BARNETT v. U.S. AIR, 228 F.3d 1105 (9th Cir. 2000)
ROBERT BARNETT, Plaintiff-Appellant, v. U.S. AIR, INC., Defendant-Appellee.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 22, 2000 Ã¢â‚¬â€ San Francisco, California
Filed October 4, 2000
Robert W. Rychlik, Palm Desert, California for the
Raymond W. Thomas, Los Angeles, for the defendant-appellee.
Susan L.P. Starr, Washington, D.C., for the amicus curiae.
Appeal from the United States District Court for the Northern
District of California, D. Lowell Jensen, District Judge, Presiding.
D.C. No. CV-94-03874-DLJ.
Before: Procter Hug, Jr., Chief Judge, Mary M. Schroeder,
Betty B. Fletcher, Harry Pregerson, Diarmuid F. O'Scannlain, Stephen
S. Trott, Andrew J. Kleinfeld, A. Wallace Tashima, Sidney R. Thomas,
Raymond C. Fisher, Ronald M. Gould, Circuit Judges.
Opinion by Judge B. Fletcher;
GOULD, Circuit Judge, with whom Circuit Judge Thomas
O'SCANNLAIN, Circuit Judge, with whom Circuit Judges Trott
and Kleinfeld join, Dissenting;
Trott, Circuit Judge, with whom Circuit Judges O'Scannlain and
Kleinfeld join, Dissenting.
B. FLETCHER, Circuit Judge:
Robert Barnett brought suit under the Americans with Disabilities
Act (ADA) and he appeals the district court's dismissal on summary
judgment of his claims. Barnett, who suffered a serious back
injury while on the job, argues that U.S. Air discriminated
against him by denying him accommodation, by failing to engage
in the interactive process and by retaliating against him for
filing charges with the Equal Employment Opportunity Commission
(EEOC). This appeal raises several issues of first impression
in this circuit, including the nature and scope of an employer's
obligation to engage in the interactive process, whether reassignment
is a reasonable accommodation in the context of a seniority
system and the appropriate standard for evaluating retaliation
claims under the ADA. We reverse the district court's grant
of summary judgment in favor of U.S. Air on all claims except
for the retaliation claim and we remand for trial.
Robert Barnett worked for ten years as a customer service agent
for U.S. Air and its predecessor, Pacific Southwest Airlines.
In 1990, Barnett injured his back while working in a cargo position
for U.S. Air at San Francisco International Airport. After returning
from disability leave, Barnett found that he could not perform
all of the physical requirements of handling freight. Barnett
used his seniority to transfer into the company's mail room.
In March and August of 1992, Barnett's doctor and chiropractor
both recommended that he avoid heavy lifting and excessive bending,
twisting, turning, pushing and pulling, and prolonged standing
or sitting. The doctor concluded that Barnett could perform
the job requirements of the swing-shift mail room position.
Barnett learned in August of 1992 that two employees with greater
to exercise their seniority right to transfer to the mail room.
Once bumped, Barnett's seniority would have limited him to
transferring to jobs in the cargo area. Barnett wrote to his
station manager, Robert Benson, on August 31, 1992 and requested
that he be allowed to stay in the mail room as a reasonable
accommodation under the ADA.
U.S. Air did not respond to Barnett for five months but allowed
him to remain in the mail room for the period while the company
was evaluating his claims. On January 20, 1993, Benson, acting
on behalf of U.S. Air, informed Barnett that he would be removed
from the mail room and placed on job injury leave. There was
no substantive discussion of Barnett's accommodation request.
Following the meeting, Barnett sent Benson a second letter suggesting
two alternative means of accommodating his disability. Barnett
proposed either that U.S. Air provide him with special lifting
equipment in the cargo facility or that the cargo job be restructured
so that he would do only warehouse office work.
Barnett filed formal charges of discrimination with the EEOC
in February of 1993. On March 4, 1993, Barnett received a letter
from U.S. Air's Vice President of Human Resources denying Barnett's
alternative requests for accommodation but informing him that
he could bid for any job within his restrictions. There is no
evidence that Barnett was qualified, without reasonable accommodation,
for any other position in San Francisco or elsewhere in the
U.S. Air system. Barnett made no subsequent bids for any other
position. In August of 1994, the EEOC issued a formal determination
that there was reason to believe that U.S. Air had discriminated
against Barnett by denying him reasonable accommodation under
After Barnett filed suit, the district court granted U.S. Air's
motion for summary judgment for all claims except Barnett's
claim that U.S. Air discriminated by not participating in the
interactive process. Upon receiving supplementary briefing,
the district court granted summary judgment to U.S. Air on that
claim as well. Barnett, in his appeal, argues that U.S. Air
violated the ADA by failing to engage in the interactive process,
by failing to reassign him to the mail room, by failing to provide
other reasonable accommodation and by retaliating against him.
We review de novo the district court's grant of summary judgment.
Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). In determining
whether there are any genuine issues of material fact, we must
view the evidence in the light most favorable to the nonmoving
Barnett claims that U.S. Air had an obligation to engage in an
interactive process to identify possible reasonable accommodations.
Barnett further asserts that U.S. Air's failure to engage in
this process gives rise to liability under the ADA. The district
court concluded that an employer is liable for failing to engage
in the interactive process but that U.S. Air had sufficiently
engaged in the interactive process to avoid such liability.
Although disabled Americans have played prominent roles in our
nation's history, from the founders of our Constitution to our
longest serving President, they have also faced a long history
of exclusion. Congress, in the opening section of the ADA, recognized
that some "43,000,000 Americans have one or more physical or
mental disabilities" and that:
individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and
limitations, subjected to a history of purposeful
unequal treatment, and relegated to a position of
political powerlessness in our society, based on characteristics
that are beyond the control of such individuals
and resulting from stereotypic assumptions
not truly indicative of the individual ability of such
individuals to participate in, and contribute to, society;
42 U.S.C. Ã‚Â§ 12101(a)(7).
The ADA was designed to end the exclusion of people with disabilities
workplace and from other realms of social life. As President
George Bush explained upon signing the ADA:
Today, we're here to rejoice in and celebrate another
`Independence Day,' one that is long overdue. With
today's signing of the landmark Americans for [sic]
Disabilities Act, every man, woman, and child with
a disability can now pass through once-closed doors
into a bright new era of equality, independence and
freedom . . . Today's legislation brings us closer to
that day when no Americans will ever again be
deprived of their basic guarantees of life, liberty, and
the pursuit of happiness.
President George Bush, "Remarks on Signing the Americans with
Disabilities Act of 1990," (July 26, 1990), reprinted in Bernard
D. Reams, Jr., et. al., eds., Disability Law in the United States:
A Legislative History of the Americans with Disabilities Act
of 1990, Public Law 101-336, Vol. I, Document No. 9 (1992).
In introducing the ADA, Senator Harkin called the statute "a
broad and remedial bill of rights for individuals with disabilities.
It is their emancipation proclamation. " 135 Cong.
Rec. Ã‚Â§ 4984 (May 9, 1989) (statement of Sen. Harkin) reprinted
in Disability Law, Vol. VI, Document No. 36. Citing a nationwide
poll, Senator Harkin pointed out that sixtysix percent of working-age
disabled persons who are not working, or some 8.2 million persons,
want to have a job and that eighty-two percent of people with
disabilities would give up their government benefits in favor
of full-time employment. Id. at Ã‚Â§ 4985. Thus, the workplace
protections of the ADA are central to the Act's goals of assuring
"equality of opportunity, full participation, independent living,
and economic self-sufficiency" for people with disabilities.
42 U.S.C. Ã‚Â§ 12101(a)(8).
Title I of the ADA insures full opportunities for people with
disabilities in the workplace by requiring reasonable accommodation
of employees' disabilities by their employers. The ADA prohibits
employers from discriminating against a disabled employee[fn1] by
"not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant
or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of
the business of such covered entity." 42 U.S.C. Ã‚Â§ 12112(b)(5)(A).
