Disability Rights – The Undue Hardship Checklist in California

disability rights - the undue hardship checklist in California“Undue hardship” is one type of defense available to employers to justify why they didn’t / couldn’t accommodate a disabled employee, as may be required by ADA / FEHA. To use this defense, the employer has a burden of proving that specific accommodation would have imposed an undue hardship on their operations financially or otherwise.

Undue hardship is defined as an action requiring “significant difficulty or expense” when considered in light of the following factors: nature and cost of the accommodation needed, taking into consideration the availability of tax credits and deductions and/or outside funding; Overall financial resources of the facilities involved in providing the reasonable accommodations; the number of persons employed at the facility and the effect of the accommodation on expenses and resources or on the operations of the facility, including the impact on other employees’ ability to perform their duties and the facility’s ability to conduct business; Overall resources of the covered entity, the overall size of the business with respect to the number of employees, and the number, type and location of the covered entity’s facilities; Type of operations of the employer entity, including the composition, structure and functions of its workforce; and Geographic separateness, administrative or fiscal relationship of the facility or facilities involved. Cal. Gov. Code 12926(u); 2 Cal. C. Regs. § 11065(r).

The “undue hardship” defense may be rejected where the defendant fails to present evidence on the economic impact of the requested accommodation, which necessarily requires consideration of both the cost of providing the requested accommodation and the employer’s financial resources. See  Borkowski v Valley Central School Dist. (2nd Cir. 1995)  (rejecting undue hardship defense because defendant offered no evidence of any economic impact upon the company or disruption of its operations).

The above makes it clear that the burden to prove undue hardship is quite high. The recently decided cases in California suggest that for large companies with significant resources it’s virtually impossible to meet this burden and justify why a particular accommodation was too burdensome to provide. The employers who know this often try to justify not accommodating an employee with other defenses, some of which are more valid than others.