David Willis v. Pacific Maritime Association 97-16778 & 16779 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______________________ Nos. 97-16778 & 16779 ______________________ DAVID WILLIS, Plaintiff-Appellant, v. PACIFIC MARITIME ASSOCIATION, et al., Defendants-Appellees. PAUL GOMEZ, Plaintiff-Appellant, v. PACIFIC MARITIME ASSOCIATION, et al., Defendants-Appellees. _____________________________________________________ On Appeal from the United States District Court for the Northern District of California _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF APPELLANTS' PETITION FOR REHEARING EN BANC _____________________________________________________ GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN PAUL D. RAMSHAW Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 STATEMENT OF COUNSEL 1. I express a belief, based on a reasoned and studied professional judgment, that the panel decision is inconsistent with the following en banc decision of the United States Court of Appeals for the Ninth Circuit, and that consideration by the full Court is necessary to secure and maintain uniformity of decisions in this Court: Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000). 2. I express a belief, based on a reasoned and studied professional judgment, that this appeal involves the following question of exceptional importance: Whether the panel erred in holding that, as a matter of law, an employer or union need never reasonably accommodate a disabled employee where the proposed accommodation would conflict with a collectively-bargained seniority provision, regardless of whether the employer and/or union could otherwise establish that the proposed accommodation would result in undue hardship. Barbara L. Sloan Attorney Equal Employment Opportunity Commission TABLE OF CONTENTS Pages STATEMENT OF COUNSEL i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 1 BACKGROUND 1 ARGUMENT A CONFLICT BETWEEN A PROPOSED ACCOMMODATION AND A COLLECTIVELY BARGAINED SENIORITY PROVISION MIGHT CAUSE UNDUE HARDSHIP, BUT IT DOES NOT MAKE THE PROPOSED ACCOMMODATION "PER SE UNREASONABLE." 4 CONCLUSION 15 CERTIFICATE OF COMPLIANCE 16 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Air Line Pilots Association v. Northwest Airlines, 199 F.3d 477 (D.C. Cir. 2000) 13 Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc) 4 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) (en banc) passim Benson v. Northwest Airlines, 62 F.3d 1108, 1114 (8th Cir. 1995) 12 Carter v. Tisch, 822 F.2d 465 (4th Cir. 1987) 9 Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998) 12 Davis v. Florida Power & Light Co., 205 F.3d 1301 (11th Cir. 2000) 11 Eckles v. Conrail, 94 F.3d 1041 (7th Cir. 1996) 12 Feliciano v. Rhode Island, 160 F.3d 780, 787 (1st Cir. 1998) 11 Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997) 12 Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997) 9 Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997) 12, 14 Milton v. Scrivner, Inc., 58 F.3d 382 (10th Cir. 1995) 12 Tooley v. Martin Marietta Corp., 648 F.2d 1239 (9th Cir. 1981) 8 Trans World Airways v. Hardison, 432 U.S. 63 (1977) 9 STATUTES and REGULATIONS 29 U.S.C. § 623(f)(2) 10 Rehabilitation Act of 1973, 29 U.S.C. §§ 791-794 9 42 U.S.C. § 2000e-2(h) 10 Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. passim 42 U.S.C. § 12111(2) 10 42 U.S.C. § 12111(9) 5, 9 42 U.S.C. § 12111(10) 5 42 U.S.C. § 12112(5)(A) 5 29 C.F.R. § 1614.203(g) 10 29 C.F.R. App. § 1630.2(p) 5 34 C.F.R. § 104.2 10 34 C.F.R. § 104.11 10 34 C.F.R. § 104.12(b) 9 45 C.F.R. § 84.2 10 45 C.F.R. § 84.11 10 45 C.F.R. § 84.12(b) 9 LEGISLATIVE HISTORY AND OTHER AUTHORITY H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 267 8, 11, 13 S. Rep. No. 116, 101st Cong., 1st Sess (1989) 11, 13 EEOC: Reasonable Accommodation & Undue Hardship Under The ADA, 8 FEP Manual (BNA) 405:7601 7STATEMENT OF INTEREST The Equal Employment Opportunity Commission interprets and enforces Title I of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal employment discrimination laws. This case presents an issue of exceptional importance concerning the ADA duty to provide reasonable accommodation. The panel held that any proposed accommodation that conflicts with any aspect of a collectively-bargained seniority system is per se unreasonable. That ruling is inconsistent with this Court's recent decision in Barnett v. U.S. Air, 228 F.3d 1105 (9th Cir. 2000) (en banc), as well as with the language, structure and