The ADA defines a "qualified individual with a disability" as
"an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires."
42 U.S.C. Ã‚Â§ 12111 (8).
U.S. Air argues that Barnett is not covered under the ADA because
he was not "qualified" for the cargo position due to his disability.
If Barnett could perform the essential functions of the cargo
position "with or without reasonable accommodation" he would
be qualified under the ADA. 42 U.S.C. Ã‚Â§ 12112(b)(5)(A).
Furthermore, the statutory definition of a "qualified individual"
covers individuals who can perform the "essential functions"
of a position which the individual either "holds or desires."
Therefore, even if Barnett could not perform the essential functions
of the cargo position, if he could perform the essential functions
of another position in the company which he "desires" he is
covered under the ADA. The plain language of the statute requires
this reading of the statute. To read the statute otherwise would
render the word "desires" meaningless. See Gustafson v. Alloyd
Co., 513 U.S. 561, 574 (1995) ("the Court will avoid a reading
which renders some words altogether redundant"). Our conclusion
that a "qualified individual with a disability" includes individuals
who could perform the essential functions of a reassignment
position, with or without reasonable accommodation, even if
they cannot perform the essential functions of the current position
is supported by nearly every circuit which has considered the
issue. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161-62
(10th Cir. 1999) (en banc) (collecting cases).
Barnett asserts that U.S. Air failed to fulfill its obligation
to engage in an interactive process to find a reasonable accommodation.
The legislative history makes clear that employers are required
to engage in an interactive process with employees in order
to identify and implement appropriate reasonable accommodations.
The Senate Report explained that: "A problem-solving approach
should be used to identify the particular tasks or aspects of
the work environment that limit performance and to identify
possible accommodations . . . employers first will consult with
and involve the individual with a disability in deciding on
the appropriate accommodation." S. Rep. No. 101-116, at 34 (1989);
see also H.R. Rep. No. 101-485, pt. 2, at 65 (1990).
The ADA authorizes the EEOC to issue regulations implementing
the ADA. See 42 U.S.C. Ã‚Â§ 12116. The EEOC regulations outline
the nature of the interactive process:
To determine the appropriate reasonable accommodation
it may be necessary for the [employer] to initiate
an informal, interactive process with the
qualified individual with a disability in need
of the accommodation. This process should identify the
precise limitations resulting from the disability and
potential reasonable accommodations that could
overcome those limitations.
29 C.F.R. Ã‚Â§ 1630.2(o)(3).
The phrase "may be necessary" is merely a recognition that in
some circumstances the employer and employee can easily identify
an appropriate reasonable accommodation. Any doubt that the
EEOC views the interactive process as a mandatory obligation
is resolved by the EEOC's interpretive guidance, which states
that "the employer must make a reasonable effort to determine
the appropriate accommodation. The appropriate reasonable accommodation
is best determined through a flexible, interactive process that
involves both the employer and the [employee] with a disability."
29 C.F.R. Pt. 1630, App. Ã‚Â§ 1630.9. The EEOC's Enforcement
Guidance also specifies the nature of the interactive process:
"The employer and the individual with a disability should engage
in an informal process to clarify what the individual needs
and identify the appropriate accommodation." EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, EEOC Compliance Manual
(CCH), Ã‚Â§ 902, No. 915.002 (March 1, 1999), at 5440.
The interactive process is triggered either by a request for
accommodation by a disabled employee or by the employer's recognition
of the need for such an accommodation. An employee requesting
a reasonable accommodation should inform the employer of the
need for an adjustment due to a medical condition using " `plain
English' and need not mention the ADA or use the phrase `reasonable
accommodation.' " Id. at 5438. In some circumstances, according
to the EEOC, the employee need not even request the accommodation:
"An employer should initiate the reasonable accommodation interactive
process without being asked if the employer: (1) knows that
the employee has a disability, (2) knows, or has reason to know,
that the employee is experiencing workplace problems because
of the disability, and (3) knows, or has reason to know, that
the disability prevents the employee from requesting a reasonable
accommodation." Id. at 5459.
Almost all of the circuits to rule on the question have held
that an employer has a mandatory obligation to engage in the
interactive process and that this obligation is triggered either
by the employee's request for accommodation or by the employer's
recognition of the need for accommodation. See Fjellestad v.
Pizza Hut of America, Inc., 188 F.3d 944, 952 (8th Cir. 1999)
("when the disabled individual requests accommodation, it becomes
necessary to initiate the interactive process"); Smith,
180 F.3d at 1172 (holding that the duty to engage in the interactive
process is triggered once the employee "convey[s] to the employer
a desire to remain with the company despite his or her disability
and limitations" and that "the obligation to engage in an interactive
process is inherent in the statutory obligation to offer a reasonable
accommodation to an otherwise qualified disabled employee");
Taylor v. Phoenixville Sch. Dist.,184 F.3d 296, 315 (3d Cir.
1999) (holding that the employer's duty to engage in the interactive
process is triggered "[o]nce the employer knows of the disability
and the employee's desire for accommodations" and that the employer
must "`meet the employee half-way'" by requesting additional
information) (quoting Bultemeyer v. Fort Wayne Community Schools,
100 F.3d 1281, 1285 (7th Cir. 1996)); Bultemeyer, 100 F.3d at 1285
("The employer has to meet the employee half-way, and if it appears
that the employee may need an accommodation but doesn't know how to
ask for it, the employer should do what it can to help"); Taylor v.
Principal Fin. Group Inc., 93 F.3d 155, 165 (5th Cir. 1996) ("Thus, it
is the employee's initial request for an accommodation which
triggers the employer's obligation to participate in the interactive
process of determining one"). But see Willis v. Conopco,
108 F.3d 282, 285 (11th Cir. 1997) (holding that the plaintiff must
evidence that a reasonable accommodation is available before an
employer is obligated to engage in the interactive process).[fn2]
U.S. Air argues that Barnett bears the burden of demonstrating
the availability of a reasonable accommodation. To put the entire
burden for finding a reasonable accommodation on the disabled
employee or, effectively, to exempt the employer from the process
of identifying reasonable accommodations, conflicts with the
goals of the ADA. The interactive process is at the heart of
the ADA's process and essential to accomplishing its goals.
It is the primary vehicle for identifying and achieving effective
adjustments which allow disabled employees to continue working
without placing an "undue burden" on employers. Employees do
not have at their disposal the extensive information concerning
possible alternative positions or possible accommodations which
employers have. Putting the entire burden on the employee to identify
a reasonable accommodation risks shutting out many workers simply
because they do not have the superior knowledge of the workplace
that the employer has.
As the Third Circuit explained, since the regulations require
the interactive process to identify appropriate accommodations,
"it would make little sense to insist that the employee must
have arrived at the end product of the interactive process before
the employer has a duty to participate in that process." Taylor,
184 F.3d at 316. At the same time, the employee holds essential
information for the assessment of the type of reasonable accommodation
which would be most effective.[fn3] While employers have superior
knowledge regarding the range of possible positions and can
more easily perform analyses regarding the "essential functions"
of each, employees generally know more about their own capabilities
The statute further does not allow employers to avoid reasonable
accommodation absent a showing of undue hardship. The ADA's
reasonable accommodation requirement puts the burden on the
employer to show that a proposed accommodation will cause undue
hardship.[fn4] See 42 U.S.C. Ã‚Â§ 12112(b)(5)(A) (an employer violates
the ADA by "not making reasonable accommodations . . . unless such
covered entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered entity".).
Therefore, we join explicitly with the vast majority of our sister
circuits in holding that the interactive process is a mandatory
rather than a permissive obligation on the part of employers
under the ADA and that this obligation is triggered by an employee
or an employee's representative giving notice of the employee's
disability and the desire for accommodation. In circumstances
in which an employee is unable to make such a request, if the
company knows of the existence of the employee's disability,
the employer must assist in initiating the interactive process.[fn5]
We next turn to the requirements of the interactive process.
Both the legislative history and the EEOC regulations detail
the nature of the interaction required of employers and employees.
