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I. Introduction
For nearly two decades McDonnell Douglas v. Green, 409 U.S. 792 (1973), and its progeny have provided employment lawyers with a road map to follow in proving and defending discrimination cases under Title VII of the 1964 Civil Rights as well as under comparable statutes enacted in the wake of Title VII. The McDonnell Douglas order and allocation of proofs has served in guiding parties in actions under Title I of the Americans With Disabilities Act (the "ADA") where plaintiffs have alleged denial of the benefits of employment, such as refusal to hire, failure to promote, discharge and other discipline because of an employers' prejudice against those who are disabled. But Titles I, II and III of the ADA all have an aspect that the other anti discrimination statutes generally lack. They require reasonable accommodation of disabled individuals to allow them the benefits of employment, governmental services and public accommodations respectively. The ADA requirements may be excused, however, where the burden on the covered entity is unduly prejudicial because of cost or other hardships as defined in the respective titles. The McDonnell Douglas burden shifting does not lend itself to a situation in which a contested need for accommodation is central to the case.
The ADA cries out for its own McDonnell Douglas to guide litigants as well as courts in allocating the burdens of proof of parties where the reasonableness of an accommodation and the countervailing difficulties in providing that accommodation are in issue. This article will consider the approaches of different courts in determining the burdens of the parties in accommodation cases. It will consider the nature of the plaintiff's burden to make a prima facie case that an accommodation is reasonable and what a defendant must show to establish that it would be unduly prejudiced by providing that accommodation. Finally the article will rush in where angels fear to tread. It will suggest some practical solutions to resolve the varying approaches of the courts in assessing the burdens of parties to prove the reasonableness, and by contrast the lack of justification, where an accommodation is required to allow individuals with disabilities to participate in societies' benefits on an equal footing with others.
II. The Wording of the Applicable Sections of the ADA
Title I of the ADA prohibits discrimination in employment on the basis of disability, perceived disability or a history of disability. Title II deals with prevention of discrimination on the basis of disability in public services, i.e. services offered by public entities such as state and local governments or departments of such entities, as well as in public transportation. Title III prohibits discrimination on the basis of disability in public accommodations and services offered by private entities. The ADA is thus a Bill of Rights for persons with disabilities. It mandates that they be given the opportunity to participate on equal terms in a wide spectrum of activities. In those instances where covered entities must make special efforts to accommodate individuals protected by the statute there are significant similarities in the wording describing the requirement of accommodation in all three titles.
Under Title I it is discrimination for a covered entity to fail to "...make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless such covered entity can demonstrate that the accommodation would pose an undue hardship on the operation of the business of such covered entity." (emphasis supplied). It is also discrimination to deny job opportunities to an applicant or employee "...based on the need of such covered entity to make a reasonable accommodation to the physical or mental impairments of the employee or applicant." The reasonableness of the accommodation and undue hardship on the employer are the factors that determine whether an accommodation is required by the statute.
Title II requires that "...no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." Where a plaintiff shows such an exclusion or denial, the regulations promulgated under Title II alleviate a public entity from taking any steps that "...it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." (emphasis supplied). Once the plaintiff has established a disability and lack of access the requirement for an accommodation to be made turns on whether there will be a fundamental alteration or an undue financial and administrative burden.
Title III also provides a number of situations where a covered entity has duties to accommodate that are "reasonable" unless there is an excessive burden that will excuse it from making the necessary adjustments. The statute provides generally that:
No individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, (or leases to), or operates a place of public accommodation.
The covered entity is excused from its duty not to impose eligibility criteria that screen out the disabled from the enjoyment of their offerings where "...such criteria can be shown [by the defendant] to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered." (emphasis supplied). Covered entities are not required to make "...reasonable modifications in policies, practices, or procedures..." to accommodate individuals with disabilities where the entity "...can demonstrate that making such modifications would fundamentally alter the nature..." of those offerings. (emphasis supplied). They must take affirmative steps to insure that disabled individuals have the benefit of their offerings such as supplying auxiliary aids like amplified hearing devices in theaters and TDD/TVV telephones for the hearing impaired unless doing so "...would fundamentally alter the nature of the good, service, facility, privilege, advantage being offered or would result in an undue burden." (emphasis supplied).
Covered entities must remove architectural barriers that are structural in nature in pre-act facilities where doing so is "readily achievable." Where the entity "...can demonstrate that the removal of a barrier ...is not readily achievable..." it must make its offerings available by alternative means if such are readily achievable. "'Readily achievable' means easily accomplishable and able to be carried out without much difficulty and expense." The statute names four non-exclusive factors to be taken into account to determine if a change is readily achievable:
(A) The nature and cost of the action needed...;
(B) The overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise on of such action on the operation of the facility;
(C) The overall resources of the covered entity; the overall size of the business of the covered entity with respect to its number of employees; the number, type, and location of its facilities; and
(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity; the geographic separateness, administrative relationship of the facility or facilities in question to the covered entity.
