416
Scalia, J., dissenting
There is no reason why the phrase "reassignment to a vacant position" should be thought to have a uniquely different focus. It envisions elimination of the obstacle of the current position (which requires activity that the disabled employee cannot tolerate) when there is an alternate position freely available. If he is qualified for that position, and no one else is seeking it, or no one else who seeks it is better qualified, he must be given the position. But "reassignment to a vacant position" does not envision the elimination of obstacles to the employee's service in the new position that have nothing to do with his disability—for example, another employee's claim to that position under a seniority system, or another employee's superior qualifications. Cf. 29 CFR pt. 1630, App. § 1630.2(o), p. 357 (2001) (explaining "reasonable accommodation" as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities" (emphasis added)); Aka v. Washington Hospital Center, supra, at 1314-1315 (Silberman, J., dissenting) (interpreting "reassignment to a vacant position" consistently with the other accommodations listed in § 12111(9), none of which "even alludes to the possibility of a preference for the disabled over the nondisabled").
Unsurprisingly, most Courts of Appeals addressing the issue have held or assumed that the ADA does not mandate exceptions to a "legitimate, nondiscriminatory policy" such as a seniority system or a consistent policy of assigning the most qualified person to a vacant position. See, e. g., EEOC v. Sara Lee Corp., 237 F. 3d 349, 353-355 (CA4 2001) (seniority system); EEOC v. Humiston-Keeling, Inc., 227 F. 3d 1024, 1028-1029 (CA7 2000) (policy of assigning the most qualified applicant); Burns v. Coca-Cola Enterprises, Inc., 222 F. 3d 247, 257-258 (CA6 2000) (policy of reassigning employees only if they request a transfer to an advertised vacant position); Cravens v. Blue Cross and Blue Shield of Kansas City,
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