Dissenting.
I respectfully dissent. The majority opinion diminishes the protections of the Americans with Disabilities Act (“ADA”) for disabled workers residing in the Ninth Circuit in ways not intended by the statute. First, the majority eliminates an employer’s responsibility to seek reasonable accommodation for disabled workers by holding that employers have no obligation to engage in an “interactive process.” Second, while stating that it “decline[s] to adopt either a ‘per se’ or ‘case-by-case’” rule governing accommodations under seniority systems, Majority at 750-751, the majority de facto adopts a per se rule. Finally, in its application of the law to the facts, the majority puts all of the burden on the employee not only to proffer a reasonable accommodation but also to prove that the accommodation will work before the employer has any obligation to the employee.
Barnett proposed three solutions that would accommodate his disability: (1) that he remain working in the mailroom; (2) that U.S. Air provide special lifting equipment to enable him to perform the cargo position; or (3) that U.S. Air allow him to do only the office-work portion of the cargo position and reassign his lifting work to other persons in the cargo operation.
In its dismissal of each of Barnett’s claims, the majority would have us believe that no reasonable accommodation is possible: that U.S. Air’s seniority system is intractable; that forklifts satisfy any possible lifting accommodation that Barnett could seek; that reassignment of work amounts to creating a new position; and that no other possible reasonable accommodation exists.
THE INTERACTIVE PROCESS
All that we know about potential accommodations is what Barnett proposed. U.S. Air made no effort to determine if it could reasonably accommodate Barnett, instead it sim*755ply rejected Barnett’s proposals as unworkable. Under the majority opinion, this is all U.S. Ah’, and any other employer, has to do-sit on the sidelines and find fault with suggested accommodations. If the employer has no obligation to participate in determining if a reasonable accommodation exists, the disabled employee has no resource beyond his own knowledge, skill and ability. The employer’s broader knowledge and experience is not available to him. As a result, the effectiveness of the ADA as a tool to use constructively the skills of disabled persons is seriously diminished.
U.S. Air discriminated against Barnett by failing to engage in an “interactive process” to determine if a reasonable accommodation was possible. The EEOC’s implementing regulations for the ADA provide that:
To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process -with the qualified individual with a disability in need of accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
29 C.F.R. § 16S0(o)(3). The Seventh Circuit has found that this regulation “envision[s] an interactive process that requires participation by both parties.” Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996). The EEOC agrees. In the accompanying EEOC interpretive guidance to the regulations, the EEOC states:
[T]he employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.
29 C.F.R. Pt. 1630 app. 1630.9. While the language of the regulation uses “may,” the interpretive guidance provided by the EEOC indicates that we should interpret “may” narrowly to cover only those circumstances where availability or nonavailability of a reasonable accommodation is clear. The district court concluded that liability may be imposed upon an employer for failing to engage in the interactive process. However, the majority reversed, finding that the use of “may” made the interactive process purely an option on the part of a company. Majority at 752.
We need not and should not interpret the language of § 1630.2(o)(3) as permissive. Section 1630.2(0)(3) states that it “may be necessary” to initiate an interactive process. The term “may” describes the fact that sometimes there may be the necessity to engage in an interactive process. When it is necessary, it is not optional. “May” is not being used to create a permissive option. Only if it is clear that a reasonable accommodation is available, or clear that there is no reasonable accommodation available, may an employer not initiate an interactive process with the disabled employee. In cases where accommodation may be possible, the interactive process is required. This interpretation of § 1630.2(o)(3) is consistent with the intent of the EEOC as evidenced by the mandatory language used in the EEOC’s interpretive guidance for the section. See Pt. 1630 app. 1630.9.