legislative history of the ADA. We therefore offer our views in support of plaintiffs' petition for rehearing en banc. STATEMENT OF THE ISSUE Whether a proposed accommodation that conflicts with a collective-bargained seniority system is per se unreasonable. BACKGROUND The International Longshore & Warehouse Union ("ILWU") and the Pacific Maritime Association ("PMA"), an association of employers, maintain a hiring hall through which dock workers obtain referrals for job assignments on a day-to-day basis. Paul Willis became a member of the ILWU in 1967. In 1986, after sustaining various injuries, he asked to be placed on the waiting list for the Dock Preference Board ("DPB"). Under the collective bargaining agreement between the ILWU and the PMA, DPB members had first priority for light-duty assignments. Employees generally moved off the waiting list onto the DPB, based on seniority. Because the list was capped at 30 members, however, there were more people on the waiting list than spots on the DPB. Despite repeated requests, Willis, who had nearly 20 years seniority, did not obtain placement on the DPB before he retired in 1996. He asserts that others with lower seniority were placed on the DPB ahead of him. PMA explained the presence of less senior members on the DPB in two ways: once an individual was placed on the DPB, he remained there even if more senior workers were added to the waiting list; and, in 1995, defendants dissolved a number of "gangs" of dock workers and, by agreement, some "gang members" were placed on the DPB ahead of more senior workers on the waiting list. Paul Gomez became a union member in 1988. After injury and illness, Gomez sought placement on the DPB and/or a transfer to Local 34, for maritime clerks. Membership in Local 34 was limited to employees with 5 or more years of seniority. Gomez' requests were denied based on his lack of seniority. Plaintiffs brought accommodation claims under the ADA and state law. The district court dismissed the suits, stating that "[r]easonable accommodation under the ADA does not require employers to reassign employees in a way that would violate the seniority rights of other employees under a bona fide seniority system." ER 1524. Since more senior longshoremen were available, the court concluded, no accommodation was required. A panel of this Court affirmed. On July 6, 1999, however, the panel deferred issuance of the mandate pending the outcome of the rehearing petition in Barnett v. U.S. Air, 179 F.3d 1251 (9th Cir. 1999). After the en banc decision in Barnett was issued, the panel issued a new decision once again affirming dismissal of these suits. Characterizing the proposed accommodation as a request to "transfer to a position involving permanent light duty work," slip op. at 333, the panel concluded that such accommodation was "per se unreasonable" because it would "directly conflict" with "the collectively bargained seniority rights of other employees." See id. at 338. The panel acknowledged that Barnett "declined to adopt a per se rule where a seniority system was unilaterally imposed by an employer," and held instead that defendants must prove that a proposed accommodation that conflicts with a seniority system would result in undue hardship. See slip op. at 343. Rather than follow Barnett, however, the panel announced a special rule for collectively bargained seniority provisions. The panel noted that other circuits have reached a similar result, by analogy to Rehabilitation Act cases. Id. at 342-44. The panel also relied on a "plain reading" of the ADA which, as it acknowledged, says nothing about seniority systems. Id. at 343. Finally, the panel asserted that its per se rule was required because any other rule would be unduly burdensome for employers. Id. at 345. The panel added that employers and unions are "certainly . . . free to bargain for specific language that creates an exception to the seniority system to accommodate employees with disabilities," but that no liability would result from their failure to do so. Id. at 346. ARGUMENT A CONFLICT BETWEEN A PROPOSED ACCOMMODATION AND A COLLECTIVELY BARGAINED SENIORITY PROVISION MIGHT CAUSE UNDUE HARDSHIP, BUT IT DOES NOT MAKE THE PROPOSED ACCOMMODATION "PER SE UNREASONABLE." The panel erred in holding that the proposed accommodations in this case are "per se unreasonable" simply because they conflict with a collectively bargained seniority system. In Barnett, this Court flatly rejected a per se