Lead Opinion
OPINION ON REHEARING EN BANC
In this en banc appeal, we are required to answer two questions concerning the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.
We review the district court’s grant of summary judgment de novo. See
Background
The facts of this case are reported in the original panel opinion, see Smith v. Midland Brake, Inc.,
Smith filed a complaint in the United States District Court for the District of Kansas seeking relief on the basis of Midland Brake’s alleged violations of the ADA, ADEA, and Kansas state law. The district court entered summary judgment for Midland Brake on all of these claims. With regard to the ADA claim in particular, the district court held that Smith was not a “qualified individual with a disability” because, inter alia, Smith failed to provide Midland Brake with a medical release to return to work. On appeal, the panel affirmed the district court’s judgment, but as to the ADA claim the panel affirmed on different reasoning. Although the panel agreed that Smith was not a “qualified individual with a disability,” it predicated that conclusion upon the fact that no amount of accommodation could allow Smith to perform his existing job. Therefore, the panel concluded that Smith was not “qualified” under 42 U.S.C. § 12111(8). Judge Briscoe dissented on that particular holding. This court subsequently agreed to rehear only Smith’s ADA claim “on the issue of interpretation of the requirements of the Americans with Disabilities Act.”
Discussion
I. ADA Statutory Framework
A.
The general proscription of Title I of the American with Disabilities Act (ADA) is:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advance*1161 ment, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a) (emphasis added). The ADA defines the term “discriminate” to include
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 сan demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity....
42 U.S.C. § 12112(b)(5)(A) (emphasis added).
This language reveals that a person must meet the threshold test of being a “qualified individual with a disability” in order to invoke the ADA. 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. § 12111(8) (emphasis added). Midland Brake claims that Smith does not meet that definition of “qualified individual with a disability” because he could not perform the essential functions of his existing job in the light assembly department regardless of the level of accommodation offered. See Smith,
In this argument, Midland is in error, and the error is easy to identify. That reading ignores the last two words of the statutory definition of “qualified individual with a disability,” the last two words being “or desires.” 42 U.S.C. § 12111(8). Although a “qualified individual with a disability” has to be someone who can perform the essential functions of a job, that inquiry is not limited to the employee’s existing job. Rather, the plain language of the statute includes an employee who has the ability to do other jobs within the company that such disabled employee “desires.” 42 U.S.C. § 12111(8). To read the ADA otherwise, would render the word “desires” meaningless, and we must avoid such a construction. See Gustafson v. Alloyd Co.,
Our conclusion that a “qualified individual with a disability” includes a disabled employee who desires and can perform with or without reasonable accommodation an available reassignment job within the company, though unable to perform his or her existing job, is reinforced by an examination of the ADA’s definition of “reasonable accommodation.” The ADA definition of “reasonable accommodation” lists the kinds of reasonable accommodations that may be required of an employer. Reаsonable accommodations 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.
42 U.S.C. § 12111(9) (emphasis added). The term “reassignment to a vacant position” indisputably indicates more than just an alteration to the employee’s existing job. Reading §§ 12111(8) and (9) of the ADA together, a reasonable accommodation may include a re assignment from the employee’s current job to one that he or she desires.
Legislative history further supports this reading of the ADA. The House Commit
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(11), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345. Neither Midland Brake nor amicus have cited, nor have we found, any contrary legislative history.
Our reading of “qualified individual with a disability” to include individuals who can perform an appropriate reassignment job within the company, with or without reasonable accommodation, even though they cannot perform their existing job no matter how much accommodation is extended, is supported by nearly every circuit that has explicitly or implicitly considered the issue. See Feliciano v. Rhode Island,
Midland Brake argues that the term “reassignment” in the definition of “reasonable accommodation” in § 12111(9) and the words “or desires” in § 12111(8) must refer only to job applicants and not to existing employees. In this way Midland Brake tries to give meaning to the words “or desires” to avoid superfluity. We reject that reading. In the first place, it is not textually sound because § 12111(9) uses the phrase “re assignment.” If that phrase were addressed only to job applicants, the term would be “assignment.”
In addition, reassignment is listed as one of the available reasonable accommodations in the middle of a laundry-list of reasonable accommodations which clearly apply to existing employees, e.g., job restructuring, modification of job schedules, etc. See 42 U.S.C. § 12111(9)(B). “That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.” Beecham v. United States,
Finally, § 12112(a) prohibits discrimination not only in regard to job application procedures and hiring decisions, but also to advancement, termination of employees, compensation, job training, “and other terms, conditions, and privileges of employment.” With this background in mind, it is the more natural reading of “or desires” to apply the phrase more broadly than just to job applicants. See Daugherty v. City of El Paso,
B.