The Senate Report outlined four steps which employers should
follow when engaging in the interactive process:
[T]he Committee believes the employer should consider
four informal steps to identify and provide an
The first informal step is to identify barriers to
equal opportunity. This includes identifying and distinguishing
between essential and nonessential job
tasks and aspects of the work environment of the relevant
. . . Having identified the barriers to job performance
caused by the disability, the second informal
step is to identify possible accommodations.
. . . Having identified one or more possible accommodations,
the third informal step is to assess the
reasonableness of each in terms of effectiveness and
. . . The final informal step is to implement the
accommodation that is most appropriate for the
employee and the employer and that does not impose
an undue hardship on the employer's operation or to
permit the employee to provide his or her own
accommodation if it does not impose an undue hardship.
. . . The expressed choice of the applicant or
employee shall be given primary consideration
unless another effective accommodation exists that
would provide a meaningful equal employment
S. Rep. No. 101-116, at 35 (1989); see also H.R. Rep. No. 101-485,
pt. 2, at 66 (1990).
The EEOC also outlines the four steps critical to the interactive
process. Once a request for a reasonable accommodation has been
made, the EEOC requires an employer to:
(1) Analyze the particular job involved and determine
its purpose and essential functions;
(2) Consult with the individual with a disability to
ascertain the precise job-related limitations imposed
by the individual's disability and how those limitations
could be overcome with a reasonable accommodation;
(3) In consultation with the individual to be
accommodated, identify potential accommodations
and assess the effectiveness each would have in
enabling the individual to perform the essential functions
of the position and;
(4) Consider the preference of the individual to be
accommodated and select and implement the accommodation
that is most appropriate for both the
employee and the employer.
29 C.F.R. Pt. 1630, App. Ã‚Â§ 1630.9.
The interactive process requires communication and good-faith
exploration of possible accommodations between employers and
individual employees. The shared goal is to identify an accommodation
that allows the employee to perform the job effectively. Both
sides must communicate
directly, exchange essential information[fn6] and neither
side can delay or obstruct the process. See Smith, 180 F.3d at 1172
("The interactive process includes good-faith communications
between the employer and employee."); Beck v. University of Wis.
Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)
("A party that obstructs or delays the interactive process is not acting in
good faith. A party that fails to communicate, by way of initiation
or response, may also be acting in bad faith.").
In order to demonstrate good faith, employers can point to cooperative
behavior which promotes the identification of an appropriate
accommodation. Employers should "meet with the employee who
requests an accommodation, request information about the condition
and what limitations the employee has, ask the employee what
he or she specifically wants, show some sign of having considered
employee's request, and offer and discuss available alternatives
when the request is too burdensome." Taylor, 184 F.3d at 317.
The interactive process requires that employers analyze job functions
to establish the essential and nonessential job tasks. In order
to identify the barriers to job performance, employers must
consult and cooperate with disabled employees so that both parties
discover the precise limitations and the types of accommodations
which would be most effective. The evaluation of proposed accommodations
requires further dialogue and an assessment of the effectiveness
of each accommodation, in terms of enabling the employee to
successfully perform the job. See 29 C.F.R. Pt. 1630, App. Ã‚Â§
Once the employer and employee have identified and assessed the
range of possible reasonable accommodations, the legislative
history directs that "the expressed choice of the applicant
shall be given primary consideration unless another effective
accommodation exists that would provide a meaningful equal employment
opportunity." S. Rep. No. 101-116, at 35 (1989); see also H.R.
Rep. No. 101-485, at 67 (1990). An appropriate reasonable accommodation
must be effective, in enabling the employee to perform the duties
of the position.
We next turn to the consequences for employers who fail to engage
in the interactive process in good faith. The Seventh Circuit
held that "courts should attempt to isolate the cause of the
breakdown [in the interactive process] and then assign responsibility"
so that "[l]iability for failure to provide reasonable accommodations
ensues only where the employer bears responsibility for the
breakdown." Beck, 75 F.3d at 1135-37.
Most circuits have held that liability ensues for failure to
engage in the interactive process when a reasonable accommodation
would otherwise have been possible. See Smith, 180 F.3d at 1174;
Taylor, 184 F.3d at 317-18; Bultemeyer, 100 F.3d at 1285; Principal,
93 F.3d at 165. The range of possible reasonable accommodations,
for purposes of establishing liability for failure to accommodate,
can extend beyond those proposed:
an employer who acts in bad faith in the interactive
process will be liable if the jury can reasonably conclude
that the employee would have been able to
perform the job with accommodations. In making
that determination, the jury is entitled to bear in
mind that had the
employer participated in good faith, there may have been
other, unmentioned possible accommodations.
Taylor, 184 F.3d at 317-318.
A number of circuits have further held that an employer cannot
prevail at summary judgment if there is a genuine dispute as
to whether the employer engaged in the interactive process in
good faith. See Fjellestad, 188 F.3d at 953 ("we find that summary
judgment is typically precluded when there is a genuine dispute
as to whether the employer acted in good faith and engaged in
the interactive process of seeking reasonable accommodations");
Taylor, 184 F.3d at 318 ("where there is a genuine dispute about
whether the employer acted in good faith, summary judgment will
typically be precluded"); Baert v. Euclid Beverage, Ltd.,
149 F.3d 626, 633-34 (7th Cir. 1998) (refusing to grant an employer
summary judgment because disputes of fact remained about which party
caused the breakdown in the interactive process).
The interactive process is the key mechanism for facilitating
the integration of disabled employees into the workplace. Employers
who reject this core process must face liability when a reasonable
accommodation would have been possible. Without the interactive
process, many employees will be unable to identify effective
reasonable accommodations. Without the possibility of liability
for failure to engage in the interactive process, employers
would have less incentive to engage in a cooperative dialogue
and to explore fully the existence and feasibility of reasonable
accommodations. The result would be less accommodation and more
litigation, as lawsuits become the only alternative for disabled
employees seeking accommodation. This is a long way from the
framework of cooperative problem solving based on open and individualized
exchange in the workplace that the ADA intended. Therefore,
summary judgment is available only where there is no genuine
dispute that the employer has engaged in the interactive process
in good faith.
We hold that employers, who fail to engage in the interactive
process in good faith, face liability for the remedies imposed
by the statute if a reasonable accommodation would have been
possible. We further hold that an employer cannot prevail at
the summary judgment stage if there is a genuine dispute as
to whether the employer engaged in good faith in the interactive
In this case, Barnett triggered the interactive process obligation
by communicating to U.S. Air his desire for accommodation based
on his disability. In fact, Barnett went even further and identified,
in addition to assignment to the mail room, at least two different
accommodations which might have allowed him to remain in the
cargo facility. However, U.S. Air appears not to have seriously
considered the suggestions.
U.S. Air rejected all three of Barnett's proposed reasonable
accommodations and offered no practical alternatives. The special
lifting equipment Barnett requested for the cargo position may
well have been an adequate reasonable accommodation. Barnett
researched mechanical lifting devices and proposed that U.S.
Air purchase a low-tech device to assist him in the loading
and unloading of cargo. U.S. Air's only offer was for a forklift
to lift individual suitcases. Proposing the use of a forklift
to lift an individual suitcase is like giving Barnett a shotgun
to swat a fly or a Phillips head screwdriver for a flat screw.
U.S. Air might as well have told Barnett to use a backhoe. That
a tool performs a similar function doesn't make it a proper
tool for a particular job. Barnett sought a mechanical accommodation
to compensate for his disability; U.S. Air, in effect, ignored
his request. Thus, U.S. Air's failure to engage in the interactive
process foreclosed at least one potentially reasonable accommodation.
