A New Look at the ADA's Undue Hardship Defense.

• Author: Porter, Nicole Buonocore

1. INTRODUCTION

   Under Title I of the Americans with Disabilities Act ("ADA"), (1) employers are required to provide reasonable accommodations to qualified employees with disabilities unless those accommodations would cause an undue hardship. (2) Several issues arise from that one sentence. First, who has a disability? Second, who is qualified? Third, what are reasonable accommodations and when do they have to be provided? And finally, what is an undue hardship and how is it defined? All but the last of these questions have received considerable attention in the courts (3) and in scholarly literature. (4) The undue hardship issue is the exception. Specifically, most of the scholarly work aimed at analyzing the undue hardship provision was written around the time that the ADA was first passed in 1990. In fact, the last article (5) that explored the meaning of the undue hardship provision was written twenty-two years ago in 1995. (6) This Article attempts to fill that lengthy void.

   This comprehensive investigation into the undue hardship provision is especially important at this point in the history of the ADA. The ADA was passed in 1990 with overwhelming bipartisan support in Congress. (7) Despite this promising beginning, it was not long before federal courts began dramatically narrowing the class of individuals protected by the statute. (8) For many years, most ADA cases were dismissed at the summary judgment stage with courts holding that the plaintiffs did not have a disability and therefore could not proceed with the merits of their cases. (9) As a result, there was not much litigation involving the most important provision of Title I of the ADA--the reasonable accommodation provision and its accompanying defense--the undue hardship defense. Congress was unhappy with the narrowed interpretation of the ADA and consequently passed the ADA Amendments Act ("ADAAA") in 2008. (10)

   The ADAAA dramatically expanded the definition of disability, and, as I discuss in other work, (11) courts have (for the most part) followed Congress' mandate for an expanded protected class. (12) This means that more cases have proceeded and will continue to proceed past the issue of coverage (which focuses on whether the employee has a disability protected by the statute) and on to the merits of the case, which often involve issues of reasonable accommodations. (13) As more cases reach the issue of reasonable accommodation, there are likely to be more cases reaching the issue of the defense to an employer's obligation to provide a reasonable accommodation--the undue hardship defense. To be clear, this Article is not limited to an analysis of undue hardship cases that have been decided since the ADAAA went into effect. Instead, because we arc in an era where more reasonable accommodation issues are being litigated, I believe this is an especially important time to take a new look at the undue hardship provision since the ADA's enactment. This Article is mostly a descriptive piece. I did not begin the project with any specific normative goal, and this Article does not propose any reform in this area. Instead, my goal was to simply take a closer look at how courts have been deciding issues of undue hardship and to see if any trends or themes emerged.

   For all of the years I have been teaching employment discrimination and disability law (every year since 2004), I have frequently told my students that the undue hardship provision is relatively irrelevant--that very few cases turn on the undue hardship defense. (14) When I began reviewing undue hardship cases for other work, (15) I was somewhat surprised that there were so many cases. (16) But upon further review of these cases, most of them are simply citing the statutory provision and do not involve a discussion of the undue hardship provision. (17) Nevertheless, the cases that do discuss undue hardship provide some interesting insights. This Article will not only summarize and attempt to categorize the undue hardship cases but will also identify three trends that become apparent when engaging in a thorough analysis of this body of cases.

   This Article will proceed in four additional parts. Part II will provide the background of the undue hardship provision, including the statutory language and its regulations, the legislative history, and the undue hardship cases decided under the precursor to the ADA--the Rehabilitation Act of 1973. Part III will delve into the undue hardship cases under the ADA. Even though most people think about undue hardship as mostly involving financial cost, this Part will reveal that relatively few cases turn on the actual costs of the accommodation. Part IV will identify three trends in the courts' decisions that only became apparent when I engaged in a deep dive of these cases: (1) courts often confuse or conflate the reasonable accommodation inquiry and the undue hardship defense; (2) whether an accommodation places burdens on other employees (what I call "special treatment stigma") is frequently relevant to the undue hardship defense; and (3) the phenomenon of "withdrawn accommodations" often influences courts' analyses of the undue hardship defense. These themes not only provide a deeper insight into the undue hardship defense but also help to more broadly illuminate the scope of an employer's obligation to provide reasonable accommodations. Finally, Part V will conclude.

2. THE UNDUE HARDSHIP PROVISION

   1. The Statute and Regulations

      The ADA is considered an anti-discrimination statute, but it has two provisions (18) that set it apart from other anti-discrimination statutes--primarily Title VII of the Civil Rights Act of 1964 ("Title VII"). (19) The first difference is unlike Title VII, which protects all employees from discrimination based on race, sex, color, religion, and national origin, the ADA has a much smaller protected class. (20) Plaintiffs have to prove that they have a disability, which is defined as a physical or mental impairment that substantially limits one or more major life activities. (21) The other primary difference is the ADA's reasonable accommodation provision. (22)

      The ADA defines "discriminate" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity....," (23) The "undue hardship" defense provides the outer limit of an employer's obligation to provide reasonable accommodations under the ADA. It is defined in the statute as "an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B)." (24)

      Subparagraph (B), in turn, provides the factors to be considered:

      In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include--

      (i) the nature and cost of the accommodation needed under this chapter;

      (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

      (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

      (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. (25)

      The Equal Employment Opportunity Commission ("EEOC") has provided some additional direction on the undue hardship provision. (26) First, the EEOC regulations suggest that an additional factor that should be considered is "the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business." (27) The EEOC also issued guidance, which states that an accommodation could impose an undue hardship if it would "fundamentally alter the nature of the operation or business." (28) The EEOC guidance also notes that an employer will not have an undue hardship defense based on employees' or customers' fears or prejudices toward the individual with a disability. Similarly, undue hardship cannot be based on the fact that providing a reasonable accommodation will have a "negative impact on the morale of other employees." (29) However, employers might be able to establish an undue hardship defense if an accommodation would be "unduly disruptive to other employees' ability to work." (30)

   2. Legislative History

      Because there is relatively little case law under the undue hardship provision, (31) it is helpful to examine the legislative history of the ADA to determine what Congress thought the provision meant. As stated by one commentator, "The undue hardship standard was one of the most controversial elements of the ADA during its consideration in Congress." (32) Originally, the ADA called for a higher standard than we currently have--an accommodation would have to threaten the continued existence of the employer's business. (33) Proponents called it the "bankruptcy provision," but it was subsequently altered to the standard we have now in "the spirit of compromise." (34) Still, the legislative history indicated that the undue hardship provision has a high bar. For instance, Senator Lowell Weicker stated that the "costs associated with this bill are a small price to pay for opening up our society to persons with disabilities." (35)

      We know that Congress intended the undue hardship standard to be greater than the undue...