The separate concurrence and dissent of Judge Kelly suggests that the reassignment duty imposed by the ADA is no more than a duty merely to consider without discrimination a disabled employee’s request for reassignment along with all other applications the employer may receive from other employees or job applicants for a vacant position. We reject this narrow definition of reassignment, both because it does violence to the literal meaning of the word reassignment and because it would render the reassignment language in 42 U.S.C. § 12111(9) a nullity.
First, as to the literal language, the ADA defines the tex*m “reasonable accommodation” to include “reassignment to a vacant position.” The statute does not say “consideration of a reassignment to a vacant position.” Moreover, “reassignment” must mean something more than the mere opportunity to apply for a job with the rest of the world. As the D.C. Circuit has explained:
[T]he word “reassign” must mean more than allowing an employee to apply for a job on the same basis as anyone else. An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been “reassigned”; the core word “assign” implies some active effort on the part of the employer.
Aka,
With regard to the second point, the ADA separately prohibits an employer from discrimination against a disabled person in his or her application for a vacant job. See 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual with a disability ... in regard to job application procedures, the hiring....”). Whether the disabled person is an existing employee seeking reassignment or an outside job applicant, the company cannot therefore discriminate against the disabled individual on the basis оf his or her disability. Thus, if the reassignment language merely requires employers to consider on an equal basis with all other applicants an otherwise qualified existing employee with a disability for reassignment to a vacant position, that
Thus, the reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position. Reassignment is, in fact, 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. The language chosen by the other courts in addressing the reasonable accommodation of reassignment is instructive. See Monette,
The EEOC Interpretive Guidance, 29 C.F.R. Pt. 1630, App. § 1630.2(o) (1998), is not to the contrary.
*1166 Reassignment to a vacant position is also listed as a potential reasonable accommodation. In general, reassignment should be considered only when accommodations within the individual’s current position would pose an undue hardship .... An employer may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodations.
The context of the quoted language reveals that the word “considered” is not intended to denigrate a disabled employee’s right to have reassignment offered as a reasonable accommodation where appropriate. The quoted sentence, rather, only states a condition precedent before reassignment should be considered. That is, the message delivered by the quoted sentence is first, the employer must determine that no reasonable accommodation could be made to keep the disabled employee in his present position. Only then should the employer move to the alternative accommodation of reassignment.
The interpretative guidance uses the word “considered” because reassignment necessarily includes as one of its components the interactive process discussed below. That is, a process of consideration is necessarily a component of the act of reassignment itself. Only through consideration in a reasonably interactive way can it be determined whether an employee desires reassignment; whether there are vacant positions available at an equivalent or lesser position; whether such positions are truly vacant; whether reassignment would interfere with the rights of other employees or important business policies of the company, etc. The right to reassignment after all is not absolute. It requires deliberative consideration, and depending upon many factors, may or may not rise to a right to reassign. On the other hand, after considering all of the relevant factors, it may very well be determined that reassignment is a reasonable accommodation under all of the circumstances. If it is so determined, then the disabled employee has a right in fact to the reassignment, and not just to the consideration process leading up to the potential reassignment.
Our reading of the EEOC Interpretive Guidance is confirmed by the most recent pronouncement of the EEOC. The EEOC asked the question: “Does reassignment mean that the employee is permitted to compete for a vacant position?” EEOC Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (“EEOC Guidance”), at 44 (1999) (emphasis in original). It answered that question, “No. Reassign
Any other reading of “considered” in the EEOC Interpretive Guidance is not only contextually indefensible, it is illogical. In addition to reassignment to a vacant position, the ADA lists other reasonable accommodations such as “job restructuring,” “part-time or modified work schedules,” and “the provision of qualified readers or interpreters.” 42 U.S.C. § 12111(9)(B). There is nothing about a reassignment that transforms it into a lesser accommodation than the others listed, which an employer must not only consider but must also implement if appropriate.
If a disabled emрloyee had only a right to require the employer to consider his application for reassignment but had no right to reassignment itself, even if the consideration revealed that the reassignment would be reasonable, then this promise within the ADA would be empty. The employer could merely go through the meaningless process of consideration of a disabled employee’s application for reassignment and refuse it in every instance. It would be cold comfort for a disabled employee to know that his or her application was “considered” but that he or she was nevertheless still out of a job — a job to which he or she was otherwise qualified and as to which he or she had a reasonable claim to reassignment. We do not think Congress intended such a hollow promise when it listed reassignment as one of the specific reasonable accommodations in 42 U.S.C. § 12111(9).
We conclude that reassignment of an employee to a vacant position in a company is one of the range of reasonable acr commodations which must be considered and, if appropriate, offered if the employee is unable to perform his or her existing job. Thus, even though Smith was admittedly unable to perform the essential functions of his existing job in the light assembly department, that admission by itself does not preclude his ADA claim for an accommodation of reassignment.
