Equal Employment Opportunity Commission v. Humiston-Keeling , Incorporated
Cardinal Health
 99-3281

 No. 99-3281
 ______________________________________________

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE SEVENTH CIRCUIT
 _______________________________________________

 EQUAL EMPLOYMENT OPPORTUNITY
   COMMISSION,

   Plaintiff-Appellant,

 v.

 HUMISTON-KEELING, INCORPORATED,
 CARDINAL HEALTH, INCORPORATED and
 WHITMORE DISTRIBUTION CORPORATION,

   Defendants-Appellees.
 ______________________________________________________

 On Appeal from the United States District Court
 for the Northern District of Illinois
 Eastern Division
 The Honorable George W. Lindberg, Judge
 ______________________________________________________

 PETITION OF APPELLANT EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION FOR REHEARING EN BANC
 ______________________________________________________

  C. GREGORY STEWART    EQUAL EMPLOYMENT
  General Counsel       OPPORTUNITY COMMISSION
         Office of General Counsel
  PHILIP C. SKLOVER    1081 L Street, N.W., Room 7046
  Associate General Counsel    Washington, D.C.  20507
         (202) 663-4734
  CAROLYN L. WHEELER
  Assistant General Counsel

  DORI K. BERNSTEIN
  Attorney

 STATEMENT PURSUANT TO FED. R. APP. P. 35(b)

  A panel of this Court affirmed summary judgment against the Equal
  Employment Opportunity Commission ("EEOC" or "Commission"), on its
  claim that Humiston-Keeling, Inc. ("HK") violated the Americans
  With Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12112(b)(5)(A),
  12111(9)(B), by refusing to reassign Nancy Cook Houser to a vacant
  clerical position when she could no longer perform her warehouse job due
  to a disabling permanent injury to her right arm.  The EEOC interprets
  the ADA to require that, absent undue hardship, an employer must modify
  its usual procedures for filling job vacancies to reassign an employee
  who, because of disability, can no longer perform her previous job to
  an equivalent vacant position she is qualified to perform.  See EEOC:
  Guidance on Reasonable Accommodation Under the ADA, 8 F.E.P. Manual
  (BNA) 405:7601, 7621-25 (March 1, 1999) ("Reasonable Accom. Guidance").
  The panel rejected the EEOC's "interpretation of the statutory provision
  on reassignment," slip op. at 4 (attached Addendum), and held that
  "the ADA does not require an employer to reassign a disabled employee
  to a job for which there is a better applicant, provided it's the
  employer's consistent and honest policy to hire the best applicant
  for the particular job in question rather than the first qualified
  applicant."  Id. at 6.
  This case involves a question of exceptional importance because the
  panel's interpretation of the statutory duty to provide reassignment as a
  reasonable accommodation under the ADA conflicts with the authoritative
  en banc decisions of three other United States Courts of Appeals
  that have construed the statutory provision in accord with the EEOC's
  guidance:
  Barnett v. U.S. Air, Inc., 2000 WL 1468743 (9th Cir., Oct. 4, 2000)
  (en banc)
  Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc)
  Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998)
  (en banc)TABLE OF CONTENTS
 Page

 STATEMENT PURSUANT TO FED. R. APP. P. 35(b) i

 TABLE OF CONTENTS ii

 TABLE OF AUTHORITIES  iii

 STATEMENT OF FACTS 1

  District Court Decision 3

  Panel Decision 4

 ARGUMENT 5

 Absent Undue Hardship, the Statutory Duty to Make Reasonable Accommodation
 Requires an Employer to Modify its Usual Procedures for Filling Job
 Vacancies to Reassign an Employee Who, Because of Disability, Can No
 Longer Perform
  Her Job, to an Equivalent Vacant Position She is Qualified to Perform. 5

 CONCLUSION 15

 CERTIFICATE OF SERVICE

 ADDENDUM
  EEOC v. Humison-Keeling, Inc., No. 99-3281
  Slip opinion (7th Cir., Sept. 15, 2000)

 TABLE OF AUTHORITIES

 Page
 CASES

 Aka v. Washington Hospital Center,
   156 F.3d 1284 (D.C. Cir. 1998) (en banc) i, 7, 9, 10, 12

 Barnett v. U.S. Air., Inc.,
   2000 WL 1468743 (9th Cir., Oct. 4, 2000) (en banc) i, 6, 7, 10

 Bultemeyer v. Fort Wayne Community Schools,
   100 F.3d 1281 (7th Cir. 1996) 11

 Dalton v. Subaru-Isuzu Auto.,
   141 F.3d 667 (7th Cir. 1998) 12, 13, 14

 EEOC v. Humison-Keeling, Inc.,
   No. 99-3281 (7th Cir., Sept. 15, 2000) i, 4, 5, 6, 7, 10, 13, 14, 15

