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 2

The previous installment of this article in the January issue of The Florida Bar Journal focused on the specific language in the ADA that governs the allocation of the parties' burdens of proof in an ADA case in which the plaintiff claims the need for an accommodation. It also discussed some of the cases in which the courts have articulated language to describe those burdens. The current installment deals with the plaintiff's prima facie burden to show entitlement to an accommodation. It also suggests some guidelines for apportioning the parties' burdens of proof.

Courts' Requirements for Prima Facie Showing of Reasonableness

The measure of proofs required of plaintiffs to establish a prima facie case that an accommodation is reasonable have varied from general statements of what seems reasonable to fairly detailed plans. In Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1995), the plaintiff who was severely diabetic sought an assignment to one of the overseas locations of his employer, the Voice of America (VOA). His condition required him to be located near a sophisticated medical facility. Mr. Barth's requested accommodation was an assignment to one of the VOA's three or four locations near such a facility. 2 F.3d at 1188. No issue was raised by the VOA that the requested accommodation was "unreasonable in the abstract." Id. at 1187. The burden then logically passed immediately to the employer to prove as an affirmative defense that such an assignment would result in an undue hardship.

In Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995), the plaintiff's burden was limited to suggesting that she be given a teacher's assistant as an accommodation. The court found that this met the plaintiff's burden to suggest a reasonable accommodation which it held to be a mere burden of production, a burden that is not a heavy one. 63 F.3d at 138. Thereafter, the burden to prove that the accommodation would impose an undue hardship fell on the school district. The court observed at 63 F.3d 139:

[W]hile the plaintiff could meet her burden of production by identifying an accommodation that facially achieves a rough proportionality between costs and benefits, an employer seeking to meet its burden of persuasion on reasonable accommodation must undertake a more refined analysis. And it must analyze the hardship to be imposed through the lens of the factors listed in the regulations, which include the industry to which the employer belongs as well as the individual characteristics of the individual defendant-employer.

The plaintiffs in Staron v. McDonald's Corporation, 51 F.3d 353 (2d Cir. 1995), because they suffered from asthma, were unable to patronize the defendants' fast-food restaurants where smoking was permitted. Plaintiffs sought a total ban on smoking or an injunction against the maintenance of policies that would prevent them from entering the restaurants. Id. at 358. The Second Circuit, reversing the district court's dismissal of the complaint for failure to state a cause of action, found this sufficient to make a prima facie showing, at least at the pleading stage, of a reasonable accommodation. (1) The court ruled at 51 F.3d at 358 that:

While plaintiffs bear the eventual burden of showing that particular modifications are reasonable ... we do not think that it is necessary at this point in the lawsuit to bind plaintiffs to one specific modification they prefer. If the plaintiffs should fail in their request for an outright ban on smoking, they may still be able to demonstrate after discovery that modifications outside of an outright ban, such as partitions or ventilation systems, are both "reasonable" and "necessary."

Thus the Second Circuit allows, at least at the pleading stage, a liberal opportunity for the plaintiff to get to a trial on the facts. The Fifth Circuit also was relatively lenient to the plaintiff in Johnson v. Gambrinus Company/Spoetzel Brewery, 116 F.3d 1052 (10th Cir. 1997). The matter was heard on appeal from the district court's injunction based on its finding that the defendant had violated Title III by refusing to let the plaintiff's service dog accompany him on a brewery tour. The court found that the plaintiff had met his burden of showing a reasonable modification by merely requesting that the defendant discontinue its blanket policy of excluding animals from its brewery tours. Id. at 1064. The court reasoned that the burden was not on the plaintiff to show that there were no obstacles to access. This is part of the defendant's case to meet its burden of proof that such obstacles exist. Id. at 1064 n.11. This modification was held to be reasonable in the run of cases. Id. at 1065. The appellate court ruled that the district court had correctly concluded that there were parts of the tour where the animal could be taken without fundamentally altering the nature of the tour. Id. It further found that the district court was not obligated...