The separate concurrence and dissent by Judge Kelly erroneously conflates “affirmative action” with the statutory definition of discrimination. However, judicial labels cannot substitute for Congress’ statutory mandate in the ADA. In § 12112(b)(5)(A), Congress defined the term “discriminate” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ...” Then, in § 12111(9)(B), Congress defined the term “reasonable accommodation” to include “reassignment to a vacant position.” Thus, although the dissent would prefer to view the reasonable accommodation оf reassignment as “affirmative action,” Congress chose to consider it otherwise when it defined the failure reasonably to accommodate (including reassignment) as a prohibited act of discrimination. It is the Congressional definition, of course, that must govern our analysis.
On the other hand, the dissent would judicially do some redrafting of the ADA. The only statutory exception here relevant to an employer’s obligation to make reasonable accommodations to an otherwise qualified individual with a disability is if such accommodations would impose “an undue hardship” on the employer. 42 U.S.C. § 12112(b)(5)(A). The dissent would write in an additional exception to the effect that an employer need not make the reasonable accommodation of reassignment if it can find a better qualified employee to take the place of the otherwise qualified individual with a disability.
It is also telling that the dissent chooses to ignore one of the “Findings and Purposes” of the ADA, where Congress found that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(8) (emphasis added). Thus, the ADA has multiple objectives, and by defining discrimination as it did to include the failure to offer reasonable accommodations, one of Congress’ objectives was to facilitate economic independence for otherwise qualified disabled individuals. See Cleveland v. Policy Management Systems Corp.,
The dissent’s reading of the legislative history is similarly imprecise. The legislative history that it cites, H.R.Rep. No. 101-485(11), аt 55-56 (1990), reprinted in 1990 U.S.C.C.A.N. 803, 337-338, refers only to an employer’s obligations in hiring initial job applicants. It does not refer to an employer’s statutory obligation to offer reasonable accommodations to an existing employee who is a “qualified individual with a disability.” We have no quarrel with the proposition that an employer, when confronted with two initial job applicants for a typing position, one of whom types 50 words a minute while the other types 75 words a minute, may hire the person with the higher typing speed, notwithstanding the fact that the slower typist has a disability. However, the legislative history clearly distinguishes between the affirmative action of modifying the essential functions of a job (which is not required) and the duty to reassign a disabled person to an existing vacant job, if necessary to enable the disabled person to keep his or her employment with the company (which is required).
The Committee also wishes to make clear that the reassignment need only be*1169 to a vacant position — “bumping” another employee out of a position to create a vacancy is not required.
H.R.Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345. As the en banc District of Columbia Circuit observed in Aka,
The unvarnished obligation derived from the statute is this: an employer discriminates against a qualified individual with a disability if the employer fails to offer a reasonable accommodation. If no reasonable accоmmodation can keep the employee in his or her existing job, then the reasonable accommodation may require reassignment to a vacant position so long as the employee is qualified for the job and it does not impose an undue burden on the employer. Anything more, such as requiring the reassigned employee to be the best qualified employee for the vacant job, is judicial gloss unwarranted by the statutory language or its legislative history.
The dissent’s citation of judicial authority is similarly wide of the mark. All that the dissent’s cases hold is that the employer need not change the essential functions or prerequisites of a vacant job in order to accommodate a reassignment. That, of course, is an unremarkable proposition. See Dalton v. Subaru-Isuzu Automotive, Inc.,
Not a single case cited by the dissent holds that an employer may abrogate its ADA obligation to offer reassignment as a reasonable accommodation by the simple expedient of finding another job applicant that the employer regards as more qualified. To the extent the dissent attempts to read language in any of these cases so broadly, we believe it would conflict with
On the contrary, “[n]umerous courts have assumed that the reassignment obligation means something more than treating a disabled employee like any other job applicant, [citing Gile v. United Airlines, Inc.,
As the dissent rightly observes and as is explained in Section II of this opinion, Congress has already significantly cabined the obligation to offer reassignment to a qualified employee who is disabled so as to ensure that it is not unduly burdensome, or even particularly disruptive, of an employer’s business. First, reassignment need be only to an existing vacant job. Therefore, employers need not create a new job or even modify an essential function of a vacant job in order to make it suitable for the disabled employee, because such a reconfigured job is not considered an existing vacant position. Similarly, if other employees within the company have a legitimate contractual or seniority right to a vacant position, it is not considered vacant for reassignment to the disabled employee. Second, the еmployee must be “qualified” for the vacant position. Although the statute does not require that the employee be the “best qualified” employee for the vacant position, it at least ensures the employer that it need not make the reassignment unless the employee is truly qualified to do the job. Third, the reassignment need not involve a promotion, and the employér has the authority to pick and choose which appropriate vacant job is to be offered to the otherwise qualified disabled employee. Fourth, no reassignment is required if it is not a “reasonable” accommodation or if it poses an “undue hardship.” Congress felt that these were sufficient safeguards. If further limitations are to be sought, they must come from Congress.