rule, holding that the ADA requires defendants to provide accommodations unless they would cause undue hardship. The panel here marginalized Barnett, limiting it to cases where the seniority provision is employer-imposed. On the contrary, while the fact that a seniority system is collectively bargained might affect the result in a particular case, the approach should be the same. Congress made clear that covered entities, both unions and employers, must reasonably accommodate disabled employees unless such accommodation would result in undue hardship. By effectively eliminating covered entities' obligation to prove undue hardship, the panel ignores Congress' intent and undermines the ADA's purpose of ensuring disabled employees full participation in the workplace. The ADA imposes on covered entities, including employers and unions (see 42 U.S.C. § 12111(2)), the duty to provide reasonable accommodation, short of undue hardship, to otherwise qualified disabled employees. The statute expressly provides that reasonable accommodation may include modification of existing policies and reassignment to a vacant position. 42 U.S.C. § 12111(9). The statute specifies that a covered entity violates the ADA by "not making reasonable accommodations to the known physical . . . limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship." 42 U.S.C. § 12112(5)(A). Undue hardship means "an action requiring significant difficulty or expense," and may encompass the accommodation's impact on other employees as well as on the business as a whole. 42 U.S.C. § 12111(10); 29 C.F.R. App. § 1630.2(p). There is no explicit exception for seniority systems of any kind. In its en banc decision in Barnett, this Court considered whether an employer could be required to reassign a plaintiff to a position for which he lacked the requisite seniority under the employer-created seniority system. After carefully reviewing the statutory language and framework, as well as the legislative history and applicable EEOC guidance, the Court concluded that such accommodation was not unreasonable as a matter of law. The Court noted that "in assessing reasonable accommodations, the primary focus is on whether the accommodation effectively allows a disabled employee to successfully perform the job." Barnett, 228 F.3d at 1113 n.4; see also id. at 1122 (Gould, J., concurring) ("An accommodation is reasonable if it will work for the employee."). In contrast, the impact that a proposed accommodation would have on the employer should properly be considered only in assessing undue hardship. See id. at 1113. The Court further noted that the statute "does not allow employers to avoid reasonable accommodation absent a showing of undue hardship." Id. The Court rejected an argument that it would be per se unreasonable to require an employer to modify its seniority policy to accommodate the plaintiff, reasoning that a per se bar "sharply limit[s] the range of available accommodations without any required showing of an undue hardship on the employer." 228 F.3d at 1120. It also "conflicts with the basic premise of the ADA, which grounds accommodation in the individualized needs of the disabled employee and the specific burdens which such accommodation places on an employer." Id. at 1120-21. The Court therefore held that conflicts between proposed accommodations and employer-imposed seniority systems should be treated like any other claims of undue hardship. The existence of the conflict would be relevant, but not determinative of the issue. See, e.g., 228 F.3d at 1119-21 (citing statute, EEOC guidance and ADA legislative history). Although this case also involves a conflict between proposed accommodations and a seniority system, the panel ignored Barnett's direction to consider whether providing these proposed accommodations would result in undue hardship under the circumstances of this case. Instead, the panel opted for the per se approach rejected in Barnett, holding that the proposed accommodations were per se unreasonable without considering undue hardship. This approach, however, improperly collapses undue hardship into reasonable accommodation. As Judge Gould noted in Barnett, 228 F.3d at 1122 (Gould, J., concurring), "[t]he statute makes sense only if 'reasonable' refers to the effects of the accommodation on the employee's ability reasonably to perform the essential functions of the job and does not include effects of difficulty or expense on [covered entities]." See also