UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________ No. 11-1774 __________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNITED AIRLINES, INC., Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois Judge Harry D. Leinenweber _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION LORRAINE C. DAVIS Office of General Counsel Acting Associate General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 VINCENT J. BLACKWOOD (202) 663-4721 Assistant General Counsel fax: (202) 663-7090 barbara.sloan@eeoc.gov BARBARA L. SLOAN Attorney STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission requests oral argument in this enforcement action brought under the Americans with Disabilities Act. The Commission appeals from an order dismissing its suit under Federal Rule of Civil Procedure 12(b)(6). The Commission contends that this Court's legal precedent was, at a minimum, seriously undermined by a later Supreme Court decision and, due to the timing of that decision, its impact on the Court's precedent was never fully explored. Oral argument in this case would provide a full opportunity to address the issue. TABLE OF CONTENTS Page(s) STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . . . . . . . . . . . 2 2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . .3 3. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . 5 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT I. EEOC'S ALLEGATION THAT UNITED REQUIRES DISABLED EMPLOYEES WHO NEED REASSIGNMENT AS A REASONABLE ACCOMMODATION TO COMPETE FOR JOBS FOR WHICH THEY ARE FULLY QUALIFIED STATES A CLAIM UNDER THE ADA . . . . . . . . . . . .12 II. AN EMPLOYEE'S REQUEST FOR REASSIGNMENT TO A JOB FOR WHICH HE IS QUALIFIED IS PRESUMPTIVELY REASONABLE EVEN IF IT CONFLICTS WITH UNITED'S REASONABLE ACCOMMODATION GUIDELINES . . . . . . . . . . . . . . . . . . . . . . . . 30 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 39 STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . 40 STATEMENT REGARDING APPENDIX MATERIALS. . . . . . . . . . . . . . . . . . . .40 APPENDIX CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc). . . . . . , 12-13, 15-16, 18-20 American Tobacco Co. v. Patterson, 456 U.S. 63 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995). . . . . . . . . . . . . . . . . . . . . . . . 13, 15 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Board of Trustees of Leland Stanford Jr. Univ. v. Roche Molecular Systems, 131 S. Ct. 2188 (2011). . . . . . . . . . . . . . . . . . . . . . . . . .18 Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102 (1980). . . . . . . . . . . . . . . . . . . . . . . . 14, 16 Craig v. Potter, 90 Fed. App'x 160 (7th Cir. Feb. 20, 2004) (unpublished). . . . . . . . .30 Dalton v. Subaru Isuzu Automobile, Inc., 141 F.3d 667 (7th Cir. 1998). . . . . . . . . . . . . . . . . . . . .13, 23 EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). . . . . . . . . . . . . . . . . . passim Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996). . . . . . . . . . . . . . . . . . . . .11, 35 Gile v. United Airlines, 95 F.3d 492 (7th Cir. 1996). . . . . . . . . . . . . . . . . . . . . 21 Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir.), cert. granted in part, 552 U.S. 1074 (2007), cert. dismissed on stipulation of the parties, 552 U.S. 1136 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . .30 Huber v. Wal-Mart Stores (denying rehearing en banc), 493 F.3d 1002 (8th Cir. 2007). . . . . . . . . . . . . . . . . . . . . 37 Kasten v. St. Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011). . . . . . . . . . . . . . . . . . . . . . . . . 17 Killingsworth v. HSBC Bank Nevada, 507 F.3d 614 (7th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . 8 King v. City of Madison, 550 F.3d 598 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . . 30 Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). . . . . . . . . . . . . . . . . .7, 11, 30-34 Park 'N Fly v. Dollar Park & Fly, 469 U.S. 189 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Robinson v. Shell Oil Co., 519 U.S. 337 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999) (en banc). . . . . . . . . . . .9, 12, 16-21 Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . . 8 United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 United States v. On Leong Chinese Merchants Association Building, 918 F.2d 1289 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . 24 US Airways v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . . . . . . . passim STATUTES, REGULATIONS, and RULES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 12101(a)(8). . . . . . . . . . . . . . . . . . . . . . . . . . . .20 42 U.S.C. 12101(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19 42 U.S.C. § 12111(9). . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . 14, 31 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. § 1630.2(m). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Fed. R. Civ. P. 8(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fed. R. Civ. P. 8(b)(6). . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 5 Seventh Circuit Rule 40(e). . . . . . . . . . . . . . . . . . . . 10, 12, 23, 37 OTHER AUTHORITY H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . . . . . 17, 35 S. Rep. No. 116, 101st Cong., 1st Sess. (1989). . . . . . . . . . . . . . . . 17 EEOC Guidance: Reasonable Accommodation & Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002), also available at www.eeoc.gov/policy/docs/accommodation.html. . . . passim Brief for Petitioner, US Airways v. Barnett, 535 U.S. 1516 (2002) (No. 00-1250), 2001 WL 747864 (filed July 2, 2001). . . . . . . . . . . . 26 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _______________________ No. 11-1774 _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNITED AIRLINES, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Northern District of Illinois Judge Harry D. Leinenweber _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________ STATEMENT OF JURISDICTION The EEOC brought this enforcement action under Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. §§ 2000e-5(b) & 12117(a). The suit was dismissed under Federal Rule of Civil Procedure 12(b)(6) on February 3, 2011 (district court docket number ("R.") 56), and final judgment was entered the same day. R.57. The Commission filed a timely notice of appeal on April 1, 2011. R.59. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether, absent undue hardship, United Airlines violates the ADA by requiring employees who, because of a disability, can no longer do the essential functions of their current jobs to compete with other employees for vacant positions for which they are qualified rather than simply reassigning the disabled employees to those positions. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court dismissing this EEOC enforcement action under Federal Rule of Civil Procedure 12(b)(6). The Commission originally brought the action in the Northern District of California on June 3, 2009, alleging that defendant violates the ADA inter alia by denying disabled employees the reasonable accommodation of reassignment to a vacant position for which they were qualified when, due to a disability, they can no longer function effectively in their current jobs. R.1; see also R.51 (Second Amended Complaint). On December 3, 2009, the district court in California granted defendant's motion to transfer the case to the Northern District of Illinois. R.27. In March 2010, the Ninth Circuit denied the EEOC's petition for a writ of mandamus (R.37), and the suit was docketed in the Northern District of Illinois. R.38. In November 2010, defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). R.52-53. On February 3, 2011, the district court issued an oral ruling, granting defendant's motion. While acknowledging the EEOC's argument that there is inconsistent language in US Airways v. Barnett, 535 U.S. 391 (2002), the court concluded that circuit precedent - specifically, EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), and its progeny - is "directly on point and has not been overruled by the Seventh Circuit." R.56. 