Finally, if there is any ambiguity in what Congress intended to include within the ADA definition of discrimination, we should give some deference to the EEOC, which is charged in part with administering the ADA. As previously quoted in this opinion, in the EEOC Interpretative Guidance, the EEOC posed the question: “Does reassignment mean that the employee is permitted to compete for a vacant position?” The EEOC answered that question, “No. 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.” EEOC Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act at 44 (1999). See Reno v. Koray, 515 U.S. 50, 61,
II. Scope of the reassignment duty
We turn next to the second issue on this appeal, which is the scope of Midland Brake’s obligation to offer Smith a reassignment position.
A. Reasonable Accommodations Within the Existing Job are Preferred
When an employer selects among several possible reasonable accommodations, the preferred option is always an accommodation that keeps the employee in his or her existing job if that can reasonably be accomplished. See H.R.Rep. No. 101-485(11), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345 (“Efforts should be made, however, to accommodate an employee in the position that he or she was
Both Smith and Midland Brake agree that no reasonable efforts at accommodation would have enabled Smith to perform the essential functions of his previous job in the light assembly department. See Smith,
B. The Accommodation of “[RJeassignment to a [VJacant [PJosition” is Limited by the Modifier of Reasonableness
Once it is appropriate to consider reassignment, the employer is required only to take reasonable steps to accomplish a reassignment. The duty of reassignment is not an absolute one, but rather is in all particulars suffused with the limitation that the employer need only take such actions for reassignment as are reasonable under the circumstances.
We derive the important limiting factor of reasonableness on an employee’s duty to reassign from the statute itself, which requires only reasonable accommodation. See 42 U.S.C. §§ 12112(b)(5)(A), 12111(9). Everything that an employer must do in terms of a reassignment is modified by the adjective reasonable, just as that adjective modifies any other accommodation required by an employer under the ADA.
C. Specific Limitations on an Employer’s Duty to Reassign
The scope of Midland Brake’s obligation to offer Smith a reassignment position is further constrаined by some of the broadly accepted limitations on an employer’s duty to reassign that have evolved under ADA case law in our circuit and others.
1. Interactive process
“The federal regulations implementing the ADA ‘envision an interactive process that requires participation by both parties.’ ” Templeton v. Neodata Services, Inc.,
To determine the appropriate reasonable accommodation it may be necessary for the covered entity 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.
In general, the interactive process must ordinarily begin with the employee providing notice to the employer of the employee’s disability and any resulting limitations,
Once the employer’s responsibilities within the interactive process are triggered by appropriate notice by the employee, both parties have an obligation to proceed in a reasonably interactive manner to determine whether the employee wоuld be qualified, with or without reasonable accommodations, for another job within the company and, if so, to identify an appropriate reassignment opportunity if any is reasonably available. 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. The interactive process is typically an essential component of the process by which a reasonable accommodation can be determined.
The interactive process includes good-faith communications between the employer and employee. See Phoenixville,
In the instant case, there is no dispute that Smith provided notice to Midland Brake of his skin condition and how it limited his performance in the light assembly department. However, there appears to be a genuine dispute about whether Smith suggested at least the possibility of a reassignment. Midland Brake asserts he did not, pointing to Smith’s sworn statement made in an initial application for social security disability benefits that he was “totally disabled and unable to work.” Smith asserts that he did, pointing in part to the testimony of Jon Anderson, the Health and Safety Coordinator working within the Human Resources Department for Midland Brake, that when Smith dropped by every week to pick up his temporary total disability check, Smith “expressed to me a desire to return to work,” and that Smith asked Anderson, “[H]ave you found some work for me to do?”, which was typically answered with “I’m looking, and I’ll contact you as soon as I have something lined up.” For purposes of summary judgment on the record before us, there is enough to conclude that Smith at least raised a genuine dispute of material fact on this issue, thereby triggering Midland Brake’s reasonable interactive duties.
The district court found that Smith had failed to provide a medical release to return to work from his physicians, and it held that the ADA’s interactive process does not require an employer affirmatively to seek out a release for an employee who has previously been taken off work by his or her physician. Therefore, the district court concluded that summary judgment for Midland Brake was appropriate. We disagree that this provides an adequate basis for summary judgment on this record. There are no doubt cases in which the employee’s failure to provide a medical release is unreasonable, breaks down the interactive process, and thereby insulates the employer from ADA liability. See Templeton,
Without deciding this record-intensive inquiry today, we note only that summary judgment would be рremature if there is a genuine dispute regarding whether Midland Brake participated in good faith in attempting to secure a reassignment position for Smith as part of its duty to offer a reasonable accommodation to Smith. On remand, the district court should consider, among other things, whether Smith’s failure to obtain a medical release was the result of any failure by Midland Brake to inform him of any vacancies; or the result of any undisclosed reliance by Midland Brake on the absence of a medical release; or perhaps whether Smith, in reliance on his near data entry reassignment, may reasonably have believed no further medical releases were necessary, at least until a replacement job was located. However, it should be emphasized that here we are only addressing Smith’s potential ability to withstand summary judgment.
