Terminating the Employment Relationship

In another case, a federal court held that the U.S. Military Academy Fire Department properly rejected a fire fighter applicant with dyslexia (a condition in which the ability to read is impaired) because he could not read much of the technical matter involved in the job. The court rejected the applicant’s suggestion that hiring a full-time dispatcher to read the material was a reasonable accommodation on the ground that doing so would be too expensive. 159

“Undue hardship” is not limited to accommodations that impose financial difficulty, but extend to those that would be unduly extensive, substantial, disruptive, or that would fundamentally alter the nature or operation.

b. Undue Hardship Under FEHA As with the ADA, undue hardship is also a defense to FEHA’s reasonable accommodation obligations. It is the employer’s burden of proof to establish undue hardship at trial. FEHA defines an undue hardship as a significant expense or difficulty in implementing a disputed accommodation. FEHA’s undue hardship factors are similar to the ADA’s, with the following exceptions: 160 i. FEHA Considers: The geographic separateness, administrative, or fiscal relationship of the facility or facilities. ii. Unlike the ADA, FEHA Does Not Consider: Whether the work site involved is a temporary or permanent one. It is unclear whether the terms of a collective bargaining agreement will be a factor. In Hastings v. Department of Corrections, 161 an employer was not required to provide an accommodation involving a new position if doing so would violate the employer’s civil service rules. It is not clear whether the rationale of the Hastings decision will result in future consideration of a collective bargaining agreement or whether a given accommodation is required under FEHA.

The difficulty in proving an undue hardship is oftentimes underestimated. Proving the defense is difficult and requires much more than testimony from decision-makers that accommodating an individual would have been difficult. Accommodations are often expensive or require an employer to modify a work environment in a manner the employer does not view as reasonable. An agency should not rely upon this exception in denying an accommodation until the agency has spoken with legal counsel and unless the agency has clear evidence to support the agency’s position.

LCW Practice Advisor

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 54