UNITED STATES COURT OF APPEALS

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS................................................................................ i

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

INTRODUCTION.......................................................................................... 1

ARGUMENT................................................................................................. 3

CONCLUSION............................................................................................. 25

CERTIFICATE OF COMPLIANCE............................................................. 26

APPENDIX

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Alston v. WMATA,

571 F. Supp. 2d 77 (D.D.C. 2008)............................................................ 14

Aka v. Washington Hospital Center,

156 F.3d 1284 (D.C. Cir. 1998) (en banc)............................................... 14

Bauer v. Shepard,

620 F.3d 704 (7th Cir. 2010)..................................................................... 24

Board of Trustees of Leland Stanford Jr. Univ. v. Roche Molecular Systems,

131 S. Ct. 2188 (2011).............................................................................. 18

Buchmeier v. United States,

581 F.3d 561 (7th Cir. 2009).............................................................. 19, 23

Colby v. J.C. Penney Co.,

811 F.2d 1119 (7th Cir. 1987)............................................................. 18, 24

Craig v. Potter,

90 Fed. App’x 160 (7th Cir. 2004) (unpublished)................................. 2324

Cravens v. Blue Cross & Blue Shield,

214 F.3d 1011 (8th Cir. 2000)..................................................................... 5

Dalton v. Subaru Isuzu Automobile, Inc.,

141 F.3d 667 (7th Cir. 1998)............................................................... 15, 16

EEOC v. Humiston-Keeling,

227 F.3d 1024 (7th Cir. 2000)............................................................ passim

EEOC v. Sears, Roebuck & Co.,

417 F.3d 789 (7th Cir. 2005).................................................................... 4-5

Gile v. United Airlines,

95 F.3d 492 (7th Cir. 1996).......................................................................... 9

Haas v. Abrahamson,

910 F.2d 384 (7th Cir. 1990)..................................................................... 17

Holly v. Clairson Industries,

492 F.3d 1247 (11th Cir. 2007)................................................................. 21

Huber v. Wal-Mart Stores,

486 F.3d 480 (8th Cir.),

cert. granted in part, 552 U.S. 1074 (2007),

cert. dismissed on stipulation of the parties, 552 U.S. 1136 (2008).... 19, 20

Huber v. Wal-Mart Stores (denying rehearing en banc),

493 F.3d 1002 (8th Cir. 2007)................................................................... 20

King v. City of Madison,

550 F.3d 598 (7th Cir. 2008)................................................................ 23-24

Long Island Care at Home v. Coke, 551 U.S. 158 (2007)............................... 11

Mays v. Principi,

301 F.3d 866 (7th Cir. 2002)............................................................ 2, 20-24

Meritor Savings Bank v. Vinson,

477 U.S. 57 (1986).................................................................................... 11

Payne v. Tennessee,

501 U.S. 808 (1991).................................................................................. 21

Shapiro v. Township of Lakewood,

292 F.3d 356 (3d Cir. 2002)................................................................ 21, 22

Smith v. Midland Brake,

180 F.3d 1154 (10th Cir. 1999) (en banc)...................................... 5-6, 8, 14

Tobin v. Liberty Mutual Insurance Co.,

553 F.3d 121 (1st Cir. 2009)..................................................................... 22

Turner v. Hershey Chocolate,

440 F.3d 604, 614 (3d Cir. 2006)............................................................ 22

United States v. Anderson,

885 F.2d 1248 (5th Cir. 1989)................................................................... 21

United States v. Berkos,

543 F.3d 392 (7th Cir. 2008)....................................................................... 9

United States v. IBM Corp.,

517 U.S. 843 (1996).................................................................................. 24

US Airways v. Barnett,

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

STATUTES, REGULATIONS, and RULES

Americans with Disabilities Act,

42 U.S.C. §§ 12101 et seq.................................................................. passim

42 U.S.C. § 12101(6)............................................................................ 13

42 U.S.C. § 12101(a)(8)........................................................................ 12

42 U.S.C. § 12111(8)............................................................................ 10

42 U.S.C. § 12111(9).......................................................................... 3, 9

42 U.S.C. § 12111(9)(B)......................................................................... 9

29 C.F.R. §§ 1630 et seq................................................................................ 11

Seventh Circuit Rule 40(e).............................................................................. 25

OTHER AUTHORITY

S. Rep. No. 116, 101st Cong., 1st Sess. (1989),

available at http://transition.fcc.gov/Bureaus/OSEC/

library/legislative_histories/1387.pdf.................................................. passim

