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Concept of Undue Hardship and Reasonable Accommodation in the Employment Context

by William D. Goren
May 2007

Republished online with the permission of the American Bar Association

What is a reasonable accomodation in the employment context? Under the ADA, reasonable accommodation is defined in the negative. More specifically, a reasonable accommodation is anything that does not constitute an undue hardship. [1] Thus, it becomes imperative to know what an undue hardship is. In determining whether an accommodation is an undue hardship, the EEOC will look to several factors:

  • The nature and net cost of the accommodation needed. Keep in mind that any reimbursements, tax deductions, and the like are counted against the employer.
  • The overall financial resources of the facility or facilities, the number of persons employed at the facility, and the effect of the reasonable accommodation on expenses and resources.
  • The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities.
  • The type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity.
  • The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business. [2]

Other critical points about undue hardship must also be considered. First, the EEOC believes undue hardship is measured against the entire operations of the employer and not just one department.[3] Thus, for example, Person X works in the MIS department. Person X has a disability, and everybody agrees that he needs an accommodation that will cost $600. The MIS department is just one division of a multimillion-dollar company. Whether the accommodation will constitute an undue hardship is, in the EEOC’s view, measured against the entire operations of the company and not just the MIS division. Second, a business does not have to make an accommodation when that accommodation will fundamentally alter the nature of its business. [4] As a result of undue hardship being so difficult to prove, the employer generally is going to be better off arguing that the accommodation needed will fundamentally alter its operations rather than argue undue hardship. This is especially true since the data consistently show that fully 88 percent of all accommodations cost less than $1,000.

Finally, it bears noting that undue hardship does not equal inconvenience. Undue hardship is a term of art, and unless the accommodation rises to the level of a fundamental alteration in the business or is an undue hardship under the factors listed above, it is irrelevant if the accommodation inconveniences the employer. It is amazing how often one hears that businesses do not have to reasonably accommodate because doing so is not convenient. It also bears noting that the ADA applies to all activities, programs, and benefits of an organization. Thus, the rules of reasonable accommodation apply to preemployment skills testing as well, and any preemployment skills testing must be established in a manner so that the person’s abilities are measured and not his or her disabilities.[5]

The wild card in this analysis is what effect Justice Ginsburg’s opinion in Olmstead v. L.C. will have. That opinion seems to suggest that looking to the entire resources of a governmental entity to determine undue hardship/fundamental alteration may not be appropriate.[6] Thus, it remains to be seen what ramifications on Title I, if any, that opinion will have.

What steps can an employer take to deal with the issue of reasonable accommodation? First, keep the lines of communication open between the employer and the employee. Open communication is critical to prevent problems from occurring due to a misperception of reasonable accommodation: that is, that the employee’s requests must be honored at the risk of violating the ADA. That is simply not true. Deciding on implementing a reasonable accommodation is a process subject to negotiation between the employer and the employee. The key is to determine a way to get the employee with a disability to the same starting line as the person without a disability. The employer, through the negotiation process, has the flexibility to determine how.[7]

Second, be creative. What can be a reasonable accommodation is limited only by the parties’ imagination. The employee will often know what accommodation is needed to do the essential functions of the job. It’s not unusual for a company to estimate the cost of an accommodation and proceed through the approval process (often meeting resistance), only to be told by the employee, “All I need is this,” at a cost far less than originally contemplated by the company.

Third, remember that no two disabilities are precisely the same, and every case must be analyzed on its own merits. For example, just because a person with one disability needs certain accommodations does not mean that a different person with the same disability needs the same accommodations.[8]

Finally, the concept of good faith bears discussing. An employer who exercises good faith in dealing with a reasonable accommodation request is protected from damages stemming from intentional discrimination.[9] There has been surprisingly little litigation on this subject, so there is a real question as to what good faith means. Some preventive steps to help ensure that a defendant can be found to have acted in good faith include the following:

  • Demonstrate a willingness to try multiple accommodations for the person’s disability.[10]
  • Document any and all attempts at reasonable accommodations.
  • Keep the lines of communication open.
  • Have the accommodation process be cooperative rather than adversarial in nature.
  • Demonstrate a record of creativity in dealing with the accommodation request.

NOTES

1 42 U.S.C. § 12112(b)(5)(A).

2 29 C.F.R. § 1630.2(p)(2).

3 29 C.F.R. § 1630.2(p)(2)(ii),(iii), but see Olmstead v. L.C., /98-536.ZO.html>, majority opinion of J. Ginsburg, holding in a Title II case, looking to the entire resources of a public entity to determine undue burden/fundamental alteration may not be appropriate.

4 29 C.F.R. § 1630.15(d).

5 29 C.F.R. § 1630.11.

6 Olmstead v. L.C., (1999).

7 See 29 C.F.R. § 1630.2(o)(3) and Interpretive Guidance regarding same.

8 See Johnson v. Lancaster-Lebanon, 757 F. Supp. 606 (E.D. Pa., 1991). A case arising under IDEA.

9 42 U.S.C. § 1981a(a)(3).

10 Moses v. American NonWovens, No. 95–6677, 1996.C11.441 .

Biography


William D. Goren is an Associate Professor of Legal Studies at Northwestern Business College at their Naperville, IL campus where he has won several awards for teaching excellence and he makes sure to incorporate his mediation training into the classroom whenever possible. When he is not teaching, Mr. Goren serves as a consultant/legal expert on Americans With Disabilities Act (ADA) matters. Mr. Goren also presents and writes extensively on the ADA and other topics. Among his many publications, are the books published by the American Bar Association (ABA): Understanding the Americans With Disabilities Act: An Overview for Lawyers (ABA 2000); and Understanding the ADA, 2nd Edition (ABA 2006). Mr. Goren is a member of both the IL and TX bars. He received his A.B. in Political Science from Vassar College, his J.D. from the University of San Diego School of Law, and his LL.M. in Health Law from DePaul University.



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Website: www.williamgoren.com/

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