A CALL FOR CLARIFICATION: 

ACHIEVING A UNIFORM PROOF STRUCTURE IN

REASONABLE ACCOMMODATION CASES UNDER THE AMERICANS WITH DISABILITIES ACT

Gregory Scolieri*

Matthew H. Woodard**  

           This article was reprinted with the permission of the Hofstra Labor & Employment Law Journal.  This article should be cited as follows:  Gregory Scolieri & Matthew H. Woodard, A Call for Clarification: Achieving a Uniform Proof Structure in Reasonable Accommodation Cases under the Americans with Disabilities Act, 20 Hofstra Lab. & Emp. L.J. 117 (2002).

           The information below is provided for informational purposes and does not constitute legal advice and/or the current status of the law.  Do not act or rely upon the information contained within this web-site and/or web-page.  The facts and circumstances of your life, issue, situation and/ or case will determine the advice an attorney will give to you.  Seek the advice of a lawyer in your area. 

I. Introduction

II. Interpreting the ADA's Ambiguous Standards  

III. Silence in the ADA Breeds Confusion Amongst the Courts: Reasonable Accommodation Law Pre-Barnett  

 

A. Shifting Burdens  

1. Shifting Burdens of Production

2. Shifting Burdens of Persuasion

B. Traditional Burdens of Proof  

 

C. Burden-shifting and Traditional Burdens, Depending Upon the Type of Evidence Available  

 

D. Pre-Barnett Circuit Court Summary and Argument  

IV. The Authority of the EEOC and it's Interpretations of Reasonable Accommodation and Undue Hardship  

A. The Pre-Barnett Era and Reed v. LePage Bakeries, Inc.: The EEOC Voices its Interpretation of Burden Allocation Under the ADA  

 

B. Giving Deference to the EEOC's Guidance  

 

C. Support for the EEOC's Interpretation of the ADA  

V. Clarifying the ADA Through Analogy to Title VII  

VI. Conclusion

I. Introduction

Congress drafted the Americans with Disabilities Act ("ADA")[1] with the noble goal of proscribing discrimination against disabled individuals.[2] Nevertheless, as critics have pointed out, the majority of plaintiffs have been frustrated in their efforts to prove that they should be entitled to relief for the discrimination they have allegedly suffered.[3]  In particular, employees have had very little success litigating claims seeking a reasonable accommodation for their disability that would enable them to perform the essential functions of their job.[4]

           Significant factors contributing to the vastly pro-defendant outcomes in reasonable accommodation cases arise from the well-recognized ambiguities embodied in the ADA.[5]  Specifically, one prominent ambiguity is the failure to provide a clear proof structure. Under the ADA, an employer unlawfully discriminates where it fails to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . ." [6]  This language ostensibly requires employees simply to prove that they were not afforded a reasonable accommodation for their disability, while requiring employers to demonstrate that the proposed accommodation would impose an undue hardship under the circumstances.[7]  While the ADA attempts to define the terms reasonable accommodation[8]  and undue hardship, [9]  the statute is silent as to the precise manner in which they should be allocated and proved at various points in the litigation process. Additionally, the ADA fails to quantify the amount of proof required to carry each burden and fails to define demonstrate altogether.[10] 

           Despite how minor these omissions may seem, they have been a source of significant confusion. Consequently, the allocation and quantum of burdens of proof in reasonable accommodation cases has naturally resulted in varying interpretations amongst the courts. [11]  Attempting to resolve this quandary, the Equal Employment Opportunity Commission ("EEOC")[12]  has interpreted the statute with respect to reasonable accommodations in a manner that logically allocates the relevant burdens of proof amongst the parties. [13]  The EEOC's interpretations of the problematic proof structure and the term reasonable accommodation have been viewed by the courts as too pro-plaintiff and against the plain meaning of the statute. As a result, the EEOC has not been given deference. [14]  Instead, the courts adopted their own proof structures, leaving the ADA's application at odds on a national level. [15]  For example, one approach shifts either the burden of production or persuasion between the parties. [16]  Another approach utilizes what are herein referred to as "traditional burdens of proof."[17]  The variations in the proof structures utilized by the courts exhibit the inconsistent application of the ADA.

           Further complicating the matter is the Supreme Court's five-to-four decision in US Airways, Inc. v. Barnett. [18]  In Barnett, the Court defined a meritless reasonable accommodation claim as one that is neither facially reasonable, nor reasonable in the "run of cases." [19]  This vague standard has left lower courts with little guidance. Although the Barnett proof structure is aimed at dismissing meritless claims, courts are now confronted with the new problem of interpreting what constitutes facially reasonable or reasonable in the run of cases. [20]  If pre-Barnett precedent continues to be relied upon, that which is considered facially reasonable or reasonable in the run of cases in one circuit may not be deemed reasonable in another.

           As a federal statute, the ADA should be uniformly applied throughout the country. Therefore, the allocation and quantum of burdens of proof in reasonable accommodation cases should be consistently applied.[21]  To achieve uniform interpretation of similar statutory language, the Supreme Court is willing to overturn its own decisions "to correct a seriously erroneous interpretation of statutory language that would undermine congressional policy as expressed in other legislation." [22]  Accordingly, the word "demonstrate"[23]  as it appears in the ADA should be construed uniformly with the definition of the word "demonstrate" as it appears in Title VII. [24]  Such an interpretation suggests that employers would bear the burdens of production and persuasion to show the unreasonableness of the proposed accommodation(s). This simple inferential step would help resolve the disparity in interpretation amongst the courts, promoting an environment in employment discrimination law that is more conducive towards achieving equal treatment for disabled workers. As it stands, the Supreme Court is unlikely to overturn the Barnett decision because it is not a seriously erroneous interpretation of the ADA. Therefore, this note calls upon Congress to clarify the proof structure in reasonable accommodation cases under the ADA.

