Lisa Gelabert-Ladenheim v. American Airlines, Inc. 00-2324 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 00-2324 LISA GELABERT-LADENHEIM, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee. On Appeal from the United States District Court for the District of Puerto Rico BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 TABLE OF CONTENTS STATEMENT OF INTEREST................................................1 STATEMENT OF THE ISSUE...............................................2 STATEMENT OF THE CASE.............................................2 1. Nature of Case and Course of Proceedings Below ....................... 2 2. Statement of Facts.................................................. 3 3. District Court Decision............................................. 6 ARGUMENT IN THE ABSENCE OF UNDUE HARDSHIP, AN EMPLOYER IS REQUIRED TO REASSIGN AN EMPLOYEE TO A VACANT POSITION FOR WHICH THE EMPLOYEE IS QUALIFIED WHEN THE EMPLOYEE, BECAUSE OF A DISABILITY, BECOMES UNABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF THE EMPLOYEE'S PRESENT JOB EVEN WITH REASONABLE ACCOMMODATION........................................... 8 CONCLUSION....................................................21 TABLE OF AUTHORITIES Cases Page(s) Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir.1998) ........................................... 9, 10 ,11, 12 Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986)........................... 17 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) ..........11, 12, 16, 17, 18 Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993)................................14 Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995).................... 9 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995)....................... 7 EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000).................. 12, 15 Feliciano v. State of Rhode Island, 160 F.3d 780 (1st Cir. 1998)................. 9, 16 Garcia-Ayala v. Lederle Parenterals, Inc, 212 F.3d 638 (1st Cir. 2000) .................................. 17, 18, 19 Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) ....................................... 12 Keeler v. City of Middletown, 145 F.3d 809 (6th Cir. 1998) .......................................... 16 Marcano-Rivera v. Pueblo International, Inc., 232 F.3d 245 (1st Cir. 2000) ....................................... 11, 12 McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999)..................... 12 Monette v. Elect. Data System Corp., 90 F.3d 1173 (6th Cir. 1996)...................... 9 TABLE OF AUTHORITIES -- (cont'd) Cases Page(s) Robinson v. Shell Oil, 117 S. Ct. 843 (1997)....................................... 10 Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir.1995)........................ 12 Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996)................................. 9 Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999)............................. 10, 12, 14, 15 Stone v. City of Mount Vernon, 118 F.3d 92 (2d Cir. 1997).............................9 Ward v. Massachusetts Health Research Institute Inc., 209 F.3d 29 (1st Cir. 2000) .................................................... 12 Statutes Page(s) Title 1 of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ......................................... 1, 2 42 U.S.C. § 121119(9)(B)...............................................8, 15 42 U.S.C. § 12101(a)(8)...................................................14 42 U.S.C. § 12112(a)........................................................10 42 U.S.C. § 12112(b)(5) (A)....................................................8, 15 Miscellaneous Page(s) 29 C.F.R. Pt. 1630, App. § 1630.9...........................................17 29 C.F.R. Pt. 1630, App. § 1630.15(d).................................. 18, 19 TABLE OF AUTHORITIES -- (cont'd) Miscellaneous Page(s) 29 C.F.R. § 1630.2(o) (1).......................................................13 29 C.F.R. § 1630.2(o)(2) (ii)....................................................8 H.R. Rep. No 485 part 2, 101st Cong., 2d Sess. 62 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 345 ............................... 11, 14 S. Rep. No. 116, 101st Cong., 1st Sess. 31-32 (1989)..................... 