 Fedro v. Reno,
   21 F.3d 1391 (7th Cir. 1994) 10

 Hendricks-Robinson v. Excel Corp.,
   154 F.3d 685 (7th Cir. 1998) 14

 Malabarba v. Chicago Tribune,
   149 F.3d 690 (7th Cir. 1998) 14

 Matthews v. Commonwealth Edison,
   128 F.3d 1194 (7th Cir. 1997) 14

 Ransom v. State of Ariz. Bd. of Regents,
   983 F. Supp. 895 (D. Ariz. 1997) 11

 Robinson v. Shell Oil,
   117 S. Ct. 843 (1997) 9

 Smith v. Midland Brake, Inc.,
   180 F.3d 1154 (10th Cir. 1999) (en banc) i, 6, 7, 9, 10, 11, 12, 14, 15

 Vande Zande v. Wisconsin Dept. of Admin.,
   44 F.3d 538 (7th Cir. 1995) 10

 Page
 STATUTES

 Americans With Disabilities Act of 1990,
   42 U.S.C.  12101(a)(8) 8
   42 U.S.C.  12111(9)(B) i, 8, 11, 15
   42 U.S.C.  12111(10) 12
   42 U.S.C.  12112(a) 10, 11
   42 U.S.C.  12112(b)(5)(A) i, 8, 12, 13, 15
   42 U.S.C.  12116 8
   42 U.S.C.  12117 8

 LEGISLATIVE HISTORY

 H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. (1990) 8, 13

 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 8, 12, 13

 ADMINISTRATIVE GUIDANCE

 29 C.F.R. Pt. 1630, App.  1630.2(o) 8, 12, 14

 EEOC: Guidance on Reasonable Accommodation Under the ADA,
   8 F.E.P. Manual (BNA) 405:7601 (March 1, 1999) i, 8, 9, 10, 11, 12,
   13, 15

 EEOC: Guidance on Workers' Compensation and ADA,
   8 F.E.P. Manual (BNA) 405:7391 (Sept. 3, 1996) 8, 9