EEOC Guidance: Reasonable Accommodation & Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002),

also available at www.eeoc.gov/policy/docs/accommodation.html............ 11

Brief for Appellant, King v. City of Madison,

No. 08-2052 (7th Cir. filed June 6, 2008)................................................ 23

Reply Brief, King v. City of Madison,

No. 08-2052 (7th Cir. filed July 21, 2008) .............................................. 23

Brief for Appellant, Mays v. Principi,

No. 01-4227 (7th Cir. filed Feb. 22, 2002) ................................................ 24

Brief for Appellee, Mays v. Principi,

No. 01-4227 (7th Cir. filed April 24, 2002) .............................................. 24

Reply Brief, Mays v. Principi,

No. 01-4227 (7th Cir. filed May 8, 2002) ................................................. 24

Petition for Rehearing, Mays v. Principi,

No. 01-4227 (7th Cir. filed Nov. 6, 2002).................................................. 24

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________________

No. 11-1774

_______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

UNITED AIRLINES, INC.,

Defendant-Appellee.

_______________________________________________

On Appeal from the United States District Court

for the Northern District of Illinois

Judge Harry D. Leinenweber

_______________________________________________

REPLY BRIEF OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

________________________________________________

INTRODUCTION

The Commission alleges that United Airlines violates the ADA by requiring employees to compete for jobs instead of reassigning them to vacant positions for which they are qualified when, due to disability, they become unable to continue doing their current jobs even with reasonable accommodation. On United’s motion following transfer of the case to this Circuit, the district court dismissed the case in light of EEOC v. Humiston-Keeling, 227 F.3d 1024, 1027-28 (7th Cir. 2000), which held that, where an employer has a “consistent and honest” best-qualified-selection policy, the ADA “does not require [the] employer to reassign a disabled employee to a job for which there is a better applicant.”

Our opening brief argued that the Court should revisit Humiston-Keeling for two principal reasons. First, as two en banc courts have held, the better reading of the ADA, consistent with the plain text and legislative history of the reassignment provision, as well as the overall structure and purpose of the statute, is that, in appropriate circumstances, employers like United may be required to reassign disabled employees to vacant positions for which they are fully qualified when no other reasonable accommodation will allow them to continue working. Second, and more importantly, we argued that Humiston-Keeling was seriously undermined by USAirways v. Barnett, 535 U.S. 391 (2002), and the cursory treatment of Barnett in Mays v. Principi, 301 F.3d 866 (7th Cir. 2002), suggests the Court did not have an opportunity to fully consider Barnett’s impact on this Court’s precedent.

United’s brief distorts or sidesteps most of the Commission’s arguments and does not meaningfully respond to others. The company’s main argument, however, is stare decisis. The company argues that this Court should not revisit Humiston-Keeling because, right or wrong, it is settled law in this circuit and there is no “compelling reason” to change. In so doing, however, the company urges an interpretation of Barnett that, as the Barnett dissent acknowledged, was rejected by the majority. As explained more fully below, therefore, stare decisis principles would not prevent this Court from reconsidering and overruling Humiston-Keeling.

ARGUMENT

1. In our opening brief, we argued that, in appropriate circumstances, employers like United must reasonably accommodate disabled employees by reassigning them to vacant positions for which they are qualified when disability prevents them from doing their current jobs even with other accommodations. We noted that the ADA expressly defines “reasonable accommodation” to include “reassignment to a vacant position” (42 U.S. § 12111(9)); that “reassign” means “appoint,” not “permit to compete”; and that, as a listed accommodation, a request for reassignment is presumptively “reasonable” in the “run of cases.” See Barnett, 535 U.S. at 402-03. We further argued that, like its plain text, the legislative history of the reassignment provision and the overall structure and purpose of the statute all support our reading of the statute which has been endorsed by the en banc Tenth and D.C. Circuits. Thus, we argued, United’s “competitive transfer policy,” which never provides for reassignment, does not accord with the ADA. We recognized, of course, that Humiston-Keeling is to the contrary, but we argued inter alia that the precedent and policy on which it is based were undermined by Barnett. See EEOC Brief at 12-25.

In its opposition brief, United asserts that Humiston-Keeling carefully considered the plain text and legislative history of the reassignment provision. See, e.g., Brief at 11 (“after considering the plain language of the ADA . . .”). However, the company cites nothing — because there is nothing — to support this assertion.

The company then offers its own view of the applicable text and legislative history. Regarding the text, United agrees that “reassign” means “appoint” and, so, tacitly concedes that, as a matter of policy, it never “reassigns” employees as a reasonable accommodation. Brief at 8. But, according to the company, EEOC errs in focusing so heavily on the word “reassignment.” Rather, United argues, the “ADA provides that reasonable accommodation ‘may include’ any number of potential options,” only one of which is reassignment, and specifies that accommodations must be “reasonable.” While this argument is not entirely clear, since its policy does not provide for reassignment, United appears to be arguing that reassignment is not reasonable and that the “may include” language allows the company to choose from among the other available accommodations. See Brief at 8-9 (adding that “EEOC’s interpretation would render the phrase ‘may include’. . . meaningless”).

