IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _______________________________________ No. 96-3018 _______________________________________ ROBERT W. SMITH, Plaintiff-Appellant, v. MIDLAND BRAKE, INC., Defendant-Appellee. ________________________________________ On Appeal from the United States District Court for the District of Kansas ________________________________________ BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL AND THE CITY AND COUNTY OF DENVER IN SUPPORT OF DEFENDANT-APPELLANT ON REHEARING EN BANC _________________________________________ Daniel E. Muse City Attorney J. Wallace Wortham, Jr. Ass’t City Att’y Supervisor Sybil R. Kisken Assistant City Attorney 1445 Cleveland Place Room 303 Denver, CO 80202 (303) 640-2931 Ann Elizabeth Reesman* McGUINESS & WILLIAMS 1015 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 (202) 789-8600 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL Attorneys for Amicus Curiae CITY AND COUNTY OF DENVER June 26, 1998 *Counsel of Record TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................................................... ii STATEMENT OF ISSUE........................................................................................................... 1 INTEREST OF THE AMICI CURIAE ....................................................................................... 1 STATEMENT OF THE CASE ................................................................................................... 4 SUMMARY OF ARGUMENT ................................................................................................... 5 ARGUMENT.............................................................................................................................. 6 THE ADA STOPS SHORT OF IMPOSING UPON NON-FEDERAL EMPLOYERS A DUTY TO FIND A JOB FOR EVERY EMPLOYEE UNABLE TO PERFORM THE FUNCTIONS OF HIS OR HER CURRENT POSITION DUE TO A DISABILITY ............................................... 6 A. An Employer Is Required To Make Only Reasonable Accommodation ................. 6 B. By Definition, The ADA Contemplates Only “Reasonable” Accommodation .................................................................................................. 9 1. The Mandatory Reassignment Obligation Applicable to Federal Sector Employers Does Not Apply to Private Sector or Local Government Employers .............................................................................................. 10 2.Reassignment Is an Option Circumscribed by the Word “Reasonable” ................................................................................ 14 C. “Considering” Reassignment Is An Accommodation In Itself ............................. 17 D. The Decision Below Should Be Affirmed Because Reassignment Was Not A “Reasonable” Accommodation for Smith ........................................................... 18 CONCLUSION......................................................................................................................... 19 CERTIFICATE OF SERVICE ................................................................................................. 20 TABLE OF AUTHORITIES CASES Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir. 1995) ............................................................................................ 14, 16 Bragdon v. Abbot, 1998 U.S. LEXIS 4212 (June 25, 1998) ................................................................................... 3 Carrozza v. Howard County, 45 F.3d 425 (4th Cir. 1995) ...................................................................................................... 3 Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998) .................................................................................................... 8 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ...................................................................................................... 12 Dalton v. Subaru-Isuzu Automotive, Inc., No. 96-2920, 1998 U.S. App. LEXIS 5990 (7th Cir. Mar. 26, 1998) ................................................................................................... 14, 15 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), cert. denied, 516 S. Ct. 1172 (1996) ........................................................................................................... 15 Eckles v. CONRAIL, 94 F.3d 1041 (7th Cir. 1996), cert. denied, 117 S. Ct. 1318 (1997) ........................................................................................................... 16 Gaul v. Lucent Technologies, 134 F.3d 576 (3d Cir. 1998) ................................................................................................... 14 Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997) .................................................................................................. 8 Hiatt v. Union Pacific Railroad, 65 F.3d 838 (10th Cir. 1995) .................................................................................................... 4 Hudson v. MCI Telecommunications Corp., 87 F.3d 1167 (10th Cir. 1996) .................................................................................................. 