 STATEMENT OF FACTS

  Nancy Cook Houser began working for HK, a wholesale distributer of
  pharmaceutical products and health and beauty aids, in September 1990.
  R37 (Pl's 12(m), p3, 14)<1>.  In May 1992, while working as a stocker
  in HK's warehouse, Houser injured her right arm, R31 (Def's 12(m),
  p5, 27), and was diagnosed with lateral epicondylitis (a/k/a "tennis
  elbow").  R37 (Pl's 12(m), p3, 11). Over the next seven months, Houser
  received various medical treatments, including surgery, in an effort
  to improve her physical condition.  Id. (Ex9 - Work Capacity Rpt. p1).
  During this period, when Houser was able to work, HK gave her light duty
  assignments in the warehouse, consistent with her medical restrictions.
  R31 (Def's 12(m), pp7-8, 40-46). When she was unable to work due to
  her condition, Houser remained on medical leave and received workers'
  compensation benefits.  R37 (Pl's 12(m), p7, 37).
  In  January 1993, Houser's doctor concluded that she had reached maximum
  recovery and released her to return to work in a "permanent light duty"
  position, with no lifting with her right arm.<2>  R37 (Pl's 12(m),
  Ex9 - 1/7/93 Release & 1/8/93 Release).  When Houser informed HK of her
  permanent restrictions and requested a job consistent with her physical
  limitations, HK assigned her to work the night shift in the warehouse
  as a product picker, using a reconfigured picking apron so she could
  gather items using only one arm.  Id. (Ex3 - Meserve Dep. p60); R31
  (Def's 12(m), p9, 51-53).  Houser attempted to do the job for a single
  shift, but found it very difficult to perform effectively using only
  her left arm.  R37 (Pl's 12(m), Ex1, Houser Dep. pp355-57, pp370-77).
  Houser worked much more slowly than the other pickers, id. (p357, p377),
  and experienced pain and stiffness in her right arm.  Id. (Pl's 12(m),
  p6, 29).
  After completing her shift, Houser visited her doctor, who advised
  against performing as a picker.  Id. (pp6-7, 30-31).  Houser informed
  HK personnel director Rich Meserve that she could not perform the
  picking job effectively using the reconfigured apron, and her doctor had
  advised against it. R31 (Def's 12(m), p11, 62).  The next day, HK placed
  Houser in a temporary light duty job as a "greeter" assigned to escort
  visitors through the warehouse while the office was under construction.
  Id. (p11, 64).  Houser remained in the greeter position until the
  temporary assignment ended in April 1993, when Meserve told her that
  unless she was willing to take the modified picker job, at reduced pay,
  "she could not be accommodated and would have to go back on workers'
  compensation" leave, but that "if she improved, she could come back
  to work."  Id. (pp11-12, 65, 67). Pursuant to its Extended Absence
  Policy, HK discharged Houser in December 1993 because she had been off
  work for more than six months.  Id. (p20, 119-20).
  Between January 1993, when Houser informed HK that she was permanently
  restricted to light duty work, and December 1993, when HK terminated
  her employment, Houser repeatedly asked about the possibility of
  reassignment to an office job she could perform consistent with her
  physical limitations.  R45 (Reply to Def's 12(n), p25, 137).  Houser
  gave Meserve a copy of her resume, which showed prior work experience
  performing data entry, accounting, record-keeping, and secretarial tasks.
  Id. (Ex4 - Resume).  In early 1993, Houser met with HK President Larry
  Olin and discussed her desire to continue working for HK.  R37 (Pl's
  12(m), Ex16 - Olin Dep. pp21-23).  Olin surmised that Houser needed
  some kind of accommodation, and directed Meserve to "please do whatever
  you can do to accommodate her, so long as she's able to perform her
  responsibilities, whatever was assigned to her." Id. (p24).
  Notwithstanding Olin's directive, Meserve did not consider reassigning
  Houser to an office vacancy to accommodate her medical restrictions,
  R38 (Def's Excerpts - Meserve Dep. p67), but instead required her to
  compete for posted jobs under the company's regular procedures for
  filling vacancies.  R37 (Pl's 12(m), Ex3 - Meserve Dep. pp107-08).
  HK's usual practice was to interview only the top two or three qualified
  candidates for a posted job.  Id. (p9, 48).  During the relevant
  period, Houser applied and interviewed for several vacant office
  jobs.<3>  Id. (pp10-15, 65, 74-75, 81, 85).  HK asserted that a
  more qualified person was selected for each of the clerical vacancies.
  Id. (Ex3 - Meserve Dep. p112).
 District Court Decision
  The district court granted summary judgment for HK.  R67 (MemOp).
  The court found triable questions of fact whether Houser's permanent
  impairment to her right arm substantially limited her ability to work,
  id., pp13-16, and whether she was qualified for a vacant office job.
  Id., p17.  The court ruled as a matter of law, however, that HK met its
  statutory obligation to provide Houser with a reasonable accommodation.
  Id., p29.
  The court determined that "even if the modified picker position was
  unworkable," HK "met its subsequent burden to consider Houser for
  alternative positions." Id., p22.  According to the court, "the office
  positions paid more, involved more responsibility, were skilled, and
  had no night shift."  Id., p28.  Regardless of whether these jobs were
  "`promotions' over the warehouse positions," the court found "they
  were above the `equivalent position' for which an employer is required
  to consider an employee with a disability who can no longer perform
  her own position."  Id.  The court therefore concluded that HK met any
  duty it had under the ADA by "following its general hiring practices as
  to Houser," i.e., requiring her to compete for clerical vacancies and
  selecting the most qualified candidate for each position.  Id., pp26-28.
  In denying reconsideration, the court held that HK was not required
  to make an exception to its "legitimate, nondiscriminatory" policy of
  choosing the best qualified candidate to fill a job vacancy in order to
  accommodate Houser's need for a job that met her medical restrictions.
  R80 (MemOp pp3-4).
 Panel Decision
  The appellate panel affirmed summary judgment for HK.  The panel
  "assume[d] without having to decide" that the permanent impairment of
  Houser's right arm "was a sufficiently significant restriction of a
  major life activity to count as a disability within the meaning of the
  statute." Slip op. at 2.  The panel characterized the "one-arm picker"
  job as "a failed experiment," and "assume[d]" that, "the experiment
  having failed," HK was not "excused from further efforts to accommodate
  Houser's disability."  Id. at 2-3.  The panel agreed with the EEOC that
  "[a]ny further attempt at accommodation would have to take the form of
  a reassignment."  Id. at 3.
  The panel, however, did "not agree with the Commission's interpretation
  of the statutory provision on reassignment."  Id. at 4.  The panel
  emphasized that "Houser's disability . . . had nothing to do with the
  office jobs for which she applied," and rejected the EEOC's position
  "that her unrelated disability, a disability that put her at no
  disadvantage in competing for an opening in an office job, nevertheless
  entitled her to be given more consideration than nondisabled workers."
  Id.  In the panel's view, "all that Houser's employer had to do by way
  of a reasonable accommodation was to allow Houser to compete for jobs
  for which she was qualified and to obtain any job for which she was
  the best applicant."  Id. at 5.
  The panel rejected the EEOC's position that such a limited construction
  would render the duty to provide reassignment as a reasonable
  accommodation redundant of the ADA's broad general prohibition against
  disability-based discrimination in all aspects of employment, including
  job assignment.<4>  Even under its more restrictive interpretation, the
  panel maintained, [p]lenty is left" of the statutory "duty to reassign a
  disabled worker to a vacant position." Id.  The reassignment provision,
  the panel reasoned, indicates that the duty to provide "reasonable
  accommodation" may extend beyond "efforts to enable a disabled worker
  to do the job for which he was hired," and "makes clear that the
  employer must also consider the feasibility of assigning the worker
  to a different  job in which his disability will not be an impediment
  to full performance."  Id.  In the panel's view, "if the reassignment
  is feasible and does not require the employer to turn away a superior
  applicant, the reassignment is mandatory," but the statute does not
  "requir[e] the employer to give him the job even if another worker
  would be twice as good at it, provided only that this could be done
  without undue hardship to the employer."<5>  Id.

