joined by BALDOCK and BRORBY, Circuit Judges, concurring in part and dissenting in part.
I concur in the court’s opinion that a “qualified individual with a disability” under the Americans with Disabilities Act (ADA) includes an employee who with or without reasonable accommodation can perform a reassigned job, even though the employee is unable to perform his existing job. I dissent from the court’s opinion concerning the scope of the reassignment right, specifically that such an employee has a right to be reassigned to a vacant position, regardless of whether other more qualified individuals are seeking the position.
Generally, an employer is required to make a reasonable accommodation unless it can demonstrate undue hardship. See 42 U.S.C. § 12112(b)(5)(A). Determining a reasonable accommodation almost always will require communication between the parties. See 29 C.F.R. § 1630.2(o)(3). The ADA contains several measures of reasonable accommodation that should be considered. Reassignment to a vacant position is one of them. See 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii). Reassignment to a vacant position ordinarily will be preceded by consideration of the other measures that will allow an existing employee to perform the essential functions of his or her job. See 29 C.F.RApp. § 1630.2(o). Like all of the measures described as examples of reasonable accommodation, however, reassignment is an option that depends upon the facts and circumstances. Contrary to the court’s view, merely because discrimina*1181tion under the ADA may include not making reasonable accommodation, the measures described as examples of reasonable accommodation do not become mandatory in every case-such an approach would read out the words “may include” that precede the nonexclusive list of examples of reasonable accommodation. See 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2). Where the employer chooses to reassign a disabled employee no longer able to perform the essential functions of his job, the employer obviously has made a decision that benefits the employer and the employee. Reassignment rather than termination should be the rule when a vacant position will not be advertised or filled based upon applications or bids.
The more difficult question confronting the court is whether such an employee, minimally qualified for a position that others are interested in, must be awarded the position because of his or her disability.. To be sure, the employee is a qualified individual with a disability, but that status is not sufficient to confer a preference for a vacant position that the employer would like to fill competitively. Courts must resist the temptation to “improve” upon Congress’s work. Rather, the ADA complements existing federal and state laws that encourage an employer to consider all persons on their merits. So long as a person with a disability can perform the essential functions of the vacant job with or without reasonable accommodation, that person, like all others, should be afforded equal consideration without regard to disability, perceived or otherwise. Congress made this abundantly clear. See H.R.Rep. No. 101-485(II), at 55-56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 337-338.1 The court’s response to this uniform legislative history is that it (1) only applies to initial applicants, (2) only confirms that an employer need not modify the essential functions of a job, and (3) is trumped by another reference, infra n. 3, recognizing that reassignment can be beneficial to the employer and employee. Yet, the language is not so limited. It reaffirms that “this legislation,” i.e., the ADA, does not interfere with “an employer’s ability to choose and maintain qualified workers,” nor interfere with an employer’s applicant selection “for reasons unrelated to the existence or *1182consequence of a disability,” nor create an obligation for an employer “to prefer applicants with disabilities over other applicants on the basis of disability.” H.R.Rep. No. 101-485(11), at 55-56 (1990), reprinted, in 1990 U.S.C.C.A.N. 303, 337-338. Surely requiring an employer to reassign an existing employee to a vacant position, regardless of other more qualified applicants, ignores these concerns.
The ADA was enacted pursuant to a finding that disability discrimination “denies people with disabilities the opportunity to compete on an equal basis and pursue those opportunities for which our free society is justifiably famous,” 42 U.S.C. § 12101(a)(9) (findings) (emphasis supplied). We have recognized that merely because reassignment should be considered as a reasonable accommodation, it does not require the employer to promote, reassign to an occupied position, or create a new position. See White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir.1995). The Seventh Circuit has discussed the underlying rationale for this rule:
[W]e have been unable to find a single ADA or Rehabilitation Act case in which an employer has been required to reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer, ... and for good reason. 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.
Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679 (7th Cir.1998). Accord Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir.1997) (per curiam).
Other cases reinforce that any potential reasonable accommodation must accord with the fair and impartial consideration deserved by all individuals, be they current employees or applicants. In Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.1995), the Fifth Circuit rejected the idea that reassignment as a reasonable accommodation required the employer to find the employee another part-time position-to succeed on an ADA claim, the employee would have prove that he was treated differently than other displaced employees because of his disability. See id. at 700. The court stated:
[W]e do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.
Id. The court rejected the notion that the employer had any obligation to reasonably accommodate part-time employees with reassignment given a city policy that preferred full-time employees over part-time employees in filling vacancies. See id. at 699-700.
