Burdens of Proof of Reasonableness and Undue Hardship Under Titles I, II, and III of the Americans With Disabilities Act, Part II
The previous installment of this article in the January issue of The Florida Bar Journal focused on the specific language in the ADA that governs the allocation of the parties’ burdens of proof in an ADA case in which the plaintiff claims the need for an accommodation. It also discussed some of the cases in which the courts have articulated language to describe those burdens. The current installment deals with the plaintiff’s prima facie burden to show entitlement to an accommodation. It also suggests some guidelines for apportioning the parties’ burdens of proof.
Courts’ Requirements for 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, 2 F.3d 1180 (D.C. Cir. 1995), the plaintiff who was severely diabetic sought an assignment to one of the overseas locations of his employer, the Voice of America (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 v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995), 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:
[W]hile 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 (2d 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.1 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, 116 F.3d 1052 (10th Cir. 1997). 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. Id. 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 10th Circuit was more demanding of the plaintiff in Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I, 264 F.3d 999 (10th Cir. 2001). 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. Id. 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., 108 F.3d 282 (11th Cir. 1997), 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.2 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 Johnson v. Gambrinus Co./Spoetzel Brewery.
The plaintiffs, who were wheelchair 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 wheelchairs 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 noncompliance with the ADAAG guidelines does not conclusively establish a violation of Title III in existing facilities. Id. at 1368.3 It held that deviation from ADAAG standards are a relevant consideration. The standards provide “valuable guidance,” 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 judgment 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 wheelchair seating. Another offered testimony that it would be feasible to add wheelchair 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 plaintiffs had failed to present evidence of accommodations that would be reasonable in the general sense, that is in the run of cases.
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 v. Green, 409 U.S. 792, 802 n.13 (1973), 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.” 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, 122 S. Ct. 992 (2002), and Fed. R. Civ. P. 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, 1083 (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.” 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 US Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002),
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, noncompliant 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 or 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, 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, 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, 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, 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 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, 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 defendant’s 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. q
1 The matter was before the court on the plaintiffs’ appeal of an order granting the defendant’s motion to dismiss their case for failure to state a claim entitling them to relief. It is interesting that the court’s analysis was based on the requirements of a prima facie case of reasonableness. It might have decided the case alternatively with reference to Fed. R. Civ. P. 8(a)(2), which allows minimalist notice pleading. That rule requires a complaint to contain no more than “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Swierkiewicz v. Sorema, 122 S. Ct. 992 (2002), the Supreme Court held that a complaint alleging discrimination in violation of the ADEA and Title VII of the 1964 Civil Rights Act did not have to plead the elements of a McDonnell Douglas prima facie case to withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim. The same reasoning would appear to apply to an ADA action.
2 2 9 C.F.R. §(o)(3) provides that “To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate a formal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”
3 The ADAAG (the ADA Accessibility Guidelines promulgate by the Department of Justice found at 28 C.F.R. ch. 1) provides specifications for compliance with the ADA in a considerable variety of facilities found in public accommodations. Included are requirements for sloping surfaces, restrooms, checkout lines, entrances, elevators, restaurants, curb cuts, railings, water fountains, accessible parking, accessible seating in auditoriums and other places of public entertainment, floor surfaces and pay telephones. This is only a sampling of what is found in the ADAAG.
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. 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.