412
Scalia, J., dissenting
to hold . . . under the employer's bona fide and established seniority system." Pet. for Cert. i; 532 U. S. 970 (2001). Indulging its penchant for eschewing clear rules that might avoid litigation, see, e. g., Kansas v. Crane, 534 U. S. 407, 423 (2002) (Scalia, J., dissenting); TRW Inc. v. Andrews, 534 U. S. 19, 35-36 (2001) (Scalia, J., concurring in judgment), the Court answers "maybe." It creates a presumption that an exception to a seniority rule is an "unreasonable" accommodation, ante, at 403, but allows that presumption to be rebutted by showing that the exception "will not likely make a difference," ante, at 405.
The principal defect of today's opinion, however, goes well beyond the uncertainty it produces regarding the relationship between the ADA and the infinite variety of seniority systems. The conclusion that any seniority system can ever be overridden is merely one consequence of a mistaken interpretation of the ADA that makes all employment rules and practices—even those which (like a seniority system) pose no distinctive obstacle to the disabled—subject to suspension when that is (in a court's view) a "reasonable" means of enabling a disabled employee to keep his job. That is a far cry from what I believe the accommodation provision of the ADA requires: the suspension (within reason) of those employment rules and practices that the employee's disability prevents him from observing.
I
The Court begins its analysis by describing the ADA as declaring that an employer may not " 'discriminate against a qualified individual with a disability.' " Ante, at 396 (quoting 42 U. S. C. § 12112(a) (1994 ed.)). In fact the Act says more: an employer may not "discriminate against a qualified individual with a disability because of the disability of such individual." 42 U. S. C. § 12112(a) (1994 ed.) (emphasis added). It further provides that discrimination includes "not making reasonable accommodations to the known physi-
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