227 F.3d 1024 (7th Cir. 2000)
Equal Employment Opportunity Commission, Plaintiff-Appellant,v.Humiston-Keeling, Inc., et al., Defendants-Appellees.
No. 99-3281
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 24, 2000Decided September 15, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 97 C 5654--George W. Lindberg, Judge.
Before Cudahy, Posner, and Evans, Circuit Judges.
Posner, Circuit Judge.


1
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."


2
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).


3
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.


4
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.


5
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.


6
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.


7
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.


8
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.


9
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.


10
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."


11
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.


12
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).


13
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.


14
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.


15
Affirmed.

