfied its duty
  of reasonable accommodation by offering Turpin the options of either
  working a non-rotating second or third shift or accepting a lay off or
  severance package.  Id. at 361-62.  Stressing that "the ADA does not
  require Sara Lee to offer Turpin an ideal accommodation, but only a
  reasonable accommodation," the court found that "Sara Lee engaged in
  a good-faith effort to accommodate Turpin, and indeed offered her a
  reasonable accommodation, which she declined."  Id.  The court opined
  that, despite the contrary advice of her physician, Turpin should have
  "attempted to adjust her body to a new (and regular) sleeping pattern
  under the second or third shift."  Id. at 362.

 SUMMARY OF ARGUMENT

  The district court erred in ruling, as a matter of law, that  the
  Commission's evidence was insufficient to support a finding that Turpin
  had a covered disability within the meaning of the ADA. In enacting
  the ADA, Congress assumed that most individuals with epilepsy would
  meet the ADA's definition of disability.  Specifically, Congress
  assumed that epilepsy was the type of impairment that would impose a
  substantial limitation on one or more major life activities, at least
  in those cases where the effects of the impairment were not controlled
  (or significantly curtailed) by medication.  In this case, the evidence
  shows that Turpin experienced substantial daytime and nocturnal seizure
  activity, notwithstanding medication that she took to mitigate the
  effects of her condition.  Turpin is incapacitated during her daytime
  seizures, which can last as long as two minutes.  Both the nocturnal and
  daytime seizures have significant residual effects, limiting Turpin's
  ability to care for herself, sleep, and think.  It cannot be said, as
  a matter of law, that Turpin's condition does not substantially limit
  one or more major life activities.
  The district court also erred in ruling that Turpin's proposed
  accommodation -- being permitted to stay in her first shift position
  -- was unreasonable as a matter of law.  A number of circuit courts
  have held that reasonable accommodation does not require modifying a
  collectively-bargained-for seniority policy.  In this case, however,
  the seniority policy is not part of a collective bargaining agreement.
  It is a self-imposed policy that, by its terms, is subject to adjustment
  or exception at Sara Lee's discretion.  This is not a case, moreover,
  where an employee was seeking reassignment to an entirely new position
  that was otherwise guaranteed to a more senior employee.  Instead, Turpin
  was asking for a relatively minor adjustment in her work schedule, one
  that would permit her to continue working in a shift that accommodated
  her disability.  Under these circumstances, it was error to hold, as
  a matter of law, that Turpin's proposed accommodation was unreasonable.
  Nor was it proper to dismiss the claim of reasonable accommodation on
  the ground that Sara Lee's offer of one of three options -- a second
  or third shift position, lay off, or seniority package -- constituted
  a reasonable accommodation in its own right.  By definition, an
  accommodation is a change in the work environment or in the way things
  are customarily done, designed to overcome the precise limitations
  imposed by a disability.  The three options offered by Sara Lee were
  not accommodations within the meaning of the ADA.  They were the same
  options extended to any individual being bumped from the first shift by
  virtue of the seniority policy.  In this case, Sara Lee did not "change"
  anything; it steadfastly adhered to its self-imposed seniority policy,
  ignoring the medical opinion of Turpin's physician that moving Turpin
  to a second or third shift position would exacerbate Turpin's seizures.

 ARGUMENT

 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN SARA LEE'S
 FAVOR.

  A.  Standard Of Review

  This Court reviews a district court's grant of summary judgment de
  novo, viewing all facts and inferences in the light most favorable to
  the non-moving party.  Providence Square Assocs., L.L.C. v. G.D.F.,
  Inc., 2000 WL 530307, *3 (May 3, 2000).  Summary judgment is proper
  only when there is no genuine issue of material fact, and the moving
  party is entitled to judgment as a matter of law.  Id.
  B.  The Commission's Evidence Is Sufficient To Support A   Finding That
  Turpin Has A Disability Within The Meaning   Of The ADA

