Disability Discrimination—Affirmative Defense: Undue Hardship in California Workplaces

Introduction

California’s Fair Employment and Housing Act (“FEHA”) requires employers to accommodate employees with disabilities unless doing so would create an undue hardship for the operation of the business. Cal. Gov’t Code § 12940(m). The undue hardship defense allows employers to deny a requested accommodation only if providing it would be significantly difficult or expensive when all relevant factors are considered. Cal. Gov’t Code § 12926(u).

What Is “Undue Hardship”?

“Undue hardship” means an accommodation would cause substantial difficulty or expense in light of the particular employer’s circumstances. The determination is made on a case-by-case basis and involves a multi-faceted, fact-intensive inquiry. Atkins v. City of Los Angeles, 8 Cal.App.5th 696, 733 (2017). Employers cannot simply assert economic reasons; they must specifically show how and why the costs or practical burdens impede their ability to provide an accommodation.

Factors Courts Consider

When assessing undue hardship, courts may consider:

• The nature and cost of the accommodation.

• The employer’s financial resources and ability to pay.

• The operations conducted at the facility and potential impact on those operations.

• The number of employees and relationship of their duties.

• The number, type, and location of facilities the employer maintains.

• The administrative and financial relationship between the facilities.

Cal. Gov’t Code § 12926(u).

Legal Standard and Burden

Employers bear the burden of proving undue hardship. Simply stating costs or inconvenience is not enough; they must provide evidence of how the accommodation would present significant obstacles in context. Atkins, 8 Cal.App.5th at 734 (2017). The standard applies only to accommodations that would truly disrupt business or create unreasonable expense—not minor or manageable adjustments.

Practical Guidance for California Employers

Employers seeking to assert undue hardship should:

• Carefully analyze and document the specific nature and cost of the accommodation.

• Assess and present evidence about financial resources and business operations.

• Consider alternatives and explore ways to minimize the impact.

• Collaborate with the employee in an interactive process to look for solutions before denying a request.

• Following these practices demonstrates good faith and compliance with FEHA.

Citations

Cal. Gov’t Code §§ 12940(m), 12926(u); Atkins v. City of Los Angeles, 8 Cal.App.5th 696, 733-34 (2017).