California Civil Jury Instructions (CACI) (2017)

2545. Disability Discrimination - Affirmative Defense—Undue Hardship

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2545.Disability Discrimination—Affirmative Defense—Undue
[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;
g. The administrative and financial relationship of the facilities to
one another.
New September 2003
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
• Employer Duty to Provide Reasonable Accommodation. Government Code
section 12940(m).
• “Undue Hardship” Defined. Government Code section 12926(t).
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)