 ARGUMENT

 Absent Undue Hardship, the Statutory Duty to Make Reasonable Accommodation
 Requires an Employer to Modify its Usual Procedures for Filling Job
 Vacancies to Reassign an Employee Who, Because of Disability, Can No
 Longer Perform Her Job, to an Equivalent Vacant Position She is Qualified
 to Perform.
  The panel's holding that an employer's "consistent and honest policy to
  hire the best applicant for the particular job in question" effectively
  trumps the statutory duty to accommodate a qualified disabled employee
  through reassignment, slip op. at 9, conflicts directly with the EEOC's
  administrative interpretation of the statute and conflicts with the en
  banc opinions of three sister circuits.  The EEOC and these Courts have
  rejected the narrow construction of the reassignment provision adopted
  by the panel in this case and ruled that, absent undue hardship, the ADA
  requires an employer to reassign a disabled employee to an equivalent
  vacancy if she is qualified for the job and can no longer perform her
  former job, with or without accommodation.  See Barnett v. U.S. Air,
  Inc., 2000 WL 1468743, *11 (9th Cir., Oct. 4, 2000) (en banc) ("If
  there is no undue hardship, a disabled employee who seeks reassignment
  as a reasonable accommodation, if otherwise qualified for a position,
  should receive the position rather than merely have an opportunity to
  compete with non-disabled employees.");<6> Smith v. Midland Brake,
  180 F.3d 1154, 1164 (10th Cir. 1999) (en banc) (rejecting "narrow
  definition of reassignment" which would impose "no more than a duty
  merely to consider without discrimination a disabled employee's request
  for reassignment along with all other applications" for a vacancy);
  Aka v. Washington Hospital Center, 156 F.3d 1284, 1305 (D.C. Cir. 1998)
  (en banc) ("interpretation of the reassignment provision as mandating
  nothing more than that the employer allow the disabled employee to
  submit his application along with all of the other candidates" for
  vacancy "would render that provision a nullity").<7>
  The Ninth, Tenth, and D.C. Circuits, like the EEOC, based their
  interpretation of the reassignment provision on the text, structure,
  and history of the ADA.  The ADA specifically defines prohibited
  discrimination to include "not making reasonable accommodations to
  the known physical or mental limitations of an otherwise qualified
  ... employee, unless [the employer] can demonstrate that the
  accommodation would impose an undue hardship on the operation of the
  [employer's] business."  42 U.S.C.  12112(b)(5)(A).  The statute defines
  "reasonable accommodation" to include "reassignment to a vacant position"
  and "appropriate adjustment or modifications of ... policies." 42
  U.S.C.  12111(9).  The ADA Committee Reports explain Congress's
  purpose in requiring reassignment as a reasonable accommodation:
  "If an employee, because of disability, can no longer perform the
  essential functions of the job that she or he has held, a transfer to
  another vacant job for which the person is qualified may prevent the
  employee from being out of work and the employer from losing a valuable
  worker." H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 62 (1990)
  ("House Labor Rpt."); S. Rep. No. 116, 101st Cong., 1st Sess. 30-31
  (1989) ("Senate Rpt.").  Congress thus included reassignment in
  the statutory definition of reasonable accommodation as a means to
  retain disabled employees as productive members of the workforce, and
  thereby to further "the Nation's proper goals regarding individuals with
  disabilities" by assuring their "full participation, independent living,
  and economic self-sufficiency." 42 U.S.C.  12101(a)(8).
   The EEOC, charged by Congress to interpret and enforce Title I of the
   ADA, 42 U.S.C.  12116, 12117, has issued rules and interpretive
   guidance, based on the statutory text, structure, and legislative
   record, which address the scope of an employer's duty to provide
   reassignment to a vacant position as a reasonable accommodation.  See 29
   C.F.R. Pt. 1630, App. 1630.2(o); Reasonable Accom. Guidance, 7621-25;
   EEOC: Guidance on Workers' Compensation and ADA, 8 F.E.P. Manual
   (BNA) 405:7391, 7400 (Sept. 3, 1996) ("Workers' Comp. Guidance").
   As construed by the Commission, reassignment to an equivalent vacant
   position is a reasonable accommodation that "must be provided to an
   employee who, because of a disability, can no longer perform the
   essential functions of his/her current position, with or without
   reasonable accommodation, unless the employer can show that it would
   be an undue hardship." Reasonable Accom. Guidance, at 7621; see also
   Workers' Comp. Guidance at 7400.
  The other courts that have addressed this issue have agreed with the
  EEOC's construction of the reassignment provision.  As the D.C. Circuit
  stated, the "plain meaning" of the verb "to assign ... means 'to appoint
  (one) to a post or duty.'"  Aka, 156 F.3d at 1302 (quoting Webster's
  Third New International Dictionary).  Thus, the ordinary understanding
  of "[t]he core word 'assign' implies some active effort on the part of
  the employer."  Id. at 1304.  "An employee who is allowed to compete for
  jobs precisely like any other applicant," the D.C. Circuit reasoned,
  "has not been 'reassigned'; he may have changed jobs, but he has done