It is less clear whether Barnett's other suggestion of modifying
the cargo position to require only desk work was a reasonable
accommodation. Although U.S. Air argues that this accommodation
would require the elimination of essential functions of the
cargo job, it may only have required reassignment of functions
among personnel. Although U.S. Air had performed a job analysis
on the position in 1992, for purposes of workers' compensation,
this analysis did not involve an assessment of the position's
essential functions. The duties of the cargo position were divided
between front office, warehouse and lifting cargo. Not all cargo
agents lifted cargo on any given day and employees were apparently
allowed to trade job duties and avoid lifting cargo. Yet, the title
of the position is a general one of "cargo agent." Thus, there is a
sufficient factual dispute to require further proceedings to evaluate
whether this accommodation would have required any elimination of the
essential functions of the position.
U.S. Air rejected each of Barnett's several proposed reasonable
accommodations and merely offered that Barnett could apply for
any position for which he was qualified given his restrictions
and for which he had sufficient seniority. U.S. Air did not
seek to have a dialogue with Barnett but instead rejected his
proposed accommodations by letter. The time between Barnett's
initial accommodation request and U.S. Air's rejection letter
was nearly five months. This delay and U.S. Air's failure to
communicate do not reflect good faith engagement in the interactive
process on the part of U.S. Air. Nor is U.S. Air's offer to
Barnett to bid on other jobs, a right he already had, a reasonable
accommodation of a disabled employee. There is no evidence in
the record that Barnett was qualified for any other position,
without accommodation, in San Francisco or elsewhere in the
U.S. Air system. This is not a case where it is obvious that
no modification could enable the employee to perform the essential
functions of a job or where the employee has caused the process
to break down. Given U.S. Air's failure to engage in the interactive
process, liability would be appropriate if a reasonable accommodation
would otherwise have been possible. There remains conflicting
evidence in the record as to whether a reasonable accommodation
without undue hardship to the employer was possible. Thus, a
triable issue of fact exists on this issue.
Barnett argues that it would have been a reasonable accommodation
for U.S. Air to allow him to remain in the mail room, by making
an exception to its seniority policy. The ADA explicitly states
that reasonable accommodation may include reassignment. See
42 U.S.C. Ã‚Â§ 12111(9)(B). The key questions are whether a seniority
system is a per se bar to reassignment as a reasonable accommodation
and whether a disabled employee seeking reasonable accommodation
should have priority in reassignment.
The EEOC's enforcement guidance makes it clear that reassignment
is a reasonable accommodation to which disabled employees should
have priority over non-disabled employees and even when transfers
are normally not allowed:
The ADA requires employers to provide reasonable
accommodations to individuals with disabilities,
including reassignment, even though they are not
available to others. Therefore, an employer who does
not normally transfer employees would still have to
reassign an employee with a disability, unless it
could show that the reassignment caused an undue
hardship. And, if an employer has a policy prohibiting
transfers, it would have to modify that policy in
order to reassign an employee with a disability,
unless it could show undue hardship.
EEOC Enforcement Guidance, EEOC Compliance Manual at 5454.
The EEOC explains that a modification in workplace policy can
be a reasonable
accommodation, absent undue hardship: "[Reassignment] must be
provided to an employee who, because of a disability, can no
longer perform the essential functions of his/her current
position, with or without reasonable accommodation, unless the
employer can show that it would be undue hardship." Id. at 5452.
U.S. Air argues that the ADA guarantees Barnett no more than
the opportunity to apply for and compete for reassignment. However,
the EEOC leaves no doubt that reassignment involves more than
a mere opportunity for disabled employees to compete: "Reassignment
means that the employee gets the vacant position if s/he is qualified
for it. Otherwise, reassignment would be of little value and would
not be implemented as Congress intended." Id. at 5456.
En banc decisions in several circuits adopt the EEOC's position.
In Aka v. Washington Hospital Center 156 F.3d 1284 (D.C. Cir.
1998) (en banc), the D.C. Circuit, sitting en banc, rejected
the argument that reassignment entitles a disabled employee
to nothing more than a chance to compete for a position. The
D.C. Circuit explained that the view that the ADA requires no
priority for disabled employees in reassignment "misunderstand[s]
both the text and legislative history of the statute, and deviate[s]
from the construction of the statute by other circuits . . .
Indeed the ADA's reference to reassignment would be redundant
if permission to apply were all it meant." Id. at 1304.
The Tenth Circuit, sitting en banc, also made clear that the
ADA's "reassignment obligation must mean something more than
merely allowing a disabled person to compete equally with the
rest of the world" and pointed out that reassignment is "one
of the forms of reasonable accommodation specifically mentioned
by the statute to be utilized if necessary and reasonable to
keep an existing disabled employee employed by the company."
Smith, 180 F.3d at 1165.
The question of whether an employer's unilaterally imposed seniority
system trumps a disabled employee's right to reassignment has
not been answered directly by any other circuit.[fn8] Although
there is no legislative history specifically on a seniority system
outside of the collective bargaining context, the legislative history
that does exist argues against any per se rule barring reassignment
in the context of seniority systems.
The legislative history indicates that a collective bargaining
agreement can be a factor in determining the reasonableness
of an accommodation but rejects any per se bar. As explained
in the House Report:
if a collective bargaining agreement reserves certain
jobs for employees with a given amount of seniority,
it may be considered as a factor in determining
whether it is a reasonable accommodation to assign
an employee with a disability without seniority to the
job. However, the agreement would not be determinative
on the issue.
H.R. Rep. No. 101-485, pt. 2, at 63 (1990); see also S. Rep.
No. 101-116, at 32 (1989). In addition to rejecting a per se
bar, both reports envision that collective bargaining agreements
will incorporate provisions allowing for compliance with the
ADA "by ensuring that agreements negotiated after the effective
date of this title contain a provision permitting the employer
to take all actions necessary to comply with this legislation."
The EEOC also rejects any blanket rule that a collective bargaining
agreement trumps a reasonable accommodation: "In the EEOC's
view, such a per se rule nullifies Congress' intent that undue
hardship always be determined on a case-bycase basis." EEOC
Guidance, EEOC Compliance Manual at 5463. Instead, the EEOC
requires a fact specific analysis which treats the collective
bargaining agreement (CBA) as another factor in judging undue
First, an employer should determine if it could provide
a reasonable accommodation that would remove
the workplace barrier without violating the CBA. If
no reasonable accommodation exists that avoids violating
the CBA, then the ADA requires an employer
and a union, as a collective bargaining representative,
to negotiate in good faith a variance to the CBA
so that the employer may provide a reasonable
accommodation, except if the proposed accommodation
unduly burdens the expectations of other workers
(i.e., causes undue hardship). Undue hardship
must be assessed on a case-by-case basis to determine
the extent to which the proposed accommodation
would affect the expectations of other
employees. Among the relevant factors to assess
would be the duration and severity of any adverse
effects caused by granting a variance and the number
of employees whose employment opportunities
would be affected by the variance.
Both the legislative history and the EEOC reject any per se rule
barring reasonable accommodation even when reassignment would
conflict with a collective bargaining agreement.[fn9] Here, where
there is no collective bargaining agreement, no bargained for
rights are involved. It would seem that the seniority system
without more should not bar reassignment. Without reassignment
as a reasonable accommodation,
even in the context of a seniority system, the goals of the ADA
could easily be frustrated. Any per se rule barring reassignment
because of conflicts with a seniority system would sharply limit
the range of available accommodations without any required showing
of an undue burden on the employer. In many cases this would
eliminate the most effective or the only effective reasonable
A per se bar 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. Only in the event of "undue hardship" can a
seniority system be a bar to reasonable accommodation.
42 U.S.C. Ã‚Â§ 12112(b)(5)(A). The ADA defines "undue hardship" as "an
action requiring significant difficulty or expense."
42 U.S.C. Ã‚Â§ 12111(10)(A). The statute offers a list of factors to be
considered in appraising whether there is undue hardship, including the
cost of the accommodation, the overall financial resources of
the company and the scope of the employer's operations. See
42 U.S.C. Ã‚Â§ 12111(10)(B).[fn10] While reassignment might constitute
an undue burden in some cases, courts cannot assume that which
is the employer's burden to prove.
We hold that reassignment is a reasonable accommodation and that
a seniority system is not a per se bar to reassignment. However,
a seniority system is a factor in the undue hardship analysis.