The ADA is worded to require of covered entities only that which is reasonable. Covered entities are not required to make adjustments that will cause the unwarranted difficulties designated in the various sections of the ADA. The problem comes in when it is time to determine who has the burden of proving what is or is not reasonable, or necessary or an undue hardship. Who has the burden of proving what will cause a fundamental alteration or undue financial and administrative burdens, or what is not readily achievable. The enigma continues with the search for the quantum by which these proofs must be established.
III. What the Courts Have Said About the Allocation of Proofs
The potential dilemma posed by proofs of reasonableness and undue hardship under Title I was addressed in Reed v. LePage Backeries, 244 F.3d 254, 258 (1st. Cir 2001):
Under the ADA, the plaintiff bears the burden of proving that the defendant could provide a reasonable accommodation for her disability. At the same time, the statute places the burden on the defendant to show that the proposed accommodation would impose an undue hardship. See 42 U.S.C. § 12112(b)(5)(A). There is a well recognized tension in the statutes allocation of the burdens in this fashion. The burdens might appear to be mirror images of one another: a 'reasonable accommodation,' it might seem, is simply one that does not impose an 'undue hardship.' But if this were so, the statute would impose identical burdens on both parties.
In due deference to the First Circuit, the enigma arises because it appears, at least facially, that imposing identical burdens on the parties is exactly what the statute accomplishes.
In solving the riddle of the proofs some of the decisions have looked back to Section 504 of The Rehabilitation Act of 1973. "No otherwise qualified handicapped individual...shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in any program receiving Federal financial assistance..." (emphasis supplied). The regulations implementing the Rehabilitation Act require recipients of federal funding to "...make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.
Congress made it clear that the ADA is to be construed consistently with the Rehabilitation Act, stating that:
Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U. S. C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.
In Bragdon v. Abbott, 524 U.S. 624, 631 (1998), the Supreme Court pointed out that the definition of disability in the ADA is modeled after the definition of "handicapped individual" in the Rehabilitation Act and the Fair Housing Amendments Act of 1973. The Court observed that when Congress reuses a well established term it indicates the intention of Congress that the term should be interpreted consistently with regulations interpreting the pre-existing term.
An often cited Second Circuit decision which was concerned with the allocation of the burdens of proof in a Rehabilitation Act employment discrimination case is Borkowski v. Valley Central School District, 63 F.3d 131 (2nd Cir. 1995). Ms. Borkowski was a library teacher who, due to the consequences of neurological damage, could not maintain control of her classes. She requested a teacher's aid as an accommodation to cope with her problem. The school board contended that Ms. Borkowski was not an "otherwise qualified handicapped individual" as required by the statute. It also contended that providing a teacher's aid would result in an undue hardship. The court gave the following analysis of the parties' burdens at 244 F.3d 138:
As to the requirement that an accommodation be reasonable, we have held that the plaintiff bears only a burden of production. [Citing Gilbert v Frank, 949 F.2d 637 , 642 (2nd Cir. 1991)]. This burden, we have said, is not a heavy one. Id. It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant. Id. At this point the defendant's burden of persuading the factfinder that the plaintiff's proposed accommodation is unreasonable merges, in effect, with its burden of showing, as an affirmative defense, that the proposed accommodation would cause it to suffer an undue hardship. For in practice meeting the burden of non-persuasion on the reasonableness of the accommodation and demonstrating that the accommodation imposes an undue hardship amount to the same thing.
While finding that the burden of showing that the accommodation is not reasonable and imposes an undue hardship is on the defendant, the Borkowski court also stated that the burden of persuasion on the issue of "... the existence of an effective accommodation, remains with the plaintiff." 244 F.3d. at 141. At the same time the court stated that the plaintiff's burden is merely one of production. Add to this the reasoning in Gilbert v. Frank, 949 F.2d 637, 642 (2nd Cir. 1991), which the Borkwoski court cited with approval, that the plaintiff's prima facie case burden of showing that she can perform the essential functions of the job is not viewed as "...a heavy one. We would deem it sufficient on this issue for the plaintiff to present evidence as to her or his individual capabilities and suggestions for some reasonable assistance or job modification by the employer." The Borkowski court held that "... the plaintiff has the burden of production and persuasion on the issue of whether she is otherwise qualified for the job" i.e. whether she can perform the essential functions of the job with or without an accommodation. 63 F.3d at 137. Some might join me in finding these descriptions of the burdens of the parties difficult to reconcile.