Even if Midland Brake failed to fulfill its interactive obligations to help secure a reassignment position, Smith will not be entitled to recovery unless he can also show that a reasonable accommodation was possible and would have led to a reassignment position. See Phoenixville,
2. Reassignment is limited to existing jobs within the company.
It is not reasonable to require an employer to create a new job for the purpose of reassigning an employee to that job. See White,
3. The existing job must be vacant.
The ADA’s list of reasonable accommodations specifically refers to “reassignment
Similarly, an existing position would not truly be vacant, even though it is not presently filled by an existing employee, if under a collective bargaining agreement other employees have a vested priority right to such vacant positions. See Milton v. Scrivner, Inc.,
Finally, “a vacant position” includes not only positions that are at the moment vacant, but also includes positions that the employer reasonably anticipates will become vacant in the fairly immediate future. See Monette,
4. An employer need not violate other important fundamental policies underlying legitimate business interests.
Because reasonableness is our guide, there may be other important employment policies besides protecting rights guaranteed under a collective bargaining agreement that would make it unreason
There may be other such important employment policies that it would not be reasonable for an employer to set-aside in order to accomplish reassignment of a disabled employee. We neither attempt here to itemize all such policies that may exist nor comment upon such policies which may be so fundаmental to the way an employer does business that it would be unreasonable to set aside. See Dalton,
5. Reassignment does not require promotion.
The ADA is designed to prevent discrimination against a qualified individual with a disability. It is not a statute giving rise to a right to advancement. Thus, the only positions that need to be considered for a reassignmеnt are those that are not promotions. See White,
The employer should first consider lateral moves to positions that are regarded as equivalent. An employer may only consider lesser jobs that constitute a demotion if there are no such equivalent positions available. See Cassidy,
6. Employers may choose the proffered reassignment.
So long as it is consistent with the above requirements, the employer is free to choose the reassignment that is to be offered to the qualified individual with a disability. If the disabled individual rejects that reassignment, the employer is under no obligation to continue оffering other reassignments. The ADA does not entitle an employee to a free ranging or perpetual right to a new position within the company. It requires the employer to use reasonable accommodation to keep the employee in his or her existing job, and if that cannot be accomplished, to use reasonable accommodation to offer a reassignment to another vacant job which that person would be qualified to perform with or without a reasonable accommodation. Once the employer has offered such a reassignment, its duties have been discharged. See Kiel v. Select Artificials, Inc.,
7. Employer need offer only a reassignment as to which the employee is qualified with or without reasonable accommodation.
It would not be reasonable to require an employer to reassign an employee to a position for which he or she is not otherwise qualified with or without reasonable accommodation, or to require a redefinition of the essential requirements of a vacant job so as to bring it within the qualification of a disabled employee. Although some “job restructuring” may be required, see 42 U.S.C. § 12111(9), if the job restructuring goes to the modification of essential job requirements and is substantial, it is not required. See Milton,
8. “Undue hardship” limitation.
Finally, no reassignment need be offered if it would create an “undue hardship” on the employer. See 42 U.S.C. §§ 12112(5)(A), 12111(10). We have already defined the term “undue hardship” in Rascon v. U.S. West Communications, Inc.,
“Undue hardship” means an action requiring significant difficulty or expense when considered in light of various factors. The factors to be considered in determining whether an accommodation would cause an employer undue hardship are, among others: the nature and cost of the accommodation; the number of persons employed by the company; the financial resources of the company; and the impact of the accommodation upon the operation of the company.
Id. (quotations and citations omitted). That definition by necessity requires a case-by-case analysis and upon remand it will certainly be available to Midland Brake to argue that any reassignment of Smith creates an undue hardship.
This framework, using well-defined principles that have evolved under the ADA, is a starting point for defining the contours-of Midland Brake’s obligation to offer the accommodation of reassignment within the context of the factual claims being asserted by Smith. What is “reasonable” and what is an “undue hardship” of necessity has a heavy factual component and will have to be determined in the first instance by the district court on remand.
III. Summary Judgment Framework
We apply the foregoing principles in the context of summary judgment by invoking the familiar burden shifting approach set forth in McDonnell Douglas Corp. v. Green,
To survive summary judgment on an ADA claim of failure to accommodate by offering reassignment to a vacant position, the employee initially bears the burden of production with respect to a prima facie case. For .the employee to make such a prima facie case, he or she must make an initial showing that:
(1) The employee is a disabled person within the meaning of the ADA and has made any resulting limitations from his or her disability known to the employer;
(2) The preferred option of accommodation within the employee’s existing job cannot reasonably be accomplished.