2. Statement of Facts In 2003, United Airlines adopted Reasonable Accommodation Guidelines that address, among other things, accommodating employees who, because of a disability, can no longer do the essential functions of their current jobs even with a reasonable accommodation. See generally Exhibit A (Guidelines), Appendix ("App.") 9-21. While recognizing that reassignment, or "transfer," to "an equivalent or lower-level vacant position" that meets the employees' "medical limitations" may be a reasonable accommodation, the Guidelines specify that because "reassignment through [United's] transfer process" is "competitive," "an employee will [not] be automatically placed into a vacant position." Exh.A at 8, App.16. Instead, employees needing this accommodation will be "given a preference" for positions for which they are qualified. Being "given a preference" means that the employee: (1) can "submit an unlimited number of transfer applications," (2) is "guaranteed an interview (when the selection process so requires) for all positions for which the employee is minimally qualified," and (3) for "competitive vacancies," should receive "priority consideration for placement" if "two or more employees are substantially equal when considering all of the evaluation criteria for the hiring decision." Id. The Guidelines also state that the employee should be given a "Job Search Packet," and that management should "work closely with [the employee] to identify appropriate employment opportunities." Id. Employees unable to obtain a new position through this process are placed on leave and, in time, are terminated. See id. at 10, 12-13, App.18, 20-21.<1> Since the Guidelines went into effect, the Commission has received charges in several offices, including San Francisco and Chicago, complaining that United refused to provide reassignment as a reasonable accommodation. In June 2009, based in part on the California charges, the Commission filed suit in San Francisco alleging that United's reassignment policy violates the ADA. R.1; see also R.51 (Second Amended Complaint). Over the EEOC's objections, the district court granted United's motion to transfer the case to Illinois. R.27. In November 2010, United moved to dismiss the suit under Rule 12(b)(6) in light of EEOC v. Humiston-Keeling, 227 F.3d 1024, 1028-29 (7th Cir. 2000), which, the company contended, was binding on the district court and holds that a "competitive transfer policy" like United's does not violate the ADA. 3. District Court Decision In an oral ruling on February 3, 2011, the district court granted United's motion, holding that dismissal under Rule 12(b)(6) was appropriate because the Commission could "prove no set of facts in support of [its] claim that would entitle [it] to relief." Transcript of Proceedings ("Tr.") at 7, App.8. The court reasoned that adverse circuit precedent is "directly on point and has not been overruled by the Seventh Circuit." Id. Specifically, the court observed, in Humiston Keeling, the "Seventh Circuit rejected a claim by the Commission that is identical to the one in this case, namely that the reassignment provision of the ADA requires that a disabled employee receive a position over a more qualified nondisabled employee as long as the disabled employee is capable of performing the work required for the position." Id. at 3, App.4. Humiston-Keeling concludes that "such an interpretation would convert the ADA from a non-discrimination law into a 'mandatory preference' law and would be inconsistent with the aims of the ADA." Id. As interpreted by the Seventh Circuit, the reassignment provision simply requires the employer "to consider whether it is possible to assign the disabled worker to another position in which his or her disability will not be a hindrance." If such reassignment is "feasible" and there are "no other superior applicants," the ADA "mandates reassignment." Id. at 3 (citing Humiston-Keeling, 227 F.3d at 1027-28), App.4. The district court acknowledged that circuits are split on whether reassignment is "mandatory" under the ADA, but concluded that it was "bound to follow Seventh Circuit precedent." Tr. at 4, App.5. The court rejected the Commission's argument that Humiston-Keeling was "at the very least undermined" by the Supreme Court's decision in US Airways v. Barnett, 535 U.S. 391 (2002). Tr. at 4, App.5. According to the court, Barnett held that an accommodation is ordinarily not reasonable "if it conflicts with the rules of an employer's seniority system." Id. In so holding, the court noted, Barnett concluded that "preferences for disabled employees in the form of reasonable accommodations are sometimes necessary to carry out the goals of the ADA even if the difference in treatment violates an employer's disability neutral rule" such as rules limiting break time or furniture expenses. Tr. at 4-5, App.5-6. However, the court stated, Barnett did not address the "precise issue presented here" since that case did not involve reassignment under circumstances where the employer has a policy requiring that vacancies go to the best qualified applicant. Furthermore, the court added, the Supreme Court "noted that 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 disabilities automatically enjoy.'" Tr. at 5, App.6. Similarly, the court stated, the Seventh Circuit has "consistently drawn a distinction between requiring employers to eliminate obstacles to hiring disabled employees and requiring employers to hire disabled employee even in the face of superior applicants." Id. (citing Humiston- Keeling, 227 F.3d at 1028-29). Thus, the court concluded, it is not unlikely that Barnett neither implicitly nor explicitly overruled Humiston-Keeling, Indeed, the court added, a later decision described Barnett's holding as "'bolstering'" the Humiston-Keeling rule, and since then, the circuit "has continued to cite Humiston-Keeling with favor." Tr. at 5-6 (citing, e.g., Mays v. Principi, 301 F.3d 866, 872 (7th Cir. 2002)), App.6- 7; see also Tr. at 7 (concluding that EEOC's Guidance was not entitled to deference since Humiston-Keeling had found no ambiguity in the reassignment provision and had expressly rejected the EEOC's interpretation of the statute), App.8. STANDARD OF REVIEW This Court reviews a dismissal under Rule 12(b)(6) de novo. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A complaint "need only provide a 'short and plain statement of the claim showing that the pleader is entitled to relief,' sufficient to provide the defendant with 'fair notice' of the claim and its basis." Id. (citing Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court construes the complaint "in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [plaintiff's] favor." Tamayo, 526 F.3d at 1081 (citing Killingsworth v. HSBC Bank Nevada, 507 F.3d 614, 618 (7th Cir. 2007)). SUMMARY OF THE ARGUMENT The district court erred in holding that, by allowing disabled employees to compete for jobs pursuant to its Reasonable Accommodation "process," United Airlines satisfies its duty to reasonably accommodate employees who, because of a disability, need reassignment to a vacant position for which they are qualified. The EEOC's challenge to that practice states a claim under the ADA. The proper interpretation of a statutory term like "reassignment" typically turns on the ordinary meaning of the term as well as its legislative history and the structure and purpose of the statute as a whole. Under the ADA, an employer "discriminates" against a qualified individual with a disability if, absent undue hardship, the employer fails to provide a necessary "reasonable accommodation," defined to include "reassignment to a vacant position." As two en banc circuit courts have recognized, the ordinary meaning of the word "reassign" is to "appoint," not "permit to compete." An employee who gets a job after competing for it with other employees would not ordinarily be described as having been "reassigned." Moreover, the legislative history confirms that Congress intended the term to carry its ordinary meaning, which also accords with the structure and purpose of the statute. The Tenth and D.C. Circuits, along with the EEOC, have therefore concluded that employers like United must "reassign" - that is, appoint - disabled employees to vacant positions for which they are fully qualified when such employees, because of a disability, can no longer function effectively in their current positions. Anything else, as the en banc Tenth Circuit concluded, is "judicial gloss" unwarranted by the statutory language or its legislative history. United's Reasonable Accommodation "process," in contrast, is "competitive." At most, the company assists disabled employees in identifying vacancies for which they may compete; employees do not get the job if any other applicant is more qualified. Such a "process" does not constitute a "reassignment" under any ordinary sense of the word, nor is it one within the meaning of the ADA. United argues that its "process" is lawful in light of EEOC v. Humiston- Keeling, 227 F.3d 1024 (7th Cir. 2000). Humiston-Keeling holds that where an employer like United has a best-qualified selection policy, the employer need not make an exception to the policy for disabled employees needing reassignment but may instead simply require, as United does, that employees compete for positions. Any other result, the Court explained, would convert the ADA into a "mandatory preference act" and, the Court opined, the ADA does not require preferences for disabled employees. While United's reliance on Humiston-Keeling is understandable, this Court should revisit the ruling under Circuit Rule 40(e) for at least two reasons. First, it is based on policy, rather than the plain language and legislative history of the statute, both of which compel a contrary conclusion. Second, the dual related premises underlying the decision - that employers need not make reasonable accommodations that violate neutral rules or policies and that preferences are not required - were flatly rejected by the Supreme Court in US Airways v. Barnett, 535 U.S. 391 (2002). Barnett holds that the ADA contains no automatic exemption for disability-neutral rules or policies, so preferences in the form of reasonable accommodations may well be required even if the accommodation would violate a neutral policy. The Court also concluded that a request for "reassignment," as a reasonable accommodation, is presumptively "reasonable." The Court then carved out a narrow exception to that rule for seniority systems - the disability-neutral policy in that case - because (as this Court recognized in Eckles) such systems occupy a special status under the law and violation of such a system would likely also violate other employees' legally protected rights. United attempts to reconcile Barnett and Humiston-Keeling, arguing that under both, only accommodations that level the playing field for disabled employees are required; a "reassignment" does more and, so, normally need not be provided. Even if a "reassignment" within the meaning of the ADA went beyond enabling disabled employees to share the same employment opportunities as non- disabled employees - which it does not - any such interpretation of Barnett is belied by the dissent to that case. Justice Scalia would have held, consistent with Humiston-Keeling, that the ADA requires equal treatment in the sense that employers must eliminate barriers only if a disability prevents an employee from overcoming them. He acknowledged, however, that the majority did not accept his interpretation of the ADA. United also argued, and the district court agreed, that the company is off the hook in light of Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). Mays states that Barnett's recognition of an exception for seniority systems, actually "bolsters" the ruling in Humiston-Keeling. According to Mays, a garden-variety policy like United's best-qualified selection policy is indistinguishable from a seniority system. That is not correct for a number of reasons. Most importantly, policies like United's enjoy no special status under the law, and nor does such a policy give even the best qualified applicant an enforceable legal right to any specific job. Accordingly, we urge this Court to join the en banc D.C. and Tenth Circuits, as well as the EEOC, in holding that the ADA's reassignment provision means what it says: that, absent undue hardship, United may be required to "reassign" - that is, "appoint" - an employee with a disability to an equivalent vacant position for which he is qualified, without competing for the position with other employees, when disability prevents the employee from satisfactory performance of his current job. To the extent the panel concludes that adopting this position would require overruling circuit precedent, we recommend that the decision be circulated to the entire Court pursuant to Circuit Rule 40(e). ARGUMENT I. EEOC'S ALLEGATION THAT UNITED REQUIRES DISABLED EMPLOYEES WHO NEED REASSIGNMENT AS A REASONABLE ACCOMMODATION TO COMPETE FOR JOBS FOR WHICH THEY ARE FULLY QUALIFIED STATES A CLAIM UNDER THE ADA. The district court erred in granting United's motion to dismiss this enforcement action under the ADA. The employees and former employees covered by the suit all desired reassignment to vacant positions for which they were qualified when they could no longer function successfully in the positions they were holding at the time, but none of them obtained another job. It is undisputed that, "under the ADA, the employer's duty reasonably to accommodate a disabled employee includes reassignment of the employee to a vacant position for which [the employee] is qualified." See, e.g., Dalton v. Subaru Isuzu Auto., Inc., 141 F.3d 667, 677 (7th Cir. 1998). The disagreement here concerns the meaning of the word "reassignment" in the statute and whether employers like United, who profess to select the most qualified candidate for any position, can satisfy their ADA reasonable accommodation duty by simply allowing employees, who need "reassignment" in order to remain in the workplace, to compete with other applicants for vacant positions and to obtain a position only if no other applicant is better qualified. However, the plain meaning and legislative history of the "reassignment" provision, along with the statutory structure and purpose, confirm that "reassignment" means "reassignment," not just "permission to compete." That is, absent undue hardship, employers must reasonably accommodate employees with disabilities by reassigning - appointing - them to vacant positions for which they are qualified when disability precludes the employees from doing their current jobs. The "starting point" for the construction of a statute "is the language employed by Congress" and the "assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly v. Dollar Park & Fly, 469 U.S. 189, 194 (1985) (citing American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)); cf. Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) ("When terms used in a statute are undefined, we give them their ordinary meaning.") (citation omitted). "Absent a clearly expressed legislative intention to the contrary, the language must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 108 (1980); see also United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 11 (2008) (stating that the "strong presumption that the plain language of the statute expresses congressional intent is rebutted only in rare and exceptional circumstances") (citations omitted). The ADA prohibits an employer like United from discriminating against a "qualified individual with a disability" because of the individual's disability. 42 U.S.C. § 12112(a). An individual is "qualified" if he satisfies the requisite skill and other job-related requirements of the position he holds or desires and can do the essential functions of that position, with or without reasonable accommodation. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). The word "discriminate" is defined to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business." 42 U.S.C. § 12112(b)(5)(A). A requested accommodation is reasonable if it "seems reasonable on its face, i.e., ordinarily or in the run of cases." US Airways v. Barnett, 535 U.S. 391, 402-03 (2002) (citing cases). In this case, the accommodation the disabled employees each were seeking was reassignment to a vacant position for which he or she was qualified. The ADA includes "reassignment to a vacant position" in the non-exclusive list of possible "reasonable accommodations." 42 U.S.C. § 12111(9). Thus, a request for reassignment to a vacant position for which the employee is qualified is presumptively reasonable. See Barnett, 535 U.S. at 403. As noted above, this case turns in large part on the meaning of the word "reassignment." Because the word is not expressly defined in the statute, it should be given its "ordinary meaning." Asgrow Seed, 513 U.S. at 187. The ordinary meaning of the "core" word "assign" is "'to appoint [one] to a post or duty.'" Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1302, 1304 (D.C. Cir. 1998) (en banc) (citing Webster's Third New Int'l Dictionary) (alteration in Aka). A "reassignment" therefore involves an appointment or transfer to a new position and would logically entail "some active effort on the part of the employer." See Aka, 156 F.3d at 1304; Smith v. Midland Brake, 180 F.3d 1154, 1164-66 (10th Cir. 1999) (en banc) (citing Aka).<2> An employee who "on his own initiative" competes for and obtains a job elsewhere in the enterprise "would not be described as having been 'reassigned'" in any ordinary sense of that word. He may have changed jobs but he has done so under his own power rather than by being appointed to the new position. Aka, 156 F.3d at 1302, 1304; see also Smith, 180 F.3d at 1164, 1167-68 (noting that the "literal language" is "reassignment," not "consideration of a reassignment" or permission to compete for a job).<3> Although a "clearly expressed" contrary legislative intention may override the plain meaning of a statutory term (Consumer Products, 447 U.S. at 108), the legislative history of the reassignment provision confirms that the term "reassignment to a vacant position" was intended to carry its ordinary and plain meaning. Congress explained that the provision was aimed at enabling employees, who would otherwise lose their jobs due to disability, to remain in the workforce as productive workers as long as there is a vacancy for which they are qualified. Congress stated, Reasonable accommodation may also include reassignment to a vacant position. 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(II), 101st Cong., 2d Sess. 63 (1990) ("House Report") (adding that, if possible, employee should be accommodated in his or her present position and that "bumping" is not required), reprinted at 1990 U.S.C.C.A.N. 303, 345; accord S. Rep. No. 116, 101st Cong., 1st Sess. 31- 32 (1989) (adding that reassignment is "not available to applicants for employment"). Nothing suggests that Congress intended that employees needing a reassignment should be required to compete for vacant positions with other employees. In our view, therefore, the statutory language, coupled with the legislative history, conclusively resolves the meaning of "reassignment." See EEOC Guidance: Reasonable Accommodation & Undue Hardship Under the [ADA], No. 915.002 at 46 (Q/A 29) (Oct. 17, 2002) ("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.") ("Guidance"), App.34; also available at www.eeoc.gov/policy/docs/accommodation.html. To the extent the word, viewed in isolation, is open to competing interpretations, however, the statutory structure as well as its purpose may also be consulted. Kasten v. St. Gobain Perf. Plastics Corp., 131 S. Ct. 1325, 1330-31 (2011); Robinson v. Shell Oil Co., 519 U.S. 337, 345 (1997). Here, the structure of the statute strongly suggests that "reassignment" means something more than allowing disabled employees to obtain a position through competition with other employees. Importantly, "reassignment" is a form of "reasonable accommodation," but awarding a disabled employee a job for which he is the best qualified would not normally be considered an accommodation at all but simply non- discriminatory treatment. Section 102(a) of the ADA, 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. Thus, denying a disabled employee a position for which he or she is the best qualified would ordinarily constitute unlawful disparate treatment, a violation of § 102(a). In light of this overlap, both Smith and Aka reason that including reassignment in the duty to accommodate would be redundant if it required only non- discriminatory consideration in competition with other employees. Smith, 180 F.3d at 1164-65; Aka, 156 F.3d at 1304. Any such construction would be contrary to the Supreme Court's "general reluctance to treat statutory terms as surplusage" and, so, should be avoided. See, e.g., Board of T'ees of Leland Stanford Jr. Univ. v. Roche Molecular Sys., 131 S. Ct. 2188, 2196 (2011) (citation omitted). In EEOC v. Humiston-Keeling, 227 F.3d at 1027, this Court denied that the "reassignment" provision would be redundant if it meant that disabled employees must be given another job only when no other candidate is better qualified. The Court reasoned that including "reassignment" on the list of possible "reasonable accommodations" would still have meaning under that interpretation since it would remove any argument that an employer need only provide reasonable accommodations that enable the employee to do the essential functions in the job for which he was hired, by making clear that the employer must also consider offering him another job. Id. We agree that the provision serves that purpose, but so does § 101(8): an individual is "qualified" if "with or without reasonable accommodation, [he] can perform the essential functions of the employment position [he] holds or desires." 