Undue Hardship: An Employer's Defense to a Reasonable Accommodation Claim

The federal Americans with Disabilities Act (ADA) prohibits employment discrimination against applicants and employees with disabilities.

It also requires employers to provide reasonable accommodations to allow employees with disabilities to do their jobs, unless doing so would create undue hardship.

If an accommodation would be too costly or otherwise put too large a burden on the employer, it is not required by the ADA.

What is a Reasonable Accommodation Under the ADA?

Reasonable accommodations are changes to the worksite, job duties, or the manner in which a job is usually performed that will allow an employee with a disability to perform the essential functions of a position.

Reasonable accommodations may also be necessary during the application process (for example, to allow a blind applicant to take a written test) or to allow employees with disabilities to enjoy the other "benefits and privileges" of employment. For instance, an employer may have to make a training program or company picnic accessible to employees with disabilities.

The reasonable accommodation rule ensures that employees with disabilities will have equal opportunity in the workplace.

This requirement makes the ADA different from other laws prohibiting discrimination, which only require employers not to consider protected characteristics, such as race or gender, in making employment decisions.

By contrast, the ADA requires employers to take affirmative steps to recognize and adapt to employees with disabilities by providing reasonable accommodation.

Examples of Reasonable Accommodations

Reasonable accommodations can take many forms, including:

• physical changes to the workplace, such as raising or lowering work surfaces, installing ramps, providing better lighting or sound proofing, or making ergonomical changes to work stations
• changes to work schedules, such as allowing an employee to come in later, leave earlier, work part-time, or take time off
• modifications to job duties, such as reassigning marginal tasks to other employees, or
• changes to workplace policies, such as allowing an employee who uses a wheelchair to wear a modified uniform or allowing an employee with diabetes to take more frequent breaks.

Requesting a Reasonable Accommodation

Employers aren't required to guess that an employee might need a reasonable accommodation or make assumptions about what type of help an employee requires. Instead, the burden is on the employee to ask for an accommodation.

You don't need to use any special language or put your request in writing. You need only to inform your employer that you have a medical condition or disability for which you need a workplace change.

Negotiating a Reasonable Accommodation

Once you make this request, your employer must engage in what the law calls a "flexible interactive process": essentially, a dialogue with you to determine what types of accommodations might work.

Your employer isn't required to provide the specific accommodation you request, but it must provide an effective accommodation. However, an employer does not have to provide an accommodation that would create undue hardship.

What Is Undue Hardship Under the Americans With Disabilities Act?

An undue hardship means that the accommodation would be significantly difficult or expensive, considering the size, resources, and circumstances of the employer.

An extremely expensive accommodation will likely be considered an undue hardship. However, even less costly changes might not be required, if they would be very extensive, cause significant disruption, or fundamentally alter the nature of the employer's business.

Example. An employee who is visually impaired requests that a romantic restaurant known for its dim, candlelit atmosphere install bright overhead lighting. Although such an accommodation might not be prohibitively expensive, it would fundamentally change the restaurant's atmosphere. For that reason, an employer wouldn't have to agree to it.

If, on the other hand, the visually impaired person worked in an office and requested a computer with a screen magnifier or other accessibility software, an employer probably couldn't claim undue hardship and would almost certainly have to provide the accommodation.

There is no mathematical or other formula to determine when a particular accommodation is too expensive or too difficult. Courts look not only at the requested accommodation, but also at the employer's size and resources.

An employer with deep pockets might be required to spend more to accommodate employees, for example. And, an employer with many facilities and employees would likely find it easier to arrange job transfers or changes to shift schedules than a smaller employer.

When to Contact an Employment Attorney

If your employer has claimed that an accommodation you requested would create undue hardship, you may want to speak to an employment lawyer. A lawyer can help you evaluate the situation and perhaps come up with alternative accommodations that might work. A lawyer can also negotiate with your employer to try to resolve the situation short of a lawsuit.

If you end up in court, you will have to show that the accommodation you requested appeared to be reasonable. The legal burden will then shift to the employer to prove that the accommodation would have created undue hardship.

Whether an accommodation is reasonable or would impose undue hardship are difficult questions, requiring a careful analysis of the facts and court decisions. An experienced employment lawyer can assess your chances of winning and help you come up with the best strategy to protect your rights.