Terminating the Employment Relationship

to the employee’s individual abilities and work history. This information is then used to legitimize the employer’s safety concern. For example, courts have recognized a safety concern and have applied this defense in FEHA cases of obese employees seeking employment as: (1) a fire department ambulance driver, 150 and 2) a fire department paramedic. 151 In both cases, the courts relied upon statistical data indicating that obesity compromised the individual’s ability to perform necessary functions.

3. U NDUE H ARDSHIP D EFENSE – ADA/FEHA

a. ADA Undue hardship is a defense under the ADA to the obligation to reasonably accommodate a qualified individual with a disability. No accommodation is required if it will impose an undue hardship on the employer. 152

“Undue hardship” is any action requiring significant difficulty or expense on the part of the employer, measured under the following factors:

Nature and cost of the accommodation needed;

Overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expense and resources, or the impact of such accommodation upon the operation of the facility; The overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; the number, type and location of its facilities; The type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question, to the covered entity;

The terms of the collective bargaining agreement, if applicable and relevant; and

Whether the work site involved is a temporary or permanent one, and whether the accommodation would require violation of the employer’s civil service rules. 153

In addition, the EEOC Regulations provide:

In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include: the nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outstanding funding. 154

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 52