What Constitutes “Undue Hardship”?

You’re not required to accommodate employees if doing so would create an “undue hardship.” But what does that mean, exactly?

Neither Title VII nor FEHA requires you to provide an accommodation (on the grounds of religion, disability, or other protected factors) if it would be an “undue hardship.”

An accommodation is generally considered an undue hardship if it causes more than a minimal or negligible cost on the operation of your business. Costs include not just the direct financial expenses, but also the burden on the overall business.

Keep up on the differences between California and federal law with ERI’s comprehensive, fully updated desk reference, the 2011 Guide to Employment Law for California Employers. Try it out risk-free!

For example, an undue hardship may exist if the accommodation reduces efficiency in other jobs, infringes on other employees’ rights or benefits, impairs workplace safety, or conflicts with another law. Whether an accommodation constitutes an undue hardship is a fact-specific issue. The factors a court might consider when making that determination include:

1. The size of the relevant business in terms of the number of employees, number and type of facilities, the size of the budget, and other such matters

2. The employer’s or facility’s type of operation, including the composition and structure of the workforce or membership

3. The nature of the employee’s duties

4. The nature and cost of the accommodation involved

Sign up for the 2011 Guide to Employment Law for California Employers and get a fully updated version sent to you automatically each year—it’s the easiest way to stay in compliance with all of your state and federal obligations. Click to learn more.

5. The provision of reasonable notice to the employer of the need for accommodation

6. Any available reasonable alternative means of accommodation
To prove undue hardship, you must show how much cost or disruption a proposed accommodation would involve. You can’t rely on potential or hypothetical hardship; you need objective information.

For example, an assumption that many more employees with the same religious practices as the individual requesting accommodation will also seek accommodation is not evidence of undue hardship. Moreover, if an employee’s proposed accommodation would pose an undue hardship, you’re required to explore alternative accommodations.

Bottom Line: Tough To Prove

The bottom line is that it’s very difficult to successfully mount an undue hardship defense. While you’re not required to provide the exact accommodation an employee requests, you are required to enter into a good-faith interactive process with that person to try to come up with a solution that works for both sides.

The Book You’ll Turn To Again and Again
The accommodation process… investigations… wage/hour… recordkeeping… it’s all explained for you in an easy-read one-stop reference, the 2011 Guide to Employment Law for California Employers.

This comprehensive binder gives you:

• Over 400 pages of reliable, plain-English guidance on key HR issues arranged by key topics in an easy-to-use, quick-reference format
• Highlights of the latest legal changes and developments from the past year
• Updates on new legislation and regulatory changes and what they mean for you in 2011
• Coverage of precedent-setting court decisions
• Quality overviews and analysis of both federal and California requirements
• And much, much more!

Order now for the special price of just $199—you’ll turn to it again and again in the year to come. It’s like having your own private California employment law attorney on 24/7 retainer, at a tiny fraction of the cost.

Learn more here.