8 Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996) .................................................................................................... 3 ii Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997) ..................................................................................................... 16 Manard v. Fort Howard Corp., 47 F.3d 1067 (10th Cir. 1995) .................................................................................................. 4 Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997) .................................................................................................. 3 Milton v. Scrivner Inc., 53 F.3d 1118 (10th Cir. 1995) ...........................................................................................15-16 Monette v. Electronic Data System Corp., 90 F.3d 1173 (6th Cir. 1996) .................................................................................................... 7 Sharpe v. American Telegraph & Telegraph Co., 66 F.3d 1045 (9th Cir. 1995) .................................................................................................. 18 Simmerman v. Hardees Food System, 118 F.3d 1578 (3d Cir. 1998) ................................................................................................... 3 Smith v. Midland Brake, 138 F.3d 1304 (10th Cir. 1998) .......................................................................................... 5, 12 Smith v. Midland Brake, 911 F. Supp. 1351 (D. Kan. 1995) ....................................................................................... 4, 5 Sutton v. United Air Lines, 130 F.3d 893 (10th Cir. 1997) ................................................................................................ 12 Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995) ...................................................................................................... 7 Walders v. Garrett, 956 F.2d 1163 (4th Cir. 1992) .................................................................................................. 3 Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997) .......................................................passim DOCKETED CASES Davoll et al. v. City and County of Denver, Nos. 97-1381 and 97-1406 (10th Cir.)....................................................................................... 2 United States v. City and County of Denver, Nos. 97-1403 and 97-1431 (10th Cir.) ...................................................................................... 4 iii STATUTES Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., ................................................................................................... 1, 5 42 U.S.C. § 12111(8) ........................................................................................................ 6, 8 42 U.S.C. § 12111(9) ............................................................................................................ 9 42 U.S.C. § 12112(a) ............................................................................................................ 6 42 U.S.C. § 12112(b)(5) ........................................................................................................ 6 42 U.S.C. § 12112(b)(5)(A) ................................................................................................... 6 Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 ..................................................................................................................... 10 29 U.S.C. § 791(b) ................................................................................................................. 10 Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793 ....................................................................................................................... 2 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ..................................................................................................................... 10 REGULATIONS 29 C.F.R. § 1614.203(g) .................................................................................................... 11, 13 29 C.F.R. § 1630.2(o) (Appendix) ............................................................................................ 11 56 Fed. Reg. 8578 (1991) (codified at 29 C.F.R. Part 1630) ....................................................... 3 LEGISLATIVE HISTORY H.R. Rep. No. 101-485, pt. 2 (1990)..................................................................................... 9, 17 S. Rep. No. 101-116 (1989) ................................................................................................. 9, 17 MISCELLANEOUS EEOC Enforcement Guidance: Psychiatric Disabilities and the Americans with Disabilities Act No. 915.002 (Mar. 25, 1997), reprinted in 3 EEOC Compl. Man. (BNA) No. 224 ................................................................ 