A case-by-case fact intensive analysis is required to determine
whether any particular reassignment would constitute an undue
hardship to the employer. If there is no undue hardship, a disabled
employee who seeks reassignment as a reasonable accommodation, if
otherwise qualified for a position, should receive the position
rather than merely have an opportunity to compete with non-disabled
Summary judgment was inappropriate in this case. Barnett initiated
the interactive process and suggested remaining in the mail
room as his preferred accommodation. U.S. Air did not show that
the proposed accommodation was an undue hardship. Barnett already
occupied the mail room position at the time of his request for
reasonable accommodation. Therefore, permanently reassigning
Barnett to the mail room position as a reasonable accommodation
did not require "bumping" any other employee from the position.
While this accommodation would eliminate one position from the
seniority bid process, U.S. Air has failed to demonstrate that
doing so would cause an undue hardship. It would need to demonstrate
that accommodating Barnett in this fashion would cause undue
disruption in its seniority system. In its rebuttal, U.S. Air
offered only the statement of its Vice President of Human Resources,
who feared a "domino effect," and a copy of its seniority policy.
Yet the record provides no information concerning the number
claimants at U.S. Air, their seniority, or their need to be
accommodated by exceptions to the seniority rules.[fn11] Mere
speculation is insufficient to support summary judgment that
the requested accommodation would impose undue hardship. We
hold that a triable issue of fact exists.
Barnett claims that U.S. Air retaliated against him for his request
for accommodation by placing him on involuntary job injury leave
in January of 1993 and by terminating his salary continuance
in February of 1993. The district court granted summary judgment
to U.S. Air on this claim.
The ADA provides that: "[n]o person shall discriminate against
any individual because such individual has opposed any act or
practice made unlawful by this chapter. " 42 U.S.C. Ã‚Â§ 12203
(a). The ADA further makes it "unlawful to coerce, intimidate,
threaten or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or
enjoyed . . . any right granted or protected by this chapter."
42 U.S.C. Ã‚Â§ 12203 (b).
In order to resolve Barnett's retaliation claim, it is necessary
to establish a framework for analyzing retaliation claims under
the ADA. Most other circuits have adopted the Title VII framework
for analyzing ADA retaliation claims. See Sarno v. Douglas Elliman-Gibbons
& Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999); Talanda v. KFC
National Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998);
Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th
Cir. 1998); Penny v. United Parcel Service, 128 F.3d 408, 417
(6th Cir. 1997); Stewart v. Happy Herman's Cheshire Bridge,
117 F.3d 1278, 1287 (11th Cir. 1997); Soileau v. Guilford of
Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997).
Adopting the Title VII framework incorporates a comprehensive
body of law analyzing workplace retaliation. This seems useful.
Therefore, we join our sister circuits in adopting the Title
VII retaliation framework for ADA retaliation claims.
To establish a prima facie case of retaliation under the ADA,
a plaintiff must show (1) that he or she engaged in or
was engaging in activity protected by the ADA, (2) the employer
subjected him or her to an adverse employment decision, and
(3) that there was a causal link between the protected activity
and the employer's action. See Yartzoff v. Thomas, 809 F.2d 1371,
1375 (9th Cir. 1987).
The district court concluded that Barnett failed to make out
a prima facie case because he failed to demonstrate a causal
connection between his request for accommodation and his involuntary
placement on job injury leave. Barnett produced sufficient evidence
to make a causal connection based on the temporal proximity
of the adverse action and his request for reasonable accommodation.
See Id. at 1376.
However, U.S. Air met its burden in offering a "legitimate non-retaliatory
explanation for its [employment] decisions." Id. After receiving
Barnett's request for accommodation, U.S. Air created a temporary
limited duty position for him. After five months, U.S. Air put
Barnett on job injury leave.
Barnett failed to raise a genuine issue of fact suggesting that
U.S. Air's reason for putting him on job injury leave was a
mere pretext. U.S. Air may have been mistaken as to its obligations
under the ADA but it did keep Barnett in the limited duty position
for twice the usual time. Absent evidence that U.S. Air's decision
was for retaliatory reasons, Barnett's retaliation claim should
not have survived summary judgment.
We reverse the district court's summary judgment dismissal of
Barnett's ADA discrimination claims. U.S. Air has failed to
engage in good faith in the interactive process. U.S. Air should
face liability for the remedies imposed by the statute if reasonable
accommodation would be possible without an undue hardship to
the company. Barnett's request to remain in the mail room was a
reasonable accommodation absent proof of undue hardship and possible
accommodations in the cargo facility may have been reasonable
accommodations absent proof of undue hardship. Only a trial can
resolve the factual dispute over whether reasonable accommodation can
be made for Barnett. Therefore, Barnett's discrimination claims
should be remanded to the district court for trial. The district
court's summary judgment dismissal of Barnett's retaliation claims is
AFFIRMED in part, REVERSED in part and REMANDED.
[fn1] The district court determined that Barnett was "disabled"
under the ADA and U.S. Air concedes that they did not raise
this issue to the court on appeal.
In his dissent, Judge O'Scannlain argues that U.S. Air has not
waived the issue of whether Barnett is "disabled." However,
the law of this circuit is that issues not raised in a party's
opening brief are waived. See Paracaor Finance v. General Elec.
Capital corp., 96 F.3d 1151, 1168 (9th Cir. 1996) (Judge O'Scannlain
writing for the court). Only last year, Judge O'Scannlain reaffirmed
this principle as the law of our circuit on at least three separate
occasions. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) ("arguments not raised by a party in its opening brief
are deemed waived."); Brookfield Communications, Inc. v. West
Coast Entertainment Corp., 174 F.3d 1036, 1046 n. 7 (9th Cir.
1999) ("Brookfield chose not to argue its trademark dilution
claim or its state law causes of action in its opening brief.
We accordingly deem those issues waived."); Zukle v. Regents
of University of California, 166 F.3d 1041, 1045 n. 10 (9th Cir.
1999) ("Zukle did not raise her race, sex or sexual harassment
claims in her opening brief; therefore she has waived any appeal
from the district court's grant of summary judgment on these
claims."). Issues are deemed waived, as Judge O'Scannlain has
pointed out, despite the existence of supplemental briefing. See
Kreisner v. City of San Diego, 1 F.3d 775, 778 n. 2 (9th Cir. 1993).
As we explained in Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (internal citation omitted): "We review only issues which
are argued specifically and distinctly in a party's opening
brief. We will not manufacture arguments for an appellant, and
a bare assertion does not preserve a claim." We have consistently
regarded issues raised for the first time in reply briefs as
waived. See Omega Environmental, Inc. v. Gilbarco, Inc.,
127 F.3d 1157, 1167 (9th Cir. 1997); McMillan v. United States,
112 F.3d 1040, 1047 (9th Cir. 1997). Thus, since U.S. Air failed
to raise the issue of Barnett's "disability" in its opening
and reply brief, this issue was waived despite the filing of
supplemental briefs. As U.S. Air saw fit to raise this issue
before the district court, before our decision in Thompson v.
Holy Family Hospital, 121 F.3d 537 (9th Cir. 1997), came down,
it had the opportunity to raise the issue in a cross-appeal.
Furthermore, the facts of this case do not fit under our ruling
in Thompson. In Thompson, the only restriction imposed on the
plaintiff was a twenty five-pound lifting restriction. Id. at
539. In contrast here, as the dissent concedes, Barnett faced
further restrictions regarding prolonged standing or sitting
and excessive or repeated bending, twisting, turning, stooping,
pulling and pushing. The dissent claims special insight into
these restrictions and concludes that the lifting restriction
was actually the only "crucial limitation." There is no basis
in the record for this conclusion. The question of whether Barnett
is "disabled" is analytically distinct from an analysis of the
functions of the mail room position, which the dissent appears
to rely on. Nonetheless, the job analysis of the mail room position,
which did not involve an assessment of the position's essential
functions, still showed that the position did not require prolonged
standing or sitting or excessive bending, stooping, pulling
[fn2] The First Circuit, in Jacques v. Clean-Up Group, Inc.,
96 F.3d 506, 515 (1st Cir. 1996), opted for a case-by-case approach
but explained that "[t]here may well be situations in which
the employer's failure to engage in an informal interactive
process would constitute a failure to provide reasonable accommodation
that amounts to a violation of the ADA." Later cases have suggested
that the employee bears the burden of showing reasonable accommodation
but have continued the case-by-case approach: "[t]hese are difficult,
fact intensive, case-by-case analyses, ill-served by per se
rules or stereotypes." Garcia-Ayala v. Lederle Parenterals,
Inc., 212 F.3d 638, 650 (1st Cir. 2000).