  The threshold issue raised by this appeal is whether the Commission
  presented sufficient evidence to support a finding of disability.
  We believe that there are discrete evidentiary theories -- outlined
  below -- that support a finding of actual disability in this case.<3>
  More generally, we believe that the district court's analysis is
  inconsistent with congressional intent concerning the scope of coverage
  under the ADA.
  In enacting the ADA, Congress sought "to provide a clear and
  comprehensive national mandate for the elimination of discrimination
  against individuals with disabilities."  42 U.S.C.  12101(b)(1).
  Congress specifically found that some 43 million Americans -- nearly
  1/5th of the population (at that time) -- were disabled and in need
  of protection against "various forms of discrimination."  42 U.S.C. 
  12101(a)(1)-(5).  "Because it is included in the ADA's text, the finding
  that 43 million individuals are disabled gives content to the ADA's
  terms, specifically the term 'disability.'"  Sutton v. United Air Lines,
  Inc., 119 S. Ct. 2139, 2149 (1999).
  There are strong indications that Congress viewed individuals with
  epilepsy as included among the 43 million Americans with a covered
  disability.  Congress derived the figure of 43 million, in large part,
  from contemporaneous reports on disability status.  See id. at 2147-48
  (citing, e.g., National Center for Health Statistics, U.S. Dept. of
  Health and Human Services, Vital and Health Statistics, Current
  Estimates from the National Health Interview Survey, 1989, Series 10
  (1990); National Council on Disability, Toward Independence (1986);
  National Institute on Disability and Rehabilitation Research, Data on
  Disability from the National Health Interview Survey 1983-1985 (1988)).
  Several of these reports identified epilepsy as a disabling condition
  likely to result in limitations on daily activities.  E.g. Current
  Estimates at 82-105; Toward Independence at 12; Data on Disability at
  32-140.  The ADA's legislative history is replete with references to
  epilepsy, reflecting an assumption on Congress' part that epilepsy --
  a permanent condition that produces intermittent conscious-altering
  seizures -- would typically meet the standard for a substantially
  limiting impairment.  S. Rep. No. 101-116, 101st Cong., 1st Sess. 22,
  31, 39, 62 (1989) (referencing epilepsy in discussing the protections
  of the ADA, including the requirement of reasonable accommodation);
  H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 51, 62, 72, 79-80
  105 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 333, 345, 355, 362,
  388 (same); H.R. Rep. No. 101-485(III), 101st Cong. 2d Sess. 28,
  33, 42, 50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 451, 456,
  465, 473 (same).  The key committee reports make that assumption
  explicit.  See H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 52,
  reprinted in 1990 U.S.C.C.A.N. at 334 ("impairments . . . such
  as epilepsy . . . substantially limit a major life activity");
  H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 28, reprinted in 1990
  U.S.C.C.A.N. at 451 ("epilepsy [is] an impairment which substantially
  limits a major life activity").<4>  Plainly, Congress intended the ADA
  to protect individuals who endure epilepsy-induced seizures but who,
  nonetheless, are willing and able to perform work.
  This is not to say, of course, that epilepsy is some kind of per se
  disability.  There are no per se disabilities under the ADA.  In enacting
  the ADA, Congress did not adopt a laundry list of covered impairments.
  Congress, instead, adopted a functional test for disability, geared
  to the impact of an impairment on one or more major life activities.
  See 42 U.S.C.  12102(2)(A) (defining disability as a "physical or
  mental impairment that substantially limits one or more . . . major
  life activities").  Nonetheless, while the ADA does not contain an
  itemized list of covered disabilities, Congress understood that some
  impairments would be sufficiently severe to produce a substantially
  limiting effect on a major life activity in most (if not all) cases.
  Epilepsy, where its effects are not controlled (or significantly
  curtailed) by medication, is the type of impairment that yields a
  finding of a covered disability under the ADA's functional standard.
  This, in any event, was Congress' understanding in enacting the ADA.
  The district court's ruling flies in the face of congressional
  intent.  The district court held that the Commission's evidence
  was insufficient even to support a finding of a covered disability.
  The court reached this conclusion despite the evidence that Turpin
  has a permanent epileptic condition that, even with the mitigating
  effect of medication, results in substantial daytime and nocturnal
  seizure activity.  Turpin's seizures render her completely unaware of,
  and unresponsive to, her surroundings and produce significant residual
  effects on her daily living, affecting, among other things, her ability
  to think, concentrate, and remember.  Turpin is precisely the type of
  individual for whom Congress intended coverage under the ADA.
  The district court stressed that Turpin's seizures would last "only
  a few minutes at most," and that Turpin was able, once the seizure
  ended, to "resume whatever activity she had been performing before
  the seizure occurred." J.A. at 353-54.  These facts, however, merely
  explain why Turpin was able to work and function in her daily life,
  despite the substantial limitations imposed by her condition.  One can
  envision a more severe case of major motor or grand mal seizures,
  where an individual has regular seizures that are incapacitating for
  significant periods of time.  Yet, in many such cases, the individual
  will be unable to perform the essential functions of a job, due to
  the disability, thus placing the individual outside the protections of
  the ADA.  Reduced to its core, the district court's decision imposes a
  classic Catch-22: an individual with epilepsy who is qualified to work
  falls outside the protection of the statute because the individual's
  impairment is not sufficiently severe to constitute a disability; an
  individual with epilepsy whose impairment is sufficiently severe to
  constitute a disability falls outside the protection of the statute
  because the individual's disability renders her unqualified to work.
  Congress assumed that many individuals with disabilities, with the help
  of the law, could "participate in, and contribute to, society."  42
  U.S.C.  12101(a)(7).  Congress did not intend to create a self-defeating
  category of coverage, where only those whose impairments are so severe
  that they are unable to work meet the threshold for a covered disability.