12 EEOC Enforcement Guidance: Workers Compensation and the ADA, No. 915.002 (Sept. 3, 1996), reprinted in 3 EEOC Compl. Man. (BNA) No. 216 ...................................................................................................................... 12 iv 2 H.R. Series: Policies and Practices, “Poor Job Performance,” 41:3511 (Warren, Gorham & Lamont 1997)............................................................................ 17 The Oxford English Dictionary (Compact Ed. 1971) .................................................................. 7 Norman J. Singer, Sutherland Stat. Const. (5th ed. 1992) ........................................................... 7 A Technical Assistance Manual on the Employment Provisions (Title I)of the Americans with Disabilities Act (EEOC, 1992) ........................................................................................................................ 12 v The Equal Employment Advisory Council and the City and County of Denver respectfully submit this brief amici curiae with the consent of both parties. The brief urges this Court to affirm the judgment below, and thus supports the position of Defendant-Appellee Midland Brake, Inc. before this Court. STATEMENT OF THE ISSUE Whether the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., which requires employers to provide reasonable accommodation to qualified individuals with disabilities, imposes a duty on employers to reassign an employee to a vacant position. INTEREST OF THE AMICI CURIAE The Employment Advisory Council (“EEAC” or “Council”) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes over 300 major U.S. corporations. EEAC’s directors and officers include many of industry’s leading experts in the field of equal employment opportunity. Their combined experience gives the Council a unique depth of understanding of the practical and legal considerations relevant to the proper interpretation and application of equal employment policies and requirements. EEAC’s members are firmly committed to the principles of nondiscrimination and equal employment opportunity. All of EEAC’s members, and the constituents of its association members, are employers subject to the Americans with Disabilities Act (ADA or the Act), 42 U.S.C. § 12101 et seq., and other equal employment statutes and regulations. In addition, many are federal contractors subject to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793. The City and County of Denver (“Denver”) is itself a local government employer, and is a party to two appeals currently pending in this Court raising issues similar to those presented in the instant case.1 As employers, and potential respondents to ADA charges, EEAC’s members and Denver are concerned about the scope of an employer’s responsibility to make reasonable accommodation for an individual with a disability who is unable to perform the essential functions of his or her current job. EEAC members and Denver routinely make reasonable accommodations to ensure that qualified applicants with disabilities have equal opportunity to compete for jobs, and to allow employees with disabilities to perform essential job functions. In some cases, however, neither the employee nor the employer can identify a reasonable accommodation that will allow an employee to perform the essential functions of the employee’s current job. Thus, the issues presented in this appeal are extremely important to the nationwide constituency that EEAC represents, as well as to Denver as a public employer. A majority of the panel ruled that the ADA does not obligate a private employer to find a new job for an employee who is unable to perform the essential functions of his or her current position even with reasonable accommodation. In contrast, Plaintiff-Appellant Smith and amicus curiae Equal Employment Opportunity Commission broadly assert that every employer covered by the ADA has a duty to reassign any employee who is prevented by disability from performing his or her current job. This expansive view of the ADA’s prohibition against disability discrimination is unsupported by the Act and would impose on employers a burden never intended by Congress. Because of its interest in the application of the nation’s civil rights laws, EEAC has, since its founding in 1976, filed over 430 briefs as amicus curiae in cases before the United States Supreme Court, the United States Circuit Courts of Appeals and various state supreme courts. As part of this amicus activity, EEAC has participated in cases in the Supreme Court,2 in this 1 Davoll et al. v. City and County of Denver, Nos. 97-1381 and 97-1406 (10th Cir.); United States v. City and County of Denver, Nos 97-1403 and 97-1431 (10th Cir.). 2 Bragdon v. Abbott, 1998 U.S. LEXIS 4212 (June 25, 1998). 