  so entirely under his own power, rather than having been appointed
  to a new position."  Id. at 1302; 1304 ("An employee who on his own
  initiative applies for and obtains a job elsewhere in the enterprise
  would not be described as having been 'reassigned.'").  The Tenth
  Circuit in Smith found the D.C. Circuit's textual analysis persuasive,
  and quoted it in full.  Smith,180 F.3d at 1164.  The "literal language"
  of the statute, the Tenth Circuit declared, requires "reassignment to
  a vacant position," and "does not say 'consideration of a reassignment
  to a vacant position.'"  Id.
  The construction of the reassignment provision adopted by these
  Courts and the EEOC also finds support in the statutory structure.
  See Robinson v. Shell Oil, 117 S. Ct. 843, 848 (1997) ("broader
  context provided by other sections of the statute provides considerable
  assistance" in interpreting ambiguous statutory terms).  Because "the
  ADA separately prohibits an employer from discrimination against a
  disabled person in his or her application for a vacant  job," Smith,
  180 F.3d at 1164 (citing 42 USC  12112(a)), including reassignment
  in the duty to accommodate would be "redundant" if it required only
  nondiscriminatory consideration in competition with other employees.
  Id. at 1164-65;  Barnett, at *10; Aka, 156 F.3d at 1304.  Thus, the
  duty of reassignment under the ADA "must mean something more than
  the mere opportunity to apply for a job with the rest of the world."
  Smith, 180 F.3d at 1164; Barnett, at *10; Aka, 156 F.3d at 1304;
  see also Reasonable Accom. Guidance, at 7625 n.87 (suggestion that
  "reassignment means simply an opportunity to compete for a vacant
  position ... nullifies the clear statutory language stating that
  reassignment is a form of reasonable accommodation").
  The panel's conclusion that "all that Houser's employer had to do by
  way of a reasonable accommodation was to allow Houser to compete for
  jobs for which she was qualified and to obtain any job for which she
  was the best applicant," slip op. at 5, ignores that the plain meaning
  of the term "accommodation" requires a departure from an employer's
  usual way of doing things.  This Court has found it "plain enough what
  'accommodation' means.  The employer must be willing to consider making
  changes in its ordinary work rules, facilities, terms, and conditions
  in order to enable a disabled individual to work. ... To 'accommodate'
  a disability is to make some change that will enable the disabled person
  to work."  Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 542
  (7th Cir. 1995); Fedro v. Reno, 21 F.3d 1391, 1396 (7th Cir. 1994)
  ("reasonable accommodation may even include a requirement that an
  employer alter existing policies or procedures that it would not change
  for nonhandicapped employees").
  Despite the ADA's text, which includes reassignment within the scope of
  an employer's duty to make reasonable accommodations, the panel has now
  determined that an employer must merely consider the disabled employee
  for a vacancy under its normal competitive application policy.  Such a
  requirement is not an accommodation at all; it is a term or condition of
  employment to which every employee is entitled on a non-discriminatory
  basis.  See 42 USC  12112(a). "[A]llowing the plaintiff to compete for
  jobs open to the public is no accommodation at all ... [The employer's]
  policy or practice that all reassignments are made through competitive
  hiring prevents the reassignment of employees with disabilities to
  vacant positions for which they are qualified and discriminates against
  'qualified individuals with disabilities.'" Smith, 180 F.3d at 1165,
  quoting Ransom v. State of Ariz. Bd. of Regents, 983 F. Supp. 895,
  902-03 (D.Ariz.1997).  By requiring a disabled employee who seeks
  reasonable accommodation through reassignment to demonstrate that she
  was the "most qualified" candidate for a particular vacancy, the panel's
  ruling effectively transforms her claim for failure to accommodate into
  a claim for disparate treatment, contrary to the analytical distinction
  this Court has previously recognized between these two types of claims.
  See Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283-84
  (7th Cir. 1996) (unlike disparate treatment claim, which requires
  employee to show employer "treated him differently and less favorably
  than other, non-disabled employees," ADA claim for failure to accommodate
  is "directly establish[ed]" by showing employer "should have reasonably
  accommodated [his] disability and did not").
  Because the ADA also defines "reasonable accommodation" to include
  "appropriate adjustment or modifications of ... policies," 42 U.S.C. 
  12111(9)(B), the EEOC reads the statute to require an employer to make
  exceptions to policies and procedures that would otherwise prevent it
  from accommodating a disabled employee.  Reasonable Accom. Guidance,
  at 7624 n.83 ("[T]he ADA requires modification of workplace policies,
  such as transfer policies, as a form of reasonable accommodation.").
  "Therefore, an employer who does not normally transfer employees would
  still have to reassign an employee with a disability, ... [a]nd, if an
  employer has a policy prohibiting transfers, it would have to modify
  that policy in order to reassign an employee with a disability, unless it
