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.
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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
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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.
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