In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3281

Equal Employment Opportunity Commission,

Plaintiff-Appellant,

v.

Humiston-Keeling, Inc., et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 5654--George W. Lindberg, Judge.


Argued February 24, 2000--Decided September 15, 2000



 Before Cudahy, Posner, and Evans, Circuit Judges.

 Posner, Circuit Judge. The district court
granted summary judgment for the defendant in
this suit by the EEOC under the Americans with
Disabilities Act, 42 U.S.C. sec.sec. 12101 et
seq. The Commission’s brief states the issue on
appeal clearly though, as we shall see,
incompletely: "whether the summary judgment
evidence, viewed most favorably to the EEOC,
would permit a jury to find that Humiston-Keeling
violated the ADA by reassigning Nancy Cook Houser
to a warehouse job that did not offer a
meaningful equal employment opportunity, and
refusing to reassign her to an equivalent vacant
clerical position that she was qualified to
perform consistent with her physical
limitations."

 Houser worked as a picker in a warehouse, where
her duty was to carry pharmaceutical products
from a shelf to a conveyor belt. The job required
frequent lifting of as much as five pounds. An
accident at work led to very bad lateral
epicondylitis (better known as "tennis elbow") in
her right arm, as a result of which she could not
use that arm to lift the items that her job
required her to be able to lift. We may assume
without having to decide that this impairment was
a sufficiently significant restriction of a major
life activity to count as a disability within the
meaning of the statute (although we have our
doubts, see, e.g., Dalton v. Subaru-Isuzu
Automotive, Inc., 141 F.3d 667, 675 (7th Cir.
1998); Hughes v. Bedsole, 48 F.3d 1376, 1388-89
(4th Cir. 1995); Snow v. Ridgeview Medical
Center, 128 F.3d 1201, 1207 (8th Cir. 1997), and
especially Howard v. Navistar Int’l
Transportation Corp., 904 F. Supp. 922, 927-28
(E.D. Wis. 1995), aff’d, 107 F.3d 13 (7th Cir.
1997)), thus placing on her employer, the
defendant, the duty to find if possible a
"reasonable accommodation" of Houser’s disability
that would enable her to remain in the company’s
employ. 42 U.S.C. sec. 12112(b)(5)(A). Such an
accommodation can take various forms, such as
making the workplace accessible to a person who
is wheelchair-bound, or, of particular pertinence
here, "reassignment [of the disabled person] to a
vacant position." sec. 12111(9)(B).

 Houser’s employer recognized its obligation to
attempt a reasonable accommodation of her
disability and endeavored to discharge its
obligation in several ways successively. First,
it rigged an apron for Houser in such a way that
(it hoped) she could carry items from the shelf
to the conveyor belt with just her left arm. She
gave up on this after a few hours and there is a
dispute over whether she gave it a fair shot but
we’ll assume she did. The EEOC doesn’t think the
"one-arm picker" accommodation was "meaningful."
That is too strong. It was a failed experiment,
undertaken in good faith so far as appears and
not obviously doomed to fail from the start, as
in Haschmann v. Time Warner Entertainment Co.,
151 F.3d 591, 602 (7th Cir. 1998).
Experimentation should not be discouraged by
deeming, with the wisdom of hindsight, an
experiment that fails unreasonable per se, which
seems to be the Commission’s view.

 But it is a separate question whether, the
experiment having failed, the employer was
excused from further efforts to accommodate
Houser’s disability. We may assume that the
employer was not excused. But the further efforts
did not have to take the form of a further effort
to enable Houser to do picking with only one arm.
Indeed, the EEOC asserts that such an effort
would have been futile: "nor does the evidence
indicate," we read in its brief, that "any such
modification [that is, any modification that
would enable her to keep up with the assembly
line] exists." Any further attempt at
accommodation would have to take the form of a
reassignment. And indeed, immediately upon the
failure of the "one-arm picker" attempt at
accommodation, Houser’s employer offered her, and
she accepted, a substitute accommodation that the
EEOC acknowledges was reasonable--a light job as
a greeter to visitors to a company construction
site. That job disappeared, however, when the
construction was completed, precipitating the
most important issue presented by the appeal. The
company had several vacant clerical positions for
which Houser was qualified in the sense of having
at least the minimum qualifications for the
position. She applied for these positions but in
each case was turned down in favor of another
applicant, and as a result was eventually let go
by the company.

