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WPI 330.36 Employment Discrimination—Disability Discrimination—Undue Hardship—Burden of Proof

6A WAPRAC WPI 330.36Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.36 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVI. Employment

Chapter 330. Employment Discrimination

WPI 330.36 Employment Discrimination—Disability Discrimination—Undue Hardship—Burden of Proof

An employer is not required to accommodate an employee's disability if it would impose an undue hardship on the operation of the employer's business.(Name of defendant)has the burden of proving that an accommodation would impose an undue hardship on(name of defendant).

An accommodation is an undue hardship if the cost or difficulty is unreasonable, considering[:]

(1) The size of and the resources available to the employer[;]

[(2) Whether the cost can be included in planned remodeling or maintenance;] [and]

[(3)] [The requirements of contracts].

If you decide that(name of employer)has proven its undue hardship defense as to each accommodation, then your verdict should be for(name of employer)on this claim.

NOTE ON USE

Under certain circumstances, non-cost factors also may support an undue hardship instruction. This instruction should be modified as necessary under such circumstances.

Use a special verdict form to guide the jury to decide first whether Plaintiff has met [pronoun] burden to prove failure to accommodate and only if Plaintiff has met that burden should the jury consider undue hardship.

If the restrictions of other laws or regulations are a part of the employer's argument about undue hardship, the jury should be specifically instructed as to the requirements of the other laws at issue. The instruction likewise will need to be modified to address any “other appropriate considerations” that might apply to a given case.

Use this instruction with WPI 330.34 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Definition).

COMMENT

This instruction was modified for this edition to instruct the jury regarding its verdict if the defendant has proven its undue hardship defense as to each accommodation.

Failure to give this instruction may be error if there is an issue of reasonableness of accommodation or undue hardship. Erwin v. Roundup Corp., 110 Wn.App. 308, 40 P.3d 675 (2002). Erwin implicitly approved the former version of this instruction.

Jurors may be confused if the court fails to inform them that the defendant must prove that a proposed accommodation would be an undue hardship. Easley v. Sea-Land Serv., Inc., 99 Wn.App. 459, 471–72, 994 P.2d 271 (2000); Griffith v. Boise Cascade, Inc., 111 Wn.App. 436, 442–43, 45 P.3d 589 (2002) (an accommodation may be an undue burden on the defendant and therefore unreasonable); see also Wheeler v. Catholic Archdiocese of Seattle, 65 Wn.App. 552, 829 P.2d 196 (1992), reversed on other grounds, 124 Wn.2d 634, 880 P.2d 29 (1994).

If the employer has provided an accommodation to an employee, then the correct focus is whether the accommodation was reasonable. The employer is not required to further show that each of the employee's alternative accommodations would result in undue hardship. Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045 (9th Cir. 1995).

[T]he extent of undue hardship on the employer's business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship.
…
[T]o hold otherwise would contravene clear law established by Washington courts that ‘[the antidiscrimination] Act does not require an employer to offer the employee the precise accommodation he or she requests.’

Sharpe, 66 F.3d at 1050 (citations omitted); see also Doe v. Boeing Co., 121 Wn.2d 8, 846 P.2d 531 (1993).

[Current as of January 2021.]

End of Document