14, 17 EEOC Enforcement Guidance on Reasonable Accommodation Under the ADA, 8 Fair Empl. Prac. Man. (BNA) 405:7601 at 7624 n. 83 (March 1, 1999)........................................................13, 18 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 00-2324 LISA GELABERT-LADENHEIM, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee. On Appeal from the United States District Court for the District of Puerto Rico BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged with the enforcement, interpretation and administration of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. This appeal involves an important issue regarding the scope of an employer's duty of reasonable accommodation. Specifically, the appeal concerns the obligation of an employer to reassign an existing employee to a vacant position when the employee, due to a disability, becomes unable to perform the essential functions of her current position even with a reasonable accommodation. To assist the Court in resolving the important issue raised by this appeal, the Commission offers its views to the Court. STATEMENT OF THE ISSUE Whether an employer, in the absence of undue hardship, is required to reassign an employee to a vacant position for which the employee is qualified when the employee, because of a disability, becomes unable to perform the essential functions of the employee's present job with or without reasonable accommodation. STATEMENT OF THE CASE 1. Nature of Case and Course of Proceedings Below. This is an appeal from a final judgment dismissing this action. Plaintiff alleged that the defendant violated Title I of the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., by failing to provide a reasonable accommodation for her known disability and by retaliating against her for filing a charge with the EEOC. Appendix to Brief ("App.") at 140. On August 29, 2000, the district court granted summary judgment for defendant and dismissed plaintiff's complaint. Id. at 139. On September 7, 2000, plaintiff filed a motion for reconsideration and on September 27, 2000, plaintiff filed a notice of appeal. Addendum to Brief ("Add.") 2; Notice of Appeal, Doc. no. 63. On October 3, 2000, the district court denied plaintiff's motion for reconsideration and on October 13, 2000, plaintiff filed an amended notice of appeal. Add. 3 & 4. 2. Statement of Facts. Lisa Gelabert-Ladenheim ("Gelabert") began working part time for American Airlines in June 1986 as a gate agent. App. at 29 ¶ 6. In May 1993, during treatment for a work-related injury, Gelabert was diagnosed as having carpal tunnel syndrome in both hands. Id. at 30 ¶ 14. Due to this condition, Gelabert cannot lift more than 30 pounds, or push or pull more than 20 pounds. App. at 31-32 ¶ 26. Moreover, she cannot sit or stand for longer than eight hours, and can perform only "moderate typing," i.e., one to two hours with a 15-minute break. Id. Dr. Hector Guerra, a vocational expert, concluded that Gelabert's limitations generally restrict her ability to "perform a broad range of work, such as work requiring heavy or medium exertion." Id. at 83-84. According to Dr. Guerra, Gelabert is "restricted" in "a broad range of jobs" in Puerto Rico "as compared to the average individual with comparable training and skills." Id. Gelabert returned to work in February 1994, and American assigned her to work in a light-duty job. App. at 30-31 ¶ ¶ 19, 20. In March 1995, Dr. Thomas Murphy, American's area medical director, acknowledged Gelabert's limitations as described above. Id. at 31-32 ¶ 26. At that time, American removed Gelabert from the light-duty job, placed her on leave, and assigned Maria Ramos-Salgado ("Ramos"), a Human Resources Representative, to find a position that Gelabert could perform with her limitations. Id. at 31 ¶ 22; 32 ¶ 28; 33 ¶ 33, 34. American and Gelabert acknowledge that she could not perform her prior job with the diagnosed limitations. Motion for Summary Judgment, Doc. no. 37, Tab A at 262, 289-90; App. at 32 ¶ 30. In July 1995, Gelabert learned of an upcoming vacancy in Special Services which she could perform notwithstanding her limitations. Doc. no. 37, Tab A at 205-07. American agreed that Gelabert had the "knowledge and experience necessary" for the Special Services job. App. at 79. Although Gelabert was interviewed for this job, she was not selected. Id. at 34 ¶ 42. American selected another employee it considered more qualified because the employee "had baggage handling experience that [Gelabert] did not have." Id. Ramos acknowledged that she recommended Gelabert for a second interview for this job, knowing that she lacked baggage handling experience because baggage handling was more a "prefer[ence]" than "a requirement of the job." App. at 91-93. In 1996, Gelabert learned that a position at the Platinum Desk would soon be available, but she stated that Ramos "did not want [her] to apply" because of the amount of computer work involved and the need to lift heavy bags. Doc. no. 37, Tab A at 230. Gelabert applied anyway because she believed she could perform the job's typing and baggage-handling duties even with her limitations. Id. In February 1996, Gelabert interviewed for the Platinum Desk job, but was not selected. App. at 34 ¶ 43, 35 ¶ 45. American did not select Gelabert for this job because she did not have the "requisite ticketing experience and would require training" whereas the employee selected had "substantial ticketing experience" and, therefore, would need no training. Doc. no. 37, Tab B at 6; App. at 34 ¶ 44, 35 ¶ 45. Gelabert stated that she had been trained in ticketing and had continued to update her training, and that she had sold tickets during her first year at American and during her many later assignments to a position in first-class-ticket-sales. Doc. no. 37, Tab A at 263-64. In May 1996, American offered Gelabert a job in reservations. App. at 35. Gelabert rejected this job because she did not believe she could perform the required typing. Id. at 60 ¶ 20, 95 ¶ 4. About two months later she obtained a higher-paying job at a hotel in San Juan. Id. at 38 ¶ 72 & ¶ 75. 