414
Scalia, J., dissenting
ADA's accommodation provision becomes a standardless grab bag—leaving it to the courts to decide which workplace preferences (higher salary, longer vacations, reassignment to positions to which others are entitled) can be deemed "reasonable" to "make up for" the particular employee's disability.
Some courts, including the Ninth Circuit in the present case, have accepted respondent's contention that the ADA demands accommodation even with respect to those obstacles that have nothing to do with the disability. Their principal basis for this position is that the definition of "reasonable accommodation" includes "reassignment to a vacant position." § 12111(9)(B). This accommodation would be meaningless, they contend, if it required only that the disabled employee be considered for a vacant position. The ADA already prohibits employers from discriminating against the disabled with respect to "hiring, advancement, or discharge . . . and other terms, conditions, and privileges of employment." § 12112(a). Surely, the argument goes, a disabled employee must be given preference over a nondisabled employee when a vacant position appears. See Smith v. Midland Brake, Inc., 180 F. 3d 1154, 1164-1165 (CA10 1999) (en banc); Aka v. Washington Hospital Center, 156 F. 3d 1284, 1304-1305 (CADC 1998) (en banc). Accord, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 3 BNA EEOC Compliance Manual, No. 246, p. N:2479 (Mar. 1, 1999).
This argument seems to me quite mistaken. The right to be given a vacant position so long as there are no obstacles to that appointment (including another candidate who is better qualified, if "best qualified" is the workplace rule) is of considerable value. If an employee is hired to fill a position but fails miserably, he will typically be fired. Few employers will search their organization charts for vacancies
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