Undue Burden Defense Under the ADA and Risk Mitigation Strategy

Plaintiffs’ lawyers are having an absolute field day with ADA compliance lawsuits in 2024. Of course, plaintiffs’ lawyers have taken full advantage of the Americans with Disabilities Act (ADA) for quite sometime, but the legal landscape seems to have reached peak litigation in present day with both digital (mostly websites) and physical accessibility lawsuits as money-making avenues for plaintiffs.

Recently, I consulted with a client who had reached a large settlement concerning the accessibility of a kiosk. Kiosks represent a growing number of hybrid devices that are both physical and digital in nature that are the subject of litigation.

One of the topics we spoke about was the undue burden defense. In this post, I’ll provide a generalized legal strategy (which obviously isn’t legal advice) that includes proactive measures you can take to lower risk of an ADA compliance lawsuit when you are facing a difficult accessibility project.

Before we continue on with the general legal strategy, let’s set out exactly what undue burden means under the Americans with Disabilities Act.

Disclaimer: This is general information that is not specific to your situation. This is not legal advice. You must consult with your own attorney / general counsel.

Undue Burden

Title I – Employment

Under Title I of the ADA (regarding employer responsibilities to ensure access to employees with disabilities), the operative term is undue hardship. Here is the definition and supplementary text per ADA.gov:

(10) Undue hardship

(A) In general

The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered

In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include—

(i) the nature and cost of the accommodation needed under this chapter;

(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; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

Title II – State and Local Governments

Under Title II regulations, we have this general language:

§ 35.150 Existing facilities

(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not—

(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with §35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.

Title III – Public Accommodations and Services by Private Entities

Under Title III (for places open to the public, generally), we see this text:

(2) Specific prohibitions

(A) Discrimination

For purposes of subsection (a) of this section, discrimination includes

(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;

(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;

Undue Hardship and Burden vs. Alteration

Given the general excerpts from ADA Title I, II, and III, we have a few key concepts in play:

  • undue hardship
  • fundamental alteration
  • undue burden

Undue Hardship

Undue hardship and undue burden are close to the same, but they are different in context. Undue hardship focuses on employment scenarios and the impact on the employer, whereas undue burden addresses public accommodations and the feasibility of making services and facilities accessible to individuals with disabilities.

Fundamental Alteration

But then we have fundamental alteration and undue burden as possible defenses. Let’s examine the differences.

Fundamental alteration means there is a significant change that alters the essential nature of a program or service. Under the Title II and Title III of the ADA, entities are not required to provide accommodations or modifications if doing so would fundamentally alter the nature of the service, program, or activity being offered.

With fundamental alteration, the focus is on the qualitative impact: would the change affect the essential nature of the entity’s offerings?

Here’s a simplistic hypothetical example to illustrate fundamental alteration in action:

A large banking corporation offers a highly secure, automated online banking system that requires users to navigate through multiple levels of authentication, including CAPTCHA and one-time passwords sent via SMS, to access their accounts.

A customer with a visual impairment requests that the authentication process be simplified by removing the CAPTCHA and one-time password steps to make it more accessible.

The multi-level authentication process is fundamental to the security model of the banking system, designed to protect against unauthorized access and fraud. Simplifying this process by removing CAPTCHA and one-time passwords would significantly compromise the security of the system, increasing the risk of breaches and fraud. This alteration would fundamentally change the nature of the service by undermining its core security features, which are essential for maintaining the integrity and trustworthiness of the online banking platform.

Undue Burden

Undue burden means there is a significant difficulty or expense incurred by an entity in providing an accommodation. Title II and III of the ADA recognize that while accommodations are necessary for ensuring accessibility, there are limits based on the feasibility – including the financial, administrative, and technical feasibility – and impact on the entity’s operations.

With undue burden, the focus is on the quantitative impact and considerations include the nature and cost of the accommodation, the overall financial resources of the entity, the number of employees, and the impact on the entity’s operations.

An undue burden defense obviously looms for any smaller entity charged with a high cost accessibility project. But the undue burden defense is also potentially viable even for billion dollar revenue corporations.

An example of an undue burden could be a request to retrofit all existing kiosks across a national chain of fast-food restaurants with braille touchscreens and auditory feedback systems.

The total cost of such a retrofit could easily cost $50,000 per kiosk and total over $25,000,000 when all locations are factored in. Beyond the raw cost of upgrading the kiosks, there would be an immense operational burden as many employees would need to switch priorities to coordinate, oversee, and carry out the project.

Were this to play out in court, you would need to be able to prove, through the numbers, that the accessibility action would cause an undue burden.

Title II Web Rule

The Department of Justice addressed undue burden possibilities at multiple points in the new ADA Title II web rule. In a section titled Fundamental Alteration or Undue Financial and Administrative Burdens, the DOJ wrote:

For example, where it would impose undue financial and administrative burdens to conform to WCAG 2.1 Level AA (or part of WCAG 2.1 Level AA), public entities would not be required to remove their web content and mobile apps, forfeit their web presence, or otherwise undertake changes that would be unduly financially and administratively burdensome.