(3) The employee requested the employer reasonably to accommodate his or her disability by reassignment to a vacant position, which the employee may identify at the outset or which the employee may request the employer identify through an interactive process, in which the employee in good faith was willing to, or did, cooperate;
(4) The employee was qualified, with or without reasonable accommodation, to perform one or more appropriate vacant jobs within the company that the еmployee must, at the time of the summary judgment proceeding, specifically identify and show were available within the company at or about the time the request for reassignment was made; and
(5) The employee suffered injury because the employer did not offer to reassign the employee to any appropriate vacant position.
Once the employee produces evidence sufficient to make a facial showing on his or her prima facie case, the burden of production shifts to the employer to present evidence either (1) conclusively rebutting one or more elements of plaintiffs prima facie case or (2) establishing an affirmative defense, such as undue hardship or one of the other affirmative defenses available to the employer. See 42 U.S.C. § 12113; 29 C.F.R. § 1630.15. If the employer does either of the above, summary judgment will be appropriate for the employer unless the employee then presents evidence establishing a genuine dispute regarding the affirmative defenses and/or rehabilitating any challenged elements of his or her prima facie case sufficiently to establish at least a genuine dispute of material fact as to such challenged elements.
After considering the submissions by both sides on summary judgment, if there remains genuine evidence supporting each element of the employee’s prima facie case and, if need be, disputing the employer’s affirmative defenses, summary judgment for the employer should be denied and the matter must proceed" to trial. At trial, it will be the employee’s burden to prove that he or she was a qualified individual with a disability; that the preferred option of accommodation within the employee’s existing job cannot reasonably be accomplished; that he or she had requested reassignment to a vacant position as a reasonable accommodation; that he or she was qualified, with or without reasonable accommodations, tо perform one or more specific vacant jobs shown at trial to have existed within the company at or about the time that the request for reassignment was made; and that the employee suffered injury because the employer did not offer reassignment to the employee to an appropriate vacant position within the company.
Here, the record establishes a genuine dispute of material fact regarding whether Smith sufficiently invoked the interactive process and, if so, whether Midland Brake adequately responded to a request for reassignment. Thus, summary judgment on the record before us was inappropriate on that issue. We do not, of course, suggest that summary judgment might not be appropriate upon a different record or upon a different issue in this or other ADA cases where the plaintiff seeks reassign
IV. Conclusion
We REVERSE the district court order granting summary judgment and we REMAND this matter to the district court for further consideration consistent with this opinion.
Notes
. The original panel in this case voted to affirm the district court’s entry of summary judgment for Midland Brake on Smith's ADA claim, Age Discrimination in Employment Act claim, and Kansas state law claim of retaliatory discharge. See Smith v. Midland Brake, Inc.,
. Robert W. Smith died while this appeal was pending before the original panel. Geneva M. Smith, as the Administrator of the Estate of Robert W. Smith, filed a suggestion of death and a motion to substitute herself as the Plaintiff-Appellant, pursuant to Fed. R.App. P. 43(a). We grant that motion.
. We are unsure of the Fifth Circuit's position on this issue. In Foreman v. Babcock & Wilcox Co.,
A year later, the Fifth Circuit decided Deas v. River West, L.P.,
District court cases in the Fifth Circuit that have applied Foreman have not barred reassignment simply because an employee is unable to perform the essential functions of his or her existing job, no matter the accommodation. Rather, when they have denied reassignment, it has been because factually the employee could not establish that there was an available alternative job which the employee was competent to perform. See, e.g., Leger v. Texas EMS Corp.,
. Moreover, elsewhere in the ADA, Congress provided that:
Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. § 790 et seq.) or the regulations issued by the Fedеral agencies pursuant to such title.
42 U.S.C. § 12201(a). The Supreme Court stated that this directive "requires us construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.” Bragdon v. Abbott,
A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.
28 C.F.R. § 41.53 (1998) (emphasis added). Reading the ADA with this regulatory gloss in mind, as we must, establishes that when an otherwise qualified individual with a disability can only be reasonably accommodated by a reassignment to a vacant position, the employer "shall” make that reassignment. If the ADA merely requires the employer to give the disabled employee "consideration” for that vacancy on an equal basis with other applicants, the ADA would supply disabled employees with lesser protection than that provided by the regulations implementing the Rehabilitation Act, a result contrary to Bragdon.
