CACI 2545 Disability Discrimination—Affirmative Defense—Undue Hardship

California Civil Jury Instructions CACI

2545 Disability Discrimination—Affirmative Defense—Undue Hardship

[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; 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. (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—Affirmative Defense—Undue Hardship.

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)