However, the DOJ also wrote:

“The costs for each public entity type and size are generally estimated to be below 1 percent of revenues (the one exception is small independent community colleges, for which the cost-to-revenue ratio is 1.05 percent and 1.10 percent using a 3 percent and 7 percent discount rate, respectively),[16] so the Department does not believe the rule will be unduly burdensome or costly for public entities.”

This calculation shows that the DOJ believes the cost of complying with the new Title II web rule is less than one percent of revenue and thus WCAG 2.1 AA conformance services for websites and mobile apps of public entities does not constitute an undue burden.

Thus, if you are considering whether or not website accessibility, etc. is an undue burden, one bottom line calculation is cost divided by annual revenue. 1% of revenue isn’t nearly enough.

Moreover, in case law, most successful undue burden and fundamental alteration defenses have been clear cut and definitive. Keep this in mind when assessing your situation.

Risk Mitigation Strategy

Just because you have a strong case that an action is an unreasonable modification and would trigger a viable undue burden or fundamental alteration defense, it doesn’t mean that you will not get sued. These are affirmative defenses against ADA violation claims so, if sued, you would still have to raise these defenses.

Stated another way, just because you unilaterally decide that you have one or both of these defenses, it doesn’t mean you won’t get sued. These are still matters of fact that, hypothetically, if you were sued, would need to be adjudicated (or at least resolved in a dispute).

With this in mind, what can we do in a climate where plaintiffs’ law firms are as aggressive as ever in making claims of ADA violations?

First – and what is required under the ADA – is even if there would be an undue burden or fundamental alteration, we still need to be proactive in ensuring that we do everything we can to provide for access to our accommodations, services, etc.

We need to think along the lines of what is possible? What are alternatives for access that are available to us? How can we provide support or assistance in the event somebody needs help with access?

Basically, what is the next best way we can ensure access?

Documentation

Second, we need to document all aspects of accessibility and our circumstance in detail.

Part of this documentation will be why and how action X would constitute an undue burden (or fundamentally alter our offering in some way). Here we need to research and record aspects such as:

  • estimated cost
  • projected timeline
  • calculated impact on operations
  • independent expert attestations

Outside of the isolated documentation of our potential defense, we also need to document what we have done and what we are doing to ensure access:

  • appointed an accessibility coordinator
  • formed accessibility committee
  • created an accessibility policy
  • published an accessibility statement
  • set aside budget to ensure accessibility
  • developed accessibility program and plan
  • instituted accessibility training
  • consulted with independent experts
  • incorporated user testing into processes
  • solicited feedback from people with disabilities
  • contracted for interval accessibility audits

And, of course, action and execution is essential to the viability of your risk mitigation strategy; the documents are only as strong as the commitment and follow through behind them.

Although this list may seem overwhelming, it really only comes down steps that we would take to ensure that we are genuinely making reasonable efforts to ensure that people with disabilities have access to our goods, services, facilities, accommodations, etc.

Which brings us back full circle to compliance with the ADA. That’s really what ADA compliance comes down to when you read the law.

But we’re not finished with strategy.

Yes, aggressively working on all of the bullet points listed above is the best approach, but we also need to be strategic in the way we approach our accessibility efforts.

Prioritization

Specifically, the chronological order of our actions counts. This means we have to prioritize actions which practically lower our risk of a lawsuit or demand letter.

This also means that we position and frame our accessibility efforts in a positive light that accentuates the work and investment that is being made.

Public Relations

Of course, public relations comes into play here. Especially given that many companies are contemplating how to react to public news that they’ve been sued over claims of discrimination against people with disabilities / violating the Americans with Disabilities Act.

The meager bright spot here is that through the serial ADA compliance litigation (website accessibility lawsuits on top of the traditional physical lawsuits) that has taken place for the better part of the last decade, the general public is much more aware of the legal gamesmanship afoot.

Cost

Although accessibility efforts must be maintained, the cost of projects begins to steadily taper after 2-3 years as accessibility becomes more integrated into processes and becomes a requirement for any products or services that are procured.

Initially, there is a spike in cost as organizations outsource to independent experts, but the initial cost is more of a result of lack of knowledge than it is lack of ability.

Over time, with training and education, the appropriate personnel will become proficient in accessibility considerations. And with enough experience, some employees and contractors will become experts in their own right.

This transfer of knowledge means accessibility costs will drop over time.

Services

If you need help working through ADA compliance strategy and risk mitigation, Accessible.org can help. Kris Rivenburgh, the founder of Accessible.org, is the author of The ADA Book, an attorney, and an expert in digital accessibility and legal compliance.

We offer audits, remediation, user testing, consultation, and other services to help you in ensuring access. We can also help in creating an accessibility program and plan that includes thorough documentation and instructions on how to execute on accessibility.

Contact us to learn more about how we can help your organization reduce risk and follow best practices for compliance.

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