The Second Circuit has considered this issue in the context of an injured employee seeking reassignment to a position with a different supervisor. See Wernick v. Federal Res. Bank of N.Y., 91 F.3d 379 (2d Cir.1996). The court concluded that working with the assigned supervisor was an essential function of the employee’s job, and then rejected the suggestion that the employer had an affirmative duty to reassign:
[Njothing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.... [T]he [employer] only had an obligation to treat her in the same manner that it treated other similarly qualified candidates.
Id. at 384-85.
Finally, the Eleventh Circuit rejected the idea that another potential reasonable accommodation, “part-time or modified *1183work schedules,” 42 U.S.C. § 12111(9)(B), required such schedules where the employer had phased out such positions. See Terrell v. USAir, 132 F.3d 621, 626 (11th Cir.1998). Responding to the obvious inequity of preferring a disabled employee over a non-disabled employee whose part-time job had been phased out, the court stated:
The ADA was never intended to turn nondiscrimination into discrimination.
We cannot accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers.
Id. at 627. Given the controversial nature of preferences in employment, courts have been understandably reluctant to read one into the ADA that is at odds with the qualified language of the statute and its legislative history. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1314-15 (D.C.Cir.1998) (en banc) (Silberman, J., dissenting) (“If the Congress had intended to grant a preference to the disabled-a rather controversial notion-it would certainly not have done so by slipping the phrase ‘reassignment to a vacant position’ in the middle of this list of reasonable accommodations.”).
The court faults reliance on the above cases because they reject reassignment for reasons other than the existence of a more qualified applicant for a competitive position. Be that as it may, these cases do discuss reassignment as a remedjr and uniformly reject it for reasons that should inform our judgment about the scope of the right. Stated another way, those reasons are equally applicable here. Whether we defer to an employer’s legitimate nondiscriminatory reason for not reassigning (which surely could include merit selection), or emphasize that the ADA does not create a preference, the scope of the right has been narrow. See, e.g., Dalton, 141 F.3d at 679-80 (no duty to reassign to temporary positions or light-duty program); Duckett, 120 F.3d at 1225 (upholding business policy against certain types of transfers); Wernick, 91 F.3d at 384-85 (rejecting suggestion that employer had a responsibility to provide an employee another job for which she was qualified because affirmative action not required); Daugherty, 56 F.3d at 700 (upholding city’s policy of favoring full-time employees over part-time employees). We should be wary of adopting a reassignment right that unquestionably will affect employer operations and the rights of other employees. Cf. Aka, 156 F.3d at 1305 n. 29. Although the court expresses concern that not creating a preference for a reassignment position would encourage an employer to shirk all forms of reasonable accommodation, see Ct. Op. at 1167 n. 6 & 1169, such an employer strategy would not be very successful given an employer’s burden of production on any inability to accommodate and the employee’s opportunity to rebut such a showing. See White, 45 F.3d at 361.
The court concludes that the reassignment provision means “more than a duty merely to consider without discrimination a disabled employee’s request for reassignment along with all other applications the employer may receive from other employees or job applicants for a vacant position.” See Ct. Op. at 1164; Aka, 156 F.3d at 1304-05.2 While it is true that the statute *1184does not read “consideration of a reassignment to a vacant position,” id. at 1164, all of the measures described are examples of reasonable accommodation that may be appropriate. All are subject to the legitimate and nondiscriminatory policies of the employer. Thus, the phrase “may include reassignment to a vacant position” cannot mean “shall include reassignment to a vacant position.” Though the court acknowledges that “various accommodations may or may not be appropriate depending upon the disability and other circumstances of employment,” Ct. Op. at 1168 n. 7, it fails to give effect to this observation insofar as it imposes a mandatory duty to reassign an otherwise qualified individual with a disability, subject to an employer’s defense of undue hardship. See 42 U.S.C. §§ 12112(b)(5)(A); 12111(10).
The court also suggests that because the ADA already prohibits discrimination upon application for a vacant position, the reassignment provision must confer an additional right to avoid redundancy. See Ct. Op. at 1164-65; Aka, 156 F.3d at 1304. Under the court’s rationale, because the general prohibition on disability discrimination speaks to the “terms, conditions, and privileges of employment,” 42 U.S.C. § 12112(a), all of the potential reasonable accommodations, such as job restructuring and part-time or modified work schedules, confer greater rights upon current employees vis-a-vis the employer than mere applicants have. We know that this is not the case. See White, 45 F.3d at 362; see also H.R.Rep. No. 101-485(11), at 62-63, reprinted in 1990 U.S.C.C.A.N. 303, 344-45 (discussing part time or modified work schedules as a reasonable accommodation for individuals).