  See Albertson's, Inc. v. Kirkingburg, 119 S. Ct. 2162, 2168 (1999)
  (stressing that substantial limitations should not be equated with
  "utter inabilities").
  The Supreme Court's decision in Sutton v. United Air Lines, Inc. is
  not to the contrary.  In Sutton, the Supreme Court held that a fully
  correctable vision impairment did not constitute a covered disability
  under the ADA.  The key fact in Sutton was that the plaintiffs could
  fully ameliorate their vision impairment by simply slipping on a pair of
  eye glasses.  119 S. Ct. at 2149.  Epilepsy is not so easily mitigated,
  a point that the Supreme Court took care to note in its Sutton decision.
  Distinguishing epilepsy from the easily correctable vision impairment at
  issue in Sutton, the Court clarified that individuals with epilepsy may
  be covered under the ADA, even if antiepileptic drugs fully ameliorate
  the effects of the impairment, if those drugs have "negative side
  effects" that are substantially limiting in their own right.  Id. at
  2147.  The Court further explained that individuals who "take medicine
  for epilepsy" may still have an actual disability under the ADA if they
  "take medicine to lessen the symptoms of an impairment so that they
  can function but nevertheless remain substantially limited."  Id. at
  2149.  Under Sutton, it is entirely possible for an individual taking
  antiepileptic drugs to be substantially limited in one or more major
  life activities due either to the negative effects of the medication
  or the failure of the medication to fully ameliorate the effects of
  the condition.
  Notably, in Sutton, the Supreme Court drew substantial support
  from the fact that the ADA cited a figure of 43 million Americans
  with disabilities.  See id. at 2147-49.  The Court reasoned that,
  in light of this figure, it made no sense to cover individuals
  with correctable vision impairments, a class comprised of some 100
  million Americans.  Id.  The statistics on epilepsy reveal an entirely
  different picture.  According to a recent study commissioned by the
  Epilepsy Foundation, approximately 2.3 million Americans of all ages
  have epilepsy.  See Epilepsy Foundation: EpilepsyUSA Online News
  Magazine, http://www.efa.org/news/epilepsyUSA/coststudy.html (citing
  Charles E. Begley, et al., The Cost of Epilepsy in the United States:
  An Estimate from Population-Based Clinical and Survey Data, EPILEPSIA,
  Vol. 41, No. 2000).   Of those 2.3 million, just over 1 million (44
  percent) continue to have seizures despite treatment.  Id.  Of those
  1 million, approximately 725,000 are adults under the age of 65.  Id.
  Covering individuals with epilepsy, particularly those with on-going
  seizure activity, would not "break the bank" on coverage.  To the
  contrary, it would be well within Congress' estimate of 43 million
  disabled, a figure that, while not without limits, belies any argument
  that the protections of the ADA extend only to some narrow segment of
  the population.
  Based on the foregoing understanding of congressional intent, the burden
  of showing a covered disability in cases of this nature should not be
  an onerous one.  Cf. Kirkingburg, 119 S. Ct. at  2169 (rejecting the
  argument that monocular vision is a "per se" disability but opining
  that, in light of the "medical literature," individuals with monocular
  vision "'ordinarily' will meet the Act's definition of disability").
  In this case, the evidence strongly supports a finding of disability
  status under one of several evidentiary theories.
  First, the existence of an actual disability can be established
  under an "intermittent manifestation" theory.  The ADA does not
  cover temporary or short-term conditions that have a minor impact
  on an individual's life.  The statute does, however, cover chronic
  conditions that manifest themselves on an intermittent basis, leading
  to brief periods or episodes of debilitation.  See Van Zande v. State
  of Wisconsin Dep't of Admin., 44 F.3d 538, 544 (7th Cir. 1995)
  (stating that "[o]ften the disabling aspect of a disability is,
  precisely, [the] intermittent manifestation of the disability,
  rather than the underlying impairment"); 2 EEOC Compliance Manual,
  Interpretations (CCH)  902.4,  6884 at p. 5320 (1995) (stressing
  that "some chronic conditions may constitute substantially limiting
  impairments" even if they are asymptomatic for substantial periods of
  time).  This case fits squarely into the intermittent manifestation box.
  Turpin's epileptic seizures are a "life-long phenomena."  J.A. at 339.
  Turpin experiences both nocturnal and daytime seizures on a regular,
  ongoing basis.  During those seizures, Turpin is "completely unaware
  of, and unresponsive to, her surroundings," id. at 338, leading to
  substantial limitations -- while the seizure persists -- on a plethora
  of major life activities, e.g., walking, hearing, lifting, speaking,
  performing manual tasks.  Because Turpin's permanent epilepsy, with its
  intermittent manifestations, has "a high likelihood of recurrence in
  substantially limiting forms," 2 EEOC Compliance Manual Interpretations
  (CCH)  902.4,  6884, at p. 5320, Turpin's condition satisfies the
  statutory threshold for an actual disability.
  The district court found that "Turpin's complex partial seizure episodes
  were simply too temporary to constitute a substantial limitation on any
  major life activity."  J.A. at 354.  This misses the point.  Turpin's
  seizures "would last only a few minutes."  Id. at 353.  The seizures,
  however, were not sporadic.  They occurred with some frequency, both at
  night and during the day, and were incapacitating for the duration of the
  seizure.  An impairment is substantially limiting when an individual is
  "significantly restricted as to the condition, manner or duration under
  which [the] individual can perform a particular major life activity" as
  compared to "the average person in the general population."  29 C.F.R. 
  1630.2(j)(1)(ii).  The average person in the general population does
  not experience recurring episodes -- of up to two minutes in length --
  during which the person is in an incapacitated state, unable to perform
  a host of major life activities.  An individual with epilepsy who is
  prone to seizures that are temporarily debilitating has "a condition
  [that] obviously limits [him] in significant ways."  EEOC v. Kinney Shoe
  Corp., 917 F. Supp. 419, 425 (W.D. Va. 1996), aff'd on other grounds,
  104 F.3d 683 (4th Cir. 1997); see Reynolds v. Brock, 815 F.2d 571,
  573-74 (9th Cir. 1987) (citing the "inescapable conclusion" that an
  individual with epilepsy has a substantially limiting impairment if the
  individual is not seizure-free); Rowles v. Automated Prod. Sys., Inc.,
