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, the majority establishes a rule rejecting accommodations under the ADA in the context of all seniority systems, whether determined by collective bargaining or unilaterally imposed by employers. 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 simply rejected Barnett’s proposals as unworkable. Under the majority opinion, this is all U.S. Air, 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:
*996To 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. § 1630.2(g)(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. § 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 992-93.
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 § 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 the 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. § 1630, app. 1630.9, the interactive process is not optional ex*997cept 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, 519 U.S. 1029, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996); Bultemeyer v. Fort Wayne Community Schools, 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). Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999) (Finding that the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith.)
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. § 1630 app. 1630.9.
Conflicting evidence in the record requires trial on whether there was compliance.
*998BARNETT’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 mailroom as a reasonable accommodation for his disability. The majority acknowledges that the legislative history does not clearly support its position and admits that no other circuit has held that ADA accommodation is precluded by a seniority system which is not the result of a collective bargaining agreement. The majority relies for its holding on dicta in a Fifth Circuit opinion that is based on different facts.
The majority cites a number of opinions from other circuits which have found that the ADA does not require exempting a disabled employee from a seniority system established by a collective bargaining agreement. It imposes the same rule in this case despite the fact that the U.S. Air’s seniority system was unilaterally imposed by the employer and was not the product of a collective bargaining agreement.
The majority holds that disabled workers requiring reasonable accommodation should have no priority in reassignment. Majority at 990-91. This holding is in direct conflict with several circuits and the EEOC’s own Enforcement Guidance. The EEOC’s guidelines explicitly state that reassignment is a reasonable accommodation for which disabled employees should have priority, even when transfers are normally not allowed:
The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though they are not available to others. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, unless it could show that the reassignment caused an undue hardship. And, if an employer has a policy prohibiting transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship.
EEOC Enforcement Guidance: Reasonable Accommodations and Undue Hardship under the Americans with Disabilities Act at 19 (1999).
In Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C.Cir.1998)(en banc), the D.C. Circuit rejected the view that the majority takes in this case, i.e., that the ADA requires “no more than equality among disabled and nondisabled employees” in reassignment decisions. Majority at 991. The Aka majority persuasively answered an argument identical to that made by the majority here: “The dissenters misunderstand both the text and legislative history of the statute, and deviate from the construction of the statute by other circuits.... Indeed the ADA’s reference to reassignment would be redundant if permission to apply were all it meant.” Id. at 1303.
The Tenth Circuit, sitting en banc, also rejected the argument that the majority advances here. The Tenth Circuit concluded that “the reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position. Reassignment is, in fact, one of the forms of reasonable accommodation specifically mentioned by the statute to be utilized if necessary and reasonable to keep an existing disabled employee employed by the company.” Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir.1999)(en banc).
Summary judgment was inappropriate in this case. Barnett met his prima facie burden of demonstrating a reasonable accommodation by allowing him to remain in the mailroom and eliminating only one position from the seniority bid process. The burden should now shift 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 offered only the statement of its vice Presi*999dent for Human resources and a copy of its seniority policy. U.S. Air claims 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 district 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
The majority errs in creating a blanket rule that directly conflicts with the EEOC Enforcement Guidance and that severely undermines the reasonable accommodation provisions of the ADA. U.S. Air has failed to demonstrate that accommodating Barnett would cause undue disruption to its seniority system and we should not assume so. Instead, we should find that a triable issue of fact remains to be resolved by the district court.
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 unartfully 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 992.
The devices Barnett suggested that U.S. Air evaluate were quite “low-tech,” but there is 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. § 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 *1000suggested 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 case.
. 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 to assess. 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.