TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES.......................................................................... ii

RULE 35(b) STATEMENT.......................................................................... 1

FACTUAL STATEMENT............................................................................ 2

ARGUMENT

Rehearing En Banc is Warranted Because the Panel Decision

Is Inconsistent with Barnett as Well as the Language and Purpose

of the ADA’s Reassignment Provision and En Banc Decisions

of Two Circuits......................................................................................... 6

CONCLUSION............................................................................................ 15

CERTIFICATE OF COMPLIANCE............................................................ 16

ADDENDUM

Panel Decision

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page(s)

CASES

Aka v. Washington Hospital Center,

156 F.3d 1284 (D.C. Cir. 1998)........................................................ passim

American Tobacco Co. v. Patterson,

456 U.S. 63, 68 (1982)........................................................................... 11

Colby v. J.C. Penney Co.,

811 F.2d 1119 (7th Cir. 1987)................................................................. 9

Craig v. Potter,

90 F. App’x 160 (7th Cir. Feb. 20. 2004) (unpublished).................. 5, 9-10

Corley v. United States,

556 U.S. 303 (2009)............................................................................... 13

Dalton v. Suburu-Isuzu Automotive,

141 F.3d 667 (7th Cir. 1998)............................................................... 6, 11

Eckles v. Consolidated Rail Corp.,

94 F.3d 1041 (7th Cir. 1996).................................................................. 10

EEOC v. United Airlines,

No. 11-1774 (7th Cir. March 7, 2012)..................................................... 2-5

EEOC v. Humiston-Keeling,

227 F.3d 1024 (7th Cir. 2002).......................................................... passim

Gile v. United Airlines,

95 F.3d 492 (7th Cir. 1996).................................................................... 15

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)............................................................................ 5, 9

King v. City of Madison,

550 F.3d 598 (7th Cir. 2008)............................................................ 5, 9-10

Mays v. Principi,

301 F.3d 866 (7th Cir. 2002)..................................................... 1, 4-5, 9-10

Smith v. Midland Brake,

180 F.3d 1154 (10th Cir. 1999) (en banc)........................................ passim

United States v. Berkos,

543 F.3d 392, 396 (7th Cir. 2008).......................................................... 13

US Airways v. Barnett,

535 U.S. 391 (2002)......................................................................... passim

STATUTES and RULES

42 U.S.C. §12101(6)............................................................................... 12

Title I of the Americans with Disabilities Act,

42 U.S.C. §§12112 et seq................................................................. passim

42 U.S.C. §12111(8)............................................................................... 14

42 U.S.C. §12111(9)........................................................................ 7, 8, 11

42 U.S.C. §12112(b)(5)..................................................................... 11, 14

Federal Rule of Civil Procedure 12(b)(6)....................................................... 2

OTHER AUTHORITY

EEOC Enforcement Guidance on Reasonable Accommodation

& Undue Hardship Under the ADA, No. 915.002 (Oct. 17, 2002),

available at www.eeoc.gov/policy/docs/accommodation/html.............. 2, 15

H.R. Rep. No. 485 (II), 101 Cong., 2d Sess. (1990),

reprinted at 1990 U.S.C.C.A.N. 303....................................................... 12

RULE 35(b) STATEMENT

The Equal Employment Opportunity Commission petitions for rehearing en banc because the panel decision and underlying authority, EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), and Mays v. Principi, 301 F.3d 866 (7th Cir. 2002), are inconsistent with the Supreme Court’s decision in US Airways v. Barnett, 535 U.S. 391 (2002). Contrary to this Court’s precedent, Barnett holds that preferences are required under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12112 et seq., and assumes that “normally” a request for reassignment as an accommodation is “reasonable” even if it violates a disability-neutral policy (other than a seniority system). 535 U.S. at 397-98, 401-05. Consideration by the full Court is needed to conform this Court’s caselaw with Supreme Court authority.

Rehearing en banc is also warranted because this case presents an issue of exceptional importance: whether an employer violates the ADA by requiring an employee to compete for vacancies when, due to disability, the employee can no longer do his current job even with reasonable accommodation. The panel decision conflicts with en banc decisions of two sister circuits which hold that if reassignment is needed as a reasonable accommodation, a competitive transfer policy does not satisfy the ADA’s reasonable accommodation duty. See Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999) (en banc); Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en banc).

