Updated October 22, 2020:

Undue Hardship

Undue hardship is an accommodation action that causes substantial difficulty or expense on the employer when assessed in view of several factors. Under the Americans with Disabilities Act, covered employers have no responsibility to make accommodations for persons with disabilities who are employees or applicants for employment if said action would impose an undue hardship on the employer’s business operations.

What Constitutes an Undue Hardship?

When a special or specific action imposes an undue hardship, it carries with it an unreasonable or unbalanced burden or barrier. If the facility undertaking the accommodation is part of a bigger organization, then it too must be considered, both in terms of structure and resources, along with the financial and administrative connections between the facility and bigger organization. Typically, a bigger employer would be responsible for accommodations requiring more effort and cost than a smaller employer.

There is no responsibility by a covered employer though to make the accommodation (in part or at all) if doing so would impose an undue hardship on the operations of this employer’s company. In this case, the employer must try instead to find another accommodation that won’t be as much of a hardship, ideally by seeking out an action that satisfies both the employer and employee.

Thus, there is a limit to the burden employers must bear when it comes to accommodations, according to the undue hardship defense. As each situation is unique, undue hardship is determined according to the case at hand rather than using a one-size-fits-all approach. In general, an employer is defined as a person in commerce with 15 or more employees and any agent of this individual under the Americans with Disabilities Act of 1990 (ADA).

If the accommodation is reasonable, though, then the employer must provide this modification to qualified individuals or classes of people with disabilities who are employees or applicants for employment, as per Title I of the 1990 ADA. The individual receiving the accommodation will then have the ability to carry out the job necessities in full and receive an equal opportunity to the hiring process or employment that applicants or employees without disabilities have.

The Equal Employment Opportunity Commission (EEOC) helps to enforce Americans with Disabilities Act that deems it illegal to discriminate in employment against a person with an eligible disability. The ADA defines a disabled person as an individual who is significantly limited in the ability to perform a major life activity (such as walking, eating, or caring for oneself) or who has a history of this impairment or who is regarded as having such an impairment. The Americans with Disabilities Act requires that the individual illustrate an ability to perform the essentials of the job position with or without a reasonable accommodation.

Under the ADA, reasonable accommodation, which won’t cause undue hardship, may apply to:

  • The hiring process
  • Benefits of employment
  • Employment freedoms
  • Working conditions, including:
    • Leave requests
    • Schedule changes or part-time requests
    • Reassignment to a vacant job
    • Workplace policies, testing, or training changes
    • Job restructuring
    • Obtaining or modifying equipment
    • Accessibility changes to the facility

Examples of reasonable accommodations might include making a facility wheelchair accessible, providing modified workplace schedules, or buying special furniture. An employer is not required to do so though if evidence (non-subjective in nature) shows that doing so would cause undue hardship to this employer. Also, the employer is under no responsibility to provide employees with disabilities with personal use items on and off the job, such as hearing aids or to lower production standards that apply to every employer.

An accommodation typically becomes unreasonable or an “undue hardship” if it causes more than minimal or negligible costs on the general business operation. At this point, it is no longer a reasonable accommodation under the American Disabilities Act. Cost refers to not only monetary expenses but also the drain on the business as a whole. An undue hardship may exist if the accommodation:

If the suggested accommodation would result in an undue hardship, the best option is for the employer and employee to brainstorm a more effective accommodation. If an employee in a wheelchair, for example, suggests that a company car be bought for this individual to drive, an employer might instead suggest reimbursement for the employee to drive their existing vehicle when used for work purposes.

As for which employers must follow the ADA and provide reasonable accommodation, except in cases of undue hardship, they are:

  • Governments
    • State
    • Local
  • Private employers with 15 employees or more ONLY
  • Job agencies
  • Labor organizations
  • Labor-management groups

Exclusions are:

  • The federal United States government
  • Private membership clubs
  • Indian tribes

This is not to say that reasonable accommodation ensures that persons with disabilities are superior to those without disabilities, which is a common myth about the ADA. Instead, it is providing equal access to available benefits, the opportunity to perform the job’s essentials, and the ability to apply for the job the same as those people who do not have disabilities. Another myth is that the ADA causes a financial burden on the employer. Again, this is incorrect as a covered employer need not provide an accommodation that causes an undue hardship.

Factors that Determine an Undue Hardship

One factor is the kind of operation of the employer or facility. This takes into account the employee structure, organization, and function, as well as any membership. If carrying out the accommodation would change the fundamental nature of how the business operates, as proven by objective information, then the court may deem it to be unreasonable or, in other words, an undue hardship. Also, to consider is the nature of the employee’s job.