  92 F. Supp. 2d 424, 429 (M.D. Pa. 2000) (reasonable juror could conclude
  that plaintiff was disabled where, despite the use of medication,
  plaintiff was still at risk of occasional, substantially limiting
  seizures); Eckles v. Consolidated Rail Corp., 890 F. Supp. 1391, 1399 &
  n.4 (S.D. Ind. 1995) (fact issue exists as to whether plaintiff who is
  experiencing seizures while medicated is substantially limited in major
  life activities; noting assumption in legislative history that "the
  employee with epilepsy will be found disabled"), aff'd on other grounds,
  94 F.3d 1041 (7th Cir. 1996); Sunkett v. Olsten Temporary Servs., 1995
  WL 507044, *4 n.5 (N.D. Cal. 1995) (individual with epileptic condition
  that triggers occasional seizures "clearly" has a physical impairment
  that substantially limits major life activities), rev'd on other grounds,
  1997 WL 349049 (9th Cir. 1997); Vazquez v. Bedsole, 888 F. Supp. 727, 731
  (E.D.N.C. 1995) (plaintiff with epilepsy who has seizures on semi-regular
  basis is "disabled" for purposes of summary judgment).
  Alternatively, disability can be established under the theory that
  the cumulative weight of Turpin's impairment substantially limited her
  ability to care for herself.  See 29 C.F.R.  1630.2(i) (listing "caring
  for oneself" as a major life activity).  Turpin's epileptic seizures
  cannot be assessed in a vacuum.  When she had nocturnal seizures,
  Turpin would bite her tongue, "causing eating and drinking problems
  the next day."  J.A. at 337.  "These nocturnal seizures would leave
  Turpin feeling tired in the morning, as if she had not caught a wink of
  sleep."  Id.  Turpin's daytime seizures left her feeling "'spaced out'
  for a short period of time, as she would feel dizzy, weak, nervous, and
  upset, and would need to go off by herself to recover."  Id. at 353.
  Turpin, moreover, had a residual loss in her capacity to think and
  concentrate, leading to repeated incidents of memory loss.  "Chronic,
  episodic conditions can easily limit how well a person performs an
  activity as compared to the rest of the population: repeated flare-ups
  of poor health can have a cumulative weight that wears down a person's
  resolve and continually breaks apart longer-term projects."  Taylor
  v. Phoenixville Sch. Dist., 184 F.3d 296, 309 (3d Cir. 1999).
  The cumulative impact of epilepsy, on an individual such as Turpin,
  is profound.  Seizures are, by their very nature, unpredictable.
  Individuals who experience seizures on an on-going basis live in
  constant fear of another seizure.  See Epilepsy Foundation, Epilepsy:
  A Report to the Nation 11 (1999) (reporting that 50 percent of people
  with epilepsy cite the fear of another seizure as the single worst
  thing about living with epilepsy).  Many individuals with epilepsy
  make alterations in their daily behavior and schedule to minimize the
  risk of seizure.  Many rely upon the assistance of others to combat the
  residual effects of seizure activity.  In this case, 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.  J.A. at 272-73.
  Turpin, moreover, was assisted by her husband in carrying out daily
  activities on those occasions when Turpin had daytime seizures or break
  downs in memory resulting from the seizure activity.  Turpin's husband
  also helped Turpin manage her sometimes harrowing nocturnal seizures.
  Turpin, although not incapable of caring for herself, was substantially
  burdened in her ability to do so, thus triggering the protections
  of the ADA.  See Rowles, 92 F. Supp. 2d at 429 (epilepsy was a
  substantially limiting impairment where the plaintiff was required
  to make significant alterations in his daily living to mitigate the
  effects of the condition); cf. Sutton, 119 S. Ct. at 2149 (finding that
  the plaintiffs' vision impairment was not substantially limiting where
  the plaintiffs could fully ameliorate the effects of the impairment by
  simply putting on a pair of eyeglasses).
  Finally, the evidence supports a finding that Turpin was substantially
  limited in the specific major life activities of sleeping and
  thinking.<5>  There is no dispute that Turpin experienced nocturnal
  seizures on a regular and ongoing basis.  Although the district court
  reduced the effects of Turpin's seizures to "fitful nights of sleep
  twice a week," J.A. at 350, this trivializes Turpin's condition.
  Turpin's nocturnal seizures "were characterized by shaking, kicking,
  salivating, and bed wetting."  Id. at 337.  Turpin would bite her tongue
  during nocturnal seizures and would awaken "to find her bed covers tossed
  onto the floor and her arm or leg bruised."  Id.  On one occasion, Turpin
  woke up on the floor in the middle of the night with paramedics hovering
  over her.  An impairment is substantially limiting when an individual is
  significantly restricted as to the "manner" or "condition" under which
  the individual performs a major life activity, as compared to the average
  person in the general population.  29 C.F.R.  1630.2(j)(1).  The average
  person in the general population, even one who experiences "fitful nights
  of sleep," does not inflict physical injury on herself, nor shake, kick,
  salivate, and bed wet while sleeping.<6>  A reasonable jury could find
  that Turpin's impairment had a substantial impact on Turpin's ability
  to sleep.  See generally Franklin v. Consolidated Edison Co. of New
  York, Inc., 1999 WL 796170, **11-12 (S.D.N.Y. Sept. 30, 1999) (evidence
  that medication taken to combat the effects of epilepsy produced "mild
  sedation and insomnia" sufficient to support a finding that plaintiff
  was substantially limited in the major life activity of sleeping).
  Turpin's impairment also imposed a substantial limitation on her ability
  to think.  Again, there is no dispute that Turpin's seizures resulted in
  some memory loss.  The district court's reference to Turpin "forgetting
  things twice or thrice on a weekly basis" understates the quality of
  the Commission's evidence.  It is perhaps true that many "adults in the
  general population suffer from a few incidents of forgetfulness a week."
  J.A. at 352.  But does the average adult routinely forget how many doses
  of medication they have taken during a day?  Does the average adult have
  to rely upon another adult to help her remember daily tasks?  Does the
  average adult start blowing the horn in her car and, when asked about
  the incident a short time later, forget what she had done?  Does the
  average adult get lost on a routine visit to her doctor, completely
  forgetting the location of the doctor's office?  This evidence supports
  a finding of a substantially limiting impairment.
  C.  Turpin's Proposed Accommodation Was Not Unreasonable As A      Matter
  Of Law