           This note analyzes the issue of allocating and quantifying burdens of proof in reasonable accommodation cases under the ADA. The approaches articulated by the courts, as well as the EEOC, are questioned based upon the theory that parties litigating such cases should bear burdens of proof that are uniform in the manner in which they are allocated and in the quantum of proof required to satisfy the burden imposed. Part II identifies and explains the ambiguous provisions of the ADA that give rise to this burden of proof quandary. Part III illustrates the various judicial interpretations of the ADA's ambiguous language and argues for an equitable interpretation of the ADA. Part IV considers the EEOC's interpretations of the ADA and the lack of judicial deference to the agency's views on this matter. Part V proposes a means of resolving the issue by analogizing it to Title VII's modification by the Civil Rights Act of 1991.  

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II. Interpreting the ADA's Ambiguous Standards

           Congress enacted the ADA to provide "clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities."[25]  The ADA was drafted broadly so as to reach a multitude of disability discrimination cases, [26]  and it was passed with considerable bipartisan support. [27]  In the employment context, the ADA prohibits discrimination against a qualified individual with a disability in all employment practices, including "job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." [28]  The ADA defines "discrimination" as:
(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant . . . .[29] 

           Thus, an employer must reasonably accommodate a qualified employee with a disability unless the employer can prove that doing so would cause an undue hardship on the operation of its business.

           On their face, the foregoing provisions might seem logical and simple to implement. However, a closer reading reveals a complicated issue of statutory interpretation: courts must somehow reconcile the term reasonable as modifying the term accomodation even though the unreasonableness of a proporsed accomodation is, in itself, the essence of proving an undue hardship. In Barnett, [30]  the Supreme Court tried to resolve this quandary by defining a reasonable accomodation as one which "seems reasonable on its face, i.e., ordinarily or in the run of cases." [31]  Such circular reasoning perpetuates the ADA's ambiguity. Although the Barnett language might diminish frivolous and meritless claims by giving judges broad discretion, it may also cause employees to request only traditionally accepted accomodations as opposed to other viable alternatives.

           Interpreting legislative ambiguities is the function of the judiciary and the duly delegated administrative agencies. [32]  Thus, the ambiguities and gaps found within the ADA should be resolved by the courts and the relevant agencies. [33]   As one commentator has pointed out:

Courts, in response to initial concerns that too many people with minor conditions were qualifying as disabled, have been ratcheting up the prima facie standard for plaintiffs in order to weed out the allegedly undeserving. However, in their efforts to eradicate frivolous lawsuits, courts have effectively steered the analytical focus away from the ADA's original aim of aiding disadvantaged individuals' integration into the job market. As a consequence, what was once touted as "the most comprehensive civil rights legislation passed by Congress since the 1964 Civil Rights Act," has become increasingly narrowed to the point where it is in danger of becoming ineffective. [34]  

            To that end, one disability group has argued that the ADA's reach and effectiveness has been so limited by the courts that employees must rely on state discrimination laws for protection. [35]  

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III. Silence in the ADA Breeds Confusion Amongst the Courts: Reasonable

Accommodation Law Pre-Barnett

           The ADA has rightfully come under fire because of its ambiguous standards.[36]  Although the statute attempts to define both reasonable accommodation[37]  and undue hardship[38]  by giving practical examples and listing factors to be considered, the statute is not clear as to their limits and relation to each other.[39]  In addition, the statute is unclear as to precisely what proof structure should be used to apply these vague standards.[40]  Absent a clear standard, circuit courts have developed and implemented different methods of burden allocation on their own, in many cases borrowing standards from analogous statutes such as Title VII[41]  and the Rehabilitation Act.[42] 

           The Supreme Court first attempted to resolve the issue of burden allocation in reasonable accommodation cases in Barnett. [43]  The Court only considered approaches taken by the First,[44]  Second[45]  and District of Columbia[46]   Circuit Courts of Appeals without accounting for the existence of alternative approaches.[47]  In fact, the Court is of the opinion that the only significant difference between the circuit courts' various approaches is the language used to employ them, because "their results are functionally similar."[48]  This is a questionable position to take given that the Court fails to examine even one outcome in light of the differing approaches. Moreover, the proof structure for reasonable accommodation cases set by the majority is vague in itself, lending little clarity to an already complex and confusing issue of statutory interpretation.[49] 

 
           The two basic models of burden allocation created pre-Barnett are shifting burdens of proof[50]   and traditional burdens of proof. [51]  In the traditional burdens model, the plaintiff must plead the requisite elements of a prima facie case, and, having succeeded, the defendant then has the opportunity to refute any of those elements or plead an affirmative defense. [52]  In contrast, in the burden-shifting model, there are shifting burdens of production[53]   and shifting burdens of persuasion. [54]   While each of these models has its own advantages and disadvantages, the different standards imposed on plaintiffs in reasonable accommodation claims indicates that the ADA is not being implemented consistently with its aims. [55] 

 
           Furthermore, the creation of different standards and proof structures has had adverse effects on employees bringing such claims. Notably, an empirical study conducted over a six-year period after the statute was enacted shows that employers overwhelmingly prevailed in employment discrimination cases at the appellate as well as the trial court level. [56]  Congress could not have intended this result in drafting the ADA. [57]  Rather, the ADA was enacted to be a "comprehensive national mandate"[58]   invoking the "sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." [59] 

 
           The following examines the two general methods of burden allocation created by the circuit courts pre-Barnett, and argues that employees should not be forced to prove the unreasonableness of a proposed accommodation.