. Pursuant to a statutory directive, see 42 U.S.C. § 12116, the EEOC issued regulations to implement title I of the ADA, see 29 C.F.R. §§ 1630.1 — . 16. Those regulations are entitled to a great deal of deference. See EEOC v. Commercial Office Prods. Co.,
The EEOC added to these regulations an appendix, which is the Commission’s interpretive guidance to the ADA. The EEOC also published its Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. As administrative interpretations of the ADA, which is the statute the EEOC is charged with enforcing, these guidances are “not controlling upon the courts by reason of their authority,” but they “do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65,
. One wonders whether the dissent would similarly allow an employer to escape its duty to offer the other enumerated reasonable accommodations to keep a disabled employee in his or her existing job by the same expedient of finding a more qualified person to fulfill that job. For example, if an otherwise qualified disabled person asks for a reasonable “modified work schedule” or “modification of equipment” to keep his or her existing job, could the employer find a more qualified em
. The dissent argues that our interpretation of the ADA would read out the words "may include” that precede the nonexclusive list of examples of reasonable accommodations found in 42 U.S.C. § 12111(9). Our interpretation does nothing of the sort. The words "may include" precede the nonexclusive list of examples of reasonable accommodation precisely because the list is nonexclusive and various accommodations may or may not be appropriate depending upon the disability and other circumstances of employment.
. Compare H.R.Rep. No. 101-485(11), at 65 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 346 ("The Committee wishes to emphasize again that this legislation doеs not require an employer to make any modification, adjustment, or change in a job description or policy that an employer can demonstrate would fundamentally alter the essential functions of the job in question.”) with H.R.Rep. No. 101-485(11), at 62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 344 ("The duty [under the ADA] to make reasonable accommodations ... has been included as a form of nondiscrimination on the basis of disability for almost fifteen years under section 501 and section 504 of the Rehabilitation Act of 1973.").
. See Beck,
. As already quoted, in Templeton, we stated that the regulations envision an interactive process which "requires” participation by both parties.
. Two Courts of Appeals have tied this issue into the “otherwise qualified individual with a disability” language. That is, when an employee refuses one reasonable accommodation, that person is no longer considered a "qualified individual with a disability.” See Hankins v. The Gap, Inc.,
. The purpose of a burden shifting approach is a bit different in an ADA Failure to Accommodate case. In such a case, the Congress has already determined that a failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination. See 42 U.S.C. § 12111(b)(5)(A) ("the term 'discriminate' includes ... not making reasonable accommodations ... ”). Thus, we use the burden-shifting mechanism, not to probe the subjective intent of the employer, but rather simply to provide a useful structure by which the district court, when considering a motion for summary judgment, can determine whether the various parties have advanced sufficient evidence to meet their respective traditional burdens to prove or disprove the reasonableness of the accommodations offered or not offered. See White,
Concurrence in Part
joined by BALDOCK and BRORBY, Circuit Judges, concurring in part and dissenting in part.
I concur in the court’s opinion that a “qualified individual with a disability” under the Americans with Disabilities Act (ADA) includes an employee who with or without reasonable accommodation can perform a reassigned job, even though the employee is unable to perform his existing job. I dissent from the court’s opinion concerning the scope of the reassignment right, specifically that such an employee has a right to be reassigned to a vacant position, regardless of whether other more qualified individuals are seeking the position.
Generally, an employer is required to make a reasonable accommodation unless it can demonstrate undue hardship. See 42 U.S.C. § 12112(b)(5)(A). Determining a reasonable accommodation almost always will require communication between the parties. See 29 C.F.R. § 1630.2(o)(3). The ADA contains several measures of reasonable accommodation that should be considered. Reassignment to a vacant position is one of them. See 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii). Reassignment to a vacant position ordinarily will be preceded by consideration of the other measures that will allow an existing employee to perform the essential functions of his or her job. See 29 C.F.RApp. § 1630.2(o). Like all of the measures described as examples of reasonable accommodation, however, reassignment is an option that depends upon the facts and circumstances. Contrary to the court’s view, merely because discrimina
The more difficult question confronting the court is whether such an employee, minimally qualified for a position that others are interested in, must be awarded the position because of his or her disability.. To be sure, the employee is a qualified individual with a disability, but that status is not sufficient to confer a preference for a vacant position that the employer would like to fill competitively. Courts must resist the temptation to “improve” upon Congress’s work. Rather, the ADA complements existing federal and state laws that encourage an employer to consider all persons on their merits. So long as a person with a disability can perform the essential functions of the vacant job with or without reasonable accommodation, that person, like all others, should be afforded equal consideration without regard to disability, perceived or otherwise. Congress made this abundantly clear. See H.R.Rep. No. 101-485(II), at 55-56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 337-338.
The ADA was enacted pursuant to a finding that disability discrimination “denies people with disabilities the opportunity to compete on an equal basis and pursue those opportunities for which our free society is justifiably famous,” 42 U.S.C. § 12101(a)(9) (findings) (emphasis supplied). We have recognized that merely because reassignment should be considered as a reasonable accommodation, it does not require the employer to promote, reassign to an occupied position, or create a new position. See White v. York Int’l Corp.,
[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.