42 U.S.C. § 12111(8). The phrase "or desires" implies that the employer's duty extends beyond the employee's actual position. See Smith, 180 F.3d at 1161; Aka, 156 F.3d at 1300-01. Furthermore, it does not explain why, if Congress intended reassignment to mean merely considering an application for transfer, it chose the term "reassignment to a vacant position" instead of "considering the employee (or allowing him to compete) for other positions." As for the statutory "purpose," the ADA was designed inter alia to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" as well as "clear, strong, consistent, enforceable standards addressing discrimination" against such individuals. 42 U.S.C. 12101(b). In passing the legislation, Congress explained that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency" for such individuals. 42 U.S.C. § 12101(a)(8). "Thus," the Tenth Circuit explained, "the ADA has multiple objectives and by defining discrimination as it did to include the failure to offer reasonable accommodations, one of Congress' objectives was to facilitate economic independence for otherwise qualified disabled individuals." 180 F.3d at 1168 (citing Cleveland v. Policy Mgt Sys. Corp., 526 U.S. 795, 801 (1999) ("The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity.")). By enabling employees to remain in the workforce doing work for which they are qualified when they would otherwise be forced out because of disability, the reassignment provision, given its ordinary meaning, furthers these purposes and assists in achieving these goals. Consistent with the plain text, legislative history, structure, and purpose of the statute, therefore, the Commission, joined by the en banc Tenth and D.C. Circuits, takes the position that employers like United must "reassign" - that is, "appoint" - disabled employees to vacant positions for which they are qualified when such employees, because of disability, can no longer do the essential functions of their current positions. Guidance at Q/A 29, App.46; Smith, 180 F.3d at 1164-66; Aka, 156 F.3d at 1302, 1304. "Anything else, such as requiring the reassigned employee to be the best qualified employee for the vacant job, is judicial gloss unwarranted by the statutory language or its legislative history." Smith, 180 F.3d at 1169.<4> Applying that standard to this case, it is clear that United's Reasonable Accommodation Guidelines do not provide for "reassignment" of employees who, because of a disability, can no longer continue doing their present jobs. Under the Guidelines, employees receive a "Job Search Packet," the chance "to submit an unlimited number of transfer applications," and "an interview (when the selection process so requires) for all positions for which the employee is minimally qualified." App.16. In other words, they receive permission to compete for other positions but they do not get the job. Instead, they are given "priority consideration for placement" if no other applicant is better qualified. App.18. This "process" does not constitute a "reassignment," and it is semantics to suggest otherwise. In its defense, United points to the Guidelines which reflect its policy of selecting the most qualified candidate for any position. The Supreme Court has held that, because the ADA contains no "automatic exemption" for rules and policies like United's Guidelines or best-qualified selection policy, reassignments in violation of such a policy may well be reasonable. See US Airways v. Barnett, 535 U.S. at 397-98, 402-03; see also Guidance at 37-38 (Q/A 24) (noting that employer may have to modify its policies, citing, e.g., 42 U.S.C. § 12111(9)(B), which defines "reasonable accommodation" to include "appropriate adjustments or modifications of ... policies"), App.25-26. United argues, however, that its Guidelines are lawful in light of Humiston- Keeling, 227 F.3d at 1027-28, and its progeny. In Humiston-Keeling, the employer defended its repeated refusal to reassign a warehouse employee to a clerical position for which she was qualified, though not the best qualified, citing its "bona fide policy, consistently implemented, of giving [vacant jobs] to the best applicant rather than the first qualified one." 227 F.3d at 1026-27. This Court agreed, holding that "an employer is not required 'to reassign a disabled employee to a position when such a transfer would violate a legitimate non-discriminatory policy of the employer,'" including a best-qualified selection policy. Id. at 1028 (citing, e.g., Dalton, 141 F.3d at 679). The ADA, the Court explained, "is not a mandatory preference act." 227 F.3d at 1028. The Court reasoned that an employer must provide reasonable accommodations that "clear away obstacles," such as lack of wheelchair access, that limit a disabled employee's ability to compete equally with other employees. Requiring employers to select "inferior (albeit minimally qualified) applicants" merely because they are disabled, however, "would convert a non-discrimination statute into a mandatory preference statute, a result which would be both inconsistent with the non-discriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees." Id. Instead, the Court concluded, the reassignment provision requires only that employers "consider whether it is possible to assign the disabled worker to another position in which his or her disability will not be a hindrance." If such reassignment is "feasible," and there are "no superior applicants," the ADA "mandates reassignment." 227 F.3d at 1027-28. While United's reliance on Humiston-Keeling is understandable, the Court should revisit the case under Circuit Rule 40(e). There are two material flaws in its reasoning and result. First, unlike EEOC's Guidance or the Tenth and D.C. Circuit decisions, Humiston-Keeling nowhere takes account of the plain language and legislative history of the reassignment provision. Indeed, the case cites no statutory authority for its statutory construction; the ruling is based almost entirely on policy. This Court has recognized, however, that "[l]ooking beyond the express language of a statute is unnecessary unless the statutory language is ambiguous or where a literal interpretation would lead to an absurd result or thwart the purpose of the overall statutory scheme." United States v. On Leong Chinese Merchants Ass'n Bldg, 918 F.2d 1289, 1297 (7th Cir. 1990). None of those exceptions is applicable here. As noted above, the statutory language is clear; if it were ambiguous, the legislative history as well as the statutory structure and purpose would supply the requisite clarity. And while the Court may not agree with the literal meaning of the provision, the result - that, where possible, a disabled employee should remain in the workplace in a position for which he satisfies all of the qualification standards that the employer itself has set - furthers rather than thwarts the overall statutory scheme. Humiston-Keeling posits hypotheticals where better qualified employees - an older black woman and a more severely disabled employee able to do his current job - who did not need another job as a reasonable accommodation, would lose out to a younger white male employee whose disability rendered him incapable of staying where he was; the Court described these results as "odd and counterintuitive." 