FACTUAL STATEMENT

The EEOC alleged that United Airlines (“UAL”) violates the ADA by not reassigning employees to vacant positions for which they are qualified when the employees can no longer do their current jobs due to disability, and by instead requiring the employees to compete for the vacant jobs. As support, the EEOC cited Barnett, 535 U.S. 391 (2002); and the en banc decisions in Smith, 180 F.3d at 1164-66, and Aka, 156 F.3d at 1302, 1304; as well as the language and structure of the ADA and EEOC’s Enforcement Guidance on Reasonable Accommodation & Undue Hardship Under the ADA, No.915.002, at Q/A #29 (10/ 17/2002), available at www.eeoc.gov/policy/docs/accommodation.html. Initially filed in San Francisco, the suit was transferred on UAL’s motion to the Northern District of Illinois, where it was dismissed under Rule 12(b)(6). The court there reasoned that, under binding circuit precedent, Humiston-Keeling, 227 F.3d 1024, a competitive transfer policy like UAL’s does not violate the ADA. See EEOC v. United Airlines, No. 11-1774 (7th Cir. Mar. 7, 2012) (“slip op.”) at 2-3.

On appeal, the panel of this Court affirmed, finding that Humiston-Keeling was “directly on point” and too well settled to be overruled by the panel. Slip op. at 3, 9. The panel “strongly recommend[ed] en banc consideration,” however, because “the logic of EEOC’s position on the merits, although insufficient to justify departure by th[e] panel from the principles of stare decisis, is persuasive with or without Barnett.” Id. at 9; see also id. at 2 (suggesting that the Court en banc “might reconsider the impact of Barnett on Humiston-Keeling”).

The panel noted that the Court in Humiston-Keeling rejected the EEOC’s argument that, absent undue hardship, the “‘reassignment form of reasonable accommodation’” requires that a qualified disabled employee “be advanced over a more qualified nondisabled person.” Slip op. at 4 (citing Humiston-Keeling, 227 F.3d at 1026). Instead, the Court held, “the ‘ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job.’” Id. (citing 227 F.2d at 1026). The Court took this position, the panel noted, even though it knew that the en banc Tenth and D.C. Circuits, after thoroughly analyzing the statutory language and purpose, had reached the opposite result. Id. at 8. Thus, the panel stated, while the EEOC’s interpretation of the ADA was “likely” “more supportable,” the panel was bound by this Court’s “controlling” precedent unless the EEOC could show that Humiston-Keeling was “inconsistent with an on-point Supreme Court decision.” Id. at 4.

The panel acknowledged EEOC’s contention that Barnett, which addresses “reassignment in the context of a seniority system,” so “undercuts the reasoning of Humiston-Keeling” that the case should be overruled. Slip op. at 4-5. Barnett, the panel noted, “flatly contradicted much of the language of Humiston-Keeling” and rejected US Airways’s argument, based on Humiston-Keeling, that employers need not “grant a requested accommodation that would violate a disability-neutral rule” since the “ADA is ‘not a mandatory preference act’ but only a ‘non-discrimination statute.’” Id. at 5-6 (citing 535 U.S. at 397). According to Barnett, the “argument ‘fails to recognize what the [ADA] specifies, namely, that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.’” Id. at 6 (citing 535 U.S. at 397). The panel explained, “Merely following a ‘neutral rule’ did not allow US Airways to claim an ‘automatic exemption’ from the [ADA’s] accommodation requirement. Instead, US Airways prevailed because its situation satisfied a much narrower exception based on the hardship that would be imposed on an employer utilizing a seniority system.” Id.

However, the panel stated, “[w]hile EEOC’s argument may be persuasive,” the Court already “considered Barnett’s relationship to Humiston-Keeling, albeit in an abbreviated fashion without the benefit of briefing,” in Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). Slip op. at 6. Citing Humiston-Keeling, Mays held that the employer could prefer a better qualified applicant over the qualified disabled plaintiff. Mays also stated that the “recently handed down” Barnett decision “holds 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. at 7 (citing 301 F.3d at 872, omitting citation). Then, equating “better qualified” with “more senior” and “the employer’s normal method of filling vacancies” (there, a best-qualified-selection policy) with “seniority systems,” Mays concluded that Barnett “actually bolstered Humiston-Keeling.” Id. at 6-7 (citing 301 F.3d at 871).

