No. 06-2238 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ____________________________________________ PAM HUBER, Plaintiff-Appellee, v. WAL-MART STORES, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Western District of Arkansas, Fort Smith Division, No. 04-2145 The Honorable Robert T. Dawson, United States District Judge ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF- APPELLEE PAM HUBER'S PETITION FOR PANEL REHEARING AND SUGGESTION FOR REHEARING EN BANC ____________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DORI K. BERNSTEIN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc). . . . . . . . . . . . . . . 1, 5, 6 Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 7 Fenney v. Dakota, Minnesota & Eastern Railroad Co., 327 F.3d 707 (8th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . 6 Huber v. Wal-Mart, No. 06-2238 (8th Cir., May 30, 2007). . . . . . . . . . . . . . . . . . . 1, 7 Long Island Care at Home, Ltd. v. Coke, 127 S.Ct. 2339 (June 11, 2007). . . . . . . . . . . . . . . . . . . . . . . . 5 Robinson v. Shell Oil, 519 U.S. 337 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999) (en banc). . . . . . . . . . . . 1, 5, 6, 7 U.S. v. Mead Corp., 533 U.S. 218 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U.S. Airways v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 8 STATUTES Americans with Disabilities Act, Title I, 42 U.S.C. §§ 12111-12117. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12101(a)(8). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . . 2, 7 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 12117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RULES AND REGULATIONS FRAP 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. part 1630. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 29 C.F.R. § 1630.2(o)(2)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . .3 29 C.F.R. Pt. 1630, App. § 1630.2(o). . . . . . . . . . . . . . . . . . . . . 4 56 Fed. Reg. 35726, 1991 WL 304269 (July 26, 1991). . . . . . . . . . . . 3, 5 ADMINISTRATIVE GUIDANCE EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, No. 915.002 (Oct. 17, 2002). . . . . . . . . . . . . . . . . . 1, 4, 5, 8 LEGISLATIVE HISTORY H.R. Rep. No. 101-485(II) (1990). . . . . . . . . . . . . . . . . . . . . 2, 3 S. Rep. No. 101-116(I) (1989). . . . . . . . . . . . . . . . . . . . . . . . 2 OTHER AUTHORITY Webster's Third New International Dictionary. . . . . . . . . . . . . . . . . . 5 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is charged to interpret and enforce Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§12111-12117, which prohibits employment discrimination because of disability. As a federal agency, the EEOC is authorized to participate as amicus curiae on appeal. FRAP 29(a). On May 30, 2007, a panel of this Court held that the ADA "does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate non-discriminatory policy of the employer to hire the most qualified candidate." Huber v. Wal-Mart, No. 06-2238 (8th Cir., May 30, 2007) (panel op.) at 6. The EEOC has addressed this precise question in administrative guidance, and interprets the requirement to provide reassignment as a reasonable accommodation in a manner consistent with the decisions of the en banc Courts of the Tenth and D.C. Circuits, see Smith v. Midland Brake, 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc); Aka v. Washington Hospital Center, 156 F.3d 1284, 1302 (D.C. Cir. 1998) (en banc), and in direct conflict with the approach of the panel in this case. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the [ADA], No. 915.002, at 19-21 (Oct. 17, 2002) (Guidance).<1> On June 11, 2007, plaintiff Pam Huber filed a petition for panel rehearing and suggestion for rehearing en banc, and on June 18, 2007, this Court directed defendant Wal-Mart to file a response by June 28, 2007. As the federal agency charged by Congress with authority to interpret and enforce the statutory provisions at issue in this appeal, see 42 U.S.C. §§12116, 12117, the EEOC has a vital interest in its outcome and respectfully offers its views to the Court. ARGUMENT Title I of the ADA defines prohibited discrimination to include "not making reasonable accommodations ... unless ... the accommodation would impose an undue hardship on the oper- ation of the [employer's] business," 42 U.S.C. §12112(b)(5)(A), and defines "reasonable accom- modation" to include both "reassignment to a vacant position" and "appropriate adjustment or modifications of ... policies." 42 U.S.C. §12111(9)(B). The legislative committee reports explain that "[i]f 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. 101-485(II), at 62 (1990) (House Rpt.); S. Rep. No. 101- 116(I), at 30-31 (1989) (Sen. Rpt.). Congress thus defined "reasonable accommodation" to include "reassignment to a vacant position" as a means to retain disabled employees as productive members of the work-force, 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). Congress required the Commission to issue regulations to carry out Title I within one year of the ADA's enactment. 