3. District Court Decision. The district court stated that the "determining issue" is whether American provided Gelabert with a reasonable accommodation. Add. 1 at 4. The court noted that American does not dispute either that Gelabert is unable to perform the essential functions of her former job as gate agent or that she is "fully capable" of performing the essential functions of the two jobs for which she applied but was rejected. Id. at 7. The court also noted that American has not raised the issue of undue hardship. Id. at 6 n. 2. Thus, the district court concluded, assuming arguendo that Gelabert's "reassignment to either of those two positions ... constitutes a reasonable accommodation, [she] is a qualified individual." Id. at 7. The district court rejected as "legally flawed" American's argument that Gelabert is not substantially limited in the major life activity of working because she is able to perform "a wide array of daily tasks, including her household chores" and because she is incapable of doing only one job -- intense typing. Add. 1 at 9. The district court concluded that Gelabert's evidence that she is limited in her ability to type, grasp, write, push, pull, and lift is enough to establish a factual issue as to whether she is substantially limited in her ability to perform a broad range of jobs. Id. at 9-10. The court noted that Gelabert supplied a "doctor's report and deposition testimony" to support her claim that she is restricted and that this medical evidence "flatly contradicts American's assertion that [she] is only limited in her ability to perform intense typing." Id. at 10. Further, the court concluded that, contrary to American's argument, Gelabert did not admit in her deposition that she was only limited in her ability to do intense typing. Id. Regarding the issue of reasonable accommodation, the court noted that the only accommodation plaintiff proposed was reassignment to one of the two jobs for which she applied but was rejected. Add. 1 at 11. The court recognized that reasonable accommodation may include "reassignment to a vacant position," but concluded that the ADA does not require that disabled persons be given "'priority in hiring or reassignment over those who are not disabled.'" Id. at 11-12 (quoting Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)). The court agreed with American's argument that the ADA "does not require an employer to reassign a disabled employee to a position for which, in the employer's judgment, the disabled employee is not the most qualified applicant." Id. at 12. ARGUMENT IN THE ABSENCE OF UNDUE HARDSHIP, AN EMPLOYER IS REQUIRED TO REASSIGN AN EMPLOYEE TO A VACANT POSITION FOR WHICH THE EMPLOYEE IS QUALIFIED WHEN THE EMPLOYEE, BECAUSE OF A DISABILITY, BECOMES UNABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF THE EMPLOYEE'S PRESENT JOB EVEN WITH REASONABLE ACCOMMODATION. The ADA requires an employer to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability unless the accommodation would cause the employer undue hardship. 42 U.S.C. § 12112(b)(5)(A). As the district court recognized, the statutory definition of "reasonable accommodation" includes "reassignment to a vacant position." 42 U.S.C. § 121119(9)(B); see also 29 C.F.R. § 1630.2(o)(2)(ii) (1998). Nevertheless, the district court held that it is not a "reasonable" accommodation to require an employer to reassign an employee with a disability to a vacant position if a more qualified applicant is available. Essentially, the district court concluded that, with respect to reassignment, an employer's only obligation under the reasonable accommodation provision of the ADA is to allow an employee who can no longer do her job because of a disability to compete for a vacant job on the same basis as other non-disabled employees. The district court's view is contrary to the plain meaning of the statute as well as the legislative history. It has been rejected by all but one of the courts of appeals that have addressed the issue and should be rejected by this Court. In light of the statutory language including "reassignment" among the reasonable accommodations that may be required under the ADA, this Court and others have consistently recognized, as the district court did here, that