If this were an ideal world peopled by well intentioned employers, clever employees and no informational barriers, the use of an interactive process to determine whether a reasonable accommodation exists could be optional. We do not live in such a world. Some employers are unwilling to accommodate disabled workers. Some employees can propose only limited ideas for accommodation because they lack sufficient knowledge, skill or ability to identify a workable accommodation. Informational barriers are high. A reasonable accommodation may require detailed knowledge of a company’s work flow and staffing, as well as knowledge of the available technology that could be used in conjunction with the company’s operations. This is particularly true because, under the ADA, the term “reasonable” is tied to the resources and processes of the individual company. 29 C.F.R. § 1630.2(p)(2). So what would be reasonable for one company to implement may not be reasonable for another. Determinations of reasonable accommodation also require information about the worker’s disability and the limitations that *756the disability imposes. Since the determination of a reasonable accommodation usually will require the sharing of information between employer and employee, and since the EEOC expressly recognizes the need for dialogue to determine a company’s ability to accommodate an employee, 29 C.F.R. Pt. 1630 app. 1630.9, the interactive process is not optional except in those rare cases where the answer is clear.
This is a case of first impression for the Ninth Circuit and other circuits that have addressed this issue are split on whether a cause of action exists for failing to engage in an interactive process. The Third, Fifth, and Seventh Circuits have held that a cause of action exists.1 See Mengine v. Runyon, 114 F.3d 415, 419 (3d Cir.1997) (finding that an employer is required to participate in an interactive process under the Rehabilitation Act); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.) (finding that a request for accommodation obligates an employer to participate in the process of determining one, but that summary judgment was still appropriate because the plaintiff failed to request an accommodation), cert. denied, — U.S. -, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996); Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1285-86 (7th Cir.1996) (finding that an employer has a good faith obligation to help an employee determine a reasonable accommodation and reversing the district court’s summary judgment, holding that the employer has an obligation to help an employee initiate a request for accommodation). But see White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir.1995). (An employee first must be “qualified” (some accommodation in light of disability possible) before the employer is obligated to engage in the interactive process); Willis v. Conopco, 108 F.3d 282, 285 (11th Cir.1997) (even if an employer has an obligation to participate in an interactive process, an employee cannot bring a cause of action for an employer’s failure to participate or investigate).
The burden imposed by requiring the interactive process is not onerous. As the Seventh Circuit recognized, an employer’s obligation under the interactive process is often no more than to communicate with the employee and determine what the problem is. See Bultemeyer, 100 F.3d at 1286-87. Here, U.S. Air never even bothered to talk with Barnett.
We should affirm the district court’s finding that an employer may be liable under the ADA for failing to participate in the interactive process. However, I disagree "with the district court that summary judgment in U.S. Air’s favor is appropriate. Trial is necessary to determine whether the interactive process was undertaken and, if so, whether it was adequate. The EEOC’s interactive process requires an employer to:
(1) Analyze the particular job involved and determine its purpose and essential functions;
(2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;
(3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position;
(4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for the employee and the employer.
29 C.F.R. Pt. 1630 app. 1630.9.
Conflicting evidence in the record requires trial on whether there was compliance.
BARNETT’S SUGGESTED ACCOMMODATIONS
a. U.S. Air’s Seniority System
The majority holds that U.S. Air’s seniority system precludes leaving Barnett in the *757mailroom as a reasonable accommodation for his disability. Majority at 750-751. The majority claims that it is making no determination on whether the circuit should adopt a “per se” or “case-by-ease” standard for whether employer seniority systems trump accommodation of a disabled person, because U.S. Air’s seniority system survives under either standard. Id. at 750-751.
Viewing the evidence in the light most favorable to Barnett, the majority cannot conclude on this record that U.S. Air’s seniority policy leaves no room for Barnett’s proposed accommodation. The majority makes no “case-by-case” analysis on how putting Barnett in the mail room would upset the seniority system. The majority opinion is either applying the wrong standard of review or is de facto applying a per se rule for seniority systems.
The majority opinion follows that of the district court. In granting summary judgment, the district court justified summary judgment by claiming that accommodating Barnett would be an undue burden on U.S. Air’s seniority system because it found that 14,000 U.S. Air agents rely on the seniority system and that an exception for disabled workers would disrupt the fundamental structure of the seniority system due to the limited number of positions at each location. The majority affirms because “U.S. Air’s seniority system is ... decades old.” Majority at 11708. Unfortunately, the majority, as did the district court, improperly extrapolates its conclusion from limited and ambiguous “facts.”