A. Shifting Burdens

           The first general approach to burden allocation pre-Barnett involves shifting either the burden of production or persuasion between the parties. The employee must carry the initial burden of proof; if the employee is successful, the burden then shifts to the employer. Depending upon which party bears the ultimate burden of persuasion, the burden might then shift back to the employee.

           "The burden-shifting model was introduced into employment law in order to allow indirect proof of the often elusive 'intent' to discriminate." [60]  In McDonnell Douglas Corp. v. Green, [61]   the Supreme Court set the standard for burden allocation in discrimination claims under Title VII. [62]   Several circuit courts adopted the burden-shifting approach for reasonable accommodation claims under the ADA, including the Second,[63]  Third,[64]  Eighth[65]  and Tenth[66]   circuits.

1. Shifting Burdens of Production

           In Fjellestad v. Pizza Hut of America, Inc., [67]  the Eighth Circuit adopted a method of burden allocation that shifts the burden of production between the parties, while imposing the ultimate burden of persuasion on the employee. [68]  Specifically, the court required the employee to make "a facial showing that reasonable accommodation is possible[,]" then shifted the burden of production to the employer to show either that it is "unable to accommodate" the employee or that the employee could not perform the essential functions of the job even with a reasonable accommodation. [69]  Then the burden shifts back to the employee to rebut the employer's evidence with proof of the employee's individual capabilities. [70]  Proving one's individual ability to perform the job with an accommodation is a critical step in the process of litigating reasonable accommodation claims. It is noteworthy that other circuits did not expressly provide for such an inquiry.

           In White v. York International Corp., [71]   the Tenth Circuit also adopted a burden-shifting model similar to that taken in Fjellestad. [72]  The similarity lies in that the burden of production shifts once the employee's burden is carried, yet the employee retains the ultimate burden of persuasion. [73]   In the court's opinion, the employee's burden only requires a "facial showing that accommodation is possible," whereupon the burden shifts to the employer. [74]  This proof structure favors employees in that it does not force them to prove the unreasonableness of the accommodation in their initial burden. Instead, it is the employer who must conduct the unreasonableness part of the inquiry by showing its inability to accommodate the employee. [75]  In contrast, the Eighth Circuit requires the employee to address the element of unreasonableness in making a facial showing that a reasonable accommodation is possible in the initial burden. [76]  Thus, the Eighth Circuit's standard clearly makes it harder than that of the Tenth Circuit for employees to win reasonable accommodation claims under the ADA.

           To further a more equitable allocation of the burdens, courts should recognize that employees generally do not have access to the employer's records or knowledge of the employer's ability to finance a proposed accommodation. [77]  Without this information, an employee may not know the reasonableness of a proposed accommodation, therefore, it would be unduly burdensome to expect the employee to prove it at trial. For this reason, the Tenth Circuit's proof structure gives employees a more equitable opportunity to bring reasonable accommodation claims, whereas other proof structures create more obstacles for employees.

2. Shifting Burdens of Persuasion

           In an alternative interpretation of the ADA's allocation of burdens of proof pre-Barnett, the Second and Third Circuits were unique in holding that the proof structure in reasonable accommodation cases involves a shifting burden of persuasion. In Borkowski v. Valley Central School District, [78]  the Second Circuit employed a shifting burden of persuasion for the first time in a case involving the Rehabilitation Act. [79]  The employee's burden involved showing the existence of an effective accommodation that would qualify her for the position, and then "identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits." [80]  At this point, the burden of persuasion shifted to the employer to attack the "reasonableness of the proposed accommodation . . . in making out an affirmative defense of undue hardship" by way of a "common-sense balancing of the costs and benefits in light of the factors listed in the regulations . . . ." [81] 

           Subsequently, the Second Circuit expressly applied this standard to reasonable accommodation cases under the ADA in Jackan v. New York State Department of Labor. [82]  The court also clarified its earlier ruling in Borkowski, [83]  stating that the employee bears both the burden of production and of persuasion in proving the existence of an accommodation, and bears a burden of production in proving that the accommodation is reasonable. [84]  If the employee succeeds, the burden of persuasion shifts to the employer to prove the accommodation is unreasonable. [85]  Thus, like the Eighth Circuit's decision in Fjellestad, [86]  the Second Circuit also forced the employee to make a showing of the unreasonableness of the proposed accommodation. [87] 

 
           Unfortunately for Mr. Jackan and similarly situated employees, many circuit courts (and now the Supreme Court) [88]  agree with this restriction on employees' ability to recover. Another among them is the Third Circuit. In Walton v. Mental Health Association, [89]  the Third Circuit expressly followed the Second Circuit's decision in Borkowski, stating that an employee bears a burden of persuasion to show an effective accommodation exists that will enable the employee to perform the job's essential functions. [90]  The employee also bears a burden of production in identifying a reasonable accommodation whose costs do not exceed its benefits. [91]   Satisfaction of these burdens by the employee shifts the burden of persuasion to the employer to prove that the proposed accommodation is unreasonable or that it would create an undue hardship. [92] 