Where Borkowski required the plaintiff to "suggest the existence of a plausible accommodation" the D.C. Circuit in Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1995), also a Rehabilitation Act case, described the plaintiff's initial burden as showing an accommodation that is reasonable in "the run of cases." ("As a general matter a reasonable accommodation is one employing a method that is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff's preferred accommodation in the context of the particular agency's operations." 2 F.3d at 1187). Thereafter the defense has the burden of proving undue hardship as an affirmative defense. Borkowski rejected the "run of cases" standard. The Borkowski court opined at 63 F.3d 137 that:
...an accommodation that imposed a burden so significant as to be unreasonable in the run of cases ...would never be required, because the plaintiff would be unable to carry her burden of persuasion on the question of reasonable accommodation, and the issue of whether the accommodation would unduly burden the particular employer would never be reached. (internal citation omitted).
The Borkowski court further reasoned that "...the employer has far greater access than the typical plaintiff, both about its own organization, and, equally importantly, about practices and structure of the industry as a whole." Id.
The Borkowski decision was imported into the ADA by Pascuiti v. New York Yankees,87 F. Supp. 2d 221 (S.D.N.Y. 1999), an action in which the plaintiff's contended that Yankee Stadium lacked the accessibility required by Title II. Quoting the paragraph from Borkowski shown above, except for the first sentence, the Pascuiti court added at 87 F. 3d 223, that the plaintiff must:
...suggest a plausible method of making the Stadium readily accessible, the costs of which, facially, do not exceed its benefits. If plaintiffs make out this prima facie case, the City must prove that the proposed method of making the Stadium readily accessible would result in undue financial and administrative burdens (emphasis supplied, footnote in the quoted material omitted).
The Seventh Circuit in Vande Zande v. State of Wisconsin, 44 F. 3d 538, 543(7th Cir. 1995) analyzed the burdens where cost is a factor in determining the viability of an accommodation in the following terms:
So it seems that costs enter at two points in the analysis of claims to an accommodation to a disability. The employee must show that the accommodation is reasonable in the sense both of efficacious and proportional to costs. Even if this prima facie showing is made the employer has an opportunity to prove that upon more careful consideration the costs are excessive in relation to the employer's financial survival or health... One interpretation of 'undue hardship' is that it permits an employer to escape liability if he can carry the burden of proving that a disability accommodation reasonable for a normal employer would break him. Barth v. Gelb, 303 U.S. App. D.C. 211, 2 F.3d 1180, 1187 (D.C. Cir. 1993).
This analysis does not lead to an escape from the predicament of equating the parties' burdens as two sides of the same coin. A closer look at what the plaintiff must demonstrate in the prima facie case is necessary.
In Willis v. Conopco, Inc., 108 F. 3d 282 (11th Cir. 1997), the Eleventh Circuit emphasized the burden of a plaintiff to demonstrate a specific accommodation that will enable the plaintiff to perform the essential functions of the job. The court found that Borkowski's view, which it rejected, combined the question of whether an accommodation is reasonable and whether it will put an unreasonable burden on the defendant. It found that this view improperly transferred the burden of proof on the question to the employer. The panel reasoned that "Such an approach confuses an element of the plaintiff's case (reasonable accommodation) with an affirmative defense (undue burden) and effectively relieves the plaintiff of the obligation to prove her case." 108 F.3d at 286. Nonetheless the panel recognized the problem of determining who has what burden, stating at 108 F. 3d 286:
That the evidence probative of the issue of whether an accommodation for the employee is reasonable will often be similar (or identical) to the evidence probative of the issue of whether a resulting hardship for the employer is undue, does not change the fact that establishing that a reasonable accommodation exists is part of an ADA plaintiff's case, whereas undue hardship is an affirmative defense to be pled and proven by an ADA defendant. (footnote omitted, see below).
In the footnote to the above passage the court added that "These two issues are not exactly the same: the question of whether an accommodation is reasonable (though it must be determined within a given set of specific facts) is more a 'generalized inquiry' than the question of whether an accommodation causes a 'hardship' on the particular employer that is undue." 108 F.3d 286, n.2. The court adopted the Barth view that reasonable is what is reasonable in the run of cases while the question of undue hardship is a more specific inquiry that focuses on matters pertinent to the particular defendant.
