A New Look at the ADA's Undue Hardship Defense

41 Pages Posted: 9 Feb 2019

See all articles by Nicole B. Porter

Nicole B. Porter

University of Toledo College of Law

Date Written: January 29, 2019

Abstract

Under the Americans with Disabilities Act (ADA), employers must provide accommodations to their disabled employees unless those accommodations cause an undue hardship to the employer. When the ADA was being enacted in 1990, many thought that the undue hardship defense would be hotly debated in the courts and by academics. And yet, the undue hardship defense is very rarely outcome determinative and has not been the subject of a significant piece of scholarship since the mid-1990s. This article takes a fresh look at the under-developed case law surrounding the undue hardship defense. From a data set of over 1,600 potential undue hardship cases, I identified only 120 that address undue hardship in depth. These cases reveal that cost — which both the statute and conventional wisdom suggest is the focus of the inquiry — plays only a minor role. Instead, these cases revealed three recurring themes: (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I call “special treatment stigma”) frequently is relevant to the undue hardship defense; and (3) the phenomenon of “withdrawn accommodations” often influences courts’ analysis of the undue hardship defense.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.

Keywords: ADA, Disability, Reasonable Accommodation, Undue Hardship, Employment, Special Treatment Stigma, Withdrawn Accommodations, Cost

Suggested Citation

Porter, Nicole B., A New Look at the ADA's Undue Hardship Defense (January 29, 2019). Missouri Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3325254

Nicole B. Porter (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-4785 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
54
rank
364,961
Abstract Views
171
PlumX Metrics