absent a showing of undue hardship, an employer has a duty to reassign an individual to a vacant position for which the individual is qualified when the individual, due to a disability, can no longer perform the essential functions of her present job even with reasonable accommodation. See, e.g., Feliciano v. State of Rhode Island, 160 F.3d 780, 786 (1st Cir. 1998); Stone v. City of Mount Vernon, 118 F.3d 92, 93-100 (2d Cir. 1997); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996); Shiring v. Runyon, 90 F.3d 827, 831-32 (3d Cir. 1996); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114-15 (8th Cir. 1995). The question presented in this appeal is whether the duty to reassign is limited to cases where the disabled employee is the best qualified candidate for the vacant position. The Commission submits that the answer to that question must be no. The Commission's interpretation is compelled by the text and structure of the ADA. The "plain meaning" of the word "assign," as the D.C. Circuit has observed, "means 'to appoint (one) to a post or duty.'" Aka v. Washington Hospital Center, 156 F.3d 1284, 1302 (D.C. Cir. 1998) (en banc) (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 Aka Court 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.'"). See also Smith v. Midland Brake, 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc) (adopting reasoning of Aka, and adding that the "literal language" of the statute defines the term "'reasonable accommodation' to include 'reassignment to a vacant position,'" not "'consideration of reassignment to a vacant position'"). In determining the meaning of a statutory term, a court should look at the term in the "broader context provided by other sections of the statute." 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). The context provided by the ADA's other provisions reinforces the conclusion that the term "reassignment" must have a broader meaning than that assigned to it by the district court in this case. As the Smith Court noted, 42 U.S.C. § 12112(a) "separately prohibits an employer from discrimination against a disabled person in his or her application for a vacant job," whether the person is an "existing employee seeking reassignment or an outside job applicant." Smith, 180 F.3d at 1164; accord Aka, 156 F.3d at 1304 ("the ADA already prohibits discrimination 'against a qualified individual with a disability' because of the disability 'in regard to application procedures'"). Accordingly, "if the reassignment language merely requires employers to consider on an equal basis with all other applicants for reassignment to a vacant position, that language would add nothing to the obligation not to discriminate, and would thereby be redundant." Smith, 180 F.3d at 1164-65; accord Aka, 156 F.3d at 1304 (ADA's "reference to reassignment would be redundant if permission to apply were all it meant"). See also Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1118 (9th Cir. 2000) (en banc) (quoting Aka).<1> This Court has on several occasions recognized that an employer's duty to make reasonable accommodation for an employee's disability goes beyond merely treating the disabled worker like other employees. In Marcano-Rivera v. Pueblo Int'l, Inc., 232 F.3d 245, 256-57 (1st Cir. 2000), for example, the Court held that the plaintiff, who used a wheelchair due to the loss of both her legs, could proceed with her claim that her employer failed to reasonably accommodate her disability by relieving her of incidental duties which were extremely difficult for her. The Court rejected the employer's argument that it did not violate the ADA's reasonable accommodation provision because it treated the plaintiff the same as its other employees. According to the Court, given the plaintiff's limitations, "it was not enough to treat plaintiff like other employees. In fact, to do so was an unlawful failure to accommodate her disability in violation of the ADA." Id. at 257. See also Ward v. Massachusetts Health Research Institute Inc., 209 F.3d 29, 36-37 (1st Cir. 2000) ("the general principle behind the ADA . . . imposes a duty on the employer to modify some work rules, facilities, terms, or conditions to enable a disabled person to work"); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 263-64 (1st Cir. 1999) ("an employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter its intent, unless it can show that the proposed accommodations would create undue hardship for its business"). Other courts have agreed with this Court's view that reasonable accommodation requires an employer, absent a showing of undue hardship, to accommodate the special needs of its disabled employees, even though the employer is not required to make such an adjustment for employees who do not have disabilities. See Barnett, 228 F.3d at 1120 (the "basic premise of the ADA grounds accommodation in