Hiring managers are frequently faced with the challenge of determining whether a requested or contemplated accommodation to enable a person with disabilities to handle a job creates an undue hardship on the employer. In many situations, the answer is not a certainty and often best judgment is required. However, since the enactment of the Americans With Disabilities Act (“ADA”) in 1990 a body of guidance has developed to help with these decisions.
The ADA’s mandate
The ADA does not require that an employer provide an accommodation when that step would create a burden significant enough to amount to undue hardship. An undue hardship has been defined as an “action requiring significant difficulty or expense” for an employer. An employer will not be liable if it “can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.”
The ADA elaborates on this definition by describing certain evidence to look for in determining undue hardship:
- The hardship would cause undue financial hardship for the employer;
- The hardship would be disruptive to the workplace; or
- The hardship would fundamentally alter the employer’s operation or the job itself.
These guidelines are very general and in practice, determining whether an undue hardship exists is not always an easy task. The decision will almost always depend on the specific facts and circumstances of the particular situation. There are a number of forms of accommodations to consider. These may involve changes to:
- the job application process itself;
- the work environment;
- the availability of specialized assistive equipment and technology; or
- the manner and time frame in which a job is typically performed;
The EEOC
The Equal Employment Opportunity Commission (EEOC) is“responsible for enforcing federal laws that make it illegal to discriminate against a job applicant”. The Commission also provides guidance that is useful for an employer who is attempting to ascertain whether a specific accommodation may create an undue hardship. In 2002, the EEOC attempted to bring some clarity to these situations with its publication, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. This guidance expanded and added detail to the general factors that the ADA identified as critical in deciding if an accommodation is reasonable.
The cost and nature of the required accommodation
The first step for an employer in determining whether a reasonable accommodation under the ADA is needed is to calculate the actual cost of the accommodation. This can be tricky in some circumstances.
If the accommodation requires a specific type of equipment, such as a teletypewriter or captioned telephones, that permit people with visual or hearing impairments to perform a job, the nature of the accommodation is straightforward and the cost of the accommodation can be easily calculated whether it is for the purchase of new item equipment or physical changes to the workplace that will be required if the employee provides his or her own piece of assistive equipment.
On the other hand, the requested accommodation may not require equipment at all but a need for adjustment to work requirements, such as flex time. Here, the cost to be calculated would be based on additional steps the employer may need to take to cover open hours resulting from the flex time accommodation.
Read more about accommodation costs: Average Costs of Reasonable Accommodations in The Workplace.
Financial resources of the facility
Simply determining that there will be a cost to implement an accommodation is not alone sufficient to characterize the accommodation as unreasonable. The next step is to determine how the actual cost appears in light of an employer’s financial ability to absorb that cost.
This is typically a two-step process. First, the employer looks to the cost imposed on the actual facility involved. This may appear prohibitive at the outset but the employer is then required to step back and look at the financial capability of the entire employer organization. Often, viewed from this broader perspective, the cost may not be significant. In this analysis, organizations are strongly encouraged to look for creative options, such as funding from third parties dedicated to broadening opportunities for people with disabilities.
The nature of the employer’s operation
The ADA and EEOC also permit employers to consider the compatibility of an accommodation with the nature of the actual workplace involved. For example, providing a wheelchair for an applicant with mobility disabilities may make perfect sense in a typical office setting. However, this may not be the case at a coastal container port where a great deal of movement is involved in and around dangerous activity. With technology as it is today, there may be ways to accommodate a person in this situation where, for example, a job can be performed with use of visual assistive technology. Drones, for example, have now become a workable way to accommodate employees in some of these situations.
How the accommodation impacts or disrupts a facility’s operation
Employers must determine how, if at all, a reasonable accommodation for a person with a disability will impact the way in which other employees in the facility perform their jobs or, more broadly, how the company itself operates. For example, if an accommodation requires providing flexible working arrangements, the change might require that other employees shoulder a bigger load by working longer hours. This problem can often be addressed creatively with adjustments to compensation for those willing to take on additional work.
A common misunderstanding in these circumstances is how negative views held by other employees about a person with disabilities can impact the decision. These views are not considered in assessing undue hardship. An employer cannot use such negative opinions as examples of workplace disruption.
Conclusion
The ADA is designed to open the doors to the workplace for people with disabilities and therefore employers must produce solid evidence that extra costs and workplace disruptions are truly significant in order to deny opportunities. The ADA, its enforcement agent, the EEOC, and the courts generally expect an employer to go the extra mile and look for ways to reasonably accommodate applicants with disabilities.
Employers need to recognize this and understand that assistive technology is constantly evolving and improving. As it does, the opportunities to find reasonable accommodations increase as do the expectations on employers and the high thresholds that must be met to comply with the ADA. Because the details of each individual situation matter, employers will be well served by diligently exploring all options to find reasonable accommodations.
Learn more
Our mission is to create objective and trustworthy information and resources to become a catalyst for equal access to the physical and digital worlds. Read more: What Employers Need to Know About Providing Reasonable Accommodation.
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