Dalton v. Subaru-Isuzu Automotive, Inc.,
Other cases reinforce that any potential reasonable accommodation must accord with the fair and impartial consideration deserved by all individuals, be they current employees or applicants. In Daugherty v. City of El Paso,
[W]e 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. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.
Id. The court rejected the notion that the employer had any obligation to reasonably accommodate part-time employees with reassignment given a city policy that preferred full-time employees over part-time employees in filling vacancies. See id. at 699-700.
The Second Circuit has considered this issue in the context of an injured employee seeking reassignment to a position with a different supervisor. See Wernick v. Federal Res. Bank of N.Y.,
[Njothing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.... [T]he [employer] only had an obligation to treat her in the same manner that it treated other similarly qualified candidates.
Id. at 384-85.
Finally, the Eleventh Circuit rejected the idea that another potential reasonable accommodation, “part-time or modified
The ADA was never intended to turn nondiscrimination into discrimination.
We cannot accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers.
Id. at 627. Given the controversial nature of preferences in employment, courts have been understandably reluctant to read one into the ADA thаt is at odds with the qualified language of the statute and its legislative history. See Aka v. Washington Hosp. Ctr.,
The court faults reliance on the above cases because they reject reassignment for reasons other than the existence of a more qualified applicant for a competitive position. Be that as it may, these cases do discuss reassignment as a remedjr and uniformly reject it for reasons that should inform our judgment about the scope of the right. Stated another way, those reasons are equally applicable here. Whether we defer to an employer’s legitimate nondiscriminatory reason for not reassigning (which surely could include merit selection), or emphasize that the ADA does not create a preference, the scope of the right has been narrow. See, e.g., Dalton,
The court concludes that the reassignment provision means “more than a duty merely to consider without discrimination a disabled employee’s request for reassignment along with all other applications the employer may receive from other employees or job applicants for a vacant position.” See Ct. Op. at 1164; Aka,
The court also suggests that because the ADA already prohibits discrimination upon application for a vacant position, the reassignment provision must confer an additional right to avoid redundancy. See Ct. Op. at 1164-65; Aka,
Moreover, other equally plausible reasons exist for the reassignment provision. First, it precludes an employer from a blanket ban on reassignments. See Dalton,
Because a level playing field is what Congress and the President envisioned when the ADA was enacted, not a preference, I respectfully dissent on this issue. I would remand the case to the panel for further consideration of the ADA claim in light of the above principles.
. In discussing the term "qualified individual with a disability/' the legislative history makes it clear that the ADA was never intended to create a preference:
[T]he Committee intends to reaffirm that this legislation does not undermine an employer's ability to choose and maintain qualified workers. This legislation simply provides that employment decisions must not have the purpose or effect of subjecting a qualified individual with a disability to discrimination on the basis of his or her disability.
Thus, under this legislation an employer is still free to select applicants for reasons unrelated to the existence or consequence of a disability. For example, suppose an employer has an opening for a typist and two persons apply for the job, one being an individual with a disability who types 50 words per minute and the other being an individual without a disability who types 75 words per minute. The employer is permitted to choose the applicant with the higher typing speed, if typing speed is necessary for successful performance on the job.
On the other hand, if the two applicants are an individual with a hearing impairment who requires a telephone headset with an amplifier and an individual without a disability, both of whom have the same typing speed, the employer is not permitted to choose the individual without a disability because of the need to provide the needed reasonable accommodation to the person with the disability.
In the above example, the - employer would be permitted to reject the applicant with a disability and choose the other applicant for reasons not related to the disability or to the accommodation or otherwise not prohibited by this legislation. In other words, the employer's obligation is to consider applicants and make decisions without regard to an individual’s disability, or the individual’s need for a reasonable accommodation. But, the employer has no obligation under this legislation to prefer applicants with disabilities over other applicants on the basis of disability.
H.R.Rep. No. 101-485(11), at 55-56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 337 — 338. Any approach that allows preferences for current disabled employees in reassignment situations conflicts with this clear statement.
. None of the cases the court relies upon directly address a situation where an employer has other qualified applicants and would like to choose the most qualified for the vacant position-most simply indicate that an employer either has a duty or may have a duty to reassign subject to a myriad of exceptions, all such exceptions endorsed by this court. See Mengine v. Runyon,
. The legislative history suggests that consideration of other forms of accommodation should precede consideration of reassignment:
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. Efforts should be made, however, to accommodate an employee in the position that he or she was hired to fill before reassignment is considered. The Committee also wishes to make clear the reassignment need only be to a vacant position-"bumping” another employee out of a position to create a vacancy is not required.
H.R.Rep. No. 101-485(11), at 63, reprinted in 1990 U.S.C.C.A.N. 303, 345. Accord 29 C.F.R.App. § 1630.2(o) (1998). The court concludes that the last sentence indicates that Congress intended that the reassignment right give a disabled employee a preference for a vacant position over other applicants. See Ct. Op. at 1168-69; Aka,