  The second issue raised by this appeal concerns Sara Lee's obligation
  to provide a reasonable accommodation for Turpin's epilepsy (assuming
  the condition constitutes a covered disability).  On this point, the
  district court ruled that Turpin's proposed accommodation -- being
  permitted to stay in her first shift position -- was unreasonable as a
  matter of law, since it conflicted with Sara Lee's seniority policy.
  There are "many ADA cases holding that reasonable accommodation does
  not require modifying a collectively-bargained-for seniority policy."
  J.A. at  357.  This case, however, does not involve a collective
  bargaining agreement.  It involves a self-imposed seniority policy
  that, by its terms, is subject to adjustment or exception at Sara Lee's
  discretion.  In this case, moreover, Turpin was not seeking reassignment
  to an entirely new position that was otherwise guaranteed to a more
  senior employee.  Turpin was asking for a relatively minor adjustment
  in her work schedule, one that would permit her to continue working in
  a shift that accommodated her disability.  See 42 U.S.C.  12111(9)(B)
  (defining reasonable accommodation to include "part-time or modified work
  schedules").  Courts have dismissed claims of reasonable accommodation,
  as a matter of law, when the proposed accommodation would require an
  employer to reassign a disabled employee to a position that is slotted
  for a more senior employee under the terms of a collective bargaining
  agreement.  See, e.g., Eckles v. Consolidated Rail Corp., 94 F.3d 1041
  (7th Cir. 1996).  Where, as here, the proposed accommodation merely
  implicates the employer's own seniority policies, the accommodation is
  not per se unreasonable.  See Smith v. Midland Brake, Inc., 180 F.3d
  1154, 1175-76 (10th Cir. 1999) (en banc) (distinguishing between cases
  involving reassignment to a position for which another employee has
  a "vested priority right" under the terms of a collective bargaining
  agreement, where the accommodation is per se unreasonable, and cases
  involving an accommodation that merely implicates the employer's own
  seniority system, where the accommodation may be legally required).<7>
  The district court opined that "the accommodation sought by Turpin
  would have required Sara Lee to give preference to Turpin and her
  disability over another employee," and "it is clear that the ADA
  requires nothing more than that employers treat disabled and non-disabled
  employees equally with respect to personnel decisions."  J.A. at 358.
  This too narrowly defines the scope of protection under the ADA.
  The central purpose of the ADA is to enhance the employability of
  disabled individuals by requiring employers to make "modifications
  to existing facilities and practices."  42 U.S.C.  12101(a)(5).
  To carry out that purpose, the ADA defines "not making reasonable
  accommodations" as a form of unlawful discrimination under the ADA.
  42 U.S.C.  12112(b)(5)(A) (emphasis added).  The ADA requires an
  employer to assist a disabled individual by making modifications or
  adjustments "to a job application process," "the work environment," or
  "the manner or circumstances under which the position held or desired
  is customarily performed."  29 C.F.R.   1630.2(o)(1).  The result of
  these modifications and adjustments, in many cases, is that a disabled
  individual is able to obtain an employment opportunity  that might have
  otherwise gone to a non-disabled individual (because, for example,
  the disabled individual is able to perform the essential functions
  of a job with special assistive devices provided by an employer).
  The ADA does not simply require that employers treat "disabled and
  non-disabled employees equally."  The statute imposes a duty of
  reasonable accommodation on employers in recognition of the unique
  barriers to employment confronting the disabled.  See Garcia-Ayala
  v. Lederle Parenterals, Inc., 2000 WL 622816, *6 n.9 (1st Cir. May 18,
  2000) (employer's argument "that there was no intent to discriminate
  based on disability misses the important point that the ADA does more
  than prohibit disparate treatment;" "[i]t also imposes an affirmative
  obligation to provide reasonable accommodation to disabled employees");
  Kells v. Sinclair Buick-GMC Truck, Inc., 2000 WL 489753, *5 (8th
  Cir. April 27, 2000) ("In addition to prohibiting discrimination on
  account of disability, the ADA imposes an affirmative duty on employers
  to provide 'reasonable accommodations' . . ."); Stevens v. Illinois
  Dep't of Transp., 2000 WL 365947, *4 (7th Cir. April 11, 2000) (ADA
  "is tailored to achieving its goal . . . by forbidding employment
  discrimination against the disabled and imposing an affirmative duty
  to provide reasonable accommodation on public and private employers")
  (emphasis added); Smith, 180 F.3d at 1165 (stating 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 for a
  vacant position"); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05 &
  n.29 (D.C. Cir. 1998) (en banc) (stressing that the ADA's accommodation
  obligation "means something more than treating a disabled employee like
  any other job applicant"); L.C. v. Olmstead, 138 F.3d 893, 899 (11th
  Cir. 1998) (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'"), aff'd in part, vacated in part on other
  grounds, 119 S. Ct. 2176 (1999); Borkowski v. Valley Central Sch. Dist.,
  63 F.3d 131, 143 (2d Cir. 1995) (rejecting employer's argument that
  disability claim failed absent evidence of disparate treatment;
  employer had "affirmative obligation" to make reasonable accommodation
  to the plaintiff's known disabilities); Dunlap v. Association of Bay
  Area Gov'ts, 996 F. Supp. 962, 966 (N.D. Cal. 1998) (stressing that,
  "under the ADA, a person with a disability need not prove that she was
  treated differently from non-disabled individuals;" "[d]iscrimination
  may be shown precisely where the defendant treated plaintiff the same as
  everyone around her, despite her need for reasonable accommodation").
  In enacting the ADA, Congress was well aware of the plight of
  the disabled population.  Congress cited the "staggering levels of
  unemployment and poverty" among the millions of "people with disabilities
  [who] want to work but cannot find a job."  H.R. Rep. No. 485(II),
  101st Cong., 2d Sess. 32-33, reprinted in 1990 U.S.C.C.A.N. at 314-15.
  Congress recognized that, in the absence of the affirmative protection
  provided by the reasonable accommodation requirement, many disabled
  individuals would be forced to resort to "insurance payments or
  government benefits for support."  Id.  At bottom, Congress envisioned
  the ADA as a tool for combating the systematic underemployment of
  the disabled, with its resulting social and fiscal costs, treating
  the failure to accommodate as a form of unlawful discrimination.
  Requiring an employer to make adjustments in a self-imposed seniority
  policy, thus permitting a disabled individual to continue working at
  her job, is fully consistent with the purposes of the ADA.  Id. at
  63, reprinted in 1990 U.S.C.C.A.N. at 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").
  This does not mean that employers in cases of this nature have no
  defense to a claim of reasonable accommodation.  Under an undue hardship
  analysis, an employer can defeat an otherwise valid accommodation if the
  accommodation would "constitute a fundamental and unreasonable alteration
  in the nature of the employer's business."  Smith, 180 F.3d at 1176;
  see 29 C.F.R.  1630.2(p) (setting forth the undue hardship standard).
  In this case, Sara Lee argues that such an undue hardship would result
  because Sara Lee's employees view the seniority policy as "sacred."
  J.A. at 340.  The evidence shows, however, that Sara Lee retains the
  right to make adjustments to its policy as it sees fit.<8>  The policy,
  as written, does not apply to plant closings, leaving Sara Lee free
  to carry out these closings (and transfers) without regard to its
  seniority policy, as it has on at least one occasion.  According to
  Sara Lee's own officials, the company is free to modify the seniority
  policy when the company perceives such a modification to be in its
  "best interest."  Id. at 320.  It cannot be said, on this record,
  that permitting Turpin to work the first shift would have produced a
  "fundamental and unreasonable alteration" in the nature of Sara Lee's
  business.<9>  See Smith, 180 F.3d at 1176 (suggesting that a seniority
  policy, not rooted in a collective bargaining agreement, would have
  to be, at a minimum, firmly "entrenched" in the industry to support an
  undue hardship argument).
  D.  Sara Lee Did Not Provide A Reasonable Accommodation By      Limiting
  Turpin To The Options Made Available Under A              Rote
  Application Of Sara Lee's Self-Imposed Seniority
          Policy