B. Traditional Burdens of Proof

           The second general approach to burden allocation in reasonable accommodation cases pre-Barnett is a more traditional approach in civil litigation. Instead of shifting burdens between the parties, the employee must simply plead the elements of a prima facie case of disability discrimination to the satisfaction of the trier of fact. The employer then has the opportunity to rebut any element(s) of the employee's prima facie case, or to plead an affirmative defense. In the event the employer pleads an affirmative defense, the employer bears the burden of satisfying the defense's own unique set of elements or factors to be considered. If the employer does not meet this burden, the defense is lost. The foregoing describes what this note refers to as traditional burdens of proof.

           Several courts adopted the traditional burden of proof method Pre-Barnett, including the First, [93]  Fifth, [94]  Seventh, [95]  Ninth, [96]  Eleventh[97]   and District of Columbia[98]   circuits. Most of the courts follow the same method with slight variation in the quantum of proof required to carry a party's burden.

           In Reed v. LePage Bakeries, Inc., [99]   the First Circuit rejected the burden-shifting method for reasonable accommodation cases, opting for traditional burdens of proof instead. [100]  The court required the employee to show "not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for the employer under the circumstances." [101]  If the employee carries this burden, it is then up to the employer to show that "the proposed accommodation is not as feasible as it appears but rather that there are further costs to be considered, certain devils in the details." [102] 

 
           The significance of the First Circuit's proof structure is that it explicitly requires the employee to prove the feasibility of a proposed accommodation. This is more than the Tenth Circuit requires, and is thus more difficult for an employee to meet. [103]  When contrasted with the burden-shifting models already discussed, it also clearly indicates that all approaches to burden allocation are not functionally the same. [104] 

           In Barth v. Gelb, [105]   the District of Columbia Circuit rejected the application of the burden-shifting framework for reasonable accommodation cases brought under the Rehabilitation Act.[106]  The court required the employee to establish that: "(a) he is handicapped but, (b) with reasonable accommodation (which he must describe), he is (c) able to perform the essential functions of the position he holds or seeks." [107]   If the employee satisfies this burden, the employer then has the opportunity to rebut the evidence. [108]   The employer may plead the affirmative defense of undue hardship, but it must bear the burden of proof. [109]   The District of Columbia Circuit later applied Barth's traditional burdens of proof method to reasonable accommodation cases under the ADA in Aka v. Washington Hospital Center. [110]   

           In Riel v. Electronic Data Systems Corp., [111]  the Fifth Circuit assigned traditional burdens of proof to parties litigating reasonable accommodation claims under the ADA, stating "[t]he employee must show that the employer failed to implement a reasonable accommodation, and the employer may defend by showing business necessity or undue burden." [112]   The court followed the Barth opinion in requiring that the proposed accommodation be reasonable "in the run of cases," and that the undue hardship analysis is focused on the burden imposed by the employee's preferred accommodation in light of the employer's particular business. [113] 

 
           The Ninth Circuit also opted for traditional burdens of proof pre-Barnett as seen in Braunling v. Countrywide Home Loans, Inc. [114]  The court required employees to make a prima facie showing that a reasonable accommodation was possible. [115]   The employer then had to show that the proposed accommodation would impose an undue hardship on the running of the business. [116]   The court ultimately affirmed summary judgment for the employer, reasoning that evidence of poor performance unrelated to the employee's disability were adequate grounds for her termination. [117] 

           In Willis v. Conopco, Inc., [118]   the Eleventh Circuit also adopted Barth's traditional burdens of proof approach for reasonable accommodation cases. [119]   The court iterated a proof structure in which the employee must describe the particular accommodation that would enable him to perform the essential functions of the job. [120]   Once the employee has done this, "it would then be up to the employ[er] . . . to refute that evidence." [121]   As seen in the other models, the employee retains the ultimate burden of persuasion. [122] 

 
           The foregoing cases discussing the allocation of traditional burdens of proof illustrate the split amongst the federal circuit courts over burden allocation pre-Barnett. Some courts utilized a burden-shifting method while others employed traditional burdens of proof. Although they utilized differing proof structures, the First, Second, Third, Fifth, Eighth, Ninth, Eleventh and District of Columbia circuits required the employee to make a showing of the unreasonableness of the proposed accommodation. On the other hand, the Tenth Circuit did not impose this obligation.

           In Vande Zande v. Wisconsin Department of Administration, [123]   the Seventh Circuit interpreted the ADA to assign traditional burdens of proof as well. [124]   The court held that:

[t]he employee must show that the accommodation is reasonable in the sense both of efficacious and of 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 either to the benefits of the accommodation or to the employer's financial survival or health. [125]   Thus, the Seventh Circuit imposed upon employees the burden of showing not only the effectiveness of the proposed accommodation, but also the proportionality of its cost to the employer.