EEOC: Reasonable Accommodation & Undue Hardship Under The ADA, 8 FEP Manual (BNA) 405:7601, 7603 (in the context of job performance, reasonable accommodation refers to changes in workplace policies or practices that enable a disabled individual to continue working). Defendants do not dispute that the proposed accommodations here would enable the plaintiffs to continue working as dock workers and/or clerks. They are, therefore, "reasonable accommodations" within the meaning of the statute. The panel's approach vitiates the defendants' obligation to establish undue hardship. As the Barnett Court stressed repeatedly, the ADA "does not allow employers" - and here, unions - "to avoid reasonable accommodation absent a showing of undue hardship." 228 F.3d at 1113. Nor, consistent with Barnett, could the panel speculate that the proposed accommodation would result in undue hardship; "courts cannot assume that which is the employer's burden to prove." See id. at 1120; cf. Tooley v. Martin Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981) ("A claim of undue hardship cannot be supported by merely conceivable or hypothetical hardships; instead, it must be supported by proof of 'actual imposition on co-workers or disruptions of the work routine.'") (discussing Title VII). The panel points to nothing in the statute to support its assumption that providing an accommodation in the face of a conflict with a collectively bargained seniority system results in undue hardship as a matter of law. Furthermore, use of a per se rule here, as in Barnett, "eliminate[s] the most effective or the only effective reasonable accommodation." See 228 F.3d at 1120. Plaintiffs therefore had no choice but to leave the workforce, exactly what the ADA was designed to prevent. See, e.g., H.R. Rep. No. 485(II), 101st Cong. 2d Sess. 63 ("House Labor Report") (1990) (purpose of including reassignment as reasonable accommodation is to "prevent the employee from being out of work and the employer from losing a valuable worker"), reprinted at 1990 U.S.C.C.A.N. 267, 345. Notwithstanding these similarities between the issue presented here and the issue in Barnett, the panel decided to take an approach antithetical to that in Barnett solely because the seniority system there was "unilaterally imposed by the employer," whereas here it is contained in a collective bargaining agreement. Slip op. at 343. The panel reasoned that the conflict here, unlike that in Barnett, implicates the rights of other workers under federal labor law. Id. While that distinction might affect the question of whether a covered entity can establish undue hardship, it cannot justify adoption of a per se rule. The panel noted that other federal statutes which require reasonable accommodation have been construed to include a per se rule such as the one the panel adopted here. See, e.g., Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987) (Rehabilitation Act); Trans World Airways v. Hardison, 432 U.S. 63 (1977) (Title VII). In light of those cases, the panel justified its per se rule in this case on the ground that Congress "failed to include any provision to counter that precedent in the plain language of the ADA." Slip op. at 343-44. On the contrary, in both the language and the legislative history of the ADA, Congress demonstrated that it intended a different result under this statute. First, the ADA expressly lists a number of possible accommodations, including "modification of policies" and "reassignment to a vacant position," in the statute's definition of the term "reasonable accommodation." See 42 U.S.C. § 12111(9)(B). There is no comparable provision in the Rehabilitation Act, 29 U.S.C. §§ 791-794, and, until recently, courts interpreted reassignment as outside the range of reasonable accommodations contemplated by that statute. See Gonzagowski v. Widnall, 115 F.3d 744, 748 (10th Cir. 1997) (explaining prior law). See also 34 C.F.R. § 104.12(b) & 45 C.F.R. § 84.12(b) (more limited definition of "reasonable accommodation" under § 504 of Rehabilitation Act does not include reassignment); but cf. 29 C.F.R. § 1614.203(g) (adding "reassignment" as possible accommodation under § 501). In addition, both employers and unions are "covered entities" under the ADA and, so, are subject to the duty to make reasonable accommodation. 42 U.S.C. § 12111(2). The Rehabilitation Act, in contrast, imposes the duty to reasonably accommodate only on certain employers.