The Fifth Circuit addressed the issue of the apparent teeter-totter nature of the proofs in an accommodation case in Johnson v. Gambrinus Company/Spoetzel Brewery, 116 F.3d 1052 (10th Cir. 1997). This was a Title III case in which the plaintiff sought to require the defendant to modify its policy that prohibited service dogs from accompanying their owners on brewery tours. The court followed the circuit's prior reasoning on the burdens of proof in Riel v. Electronic Data Systems Corp, 99 F.3d 678 (5th Cir. 1996). Riel was a title I case in which the plaintiff sought to have his employer relieve him of meeting certain deadlines in his work. The court pointed out that the Title I ban against not making reasonable accommodation unless the employer can demonstrate that it would cause an undue hardship parallels the Title III requirement for covered entities to make reasonable modifications to policies unless such modifications would fundamentally alter the nature of the accommodation. Transferring the reasoning of the Title I case to the Title III case the court held at 116 F.3d at 1059:
The plaintiff has the burden of proving that a modification was requested and that the requested modification is reasonable. The plaintiff meets this burden by introducing evidence that the requested accommodation is reasonable in the general sense, that is, reasonable in the run of cases. While the defendant may introduce evidence indicating that the plaintiff's requested modification is not reasonable in the run of cases , the plaintiff bears the ultimate burden of proof on the issue. ... If the plaintiff meets this burden, the defendant must make the requested modification unless the defendant pleads and meets its burden of proving that the requested modification would fundamentally alter the nature of the public accommodation. Under the statutory framework, such evidence is relevant only to a fundamental alteration defense and not relevant to the plaintiff's burden to show that the requested modification is reasonable in the run of cases.
The Gambrinus approach apparently divides the allocation into two series of proof. First the plaintiff must suggest an accommodation, after which the defendant may attempt to show it is not reasonable in the run of cases. At this stage the burden of proof is on the plaintiff. If the plaintiff succeeds in this regard, that is if the defendant fails to demonstrate that the accommodation is unreasonable, the case moves on to the next stage. The defendant then has the burden of proof on the affirmative defense that the proposition will bring about a fundamental alteration. In the first stage the plaintiff has the burden of proof on reasonableness while the defendant's challenge is to rebut the plaintiff's reasonableness arguments. At the next stage the burden of proof is on the defendant to show that there would be a fundamental alteration. The plaintiff has the lighter burden of rebutting the defendant's argument because the burden of proof at this stage is on the defendant. The conundrum that the defendant's evidence may be identical at both stages is less likely to occur in this scenario.
In Reed v. LePage Bakeries, Inc., supra, the court approached the proof problem by requiring a plaintiff to demonstrate that a proposed accommodation will enable her to perform the essential functions of the job and that the accommodation is "facially practicable" that is "...at least on the face of things it is feasible for the employer under the circumstances." 244 F.3d at 259. The court further reasoned at 244 F.3d 259-60 that:
Where the burdens will significantly differ is when the costs of an accommodation are not evident on the face of things, but rather better known to the employer....For example, an employee's proposal that her work area be modified might be facially reasonable, but the employer may still show that, given the particular limitations on its financial resources, or other hidden costs, such accommodation poses an undue hardship.
This reasoning seems to say that unless the plaintiff proposes an accommodation that no rational person could see as reasonable the defense has the burden of fleshing out the details to prove an affirmative defense.
The Tenth Circuit, in Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I, 264 F.3d 999, (10th Cir. 2001), a Title III case, citing Pascuiti, supra, assigned to plaintiff the burden to "... initially introduce evidence tending to establish that the proposed method of architectural barrier removal is 'readily achievable;' i.e.'easily accomplishable' and able to be carried out without much difficulty or expense' under the particular circumstances. 41 U.S.C. § 12181(9)." 264 F.3d at 1007. If the plaintiff meets this burden the defense must then show that removal of the barrier is not readily achievable. This is an affirmative defense on which the defendant has the burden of proof.
The Sixth Circuit, in Monetter v. Electronic Data Systems Corporation, 90 F.3d 1173 (6th Cir. 1996) considered the allocation of proofs when a Title I plaintiff alleges a job requirement that she can not perform is not an essential function of the position in question. A "qualified person with a disability," entitled to protection under Title I, is one who has the required skills, training or education to perform a job in question "and who, with or without reasonable accommodation, can perform the essential functions of such position." The essential functions "do[ ] not include the marginal functions of the position." The court found that the employer has the burden of proof of whether a job requirement is an essential function. The court found support for its view in 42 U.S.C. § 12112(b) which prohibits employers from using "...qualifications, standards, employment tests or other selection criteria unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity."
Although the Supreme Court has rendered a number of ADA decisions, it was not until the recent decision in US Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002) that the Court articulated any views regarding the burdens of proof on the reasonableness of an accommodation. In US Airways, a Title I case, the accommodation sought by the plaintiff was a reassignment to a position to which he was not entitled under the employer's seniority system. The seniority system was created by the employer rather than in a collectively bargained union contract.