2 Circuit,3 and in other Circuits,4 involving the proper interpretation of the Americans with Disabilities Act, as well as numerous cases involving the proper interpretation of the Rehabilitation Act of 1973, the predecessor to the ADA.5 EEAC also filed extensive comments in response to the Equal Employment Opportunity Commission’s Notice of Proposed Rulemaking on its substantive regulations implementing the employment provisions of the ADA. 56 Fed. Reg. 8578 (1991) (codified at 29 C.F.R. Part 1630). In addition, EEAC has briefed a number of other employment issues in this Court.6 Thus, EEAC and Denver have an interest in, and a familiarity with, the issues and policy concerns presented to the Court in this case. Indeed, because of its significant experience in these matters, EEAC is uniquely situated to brief this Court on the importance of the issues beyond the immediate concerns of the parties to the case. STATEMENT OF THE CASE Defendant-Appellee Midland Brake, Inc. (“Midland Brake”), employed Plaintiff-Appellant Robert W. Smith from September 1984 until March 1993. Smith v. Midland Brake, 911 F. Supp. 1351, 1355 (D. Kan. 1995). At the time of his discharge, Smith was a “light assembler.” Id. In May 1992, Smith’s treating physician removed him from work due to work-related dermatitis. Id. Smith filed for and received Social Security disability benefits. Id. In March 1993, Smith and Midland Brake settled Smith’s workers’ compensation claim, and Midland Brake terminated Smith’s employment because it could not accommodate Smith’s skin sensitivity. Id. Smith sued Midland Brake under the ADA. 3 EEAC filed a brief before the panel in the instant case, and, jointly with the City and County of Denver, on the Petition for Rehearing and Suggestion of Rehearing en banc. 4 E.g., Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997); Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996); Carrozza v. Howard County, 45 F.3d 425 (4th Cir. 1995); Simmerman v. Hardee’s Food Sys., 118 F.3d 1578 (3d Cir. 1998). 5 E.g., Walders v. Garrett, 956 F.2d 1163 (4th Cir. 1992). 6 E.g., Hiatt v. Union Pac. R.R., 65 F.3d 838 (10th Cir. 1995); Manard v. Fort Howard Corp., 47 F.3d 1067 (10th Cir. 1995). 3 The trial court granted Midland Brake’s motion for summary judgment on Smith’s ADA claim. Noting that Smith may be prevented from bringing his ADA claim due to his repeated representations to the federal Social Security Administration that he was “totally disabled and unable to work,” id. at 1356, the trial judge nevertheless concluded that this issue need not be resolved, since Smith had failed to state a prima facie case. Id. at 1361. Smith was never released by his treating physician to return to any job at Midland Brake. Id. at 1361. Accordingly, the court below concluded, “[i]n light of [Smith’s] representations to the SSA that he was totally disabled and unable to work, and the fact that the plaintiff never provided Midland Brake with a medical release for him to return to work, in any capacity, . . . we conclude that no reasonable jury could find that Mr. Smith was a qualified individual with a disability under the ADA.” Id. at 1362-63. On appeal, a panel of this Court affirmed the lower court’s decision. Smith v. Midland Brake, 138 F.3d 1304 (10th Cir. 1998). Responding to Smith’s claim that Midland Brake should have reassigned him to another job, a majority of the panel concluded that “Midland Brake is not obligated under the ADA to transfer plaintiff to another position,” id. at 1309, because “after the plaintiff’s doctor ordered him to stop working in May 1992, no amount of accommodation would have made him qualified for his job in the light assembly department.” Id. Smith petitioned for rehearing en banc. SUMMARY OF ARGUMENT The Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., requires employers to provide reasonable accommodations for a qualified individual with a disability. 42 U.S.C. §12111(8); §12112(b)(5). Accordingly, any potential accommodation, including that of reassignment to a vacant position, must pass an objective test of reasonableness. Unlike the federal sector, where reassignment is mandatory for employees who cannot perform their current jobs due to a disability, the obligations imposed on the private sector are somewhat less stringent. Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997). Contrary to the EEOC’s position in this 4 case, reassignment is not required merely because it may be a last resort. Accordingly, the district court’s decision should be affirmed. ARGUMENT THE ADA STOPS SHORT OF IMPOSING UPON NON-FEDERAL EMPLOYERS A DUTY TO FIND A JOB FOR EVERY EMPLOYEE UNABLE TO PERFORM THE FUNCTIONS OF HIS OR HER CURRENT POSITION DUE TO A DISABILITY A. An Employer Is Required To Make Only Reasonable Accommodation The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination in employment on the basis of a disability. 42 U.S.C. 12112(a). “Discrimination” under the ADA includes “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 [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer’s] business . . . .” 42 U.S.C. § 12112(b)(5)(A) (emphasis added). Under well-accepted principles of statutory construction, the word “reasonable, “ like every other word in the statute, must be presumed to mean something. 2A Norman J. Singer, Sutherland Stat. Const. § 46.06 (5th ed. 1992).7 The word “reasonable” clearly limits the scope and degree of accommodation that the ADA obligates any employer to provide. The relevant dictionary definition of “reasonable” includes “(1) Endowed with reason; rational; (2) Having sound judgment; sensible, sane. Also, not asking for too much. . . . (5) Not going beyond the limit assigned by reason; not extravagant or excessive, moderate.” 