[fn3] Under the Rehabilitation Act, the Fifth Circuit held that
"the burden of persuasion in proving inability to accommodate
always remains on the employer." Prewitt v. United States Postal
Serv., 662 F.2d 292, 308 (5th Cir. 1981). We followed the Fifth
Circuit in holding that "the burden of persuasion in proving
inability to accommodate always remains on the employer." Mantolete
v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). However, our
later cases under the Rehabilitation Act suggested a higher
burden for plaintiffs. See Buckingham v. United States,
998 F.2d 735, 740 (9th Cir. 1993) ("[P]laintiffs must only provide
evidence sufficient to make `at least a facial showing that
reasonable accommodation is possible' "); Mustafa v. Clark County
Sch. Dist., 157 F.3d 1169, 1176 (9th Cir. 1998) ("[Plaintiff]
bears the initial burden of showing that `the suggested accommodation
would, more probably than not, have resulted in his ability
to perform the essential functions of his job'").
[fn4] In analyzing undue hardship, the focus is on the impact
of a possible accommodation on the employer. Conversely, in
assessing reasonable accommodations the primary focus is on whether
the accommodation effectively allows a disabled employee to
successfully perform the job.
See 29 C.F.R. Pt. 1630, App. Ã‚Â§ 1630.9.
[fn5] In keeping with the statutory requirements, employers must
notify applicants and employees of the reasonable accommodation
provisions, who is entitled to an accommodation and what is
necessary to trigger the interactive process. See
42 U.S.C. Ã‚Â§ 12115 ("Every employer, employment agency, labor organization,
or joint labor-management committee covered under this subchapter
shall post notices in an accessible format to applicants, employees,
and members describing the applicable provisions of this chapter.").
[fn6] Under the Rehabilitation Act, employers were required to
"gather sufficient information from the applicant and from qualified
experts as needed to determine what accommodations are necessary
to enable the applicant to perform the job safely." Mantolete,
767 F.2d at 1423. We note that an employer cannot ask an employee
for documentation unrelated to establishing the existence of
a disability and the necessity of accommodation. Therefore,
an employer generally cannot ask for an employee's complete
medical records because they are likely to contain information
unrelated to the disability at issue. See EEOC Enforcement Guidance,
EEOC Compliance Manual at 5440.
[fn7] If an employer fails to participate in or obstructs the
interactive process, injunctive relief is an available remedy
to insure compliance with the requirement of good faith interaction
and to require reasonable accommodation. See 42 U.S.C. Ã‚Â§ 12117
(a) (making injunctive relief available under Title I of
the ADA by incorporating the remedies ofS 2000e-5).
[fn8] At best other circuits have opined in dicta as to what
approaches the courts should take. In Smith, 180 F.3d at 1176,
the Tenth Circuit, in discussing the various situations an employer
might face in making a reassignment opined (although the issue
was not before it) that "an industry may have a well entrenched
seniority system which, even though not rooted in a collective
bargaining agreement, is so well established that it
gives rise to legitimate expectations by other, more senior employees
to a job that the disabled employee might desire. Requiring
an employer to disrupt and violate any such well-established
reasonable expectations of seniority rights in order to favor
a disabled employee in a job reassignment could, at least under
some circumstances, constitute a fundamental and unreasonable
alteration in the nature of the employer's business." The court
cites to Aka at 156 F.3d at 1305. Aka had at issue a dispute
over Aka's job qualifications and the meaning of the collective
bargaining agreement that allowed the employer latitude in some
circumstances in reassignment of disabled employees after stating
"It seems clear that WHC [the employer] had power under Section
14.5 of the CBA to reassign its disabled employees to vacant
positions in at least some circumstances." Id. at 1303. It remanded
for trial. The court concluded with this statement: "Given the
large number of contingencies that could preclude such a conflict,
we see no need to address whether, if such a conflict arose,
the CBA or the ADA would give way in the circumstances of this
case." Id. at 1306. Aka refers to Dalton v. Subaru-Isuzu Automobile,
Inc., 141 F.3d 667 (7th Cir. 1998). The issues before the Seventh
Circuit were the qualifications of disabled employees for available
jobs:"If any of the plaintiffs had been able to point to a particular
job that was filled by a temporary worker while a plaintiff
was on disability leave, and then had been able to show that
he or she could have done that job consistent with the relevant
qualifications, summary judgment would have been wrong. But
no one was able to do so." Id. at 679-680. In dicta, it opined
that the duties of the employer under the ADA to reassign do
not go so far as to extend [the duty to reassign] "to virtually
every other job in a company, from the president to the janitors.
Nothing in the ADA requires an employer to abandon its legitimate,
nondiscriminatory company policies defining job qualifications,
prerequisites, and entitlements to intra-company transfers."
[fn9] Despite this guidance in the legislative history and the
EEOC, most circuits including our own have reached the opposite
conclusion and held that the ADA does not require an accommodation
which conflicts with a collective bargaining agreement. See
Davis v. Florida Power & Light Co., 205 F.3d 1301, 1307 (11th
Cir. 2000); Willis v. Pacific Maritime Assoc., 162 F.3d 561
(9th Cir. 1998); Feliciano v. State of Rhode Island, 160 F.3d 780,
787 (1st Cir. 1998); Cassidy v. Detroit Edison Co.,
138 F.3d 629, 634 (6th Cir. 1998); Kralik v. Durgin, 130 F.3d 76,
83 (3d Cir. 1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800,
810 (5th Cir. 1997); Eckles v. Consol. Rail Corp., 94 F.3d 1041,
1051 (7th Cir. 1996); Milton v. Scrivner, Inc., 53 F.3d 1118,
1125 (10th Cir 1995); Benson v. Northwest Airlines,
62 F.3d 1108, 1114 (8th Cir. 1995). Willis has been held in abeyance
pending the completion of the en banc proceedings in this case.
None of the cases listed in this footnote confronted the question
presented to us Ã¢â‚¬â€ we confront a seniority system not grounded
in a collective bargaining agreement.
[fn10] The ADA has no language protecting the operation of a
"bona fide seniority system" similar to that which is included
in Title VII. See 42 U.S.C. Ã‚Â§ 2000e-2(h). We note that the
"undue hardship" standard in the ADA is substantially more demanding
than the hardship standard in Title VII in the context of "reasonable
accommodation " for the religion of employees. See Trans World
Airlines v. Hardison, 432 U.S. 63, 84 (1977); Balint v. Carson
City, Nevada, 180 F.3d 1047, 1053 (9th Cir. 1999) (en banc)
(relying on Hardison in a religious discrimination claim brought
under Title VII). The legislative history supports this interpretation.
See S. Rep. No. 101-116, at 36 (1989) ("The Committee wishes
to make it clear that the principles enunciated by the Supreme
Court in TWA v. Hardison, 432 U.S. 63 (1977), are not applicable
to this legislation.); see also H.Rep. No. 101-485, pt. 2,
at 68 (1990) ("By contrast, under the ADA, reasonable accommodation
must be provided unless they rise to the level of `requiring
significant difficulty or expense' on the part of the employer,
in light of the factors noted in the statute-i.e., a significantly
higher standard than that articulated in Hardison. This higher
standard is necessary in light of the crucial role that reasonable
accommodation plays in ensuring meaningful employment opportunities
for people with disabilities.")
