Reasonable Accommodations: Determining Undue Hardship

Federal and state anti-discrimination laws require employers to provide people with disabilities and those with sincerely held religious beliefs reasonable accommodations that will allow them to continue performing the essential functions of their jobs—unless doing so would create an undue hardship for the employer.

How Undue Hardship Is Determined

Under federal law, the Americans with Disabilities Act (ADA) covers disability accommodations; the Pregnant Workers Fairness Act (PWFA), effective June 18, 2024, covers accommodations due to pregnancy; and Title VII of the Civil Rights Act covers religious accommodations. There is a textual difference between the ADA and PWFA versus Title VII in regard to undue hardship.

ADA: The Equal Employment Opportunity Commission’s (EEOC’s) guidance defines undue hardship under the ADA as an action requiring significant difficulty or expense as it relates to the individual business. Determining undue hardship should be based on several factors, including:

• The nature and cost of the accommodation needed.

• The overall financial resources of the facility providing the reasonable accommodation, taking into account the number of people employed at the facility and the facility’s expenses.

• The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity).

• The type of operation of the employer—including the structure and functions of the workforce—as well as the geographic separateness of the facility involved in making the accommodation relative to the employer and that facility’s administrative or fiscal relationship to the employer.

• The impact of the accommodation on the operation of the facility.

The undue hardship principle can protect an employer from having to make unreasonable accommodations, but these factors create a very high threshold employers must meet. The Job Accommodation Network (JAN) offers detailed explanations of each factor that can help an employer make undue hardship determinations under the ADA.

PWFA: The Pregnant Workers Fairness Act has the same undue hardship standard as the ADA. 

Title VII: An accommodation based on a sincerely held religious belief would pose an undue hardship when a burden is “substantial in the overall context of an employer’s business,” per the U.S. Supreme Court’s 2023 ruling in Groff v. DeJoy

“Courts must apply the test to take into account all relevant factors in the case at hand,” the court stated, “including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.”

This is a clarification of the 1977 ruling in Trans World Airlines v. Hardison, which had been interpreted by many courts to mean that an employer could deny a religious accommodation if it would cause more than a de minimis, or trivial, cost to the employer. That interpretation no longer stands.

Factors relevant to undue hardship under Title VII include:

• The type of workplace.

• The nature of the employee’s duties.

• The identifiable cost of the accommodation in relation to the size and operating costs of the employer.

• The number of employees who will need a particular accommodation.

The EEOC on Religious Accommodation

 The EEOC explains that the “costs” an employer considers can include “not only direct monetary costs but also the burden on the conduct of the employer’s business.”  

In certain cases, for example, “courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.”

Employers also need to demonstrate the cost or disruption they say an accommodation for religious beliefs would create. “An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information,” the EEOC states in its Q&A on the subject. “A mere assumption that many more people with the same religious practices as the individual being accommodated may also seek accommodation is not evidence of undue hardship.”

Assessing Accommodations Requires Nuance

In all accommodation situations, many different factors come into play when determining whether an accommodation would pose an undue hardship. What may constitute an undue hardship to one employer may not be a hardship to another employer.

Before denying an accommodation request because of undue hardship, employers should explore different options that might make a seemingly difficult accommodation possible. If, for example, an accommodation seems to pose a financial hardship, the employer could look to outside agencies for potential funding and investigate tax credits that might assist in fulfilling an employee’s request. Employers should also be creative and determine whether a different accommodation would meet the employee’s needs.

Employers may seek assistance from JAN, a free service that provides employers with accommodation options for individuals with disabilities.