Reasonable accommodation and unjustifiable hardship - international developments

"The employer need not accommodate a qualified applicant or an employee with a disability if this would impose anunjustifiable hardship on the business of the employer." Code of Good Practice on Accommodating Persons with Disabilities.

After setting aside detailed inquiries related to any specific accommodation, their effectiveness and costs, andmaking a conditional job offer, the employer may conclude after an objective assessment that the accommodationcreates an unjustifiable hardship on the business. This is a higher standard than in some other countries, where thephrase "undue hardship" is used, because in the case for South Africa where there has been so little employment andaccommodation for people with disabilities, the Code encourages employers to make more effort to reduce and eliminate discrimination and/or promote affirmative action.

"Unjustifiable hardship’ is action that requires significant or considerable difficulty or expense. This involves considering,amongst other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt theoperation of the business."

"An accommodation that imposes an unjustifiable hardship for one employer at a specific time may not be so foranother or for the same employer at a different time."

Disabilities or impairments, jobs, equipment and technology and work design are dynamic in nature, i.e. they are changing all the time. As a result, accommodation also has to become dynamic in nature in order to suite therequirements of a person with a disability at any given point in time. Both employers and employees with disabilitiesmust continuously monitor developments and, where relevant, make appropriate adjustments and arrangementsnecessary to maintain and improve performance.

Therefore, an unjustifiable hardship in one organisation may not apply to another or, an unjustifiable hardship that wasidentified previously should not influence current or future reasonable accommodation decisions.

Examples of "undue hardship" in the USA

Equal Employment Opportunities Commission (EEOC) advances failure to accommodate claim of employee fired for extended leave due to post-partum depression

The EEOC's failure to accommodate claim, which it filed on behalf of an employee with post-partum complications who was discharged after she failed to report to work for more than two months, can proceed to trial, a federal district court in Indiana ruled (EEOC v Midwest Independent Transmission Systems Operator, Inc, SDInd, May 30, 2013, Lawrence, W). Denying the employer's motion for summary judgment in part, the court found that although a lengthy leave of absence is not the type of accommodation "that is reasonable in the run of cases," the EEOC proffered evidence from which a reasonable jury could conclude that there were "special circumstances" demonstrating that the requested leave was reasonable given the specific facts of this case.

Teacher's request to take off Tuesdays to observe Sabbath posed undue hardship; Title VII claim dismissed

A special education teacher's request to be absent every Tuesday to observe her Sabbath posed an undue hardship on the elementary school, a federal district court in Louisiana ruled, granting the employer's motion to dismiss her pro se Title VII religious bias claim (Slocum v Devezin, EDLa, June 3, 2013, Brown, N). The court reasoned that accommodating her request would have required the employer to hire a substitute every week or to have her students sit with another teacher's class, which would overload the student-teacher ratio.

Stature as a basis for claiming

Short employee can advance disability bias claim based on allegation that her height is outside "normal" range

An employee's disability bias claim, in which she alleged that her employer discriminated against her based on her short stature, survived her employer's motion to dismiss, a federal district court in Arizona ruled (McElmurry v Arizona Department of Agriculture, DAriz, June 11, 2013, Snow, G). Noting that the employee alleged she was less than five feet tall, and thus her height was outside the normal range, the court wrote that "It is plausible that 'short stature' could, in some contexts, ‘substantially limit one or more of the major life activities of an individual.'"

The EEOC, however, has elaborated on how it approaches the statute:

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term "impairment" does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within "normal" range and are not the result of a physiological disorder. 29 C.F.R. Pt. 1630, App. § 1630.2(h).

Height is therefore not a typical impairment. It was in this vein that the Supreme Court made the following observation prior to the amendment of the ADA:

By its terms, the ADA allows employers to prefer some physical attributes over others and to establish physical criteria. An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity. Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment—such as one’s height, build, or singing voice—are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 490–91 (1999).

The Department has claimed that height can never be a disability, citing Sutton. The Court is unable to make such a conclusion on the very limited record before it on this Motion to Dismiss. It is plausible that "short stature" could, in some contexts, "substantially limit[ ] one or more of the major life activities of an individual." 42 U.S.C. § 12102(1)(A). The Department’s claim that "Plaintiff cannot demonstrate her height is a disability", (Doc. 10 at 2), is premature.