           Expecting an employee to know the employer's ability to finance either the proposed accommodation or other available alternatives is too demanding an imposition. Employees should not be expected to weigh any proposed accommodation against alternatives an employee may not be aware of. While employees are in a better position to assess which among the possible accommodations would be most effective, it is the employer who knows best its ability to finance the "range of possible positions and can more easily perform analyses regarding the 'essential functions' of each . . . ." [126]   Therefore, from a practical view, the burden of showing unreasonableness rests more equitably with the employer. [127]

  

C. Burden-shifting and Traditional Burdens, Depending Upon the Type of Evidence Available

           Uniquely, the Sixth Circuit adopted both methods of burden allocation; the method applied depends on whether the employee has either direct or circumstantial evidence of the employer's discrimination. In Monette v. Electronic Data Systems Corp., [128]   the Sixth Circuit clearly laid out distinct standards for both scenarios. [129]   Traditional burdens of proof were assigned where the employee had direct evidence and the employer admitted discrimination:

1) The plaintiff bears the burden of establishing that he or she is "disabled."
2) The plaintiff bears the burden of establishing that he or she is "otherwise qualified" for the position despite his or her disability:
a) without accommodation from the employer; b) with an alleged "essential" job requirement eliminated; or c) with a proposed reasonable accommodation.
3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer. [130]  

           In contrast, the court assigned the burden-shifting method to cases in which the employee has only circumstantial proof of the employer's discrimination:

[T]he plaintiff may establish a prima facie case of discrimination by showing that: 1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced. The defendant must then offer a legitimate explanation for its action. If the defendant satisfies this burden of production, the plaintiff must introduce evidence showing that the proffered explanation is pretextual. Under this scheme, the plaintiff retains the ultimate burden of persuasion at all times. [131] 

 
           Thus, the Sixth Circuit uniquely utilizes both traditional and shifting burdens of proof in reasonable accommodation cases. The factor determining which model should be used depends upon the strength of the employee's evidence of discrimination.[132]  

D. Pre-Barnett Circuit Court Summary and Argument

           The foregoing illustrates the different approaches taken by the Circuit Courts of Appeals with regard to allocating burdens of proof in reasonable accommodation cases under the ADA pre-Barnett. The Second, Third, Eighth and Tenth Circuits utilized shifting burdens, whereas the First, Fifth, Seventh, Ninth, Eleventh and District of Columbia Circuits utilized traditional burdens of proof. The Sixth Circuit actually used both, depending upon whether the employee has direct or circumstantial evidence of discrimination.

           The Tenth Circuit's standard is the most favorable to employees, since it does not require an employee to show the unreasonableness of a proposed accommodation. Conversely, the Seventh Circuit's standard is the most burdensome, since it requires employees to show not only the proposed accommodation's effectiveness, but also its proportionality to cost. The remaining circuits also force employees to make a showing of the unreasonableness of the proposed accommodation, but require less proof of employees than the Seventh Circuit. Notably, the EEOC's position has not been adopted in any circuit although administrative guidance should be regarded as carrying the force of law, or should at least merit some deference. The next section illustrates how judicial deference to the EEOC's views would create a uniform proof structure. However, it will also illustrate an inherent flaw in the EEOC's interpretation of what constitutes a reasonable accommodation.

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IV. The Authority of the EEOC and it's Interpretations of Reasonable

Accommodation and Undue Hardship

           When Congress enacted the ADA, it delegated varying degrees of authority to administrative agencies in regard to the different titles of the statute. [133]  The EEOC, [134]   established by the Civil Rights Act of 1964, [135]   was given the authority to issue regulations and to administer, interpret and enforce Title I of the ADA. [136]   Following Congress' mandate, on July 26, 1991, the EEOC published final rules ("regulations")[137]   to enforce the ADA, which contained an appendix entitled, Interpretive Guidance on Title I of the Americans with Disabilities Act ("Interpretative Guidance").[138]  The EEOC further discussed its interpretation of Title I in an amicus curiae brief on behalf of the plaintiff-employee in Reed v. LePage Bakeries, Inc. [139]  Under administrative law, the EEOC's regulations regarding Title I of the Act should carry the force of law. [140]   At a minimum, the Interpretive Guidance merits some deference. [141] 

 
           Courts have not deferred to the EEOC regulations and guidance for various reasons: (1) the agency's perceived pro-employee bias; [142]   (2) the EEOC regulations regarding reasonable accommodations and undue hardship are beyond the scope of the agency's authority; [143]   and (3) the EEOC's regulations are impermissible constructions of the ADA. [144]   The lack of deference to the EEOC's interpretations of the ADA weakens the agency's power and authoritative force. Deference to the EEOC regulations and guidance would create a uniform application of the ADA. In addition, parties to litigation and practitioners would be able to rely confidently upon the EEOC's well informed views. However, the EEOC's views, at least as advocated in Reed and Barnett, were inherently flawed. This section will attempt to establish the extent of the EEOC's authority in relation to Title I of the ADA.

A. The Pre-Barnett Era and Reed v. LePage Bakeries, Inc.: The EEOC Voices its Interpretation of Burden Allocation Under the ADA

           As the ADA conveys, an employer's legal obligation to provide reasonable accommodations is limited to the extent to which an accommodation would cause an employer undue hardship. [145]   According to the EEOC's regulations and Interpretive Guidance, methods of reasonable accommodation that a qualified individual is afforded under the ADA can be catagorized into three groups: (1) changes to the job application process; (2) changes to the work environment, or to the way a job is usually performed; and (3) changes that enable an employee with a disability to enjoy equal benefits and privileges of employment (such as access to training). [146]

  
           Regrettably, reasonable accommodation is not specifically defined under the ADA; rather, the statute only offers examples of what a reasonable accommodation may include. [147]   The ADA states that a reasonable accommodation may include:
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modifications of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. [148]  As a result, the interpretation of reasonable accommodation is left to agency or judicial interpretations.
          