Reversing an en banc decision of the Ninth Circuit the Court found that "...the seniority system will prevail in the run of cases." Id. at 1524. The Court placed the burden of showing reasonableness on the plaintiff, finding that the ADA "...does not require proof on a case by case basis that a seniority system should prevail." Id. A plaintiff may prevail in the face of a seniority system if the plaintiff can establish special circumstances. One such special situation might be a showing that frequent exceptions have been made in the past leading to other workers not having a reasonable expectation of benefitting by virtue of their seniority.
The Court did not find a dilemma in the fact that the plaintiff must prove the reasonableness of an accommodation and the employer must prove undue hardship. It opined that "...an ordinary English meaning of the term 'reasonable accommodation' [does not make] of it a simple redundant mirror image of the term 'undue hardship.'" Id. at 1522. It noted that "Many of the lower courts ... have reconciled the phrases 'reasonable accommodation' and 'undue hardship' in a practical way." Id. at 1523. The Court cited Reed v. Lepage Bakeries, supra, Borkowski v. Valley Central School District, supra and Barth v. Gelb, supra, with approval. It commented favorably on defining reasonable as what is reasonable "on its face" or in the "run of cases" or that which is a "plausible accommodation." Thereafter the defendant must meet its burden with evidence specific to the case in point.
US Airways is a start but there is a great deal left to flesh out to give parties to ADA actions adequate guidance on the burdens of proof. In that case the solution became immediately apparent when the Court decreed that the presence of a seniority system places the burden of proof on the plaintiff to show why it is not unreasonable to set it aside for the particular case. Dealing with a situation that is found to be presumptively unreasonable until the plaintiff can show special circumstances is a relatively easy case. Where the plaintiff is able to make a prima facie case by showing the special circumstance the defendant's first task will be to rebut the prima facie case evidence that plaintiff provides to show the special circumstances. That will be the mirror image of the plaintiff's proof but the case is still at the prima facie case stage where the plaintiff has the burden of proof. The case will then move to the next stage where the defendant may present any affirmative defense. Any such defense at this stage will necessarily be something other than a rebuttal of the plaintiff's prima facie case. At this stage the defendant has the burden of proof.
The more difficult case is one in which the plaintiff is required to be relatively specific in its presentation of a plan of accommodation. It is in this situation that the parties proofs are likely to mirror each other. An approach to a solution is to examine just how heavy is the plaintiff's burden to show that an accommodation is reasonable.
(The second installment of this article will appear in the February issue of the Florida Bar Journal. That portion of the article will consider what plaintiffs have been required to shoe to make a prima facie showing in an ADA case. Also discussed will be suggested approaches to the assignment of the burdens of proof.)
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(The previous installment of this article in the January issue of the Florida Bar Journal focused on the specific language of the ADA that needed to be considered in determining the allocations of the burdens of proof in cases where the need for an accommodation is in issue. Also discussed was the relationship of the ADA and the Rehabilitation Act along with cases in which courts addressed the seeming mirror image of the parties burdens. The current installment will deal with what the plaintiff must do to make a prima facie showing of entitlement to an accommodation and proposed approaches to a resolution of to the assignment of burdens of proof in ADA cases.)
IV. What the Courts Have Required to Make a Prima Facie Showing of Reasonableness
The measure of proofs required of plaintiffs to establish a prima facie case that an accommodation is reasonable have varied from general statements of what seems reasonable to fairly detailed plans. In Barth v. Gelb, supra, the plaintiff who was severely diabetic sought an assignment to one of the overseas locations of his employer, the Voice of America, (the "VOA"). His condition required him to be located near a sophisticated medical facility. Mr. Barth's requested accommodation was an assignment to one of the VOA's three or four locations near such a facility. 2 F.3d at 1188. No issue was raised by the VOA that the requested accommodation was "unreasonable in the abstract." Id. at 1187. The burden then logically passed immediately to the employer to prove as an affirmative defense that such an assignment would result in an undue hardship.
In Borkowski, supra, the plaintiff's burden was limited to suggesting that she be given a teacher's assistant as an accommodation. The court found that this met the plaintiff's burden to suggest a reasonable accommodation which it held to be a mere burden of production, a burden that is not a heavy one. 63 F.3d at 138. Thereafter the burden to prove that the accommodation would impose an undue hardship fell on the school district. The court observed at 63 F.3d 139:
...while the plaintiff could meet her burden of production by identifying an accommodation that facially achieves a rough proportionality between costs and benefits, an employer seeking to meet its burden of persuasion on reasonable accommodation must undertake a more refined analysis. And it must analyze the hardship to be imposed through the lens of the factors listed in the regulations, which include the industry to which the employer belongs as well as the individual characteristics of the individual defendant-employer.