  The district court also ruled that Sara Lee was not, in any event,
  required to provide Turpin's proposed accommodation because Sara Lee's
  offer of one of three options -- a second or third shift position, lay
  off, or seniority package -- constituted a reasonable accommodation in
  its own right.  This is a nonsensical ruling.  The three options offered
  by Sara Lee were not accommodations, designed to overcome the "precise
  limitations imposed by [Turpin's] disability."  Interpretive Guidance
  on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630,
  App.  1630.2(o).  They were options that flowed from a rote application
  of Sara Lee's self-imposed seniority policy, the same options extended
  to any individual being bumped from the first shift by virtue of
  the seniority policy.  By definition, an accommodation is a "change
  in the work environment or in the way things are customarily done."
  Id. (emphasis added).  In this case, Sara Lee did not "change" anything;
  it steadfastly adhered to its self-imposed seniority policy in the face
  of Turpin's request for accommodation.
  The district court's assertion that Turpin should have "attempted
  to adjust her body to a new (and regular) sleeping pattern under the
  second or third shift" (J.A. at 362) ignores the fact that Turpin's
  own physician, in consultation with Turpin's specialist, Dr. Healy,
  had advised that such a change could exacerbate Turpin's seizures.
  Although Sara Lee's in-house "Medical Director" expressed the opinion
  that the change in shift would not affect Turpin so long as Turpin worked
  a non-rotating shift, this individual never examined Turpin and was not
  a specialist in neurological conditions.  Dr. Healy, a neurologist with
  first-hand knowledge of Turpin's condition, offered a different opinion,
  to wit, that "for this particular patient and for any seizure patient
  working during the day on first shift and sleeping at night is the most
  ideal situation;" that "[p]eople do not sleep as well during the day
  as they do at night and actually the best sleep there is is the sleep
  that you get before midnight;" 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."  Id. at 108-09, 306.
  Critically, Sara Lee never spoke with Dr. Healy at the time of the
  events in question and, thus, never attempted, through the interactive
  process contemplated under the ADA (see 29 C.F.R.  1630.2(o)(3)),<10> to
  "identify the precise limitations imposed by the disability and explore
  potential accommodations that would overcome  those limitations."
  Interpretive Guidance on Title I of the Americans with Disabilities
  Act, 29 C.F.R. Pt. 1630, App.  1630.2(o).  To the contrary, Sara Lee
  sought to force Turpin into a shift that, based on the best available
  medical evidence, posed a substantial risk of aggravating her disabling
  condition.  Under these circumstances, any contention that Sara Lee
  provided a reasonable accommodation by offering a second or third shift
  position to Turpin falls of its own weight.