  could show undue hardship."  Id., at 7623; accord Dalton v. Subaru-Isuzu
  Auto., 141 F.3d 667, 679 (7th Cir. 1998) (employer's "no transfer" policy
  would be "subject to challenge ... for any unreasonable inflexibility in
  the face of a demand for reasonable adjustments to accommodate a disabled
  candidate for transfer").  Similarly, absent undue hardship, the EEOC
  construes the ADA to require an employer to adjust its usual policy of
  filling vacancies through a competitive application process to reassign
  a disabled employee who cannot be accommodated in her current job and
  will otherwise be out of work.<8>  Reasonable Accom. Guidance, at 7625.
  Although the language and structure of the ADA do not support the panel's
  "most qualified" requirement, the EEOC recognizes other significant
  limitations on the reassignment obligation, arising from the statutory
  text.<9>  First, the statutory language lists "reassignment," and not
  "assignment," as a reasonable accommodation, signifying that only
  current employees (who have a job from which to be reassigned) are
  eligible.  See 29 C.F.R. Pt. 1630, App.  1630.2(o); Senate Rpt. at
  31 ("Reassignment as a reasonable accommodation is not available to
  applicants for employment.").  Second, the EEOC interprets the plain
  language requiring "reassignment to a vacant position" to mean that
  "[t]he employer does not have to bump an employee from a job in order
  to create a vacancy; nor does it have to create a new position."
  Reasonable Accom. Guidance, at 7622; see House Labor Rpt. at 62;
  Senate Rpt. at 31 (same). Third, and more fundamentally, because the
  duty to make reasonable accommodations extends only to "an otherwise
  qualified ... employee" with a disability, 42 U.S.C.  12112(b)(5)(A),
  a disabled employee must meet legitimate qualification standards and
  be able to perform the essential functions of a vacant position to be
  eligible for reassignment.  See Reasonable Accom. Guidance, at 7621.
  Finally, the employer's duty to reassign a disabled employee, as with
  its obligation to provide any reasonable accommodation, is excused if
  the employer "can demonstrate that the [reassignment] would impose
  an undue hardship on the operation of [its] business."  42 U.S.C. 
  12112(b)(5)(A); see Reasonable Accom. Guidance, at 7630-34.
  While the EEOC and the Ninth, Tenth, and D.C. Circuits base their
  uniform interpretation of the reassignment provision on the ADA's
  text, structure, history, and purpose, the panel in this case cited no
  statutory authority whatsoever to support its contrary construction.
  See slip op. at 6-9.  Rather, the panel relied solely on dicta in
  prior decisions, and its own conclusion, based on hypothetical facts
  rather than those actually presented in the evidentiary record, that the
  EEOC's interpretation would lead to "odd and counterintuitive results."
  Id. at 5.  This Court has stated generally that the ADA does not
  require an employer "to reassign a disabled employee to a position
  when such a transfer would violate a legitimate, nondiscriminatory
  policy of the employer," Dalton, 141 F.3d at 679, and has listed,
  in dicta, examples of "legitimate job prerequisites that an employer
  may establish consistently with nondiscrimination laws." Id., 141
  F.3d at 679; Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694
  (7th Cir. 1998).<10>  Yet while competitive application procedures are
  a common means of filling vacancies, this Court in prior decisions
  has never included among examples of "legitimate job prerequisites"
  a requirement that a disabled employee compete with others and be
  the "most qualified" for a particular job to obtain reassignment as
  an accommodation.  The Court in Dalton, moreover, cautioned that an
  employer cannot evade its duty to provide an accommodation required
  by the ADA simply by adopting a facially nondiscriminatory policy that
  would effectively preclude a particular accommodation. 141 F.3d at 679.
  "Any such policy," the Court recognized, "would remain subject to
  challenge both for any disparate impact it might impose on disabled
  employees, and for any unreasonable inflexibility in the face of a
  demand for reasonable adjustments to accommodate a disabled candidate
  for transfer." Id.
  In effect, the panel's interpretation "judicially amend[s] the statutory
  phrase 'qualified individual with a disability' to read, instead,
  'best qualified individual, notwithstanding the disability,'" adding a
  "judicial gloss unwarranted by the statutory language or its legislative
  history." Smith, 180 F.3d at 1168-69; see Reasonable Accom. Guidance,
  at 7621 (disabled employee "does not need to be the most qualified
  individual for the position in order to obtain it as a reassignment").
  While the panel derides the EEOC's interpretation of the reassignment
  provision as "affirmative action with a vengeance," slip op. at 7, the
  Tenth Circuit has properly recognized that "judicial labels" - such as
  "affirmative action" - "cannot substitute for Congress' statutory mandate
  in the ADA," which by its terms defines "discrimination" to include "not
  making reasonable accommodations to the known limitations of an otherwise
  qualified individual with a disability," 42 USC 12112(b)(5)(A), and
  defines "reasonable accommodation" to include "reassignment to a vacant
  position," 42 USC 12111(9)(B).  Smith, 180 F.3d at 1167.