the individualized needs of the disabled employee and the specific burdens which such accommodation places on the employer"); McAlindin v. County of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999) ("[t]he essence of the concept of reasonable accommodation is that, in certain instances, employers must make special adjustments to their policies for individuals with disabilities"); Aka, 156 F.3d at 1305 n. 29 (the "ADA's reasonable accommodation requirement treats disabled and non-disabled employees differently"); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334-35 (2d Cir. 1995) (rejecting argument that reasonable accommodation "requires only equal treatment"); Smith, 180 F.3d at 1169 (same); but see EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024,1029 (7th Cir. 2000) ("ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant"). The Commission has also consistently interpreted the ADA's reasonable accommodation provision to require an employer to make exceptions to its policies and procedures to assist disabled employees that the employer would not have to make for other employees. The EEOC's regulations require 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). In its guidance on reasonable accommodation, the Commission states that "the ADA requires modification of workplace policies, such as transfer policies, as a form of reasonable accommodation." EEOC Enforcement Guidance on Reasonable Accommodation Under the ADA, 8 Fair Empl. Prac. Man. (BNA) 405:7601 at 7624 n.83 (March 1, 1999) ("Reas. Accom. Guidance"). On the specific issue presented by this appeal, the guidance states that a disabled employee "does not need to be the most qualified individual for the position in order to obtain it as a reassignment." Reas. Accom. Guidance at 7621. The Commission's position serves the congressional purpose behind the inclusion of reassignment as a form of reasonable accommodation in the ADA. The ADA Committee Reports explain that reassignment was included as a reasonable accommodation for the following reason: "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), reprinted at 1990 U.S.C.C.A.N. 303, 345. See also S. Rep. No. 116, 101st Cong., 1st Sess. 31-32 (1989); S. Rep. No. 116, 101st Cong., 1st Sess. 30-31 (1989). Thus, Congress 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). Where an employee who cannot perform her present position because of a disability is reassigned, the employer retains a competent worker. Cf. Barth v. Gelb, 2 F.3d 1180, 1189 (D.C. Cir. 1993) (Rehabilitation Act case) ("[a] willingness to accommodate incumbent employees increases the likelihood that they -- and their knowhow -- will be retained by the employing agency"); Smith, 180 F.3d at 1165 (reassignment, "if necessary and reasonable ... keep[s] an existing disabled employee employed by the company"). Moreover, in a case like this, where the employee with a disability is reassigned, the employee who did not receive the position remains employed in his prior job. However, if an employee with a disability is limited to competing for a position she is qualified to perform, and is not chosen because the employer believes she is not the best qualified, the otherwise-qualified disabled employee loses her job, contrary to Congress' intent in passing the ADA. The Seventh Circuit ignored this important statutory purpose in reaching the conclusion that an employer is never required to reassign a disabled employee if it has a better qualified candidate for a vacant position. See Humiston-Keeling, 227 F.3d at 1027-29. Moreover, while the other courts of appeals and the EEOC base their uniform interpretation of the reassignment provision on the ADA's text, structure, and legislative history, the court in Humiston-Keeling cites no statutory authority whatsoever to support its contrary construction. Id. Rather, the panel relies 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 1027. In effect, the court'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. While the court in Humiston-Keeling derides the EEOC's interpretation of the reassignment provision as "affirmative action with a vengeance," 227 F.3d at 1029, 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 U.S.C. §12112(b)(5)(A), and defines "reasonable accommodation" to include "reassignment to a vacant position," 42 U.S.C. §12111(9)(B); Smith, 180 F.3d at 1167. In this case, because neither party raised the issue of undue hardship, the district court considered only the issue of "the reasonableness of the proposed accommodations." Add. 1 at 6 n.2. The court stated that Gelabert's burden was to propose, not just an accommodation, but "a reasonable accommodation." Id. at 231. The court then concluded that Gelabert had failed to meet her burden because "[h]olding an employer liable for violating the ADA simply because that employer hired the most qualified