[fn11] Interestingly, U.S. Air does provide an exception in its
seniority system for catastrophic illness.
GOULD, Circuit Judge, with whom Circuit Judge Thomas,
I concur in the court's excellent opinion, but set forth my views
concerning the relationship between the demonstration of reasonableness
and undue hardship. The court's opinion touches upon the relationship
between reasonable accommodation and undue hardship. See Majority
Op. at n. 4. I believe that a broader explication of this relationship
Under the statute, a reasonable accommodation is one that will
allow the employee to perform the essential functions of the
job. An accommodation is reasonable if it will work for the
employee. Reasonableness has nothing to do with the "difficulty
or expense" that the employer will face in making the accommodation.
The ADA defines "reasonable accommodation" with examples of accommodations
that self-evidently will assist people with various disabilities
to perform the essential functions of their jobs. See
42 U.S.C. Ã‚Â§ 12111(9). Nothing in the definition refers to the employer
or to the effect on the employer of providing such accommodation.
See Steven Miller, Disability Civil Rights and a New Paradigm for the
Twenty-First Century: The Expansion of Civil Rights Beyond Race,
Gender, and Age, 1 U. Pa. J. Lab. & Employment L. 511, 519 (1998)
(noting this distinction).
The statute's definition of "discrimination" supports this reading
of "reasonable." The ADA defines discrimination as a failure
to provide a reasonable accommodation unless doing so would
result in undue hardship to the employer. Discrimination is:
"not making reasonable accommodations to the known physical
and mental limitations of an otherwise qualified individual
with a disability . . . unless such[employer] can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity."
42 U.S.C. Ã‚Â§ 12112(b)(5)(A).
Undue hardship is defined as "an action requiring significant
difficulty or expense, when considered in light of the factors
set forth in subparagraph (B)." 42 U.S.C. Ã‚Â§ 12111(10) (emphasis
added). This definition expressly includes economic considerations
and other difficulties for the employer.
We must read a statute to give effect to each word in it, so
that none are superfluous. See State v. Watkins, 939 F.2d 710,
715 (9th Cir. 1991). The word "reasonable" in 42 U.S.C. Ã‚Â§ 12112
(b)(5)(A) must refer to something other than the effects
of the difficulty or expense on the employer of providing an
accommodation. The 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
This relationship between the demonstration of reasonableness
and undue hardship has several virtues. First, it fits the ADA
structure and follows the ADA's text.
Second, it avoids the evident confusion in trying to give meaning
to both "undue hardship" and "reasonable" if "reasonable" were to
include the same effects on the employer as are considered in
"undue hardship." And third, the employee can better determine
what accommodation will work for him or her, while the employer
has greater access to information about whether a particular
accommodation will cause an undue hardship.
Under the statute's express terms, the "difficulty or expense"
of an accommodation should not be considered in assessing "reasonable
accommodation," but, rather, considered only in assessing "undue
O'SCANNLAIN, Circuit Judge, with whom Circuit Judges
Trott and Kleinfeld join, dissenting:
The sweeping language and exalted tone of the court's wide-ranging
opinion make clear that it aspires to offer a definitive interpretation
of the Americans with Disabilities Act (ADA). This might be
less disturbing if this case actually involved an American with
a disability. Because the court reaches out to decide several
important issues of first impression in a case without a proper
plaintiff, I must respectfully dissent.
Robert Barnett suffers from back problems. Barnett's doctor has
imposed upon him permanent restrictions that prohibit him from
excessive bending, twisting, and turning; prolonged standing
or sitting; and lifting twenty-five pounds or more. Barnett
claims that these restrictions prevent him from serving in the
cargo position but do not prevent him from working in the swing-shift
mailroom position. The functions of the mailroom position include
occasional bending and frequent twisting and turning; occasional
standing or sitting; and some lifting. The crucial limitation
imposed upon Barnett, then, is the twenty-five pound lifting
restriction, because it is the only restriction that would prevent
him from handling cargo, but would not prevent him from working in
The record evidence in this case clearly establishes that Barnett
is not disabled within the meaning of the ADA. In Thompson v.
Holy Family Hospital, 121 F.3d 537 (9th Cir 1997), we affirmed
the summary judgment dismissal of an ADA case on the ground
that the plaintiff failed to create a genuine issue of material
fact as to her disability. Cynthia Thompson, like Robert Barnett,
suffered from back problems, and her doctor, like Barnett's
doctor, prohibited her from lifting more than twenty-five pounds.
See id. at 539. The Thompson court found this limitation inadequate
to establish a triable issue as to the plaintiff's disability.
Although it acknowledged that lifting and working constitute
"major life activities" for purposes of the ADA's implementing
regulations, Thompson's twenty-five-pound lifting restriction
did not constitute "the requisite evidence that she is substantially
limited with respect to these activities." Id. at 539-40 (expressing
agreement with "[a] number of courts [that] have held that lifting
restrictions similar to Thompson's are not substantially limiting"
(citing cases)). Although Thompson's lifting restriction prevented
her from serving as a nurse performing "total patient care"
duties, just as Barnett's identical lifting restriction prevented
him from serving in the cargo position, the panel held that
"[t]he inability to perform one particular job does not constitute
[a substantial] limitation " on the general ability to work.
Id. at 540.
The similarities between Thompson and the instant case, in terms
of both the plaintiff's claimed disabilities and the employer's
responses thereto, are striking. Under Thompson, it is clear
that no genuine issue of material fact exists as to Barnett's
disability. The district court's grant of summary judgment should
The court addresses (or dodges) the question whether Barnett
is "disabled" under
the ADA in a footnote, noting in passing that the district court
concluded that Barnett was "disabled" under the ADA and that U.S.
Air did not raise the issue of Barnett's disability on appeal.
Maj. op. at 12805 n. 1. The failure of U.S. Air to file a
cross-appeal, however, in no way precludes us from affirming based on
Barnett's failure to establish that he is disabled. Contrary to the
suggestion in that footnote, it is well-settled that we may affirm a
grant of summary judgment based on any ground supported by the
record. See, e.g., Albertson's, Inc. v. United Food and Commercial
Workers Union, 157 F.3d 758, 760 n. 2 (9th Cir. 1998); Intel Corp. v.
Hartford Accident and Indem. Co., 952 F.2d 1551, 1556 (9th Cir.
1991). In Intel, the district court granted Intel's motion for
summary judgment, holding, in part, that Hartford, which had issued
an insurance policy to Intel, waived its reliance on one of the policy's
exclusions. We affirmed the grant of summary judgment, but on
a different ground. We examined the policy's exclusion, and
held that there was no material issue of fact as to the exclusion's
application. See id. at 1561.
Although U.S. Air did not present the issue of Barnett's disability
(or lack thereof) in a separate appeal, the parties have had
more than ample opportunity to brief and to argue the issue
in both the district court and this court. Before the district
court, U.S. Air argued that Barnett's lifting restrictions did
not render him disabled under the ADA; Barnett opposed granting
summary judgment on that basis. In a fairly brief discussion,
the district court determined that summary judgment could not
be properly granted on the issue because of evidence showing
Barnett's back injury to be "serious and permanent."
On August 26, 1996, Barnett filed his notice of appeal in our
court; U.S. Air did not file a cross-appeal.[fn12] One year later,
on August 8, 1997, we decided Thompson. In our order filed September
16, 1997, we specifically directed the parties to file supplemental
briefs discussing Thompson. These briefs were filed in advance
of oral argument before the three-judge panel, held on October
In both the district court and this court, the parties have had
the opportunity to develop, and have actually developed, the
issue of Barnett's disability, both before, and in light of,
Thompson. As a result, nothing bars us from taking the prudential
path and refraining from deciding weighty issues in a weightless
case. Cf. Belotti v. Baird, 428 U.S. 132, 143-44 (1976). In
Belotti, the Court held that the district court should have
abstained from deciding a constitutional issue, stating that,
"It is not entirely clear that appellants suggested the same
interpretation in the District Court as they suggest here. Nevertheless,
the fact that full arguments in favor of abstention may not
have been asserted in the District Court does not bar this Court's
consideration of the issue." Id. at 143 n. 10 (internal citation
omitted). Cf. Delange v. Dustra Const. Co., 183 F.3d 916, 919
n. 3 (9th Cir. 1999) (recognizing that this circuit may exercise
its discretion to review issues raised for the first time on
Barnett's case simply cannot bear the weight that the court seeks
to place upon it. A case so transparently lacking in merit is
an inappropriate vehicle for deciding multiple questions of
first impression concerning the proper construction of an important
statute (and creating a circuit split in the process, see maj.
op. at 12821 n. 8). The court has issued what in effect amounts
to a lengthy advisory opinion on the ADA; when this case returns
to the district court, the only appropriate course of action
will be to dispose of it under Thompson.