227 F.3d at 1027. But they in fact accord with the statutory purpose. Congress clearly intended that otherwise qualified disabled employees should not be forced out of the workforce simply because they can no longer do what they were hired to do if there are other jobs available for which they are fully qualified. Requiring reassignment, where possible and absent undue hardship, ensures that such employees, like other employees, remain productive workers, despite their disabilities. The plain language of the statute should, therefore, control, and it was error for the Court to brush it aside. Second, the continued viability of Humiston-Keeling was, at the very least, placed in serious doubt by the Supreme Court's subsequent decision in Barnett, 535 U.S. 391. Humiston-Keeling is premised on the assumption that the ADA is "not a mandatory preference act" but only a "non-discrimination statute." The case reasons that, insofar as a reassignment would violate a disability-neutral workplace rule or policy, such as a best-qualified selection practice, it would require the employer to grant preferential treatment, based on disability. And, Humiston- Keeling holds, the ADA does not require the employer to grant an accommodation request that, in violating a rule or policy, would provide a preference. See 227 F.3d at 1027-29. Barnett squarely rejects that rationale and construction of the ADA. The issue in Barnett was whether, as a reasonable accommodation, a disabled junior employee should be permitted to remain in a physically undemanding job even though two more senior employees wanted to bid on the position and all three employees were covered by the employer's seniority system. Relying heavily on Humiston-Keeling (see Brief for Petitioner at "passim," US Airways v. Barnett, 535 U.S. 1516 (2002) (No. 00-1250), 2001 WL 747864, passim (filed July 2, 2001)), the employer argued that the ADA "seeks only 'equal' treatment for those with disabilities" and "does not . . . require an employer to grant preferential treatment." Thus, the employer argued, it was not required to grant a requested accommodation that would violate a disability-neutral rule, specifically, there, the employer's seniority system. That, the employer concluded, would give the disabled employee a benefit that other workers could not receive, and the Act "does not require an employer to grant preferential treatment." 535 U.S. at 397. The Supreme Court flatly disagreed. The argument, the Court explained, "fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal." 535 U.S. at 397. The Court reasoned that 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 disabilities automatically enjoy. By definition any special 'accommodation' requires the employer to treat an employee with a disability differently, i.e., preferentially." Id. "And," the Court added, "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" such as those listed in § 12111(9)(B) - including reassignment. Yet, the Court continued, while providing such examples, Congress "said nothing suggesting that the presence of such neutral rules would create an automatic exception." Id. at 397. The "nature of the 'reasonable accommodation' requirement, the statutory examples, and the Act's silence about the exempting effect of neutral rules" convinced the Court "that the Act does not create any such automatic exemption." Id. The mere fact that an accommodation "would provide a 'preference' - in the sense that it would permit the worker with a disability to violate a rule that others must obey - cannot in and of itself automatically show that the accommodation is not 'reasonable.'" Id. (original emphasis). In its brief below, United argued that Barnett does not undermine Humiston- Keeling because both cases can be read to suggest that employers need only provide accommodations like the "additional benefits or services" provided in United's Guidelines that allow disabled employees to compete in the workplace on an equal basis with non-disabled employees - to "obtain the same workplace opportunities that those without disabilities automatically enjoy." R.55 (Reply at 3) (citing Humiston-Keeling, 227 F.3d at 1028-29; Barnett, 535 U.S. at 397). This reading of Barnett should be rejected. First, assuming that a disabled employee is entitled only to the same workplace opportunities as other employees enjoy, that is what he gets under our reading of the "reassignment" provision. If an employee needing reassignment is not appointed to a position for which he is qualified, he will be terminated or, at a minimum, compelled to go on leave, solely because of disability. Other applicants, by contrast, have the option of remaining where they are, in their current jobs, if they are not selected for a particular position. Thus, only if he is transferred to an equivalent job he is able to do can the disabled employee enjoy the same workplace opportunities as employees without disabilities enjoy - the opportunity to continue working as a productive member of the workforce. Furthermore, any argument that Barnett would concur with United's distorted reading of the reassignment provision is belied by Justice Scalia's dissent in that case. See Barnett, 535 U.S. at 413-20 (Scalia, J., dissenting). Justice Scalia would have held, consistent with Humiston-Keeling, that the ADA requires employers only to "modify or remove (with reason) policies and practices that burden a disabled person 'because of [his] disability.' In other words," Justice Scalia explained, "the ADA eliminates workplace barriers only if a disability prevents an employee from overcoming them - those barriers that would not be barriers but for the employee's disability. . . . But they do not include rules and practices that bear no more heavily upon the disabled employee than upon others - even though an exemption from such a rule or practice might in a sense 'make up for' the employee's disability." Barnett, 535 U.S. at 413 (Scalia, J., dissenting) (original emphasis). Under his approach - which closely resembles Humiston- Keeling - an employer could not fire an employee who, because of a disability, could no longer do his job "without first seeking to place him in a vacant job where the disability will not affect performance." But the employer would not be barred from giving the job to a more qualified non-disabled candidate if best-qualified selection is the workplace rule. Id. at 415-16 (citing inter alia Humiston-Keeling, 277 F.3d at 1028-29); compare 227 F.3d at 1027 (stating similar rule). Justice Scalia acknowledged, however, that his position did not prevail at the Court. Id. at 417. Read in conjunction with the main decision, therefore, Justice Scalia's dissent removes any doubt that Barnett can fairly be read either to require only providing "additional benefits and services" that enable employees to compete on an equal basis, as United argues, or giving the employee another position only if there are no more qualified candidates, as Humiston-Keeling holds. United's policy is simply not a defense excusing any failure to "reassign" within the meaning of the ADA. II. AN EMPLOYEE'S REQUEST FOR REASSIGNMENT TO A JOB FOR WHICH HE IS QUALIFIED IS PRESUMPTIVELY REASONABLE EVEN IF IT CONFLICTS WITH UNITED'S REASONABLE ACCOMMODATION GUIDELINES. Notwithstanding Barnett, United argues, and the district court agreed (Tr. at 5-6), that the company is off the hook because shortly after Barnett was decided, this Court reaffirmed the holding in Humiston-Keeling in Mays v. Principi, 301 F.3d at 872.<5> Without discussion, Mays concludes that Barnett "bolster[s]" the holding in Humiston-Keeling because it recognizes that an employer need not reassign an employee in violation of the employer's seniority system. 