Employers’ Undue Hardship Defense Explained

Under both FEHA and ADA, employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose “undue hardship.” Cal. Code. Regs. tit. 2 section 7293.9. In other words, there are limits on the restructuring that an employer needs to do. Accommodations need only be “reasonable.” An employer need not undertake an accommodation that would created an “undue hardship.”

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; (3) the overall financial resources of the covered entity with respect to the number of employees, and the number, type, and location of its facilities; (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; and (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.

The burden on proving that providing reasonable accommodations would constitute undue hardship is on the employer, as the law makes clear that the term “reasonable accommodation” is to be interpreted flexibly to that employer must not only remove obstacles that are in the way of the progress of the disabled, but that they actively restructure their way of doing business in order to accommodate the needs of their disabled employees. Prilliman v. United Airlines, Inc. (1997)