Poor Excuses – Federal Agencies Do Not Understand the ‘Undue Hardship’ Defense

Most federal agencies have difficulty dealing with reasonable accommodations because, well, they just don’t understand it. Many managers, HR, and EEO personnel are familiar with the concept of discrimination—at least insofar as they can avoid a charge of discrimination by having (and documenting) a “legitimate, non-discriminatory reason” for their actions. But this does not apply to reasonable accommodations under the disability rights laws. There is a pandemic of uninformed management, HR, and even agency lawyers who do not comprehend this.

Instead, federal agency employers have to prove what is called an “undue hardship” arising out of an accommodation. Generally, an undue hardship looks to the cost of providing a particular accommodation, and whether such costs would disrupt the functioning of the agency. The EEOC lays out a number of considerations the Agency must undertake before rejecting an accommodation as an undue hardship. (See 29 C.F.R. § 1630.2).

At the core of this defense is that the agency must make an “individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” Lamb v. SSA, EEOC No. 0120103232 (2012). Most agencies do not do this because, seemingly, they do not understand that they have to.

An “Undue Hardship” Is More Than Just an Excuse.

A ‘legitimate, non-discriminatory reason,’ which does not apply to reasonable accommodations, is really just a fancy word for ‘excuse that has some reasoning behind it.’ There is typically no need to prove the substance of it or to provide concrete evidence.

An ‘undue hardship,’ on the other hand, is a defense. When the law makes something a ‘defense,’ the person raising it must also prove it. Proof in this area generally requires documentation of costs and statements from knowledgeable witnesses showing the costs to be outside of what is feasible. A federal agency employer asserting an ‘undue hardship’ must raise that defense and prove it with evidence.  

Good luck. Agencies frequently do not come even close to doing this kind of analysis. A cursory review of EEOC caselaw shows a graveyard of poor excuses. For example, in Lamb v. SSA, EEOC No. 0120103232 (2012), the agency removed the employee’s prior accommodation allowing her to come to work 30 minutes later, and to work 30 minutes later. This permitted her to exercise in the morning in order to combat her depression. She had been permitted to do this for four years without any issue. The EEOC rejected this argument, noting the accommodation was costless and no evidence the agency had showed there was anything that disrupted the functioning of the agency.

The reasonable accommodation in Lamb was literally cost-free. The agency did this for years without any issue. Why would the agency not give her this accommodation?

Agencies Have to “Prove Convincingly” a Real Hardship Exists.

The EEOC does not make it easy for agencies to prove the “undue hardship” defense. Agencies must “prove convincingly” that such a hardship actually exists. Swafford v. Tennessee Valley Authority, EEOC Case No. 01831944, 1179/A1 (1984). The Agency cannot rely on just a broad, general rejection of the accommodation – the agency must specifically review the accommodation need in light of costs and other factors.  Wilmer M. v. Secretary of State, EEOC Case No. 0120160352 (2018)

So why do I see so many instances where federal employees are seeking basically costless accommodations that are rejected? Because managers don’t want to provide them. That’s really it. They do not want to take the time to ensure that their employees have what they need to do the job. I can’t understand it as anything other than an almost complete lack of empathy and disregard for federal statutory law. 

Take action – educate, educate, educate.

So what can you do about it as a federal employee? Educate, educate, educate. If your boss refuses to be educated, file an EEO case with your EEO counselor. If the counselor does not understand (remember, that person is part of the same system that fails to educate everyone else adequately, so he or she likely has no different understanding), then you take it to an administrative judge with the EEOC. My experience is that Administrative Judges do understand this, and have little time for an agency that fails to appreciate its obligations under the disability rights laws.   

A lawyer can be helpful with this. When planning a strategy for dealing with all aspects of the reasonable accommodation process, from requesting an accommodation to filing a case before the EEOC, it helps to have someone who has been down this road before. For those living with a disability, the difference between having an accommodation and not can make all the difference in the world. And once in a while a person needs an advocate, someone who is willing to stand up and speak truth to power. 

If you are dealing with a situation where a federal agency employer has failed to provide you with a reasonable accommodation, reach out to an attorney. The sooner you do so, the sooner these issues can be resolved. 

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