Moreover, other equally plausible reasons exist for the reassignment provision. First, it precludes an employer from a blanket ban on reassignments. See Dalton, 141 F.3d at 679; H.R.Rep. No. 101-485(II), at 58, reprinted in 1990 U.S.C.C.A.N. 303, 340. Second, it protects a disabled employee seeking accommodation via reassignment from being deemed less qualified for, and thus not reassigned to, a vacant position on the basis of his or her disability. Third, it makes it express that an employer may reassign when other efforts at reasonable accommodation are not availing, and still be in compliance with the ADA.3 The reassignment provision can be read in harmony with the statute and its legislative history. The EEOC’s Interpretive Guidance to the contrary, see EEOC Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act at 44 (1999), is not entitled to special deference, particularly where it conflicts with the language of the ADA and its legislative history. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 899 n. 3, 902 (10th Cir.1997), cert. granted, — U.S. —, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999).
*1185Finally, the complexity that surrounds the explication of the court’s new rule undercuts its practical utility both for the district court and an employer. The numerous exceptions attest to its transparency-the new rule is swallowed up by its exceptions. The district court’s task on summary judgment will be daunting-it may be far easier to try cases that would have been candidates for summary judgment absent this decision. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (summary judgment is designed to isolate factually unsupported claims). Perhaps there will be fewer such claims, however, because an employer reading the court’s opinion likely would feel compelled to reassign a disabled employee rather than attempt to understand its obligations pertaining to the interactive process or the scope of “appropriate” considerations.
Because a level playing field is what Congress and the President envisioned when the ADA was enacted, not a preference, I respectfully dissent on this issue. I would remand the case to the panel for further consideration of the ADA claim in light of the above principles.
. In discussing the term "qualified individual with a disability/' the legislative history makes it clear that the ADA was never intended to create a preference:
[T]he Committee intends to reaffirm that this legislation does not undermine an employer's ability to choose and maintain qualified workers. This legislation simply provides that employment decisions must not have the purpose or effect of subjecting a qualified individual with a disability to discrimination on the basis of his or her disability.
Thus, under this legislation an employer is still free to select applicants for reasons unrelated to the existence or consequence of a disability. For example, suppose an employer has an opening for a typist and two persons apply for the job, one being an individual with a disability who types 50 words per minute and the other being an individual without a disability who types 75 words per minute. The employer is permitted to choose the applicant with the higher typing speed, if typing speed is necessary for successful performance on the job.
On the other hand, if the two applicants are an individual with a hearing impairment who requires a telephone headset with an amplifier and an individual without a disability, both of whom have the same typing speed, the employer is not permitted to choose the individual without a disability because of the need to provide the needed reasonable accommodation to the person with the disability.
In the above example, the - employer would be permitted to reject the applicant with a disability and choose the other applicant for reasons not related to the disability or to the accommodation or otherwise not prohibited by this legislation. In other words, the employer's obligation is to consider applicants and make decisions without regard to an individual’s disability, or the individual’s need for a reasonable accommodation. But, the employer has no obligation under this legislation to prefer applicants with disabilities over other applicants on the basis of disability.
H.R.Rep. No. 101-485(11), at 55-56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 337 — 338. Any approach that allows preferences for current disabled employees in reassignment situations conflicts with this clear statement.
. None of the cases the court relies upon directly address a situation where an employer has other qualified applicants and would like to choose the most qualified for the vacant position-most simply indicate that an employer either has a duty or may have a duty to reassign subject to a myriad of exceptions, all such exceptions endorsed by this court. See Mengine v. Runyon, 114 F.3d 415, 418-19 (3d Cir.1997); Gile v. United Airlines, Inc., 95 F.3d 492, 498-99 (7th Cir.1996); Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir.1996); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 111 4— 15 (8th Cir.1995); Community Hosp. v. Fail, 969 P.2d 667, 677-78 (Colo.1998). The D.C. Circuit inferred that because cases discussing reassignment have not mentioned a requirement that a plaintiff show he or she would have been granted a reassignment position over other qualified applicants, such a requirement does not exist. See Aka, 156 F.3d at 1304. Because courts do not decide what *1184is not before them, it is not surprising that such a requirement has not yet developed.
. The legislative history suggests that consideration of other forms of accommodation should precede consideration of reassignment:
Reasonable accommodation may also include reassignment to a vacant position. If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and [the] employer from losing a valuable worker. Efforts should be made, however, to accommodate an employee in the position that he or she was hired to fill before reassignment is considered. The Committee also wishes to make clear the reassignment need only be to a vacant position-"bumping” another employee out of a position to create a vacancy is not required.
H.R.Rep. No. 101-485(11), at 63, reprinted in 1990 U.S.C.C.A.N. 303, 345. Accord 29 C.F.R.App. § 1630.2(o) (1998). The court concludes that the last sentence indicates that Congress intended that the reassignment right give a disabled employee a preference for a vacant position over other applicants. See Ct. Op. at 1168-69; Aka, 156 F.3d at 1304. Such a reading is tempered by the preceding sentence which indicates that reassignment need only be “considered.''