If so, that is incorrect. The employer’s obligation extends to providing an accommodation “that effectively accommodate[s] the individual’s “limitations.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005). The definition of reasonable accommodation provides illustrations of accommodations, all of which are presumptively reasonable and any of which “may be required” in appropriate circumstances. S. Rep. No. 116 (“Senate Report”) at 29 (also noting that determining which accommodation is appropriate for a specific individual requires a case-by-case approach).[1] The definition uses the term “may include” both because the list is not “exhaustive” and because the employer may not need to offer each accommodation on the list to each employee. See id. An individual limited only in walking, for example, need not be offered a sign language interpreter, also one of the listed options. See 42 U.S.C. § 12111(9)(B). But under United’s interpretation, an employer could likewise choose not to offer an interpreter to its deaf employees — and could then replace those individuals with non-deaf employees who were better qualified without an interpreter. The Eighth Circuit refused to adopt a similar argument in Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1018 (8th Cir. 2000); cf. Smith v. Midland Brake, 180 F.3d 1154, 1167-68 & nn.6-7 (10th Cir. 1999) (questioning whether under dissent’s reading of reassignment provision, employer could avoid providing other enumerated reasonable accommodations besides reassignment, adding, “to ask the question is to answer it”).

Turning to the legislative history, United acknowledges that Congress’s purpose in including the reassignment provision was to ensure, as much as possible, that disabled workers who cannot be reasonably accommodated in their current jobs will not end up “out of work” and that employers will not lose valuable employees. See Brief at 15 (citing Senate Report at 29). The company argues, however, that other legislative history establishes that employers may prefer a better qualified non-disabled “applicant” over a disabled applicant or employee needing reassignment as a reasonable accommodation. See id. As authority, the company provides a quote from the Senate Report stating that an employer may “choose and maintain qualified workers” and “select the most qualified applicant available.” Brief at 15 (quoting Senate Report at 24); see also id. (citing, e.g., Senate Report at 25 (employer need not “prefer applicants with disabilities over those [sic] applicants on the basis of disability”)). United contends that the reference to “maintaining qualified workers” removes any doubt that the passage applies only to “outside applicants” rather than also to “current employees” seeking reassignment. Brief at 15 n.8.

This argument relies on legislative history of a separate section of the ADA, quoted out of context. Properly understood, it does not support United’s position. Specifically, the quoted legislative history addresses the definition of “qualified individual with a disability,” not reassignment or reasonable accommodation. Compare Senate Report at 24-26 (“Qualified individual with a disability”) and Senate Report at 28-33 (discussing duty to provide reasonable accommodation, including, at 29, “reassignment to a vacant position”). It therefore does not directly bear on the employer’s duty to reasonably accommodate disabled employees needing reassignment.

Moreover, although the brief purports to quote a single passage from the Senate Report, it actually merges and quotes from two separate passages. The first passage ends after the word “disability” in line 6 and addresses “workers”: the legislation is not intended to “undermine the employer’s ability to choose and maintain qualified workers.” The second begins after that and addresses “applicants”: employers may still choose the “the most qualified applicant available.” This distinction between “qualified workers” and “qualified applicants” accords with the legislative history of the reassignment provision quoted in our brief, which specifies, in accordance with the plain meaning of “reassignment,” that the reasonable accommodation of reassignment “is not available to applicants for employment.” See Senate Report at 29. It is, however, available to current employees.

Alternatively, United argues that EEOC’s interpretation of the statute would require “mandatory reassignment to the desired job in the first instance.” Brief at 12; accord id. at 7. To the contrary, we never argued that reassignment is reasonable or appropriate in every case where it is requested. See EEOC Brief at 21 n.4 & passim. Indeed, reassignment need not be offered in the two most common situations where reasonable accommodation is required — where the individual can be accommodated in his current position or is entitled to a different position by reason of seniority.[2] Nor does this accommodation apply to applicants. Moreover, the employer is not required to bump another employee, create a new position, violate the terms of a seniority system, or offer the individual a job for which he is not fully qualified. Nor need the individual be promoted, although a demotion should be considered only as a last resort. If there are multiple possibilities, the individual is not entitled to his preferred accommodation but only to one that meets his needs. Finally, there may be times when the employer can show that a specific reassignment would result in undue hardship. See, generally, e.g., Gile v. United Airlines, 95 F.3d 492, 499 (7th Cir. 1996). Only where all of these criteria are met, no undue hardship is shown, and nothing else would work, would an employer like United be required to offer to reassign a disabled employee as a reasonable accommodation of his disability.