2 The Oxford English Dictionary, at 2432 (Compact Ed. 1971). As the Seventh Circuit has observed, “[R]easonable may be intended to qualify (in the sense of weaken) “accommodation,” in just the same way that if one requires a “reasonable effort” of someone this means less than the maximum possible effort, or in law that the duty of “reasonable care,” the cornerstone of the law of negligence, requires 7 According to Sutherland, “[i]t is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.” 2A Norman J. Singer, Sutherland Stat. Const. §46.06 (5th ed. 1992) (quoting State v. Bartley, 39 Neb. 353, 58 N.W. 172 (1894)). 5 something less than the maximum possible care.” Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995). Cf. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 118384 n. 10 (6th Cir. 1996) (noting that the determination of whether a proposed accommodation is generally “reasonable” is analytically distinct from the question of whether implementing the accommodation would impose an undue hardship on the specific employer). Thus, the ADA does not require an accommodation that is not objectively “reasonable.” E.g., Gonzagowski v. Widnall, 115 F.3d 744, 747-48 (10th Cir. 1997) (“it is unreasonable to require an employer to create a work environment free of stress and criticism.”); Hudson v. MCI Telecoms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (plaintiff “failed to present evidence from which a reasonable jury could find that the accommodation she urges, unpaid leave of indefinite duration, was reasonable”); Accord Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998) (“proposing an accommodation and showing that accommodation is objectively reasonable” is part of a plaintiff’s prima facie case). In tandem with Section 12112(b)(5), the ADA definition of “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. § 12111(8) (emphasis added), also incorporates the concept of a “reasonable” accommodation. Thus, an employer owes no duty to an individual who could do the job only with an unreasonable accommodation Cthat person would not be “qualified” under the law. Accordingly, the statutory definition of “reasonable accommodation” is a list of possibles rather than absolutes. The term “reasonable accommodation” may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 6 42 U.S.C. § 12111(9) (emphasis added). As the legislative history indicates, the list is meant to be illustrative: The definition includes illustrations of accommodations that may be required in appropriate circumstances. The list is not meant to be exhaustive; rather, it is intended to provide general guidance about the nature of the obligation. Furthermore, the list is not meant to suggest that employers must follow all of the actions listed in each particular case. Rather, the decision as to what reasonable accommodation is appropriate is one which must be determined based on the particular facts of the individual case. H.R. Rep. No. 101-485, pt.2, at 62 (1990); S. Rep. No. 101-116, at 31 (1989). Thus, no particular accommodation is ever individually mandated. Rather, the Section 12111(9) definition of discrimination as including a failure to make “reasonable accommodation” controls. B. By Definition, The ADA Contemplates Only “Reasonable” Accommodation There is no absolute requirement for a private sector or local government employer to reassign any employee as an accommodation. While it is true that “reassignment to a vacant position” is included in the statutory list of possibles, this cannot be read to impose an absolute duty to find a job for every disabled employee who cannot be accommodated in his or her current position, any more than any other potential accommodation on the list is always required. 1. The Mandatory Reassignment Obligation Applicable to Federal Sector Employers Does Not Apply to Private Sector or Local Government Employers As this Court has recognized, the rules are different when the employer is the federal government. “[F]ederal employers are charged with a greater duty to ensure the employment of disabled workers than are federal grantees or private employers.” Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir. 1997). In Woodman, this Court found that Section 501 of the Rehabilitation Act of 1973,8 29 U.S.C. § 791, imposes a duty on the federal government to 8 Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (b), requires federal departments and agencies to take affirmative action to hire, place and advance individuals with disabilities. Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (as amended), prohibits discrimination on the basis of disability by federal government employers and federal grantees. 