 CONCLUSION

  Because the panel decision conflicts with the EEOC's administrative
  guidance and creates a conflict with the en banc decisions of the Ninth,
  Tenth, and D.C. Circuits, the EEOC urges this Court to grant rehearing
  en banc.

  Respectfully submitted,

  C. GREGORY STEWART    ____________________________
  General Counsel     DORI K. BERNSTEIN
         Attorney
  PHILIP C. SKLOVER
  Associate General Counsel    EQUAL EMPLOYMENT
           OPPORTUNITY COMMISSION
  CAROLYN L. WHEELER
  Assistant General Counsel
   CERTIFICATE OF SERVICE

  I, Dori K. Bernstein, hereby certify that I served two copies of the
  foregoing brief, and one copy of the foregoing brief on digital media,
  this 30th day of October 2000, by first-class mail, postage pre-paid,
  to the following counsel of record:

     Mr. Kirk M. Wall
     Habash, Reasoner & Frazier
     471 E. Broad St., Suite 1600
     Columbus, Ohio  43215

     Ann Elizabeth Reesman
     McGuiness Norris & Williams, LLP.
     1015 Fifteenth Street, N.W.
     Suite 1200
     Washington, D.C.  20005

        ______________________________
        DORI K. BERNSTEIN
        Attorney

 EQUAL EMPLOYMENTOPPORTUNITY
 COMMISSION
        1801 L Street, N.W., Room 7046
        Washington, D.C.  20507
        (202) 663-4734

 ADDENDUM

 1 EEOC v. Humison-Keeling, Inc., No. 99-3281
 Slip opinion (7th Cir., Sept. 15, 2000)
 1 Record references correspond to the numbered entries on the district
 court docket sheet, and are denoted "R__," followed by more specific
 document citation in parentheses.

 2 During an extensive work capacity evaluation in December 1992, Hauser
 exhibited the following "major limiting factors": "decreased overall
 endurance in the upper right extremity for vocational/avocational
 activities"; "decreased tolerance in the upper right extremity for task
 performance in all planes and especially shoulder level and above"; and
 "decreased capabilities" with lifting and carrying.  R37 (Pl's 12(m), Ex8
 - Work Capacity Rpt., p11).  Houser was "working at the Sedentary physical
 demand level ... which consists of lifting 12.5 lbs. infrequently and
 carrying 6.5 lbs," and was no longer able to work at the "Medium physical
 demand level - which consists of lifting and carrying up to 50 lbs.,"
 as required by her former job as a stocker.  Id.  A report documenting
 Houser's unsuccessful effort to participate in a work hardening program
 in late 1992 similarly concluded that she was unable "to demonstrate the
 capacities to do much work in any range with her upper right extremity."
 Id. (Ex12, p2).

 3 Houser interviewed for the following clerical vacancies: data entry
 clerk; switchboard operator; telemarketer; and credit manager assistant.
 R37 (Pl's 12(m), pp10-15, 56-91).  HK managers described several
 clerical openings as "entry level" positions, id. (p10, 53; p13,  73;
 p16, 97), or "a job that we took people with very basic skills out of
 the plant and put them into this job."  Id. (Ex3 - Meserve Dep. p121).
 HK's office and warehouse jobs were located in the same combined facility.
 R31 (Def's 12(m), p2, 3).  Like Houser's former position as a stocker,
 all office jobs were performed on the day shift.  Id. (p3, 11).
 HK's entry level office jobs entailed neither supervisory nor management
 functions, and some offered pay comparable to the hourly wage earned by
 warehouse workers.  See EEOC App. Br. at 35-36 & n.14; Reply Br. at 9-10.
 Further, while "it was very typical" for warehouse employees "to work
 an hour or two overtime," see R38 (Def's Excerpts - Meserve Dep. p24),
 there was no evidence that office workers had similar opportunities to
 earn additional income with overtime work.  See slip op. at 9.

 4 See EEOC App. Br. at 39-40.

 5 The panel suggested, in dicta, that the district court may have
 correctly concluded that HK's "office jobs were indeed better" than
 the warehouse position Houser could no longer perform, and thus were
 outside the scope of any reassignment obligation.  Id. at 8.  "It seems
 a fair generalization," the panel remarked, "that most desk jobs are
 'better' ... than factory or other physically demanding jobs that pay
 no more, other things being equal."  Id.  at 8-9.  Because the record
 contained "some evidence that the warehouse jobs provide much superior
 opportunities for overtime work, which ... may be a distinct plus for
 many workers," however, the panel found "enough doubt on this record
 about the superiority of the office jobs ... to make us prefer to rest
 decision on the alternative ground that the ADA does not require an
 employer to reassign a disabled employee to a job for which there is a
 better applicant, provided it's the employer's consistent and honest
 policy to hire the best applicant for the particular job in question
 rather than the first qualified applicant."  Id. at 9.

 6 At issue in Barnett was whether an employer's policy of assigning jobs
 based on seniority "is a per se bar to reassignment as a reasonable
 accommodation and whether a disabled employee seeking reasonable
 accommodation should have priority in reassignment." Barnett,
 at *10.  Based on EEOC guidance and the ADA's legislative history,
 the Ninth Circuit held "that a seniority system is not a per se bar
 to reassignment," but rather would be "a factor in the undue hardship
 analysis," which requires a "case-by-case face intensive analysis ... to
 determine whether any particular reassignment would constitute an undue
 hardship to the employer." Id., at *11.  Absent undue hardship, the Court
 ruled, the ADA requires an employer to make an exception to its seniority
 policy to accommodate a disabled employee through reassignment. Id.