2. Our opening brief also argued that the structure of the ADA supports our view that an employer cannot satisfy its duty to provide reasonable accommodation merely by allowing employees who need reassignment to compete for vacant positions. We argued that the reassignment provision would be redundant if employers were required to select disabled employees only if they were the best qualified since refusing to do so would likely constitute unlawful disparate treatment. See, e.g., EEOC Brief at 18-19 (citing Board of T’ees of Leland Stanford Jr. Univ. v/ Roche Molecular Sys., 131 S. Ct. 2188, 2196 (2011) (noting “Supreme Court’s general reluctance to treat statutory terms as surplusage”); see also United States v. Berkos, 543 F.3d 392, 396-97 (7th Cir. 2008) (“We avoid interpreting a statute in a way that renders a word or phrase redundant or meaningless.”) (citation omitted). We also noted that, contrary to Humiston-Keeling’s suggestion that the provision is needed to remove any argument that employers need only accommodate employees in their existing positions, the definition of “qualified individual with a disability” under 42 U.S.C. § 12111(8) already serves that purpose: an individual is qualified if he can do the essential functions of the job he “holds or desires.” 42 U.S.C. § 12111(8) (emphasis added).

United makes two responses, both unavailing. First, the company agrees with the Commission that § 12111(8) “does imply that the employer’s duty to provide reasonable accommodations extends to positions which a qualified disabled applicant or employee “desires.” Brief at 12. Nevertheless, the company continues, our argument is “incorrect” because § 12111(8) does not state that employers must take “the drastic step of mandatory assignment to the desired job in the first instance as a form of reasonable accommodation irrespective of more qualified applicants.” Brief at 12.

That is a non-sequitur. Our point was simply that, because the purpose served by § 12111(8) is the same as the purpose Humiston-Keeling identified for the reassignment provision, Humiston-Keeling’s interpretation would render the reassignment provision redundant. United agrees with that point. We never argued that either the definition of qualified individual with a disability or the reassignment provision requires “mandatory assignment to the desired job.”[3]

Second, the company takes issue with our statement that “awarding a disabled employee a job for which he is the best qualified would not normally be considered an accommodation at all but simply non-discriminatory treatment” (EEOC Brief at 18). United asserts that denying the job to the best-qualified individual would be disparate treatment only if disability were the reason for the decision. Brief at 11 n.5. However, under a best-qualified-selection policy, the “best-qualified” individual presumably would get the job even if he or she were disabled. At a minimum, therefore, denying the individual the position would raise a strong inference of disability discrimination.[4] Moreover, if it is United’s position that it may reject the “best-qualified” candidate, despite his qualifications, the company arguably does not have a “consistent and honest policy to hire the best applicant” (227 F.3d at 1029), and the case should not have been dismissed under Humiston-Keeling.

3. Finally, we argued that the purpose of the statute supports our interpretation of the reassignment provision. EEOC Brief at 19-20 (listing goals as assuring “equality of opportunity, full participation, independent living, and economic self-sufficiency,” citing 42 U.S.C. s 2101(a)(8)). In response, United cites the same list of goals as we did; it simply highlights a different item — “equality of opportunity” — on the list. See Brief at 14. As we noted, however, Congress had several goals in mind in passing the ADA. 42 U.S.C. § 12101(a)(8). Our interpretation of the statute, unlike United’s, furthers three of these four objectives: “independent living,” “economic self-sufficiency” and “equality of opportunity.”

United describes as “speculative,” “disingenuous,” “totally unsupported and patently unbelievable” EEOC’s argument that reassigning disabled employees to vacant positions furthers the ADA’s objective of equal employment opportunity because, unlike disabled employees who would otherwise lose their jobs, unsuccessful non-disabled applicants have the option of remaining where they are. (EEOC Brief at 28). United asserts that non-disabled employees may need the vacancy because of “plant closings, relocations, layoffs, and RIFs.” Brief at 18.

What United fails to recognize, however, is that it was Congress’s decision, not EEOC’s, to include “reassignment” as a reasonable accommodation. 42 U.S.C § 12111(9). In passing the ADA, Congress recognized that individuals 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). In hard times, people with disabilities have even more trouble finding work than do people without disabilities. See U.S.DOL Office of Disability Employment Policy, August 2011 Disability Employment Statistics (stating that 16.1% of people with disabilities seeking work were unemployed compared to 8.8% of non-disabled people), available at http://www.dol.gov/odep/. As Congress explained, to the extent disabled workers can remain employed in jobs for which they are fully qualified when, due to disability, they can no longer do their current jobs, employers do not lose “valuable” workers and workers do not join the ranks of unemployed disabled people. See Senate Report at 29.