           The EEOC regulations used the same language in its interpretation of what a reasonable accommodation may include. [149]   But according to the EEOC, reasonable accommodation also means:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. [150]   

           The foregoing provisions essentially illustrate methods of accommodations that are deemed reasonable by the EEOC. [151]   The EEOC's Interpretative Guidance further clarified the agency's view of what is reasonable by stating that:

if an adjustment or modification is job-related, e.g., specifically assists the individual in performing the duties of a particular job, it will be considered a type of reasonable accommodation. On the other hand, if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required to provide. [152] 

           Read together, the EEOC's regulations and Interpretive Guidance define a reasonable accommodation as one that is both job-related and effective. However, this approach was not advocated in Reed. [153]   In Reed, the EEOC advocated that reasonable accommodation in the employment context only refers to whether a proposed accommodation enables an employee to effectively perform the job. [154]   In Barnett, the Supreme Court only considered the EEOC's regulations, and failed to consider the effect that reading the regulations together with the Interpretive Guidance would have on formulating a proof structure. [155]   Reading the regulations and the Interpretive Guidance together would arguably foster an equitable and logical proof structure. [156]   
The EEOC regulations also expanded upon the ADA's definition of undue hardship. [157]   Notably, the history of the EEOC's regulations points out that the agency purposefully "deleted the reference to undue hardship from the definition of reasonable accommodation" which is "a technical change reflecting that undue hardship is a defense to, rather than an aspect of, reasonable accommodation." [158]  The EEOC regulations state that undue hardship with respect to providing accommodations means "significant difficulty or expense incurred by a covered entity"[159]   in light of several factors, which include:

(i) The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
(ii) The 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 expenses and resources;
(iii) 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;
(iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business. [160]   

           Thus, the EEOC advocates the term undue hardship as referring to the influence a proposed accommodation can have on the employer in light of factors such as a business' size, financial resources and the nature and structure of its operation. [161]   

           In the EEOC's amicus brief in Reed, [162]   the agency contended that the district court imposed an unduly heavy burden on the plaintiff and urged the court to clarify the ADA's standards by finding that "an ADA plaintiff bears the burden of establishing that a proposed accommodation would be effective; to avoid liability, the employer must then show that it has offered an effective accommodation or that such accommodation would cause an undue hardship." [163]  Ultimately, the EEOC views the burden of proving the unreasonableness of proposed accommodations as falling upon the employer. [164]  The reasoning for the EEOC's conclusion is that employees can better determine what accommodation will work best for them, so they should have the burden of proving an effective accommodation exists. [165]   In addition, since an employer has greater access to information about whether a particular accommodation will cause an undue hardship, the employer should have the burden of proving it in litigation, as opposed to the employee proving its absence. [166] 

           The First Circuit rejected the EEOC's position, [167]   and the Supreme Court impliedly rejected it in Barnett. [168]   As the Supreme Court pointed out, the EEOC's proof structure is flawed in two respects. First, "in ordinary English the word 'reasonable' does not mean 'effective.' It is the word 'accommodation,' not the word 'reasonable,' that conveys the need for effectiveness." [169]   Second, "a demand for an effective accommodation could prove unreasonable because of its impact, not on business operations, but on fellow employees . . . ." [170]   Significantly, there is no indication in the Barnett opinion that the Court considered reading the EEOC's regulations together with its Interpretive Guidance to formulate that a reasonable accommodation is one that is both job-related and effective. Such a reading would negate the Court's analysis that the EEOC's views are impermissible constructions of the ADA.

B. Giving Deference to the EEOC's Guidance

           It is settled law that "the well-reasoned views of the agencies implementing a statute 'constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance . . . ."'[171]   However, the courts' failure to defer to the EEOC on numerous occasions has put the agency's authority in doubt. The following discussion will illustrate when the courts are bound to an agency's interpretation of a statute[172]  by analyzing Skidmore v. Swift & Co., [173]   Chevron U.S.A. Inc. v. Natural Resources Defense Council[174]   and United States v. Mead Corp. [175]  A review of these cases will show that the EEOC's views should be afforded more weight in reasonable accommodation cases as a matter of law.

           In Mead, the Supreme Court affirmed Skidmore in holding that "an agency's interpretation may merit some deference whatever its form, given the 'specialized experience and broader investigations and information' available to the agency . . . ." [176]   Thus, under Mead and Skidmore, the EEOC's Interpretive Guidance and amicus curiae brief in Reed should be persuasive to a court trying to settle the terms reasonable accommodation and undue hardship. [177]  

 
           Conversely, "administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." [178]   In Chevron, the Supreme Court established a two-pronged test for judicial interpretation of an agency's statutory regulations. [179]   First, a court must determine if "Congress has directly spoken to the precise question at issue." [180]   If so, an administrative agency's guidance will not be given Chevron deference. [181]   When Congress has not addressed the precise question at issue and an administrative agency has the authority to regulate the statute, courts must defer to an agency's interpretation of the statute if it is "based on a permissible construction of the statute." [182]   Therefore, unless the EEOC's regulations in regard to reasonable accommodation or undue hardship are "arbitrary, capricious, or manifestly contrary to the statute[,]" a reviewing court must defer to the EEOC's interpretation. [183] 
In Barnett, the Supreme Court impliedly found the EEOC's regulations to be an impermissible construction of the ADA without performing formal Chevron or Skidmore analyses. [184]   However, if the Court read the EEOC's regulations together with what should have been considered persuasive Interpretive Guidance, the Court may have concluded that both the job-relatedness and effectiveness requirements in one proof structure would constitute a permissible construction of the ADA.