An additional factor is the nature and cost of the suggested accommodation. Ask, “how would the accommodation action affect the employer and the business?” The overall monetary resources of the facility who would make the accommodation needs consideration too and an added factor to assess is the number of people working at the facility and the expenses of this facility. Also, was reasonable notice given to the employer who would provide the accommodation? Reasonable notice must be given to the employer.

Take into consideration too if there are realistic alternative accommodations. For example, there may be funding available from an outside source instead of the employer, such as federal tax credits. An employer can select cheaper options or ones that are easier to provide. Another option is for the employee or the employee’s family to provide a portion of the cost of the accommodation or even all the cost, depending on the specific case, when it constitutes an undue hardship.

But if the employer offers the disabled employee an option that they do not desire, the employer cannot force this worker to accept the suggested accommodation. However, if the employee’s denial of the accommodation results in the employee not being able to do the job’s essential tasks, then the employee can become unqualified for the job. The employer might be justified in terminating the individual.

Proving undue hardship requires that an employer shows the cost or disturbance that surrounds implementing an accommodation. Objective details must be available, rather than hypothetical or possible. This requires more than just a CBA or cost benefit analysis.

A really expensive accommodation, for example, would be enough to constitute an undue hardship, especially if the employer has few resources. Cheap accommodations can also result in undue hardship; it depends on the type of business as, for example, installing a bright lighting system in a spa would detract from the business’ ambiance.

Obviously, many different factors must be taken into consideration when deciding whether an accommodation would be an undue hardship. Although it might be a hardship to one employer, it may not be to another employer. Before denying an accommodation request, the best course of action for the employer is to suggest other options than the difficult accommodation. Be creative in the suggestions or if no solutions can be determined then the employer may wish to seek out legal advice.

Other Definitions of Undue Hardship

  • Unique circumstances that partly or fully make a person exempt from a legal obligation in order to avoid a disproportionate burden or barrier
  • The implication that there may be some hardship attached to accommodating a person’s disability, but unless that hardship has an undue or unreasonable burden then it is necessary to accommodate
    • Objective information is necessary to show undue hardship
  • It is necessary to establish that accommodating a person’s needs or the needs of a class of people would put undue hardship on the person having to accommodate these needs
    • The burden is assessed in light of safety, health, and cost

In Canadian family law, undue hardship is also a term that is used. It refers to a child support discount that a payer might receive when this person has other specific costs that create a differential in the standard of living between the households of the payer and payee. The court has the right to award on the application of either spouse a child support amount that is different. This is only if the court decides that the spouse making the application or the child named in the request would suffer undue hardship otherwise.

Specific situations that can result in an undue hardship on a child or spouse include:

  • The spouse has uncharacteristically high debts reasonably acquired to support the spouses and child of the marriage prior to separating or as part of earning a living
  • The spouse’s expenses relating to achieving access to the child are uncharacteristically high
  • The spouse is legally required to support the former spouse
    • Via a written separation agreement, order or judgment
  • The spouse is legally required to support a child who was not born of the marriage when:
    • This child is younger than majority age
    • This child is older than majority age but cannot meet his or her own life needs, due to sickness, disability, or another reason
  • The spouse has a legal requirement to support another person when such individual cannot get life’s needs met on their own because of a disability or ill state

In spite of determining an undue hardship will result, a court can still deny an application regarding this subsection if it decides that the household of the spouse making the application (incurring the undue hardship) would have a higher standard of living than the other spouse’s household after the child support amount was adjusted.

Meeting the undue threshold is difficult. Synonyms of “undue” are helpful for better understanding the term. They include:

  • Unreasonable
  • Unjustified
  • Excessive
  • Improper
  • Extreme

In other words, undue hardship involves more than just being inconvenienced or put into an awkward situation. When considering whether an accommodation is an undue hardship, think of the responsibility to accommodate as being a vicious obligation. Assuming that people will need a specific accommodation is not proof of undue hardship. Instead, an undue hardship could be that it compromises workplace safety or requires other employees to do more than their share of risky work.

To incur a “hardship” means to undergo a severe state of suffering or deprivation. It is a severe state. That being said, it is obvious that the courts give “hardship” a softer interpretation than this. 

If you are not sure if a reasonable accommodation has become an undue hardship or have other questions regarding undue hardship, seek out quality legal advice to ensure you act in accordance with current legislation and avoid a potential discrimination lawsuit. Find respectable employment lawyers when you post your legal need in our UpCounsel Marketplace online.

Our Marketplace features attorneys from leading schools, including Harvard Law. Their vast experience in many different facets of law and work for top firms, such as Google and Menlo Ventures, can help you understand your duties and obligations under applicable legislation, such as the American Disabilities Act.