4. Turning to Humiston-Keeling, our opening brief acknowledged that it rejected the Commission’s interpretation of the reassignment provision (EEOC Brief at 22-23), even though our interpretation was shared by the en banc Tenth and D.C. Circuits. See Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999) (en banc); Aka v. Washington Hosp. Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc).[5] We contended, however, that Humiston-Keeling, unlike Smith and Aka, is not based on the plain text and legislative history of the statute. As noted above, United’s brief points to nothing that contradicts this contention.

We also contended that the Court should revisit Humiston-Keeling because its continued viability was placed in serious doubt by Barnett. We noted that Humiston-Keeling and prior circuit decisions are premised on the dual assumptions that the ADA (1) is a “nondiscrimination” statute, not a “mandatory preference act,” and (2) does not require employers to provide accommodations that would violate any “‘legitimate, nondiscriminatory policy of the employer,’” including a best-qualified-selection policy. 227 F.3d at 1028 (quoting, inter alia, Dalton v. Subaru-Isuzu Automotive, 41 F.3d 667, 679 (7th Cir. 1998)). Rather, the Court concluded, employers need only “clear away obstacles” that prevent the applicants from competing equally in the workplace. Id. at 1028-29. We pointed out that Barnett, by contrast, held that the ADA does require preferences — that is the essence of a reasonable accommodation; and that employers may therefore be required to make exceptions to disability-neutral policies in order to provide necessary accommodations. EEOC Brief at 26-31. We added that Barnett described a request for reassignment as “reasonable,” “ordinarily” or “in the run of cases,” even when the request would violate a disability-neutral policy, but carved out a narrow exception for seniority systems — the policy at issue there — because such systems occupy a special status in the law. Finally, we noted that, contrary to United’s reading of the decision, the dissenting opinion in Barnett removes any argument that the decision is limited only to policies that prevent disabled employees from competing equally in the workplace. While the dissent would have held, consistent with Humiston-Keeling, that the ADA requires only that employers must eliminate barriers only if a disability prevents an employee from overcoming them, the majority did not adopt this interpretation of the ADA. EEOC Brief at 25-30.

United’s brief does not take on these arguments directly. Initially, it accuses the Commission of overstating Humiston-Keeling but quotes nothing inaccurate in our brief. Brief at 16. In fact, as our brief correctly reflects, in explaining that the ADA is “not a mandatory preference act,” Humiston-Keeling states that “an employer is not required ‘to reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer’” and then applies that rule to best-qualified-selection policies. Compare Humiston-Keeling, 227 F.3d at 1028-29 (quoting, e.g., Dalton, 141 F.3d at 679), and EEOC Brief at 22-23, 25. Otherwise, United simply reiterates its position, which we addressed, that Barnett is not inconsistent with Humiston-Keeling because Barnett, like Humiston-Keeling, requires employers to provide only reasonable accommodations “that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy.’” Brief at 17-18 (citing Barnett, 535 U.S. at 397) (emphasis in United’s Brief). Indeed, the brief ignores our argument regarding the Barnett dissent and instead cites the Barnett dissent as positive authority for its position. Brief at 17.

5. Despite its weak responses to our other arguments, United has another weapon. The company argues that, even if Humiston-Keeling was wrongly decided, this Court should apply principles of stare decisis to affirm the judgment dismissing this enforcement action. The company notes that, while the Court may reexamine its precedents, it should do so only for “compelling reasons” such as where “they have been overruled or undermined by the decisions of a higher court.’” Brief at 6 (quoting Haas v. Abrahamson, 910 F.32d 384, 393 (7th Cir. 1990)).

Here, the company argues, there are “no Supreme Court decisions directly on point”; Barnett does not count because it “did not address, directly or indirectly, the reasonableness (presumptive or otherwise) of an employer’s use of a competitive transfer policy.” Brief at 3-4. Moreover, the company speculates, employers have relied on Humiston-Keeling for eleven years and EEOC’s proposed rule would be “unworkable.” Id. at 22-23. Furthermore, the argument goes, the Eighth Circuit recently “followed” this Court’s lead, thereby exacerbating the circuit split, and, despite “repeated opportunities” to overrule Humiston-Keeling post Barnett, this Court has continued to cite the decision with approval. Brief at 13, 19-20. Thus, in the company’s view, there are no “compelling reasons” for the Court to reconsider its precedent.

