The ADA requires businesses to make reasonable accommodations for the disabled. The requirements for private entity disabled employees are contained in Title I of the ADA, while the requirements for private entity disabled patrons are in Title III. Although there is a lot of overlap, there are a few key differences that lead to disparate results wherein an accommodation may be required for an employee but not a patron. This article will look at the distinctions between the Title I “undue hardship” standard vs the Title III “readily achievable” and “fundamentally alter” standards.
Undue Hardship v Readily Achievable v Fundamentally Alter
The ADA is a “clear and comprehensive national mandate for the elimination of discrimination,” but it does not require businesses to make every possible accommodation to meet every potential disability. Furthermore, the needs and costs relating to accommodating employees under Title I are not always the same as patrons under Title III. For example, an employee may need an accommodation for the entire work shift, while a patron may only need it for a few minutes. How does one determine whether an accommodation is required?
When evaluating an accommodation request, both Title I and Title III have several factors to be considered, on a case-by-case basis: (1) nature and cost of the action; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. (Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership 264 F.3d 999, 1002. See 42 U.S.C. § 12111(10)(B)(i-iv) and 42 U.S.C. § 12181(9)(A-D).)
However, in determining whether a particular accommodation is required is subject to different standards depending on whether the request comes from an employee or a patron. Under 42 U.S.C. § 12112(b)(5)(A), an employee accommodation may be denied if it causes an “undue hardship,” defined as “an action requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A). But for patrons, under 42 U.S.C. § 12182(b)(2)(A): (a) removal of an architectural or communication barrier may be denied if it is not “readily achievable,” defined as “easily accomplishable and able to be carried out without much difficulty or expense,” 42 U.S.C. § 12181(9); (b) modification of “policies, practices and procedures” may be denied if it “would fundamentally alter the nature” of the business; and (c) provision of “auxiliary aids and services” may be denied if it would cause an “undue burden.” “Auxiliary aids and services” includes interpreters, readers, acquisition and modification of equipment, and similar services. 42 § U.S.C. 12103. Undue burden is defined the same as undue hardship. 28 CFR § 36.104
Under Title III the plaintiff must “initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances. If Plaintiff does so, Defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable.” Colorado Cross, supra at 1002. In addition, if the removal of a barrier is not readily achievable, the entity is obligated to honor an alternate method that is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(v).
The Right to an Accommodation Depends on Which Hat You are Wearing
Both the “undue hardship” and “readily achievable” standards are limitations on an entity’s obligation to accommodate a disabled person. But the “undue hardship” standard for employees requires a greater degree of effort than the “readily achievable” standard for patrons, even though the factors to be considered are the same. The grey area is an accommodation that entails less than “significant,” but more than “without much,” difficulty or expense. In addition, the “fundamentally alter the nature” defense is not available with respect to employees. It is conceivable a disabled person could be entitled to an accommodation when working at a grocery store, but might not be entitled to the same accommodation if they buy some milk after their shift is done!
I often joke that before a disabled person can get a job, they need to get food and clothes. The access hurdles for basic needs may effectively prevent the disabled person from ever seeking work for which they are qualified. That’s no joke. Legislators, regulators, businesses and judges should consider those policy implications when evaluating accommodation requests.
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Disclaimer: This content is provided for general informational purposes only, and may not reflect the current law in all jurisdictions. No information contained in this post should be construed as legal advice nor is it intended to be a substitute for legal counsel on any subject matter. Readers should consult their own advisor for legal or other advice.