Because Barnett is simply not disabled under the ADA, the district
court's grant of summary judgment was proper and should be affirmed.
I respectfully dissent.
[fn12] The fact that Thompson was decided well after the time
for U.S. Air to file a notice of appeal had passed may explain
in part U.S. Air's failure to take a cross-appeal.
TROTT, Circuit Judge, with whom Circuit Judges
O'Scannlain and Kleinfeld join, dissenting:
In taking this case en banc, we ordered that our deceased colleague
Judge Charles Wiggins's panel opinion be vacated. With all respect,
I cannot agree with the majority's new opinion for our court,
and because I am unable to improve on Judge Wiggins's analysis
of the important seniority system issue in this case, I republish
here his excellent analysis from his extirpated work.
Moreover, I am troubled by the regrettable position in which
we leave employers, employees, and the lawyers who advise them
in connection with these important and possibly costly decisions.
To require them to deal with a seniority system as "merely one
factor" leaves them with no guidance, none at all. This default
portends litigation in every case where a seniority system blocking
the accommodation is respected, and even possibly in cases where
it is not, brought in that instance by aggrieved persons earlier
in line for the job.
What to do with seniority systems in this context is a policy
question for Congress, one which we as judges have no authority
or ability to resolve. We are left with legislation by litigation,
and we become a nation not of laws, but of lawyers. In any event,
forced to decide, I go with Judge Wiggins, and I express posthumously
my thanks for his usual clear vision and remarkable service
to our court. Here is how he saw it.
The ADA's ambiguous legislative history is of little help in
determining whether seniority policies should be treated the
same under the ADA and the Rehabilitation Act. On one hand,
there is evidence that Congress considered seniority rights
to be merely one factor in reasonable accommodation analysis
under the ADA, rather than a dispositive factor. See S. Rep.
No. 101-116, at 32 (1989) ("The collective bargaining agreement
could be relevant, however, in determining whether a given
accommodation is reasonable. For example, if a collective bargaining
agreement reserves certain jobs for employees with a given amount of
seniority, it may be considered as a factor in determining whether it
is a reasonable accommodation to assign an employee with a disability
without seniority to that job.") H.R. Rep. No. 101-485, pt. 2, at 63
(1990) (same language), reprinted in 1990 U.S.C.C.A.N. 303, 345. On
the other hand, the House and Senate Reports also state that reasonable
accommodation does not require "bumping" a more senior employee
to create a vacancy (although if the employer chose to do so,
such bumping would constitute reasonable accommodation). See
S. Rep. No. 101-116, at 32 (1989); H.R. Rep. No. 101-485, pt.
2, at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345.
In the face of this ambiguity, I am persuaded by wellreasoned
opinions from other circuits that have concluded that the ADA
does not require an employer to give disabled employees preference
over nondisabled employees in hiring and reassignment decisions.
But this is precisely what Barnett requests. U.S. Air's seniority
system is a decades-old system that controls the duty assignments,
shifts, transfers, holidays, etc. of U.S. Air's approximately
fourteen thousand customer service agents. Barnett does not
claim that U.S. Air's policy is illegitimate and an excuse for
unlawful discrimination. But Barnett does claim that U.S. Air
should have left him in the mailroom position, thus excepting
him from its seniority policy, because of his disability. Although
many ADA cases have held that reasonable accommodation does
not require exempting a disabled employee from a collectively
bargained seniority system, see, e.g., Foreman v. Babcock &
Wilcox, Co., 117 F.3d 800, 810 (5th Cir. 1997); Cochrum v. Old
Ben Coal Co., 102 F.3d 908, 912-13 (7th Cir. 1996); Eckles v.
Consolidated Rail Corp.,
94 F.3d 1041, 1051 (7th Cir. 1996) (adopting a "per se"
rule that reasonable accommodation does not require "sacrificing the
collectively bargained, bona fide seniority rights of other
employees"); Benson v. Northwest Airlines, Inc., 62 F.3d 1108,
1114 (8th Cir. 1995), Barnett argues that his case is different
because U.S. Air's seniority policy is not the result of a
collective bargaining agreement. I reject this argument and agree
with a Fifth Circuit panel that, in dicta, found Barnett's claimed
distinction to be irrelevant. In Foreman v. Babock Wilcox Co.,
117 F.3d 800 (5th Cir. 1997), the Fifth Circuit rejected a
disabled employee's claim that the ADA required his employer to
reassign him to a new position even in the face of a collectively
bargained seniority provision that would prohibit the requested
transfers. The Court rejected the employee's argument, making
clear that its decision was not based on the special status of
collective bargaining agreements.
[E]ven if there were no CBA in place, B & W would
not be obligated to accommodate Foreman by reassigning
him to a new position. "[W]e do not read the
ADA as requiring affirmative action in favor of individuals
with disabilities, in the sense of requiring
disabled persons be given priority in hiring or reassignment
over those who are not disabled. It prohibits
employment discrimination against qualified
individuals with disabilities, no more and no less.
Foreman, 117 F.3d at 810 (quoting Daugherty v. City of El Paso,
56 F.3d 695 (5th Cir. 1995)).
I agree with the Daugherty court and the other circuits that
have interpreted the ADA as requiring no more than equality
among disabled and nondisabled employees in hiring and reassignment
decisions. This principle was well articulated by a recent Seventh
While Congress enacted the ADA to establish a
"level playing field" for our nation's disabled workers,
it did not do so in the name of discriminating
against persons free from disability. Restated, the
ADA does not mandate a policy of "affirmative
action in favor of individuals with disabilities, in the
sense of requiring that disabled persons be given priority
in hiring or reassignment over those who are
Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700 (7th Cir.
1998) (quoting Daugherty, 56 F.3d at 700); see also Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679 (7th Cir. 1998)
("[W]e have been unable to find a single ADA or Rehabilitation
Act case in which an employer has been required to reassign
a disabled employee to a position when such a transfer would
violate a legitimate, nondiscriminatory policy of the employer,
and for good reason. The contrary rule would convert a nondiscrimination
statute into a mandatory preference statute, a result which
would be both inconsistent with the nondiscriminatory aims of
the ADA and an unreasonable imposition on the employers and
coworkers of disabled employees.") (internal citations omitted);
Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384-85
(2d Cir. 1996) ("Congress intended simply that disabled persons
have the same opportunities available to them as are available
to nondisabled persons."); Duckett v. Dunlop Tire Corp.,
120 F.3d 1222, 1225 (11th Cir. 1997) ("We are aware of no case under
either the ADA or the Rehabilitation Act where an employer has
been required to transfer an employee to another position where
the employer (independent of concerns about disability) has
a business policy against the pertinent kind of transfer.")
But see Aka v. Washington Hospital Center, 156 F.3d 1284, 1305
(D.C. Cir. 1998) (en banc) (noting that "[a]n employer is not
required to reassign a disabled employee in circumstances `when
such transfer would violate a legitimate, nondiscriminatory
policy of the employer,' " but also arguing against the dissent's
claim that the ADA "mandat[es] nothing more than that the employer
allow the disabled employee to submit his application along
with all of the other candidates.").
Because Barnett's proposed accommodation would violate U.S. Air's
legitimate seniority policy, I find that the proposed accommodation
is unreasonable under the ADA.