7 attempt to reassign a disabled employee.9 Id. at 1341. In so doing, however, this Court relied on the higher standards of “accommodation” imposed on the federal government as opposed to other employers. This Court based its finding of a duty to reassign in “the affirmative action duties contemplated by section 501, the latter of which do not apply to private employers under the Americans with Disabilities Act . . . .” Id. at 1344 (emphasis added). As the Court noted, “The factors that must be considered in determining what is “reasonable” obviously differ as between federal and private employers.” Id. at n. 14. This dichotomy likewise is reflected in the variance between the EEOC regulations applicable to federal employers under ' 501 and those applicable to private and local government employers under the ADA. As this Court observed in Woodman, the EEOC’s regulations applicable to federal sector employers, adopted in October 1992, require federal sector employers to reassign: Reassignment. When a nonprobationary employee becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap, an agency shall offer to reassign the individual to a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level, the essential functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program. 29 C.F.R. § 1614.203(g) (1997) (emphasis added). No similar provision appears in the EEOC’s regulations interpreting the private sector requirements of the ADA. The EEOC’s Interpretive Guidance explaining its private sector ADA regulations states in pertinent part that “[r]eassignment to a vacant position is also listed as a potential reasonable accommodation. In general, reassignment should be considered only when 9 As this Court explained in Woodman, prior to the 1992 amendments to the Rehabilitation Act, a majority of courts had held that the federal government was not required to reassign a disabled employee as a reasonable accommodation. Woodman, 132 F.3d at 1339 n. 9. In 1992, Congress amended the Rehabilitation Act to add “reassignment” to the list of possible accommodations. Woodman, 132 F.3d at 1339. 8 accommodation within the individual’s current position would pose an undue hardship.” 29 C.F.R. § 1630.2(o) (Appendix). As the panel in the instant case found, this language fairly could be read to mean that in the EEOC’s view, any duty an employer may have even to consider reassignment of a disabled employee arises only in the limited circumstance in which a reasonable accommodation would allow the employee to perform the current position, but implementing the accommodation would impose an undue hardship on the employer. See Smith, 138 F.3d at 1323. At most, the Interpretive Guidance suggests merely a duty to consider reassignment, far short of the clear mandate the EEOC has given to the federal sector. See also A Technical Assistance Manual on the Employment Provisions (Title I)of the Americans with Disabilities Act (EEOC, 1992) at III24 (explaining when and for whom, reassignment should be “considered”). In the instant case, the EEOC seeks to apply the heightened federal requirement to the private sector.10 The Government contends that this Circuit already has done so, arguing that that “the obligations under the Rehabilitation Act and the ADA are the same,” and relying on this Court’s decision in Woodman. (Br. Amicus Curiae of the EEOC at 15). In fact, however, this Court in Woodman explicitly distinguished the federal sector and private sector standards under the Rehabilitation Act: Cases decided under section 504 of the Rehabilitation Act are therefore applicable to cases brought under the ADA and vice versa, except to the extent the ADA expressly states otherwise. The same is true of section 501 in some instances. However, as we have already discussed and will discuss further infra, section 501 of the Rehabilitation Act applies only to federal employers, imposes affirmative 10 The agency also has tried to do so in unofficial “enforcement guidance.” EEOC Enforcement Guidance: Workers’ Compensation and the ADA, No. 915.002 at 17 (Sept. 3, 1996), reprinted in 3 EEOC Compl. Man. (BNA) No. 216, at N:2271, N:2275; EEOC Enforcement Guidance: Psychiatric Disabilities and the Americans with Disabilities Act, No. 915.002 at 28(Mar. 25, 1997), reprinted in 3 EEOC Compl. Man. (BNA) No. 224, at N:2331, N:2340. As this court has observed, while the EEOC’s regulations interpreting the ADA are entitled to deference, interpretive guidance “does not carry the force of law and is not entitled to any special deference under Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)].” Sutton v. United Air Lines, 130 F.3d 893, 899 n.3 (10th Cir. 1997). 