 The EEOC does not deny that in every case the
applicant chosen for the job was better than
Houser in the sense of likely to be more
productive. Nor does it deny that the company had
a bona fide policy, consistently implemented, of
giving a vacant job to the best applicant rather
than to the first qualified one. Nor does it
suggest that Houser’s disability played any role
in the decisions favoring her competitors. None
of the jobs involved a degree of lifting that her
disability would have interfered with her
performing, and it is not suggested that the
defendant harbors any animus toward disabled
workers. Rather the Commission interprets the
"reassignment" form of reasonable accommodation
to require that the disabled person be advanced
over a more qualified nondisabled person,
provided only that the disabled person is at
least minimally qualified to do the job, unless
the employer can show "undue hardship," a safe
harbor under the statute. sec. 12112(b)(5)(A);
Vande Zande v. Wisconsin Dept. of Administration,
44 F.3d 538, 542 (7th Cir. 1995). The fact that
the disability isn’t what makes the disabled
person unable to perform the job as well as the
person who got it is, in the Commission’s view,
irrelevant.

 We do not agree with the Commission’s
interpretation of the statutory provision on
reassignment. The interpretation requires
employers to give bonus points to people with
disabilities, much as veterans’ preference
statutes do. Houser’s disability, we repeat, had
nothing to do with the office jobs for which she
applied. The Commission asserts that her
unrelated disability, a disability that put her
at no disadvantage in competing for an opening in
an office job, nevertheless entitled her to be
given more consideration than nondisabled
workers. It is easy to imagine situations in
which under the Commission’s view one disabled
worker would be entitled to get a job ahead of a
worker with a more serious disability. Suppose
that A and B are both applying for the same job,
Job X. A was severely disabled years ago and
placed in an office job with the company. B was
less severely disabled, and not being able to
work in his present job has also applied for X. A
is not only more severely disabled than B; he is
also, let us assume, certain to perform the job
much better than B, although B meets the minimum
qualifications for the job. Under the
Commission’s view, B is entitled to the job.

 Or suppose, to take a variant case, that B is a
29-year-old white male with severe tennis elbow,
just like Houser, and A is a 62-year-old black
woman with no disability, and again they are
applying for the same job. Under the Commission’s
view, even though A is not only the better
applicant but also a member of one of the
minority groups that the laws administered by the
EEOC are supposed to be protecting, B, the white
male, is entitled to the job. Thus on the
Commission’s view there is a hierarchy of
protections for groups deemed entitled to
protection against discrimination, with the
disabled being placed ahead of the members of
racial minorities.

 The Commission thinks these odd and
counterintuitive results compelled by the
structure of the statute. If all that Houser’s
employer had to do by way of a reasonable
accommodation was to allow Houser to compete for
jobs for which she was qualified and to obtain
any job for which she was the best applicant,
what is left of the duty to reassign a disabled
worker to a vacant position? Plenty is left.
Without the reassignment provision in the
statute, an employer might plausibly claim that
"reasonable accommodation" refers to efforts to
enable a disabled worker to do the job for which
he was hired, or for which he is applying, rather
than to offer him another job. The reassignment
provision makes clear that the employer must also
consider the feasibility of assigning the worker
to a different job in which his disability will
not be an impediment to full performance, and if
the reassignment is feasible and does not require
the employer to turn away a superior applicant,
the reassignment is mandatory. That is not the
same thing as requiring the employer to give him
the job even if another worker would be twice as
good at it, provided only that this could be done
without undue hardship to the employer.

 The Commission presses on us two recent en banc
decisions in other circuits, Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1164-68 (10th Cir.
1999); Aka v. Washington Hospital Center, 156
F.3d 1284, 1303-05 (D.C. Cir. 1998); see also
Davoll v. Webb, 194 F.3d 1116, 1131-32 (10th Cir.
1999) (following Smith). Aka is distinguishable.
It does not address the situation in which a
nondisabled person is the superior applicant for
the job to which the disabled person seeks
reassignment and the employer has a consistent
policy of preferring the best candidate for a
vacancy rather than merely hiring the first
qualified person to apply, as is often done for
routine low-skilled jobs. The court assumed that
the alternative to a duty to reassign a person
who is minimally qualified is a duty of the
employer just to "consider" the person for the
job, with no obligation actually to reassign him
even if there is no competing applicant, let
alone one no better than the disabled person. On
that assumption the statute’s provision that
reassignment can be a mandatory accommodation
would indeed be meaningless. Aka merely rejects
an "interpretation of the reassignment provision
as mandating nothing more than that the employer
allow the disabled employee to submit his
application along with all of the other
candidates," an interpretation that the court
thought "would render that provision a nullity."
156 F.3d at 1305. That is not the same thing as
holding that the employer must pass over the
superior applicant who, as we have emphasized,
might himself or herself be disabled or belong to
some other protected class.