42 U.S.C. §12116. Pursuant to this express delegation of rulemaking authority, and following extensive public notice and comment, the EEOC promulgated regula- tions and interpretive guidance, now codified at 29 C.F.R. part 1630. The Commission issued "interpretive guidance concurrently with" the final rule "in order to ensure that qualified individuals with disabilities understand their rights under [the regulations] and to facilitate and encourage compliance by covered entities." 56 Fed.Reg. 35726, 1991 WL 304269 at 2 (July 26, 1991). In the preamble to the final rule, the EEOC explained that "[m]ore detailed guidance on specific issues will be forthcoming in the Commission's Compliance Manual," and identified "[a]mong the issues to be addressed in depth are ... reasonable accommodation and undue hard- ship, including the scope of reassignment." Id. at 2-3. In developing the regulations and accompanying guidance, the EEOC considered comments submitted by "disability rights organizations, employers, unions, state agencies concerned with employment or workers compensation practices, and interested individuals," and announced that it "will continue to consider [these comments] as it develops further ADA guidance. Id. Congress intended the EEOC's regulations implementing Title I of the ADA to "have the force and effect of law." House Rpt. at 82. The regulations pertaining to the provisions of Title I are thus entitled to substantial deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984). See U.S. v. Mead Corp., 533 U.S. 218, 226-27 (2001) (Chevron deference is warranted "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority"). The Supreme Court in Chevron U.S.A. v. Echazabal, 536 U.S. 73, 84 (2002), specifically recognized that the EEOC's regulations issued under Title I of the ADA "can claim adherence under the rule in Chevron." The EEOC's regulation on reassignment conforms to the statutory text, and its inter- pretation of that regulation is entirely consistent with the rule itself. The regulation incorporates the statutory definition of "reasonable accommodation," including "reassignment to a vacant position." 29 C.F.R. §1630.2(o)(2)(ii). The interpretive guidance issued concurrently with the regulation explains that reassignment "should be considered only when accommodation within the individual's current position would pose an undue hardship," and must be "to an equivalent position, in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time." 29 C.F.R. Pt. 1630, App. §1630.2(o). According to the guidance, reassignment "to a lower graded position" is permitted only "if there are no accommo- dations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without accommodation." Id. As promised in the preamble to the final rule, the EEOC provided further guidance on the statutory duty to provide reasonable accommodation. In particular, the Guidance addresses whether the duty to provide reassignment as a reasonable accommodation is satisfied if an employer merely considers an employee's application for a vacancy and selects the best qualified candidate to fill the job. See Guidance at 18-22. Specifically, the Guidance states that so long as an employee with a disability is qualified for the opening, she "does not need to be the best qual- ified individual for the position in order to obtain it as a reassignment." Id. at 19. The Guidance further explains that an employer may be required to modify its normal policies governing employee job transfers to provide reassignment as a reasonable accommodation. Id. at 20. Finally, the Guidance explains that the ADA requires the employer to do more than merely permit an employee who seeks reassignment as an accommodation to her disability to compete for an equivalent vacant position with other qualified candidates: Does reassignment mean that the employee is permitted to compete for a vacant position? No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended. Id. at 21 (footnote omitted). Under well established principles of administrative law, recently reaffirmed unanimously by the Supreme Court, the EEOC's guidance on reasonable accommodation "falls well within the principle that an agency's interpretation of its own regulations is 'controlling' unless plainly erroneous or inconsistent with the regulations being interpreted." Long Island Care at Home, Ltd. v. Coke, 127 S.Ct. 2339, slip op. at 11 (June 11, 2007) (internal quotations and citations omitted). "Where, as here, an agency's course of action indicates that the interpretation of its own regulation reflects its considered views," the Supreme Court has "accepted that interpret- ation as the agency's own, even if the agency set those views forth in a legal brief" or, as in Coke, "in an 'Advisory Memorandum' issued only to internal Department [of