The panel noted EEOC’s argument that by erroneously equating a seniority system with a best-qualified-selection policy, “the Mays Court so enlarges the narrow exception ... in Barnett as to swallow the rule.” Slip op. at 7 (also noting EEOC’s references to “the relative rarity of seniority systems” and “the distinct challenges of mandating reassignment” where employees are already entitled to specific jobs due to seniority). But, the panel stated, two post-Mays decisions also cite Humiston-Keeling, albeit without “detailed analysis” or mentioning Barnett. Id. at 7-8 & n.2 (citing Craig v. Potter, 90 F. App’x 160 (7th Cir. Feb. 20, 2004); King v. City of Madison, 550 F.3d 598 (7th Cir. 2008)). In the panel’s view, despite their brevity, the “mere existence and consistent interpretations [of these cases] compel [the] court to find that Humiston-Keeling remains good law.” Id. at 8; see also id. at 9 (adding that although overruling Humiston-Keeling would not eliminate the circuit split, since the Eighth Circuit in Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007), adopted Humiston-Keeling (albeit “without analysis”), “there is no harm in lessening this split if, in fact, Barnett undermines Humiston-Keeling”).

ARGUMENT

Rehearing En Banc is Warranted Because the Panel Decision Is Inconsistent with Barnett as Well as the Language and Purpose of the ADA’s Reassignment Provision and En Banc Decisions of Two Circuits.

1. Rehearing en banc is warranted because the continued viability of Humiston-Keeling and other caselaw on which the panel decision is based is, at the very least, placed in serious doubt by the Supreme Court’s decision in Barnett.

Humiston-Keeling is premised on two related assumptions: (1) The ADA does not mandate preferential treatment of disabled employees; and (2) Employers need not provide transfers that would “violate a legitimate, nondiscriminatory policy,” such as a best-qualified-selection policy. See 227 F.3d 1028-29 (citing, e.g., Dalton v. Suburu-Isuzu Auto., 141 F.3d 667, 679 (7th Cir. 1998)). But the Supreme Court in Barnett flatly rejected both assumptions.

Like Humiston-Keeling, Barnett concerned a request for reassignment where the employee was otherwise qualified for the new position but the placement would violate a disability-neutral policy — there, a seniority system. See Barnett, 535 U.S. at 394-95. Relying in part on Humiston-Keeling, US Airways argued that a seniority system or other disability-neutral workplace policy “virtually always trumps a conflicting accommodation request” because violating such a policy would constitute a “preference,” and the ADA “does not ... require an employer to grant preferential treatment” but “only ‘equal’ treatment for those with disabilities.” Id. at 396-97.

The Barnett Court disagreed. The Court reasoned, “By definition, any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer’s disability-neutral rule cannot by itself place the accommodation beyond the Act’s potential reach.” 535 U.S. at 397. To the contrary, the Court reasoned, “[m]any employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability,” citing examples from the non-exclusive list of accommodations in the ADA’s text. Id. at 397-98 (citing 42 U.S.C. §12111(9), which includes reassignment). Yet, the Court continued, Congress “said nothing suggesting that the presence of such neutral rules would create an automatic exemption.” Id. at 398. Thus, “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 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. (emphasis in original).[1]

Turning to Barnett’s arguments, the Court stated that a plaintiff opposing summary judgment “need only show that his requested accommodation seems reasonable on its face, i.e., ordinarily or in the run of cases.” 535 U.S. at 401. The Court also assumed that “normally” a request for reassignment — an accommodation expressly listed in the ADA — “would be reasonable within the meaning of the statute.” 535 U.S. at 403 (citing §12111(9)). However, it would likely not be reasonable in Barnett’s case because of “one circumstance, namely, that the assignment would violate the rules of a seniority system.” See id. The Court based this exception for seniority systems on the special status that seniority systems hold in American labor law and on their importance in labor-management relations. Id. at 403-05 (noting that without such an exception, “employees’ expectations of consistent, uniform treatment upon which the seniority systems benefits depend” would be undermined).

By contrast, the disability-neutral policy here, as in Humiston-Keeling, is a best-qualified-selection policy which, unlike a seniority system, has no such special status in American labor law. Under Barnett, therefore, despite the policy, a UAL employee’s request for reassignment to a vacant position for which he or she is qualified would be reasonable “ordinarily or in the run of cases.” And since this result conflicts with the result under Humiston-Keeling, that case should be overruled to ensure consistency with Supreme Court caselaw. [2]

Notwithstanding Barnett, the panel here concluded that it was bound by Humiston-Keeling, reasoning that since Barnett was decided, the Court has cited Humiston-Keeling favorably three times and, in one instance, briefly addressed Barnett. Slip op. at 6-8 (citing Mays, Craig, and King). But these cases in fact simply confirm the need for en banc review.

