California Civil Jury Instructions (CACI)

2545. Disability Discrimination - Affirmative Defense—Undue Hardship

[Name of defendant] claims that [name of plaintiff]'s proposed accommodations would create an undue hardship to the operation of [his/her/its] business. To succeed, [name of defendant] must prove that the accommodations would be significantly difficult or expensive to make. In deciding whether an accommodation would create an undue hardship, you may consider the following factors:

a. The nature and cost of the accommodation;

b. [Name of defendant]'s ability to pay for the accommodation;

c. The type of operations conducted at the facility;

d. The impact on the operations of the facility;

e. The number of [name of defendant]'s employees and the relationship of the employees' duties to one another;

f. The number, type, and location of [name of defendant]'s facilities; and

g. The administrative and financial relationship of the facilities to one another.

Directions for Use

The issue of whether undue hardship is a true affirmative defense or whether the defendant only has the burden of coming forward with the evidence of hardship as a way of negating the element of plaintiff's case concerning the reasonableness of an accommodation appears to be unclear.

Sources and Authority

Government Code section 12940(m) provides that it is an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in . . . subdivision (a) shall be construed to require an ccommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation."

Government Code section 12926(s) provides: "Undue hardship" means an action requiring significant difficulty or expense, when considered in light of the following factors:

(1) the nature and cost of the accommodation needed,

(2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility,

(3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities,

(4) the type of operations, including the composition, structure, and functions of the workforce of the entity, and

(5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.

Secondary Sources

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, § 2.80, p. 65

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.51[4][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.35, 115.54, 115.100 (Matthew Bender)

(New September 2003)