applicant for the position in question can hardly be considered reasonable." Id. By basing its determination that the reassignment requested by the plaintiff was not "reasonable" on the effect of the proposed accommodation on the employer, the district court exhibited confusion about the meaning of the term "reasonable" in the phrase "reasonable accommodation." The word reasonable in this context means that an employer is not required to provide a perfect accommodation or the one preferred by a disabled employee, but only an accommodation that permits the employee to successfully perform her job and that is not unreasonable from the standpoint of the inconveniences it would visit on the employee. See Feliciano, 160 F.3d at 786 (plaintiff who requested reassignment to vacant position she was qualified for could meet her burden to show a reasonable accommodation simply by showing "the existence of such positions").<2> See also Barnett, 228 F.3d at 1113 n. 4 ("in assessing reasonable accommodations the primary focus is on whether the accommodation effectively allows a disabled employee to successfully perform the job"); Keeler v. City of Middletown, 145 F.3d 809, 812-13 (6th Cir. 1998) (employer did not violate ADA where disabled employee rejected employer's reasonable but less preferable proposed accommodation); Interpretative Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App. § 1630.9 (1998) (to satisfy reasonable accommodation requirement, the accommodation offered by an employer "does not have to be the 'best' accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated") (citing S. Rep. No. 116, 101st Cong., 1st Sess. at 35 (1989)). Cf. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69-70 (1986) (same interpretation of term "reasonable" in Title VII's religious accommodation provision). In this context, "[r]easonableness has nothing to do with the 'difficulty or expense' that the employer will face in making the accommodation." Barnett, 228 F.3d at 1122 (Gould, J., concurring). Rather, the effect of a proposed accommodation on an employer is properly addressed in analyzing undue hardship. Barnett, 228 F.3d at 1113 n. 4 (in contrast to the issue of "reasonableness" of proposed accommodation, undue hardship focuses on "the impact of a possible accommodation on the employer"). A failure to separate the issue of whether an accommodation would create an undue hardship from the issue of whether an accommodation is reasonable may lead, as it appears to have done in this case, to a dilution of the hardship test which Congress imposed on an employer seeking to justify its failure to provide an accommodation. It is well established that the determination of whether an accommodation would create an undue hardship for an employer requires a "fact-intensive, case-by-case" analysis and should not be based on "per se rules or stereotypes." Garcia-Ayala v. Lederle Parenterals, Inc, 212 F.3d 638, 650 (1st Cir. 2000). See also 29 C.F.R. Pt. 1630, App. § 1630.15(d) ("Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis."); Reas. Accom. Guidance at 7630 ("[g]eneralized conclusions" are insufficient, "undue hardship must be based on an individualized assessment of current circumstances"). When a court considers the burden on the employer as part of the element of reasonableness, there is a great risk that the court will permit an employer to avoid its reasonable accommodation duty based on a claimed burden which does not rise to the level of "undue hardship" either because it is not sufficiently severe or because it is hypothetical. See Barnett, 228 F.3d at 1123 (Gould, J. concurring) (not including the difficulty to an employer in considering whether an accommodation is reasonable "avoids the evident confusion in trying to give meaning to both 'undue hardship' and 'reasonable' if 'reasonable' were to include the effects on the employer as are considered in 'undue hardship'"). Under the proper analysis, an employer would have a defense to a claim for reasonable accommodation if it can show that a particular reassignment would cause an undue hardship because providing it would be excessively costly or would be "unduly disruptive to its other employees or to the functioning of its business." 