9 action duties, and may therefore entail heightened duties of “reasonable accommodation” not applicable to private employers under the ADA. Woodman, 132 F.3d 1330, 1339 n. 8 (citation omitted). Accordingly, as this Court already has stated, the federal government is held by the Rehabilitation Act to at least the minimum standards applied to the private sector by the ADA, but the reverse is not necessarily true. Instead, federal employers are held to a higher standard because of the affirmative action provisions of Section 501 of the Rehabilitation Act, and the heightened obligation under the “reassignment” provision is one example. Woodman, 132 F.3d at 1344.11 2. Reassignment Is an Option Circumscribed by the Word “Reasonable” For non-federal employers, reassignment as a reasonable accommodation is properly addressed as an option, subject to objective standards of reasonableness, not the virtually absolute duty advocated by the Government in this case.12 In Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir. 1995), the Eighth Circuit identified reassignment as “another possible accommodation under the ADA,” id. at 1114, found a fact question as to “whether reassignment [to vacant positions Plaintiff had identified] would be a reasonable accommodation, id. (emphasis added), and noted that “the proposed accommodations may prove unavailable or unreasonable once the circumstances of the case are fleshed out”). Id. at 1115 (emphasis added). See also Gaul v. Lucent Techs., 134 F.3d 576, 581 (3d Cir. 1998) (holding that plaintiff’s requested 11 Indeed, even the federal government’s obligation to reassign is not unlimited. First, the obligation extends only to “a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level...” 29 C.F.R. § 1614.203(g). Second, the regulation specifically exempts any position for which “the agency has already posted a notice or announcement seeking applications. . . .” Id. For those positions, the individual with a disability must compete with nondisabled applicants. Id. 12 The Government recognizes few limits on the duty to reassign that it advocates: that an employee must be qualified for the position, that an employer need not create a new position, promote the employee, or wait indefinitely for a vacancy, that only existing employees are eligible, and that contractual rights of other employees may take precedence. (Br. Amicus Curiae of the EEOC at 16). 10 accommodationCtransfer away from stress-inducing coworkersCwas “unreasonable as a matter of law.” More specifically, courts have recognized rational limits on the circumstances under which reassignment may be a reasonable accommodation in the non-federal context. In Dalton v. Subaru-Isuzu Automotive, Inc., No. 96-2920, 1998 U.S. App. LEXIS 5990 (7th Cir. March 26, 1998), the Seventh Circuit concluded that an employer need not “reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer . . .” Id. at *34. The Seventh Circuit collected examples of such legitimate policies from other Circuits, including, for example, a requirement that the individual be neither underqualified nor over-qualified for the job; choosing to prefer full-time over part-time employees for internal transfers; an “up or out” policy under which employees who do not progress at the expected pace are terminated, or a “non-demotion” policy under which employees who are removed from their jobs for performance or business reasons are not entitled to a lower position. Id. at *33-4. Similarly, the Fifth Circuit has stated, “we do not read the ADA as requiring 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 not disabled.” Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (holding that ADA did not require City to override existing policy giving full-time employees priority in filling vacancies), cert. denied, 516 S. Ct. 1172 (1996). As the Government admits, the rights of other employees also figure into whether reassignment would be required in a particular situation. This and other Circuits have ruled that the ADA does not require an employer to reassign a disabled employee if doing so would violate the rights of other employees, such as those arising under a collective bargaining agreement. Milton v. Scrivner Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (reassignment not required because “plaintiffs’ collective bargaining agreement prohibits their transfer to any other job because plaintiffs lack the requisite seniority.”) Eckles v. CONRAIL, 94 F.3d 1041 (7th Cir. 1996) 11 (employer not required to violate collectively-bargained seniority rights of other employees by reassigning disabled employee), cert. denied, 117 S. Ct. 1318 (1997); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995) (employer not required to reassign employee to permanent position where doing so “might implicate the rights of more senior union members”); cf. Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997) (employee’s request to be excused from forced overtime is not reasonable accommodation because it may require employer to force another employee, with more seniority, to work overtime, violating that person’s rights under the collective bargaining agreement). In contrast, the EEOC’s argument suggests that when an employer has exhausted all reasonable possibilities for accommodating a disabled employee in his or her current position, reassignment to a vacant position is mandatory because it is the only option left. This construction pushes the ADA’s “reasonable accommodation” obligation beyond its boundaries. Reassignment is subject to the “reasonableness” requirement like any other possible accommodation on the list. Indeed, the legislative history of the ADA’s “reassignment” provision hardly supports a mandatory rule: Reasonable accommodation may also include reassignment to a vacant