 7 In the panel's view, "Aka is distinguishable" because it "does not
 address the situation in which a nondisabled person is the superior
 applicant for the job to which the disabled person seeks reassignment and
 the employer has a consistent policy of preferring the best candidate for
 a vacancy rather than merely hiring the first qualified person to apply,
 as is often done for routine low-skilled jobs." Slip op. at 6.  The panel
 thus did not read Aka as "holding that the employer must pass over the
 superior applicant who ... might himself or herself be disabled or belong
 to some other protected class."  Id.  Yet the facts of Aka refute the
 panel's cramped reading of that decision.  Plaintiff Etim Aka could no
 longer perform his job as a hospital orderly due to a heart ailment, and
 requested a transfer to a job that met his medical restrictions. Aka,
 156 F.3d at 1286.  The hospital required him to compete for posted
 vacancies under normal application procedures, which included a seniority
 preference, but permitted the hospital to "hire less senior applicants
 if they [were] more qualified."  Id. at 1287.  The hospital rejected
 Aka for several clerical jobs, and selected Jaime Valenzuela, a younger
 employee with less seniority, to fill a pharmacy technician position.
 Id. at 1286-87.  The hospital asserted "that it hired Valenzuela because
 he was more qualified than Aka."  Id. at 1294.  Aka claimed both that
 the hospital rejected him because of age, in violation of the ADEA, and
 failed to accommodate him through reassignment, in violation of the ADA.
 Id. at 1287-88.  While resolution of Aka's age discrimination claim,
 under the analytic framework for circumstantial disparate treatment
 cases, necessarily entailed a detailed comparison of the two candidates'
 qualifications, see id. at 1294-99, an entirely different analysis
 governed Aka's reasonable accommodation claim.  Id. at 1300-06.  Given the
 factual context of the hospital's normal competitive application process
 for filling vacancies, the D.C. Circuit's ruling that reassignment under
 the ADA "must mean more than allowing an employee to apply for a job
 on the same basis as anyone else," id. at 1304, signifies a rejection
 of the restrictive interpretation of reassignment adopted by the panel
 in this case. Certainly the Ninth and Tenth Circuits have so understood
 the Aka decision.  See Barnett, at *10; Smith, 180 F.3d at 1164-65.

 8 To the extent that reassigning a disabled employee to a vacancy outside
 the usual competitive bidding process causes "an unreasonable imposition
 on the employers and coworkers of disabled employees," Dalton, 141 F.3d
 at 679, the employer presumably would be able to establish undue hardship
 and would be relieved of the obligation to provide the transfer.  See 42
 U.S.C.  12112(b)(5)(A), 12111(10).  HK did not argue that making an
 exception to its policy of filling vacancies with the most qualified
 candidate to reassign Houser to a vacant entry level clerical job,
 for which she was among the top two or three qualified candidates,
 would have imposed an undue hardship.

 9 Through these limitations, "Congress ... significantly cabined the
 obligation to offer reassignment to a qualified employee who is disabled
 so as to ensure that it is not unduly burdensome, or even particularly
 disruptive, of an employer's business."  Smith, 180 F.3d at 1170; see
 also Aka, 156 F.3d at 1305 ("Recognized constraints on an employer's
 obligation to reassign a disabled employee further limit the disruption
 associated with reassignments.").

 10 The panel found the Tenth Circuit's decision in Smith to be
 "inconsistent with decisions of this court that hold that the [ADA] is
 not a mandatory preference act."  Slip op. at 6 (citing Dalton, Malabarba
 v. Chicago Tribune, 149 F.3d 690, 699-700 (7th Cir. 1998), and Matthews
 v. Commonwealth Edison, 128 F.3d 1194, 1196 (7th Cir. 1997)).  None of
 these cases, however, resolved the interpretive question at issue in this
 case.  In Dalton, this Court held, "the evidence was insufficient even
 for summary judgment purposes to show that there were vacant positions
 filled by temporary workers during the relevant time period to which [the
 plaintiffs] could have been reassigned," 141 F.3d at 680 obviating any
 need for the Court to decide whether, absent undue hardship, the ADA would
 require an employer to modify its usual procedures for filling vacancies
 to accommodate the plaintiffs through reassignment.  See Barnett, at
 *19 n.8.  Because the plaintiff in Malabarba "readily admit[ted]" that
 the job to which he sought reassignment was "a higher grade position" than
 his previous job, 149 F.3d at 700, this Court's holding that the proposed
 promotion was outside the scope of the employer's duty to make reasonable
 accommodation was entirely consistent with the EEOC's interpretation of
 the reassignment provision.  See 29 C.F.R. pt. 1630, App.  1630.2(o)
 ("an employer is not required to promote an individual with a disability
 as an accommodation").  The existence of a genuine factual dispute,
 acknowledged by the panel, as to whether some of HK's vacant clerical jobs
 were equivalent to Houser's former stocker position, see slip op. at 9,
 distinguishes this case from Malabarba.  Finally, the issue in Matthews
 was whether the plaintiff, who was laid off in a large-scale RIF, was
 discharged "because of" his disability, in violation of the ADA. 128
 F.3d at 1194.  Matthews thus did not even require this Court to resolve
 a claim for reasonable accommodation, and the opinion does not mention,
 let alone interpret, the statutory reassignment provision.