California employers are required to engage in an interactive process and reasonably accommodate the known disabilities of employees and applicants to permit them to perform the essential functions of a position. However, employers are not required to provide accommodation if doing so would cause “undue hardship” to the employer’s operations.
Employers may be tempted to assume that undue hardship is easily established and readily available as a defense to a claim of a failure to provide an otherwise required accommodation. In fact, undue hardship is a difficult defense which requires extensive evidence.
Fair Employment and Housing Act
First, under the Fair Employment and Housing Act (FEHA), employers are required to engage in a timely, good faith interactive process with employees or applicants to determine effective reasonable accommodations for a known disability. An employer should not assume that a perceived undue hardship to the employer excuses the requirement to accommodate an employee’s claimed disability without first engaging in the interactive process. In other words, employers risk violating the FEHA by claiming that the interactive process was unnecessary or futile and refusing to engage in the interactive process. This refusal to engage in the interactive process may itself be a violation even if undue hardship is ultimately established. An employer must demonstrate that the employer explored all reasonable accommodations and that the interactive process was conducted in good faith.
Second, the employer has the burden of raising undue hardship as an affirmative defense to a claim under the FEHA, meaning the employer has to prove the existence of an undue hardship, rather than the employee having to prove that no undue hardship exists.
Undue Hardship
California Government Code section 12926(u) provides the following definition:
“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:
- The nature and cost of the accommodation needed.
- 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.
- The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
- The type of operations, including the composition, structure, and functions of the workforce of the entity.
- The geographic separateness or administrative or fiscal relationship of the facility or facilities.
Case by Case Basis
“Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis” and “is a multi-faceted, fact-intensive inquiry.” Atkins v. City of Los Angeles, 8 Cal. App. 5th 696, 733.
The Court in Atkins identified the difficult standard employers must meet to succeed on the undue hardship defense, stating “[U]nder California law and the instructions provided to the jury, an employer must do more than simply assert that it had economic reasons to reject a plaintiff’s proposed reassignment to demonstrate undue hardship. An employer must show why and how asserted economic reasons would affect its ability to provide a particular accommodation.”
The court found an employer met this standard in the case of E.E.O.C. v. Amego, Inc. (1st Cir. 1997) 110 F. 3d 135. There, a medical facility introduced evidence of the cost of hiring an additional employee to cover the duties a disabled plaintiff could not perform, showing that the resulting staff-to-patient ratio would violate funding contracts and service plans. Accommodating this individual would have constituted undue hardship, the court held.
Also in Vande Zande v. State of Wisconsin Dept. of Administration (7th Cir. 1995) 44 F.3d 538 the State employer of a paraplegic Plaintiff was found to have established undue hardship. Plaintiff contended that the Department of Administration failed to reasonably accommodate her requests to 1) work full-time at home while recovering from pressure ulcers and 2) make the kitchenette facilities in her workplace accessible. The court found the State had engaged in numerous accommodations and established that the costs of the proposed accommodations were excessive in relation either to their benefits or to the employer’s financial health or survival.
However, in the case of EEOC v. UPS Supply Chain Solutions (UPS SCS) (2010) 08-56874 UPS was found to have failed to accommodate a deaf employee, Mauricio Centeno, who worked as a junior clerk in UPS’ accounting department. Deaf since birth, Centeno’s primary language was American Sign Language (ASL), and he struggled to understand written English. It was reported that UPS SCS denied Centeno his requested reasonable accommodation of a sign language interpreter for training, departmental staff meetings, and other work-related sessions. The EEOC sued on his behalf and the Ninth Circuit Court of Appeals held that UPS should have provided the requested accommodations finding that employers must provide reasonable accommodations to employees with disabilities even if the accommodations are for benefits and privileges that are not essential functions of the job.
Employers are best served by willingly and immediately engaging in and exhausting the good faith interactive process with the employee over a known or perceived disability. If an accommodation is requested, an employer can assess whether the requirements of the undue hardship defense are met and there are no alternative accommodations possible.