The plaintiffs in Staron v. McDonald's Corporation, 51 F.3d 353 (2nd Cir. 1995), because they suffered from asthma, were unable to patronize the defendants' fast food restaurants where smoking was permitted. Plaintiffs sought a total ban on smoking or an injunction against the maintenance of policies that would prevent them from entering the restaurants. Id. at 358 The Second Circuit, reversing the district court's dismissal of the complaint for failure to state a cause of action, found this sufficient to make a prima facie showing, at least at the pleading stage, of a reasonable accommodation. The court ruled at 51 F.3d at 358 that:
While plaintiffs bear the eventual burden of showing that particular modifications are reasonable...we do not think that it is necessary at this point in the lawsuit to bind plaintiffs to one specific modification they prefer. If the plaintiffs should fail in their request for an outright ban on smoking, they may still be able to demonstrate after discovery that modifications outside of an outright ban, such as partitions or ventilation systems, are both 'reasonable' and 'necessary.'
Thus the Second Circuit allows, at least at the pleading stage, a liberal opportunity for the plaintiff to get to a trial on the facts. The Fifth Circuit also was relatively lenient to the plaintiff in Johnson v. Gambrinus Company/Spoetzel Brewery, supra. The matter was heard on appeal from the district court's injunction based on its finding that the defendant had violated Title III by refusing to let the plaintiff's service dog accompany him on a brewery tour. The court found that the plaintiff had met his burden of showing a reasonable modification by merely requesting that the defendant discontinue its blanket policy of excluding animals from its brewery tours. 116 F.3d at 1064. The court reasoned that the burden was not on the plaintiff to show that there were no obstacles to access. This is part of the defendant's case to meet its burden of proof that such obstacles exist. Id. at 1064, n. 11. This modification was held to be reasonable in the run of cases. Id. at 1065. The appellate court ruled that the district court had correctly concluded that there were parts of the tour where the animal could be taken without fundamentally altering the nature of the tour. Id. It further found that the district court was not obligated to delineate the exact nature of the changes to be made by the defendant. The specifics of the changes were to be considered later in the case after remand to the district court. Id.
The Tenth Circuit was more demanding of the plaintiff in Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I, supra. In that case the court found that the plaintiff failed to present evidence "tending to establish" a readily achievable method of barrier removal at trial. The barrier in question was the front entrance to a building of the defendant for which the plaintiff's expert suggested a ramp. The expert testified that a sketch that he had prepared was merely "conceptual" rather than a construction drawing. 264 F.3d at 1007. When apprized of the nine inch height of the entrance he proposed extending the ramp out into the sidewalk where it would have been a hazard to visually impaired individuals. The court reasoned that "...plaintiff introduced evidence regarding only speculative concepts of ramp installation, rather than evidence that a specific design was readily achievable." Id. at 1007-08. The court further faulted the plaintiff for failing to show that the city would approve of a proposed modification to the defendant's historically designated building and for not providing detailed cost estimates. The court would require a specific design rather than the speculative conceptual proposal of the plaintiff's expert. The court obviously raised the bar high for "tending to establish," requiring the plaintiff to provide considerable detail in the first instance rather than requiring the defendant to rebut the plaintiff's proposal as an affirmative defense.
The court's decision was a relatively easy one in Willis v. Conopco, Inc., supra., the plaintiff had serious reactions to enzymes in the detergent manufactured by the defendant. The detergent was pervasive in the defendant's facility. The plaintiff was not able to propose any accommodation to her condition. She claimed that she was relieved of this duty because the employer had not engaged in the "interactive process" with her to determine if her condition could be accommodated. The court rejected the plaintiff's view that she needed merely to request an accommodation generally after which it was up to the employer to find one. The court quite correctly held "...that establishing that a reasonable accommodation exists is part of an ADA plaintiff's case..."
In Association for Disabled Americans, Inc. v. Concord Gaming Corporation 158 F. Supp. 2d 1353 (S.D. Fla. 2001), the plaintiffs complained of the inaccessibility of many of the offerings on a gaming cruise ship. As the framework for its decision the court quoted the language quoted earlier in this article from Johnsohn v. Gambrinus Co./Spoetzel Brewery.
The plaintiffs, who were wheel chair users, complained of the slope of the gangway by which the ship is boarded. They proposed a ramp with a more gradual slope. The court found that their proposal, though possibly reasonable in the general sense, failed to take into account that the slope changes with the level of the tide. Id. at 1364. Therefore even with a more gradual slope there would not be an effective correction at high tide. The plaintiffs suggested the installation of an elevator to give them access to restaurant and dancing facilities on the second, third and fourth decks. The court found that this was not a readily achievable proposal due to the great expense and the fact that the ship would have to be dry-docked for two months for the installation. Id. at 1363. It further found that supplying a dance floor on the first deck with music piped in from the third deck dance floor would result in a fundamental alteration by taking away the limited space available for gaming tables on the first deck. Id. at 1365. Gaming is the principal purpose of the ship. The plaintiffs failed in their pursuit of access to a certain observation area. Id. Acknowledging that there was no way to make it accessible they failed to propose a reasonable accommodation.
