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The Americans with Disabilities Act of 1990 and the Undue Hardship Defense

Background

Congress passed the Americans with Disabilities Act of 1990 (ADA) to protect disabled workers from unfair discrimination on the basis of their disabilities. If a disabled employee or applicant can perform the essential functions of a job with reasonable accommodation, the employer is not allowed to make an adverse employment decision against that employee or applicant on the basis of his or her disability.

Reasonable Accommodations

Reasonable accommodations include reasonable changes to the work environment or to the way the job is performed. Changes are typically considered by courts to be “reasonable” if they are feasible or plausible. Some common examples of reasonable accommodations may include:

    • Provision of an interpreter or reader

 

    • Implementation of a flexible job schedule
    • Reassignment of an employee to light duty work or to another open position
    • Restructuring a job to eliminate a function the employee cannot perform where that function is not essential

 

  • Modification of existing facilities to accommodate physical disabilities

Undue Hardship Defense

 

If an employer can show that providing a reasonable accommodation will pose an undue hardship on the operation of the business, that employer is exempt from ADA liability for failing to provide that accommodation. The ADA defines an undue hardship as an action requiring significant difficulty or expense. Legislative history states that the undue hardship defense was intended to apply where an accommodation would be “unduly costly, extensive, substantial, disruptive,” or would “fundamentally alter the nature” of the work.

Some considerations courts take into account in determining whether an accommodation would pose an undue hardship include:

    • The size and resources of the employer

 

    • The cost of the accommodation

 

    • Whether a collective bargaining agreement exists and the provisions of that agreement

 

    • Whether the disabled employee may be willing to pay for a portion of the costs

 

    • Whether the accommodation would be unduly disruptive to the business or to other employees
  • The number of employees of the employer

The existence of an undue hardship is determined on a case by case basis. Cost is only one of many factors. What might be an undue hardship to one employer might not be an undue hardship to another employer. When assessing the resources of an employer, courts typically look toward the actual facility where the undue hardship is requested. Thus, if an employee works at a small branch of a multi-national corporation, it is the resources of the small branch, not the resources of the large corporation, that will be considered in making the undue hardship determination.

Following are examples of reasonable accommodations that would likely pose undue hardships to the employer:

    • Forcing a struggling 16-person telemarketing firm to provide an expensive reader to a blind employee
    • Allowing a customer service employee to work a flexible schedule where that new schedule would result in a 40 percent reduction in her ability to interact with customers
    • Requiring the employer to keep a main employment area dimly lit to accommodate a light sensitive employee
  • Creating a new, unnecessary position for an employee