301 F.3d at 872; see also Huber v. Wal-Mart Stores, 486 F.3d 480, 483-84 (8th Cir.) (adopting Humiston-Keeling, adding it is "bolstered" by Barnett), cert. granted in part, 552 U.S. 1074 (2007), cert. dismissed on stipulation of the parties, 552 U.S. 1136 (2008). This misreads Barnett. After rejecting the employer's preference argument, the Barnett Court went on to explain the parties' respective burdens where, as here and in Barnett, the requested accommodation might violate an employer's disability-neutral rule or policy. 535 U.S. at 401-02. According to Barnett, a plaintiff bears the initial burden of showing that the accommodation he is requesting "seems reasonable on its face, i.e., ordinarily or in the run of cases." 535 U.S. at 402. Barnett also presumed that normally, a request for reassignment - an accommodation Congress expressly listed in the statute - "would be reasonable within the meaning of the statute." See id. at 402-03 (quoting reassignment provision). At that point, the burden shifts to the employer to show "special (typically case- specific) circumstances that demonstrate undue hardship in the particular circumstances." Id.<6> Applying that standard, the Court concluded that, although the requested accommodation - assignment to the mail room - normally would be reasonable, it would most likely be unreasonable in that case for one reason: "the assignment would violate the rules of a seniority system." 535 U.S. at 403. The Court concluded that it would not ordinarily be reasonable in the run of cases for an assignment to "trump the rules of a seniority system" because, the Court explained, seniority systems occupy a special place in American labor law, governing as they do the relationship between labor and management. 535 U.S. at 403-04. The Court noted that seniority systems provide benefits such as "job security" - especially prized in times of layoffs - as well as an "opportunity for steady and predictable advancement based on objective standards." These benefits encourage employees to invest in the employing company, "accepting 'less than their value to the firm early in their careers' in return for greater benefits in later years." Id. at 404 (citations omitted). More importantly, the Court stated, "to require the typical employer to show more than the existence of a seniority system might well undermine the employees' expectations of consistent, uniform treatment - expectations upon which the seniority system's benefits depend." Id. at 404. The Court reasoned that such a rule "would substitute a complex case-specific 'accommodation' decision made by management" - with "its inevitable discretionary elements" - "for the more uniform, impersonal operation of seniority rules." Id. at 404-05. In light of "the relevant seniority system advantages, and related difficulties that result from violation of seniority rules," the Court concluded, "it will ordinarily be unreasonable" for an assignment in violation of seniority rules to prevail. Id. at 405. Mays takes the position that a best-qualified selection policy is essentially indistinguishable from a seniority system. See 301 F.3d at 872. The plaintiff in Mays, a nurse whose back injury the Court assumed was disabling, sought reassignment to an administrative nursing position for which the Court assumed that she was qualified, but her employer gave the job to a better qualified applicant and placed her in a less lucrative clerical position. Id. at 869-70, 872. In rejecting her disability claim, the Mays Court described Barnett as holding that "an employer is not required to give a disabled employee superseniority to enable him to retain his job when a more senior employee invokes an entitlement to it conferred by the employer's seniority system." Id. (citing Barnett, 122 S. Ct. 1516, 1519 [535 U.S. at 394]). The Court then stated: "If for 'more senior" we read 'better qualified,' for 'seniority system' we read 'the employer's normal method of filling vacancies,' and for 'superseniority' we read 'a break,' [Barnett] becomes our case." Id.<7> Based on this analysis, the Court concluded that Barnett "bolstered" Humiston-Keeling's conclusion that the employer did not violate the ADA by giving a job to a better qualified applicant, pursuant to its best-qualified selection rule, instead of to a disabled employee who needed the reassignment as a reasonable accommodation. See Mays, 301 F.3d at 872. That is simply wrong. Barnett's discussion of both the general rule - that a request for "reassignment" is presumptively reasonable even in the face of an employer's conflicting disability-neutral policy - and the narrow exception carved out for seniority systems makes very clear that the special legal status reserved for seniority systems does not extend to garden-variety policies like United's. See generally 535 U.S. at 397-98 (no automatic exemption for the kind of disability-neutral rules which most employers have but which are "most needed to reasonably accommodate a worker with a disability"), 402-03 (request for reassignment ordinarily reasonable), 403-05 (due to special role in American law, seniority systems are usually exempt absent special circumstances). See id. at 403- 04.<8> United's Reasonable Accommodation Guidelines, like other best-qualified selection policies, have no established special legal status and share few, if any, of the other salient features of a seniority system. The most obvious difference between such a policy and a seniority system is the fact that employees are typically entitled to particular positions under a seniority system. As this Court explained in Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996), under a seniority system, "few positions are ever truly 'vacant' in the sense of being unfilled. Rather, positions held by less senior employees are open to be bid upon and acquired by more senior employees, provided the bidding employee can meet the qualifications for the desired job." Id. at 1047 (also noting that "seniority rights have a pre-existing special status in the law"). Typically, to the extent an employee with the most seniority is denied a position for which he is qualified (even if not the best qualified), he can grieve the action and enforce his right to the position. Under such circumstances, "reassigning" a disabled employee to a position for which he lacks the requisite seniority would be tantamount to "bumping," something Congress specified is not required. See, e.g., House Report at 63, 1990 U.S.C.C.A.N. at 345. Reassignment in the face of a best-qualified selection practice is not comparable. Even if an employee were absolutely certain he was the best qualified candidate for a particular position, he would not be "entitled" to the position based on his employer's professed policy. If the employer decided, for example, to select his daughter, or an outside hire, or an older long-time employee whose job was being eliminated, the "best qualified" employee would ordinarily have no legal recourse. The same would be true if the employer assigned the job to an employee who, because of a disability, could no longer function effectively in his current position. There is a secondary practical distinction between an exception for seniority systems and one for a best-qualified selection practice. Barnett suggests that, absent some compelling exception like seniority, a request for reassignment should normally be deemed "reasonable on its face, i.e., ordinarily or in the run of cases." 