 CONCLUSION

  The district court erred in granting summary judgment on the Commission's
  ADA claim.  The court's grant of summary judgment 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
 June 12, 2000                   (202) 663

 1  As the district court noted,
 the Commission alleges that Turpin was unlawfully discharged from Sara
 Lee on May 31, 1997.  Thus, the "relevant time period for assessing her
 disability is the period surrounding her May 1997 discharge."  Id. at
 337.

 2  The precise number of daytime seizures experienced by Turpin is
 unclear.  Turpin's husband, Benjamin 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 was not around Turpin
 as much in 1997 and, thus, was unable to pinpoint a precise number of
 daytime seizures for that time frame.  Gethers testified, nonetheless,
 that he had observed Turpin experiencing "a lot" of daytime seizures
 during 1997.  Id. at 275.

 3  The Commission relies solely upon the "actual" disability prong of
 the ADA's definition of disability.  See 42 U.S.C.  12102(2)(A).  The
 Commission does not argue for coverage under either the "regarded as" or
 "record of" prong of that definition.  See 42 U.S.C.  12102(2)(B)-(C).

 4  To be sure, in discussing the status of epilepsy as a covered
 disability under the ADA, Congress appeared to assume that disability
 status under the ADA was to be determined without regard to mitigating
 measures, see, e.g., H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 52,
 reprinted in 1990 U.S.C.C.A.N. at 334,  an assumption rejected by
 the Supreme Court in Sutton v. United Air Lines, Inc., 119 S. Ct. at
 2146-49.  The fact remains, however, that Congress viewed epilepsy
 as a substantially limiting impairment, at least in those cases where
 its effects were not readily controlled by medication.  More generally,
 Congress assumed that the protections of the ADA, including the statute's
 reasonable accommodation requirement, would extend to large numbers of
 individuals with epilepsy.