C. Support for the EEOC's Interpretation of the ADA

           The ADA's express language and the notion that employees should not be forced to prove the unreasonableness of proposed accommodations support the conclusion that the EEOC's view of what constitutes a reasonable accommodation and an undue hardship are permissible constructions of the ADA.

           First, the burden of proving undue hardship is essentially a burden of proving the unreasonableness of a proposed accommodation, which the ADA has squarely placed on the employer. The ADA clearly states that a punishable form of disability discrimination is "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . ." [185]   This language plainly requires the employer (covered entity) to carry its burden of proof (demonstrate) that the employee's proposed accommodation would be unreasonable in terms of expense or impact (impose an undue hardship) on the operation of its business. Thus, proving the existence of a job-related, effective accommodation is a burden analytically distinct from arguing that it is unreasonable under the circumstances. Since undue hardship and reasonable accommodation are not mirror images, the reasonableness prong of the employee's case must mean something other than proving economic hardship caused by a proposed accommodation. As the EEOC's Interpretive Guidance suggests, reasonableness is thus satisfied by an employee showing that the accommodation sought is job-related in the context of employment situations under Title I. In other words, the accommodation sought cannot be "primarily for the personal benefit of the individual with a disability." [186]  It is not the employer's duty to fully reconcile the employee's disability. "Accordingly, an employer would generally not be required to provide an employee with a disability with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer have to provide as an accommodation any amenity or convenience that is not job-related . . . ." [187] 

           Next, the EEOC's regulations require the interactive process to be initiated and pursued by the employer. [188]   It is clear from the EEOC's regulations that it is the employer who must oversee this informal process aimed at "identify[ing] the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." [189]  The employee must identify his disability and the employer must determine how to reasonably accommodate it. "Almost all of the circuits to rule on the question have held that an employer has a mandatory obligation to engage in the interactive process and that this obligation is triggered either by the employee's request for accommodation or by the employer's recognition of the need for accommodation." [190]   Therefore, employees should not be forced to prove the unreasonableness of the accommodation if litigation becomes necessary, because the employer should have realized the financial effects of the proposed accommodation during the interactive process.

           Finally, common sense also dictates that employees should not be required to prove the unreasonableness of proposed accommodations. It is employers who know what they can afford, not employees. An employee should not be expected to take its employer's ability to finance a proposed accommodation into account. Furthermore, employers know the range of positions available to a disabled employee or applicant and know what job functions are essential. Armed with this information, financial and other related business records, it is the employer who knows best the unreasonableness of proposed or alternative accommodations. Consequently, employees claiming discrimination for the failure to reasonably accommodate their disability should not be required to make a showing of its unreasonableness.

           The significance of this issue of statutory interpretation is that an employer's obligation to provide reasonable accommodations to qualified individuals is integrally affected by the ADA's attempt to define the terms reasonable accommodation and undue hardship. It is the EEOC's place to reconcile these ambiguities in the ADA. If courts are unwilling to afford Chevron deference, the EEOC's regulations and Interpretative Guidance should at least be regarded as persuasive authority. [191]  If the EEOC's interpretations of the ADA were given deference, a uniform approach to burden allocation would result, and practitioners and parties to litigation would have a clear and consistent source of guidance.

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V. Clarifying the ADA Through Analogy to Title VII

           Title VII of the Civil Rights Act of 1964 [192] prohibits employment practices that discriminate on the basis of race, color, religion, sex or national origin. [193]   As a respected predecessor, Title VII's caveat to employers has been significant and influential enough to help form the foundation of the ADA's prohibition of disability discrimination, as well as court interpretations of the ADA's proof structure.[194]   

           Much like the ADA, Title VII's ambiguity produced uncertainty regarding the proper allocation of burdens of proof in discrimination claims. In Title VII's case, this was due to the statute's failure to identify proof structures that distinguish between direct and circumstantial evidence. [195]   Attempting to resolve this dilemma, the Supreme Court rendered landmark decisions in McDonnell Douglas Corp. v. Green[196]   and Price Waterhouse v. Hopkins, [197]   which set forth proof structures in disparate treatment cases depending upon the strength of the employee's evidence of discrimination.[198] 

           However, several of the Supreme Court's employment law decisions would soon come under scrutiny and be altered by Congress with the passage of the Civil Rights Act of 1991 ("1991 Act"). [199]   In particular, the 1991 Act made several important modifications to both Title VII and the Price Waterhouse proof structure.

           First, section 703(m) of the 1991 Act clearly specified that a complaining party need only demonstrate that race, color, religion, sex or national origin was a motivating factor in the employment practice. [200]  This language adopts the plurality's view in Price Waterhouse but changed the ultimate holding in that it was no longer required that the immutable characteristic be a substantial motivating factor. [201] 

           Second, section 706(g)(2)(B) of the 1991 Act clearly specified the available remedies when a claimant proves a violation of section 703(m) and the defendant demonstrates that it "would have taken the same action in the absence of the impermissible motivating factor." [202]  With this language, Congress illustrated the correct framework in direct evidence cases.

