55 Pages Posted: 15 Sep 2017
Date Written: September 13, 2017
This article explores an under-developed issue under the Americans with Disabilities Act (ADA)—the scope of the “undue hardship” provision. The undue hardship provision of the ADA provides employers with a defense for failing or refusing to accommodate an employee with a disability if the accommodation would cause an undue hardship for the employer, which is defined as “significant difficulty or expense.” An unexplored issue is whether this undue hardship provision should be viewed individually for each employee seeking an accommodation or should be viewed cumulatively, by considering the difficulty and expense of accommodating not just the employee in question, but other employees who have received similar accommodations. This article tackles this issue. Specifically, I utilize a case study throughout the article where several employees have sought or are seeking similar reasonable accommodations and an employer must decide whether it can successfully argue the undue hardship defense based not on the hardship of accommodating one employee, but rather, based on the cumulative hardship of accommodating several employees. Although these situations might not arise frequently, they are much more likely to develop now that the ADA Amendments Act has dramatically expanded the protected class under the ADA, thereby leading to many more employees seeking accommodations for their disabilities. I will explore the currently undeveloped law on the issue of “cumulative hardship” and arrive at a possible resolution of this issue. This resolution inevitably implicates issues of stigma, the necessity of accommodations, and intra-class discrimination. Ultimately, I propose a solution that maximizes the employability of all disabled employees.
Keywords: ADA, Accommodation, Disability, Employment, Undue Hardship, Reasonable Accommodation, Stigma
Suggested Citation: Suggested Citation