Burdens of proof of reasonableness and undue hardship under Titles I, II, and III of the Americans with Disabilities Act.

• Author: Spero, Donald J.
• Position: Part 1

For nearly two decades McDonnell Douglas v. Green, 409 U.S. 792 (1973), and its progeny have provided employment lawyers with a road map to follow in proving and defending discrimination cases under Title VII of the 1964 Civil Rights Act (1) as well as under comparable statutes enacted in the wake of Title VII. The McDonnell Douglas order and allocation of proofs has served in guiding parties in actions under Title I of the Americans With Disabilities Act (2) where plaintiffs have alleged denial of the benefits of employment, such as refusal to hire, failure to promote, discharge, and other discipline because of an employer's prejudice against those who are disabled. But Titles I, II, and III of the ADA all have an aspect that the other antidiscrimination statutes generally lack. They require reasonable accommodation of disabled individuals to allow them the benefits of employment, governmental services, and public accommodations respectively. (3) The ADA requirements may be excused, however, where the burden on the covered entity is unduly prejudicial because of cost or other hardships as defined in the respective titles. The McDonnell Douglas burden shifting does not lend itself to a situation in which a contested need for accommodation is central to the case.

The ADA cries out for its own McDonnell Douglas to guide litigants as well as courts in allocating the burdens of proof of parties where the reasonableness of an accommodation and the countervailing difficulties in providing that accommodation are in issue. This article will consider the approaches of different courts in determining the burdens of the parties in accommodation cases. It will consider the nature of the plaintiff's burden to make a prima facie case that an accommodation is reasonable and what a defendant must show to establish that it would be unduly prejudiced by providing that accommodation. Finally, the article will rush in where angels fear to tread. It will suggest some practical solutions to resolve the varying approaches of the courts in assessing the burdens of parties to prove the reasonableness, and by contrast the lack of justification, where an accommodation is required to allow individuals with disabilities to participate in societies' benefits on an equal footing with others. The second installment of this article will appear in the February Journal and will review cases in which the courts have dealt with what a plaintiff must demonstrate to make a prima facie case of entitlement to an accommodation. It will also propose approaches to assigning the parties burdens.

Wording of Applicable Sections of the ADA

Title I of the ADA prohibits discrimination in employment on the basis of disability, perceived disability, or a history of disability. (4) Title II deals with prevention of discrimination on the basis of disability in public services, i.e., services offered by public entities such as state and local governments or departments of such entities, as well as in public transportation. (6) Title III prohibits discrimination on the basis of disability in public accommodations and services offered by private entities. (7) The ADA is thus a bill of rights for persons with disabilities. It mandates that they be given the opportunity to participate on equal terms in a wide spectrum of activities. In those instances where covered entities must make special efforts to accommodate individuals protected by the statute, there are significant similarities in the wording describing the requirement of accommodation in all three titles.

Under Title I it is discrimination for a covered entity to fail to "make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless such covered entity can demonstrate that the accommodation would pose an undue hardship on the operation of the business of such covered entity. (8) (emphasis supplied) It is also discrimination to deny job opportunities to an applicant or employee "based on the need of such covered entity to make a reasonable accommodation to the physical or mental impairments of the employee or applicant." (9) The reasonableness of the accommodation and undue hardship on the employer are the factors that determine whether an accommodation is required by the statute.

Title II (10) requires that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." Where a plaintiff shows such an exclusion or denial, the regulations promulgated under Title II alleviate a public entity from taking any steps that "it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." (emphasis supplied) (11) Once the plaintiff has established a disability and lack of access, the requirement for an accommodation to be made turns on whether there will be a fundamental alteration or an undue financial and administrative burden.

Title III also provides a number of situations where a covered entity has duties to accommodate that are "reasonable" unless there is an excessive burden that will excuse it from making the necessary adjustments. The statute provides generally that:

No individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, (or leases to), or operates a place of public accommodation. (12)

The covered entity is excused from its duty not to impose eligibility criteria that screen out the disabled from the enjoyment of their offerings where "such criteria can be shown [by the defendant] to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered." (emphasis supplied) (13) Covered entities are not required to make "reasonable modifications in policies, practices, or procedures" to accommodate individuals with disabilities where the entity "can demonstrate that making such modifications would fundamentally alter the nature" of those offerings. (emphasis supplied) (14) They must take affirmative steps to ensure that disabled individuals have the benefit of their offerings such as supplying auxiliary aids like amplified hearing devices in theaters and TDD/ TVV telephones for the hearing impaired unless doing so "would fundamentally alter the nature of the good, service, facility, privilege, advantage being offered...