           Finally, section 701(m) of the 1991 Act specifically defined the word demonstrate to mean "meets the burdens of production and persuasion." [203]   The purpose of this addition to Title VII was clearly to dispel any confusion regarding the weight of the parties' respective burdens of proof. Read together with the foregoing two provisions, it is evident that the proof structure Congress sought to promulgate for direct evidence cases involves a shifting burden of persuasion. [204]   Congress implemented these provisions to clarify an ambiguity in Title VII that the Supreme Court misinterpreted. [205] 

 
           The current predicament involving the proof structure in reasonable accommodation cases under the ADA is similar to that which Title VII endured. Like it did with Title VII, Congress should intervene and amend the ADA to specify precisely what proof structure should govern disability discrimination, and expressly define the weight of the parties' respective burdens. Several factors support such action.

           First, the very purposes of the ADA are:

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and
(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities. [206]   

            Naturally, a court-made rule that fills a gap in an ambiguous statute should be afforded deference if it is consistent with the statute's plain meaning and legislative intent. Yet courts have done little to clarify the ambiguity even though the ADA specifically calls for clear, comprehensive, strong, consistent, enforceable standards encompassing the sweep of congressional authority. Therefore, Congress should clarify the ADA.

           Second, Congress expressly delegated authority to regulate Title I of the ADA to the EEOC. This grant of power should enable the EEOC to interpret ambiguous terminology in Title I as it applies to Title I. [207]   Furthermore, even if the agency does not have this power, the Supreme Court should expressly analyze the agency's authority to wield it. [208] 

 
           Third, the Supreme Court's opinion in Barnett did not clarify the ADA's ambiguous proof structure in reasonable accommodation cases; rather, it perpetuated the uncertainty. The various approaches to burden allocation taken by the circuit courts pre-Barnett were not as "functionally similar" as the Supreme Court may think. [209]  A shifting burden of production[210]   clearly is not the same as a shifting burden of persuasion, [211]   and neither are the same as traditional burdens of proof. [212]   Additionally, requiring employees to merely prove that an accommodation is possible [213]  is not the same as requiring employees to show that a proposed accommodation would enable them to perform the essential functions of the job and that the proposed accommodation is at least facially feasible for the employer.[214]  If the circuit court interpretations of the ADA were this varied before the Supreme Court decided Barnett, the Barnett holding itself will probably be subjected to as diverse an array of interpretations unless the Court shortly gives substance to the "ordinarily or in the run of the cases" language. [215]

           Finally, a congressional resolution of this issue resembling that of the 1991 Act would facilitate the pursuit and defense of disability discrimination claims from the perspective of all parties involved: (1) practitioners, who will be better positioned to advance their clients' interests when dealing with a straightforward proof structure; (2) judges, who will be able to rely upon clear, authoritative precedent in deciding disputes; (3) federal agencies delegated authority to administer the statute, which will be able to expend their resources on enforcement instead of explaining statutory ambiguities; and (4) employers and disabled employees who will realize enhanced representation, and whose rights will thus be better protected. [216]   Accordingly, Congress should modify the ADA to specify a clear proof structure for reasonable accommodation cases and indicate the weight of the respective burdens of proof just as it did to Title VII via the Civil Rights Act of 1991.

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VI. Conclusion

           Despite being touted at its passage as the most significant civil rights legislation since the Civil Rights Act of 1964,[217] the ADA has since been criticized for its ambiguous standards. Regrettably, the criticism is not unfounded. The ADA's lack of a clear proof structure has resulted in a significant reduction in its ability to provide adequate remedies for employees bringing reasonable accommodation claims. The fact that the circuit courts have implemented different proof structures alone shows the ADA is not being properly applied. The Supreme Court's decision in Barnett, although fair to the parties, did little to clarify the statute's vague standards. As a result, disabled employees bringing discrimination claims have not enjoyed the ADA's promise of accommodation, and all parties involved are left without the clear, strong, consistent standards the ADA sought to achieve.

           Although the EEOC was given a broad grant of power to regulate and fill any gaps in Title I of the ADA, its interpretations of reasonable accommodation and undue hardship generally have not been afforded deference. Yet the agency's interpretation of the ADA's proof structure is logical and consistent with congressional intent. The two-pronged reasonable accommodation definition gathered from reading the EEOC's regulations and Interpretive Guidance together is a permissible construction of the ADA. Therefore, it should be accorded the force of law or should at least merit some deference. At the very least, the Supreme Court should determine the extent of the agency's authority as well as the validity of its regulations and Interpretative Guidance in relation to the ADA's vague reasonable accommodation standard.

           Furthermore, the circuit split, the lack of deference to the EEOC and the development of disparate treatment law under Title VII reveal that the ADA's vague standards are ripe for legislative clarification. Congress should modify the ADA just as the Civil Rights Act of 1991 modified Title VII's proof structure so that judges, practitioners, parties, and administrative agencies alike will better comprehend the extent of the statute's reach and the exact process for litigating reasonable accommodation claims. Doing so would create the clear, comprehensive, strong, consistent, enforceable standard originally sought by Congress.