First, none of the briefing in those cases even mentioned Barnett, let alone explored its interaction with Humiston-Keeling. And since the King and Craig decisions are likewise silent, those panels may not have focused on whether Humiston-Keeling and related precedent remain good law in light of Barnett.

Second, although Mays states that Barnett “bolstered” the rule in Humiston-Keeling, 301 F.3d at 872, Mays does not analyze the issue in any depth. Instead, the decision simply assumes that seniority systems are indistinguishable from best-qualified-selection policies, and that under Barnett, as under Humiston-Keeling, employers need not reassign employees as a reasonable accommodation in violation of any such policy. See id. Mays never addresses Barnett’s discussion of preferences or its presumption that a reassignment is appropriate even if it would violate a disability-neutral workplace policy (other than a seniority system).

The impact of Barnett on Humiston-Keeling deserves more thorough analysis. There are obvious, material differences between seniority systems and best-qualified-selection policies. As this Court has recognized, for example, under a seniority system, the most senior employee typically has a legally enforceable right to a specific position. See Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1047 (7th Cir. 1996). That is not the case with a best-qualified-selection policy. Nor does Barnett in any way indicate that the exception it carved out for seniority systems extends to all ordinary workplace policies including best-qualified-selection policies. (In fact, Barnett suggests the opposite – i.e., that seniority systems are largely sui generis.) Moreover, given the prevalence of best-qualified-selection policies, it seems unlikely that Congress would have gone to the trouble of expressly identifying “reassignment” as a reasonable accommodation if it intended to permit employers so easily to avoid providing the accommodation simply by invoking the neutral policy.

In short, there is ample reason to question Mays’s analysis. This Court should therefore accept the panel’s invitation and rehear this case en banc.

2. Rehearing en banc is also warranted because, as the Tenth and D.C. Circuits recognized, the better reading of the ADA — a reading consistent with the language and purpose of the reassignment provision, as well as the overall structure of the statute — is that a competitive transfer policy like UAL’s may not satisfy an employer’s ADA duty to provide reasonable accommodation.

The “starting point” for construing a statute is the language employed by Congress. American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (adding that undefined terms should be given their “ordinary meaning”) (citation omitted). Under the ADA, an employer’s duty reasonably to accommodate disabled employees expressly includes “reassignment to a vacant position” for which the employee is qualified. See 42 U.S.C. §§12111(9), 12112(b)(5)(A). As this Court has recognized, “the option of reassignment is particularly important when the employee is unable to perform the essential functions of his or her current job” even with other reasonable accommodation. Dalton, 141 F.3d at 677.

Simply allowing employees to compete for a vacant position, however, would not be considered a “reassignment” under any ordinary meaning of the word. The core word “assign” means “to appoint.” See Aka, 156 F.3d at 1302-1304; Smith, 180 F.3d at 1164-65, 1167-68. 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’; 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 1304; see also Smith, 180 F.3d at 1164-65, 1167-68 (noting that the “literal language” in the statute is not “consideration of a reassignment” or permission to compete for jobs).

The purpose of the reassignment provision similarly confirms that Congress intended to invoke the ordinary meaning of the term “reassignment to a vacant position.” Congress recognized that persons with disabilities as a group “occupy an inferior status in our society and are severely disadvantaged socially [and] economically.” 42 U.S.C. §12101(6). Consistent with this Congressional finding, the reassignment provision is aimed at enabling employees, who would otherwise lose their jobs due to disability, to remain in the workforce as long as there is a vacancy for which they are qualified. See, e.g., H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 345. Nothing in the statute or legislative history suggests that Congress intended that employees needing reassignment as a reasonable accommodation should be required to compete for vacancies with employees who do not need such an accommodation.

