The standard of undue hardship

The duty to accommodate is limited to those steps that may be required to accommodate short of undue hardship. The burden of proving undue hardship lies with the person responsible for providing the accommodation. Each option should be examined to decide whether undue hardship will result. In determining whether or not an accommodation measure creates undue hardship, the following factors should be considered:

Cost: This includes the actual, present financial cost of carrying out an accommodation measure, as well as any reasonably foreseeable costs that may arise. The cost to the person responsible for providing the accommodation may include operational costs which may be significant enough to constitute undue hardship.

Health and safety risks: Health and safety risks to the person requesting the accommodation, as well as to other employees and/or the general public, are to be taken into consideration.

The assessment of these factors should be undertaken having regard to the size of the organization and its operations, the nature of its business and its financial capabilities. In no circumstances should discriminatory customer preferences or those of co-workers be considered valid factors when evaluating whether or not an accommodation measure will create undue hardship.

Undue hardship is a relative concept. Accommodation may cause undue hardship to one employer but not to another. It is also possible that a method of accommodation that does not cause undue hardship to an employer now may cause undue hardship in the future. This may happen as circumstances change; for example, the number of employees requesting accommodation may increase significantly. Therefore, it is important to take into consideration all the relevant factors when attempting to determine when the standard of undue hardship is met.