(concurring/dissenting) — I agree with the majority that Thomas Davis’s claim that the Washington Law Against Discrimination, chapter 49.60 RCW (WLAD), required Microsoft to alter his job duties to accommodate his disability must fail as a matter of law. Davis failed to establish the second element of his prima facie case—that he was qualified to perform the essential functions of the job in question. I write separately, however, because I would base my decision on narrower grounds. Additionally, I write because the majority does not address the court’s instructions on Davis’s second theory of liability—that Microsoft failed to accommodate Davis by failing to transfer him to *541another position. The instructions on this theory misstated the law and denied Microsoft the opportunity to argue its position.
DISCUSSION
Instead of focusing on job presence, as the majority does, I would find that flexibility in responding to customers and frequent travel were “essential functions” of the position and that long hours and job presence were a by-product of these functions. Davis’s limitation to an 8-hour workday and a 40-hour workweek made it impossible for him to perform the frequent travel and have the flexibility to respond to customers’ needs. These grounds alone are sufficient and it is not necessary to include job presence or overtime as essential functions in and of themselves.
The dissent cites the example of snowplow operators and emergency rescue team members as support for its position that long hours must be related to a specific requirement of the work performed. Dissent at 551. The dissent states that plowing snow and responding to emergencies are essential functions of these jobs, but working 60 to 80 hours per week would not be an essential function when there was no snow and no emergency. Dissent at 551.1 agree. However, snowplow operators and emergency workers must have the flexibility and ability to work extremely long days or weeks when snowstorms or emergencies do happen. This ability would be an essential function of those particular jobs. Similarly, the systems engineer position at Microsoft requires the flexibility and ability to respond to customer emergencies which may occur in the far reaches of the globe. Davis had neither the flexibility nor the ability to perform these duties.
Davis’s manager, Carl Gulledge, testified that he attempted to make the position fit Davis’s requirements, but was unable to do so.
[I]n the end, I couldn’t overcome the inherent nature of the job and that being that the job calls for being flexible enough to *542respond to customer needs and to those needs of the sales team. On urgent issues, in short order there just wasn’t a way to encapsulate this type of job and maintain a level of satisfaction with our customers and with our sales group.
Report of Proceedings (RP) (Oct. 12, 2000) at 82. Furthermore, Davis’s testimony that he performed his job satisfactorily when he was given a reduced workload as a temporary accommodation is not proof that he could perform the essential functions. Majority at 536. The fact that during that short period of time an emergency did not occur does not indicate an ability to respond to possible future emergencies.
Even with a dramatic reduction in load by having a single customer, the fact remains that the time frame by which sales professionals need to engage customers is one that is not structureable. It needs to be very flexible. It needs to be responsive.
RP (Oct. 12, 2000) at 113.
While I do not disagree with the majority or dissent that there are situations where job presence or extended hours may be essential functions of some employment, those factors do not need to be relied upon here. Davis did not have the flexibility to respond to customer’s demands or to perform the frequent travel. Therefore judgment as a matter of law is appropriate because he could not perform the essential functions of the position.
I also have grave concerns about the court’s instructions on Davis’s theory that Microsoft failed to accommodate his disability by failing to transfer him to a different position. Specifically, jury instruction 13 misstates the duty of the employee to apply for potential jobs and together with instruction 8 misstates the appropriate affirmative steps an employer must take to help an employee find an alternative position within the company.
“Jury instructions must be considered in their entirety. They are sufficient if they permit each party to argue his theory of the case, are not misleading, and when read as a *543whole, properly inform the jury of the applicable law.” Dean v. Mun. of Metro. Seattle, 104 Wn.2d 627, 634, 708 P.2d 393 (1985) (citing Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 194, 668 P.2d 571 (1983)). The jury instructions in this case are in error because they allow Davis to argue and succeed on a theory which is not supported by the applicable law, while preventing Microsoft from arguing a valid theory of the case.