position. If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker. H.R. Rep. No. 101-485, pt.2, at 63 (1990); S. Rep. No. 101-116, at 31-32 (1989). Accordingly, this Court should recognize the significant limitations on reassignment as a reasonable accommodation for a non-federal employer. C. “Considering” Reassignment Is An Accommodation In Itself In the context of the typical private sector workforce, it is not surprising that the courts and the agency talk in terms of “considering” reassignment as a reasonable accommodation. With most employers, transfer to another job is not an option that is available to an employee who is 12 not performing his current job satisfactorily. On the contrary, that employee is likely to be disciplined and ultimately terminated if the performance does not improve. 2 H.R. Series: Policies and Practices., “Poor Job Performance,” at 141:3511 (Warren, Gorham & Lamont 1997). Accordingly, for the typical private sector employer, allowing an employee the opportunity to be considered for a transfer to another position when he or she cannot perform the current job because of a disability is an alteration of the employer’s usual and customary procedures. This special consideration, which would not be allowed absent the disability, in and of itself is an accommodation. Thus, helping a disabled employee search for another job, and giving him fair consideration, may meet any obligation the employer may have had to make reasonable accommodation, even if the employee does not find a job as a result of the search. E.g., Sharpe v. American Tel. & Tel. Co., 66 F.3d 1045 (9th Cir. 1995) (company met its obligation by helping plaintiff search for a position and considering him for the three positions for which he applied, even though he was not ultimately offered any of the positions because he was not the most qualified candidate). Thus, it is quite possible for an employer to terminate an employee with a disability who cannot be accommodated in his or her current job, without violating the ADA, even if the employer has vacant positions that the employee is facially “qualified” to do, because reassigning the employee to that position would not be a reasonable accommodation. Perhaps the employee is not the best qualified candidate for the open job. Perhaps the job by rights belongs to someone else under a collective bargaining agreement or non-union seniority or merit system. Perhaps the employer has some legitimate, nondiscriminatory policy that prevents the reassignment. Perhaps reassignment would be unreasonable for some other reason. D. The Decision Below Should Be Affirmed Because Reassignment Was Not A “Reasonable” Accommodation for Smith The district court reached the correct result. The court below found that Smith never provided Midland Brake with a release from his physician that would allow him to return to work in any capacity. 911 F. Supp. at 1362. Indeed, while Smith’s physician completed a number of 13 “Employer’s Referral and Treatment Authorization” forms that would have allowed the doctor to place Midland Brake on notice that Smith could return to work, he never did so. Id. On the contrary, the information available to the Company indicated that Smith was unable to perform any work. Thus, the only conclusion the Company could have reached was that reassignment was not a reasonable option in this case. CONCLUSION For the foregoing reasons, the amici curiae Equal Employment Advisory Council and the City and County of Denver respectfully submit that the decision below should be affirmed. Respectfully submitted, Daniel E. Muse City Attorney J. Wallace Wortham, Jr. Ass’t City Att’y Supervisor Sybil R. Kisken Assistant City Attorney 1445 Cleveland Place, Rm. 303 Room 303 Denver, CO 80202 (303) 640-2931 Ann Elizabeth Reesman* McGUINESS & WILLIAMS 1015 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 (202) 789-8600 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL Attorneys for Amicus Curiae CITY AND COUNTY OF DENVER June 26, 1998 *Counsel of Record CERTIFICATE OF SERVICE This is to certify that two true and correct copies of the Brief Amici Curiae of the Equal Employment Advisory Council and the City and County of Denver in Support of Defendant- 14 Appellee on Rehearing en Banc were served today on counsel of record for the parties by sending two copies of same via Federal Express, postage-prepaid, and addressed as follows: Less E. Diehl, Esq. Goodell, Stratton, Edmonds & Palmer LLP 515 S. Kansas Avenue Topeka, KS 66603-3999 James Allen Smith Daniel M. Shea Robert Haderlein Smith, Currie & Hancock LLP 2600 Harris Tower Peachtree Center 233 Peachtree Street, N.E. Atlanta, GA 30303-1530 June 26, 1998 Mary Kathleen Babcock Foulston & Siefkin Law Offices 700 Fourth Financial Center Broadway at Douglas Wichita, KS 67202 C. Gregory Stuart, Esq. Philip B. Sklover, Esq. Lorraine C. Davis Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, DC 20507 __________________________ Ann Elizabeth Reesman MCGUINESS & WILLIAMS 1015 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 Attorneys for Amicus Curiae Equal Employment Advisory Council 15