Labor] personnel and which the Department appears to have written in response to ... litigation." Id. Because the EEOC's Guidance is fully consistent with its regulation, and was issued publicly (rather than only internally), after consideration of comments submitted during legislative rulemaking, see 56 Fed. Reg. 35726, 1991 WL 304269 at 2-3, it represents a "controlling" interpretation of the law. The EEOC's interpretation, moreover, comports with the language, structure, and history of the statute. As the D.C. Circuit recognized, 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 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.'"). The Tenth Circuit in Smith, 180 F.3d at 1164, found the D.C. Circuit's textual analysis persuasive, and quoted it in full. 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 EEOC's construction of the reassignment provision also finds support in the stat- utory structure. See Robinson v. Shell Oil, 519 U.S. 337, 345 (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; 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; Aka, 156 F.3d at 1304. The opportunity to apply for a job 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 U.S.C. §12112(a). As the Tenth Circuit recognized, "allowing the plaintiff to compete for jobs open to the public is no accommodation at all ... [An 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 (citation omitted). 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 Fenney v. Dakota, Minnesota & Eastern Railroad Co., 327 F.3d 707, 712 (8th Cir. 2003). 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. While the EEOC and the en banc Tenth and D.C. Circuits base their uniform interpret- ation 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. Rather, the panel relied solely on the Seventh Circuit's decision in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1028 (7th Cir. 2000), that "'the [ADA] is not a mandatory preference act.'" Panel op. at 6. This rationale and construction of the ADA, however, was considered and squarely rejected by the Supreme Court in Barnett. The employer in Barnett argued that the ADA "seeks only 'equal' treatment for those with disabilities" and "does not ... require an employer to grant preferential treatment," and therefore "it does not require the employer to grant a request that, in violating a disability-neutral rule, would provide a preference." 535 U.S. at 397. This argument, the Court decided, fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal. The ADA requires preferences in the form of "reasonable accommodations" that are needed for those with disabilities to obtain the same workplace opportunities that those without dis- abilities automatically enjoy. By definition any special "accommodation" requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach. Id. The Court observed that "[m]any employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability," id. at 398 (citing examples specified in 42 U.S.C. §12111(9)(B)), "[y]et Congress, while providing such examples, said nothing suggesting that the presence of such neutral rules would create an automatic exception." Id. "[T]he nature of the 'reasonable accommodation' requirement, the statutory examples, and the Act's silence about the exempting effect of neutral rules together" convinced the Court "that the Act does not create any such automatic exemption." Id. CONCLUSION For the foregoing reasons, the EEOC respectfully urges this Court to grant the petition for rehearing, and to defer to the Commission's interpretation of its regulation on reassignment as a reasonable accommodation. In accord with EEOC Guidance, this Court should affirm the judgment of the district court that Wal-Mart failed to provide a reasonable accommodation required by the ADA when it refused to reassign Huber to an equivalent vacant position for which she was qualified and instead placed her in an inferior job paying half her former wage. Respectfully submitted, /s/ Dori K. Bernstein RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 CERTIFICATE OF SERVICE I certify that this is being filed electronically, and therefore all counsel of record will be served by the CM/ECF system. By: /s/ Dori K. Bernstein Dori K. Bernstein D.C. Bar No. 415827 Connecticut State Bar Juris No. 302667 Date: June 27, 2007 *********************************************************************** <> <1> The Guidance is included in the EEOC Compliance Manual and is publicly available on the Commission's website at http://www.eeoc.gov/policy/docs/accommodation.html. The EEOC amended the Guidance, originally issued March 1, 1999, to incorporate "limited changes" necessitated by, inter alia, the Supreme Court's decision in U.S. Airways v. Barnett, 535 U.S. 391 (2002) (addressing whether ADA requires an employer to violate seniority rules to assign a less senior disabled employee to a vacancy over the competing bids of more senior workers). See Guidance at 1.