Jury instruction 13 states in part:
The employee has a corresponding duty to reasonably cooperate with the employer in the search for other suitable work by making the employer aware of his qualifications, by applying for all jobs for which he was qualified and which could reasonably accommodate his disability and by accepting reasonably compensatory work he could perform.
Clerk’s Papers (CP) at 1689 (emphasis added). The language of this instruction indicates that an employee is required to apply for a job only after it is affirmatively determined both that the employee is qualified for the position and that the position will accommodate the disability. This is not an accurate statement of Washington law on the duty of an employee to apply for potential jobs.
Dean is the seminal case in Washington pertaining to the duties and actions required by employers and employees in handicap discrimination cases. In Dean, this court stated:
It was correspondingly the duty of [the employee] to cooperate with the employer in the hunt for other suitable work by making the employer aware of his qualifications, by applying for all jobs which might fit his abilities and by accepting reasonably compensatory work he could perform.
104 Wn.2d at 637-38 (emphasis added). The difference between the language in Dean and jury instruction 13 may at first blush seem slight. However, in Mr. Davis’s case it is outcome determinative. Davis’s sole point of contention is that Microsoft did not make a definitive determination beforehand that potential job openings would in fact accommodate him. RP (Oct. 23, 2000) at 45-49 (Davis would not *544cooperate by expressing interest in a job or contacting the hiring managers unless Clement could tell him definitively beforehand that the jobs would accommodate his medical restriction). Davis contends that he had no duty to interview until Microsoft made this definitive determination. Microsoft counters that Davis has a coexisting duty to participate in the job search and apply for all jobs which might fit his abilities.8
The word “might” is used to indicate “less probability or possibility than may.” Webster’s Third New International Dictionary 1432 (1993). By using the phrase “might fit his abilities,” Dean places an affirmative duty on the employee to apply for all jobs which have even a weak possibility or probability of being able to fit his abilities. Dean, 104 Wn.2d at 638; see also Molloy v. City of Bellevue, 71 Wn. App. 382, 391, 859 P.2d 613 (1993) (employee failed in duty by refusing job that may have accommodated him, even though it paid only half of salary). Washington courts also look to federal discrimination law to interpret this state’s own discrimination law. Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 118, 720 P.2d 793 (1986). Federal law is in accord with Dean. See Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997) (employee failed to fulfill duty by not interviewing for four job openings, despite his contention that the jobs did not best fit his physical limitations).9
*545Jury instruction 13 misstates the duty of an employee to interview, thus preventing Microsoft the opportunity to argue its theory that Davis had not fulfilled his burden in the accommodation process. Conversely, it allowed Davis to successfully argue his theory that the duty to interview is not triggered until the company makes a definitive determination that the job will in fact accommodate his disability. This theory is not supported by Washington law. Rather, as Microsoft argues, it had the duty to identify potential jobs which might fit Davis’s qualifications and might accommodate his disability, not a duty to identify only positions it could guarantee would accommodate.* *34*****10
Dean provides that to make a prima facia case of discrimination an employee must prove that “the employer failed to take affirmative measures to make known such job opportunities to the employee and to determine whether the employee was in fact qualified for those positions.” Dean, 104 Wn.2d at 639 (emphasis added). Nowhere in Dean does the court require an employer to make a definitive determination beforehand that potential job openings will in fact accommodate the disability. Id. at 636-39. However, both jury instruction 8 and jury instruction 13 imply that this definitive determination is a requirement of the employer by adding the phrase: “that could accommodate his disability.”11 Dean does state that “[i]t was the duty of [the employer] to reasonably accommodate [the em*546ployee] by informing him of job openings for which he might be qualified” and that correspondingly it was “the duty of [the employee] to cooperate with the employer in the hunt for other suitable work by . . . applying for all jobs which might fit his abilities.” Id. at 637-38. However, Dean requires only that potential jobs identified by the employer have the possibility or potential for accommodation. Id. at 637.