535 U.S. at 402-03. Only a small percentage of workplaces are governed by seniority systems, and that number has been declining. A seniority system exception to the general rule is therefore relatively narrow. In contrast, employers - at least those without a seniority system - routinely profess to select the best qualified candidate for any position. An exception for such a practice would therefore effectively swallow the rule. It is unlikely that Congress would have gone to the trouble of including "reassignment" among the statutory list of accommodations and of explaining the reasons for its inclusion if it intended to enable employers so easily to avoid providing the accommodation. In short, as four Eighth Circuit judges concluded, this Court's present caselaw "renders a statutory provision in the ADA superfluous, overlooks EEOC's guidance [as well as caselaw from other circuits], and is contrary to the Supreme Court's admonition in [Barnett] that preferences are a valid means to achieve the statutory goals of the ADA." See Huber v. Wal-Mart Stores, 493 F.3d 1002 (8th Cir. 2007) (Murphy, Bye, Melloy, and Smith, Js, dissenting from denial of rehearing en banc in Huber). The Court should therefore find that United's Reasonable Accommodation Guidelines do not exempt the company from "reassigning" disabled employees within the meaning of the ADA. To the contrary, notwithstanding the company's policy, unless the accommodation would cause the company undue hardship, United must "reassign" - that is, appoint - employees to an equivalent vacant position for which they are fully qualified, without requiring competition with other applicants, when disability prevents the employees from satisfactory performance of their current jobs. To the extent the panel concludes that adopting this holding would require overruling circuit precedent, we urge that the panel's decision be circulated for review among the other active members of the Court under Circuit Rule 40(e). CONCLUSION For the foregoing reasons, the judgment below should be reversed and the case remanded to the district court for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel /s/ Barbara L. Sloan_________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4721 barbara.sloan@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8493 words, from the Statement of Jurisdiction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2003 with Times New Roman 14-point font. _/s/ Barbara L. Sloan________ Attorney for Equal Employment Opportunity Commission Dated: July 19, 2011 STATEMENT OF RELATED CASES The Commission is not aware of any related cases. /s/ Barbara L. Sloan_______ Barbara L. Sloan STATEMENT REGARDING APPENDIX MATERIALS I affirmatively state that all materials required by Circuit Rule 30(a) and (b) are included in the attached appendix. /s/ Barbara L. Sloan_______ Attorney for Equal Employment Opportunity Commission Dated: July 19, 2011 APPENDIX Final Judgment . . . . . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .1 February 3, 2011, Oral Ruling. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . . 2 United Airlines Reasonable Accommodation Process Guidelines For Managers. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . . 9 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (excerpts). . .. . .. . .. . .. . .. . 22 CERTIFICATE OF SERVICE I certify that I filed the foregoing opening brief and appendix of the Equal Employment Opportunity Commission with the Clerk of the Court this 19th day of July, 2011 by uploading an electronic version of the brief and appendix via this Court's Case Management/ Electronic Case Filing System (CM/ECF). The following participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system. Charis A. Runnels Nina G. Stillman MORGAN LEWIS & BOCKIUS LLP 77 West Wacker Drive, 5th Floor Chicago, IL 60601 /s/ Barbara L. Sloan____________ Barbara L. Sloan ********************************************************************************** <> <1> The Guidelines do not define the term "priority consideration for placement," and there is nothing in the record explaining how United treats transfer requests from non-disabled employees. In moving to dismiss, however, United argued that EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), controls this case. The rule in Humiston-Keeling is premised on the employer's having a policy of selecting the most qualified candidate for all positions. For purposes of this motion and appeal, therefore, we assume that United also has a best-qualified selection policy and that the Guidelines reflect that policy. Otherwise, Humiston- Keeling would not apply. <2> Aka involved a disabled orderly with twenty years seniority and a Master's degree in business and public administration, who, on the advice of defendant's HR department, applied unsuccessfully for a clerical position; the employer contended that the successful candidate was better qualified. See 156 F.3d at 1286-87. The en banc D.C. Circuit reversed the summary judgment in favor of the employer. <3> The plaintiff in Smith was denied reassignment outside his department when he developed severe chronic reactions to the chemicals used in his department. 180 F.3d at 1160. The en banc Tenth Circuit reversed the summary judgment in favor of the employer. <4> There are, however, limits on the duty to reassign. It extends only to current employees, not applicants, and only to existing equivalent positions that are or will soon become vacant; "bumping" is not required, and the employer need not promote the individual or create a job for him. See, e.g., Gile v. United Airlines, 95 F.3d 492, 499 (7th Cir. 1996). Moreover, reassignment, like any other reasonable accommodation, should not impose an undue hardship on the employer. Id. Furthermore, because an employee is not entitled to his preferred accommodation, although the employer should take the employee's interests into account, in the end, the employer may place the employee into any equivalent position for which he is qualified. Id. <5> The district court also cited two other post-Barnett Seventh Circuit cases, but neither mentions Barnett and both are distinguishable. At least arguably, the plaintiff bus driver in King v. City of Madison, 550 F.3d 598 (7th Cir. 2008), was seeking reassignment to jobs to which she was not entitled under the applicable collective bargaining agreement. The plaintiff letter carrier in Craig v. Potter, 90 Fed. App'x 160 (7th Cir. Feb. 20, 2004) (unpublished), was seeking a promotion - permanent assignment to the position of postmaster; "[r]eassignment does not include giving an employee a promotion." Guidance at 42, App.30. <6> In explaining its decision not to require reassignment in the face of an employer's best-qualified selection practice, Humiston-Keeling reasoned that reassignment would constitute "an unreasonable imposition on employers." 227 F.3d at 1028. As Barnett notes (535 U.S. at 403), however, the ADA gives employers a statutory defense in such cases: the employer must show that "the accommodation would impose an undue hardship on the operation of the business." 42 U.S.C. § 12112(b)(5)(A). Courts need not create another. <7> The sentence would then read, "an employer is not required to give a disabled employee a break to enable him to retain his job when a better qualified employee invokes an entitlement to it conferred by the employer's normal method of filling vacancies." <8> Because Mays was argued only one month after Barnett came down, the Court may not have had the benefit of any written analysis from the parties regarding the impact of the decision. Significantly, Mays does not mention Barnett's holdings that the ADA requires "preferences" for disabled employees and that reassignments even in violation of a disability-neutral rule are reasonable ordinarily or in the run of cases. Those holdings, however, are inconsistent with Humiston-Keeling.