The overall structure of the ADA also strongly suggests that reassignment must mean more than just competitive transfer. Reassignment is a form of reasonable accommodation. Yet, especially where, as here, the employer professes to select the most qualified applicant for any job, placing a disabled employee in a job for which he is the most qualified would not normally be considered an “accommodation,” but simply non-disparate treatment. The ADA separately prohibits employers from discriminating against persons based on disability in the application for a vacant position. See Smith, 180 F.3d at 1164-65 (citing 42 U.S.C. §12112(a)). Thus, including reassignment in the duty to accommodate would be superfluous — mere surplusage — if it required only nondiscriminatory consideration in competition with other employees. Id. (provision would be “redundant”); accord Aka, 156 F.3d at 1304. Statutes should be construed so that no part is rendered meaningless, superfluous, or redundant. See, e.g., Corley v. U.S., 554 U.S. 303, 314 (2009); U.S. v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). The Court in Humiston-Keeling reasoned that the provision would still have meaning because it would clarify that employers must do more than merely provide accommodations that enable employees to do their current jobs. 227 F.3d at 1027-28. But that is clear even without the “reassignment” provision. Employers must reasonably accommodate “qualified” persons with a disability, and a person is “qualified” if, with or without accommodation, he can do the essential functions of the job he has or the job he “desires.” 42 U.S.C. §§12111(8); 12112(b)(5). Taken together, these provisions confirm that the duty to accommodate extends to prospective positions — e.g., an initial placement, a promotion, or, as here, a reassignment. See Smith, 180 F.3d at 1161 (discussing §12111(8)); Aka, 156 F.3d at 1301 (same). Moreover, and significantly, Humiston-Keeling nowhere takes account of the plain language and purpose of the reassignment provision. The decision, instead, is premised largely on assumptions from prior decisions — that the ADA does not require “preferences” or transfers in violation of an employer’s disability-neutral policy. See 227 F.3d at 1028 (citing cases). As noted above, however, such assumptions were soundly rejected in Barnett. Furthermore, while Humiston-Keeling expressed concern that reassignment would constitute an “unreasonable imposition” on employers, in fact, the duty to reassign is sharply limited.[3] Among other things, reassignment need not be offered to prospective employees or to an employee who is entitled to a different job by reason of seniority or who can be accommodated in his current job. Nor need the employer bump another employee, create a new position, promote the employee, violate the terms of a seniority system, or offer a job for which the employee is not fully qualified. Reassignment is, in short, an accommodation of last resort. See EEOC Guidance at Q/A #24. Finally, if the employer can show that a specific reassignment would result in undue hardship, the employer need not offer that accommodation. See Gile v. United Airlines, 95 F.3d 492, 499 (7th Cir. 1996). In sum, this Court’s caselaw conflicts with Supreme Court precedent; cannot be squared with the ADA’s plain language, overall structure, and purpose; and departs from the conclusions of two sister circuits that have considered the issue en banc. Rehearing en banc is therefore appropriate.

CONCLUSION

For the foregoing reasons, the EEOC respectfully asks that the Court follow the panel’s suggestion and grant rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ /s/_Barbara L. Sloan____

General Counsel BARBARA L. SLOAN

Attorney

LORRAINE C. DAVIS EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

131 M Street N.E.. 5th Floor

DANIEL T. VAIL Washington, DC 20507

Acting Assistant General Counsel (202) 663-4721 barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2007 with Times New Roman 14-point font.

/s/ Barbara L. Sloan

Attorney for Equal Employment

Opportunity Commission

Dated April 20, 2012

[1] UAL here argued that Barnett and Humiston-Keeling can both be read to mean that employers need only provide accommodations that clear away obstacles to hiring the best applicant. That was the view of Justice Scalia in his dissent, but not of the majority. See 535 U.S. at 413-20 (Scalia, J., dissenting). Justice Scalia would have held, e.g., that employers must only “modify or remove (within reason) policies and practices that burden a disabled person ‘because of [his] disability.’” Id. at 413. He also concluded that “the ADA does not mandate exceptions to a ‘legitimate nondiscriminatory policy’” such as a best-qualified-selection policy. 535 U.S. at 416 (citing, e.g., Humiston-Keeling, 227 F.3d at 1028-29). He acknowledged, however, that his views did not prevail at the Court. Id. at 417. Accord 535 U.S. at 398 (rejecting Justice Scalia’s “contrary” position).

[2] While overruling Humiston-Keeling would not eliminate the circuit split (given Huber), even lessening the split may benefit national employers like UAL who, at present, must comply, e.g., with Smith in Denver and Humiston-Keeling in Illinois. See Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987) (circuit splits place parties in “impossible position” of trying to meet two standards). And although UAL opined that the Aka/Smith standard is unworkable, employers in the Tenth and D.C. Circuits have followed it for years.

[3] UAL, cued by Humiston-Keeling, 227 F.3d at 1027-28, argued that this rule would require reassigning employees who are only “minimally qualified.” UAL Brief at 22. Since UAL itself sets the qualification standards for its jobs, however, anyone meeting those standards should be fully capable of doing the job well.