Even if an employee establishes a prima facia case of discrimination, the United States Supreme Court has long held “that the employee’s prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 257, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Microsoft stated very clearly its reason for not making a definitive determination whether a job would in fact accommodate Davis’s disability. Microsoft concluded that the best chance for success would come by having Davis interview for jobs that might fit his abilities, before informing the managers of his disability. By doing this, it was Microsoft’s contention that Davis would be able to impress the managers with his skill set, making accommodation more likely. RP (Oct. 23, 2000) at 45-46.
The language of the jury instructions incorrectly prevented Microsoft from arguing its theory that once it had identified potential positions that the employee might be qualified for, it could not determine if the employee was “in fact qualified for those positions” without the cooperation of *547the employee. The approach advocated by Davis and supported by the jury instructions would virtually eliminate the need for an employee to interview and assist in the job search, instead placing the entire burden of locating and investigating jobs on the employer. This theory contravenes the applicable law.
In Dean, this court advocated a process where employer and employee work together to find an accommodation which would fit with the employee’s disability. 104 Wn.2d at 638. This approach is strongly reinforced by subsequent Washington and federal decisions. See Goodman v. Boeing Co., 127 Wn.2d 401, 408-09, 899 P.2d 1265 (1995) (reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (Americans with Disabilities Act regulations envision an interactive process that requires participation by both parties); Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997) (“We agree that both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith. . . . Simply put, a disabled employee seeking reassignment will be best served by employer and employee working together to identify suitable positions.”); Hunt-Golliday v. Metro. Water Reclamation Dist. of Greater Chi., 104 F.3d 1004, 1012 (7th Cir. 1997) (determining what specific actions should be taken by an employer requires an interactive process involving participation by both sides); Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996) (employee has the duty to identify a vacant, funded position whose essential functions he is capable of performing).
Dean holds that the law against discrimination “requires that the employer affirmatively assist the employee who becomes handicapped on the job.” 104 Wn.2d at 639. Microsoft asserts, and Davis concedes, that it took the following positive steps to assist Davis: (1) solicited information from Davis’s physician to determine the extent of *548Davis’s disability; (2) gave Davis six months to conduct his in-house job search; (3) provided Davis with office space and immediate access to Microsoft’s complete computerized job databank; and (4) assigned him an internal resource specialist, Janece Clement, who initiated contact with him and attempted to provide personal assistance in his job search. Furthermore, after it was determined that Davis could not perform the essential functions of his current job, Microsoft’s Americans with Disabilities Act Committee considered the situation and decided that the position in the Product Support Services (PSS) group might be a good fit for Davis’s situation. RP (Oct. 17, 2000) at 95-104. Davis was subsequently encouraged to apply for the job by a member of Human Resources, his supervisor, Jim Nellis, and the Original Equipment Manufacturer (OEM) group manager, Carl Gulledge. Id. at 115-16; RP (Oct. 12, 2000) at 120-22. Nellis and Gulledge both believed that a PSS position would be appropriate for Davis because the PSS group worked with the same customers as OEM on similar technical issues and the positions in PSS were more structured and accommodating to a regular work schedule. Id. However, Davis expressed distaste for the PSS jobs, declined to apply and indicated that he wanted to remain a systems engineer. Id.