The court found that the plaintiffs' proposal to lower the cash counter was not reasonable due to the expense and its current height was required for security reasons. Id. at 1366. The court also found that the plaintiffs' proposal to lower a portion of the craps tables to allow them to play from their wheel chairs or let them play from the lowered portion where the game's attendants stand were not reasonable. The court reasoned that it would alter the playing surface thereby fundamentally altering the nature of the game. Additionally it might give disabled players greater access than other players.
Although the Concord Gaming court did not expressly say so it appears to have placed all the burdens on the plaintiff by not finding the plaintiffs' proposals reasonable in the general sense. It appears never to have arrived at the point of requiring the defendant to prove undue hardship or fundamental alteration as affirmative defenses, although evidence to support these defenses was obviously presented by the defendant.
The plaintiffs in Access Now, Inc. v. South Florida Stadium Corp. 161 F. Supp. 2d 1357 (S.D. Fla. 2001), were also given a burden of showing the reasonableness of their proposal that went to the far end of what might be reasonable in the general sense or in the run of cases. Quoting the same language from Johnson v. Gambrinus Co./Spoetzl Brewery that was cited in Concord Gaming, the court additionally found that mere non-compliance with the ADAAG guidelines does not conclusively establish a violation of Title III in existing facilities. Id. at 1368. It held that deviation from ADAAG standards are a relevant consideration. The standards provide "valuable guidance," Id but the "...plaintiff carries the additional burden of showing that removal of the barriers is readily achievable." Id.
The plaintiffs sought to have one percent of the stadium seating wheelchair accessible pursuant to the ADAAG standards. In granting defendant's motion for summary judgement the court faulted the plaintiffs for failing to show that the existing wheelchair seating was not adequate to meet the demands for such seating and for failing to show that their requested modification would improve access to the stadium. Id. Additionally the court held that the plaintiffs had failed to suggest a readily achievable accommodation. One of plaintiffs' experts supplied a diagram showing areas that would accommodate additional wheel chair seating. Another offered testimony that it would be feasible to add wheel chair seating at an estimated considerable expense. The court found that the plaintiffs offered only "speculative concepts" rather than evidence of readily achievable accommodations. The court also ruled for the defendant on plaintiff's claim about lack of accessible restrooms finding that the plaintiffs had failed to present any plan for modification of the restroom. Implicit in the court's opinion is that the plaintiff's had failed to present evidence of accommodations that would be reasonable in the general sense, that is in the run of cases.
V. Some Modest Proposals
The variety of situations in the foregoing cases makes it apparent that no one scheme of proofs will suit every situation. If reasonable accommodation is to have its own allocation of proofs the courts will certainly be mindful of the admonition in McDonnell Douglas that "The facts will necessarily vary in Title VII [and ADA] cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." 411 U.S. 792, 802 n. 13. In other words one size does not fit all.
Although the defendant in Barth did not deny that the requested accommodation was reasonable on its face the court considered the situation where reasonableness is an issue. The court opined that after the plaintiff proposed an accommodation that would permit the plaintiff to perform the job "...it would be up to the employing agency to refute that evidence. The burden, however, remains with the plaintiff to prove his case by a preponderance of the evidence." 2 F.3d at 1186.
The easiest scenario to address is the pleading stage. Consistent with the Supreme Court's holding in Swierkiewicz v. Sorema, supra, and Federal Rule of Civil Procedure 8(a)(2), a plaintiff should be able to plead as a conclusion that accommodation is required and a reasonable accommodation is available. The plaintiff who unnecessarily pleads more specifically what accommodation should be provided will be subject to a Rule 12(b)(6) motion to dismiss if the court finds the suggested accommodation unreasonable as a matter of law. Minimalist pleading was approved in Parr v. L & L Drive-Inn Restaurant 96 F. Supp. 2d 1065 (D. Haw. 2000), where the complaint alleged a few specific examples along with a general allegation that the defendant had "failed to eliminate readily achievable architectural barriers to equal accessibility." Id. at 1083. The court found that the complaint afforded the defendant adequate notice within the Rule 8(a)(2) allowance of "... a short and plain statement of the claim showing that the pleader is entitled to relief." This was also the reasoning of the court in Emerick v. Kahala L & L, Inc. 18 NDLR 116. There the court found that pleading of a few specific examples and an allegation that the defendant "'failed eliminate readily achievable architectural barriers to equal accessibility' as required by the ADA" satisfied the requirements of Rule 8(a)(2). Id. at p.16.
