CACI No. 2545. Disability Discrimination - Affirmative Defense - Undue Hardship

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
2545.Disability Discrimination - Affirmative Defense - Undue
[Name of defendant] claims that accommodating [name of plaintiff]’s
disability would create an undue hardship to the operation of [his/her/
nonbinary pronoun/its] business. To succeed on this defense, [name of
defendant] must prove that [an] accommodation[s] would create an
undue hardship because it would be significantly difficult or expensive, in
light of the following factors:
a. The nature and cost of the accommodation[s];
b. [Name of defendant]’s ability to pay for the accommodation[s];
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;
g. The administrative and financial relationship of the facilities to
one another.
New September 2003; Revised November 2019, May 2020
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. (See Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 733 [214 Cal.Rptr.3d 113].)
For an instruction in the religious creed context, see CACI No. 2561, Religious
Creed Discrimination - Reasonable Accommodation - Affırmative Defense - Undue
Sources and Authority
Employer Duty to Provide Reasonable Accommodation. Government Code
section 12940(m).
“Undue Hardship” Defined. Government Code section 12926(u).
‘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. [¶] (5) The geographic separateness or administrative or
fiscal relationship of the facility or facilities.’ 12926, subd. (u).) “Whether a
particular accommodation will impose an undue hardship for a particular
employer is determined on a case by case basis” and ‘is a multi-faceted, fact-
intensive inquiry.’ (Atkins, supra, 8 Cal.App.5th at p. 733.)
“[U]nder California law and the instructions provided to the jury, an employer
must do more than simply assert that it had economic reasons to reject a
plaintiff’s proposed reassignment to demonstrate undue hardship. An employer
must show why and how asserted economic reasons would affect its ability to
provide a particular accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 734,
original italics, internal citation omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250, 9:2345, 9:2366, 9:2367 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.80
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)

© Judicial Council of California.