 The Tenth Circuit cases are not distinguishable
from the present case, but they are inconsistent
with decisions of this court that hold that the
Americans with Disabilities Act is not a
mandatory preference act. In Dalton v. Subaru-
Isuzu Automotive, Inc., supra, 141 F.3d at 679,
we held that an employer is not required "to
reassign a disabled employee to a position when
such a transfer would violate a legitimate,
nondiscriminatory policy of the employer. . . .
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." A
policy of giving the job to the best applicant is
legitimate and nondiscriminatory. Decisions on
the merits are not discriminatory. See also
Malabarba v. Chicago Tribune Co., 149 F.3d 690,
699-700 (7th Cir. 1998), where we said that "the
ADA does not mandate a policy of ’affirmative
action in favor of individuals with disabilities,
in the sense of requiring that disabled person be
given priority in hiring or reassignment over
those who are not disabled,’" and Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1196 (7th
Cir. 1997), where we said that "the Americans
with Disabilities Act does not command
affirmative action in hiring or firing."

 It is true that antidiscrimination statutes
impose costs on employers. That is obvious in
disparate-impact cases, when the employer is told
to change a policy that may not have been adopted
for discriminatory reasons (though that is its
effect) and so presumably is efficient. The duty
of accommodation operates in a similar way. It
requires the employer to incur (if it need be) an
expense rather than just to desist from invidious
discrimination. The requirement is implicit in
the ADA’s creating an "undue hardship" safe
harbor for employers; the safe harbor would be
otiose if the employer’s only duty were to stop
doing something.

 But there is a difference, one of principle and
not merely of cost, between requiring employers
to clear away obstacles to hiring the best
applicant for a job, who might be a disabled
person or a member of some other statutorily
protected group, and requiring employers to hire
inferior (albeit minimally qualified) applicants
merely because they are members of such a group.
That is affirmative action with a vengeance. That
is giving a job to someone solely on the basis of
his status as a member of a statutorily protected
group. It goes well beyond enabling the disabled
applicant to compete in the workplace, or
requiring the employer to rectify a situation
(such as lack of wheelchair access) that is of
his own doing. Cf. City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 505 (1989).

 We have assumed thus far that had Houser gotten
one of the office jobs for which she applied, it
would have been a lateral move rather than a
promotion. The EEOC acknowledges that an employer
doesn’t have to give a disabled employee a
promotion in order to satisfy the duty of
reasonable accommodation. Malabarba v. Chicago
Tribune Co., supra, 149 F.3d at 699; Dalton v.
Subaru-Isuzu Automotive, Inc., supra, 141 F.3d at
679; Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir.
1996). Promotions are a subset of reassignments.
A promotion is merely a reassignment to a better
job--and so the Commission’s concession shows
that even the Commission does not interpret the
duty of reassignment literally.

 The district court found that the office jobs
were indeed better; the work was less strenuous
and paid more; and so what Houser didn’t receive
was indeed a promotion. Economists since Adam
Smith have taught that part of a wage is
compensation for whatever disamenities the job
involves. The work of a picker is tedious and
involves considerably more physical exertion than
that of a clerical worker, so that if each is
paid the same, it is a reasonable inference that
the clerical job is better because the wage net
of the compensating differential (the part of a
wage that compensates for some disamenity of the
job), which is what counts, is higher. Miller v.
Illinois Dept. of Corrections, 107 F.3d 483, 486
(7th Cir. 1997), and references cited there. No
doubt some people prefer the more strenuous job,
perhaps to control their weight, perhaps because
they find desk jobs insufferably boring; but it
seems a fair generalization that most desk jobs
are "better" in the sense we’re using than
factory or other physically demanding jobs that
pay no more, other things being equal. But here
other things may not have been equal. There was
some evidence that the warehouse jobs provide
much superior opportunities for overtime work,
which, in part because the wage for such work
cannot under the law be less than 50 percent
higher than the normal wage, may be a distinct
plus for many workers, erasing the other
considerations to which we’ve been pointing.
There is enough doubt on this record about the
superiority of the office jobs for which Houser
applies to make us prefer to rest decision on the
alternative ground that the ADA does not require
an employer to reassign a disabled employee to a
job for which there is a better applicant,
provided it’s the employer’s consistent and
honest policy to hire the best applicant for the
particular job in question rather than the first
qualified applicant.

Affirmed.