Despite all of these efforts, Davis contends that Microsoft still failed in its duty to “affirmatively assist the employee.” This contention is not in accord with Washington law on the duty of employers in disability discrimination cases. See, e.g., Dean, 104 Wn.2d at 638-39 (employer failed to make reasonable accommodations by not determining the extent of the employee’s disability, not calling him into the office to assist him in applying for other positions, not giving special attention from the personnel office, taking no affirmative steps to help him find another position, not informing him of all job openings, and treating him as any other applicant); Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1051 (9th Cir. 1995) (concluding that employer had “indisputably” met its duty by seeking clarification of employee’s limita*549tions, providing access to the company’s computerized job database, and assigning personnel to assist in internal job search); Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 444, 45 P.3d 589 (2002) (employer did all that was required when it offered to reassign employee to a compatible position); Goodman, 127 Wn.2d 401 (employer did not reasonably accommodate because it failed to affirmatively ascertain the nature and extent of employee’s disability); Clarke, 106 Wn.2d at 121-22 (concluding the employer took appropriate affirmative steps by considering employee for other teaching jobs within the district); Staub v. Boeing Co., 919 F. Supp. 366, 370-71 (W.D. Wash. 1996) (citing Dean, 104 Wn.2d 627) (determining employer reasonably accommodated employee by conducting organized internal search for job openings and appointing a vocational counselor to assist him); Molloy, 71 Wn. App. at 391-92 (concluding employer reasonably accommodated employee by advising him of available nonpolice employment); Dedman v. Wash. Pers. Appeals Bd., 98 Wn. App. 471, 485-86, 989 P.2d 1214 (1999) (concluding that employer reasonably accommodated employee by reassigning her to a position that was a demotion); Curtis v. Sec. Bank of Wash., 69 Wn. App. 12, 19, 847 P.2d 507 (1993) (determining the employer failed to take appropriate affirmative steps by not encouraging the employee to apply for jobs, not assisting her in doing so, withholding pertinent information about future jobs and treating her as any other employee); Holland v. Boeing Co., 90 Wn.2d 384, 583 P.2d 621 (1978) (concluding that arbitrarily removing handicapped employee from current position and placing him in a position where, because of his handicap, he was destined to fail, constituted unfair practice in violation of discrimination statute).
CONCLUSION
The jury instructions in this case misstate the law pertaining to the reciprocal duties of employers and employees in accommodating disabilities and prevented Microsoft from legitimately arguing its theory to the jury. *550Additionally the instructions allowed Davis to succeed on a theory that conflicts with prior decisions regarding disability discrimination. For this reason I agree with the majority that the matter must be remanded for a new trial. I also agree with the majority that Davis’s claim that the WLAD required Microsoft to alter his job duties to accommodate his disability must fail as a matter of law because Davis could not meet the essential functions of the job—frequent travel and flexibility to meet customer needs.
Microsoft proposed the following jury instruction:
‘The disabled employee also has obligations in the accommodation process. An employee must apply for all open positions for which he might be qualified and which might accommodate his disability, and he must accept reasonably compensatory work. If an employer identifies one or more open positions for which the disabled employee may be qualified but the employee fails to apply for the position(s) or fails to accept a position, if offered, then the employer’s obligation to reasonably accommodate the disabled employee has been discharged.” Clerk’s Papers (CP) at 1645 (Def.’s Proposed Instruction 21).
In Curtis v. Security Bank of Washington, 69 Wn. App. 12, 847 P.2d 507 (1993), Division Three of the Washington Court of Appeals found that the failure of an employee to interview for open positions was not fatal to her claim. Id. at 19. However, the court made clear that the finding was due to the employer’s failure to attempt any kind of accommodation and refusal to take positive steps to help the employee. Id.
Microsoft’s proposed instruction 8 states in part:
B. In order to prove the alternative claim, Mr. Davis has the burden of proving each of the following elements by a preponderance of the evidence:
(3) That Microsoft failed to take reasonable steps to assist him in identifying one or more other open positions for which he might be qualified and which might accommodate his disability; AND
(4) That he met his obligations to apply for all open positions for which he might be qualified and which might accommodate his disability and to otherwise reasonably cooperate in the search for such position.
CP at 1630-31 (Def. proposed jury instruction 8).
Jury instruction 8 states in part:
“On his claim of discrimination, Plaintiff Davis has the burden of proving each of the following elements by a preponderance of the evidence:
*546“(2)(b) that Microsoft failed to take reasonable steps, in light of the corresponding duty of the employee, to determine and make known to him another position which was vacant and for which he was qualified and that could accommodate his disability.” CP at 1683 (jury instruction 8) (emphasis added). Jury instruction 13 states in part: “The employer must then take reasonable steps to determine and make known to the employee another position which was vacant and for which he was qualified and that could accommodate his disability.” CP at 1689 (jury instruction 13) (emphasis added).