None of United’s proffered reasons would justify this Court’s refusing to reconsider Humiston-Keeling. Most importantly, as United’s cited authority makes clear, this Court should revisit precedent that has been “undermined” by a Supreme Court decision whether or not that decision “directly” addresses the exact factual scenario of the prior Seventh Circuit case. By rejecting the premises on which Humiston-Keeling is based, Barnett clearly satisfies that standard. Regarding whether employers have relied on Humiston-Keeling, United supplies no information as to how many, if any, employers — aside from United itself — have adopted best-qualified-selection policies because of Humiston-Keeling. To the extent they do have such policies, however, even if the Court overruled Humiston-Keeling, employers could continue to apply their policies in most circumstances. The only change would be that, absent undue hardship, the employer would have to make an exception to the policy for a disabled employee who needs a reassignment as his only possible accommodation where there is an suitable vacant position for which he is fully qualified. We note that such a change might actually benefit national employers like United that have facilities in several circuits. United, for example, has a hub in Denver and, so, must follow Smith when employees seek a reassignment there. As this Court has recognized, such circuit conflicts often place a party in an “impossible position” of trying to satisfy both circuit standards. Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987) (adding that “the case of a [later] court’s not going into conflict with [an earlier court] is particularly strong” where “different outcomes would place a [party] under inconsistent legal duties”).

United similarly offers no evidence to support its speculation that the “EEOC’s interpretation” would prove “unworkable.” Brief at 21-22.[6] While we appreciate the company’s concerns, they are exaggerated. As noted above, “EEOC’s interpretation” is the same as that of Smith and Aka. Thus, employers in the Tenth and D.C. Circuits — including, presumably, United in its Denver hub — have been following that “interpretation,” apparently without incident, for at least twelve years.

Turning to post-Barnett case law, the fact that the Eighth Circuit in 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), recently adopted Humiston-Keeling’s approach to reassignment should not dissuade this Court from reconsidering Humiston-Keeling. This is true even though, as United points out, overruling Humiston-Keeling would not entirely eliminate the split in circuits. This Court has recognized that while the Court should not overrule a decision merely to move from one side of a circuit split to the other, “[o]verruling circuit law can be beneficial when the circuit is an outlier and can save work for Congress and the Supreme Court by eliminating a conflict. Even when an overruling does not end the conflict, it might supply a new line of argument that would lead other circuits to change their positions in turn.” Buchmeier v. United States, 581 F.3d 561, 565-66 (7th Cir. 2009). Here, as United recognizes, the Huber Court did not independently analyze the reassignment issue in light of Barnett but simply “followed” this Court (Brief at 21) — even to the point of copying this Court’s assertion that Humiston-Keeling is “bolstered” by Barnett. Huber, 486 F.3d at 483-84. Thus, if this Court were to overrule Humiston-Keeling, it is quite possible that the Eighth Circuit would follow suit. See also Huber v. Wal-Mart Stores, 493 F.3d 1002 (8th Cir. 2007) (four Eighth Circuit judges dissenting from denial of rehearing en banc).

As for this Court’s post-Barnett caselaw, it should likewise pose no serious impediment to reconsideration of Humiston-Keeling. The only case to address Barnett and Humiston-Keeling is Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). In two sentences, Mays concludes that Barnett “bolster[s]” Humiston-Keeling’s holding that an employer does not violate its duty of reasonable accommodation by giving a job to a better qualified non-disabled applicant, rather than to a disabled employee needing reassignment. Id. at 872. It reaches this conclusion by equating the seniority system in Barnett to “the employer’s normal method of filling vacancies” in Mays, and a senior employee’s “entitlement” to a position under a seniority system to a “better-qualified” employee’s so-called “entitlement to a position” under a best-qualified-selection policy. Id. As we explained (EEOC Brief at 32-34), however, Barnett devoted several paragraphs to explaining why seniority systems deserve special treatment due to their unique status under custom and law. An ordinary and common policy like a best-qualified-selection policy does not receive comparable treatment, nor does such a policy “entitle” an employee to a particular position in the same sense that a seniority system does. Mays therefore is badly reasoned. “[W]hen governing decisions are . . . badly reasoned, ‘[courts have] never felt constrained to follow precedent.’” Payne v. Tenn., 501 U.S. 808, 827-28 (1991); see also United States v. Anderson, 885 F.2d 1248, 1255 (5th Cir. 1989) (en banc) (noting that “where a wrong turn has been taken, back is the shortest way forward”).