29 C.F.R. Pt. 1630, App. § 1630.15(d); Garcia-Ayala, 212 F.3d at 650 (besides "financial impacts," undue hardship "includes accommodations that are unduly extensive, substantially disruptive, or that would fundamentally alter the nature or operation of the business"). The defendant made no such showing in this case. In fact, the defendant has not asserted that reassignment of Gelabert to either of the positions she requested would have caused undue hardship. However, because the district court considered the burden of the reassignment outside the context of undue hardship, it erroneously arrived at a per se rule that reassignment of a disabled employee to a vacant position will always be unreasonably burdensome on an employer unless the disabled employee is the most qualified person for the vacancy. Add. 1 at 12 ("Holding an employer liable for violating the ADA simply because that employer hired the most qualified applicant for the position in question can hardly be considered reasonable."). Such per se rules are antithetical to the case-by-case approach toward the issue of employer hardship. Garcia-Ayala, 212 F.3d at 650; 29 C.F.R. § Pt. 1630, App. § 1630.15(d). If American had argued that the proposed reassignments would cause undue hardship, it is far from clear that it could prevail under that standard given the particular circumstances of this case. For example, American asserts that it did not hire Gelabert for the job on its Platinum Desk because she would have required additional training in the company's ticketing procedures.<3> Doc. no. 37, Tab B at 6; App. at 34 ¶ 44, 35 ¶ 45. Thus, American effectively rejected Gelabert's request for reassignment to that position to avoid having to provide her with some additional training. Unless the required training was unusually difficult or expensive, American would not be able to establish that the need to provide training would constitute an undue hardship. <4> Reas. Accom. Guidance at 7630 (employer must show that accommodation would entail "significant difficulty or expense" to establish undue hardship). CONCLUSION For the foregoing reasons, the district court's decision granting summary judgment to American Airlines should be reversed. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 (202) 663-4716 I hereby certify, pursuant to Fed. R. App. P. 32 (a) (7), that this brief was prepared in 14 point Times New Roman and that the word count is 5,153. JOHN F. SUHRE Attorney CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, on January 30, 2001, to the following counsel of record: Raymond L. Sanchez Maceira, Esq. Calle del Parque 361 Cond. Magdalena Tower, 203 Santurce, Puerto Rico 00912 Counsel for Lisa Gelabert-Ladenheim Angel Castillo, Esq. Morgan, Lewis & Bockius 5300 First Union Financial Center 200 South Biscayne Blvd. Miami, Florida 33131 Counsel for American Airlines JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 (202) 663 1 Interpreting an employer's reasonable accommodation burden to simply require treating that employee like other employees seeking the position, as the district court did, is inconsistent with Congress's discussion of reassignment as a reasonable accommodation. Congress explained that "'bumping' another employee out of a position to create a vacancy is not required," and that, if under a collective bargaining agreement, seniority controls the placement of employees, "it may be considered as a factor in determining whether it is a reasonable accommodation to assign an employee with a disability without seniority to the job." See H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 62 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 345. As the Court in Aka recognized, if Congress meant that an employee with a disability simply was to be permitted to apply for a reassignment like any other employee, Congress would not have needed to offer these explanations limiting reassignment because there could be "no danger that an employee would be 'bumped,' or that a job would go to a disabled employee with less seniority." Aka, 156 F.3d at 1304. 2 The Court concluded that plaintiff could not establish a reasonable accommodation claim in Feliciano because, inter alia, an employer is not required to provide a reassignment where doing so would violate the selection procedure established in a collective bargaining agreement. 160 F.3d at 787. Although the Commission disagrees with this aspect of the Feliciano decision, it has no relevance here because no collective bargaining agreement was involved in the selection process in this case. 3 As discussed in the text at 5, Gelabert had some prior training and experience in ticketing. Doc. no. 37, Tab A at 263-64. 4 American also offered Gelabert a position in reservations in May 1996, but Gelabert declined the job because she did not believe that she could perform the requisite typing due to her disability. The district court concluded that Gelabert had not presented sufficient evidence to show that American had failed in its obligation to determine whether reassigning Gelabert to this position would have been a reasonable accommodation. Add. 1 at 13-15. However, as discussed in the text, the evidence shows that American could have accommodated Gelabert by reassigning her to either of the two positions for which she applied. Consequently, even assuming Gelabert were unable to justify her rejection of the reservations position she was offered in May 1996, that would only affect the amount of relief to which she would be entitled.