Summary judgment is inappropriate if we are applying the case-by-case approach. First, Barnett met his prima facie burden of demonstrating a reasonable accommodation because remaining in the mailroom would accommodate Barnett’s disability and would only eliminate one position from the seniority bid process. The burden now shifts to U.S. Air to prove that the accommodation is unreasonable or an undue hardship. 42 U.S.C. § 12112(5). In its rebuttal, U.S. Air offers only the statement of Ollie Lawrence, Jr., Vice President of Human Resources, and a copy of the U.S. Air seniority policy. The combined force of the defendant’s evidence amounts to Lawrence’s opinion versus Barnett’s opinion.
Another contention asserted by U.S. Air, adopted by the district court, and now apparently adopted by the majority, is that the effect of all potential ADA claimants would significantly disrupt the seniority system. Yet the record provides no information concerning the number of ADA claimants at U.S. Air, their seniority, or their need to be accommodated by exceptions to the seniority rules. Bald speculation on the part of the court and an employer is insufficient to support summary judgment on a finding of “undue hardship.” Nothing in the ADA supports finding that Barnett has the burden of proving that his proffered accommodation would satisfy all possible future claimants. Indeed, such proof would be outside the knowledge and control of almost all employees (and many employers).2 Under a case-by-case review, a triable issue of fact remains as to whether U.S. Air could accommodate Barnett without undue disruption to its seniority system.
b. Special Lifting Equipment
Barnett proposed that U.S. Air purchase a device to assist him in loading and unloading cargo as a proposed accommodation to allow him to work in the cargo operations. Barnett subsequently contacted the Job Accommodation Network, and obtained information on a number of mechanical lifting devices designed to assist workers in lifting boxes and bags. Unfortunately, Barnett inartfully used the word “robotics” in his initial request for accommodation. U.S. Air, and now the majority, focus on this poor choice of wording to suggest that Barnett sought “technologically advanced equipment.” Majority at 751.
The devices Barnett suggested that U.S. Air evaluate were quite “low-tech,” but there *758is no evidence that U.S. Air even considered them. Instead, U.S. Air told Barnett that forklifts were available to assist in lifting. While U.S. Air need not provide Barnett with “a state-of-the-art mechanical lifting device if it provide[s] ... a less expensive or more readily available device,” 29 C.F.R. Pt. 1630.9 app. 1630.9, its provision of a forklift for lifting individual suitcases and other bags is patently impractical. Proposing the use of a forklift to lift an individual suitcase is rather like giving Barnett a shotgun to swat a fly or a Phillips head screwdriver for a flat screw. U.S. Air might as well have told Barnett to use a backhoe. That a tool performs a similar function doesn’t make it a proper tool for a particular job. Barnett sought a mechanical accommodation to compensate for his disability. U.S. Air, in effect, ignored his request.
The failure to explore appropriate lifting aids illustrates why the interactive process should have been mandatory in this case. Barnett did all he could. He proposed an accommodation, then researched and suggested the type of equipment for that accommodation. U.S. Air refused to listen or assist. It made no inquiries into alternative lifting devices, refused to talk with Barnett about the accommodation, and merely poked holes into the proposals Barnett put before it.
The burden placed on Barnett by the majority is more than he should be required to bear. Since U.S. Air failed to even consider any of the special lifting equipment options proffered by Barnett, we cannot know if any of these accommodations would have worked. Under the majority’s interpretation of the ADA, Barnett would have to purchase the machines suggested and prove their effectiveness before U.S. Air would be forced to accommodate him.
I respectfully suggest that we should affirm the district court’s interpretation of the ADA, but remand for trial as to its application to this ease.
. In addition the First Circuit has indicated that it also may find that a cause of action exists. See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 513-14 (1st Cir.1996) (finding that a cause of action may exist, but holding that the jury verdict for the employer was not unreasonable).
. The effect of an accommodation on a company's workforce, processes, or finances is beyond the ability of many workers. Yet this need to assess proprietary information in order to find an accommodation "reasonable” demonstrates why the EEOC requires employers to engage in an "interactive process” to determine an accommodation.