<1> See 34 C.F.R. §§ 104.2 & 104.11; 45 C.F.R. §§ 84.2 & 84.11. By covering both employers and unions in the ADA, Congress obviated the need for a unilateral contractual breach by the employer and provided the statutory grounds for negotiated variances from collective bargaining agreement rules in appropriate circumstances. Thus, the panel's fear that the proposed accommodation here would "subject an employer to a Hobson's choice of violating the ADA or the NLRA" is exaggerated; unions share the duty to accommodate. Furthermore, whereas Title VII contains an explicit exemption for bona fide seniority systems, Congress omitted such an exemption from the ADA. Compare 42 U.S.C. §§ 12101 et seq. (ADA) with 42 U.S.C. § 2000e-2(h) (Title VII); see also 29 U.S.C. § 623(f)(2) (parallel exemption for seniority systems in ADEA). The omission of an exemption for seniority systems in the ADA further supports the conclusion that Congress intended collectively-bargained seniority rules, like other contractual provisions, to give way when necessary to accommodate disabled employees. Any doubt as to Congress' intent in this regard is removed by reference to the legislative history of the ADA. As this Court recognized in Barnett, Congress specified that, while a collective bargaining agreement "could be relevant" in determining whether a given accommodation is reasonable, it "would not be determinative on the issue." House Labor Report at 63, reprinted at 1990 U.S.C.C.A.N. at 345; accord S. Rep. No. 116, 101st Cong., 1st Sess. 32 (1989) ("Senate Report"). Indeed, it provided examples where a conflict between a collective bargaining agreement and an accommodation might arise and, in each case, reaffirmed that the agreement was merely one factor to be considered in assessing undue hardship. See, e.g., House Labor Report at 63. The panel also relied on ADA cases from other circuits holding that accommodation of a disabled employee except in accordance with collectively-bargained seniority rights is per se unreasonable. See slip op. at 342-45 (citing cases). However, those decisions cannot be reconciled with this Court's en banc decision in Barnett. With a single exception, the decisions do not independently analyze the ADA, but simply cite prior cases or reflexively apply the rule from cases under the Rehabilitation Act which, as noted above, are inapposite because of significant differences between the two statutes. See, e.g., Davis v. Florida Power & Light Co., 205 F.3d 1301, 1306-07 (11th Cir. 2000) (citing, e.g., Feliciano); Feliciano v. Rhode Island, 160 F.3d 780, 787 (1st Cir. 1998) (citing, e.g., Cassidy); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998) (citing Rehabilitation Act caselaw); Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997) (citing Foreman and Eckles); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809-10 (5th Cir. 1997) (citing, e.g., Benson); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (citing nothing); cf. Benson v. Northwest Airlines, 62 F.3d 1108, 1114 (8th Cir. 1995) (citing state case). The only decision that contains an analysis of the ADA is Eckles v. Conrail, 94 F.3d 1041 (7th Cir. 1996). While we believe that Eckles was wrongly decided and much of the court's analysis is inconsistent with Barnett, the holding in Eckles is not applicable to this case. The Seventh Circuit concluded that the reassignment plaintiff sought would not be a reasonable accommodation because, based on the agreement there, positions were never "vacant" since they always went to the senior qualified applicant. Accordingly, reassignment was not a reasonable accommodation because the ADA specifies that reassignment should be only to a "vacant" position. 94 F.3d at 1047. The court stressed that its ruling "should not be interpreted as a general finding that all provisions found in collective bargaining agreements are immune from limitation by the ADA duty to reasonably accommodate." Id. at 1046 n.9 & 1051-52. The panel here analogized to Eckles, suggesting that the plaintiffs here also sought positions that were not "vacant." See slip op. at 343-44. The analogy is inapt. Unlike in Eckles, plaintiffs here did not seek reassignment to a specific position, but rather placement on a list or in a unit that would make them eligible for light duty work. In addition, the jobs here, unlike those in Eckles, were day-jobs only, and even light-duty jobs were not allocated strictly on seniority; they were offered first to persons on the DPB list or in the