In defense of Mays, United takes issue with our argument that, under Barnett, as a “general rule,” employers must provide reasonable accommodations even if they would violate a disability-neutral policy, subject to a “narrow exception” for seniority systems. United argues that we have no authority for either this “general rule” or this “narrow exception.” See Brief at 20 (also suggesting that Mays correctly “found strong analytical similarities” between best-qualified-selection policies and seniority systems).

While there is little caselaw addressing best-qualified-selection policies after Barnett, circuits that have discussed Barnett have not interpreted the decision narrowly. Rather, they treat Barnett’s general rule as applying broadly to other kinds of disability-neutral policies (see, e.g., Holly v. Clairson Indus., 492 F.3d 1247, 1263-64 (11th Cir. 2007) (punctuality policy); Shapiro v. Township of Lakewood, 292 F.3d 356, 360-61 (3d Cir. 2002) (transfer application policy), and its exception as applying to seniority systems. See, e.g., Turner v. Hershey Chocolate, 440 F.3d 604, 614 (3d Cir. 2006) (proposed accommodation should not “conflict with seniority rules”).

By way of illustration, Tobin v. Liberty Mutual Insurance Co., 553 F.3d 121, 137 (1st Cir. 2009), concerned a policy of awarding special “Mass Marketing” accounts to high-performing agents as a perk for their performance. Although he did not meet the eligibility requirements, the plaintiff requested but was denied such accounts as an accommodation for his disability; the jury found in his favor. On appeal, the First Circuit had “little difficulty” rejecting the defendant’s argument that such an accommodation was unreasonable. The Court reasoned that a “request for accommodation cannot be deemed unreasonable solely because the disabled employee has failed to satisfy standard eligibility requirements for the benefit. Such a conclusion would turn the ADA’s accommodation requirement on its head.” Id. at 137 (citing Barnett, 535 U.S. at 397-38 (also noting evidence that employer did not apply requirement uniformly)). Similarly, in Shapiro, 292 F.3d 356, then-Judge Alito rejected an argument that, because the plaintiff failed to follow his employer’s disability-neutral policy of requiring employees seeking an interdepartmental transfer to reply to a posting for such a position, the employer was not required to consider him for reassignment to such positions. Significantly, that policy, like United’s best-qualified-selection policy, did not limit employees’ access to equal employment opportunity.

Accordingly, even if it had carefully considered all of the ins and outs of Humiston-Keeling and Barnett, this Court’s decision in Mays extending Barnett’s exception for seniority systems to any employer’s normal practice of filling vacancies renders it an “outlier” decision (Buchmeier, 581 F.3d at 566), and, as such, warrants reconsideration.

United also argues that the Court had opportunities in Craig v. Potter, 90 Fed. App’x 160 (7th Cir. 2004) (unpublished), and King v. City of Madison, 550 F.3d 598 (7th Cir. 2008)), to revisit Humiston-Keeling after Barnett and consistently chose to reaffirm Humiston-Keeling. Brief at 21. To the contrary, the question was not squarely presented in either case. Because the plaintiff in Craig was seeking a promotion, Barnett would not have helped his case. As for King, the pro se plaintiff there never cited Humiston-Keeling or Barnett. See Table of Authorities, Brief for Appellant, King v. City of Madison, No. 08-2052 (7th Cir. filed June 6, 2008); Table of Authorities, Reply Brief, King v. City of Madison, No. 08-2052 (7th Cir. filed July 21, 2008), both attached.

Nor, indeed, was the issue ever raised and briefed in Mays. As we argued (EEOC Brief at 33-34), a glance at the Tables of Authorities for the main briefs, the reply, and even the petition for rehearing in Mays makes clear that this Court did not have the benefit of any briefing on this issue by the parties. See Table of Authorities, Brief for Appellant, Mays v. Principi, No. 001-4227 (7th Cir. filed Feb. 22, 2002); Table of Authorities, Brief for Appellee, Mays v. Principi, No. 01-4227 (7th Cir. filed April 24, 2002); Table of Authorities, Reply Brief, Mays v. Principi, No. 01-4227 (7th Cir. filed May 8, 2002); Table of Authorities, Petition for Rehearing, Mays v. Principi, No. 01-4227 (7th Cir. filed Nov. 6, 2002), all attached. While the Court is free to address and even resolve issues that the parties never raise, the lack of briefing may affect the weight that such a decision should be given. Cf. United States v. IBM Corp., 517 U.S. 843, 855-56 (1996) (noting that it is inappropriate to reexamine prior precedent without the benefit of parties’ briefing). And because the Court is not “absolutely bound” by precedent, it should “give fair considerations to any substantial argument that a litigant makes for overruling a previous decision.” See Colby, 811 F.2d at 1123; cf. Bauer v. Shepard, 620 F.3d 704, 714 (7th Cir. 2010) (noting that even a judge who has written the earlier decision should keep an open mind to new evidence and arguments and should not be committed to any particular outcome in later litigation).