Assignment of the opposing burdens in many other cases will not pose a difficult problem. In a case such as Barnett v. U.S. Airways, supra, where the requested accommodation is per se not required by the ADA as a matter of law in the absence of special circumstances it is incumbent on the plaintiff to show the existence of those circumstances as part of the substance of the plaintiff's prima facie case. The plaintiff passes this hurdle if the defendant is unable to rebut the arguments showing that there are reasons in the particular case why the accommodation is reasonable. Any affirmative defense that the defendant offers will be something other than the initial reason for arguing that the accommodation is not reasonable. The defendant will have the burden of proof on that defense.
In a Title III case where there is a clear departure from ADAAG standards that obviously impedes accessibility and no apparent obstacles to correction the plaintiff will establish a prima facie case by merely seeking a correction. The burden should then move quickly to the defendant to produce evidence of any hardship that is not obvious. There are many scenarios where this might be the case. Among them are a needed curb cut, lack of accessible hardware on doors, sinks or toilets, non-compliant floor covering, absence of required grab bars, inaccessible pay telephones or water fountains, or a lack of accessible seating in a restaurant. In many of these cases the prima facie case is likely to be the self-evident accommodation of conforming to ADAAG standards. This will be the case at least where a prohibitive cost, design or structural problems are not evident on the face of things. In this situation the defendant's defense will be one of undue hardship on which the defendant has the burden of proof.
If the defense is that an accommodation will alter the fundamental nature of a facility, unless such an alteration is immediately apparent the affirmative defense burden should pass directly to the covered entity. In the case of the craps tables involved in Concorde Gaming, supra, it would seem that to most observers lowering a portion of a rail around the table would not fundamentally alter the nature of the game. It would follow in such a case that the defendant should have the burden of proving the fundamental alteration defense.
An example of the most difficult type of case is a Title III case in which the need for extensive structural changes that on the face of things appear to require extensive renovation and expense. As seen above, the courts have phrased the showing required from the plaintiff with a variety of standards. These include a showing that an accommodation is plausible with a cost that clearly does not exceed its benefits or one that is feasible in the run of cases or on its face or reasonable in the general sense. Among the other standards of proof required of plaintiffs for a prima facie case are suggestions of an accommodations that are plausible, facially practical, facially reasonable or the requirement that the plaintiff provide evidence tending to establish that the removal of an architectural barrier is readily achievable. The plaintiff's burden was classified in Borkowski, supra as "not a heavy burden" 63 F.3d at 138 while the defendant's burden was found to be "a more refined analysis." Id. at 139. The plaintiff's burden was described as a "generalized inquiry" in Willis v. Conopco, Inc, supra, while the defendant's burden was held to be a more specific inquiry. The various characterizations of the plaintiff's burden do not on their face mandate different results. The key lies in the application of the standard. How much does it take to be reasonable on its face or in the run of cases.
In Colorado Cross Disability Coalition, supra, the court required specific evidence tending to establish that a proposed accommodation is readily achievable. A conceptual drawing was not sufficiently specific. A precise design was called for. A plaintiff should be required to do more than say "change it" and make vague suggestions. A detailed plan, however, seems to be more than a generalized inquiry into readily achievability. The burden was placed on the plaintiff to show that the city would approve of the required alteration of a historical building. It seems that this obstacle would not appear on the face of things and therefore should be part of the covered entity's affirmative defense.
In the South Florida Stadium Corp, 161 F. Supp. 2d at 1376, the defense presented uncontroverted evidence that the existing wheelchair seating was underutilized. Since this is not information that would be facially apparent it was the proper subject of an affirmative defense on which the defendant had the burden of proof. Similarly in a case involving supplying auxiliary aids such as hearing devices the burden should be on the defendant to prove that there is no need for the aids or that those currently available are adequate to meet the needs of the covered entity where this is in fact the case. The same might be said for accessible rooms in hotels and motels and accessible parking spaces.
Showing that a needed accommodation can be realistically accomplished is an integral part of a plaintiff's ADA case. The plaintiff's initial burden should be to present a suggested accommodation that is not obviously deficient to a reasonably intelligent person without specialized training such as that of an architect, structural engineer or city planner. As the court reasoned in Barth v. Gelb, supra, the plaintiff should be required to prove the reasonableness of the proposal by a preponderance of the evidence. Any deficiencies in the plan that the reasonably astute person cannot spot on the face of things should be relegated to the affirmative defense on which the defendant has the burden of proof. These would be matters that the defendant is in a better or even a unique position to know. Included might be the defendants particular financial situation, hidden structural obstacles or business considerations peculiar to the particular defendant or industry. If the defendant meets that burden the plaintiff should have the opportunity to demonstrate any flaws in the defense. The burden of proof on the defense should, nevertheless, remain with the defendant.
9/5/02
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