clerks' union. Thus, Eckles does not support adoption of a per se rule in this case. Nor does the panel's concern that a case-by-case approach would "leave employers too vulnerable to the possibility of guessing wrong when trying to weigh the relative benefits and burdens on disabled and non-disabled employees." Slip op. at 345. Congress addressed that problem by including unions in the definition of "covered entity" so that the duty to accommodate is not solely the employer's. In addition, Congress urged that "agreements negotiated after the [ADA's effective date should] contain a provision permitting the employer to take all actions necessary to comply with this legislation" so as to avoid conflicts between a collective bargaining agreement and the ADA accommodation duty. See, e.g., House Labor Report at 63, reprinted at 1990 U.S.C.C.A.N. at 346; Senate Report at 32 (same). The panel suggested that such negotiation is optional. See slip op. at 346. On the contrary, it should be mandatory. The ADA does not permit defendants to negotiate away substantive statutory rights of disabled employees. See Air Line Pilots Ass'n v. Northwest Airlines, 199 F.3d 477, 484-85 (D.C. Cir. 2000) (union may not bargain away individual statutory rights); Aka v. Washington Hosp. Center, 156 F.3d 1284, 1303 n.25 (D.C. Cir. 1998) (en banc) (doubting that collective bargaining agreement could waive ADA right to reasonable accommodation). Given the importance of seniority in American labor law, defendants could not consider making an accommodation that infringes on other employees' seniority rights if another accommodation, short of undue hardship, would meet the disabled employee's needs. However, the panel erred by assuming that where such accommodation is necessary, it will always result in undue hardship. Seniority, even collectively bargained seniority, can govern a myriad of employment-related matters ranging from assignment to specific jobs to assignment to parking spaces. See Kralik, 130 F.3d at 86 (Mansmann, J., dissenting) (noting that all accommodations listed in the ADA "will almost always conflict to some degree with established seniority systems" in a unionized workplace). Arguably, defendants could more easily establish undue hardship where a proposed accommodation would deprive a senior employee of a long-awaited, permanent, full-time position than merely a more desirable parking space. Here, plaintiffs sought inclusion on the DPB list or transfer to the clerks' union. It is unclear to what extent, if at all, these proposed accommodations would impact other workers' vested seniority rights. For precisely that reason, the ADA requires an individualized assessment of undue hardship, rather than a per se rule. We therefore urge this Court to take the case en banc and reject the per se rule the panel here created to address potential conflicts between a proposed accommodation and a collectively-bargained seniority system. Rather, the Court should hold that, as in any ADA accommodation case, defendants -- unions and employers -- must show that such accommodation would result in undue hardship. CONCLUSION For the foregoing reasons, the petition for rehearing should be granted. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN PAUL D. RAMSHAW Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule 32, I certify that the foregoing Brief as Amicus Curiae was prepared using Courier New (monospaced) font, 12 point, and contains 3483 words, from the Statement of Interest through the Conclusion, as determined by the Corel Word Perfect 8 word counting program. ________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two copies of the Commission's Brief In Support Of Appellants' Petition For Rehearing En Banc were sent this 31st day of January, 2001, by first class mail, postage prepaid, to the following counsel of record: Kathleen A. McCormac SCHNEIDER & McCORMAC 1700 California Street, Suite 340 San Francisco, CA 94109 D. Ward Kallstrom LILLICK & CHARLES 2 Embarcadero Center San Francisco, CA 94111-3996 Richard Zukerman LEONARD, CARDER, et al. 1188 Franklin Street, Suite 201 San Francisco, CA 94109 ______________________________ 1 While the Rehabilitation Act would require a union receiving federal funds to provide reasonable accommodation to disabled participants in the funded program, the duty to accommodate would not apply to the union in its capacity as the bargaining representative of individuals employed by a covered employer.