Accordingly, because this Court has never explored Barnett’s impact on Humiston-Keeling and earlier cases and because a careful reading of Barnett confirms that, at a minimum, it seriously undermines this Court’s existing precedent, the Court should revisit Humiston-Keeling and reconsider its position, under Rule 40(e), if necessary.

CONCLUSION

For the foregoing reasons, the judgment below should be reversed and the case remanded to the district court for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

VINCENT J. BLACKWOOD

Assistant General Counsel

/s/ Barbara L. Sloan_________________

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,683 words, from the Introduction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2003 with Times New Roman 14-point font.

_/s/ Barbara L. Sloan________

Attorney for Equal Employment

Opportunity Commission

Dated: September 14, 2011

[1] United’s cited source for the Senate Report (http://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1387.pdf) is paginated differently than the original Senate Report, which is what our opening brief cited. For simplicity, this brief will use United’s source. The legislative history of the reassignment provision thus is found at page 29, not 32.

[2] United expresses concern that, because the “vast majority” of its employees are covered by collective bargaining agreements that, under Barnett, are outside the company’s duty to reassign, few non-bargaining unit positions remain for what United suggests would be “dozens” of “minimally qualified” disabled employees needing reassignment. This will result, according to the company, in a deterioration of the non-union workforce and loss of morale. Brief at 22-23 & n.12. Those concerns are overstated.

There is no basis for assuming that all disabled employees would have to compete for non-bargaining unit jobs. As noted above, many may be accommodated in their present jobs or within their respective bargaining units. Further, by describing these employees as “minimally qualified,” the company implies that they can barely do the job. However, it is United that sets the qualification standards for its positions. Any employee who meets the qualifications standards United itself has chosen should therefore be quite capable of doing the job well — even assuming, as United evidently does, that they will typically be less qualified than non-disabled applicants.

[3] United also complains that EEOC “largely ignores” features of its policy such as the fact that disabled employees may apply for an unlimited number of jobs. Brief at 12-13. We did acknowledge those features but noted that there is no evidence that non-disabled employees are denied such benefits —that, e.g., the company restricts the number of applications that non-disabled employees may submit. EEOC Brief at 4 & n.1. Moreover, even if, as United contends, the policy provides for assistance to disabled employees seeking other jobs, it is undisputed that it does not provide for reassignment as a reasonable accommodation.

[4] While acknowledging that our argument does not hinge on deference to EEOC’s Reasonable Accommodation Guidelines, United cites Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986), for the proposition that EEOC Guidance is “‘not controlling upon the courts by reason of [its] authority.’” Brief at 7 n.2. The quote, referring to Title VII, is taken out of context; the omitted portion specifies that EEOC Guidelines “do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” 477 U.S. at 65. In any event, unlike under Title VII, EEOC has and has exercised substantive rule-making authority under the ADA (42 U.S.C. § 12116, 29 C.F.R. § 1630 et. seq. & App.); an interpretation of those regulations is normally entitled to “controlling” weight. See, e.g., Long Island Care at Home v. Coke, 551 U.S. 158, 172 (2007).

[5] Citing Humiston-Keeling, United takes the position that Aka held only that the reassignment provision mandates “‘more than that the employer allow the disabled employee to submit his application along with all of the other candidates,’” an interpretation that would not conflict with Humiston-Keeling. Brief at 10 & n.4 (citing 227 F.3d at 1028). In fact, district courts in the D.C. Circuit disagree with this “narrow” reading of Aka. In Alston v. WMATA, 571 F. Supp.2d 77, 82-83 (D.D.C. 2008), for example, the court rejected the defendant’s argument, based on Humiston-Keeling, that Aka would not prevent the court from holding that a best-qualified-selection policy should trump an employer’s duty to reassign. Id. at 83. The court reasoned that the “Aka Court held that the reassignment provision imposes some affirmative duty on the employer to find a position for the employee who has become disabled on the job. To find this duty is excused by an employer’s policy of hiring the most qualified candidate would be to hold that the employer’s obligation to a disabled employee is limited to considering him along with every other applicant for the vacant position,” a view “expressly rejected in Aka.” Id. at 83 & n.3 (also noting that view accords with EEOC’s interpretation of its own regulations and, so, is entitled to “controlling weight”).

[6] United wonders, for example, how it could decide which of “the dozen disabled employees would be accommodated.” Brief at 22. But nothing would prevent the company from allocating positions in any non-discriminatory manner, such as first come, first served.