An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

Courts evaluate safety issues in two ways. Some courts evaluate the risk based on the individual degree of harm posed by retaining the individual with the disability in the position with accommodation. 1581 From this perspective, the court compares the employee’s history of successfully completing the essential functions of a position in spite of the impairment, and the employee’s unique and specific skills, with the magnitude and imminence of the risk that the employer fears. Other courts validate the use of the safety defense with statistical data having nothing to do with the employee’s individual abilities and work history. They use this information to legitimize the employer’s safety concern. For example, courts have recognized a safety concern and have applied this defense in FEHA cases concerning obese employees seeking employment: 1) as a fire department ambulance driver; 1582 and 2) as a fire department paramedic. 1583 In both cases, the courts looked at statistical data indicating that obesity compromised the individual’s ability to perform necessary functions. 1584

5. U NDUE H ARDSHIP D EFENSE – ADA/FEHA a. The ADA

Undue hardship is an ADA defense to the obligation to reasonably accommodate a qualified individual with a disability. No accommodation is required if it will impose an undue hardship on the employer. 1585 “Undue hardship” is any action requiring significant difficulty or expense measured under the following factors:  Nature and cost of the accommodation needed;

 Overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; and the effect on expense and resources, or the impact of such accommodation upon the operation of the facility;  The overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; and the number, type and location of its facilities;  The type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity; and the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity;  The terms of the collective bargaining agreement (for unionized employees), if applicable and relevant;  Whether the work site involved is a temporary or permanent one, and whether the accommodation would require violation of the employer’s civil service rules. 1586

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 356