 5  The district court agreed with the Commission that sleeping and
 thinking are major life activities within the meaning of the ADA.
 J.A. at 347-48; see Smoke v. Wal-Mart Stores, Inc., 2000 WL 192806, *3
 (10th Cir. Feb. 17, 2000) (citing thinking as a major life activity);
 McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir. 1999)
 (citing sleeping as a major life activity); Taylor, 184 F.3d at 307
 (citing thinking as a major life activity); Pack v. Kmart Corp., 166
 F.3d 1300, 1305 (10th Cir.) (citing sleeping as a major life activity),
 cert. denied, 120 S. Ct. 45 (1999); Colwell v. Suffolk County Police
 Dep't, 158 F.3d 635, 643 (2d Cir. 1998) (citing sleeping as a major life
 activity), cert. denied, 526 U.S. 1018 (1999); Enforcement Guidance
 on the Americans with Disabilities Act and Psychiatric Disabilities,
 EEOC Notice 915.002 (March 25, 1997), reprinted in 2 EEOC Compliance
 Manual Interpretations (CCH) 902,  6906, at p.5399 (citing sleeping,
 thinking, and concentrating as major life activities).

 6  The district court faulted the Commission for failing to produce
 "any evidence regarding the average person's ability to sleep soundly."
 J.A. at 350.  The Commission, however, was not required to adduce specific
 evidence showing that the average adult does not salivate, bed wet,
 bruise herself, or severely bite her tongue while sleeping.  A jury,
 relying upon its common sense and life experience, could reasonably infer
 that Turpin's sleeping habits did not mirror those of the average person.
 See Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th
 Cir. 1996) (rejecting the argument that the plaintiff was required, as
 a matter of law, to produce specific evidence comparing her capacities
 to those of an average person in order to raise a question of fact on
 the issue of disability).

 7  The district court cited Barnett v. U.S. Air, Inc., 196
 F.3d 979 (9th Cir. 1999), as rejecting the distinction between
 collectively-bargained-for seniority systems and self-imposed seniority
 systems.  The Ninth Circuit has granted en banc review in Barnett.
 201 F.3d 1256 (Feb. 1, 2000).

 8  This fact undercuts Sara Lee's argument, in the district court, that
 no distinction should be made between a self-imposed seniority rule and
 a seniority rule embodied in a collective bargaining agreement because
 the implied contract doctrine binds employers to statements made in
 policies and manuals issued by the employer.  Although South Carolina law
 recognizes the implied contract doctrine, see Small v. Springs Indus.,
 Inc., 357 S.E.2d 452 (S.C. 1987), it does so where the employer makes
 explicit assurances that the provisions of an employer policy will
 "always" be followed.  Id. at 453-55 (stressing that if an employer
 "wishes to issue policies, manuals, or bulletins as purely advisory
 statements with no intent of being bound by them," it can merely insert
 "a conspicuous disclaimer or provision into the written document"); see
 also Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 852 (2d Cir. 1985)
 (seniority rule in Operations Manual was binding on employer where
 employer made "repeated oral and written assurances" that the Manual was
 "controlling"); Bumstead v. Jasper County, 931 F. Supp. 1323, 1328-29
 (E.D. Tex. 1996)  (promises made in an employee manual may bind the
 employer where the manual is "not subject to unilateral modification" by
 the employer).  The language in Sara Lee's seniority policy -- reserving
 the company's right "to make modification changes to the provisions of
 [the] policy" (J.A. at 42) -- seems carefully calculated to avoid the
 imposition of binding obligations under an implied contract theory.

 9  The undue hardship issue was raised during the deposition of Sara
 Lee's Employee Relations Manager, Cliff Metcalf.  When asked "what would
 have been the effect on Sara Lee's operations" if "an exception had
 been made in Vanessa Turpin's case," Metcalf responded, "[t]hat would be
 hard to answer because I think the effect on Sara Lee's operations would
 depend on the extent that that would have had an effect from employees
 relations standpoint."  J.A. at 324.  This tepid response hardly supports
 an undue hardship defense.  It also reveals that the company gave little
 thought to the issue (if any) when it chose to dismiss Turpin's proposed
 accommodation and "stick with the seniority policy."  Id. at 135.

 10  The failure to engage in the interactive process does not, by
 itself, give rise to an independent violation of the ADA.  See, e.g.,
 Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000) (because
 the interactive process "is not an end in itself," employer's refusal
 to engage in the interactive process does not, by itself, establish
 a violation of the ADA); Willis v. Conopco, Inc., 108 F.3d 282, 285
 (11th Cir. 1997) (same).  Nonetheless, when the employer fails to
 engage in the interactive process or causes the process to break down
 (as Sara Lee did here), the employer bears the risk of liability for
 a failure to accommodate that could have been avoided through better
 communication with the employee.  See Fjellestad v. Pizza Hut of Am.,
 Inc., 188 F.3d 944, 951-52 (8th Cir. 1999) (holding that "for purposes of
 summary judgment, the failure of an employer to engage in an interactive
 process to determine whether reasonable accommodations are possible is
 prima facie evidence that the employer may be acting in bad faith");
 Taylor, 184 F.3d at 311-20 (summary judgment is typically improper
 on claim of reasonable accommodation where there is evidence that the
 employer did not act in good faith in carrying out its obligations under
 the interactive process).