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Burdens of Proof of Reasonableness and Undue Hardship Under Titles I, II, and III of the Americans With Disabilities Act, Part I

Labor and Employment Law

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 Act1 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 Act2 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 employer’s prejudice against those who are disabled. But Titles I, II, and III of the ADA all have an aspect that the other antidiscrimination statutes generally lack. They require reasonable accommodation of disabled individuals to allow them the benefits of employment, governmental services, and public accommodations respectively.3 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. The second installment of this article will appear in the February Journal and will review cases in which the courts have dealt with what a plaintiff must demonstrate to make a prima facie case of entitlement to an accommodation. It will also propose approaches to assigning the parties burdens.

Wording of 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.4 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.6 Title III prohibits discrimination on the basis of disability in public accommodations and services offered by private entities.7 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.”8 ( 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.”9 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 II10 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)11 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.12

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)13 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)14 They must take affirmative steps to ensure 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)15

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.16 & #x201c;‘Readily achievable’ means easily accomplishable and able to be carried out without much difficulty and expense.”17 The statute names four nonexclusive 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.18

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.

What Courts Have Said About 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 §504 of The Rehabilitation Act of 1973.19 & #x201c;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)20 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.21

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.22

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 1973.23 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 that concerned 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 (2d 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 (2d 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 nonpersuasion 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 (2d 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. These descriptions of the burdens of the parties are 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 11th 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 “[s]uch 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)

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, 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 10th 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, 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.”24 The essential functions “do[ ] not include the marginal functions of the position.”25 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.26

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, Borkowski, and Barth, 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. q

1 42 U.S.C. §§2000e et seq .

2 42 U.S.C §§12101 et seq .

3 But see 42 U.S.C. §2000e-2 (j). The Title VII prohibition against religious discrimination requires employers to allow for all aspects of an employee’s “religious observance and practice, unless an employer demonstrates that he is unable to reasonably accommodate [the individual’s religious needs] without undue hardship on the conduct of the employer’s business.”

4 42 U.S.C. § 2000e-2 (j)

5 42 U.S.C. §§12111 et seq .

6 42 U.S.C. §§12131 et seq .

7 42 U.S.C. §§12181 et seq .

8 42 U.S. C. §12112(b)(5)(A).

9 42 U.S. C. §12112(b)(5)(B).

10 42 U.S.C. §12132.

11 28 C.F.R. §35.150(a).

12 42 U.S.C. §12182(a).

13 42 U.S.C. §12182(b)(2)(A)(i).

14 42 U.S.C. §12182(b)(2)(A)(ii).

15 42 U.S.C. §12182(b)(2)(A)(iii).

16 42 U.S.C. §12182(b)(2)(A)(iv).

17 42 U.S.C §12181(9).

18 42 U.S.C. §12181(9)(A), (B), (C) & (D).

19 29 U.S.C. §§701 et seq .

20 29 U.S.C. §794.

21 45 C.F.R. §84.12(a).

22 42 U. S.C. §12201(a).

23 42 U.S.C. §3602(h)(1) (1988 ed.).

24 29 C.F.R. §1630.3(m).

25 29 C.F.R. §1630.3(n).

26 Id . at 1525. In Transworld Airline, Inc. v. Hardison , 432 U.S. 63 (1977), the Supreme Court held that the employer did not have to violate the union seniority rights of other employees or incur more than a very minimal expense to accommodate an employee’s religious observance. The employer was not required to pay other employees overtime to take the plaintiff’s Saturday shift.

Donald J. Spero is a graduate of the University of Michigan Law School who has practiced labor and employment law for over 30 years, both in private practice and as in-house counsel for Sears, Roebuck and Co. from which he retired as senior employment counsel. He now devotes his time to serving as a mediator and arbitrator. Mr. Spero is board certified in labor and employment law and is a fellow of The College of Labor and Employment Lawyers.
This column is submitted on behalf of the Labor and Employment Law Section, Courtney B. Wilson, chair, and Stuart A. Rosenfeldt, editor.

Labor and Employment Law