Undue Hardship Research Articles

The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic Cement)

Economically minded legal scholars have devoted much attention to the comparative costs of property rules and liability rules, but little attention to the legal rule that most squarely addresses that choice — the defense of undue hardship. In general, a court will refuse an injunction, and leave plaintiff to his damage remedy, if defendant’s cost of complying with the injunction would be greatly disproportionate to the benefits to plaintiff.This defense may have been rendered obscure to law-and-economics scholars by the highly visible opinion of the New York Court of Appeals in Boomer v. Atlantic Cement, which seemed to say that the cost of compliance had been irrelevant in New York prior to the court’s decision in Boomer itself. Boomer was in fact no innovation, and the defense of undue hardship had long been established in New York as elsewhere.The undue-hardship defense implements the core economic concern with cost, but it differs from traditional economic analysis in important ways, and those differences are analyzed here. The defense could have provided a ready-made solution to the problem of “patent trolls,” had the Supreme Court attended to it in eBay v. MercExchange. And subsequent developments in Boomer, on remand from the Court of Appeals, illustrate that supracompensatory remedies, such as disgorgement of unjust enrichment and even punitive damages, can function as liability rules rather than property rules.

Bridging the gender gap

The words ‘fair’ and ‘fairness’ have been on every politician’s lips this week as the government seeks ways of saving public money without causing undue hardship among people in any particular section of society. Whether proposals to reform public sector pensions will produce a fairer system is open to debate.

Religious Conduct and the Immutability Requirement: Title VII’s Failure to Protect Religious Employees in the Workplace

This article examines how the federal courts have used the requirement of immutability to limit an employee’s right to religious accommodation in the workplace under § 701(j) of Title VII of the 1964 Civil Rights Act. Section 701(j) explicitly mandates reasonable accommodation of an employee’s religious beliefs and observances if accommodation can be made without undue hardship to the employer. The mutable/immutable distinction should therefore not be an issue in the religious accommodation cases since accommodation is mandated by statute regardless of whether religion is an immutable trait. However, a careful reading of the case law and examination of the rhetoric used by the federal courts illustrates that judges often implicitly find that religion is little more than an issue of personal choice and therefore not entitled to protection under § 701(j).

Examination of Workers' Compensation Gaps and Inequities in the US

Project: Examination of Workers’ Compensation Gaps and Inequities in the United States. Lead Researcher: Christopher Kampa, Director of Research, Insurance Studies Institute. ISI Oversight: Paul Siegert, President and CEO, Insurance Studies Institute.Project Description: Workers’ compensation is designed to provide monetary and medical benefits to workers injured as a result of a workplace accident, injury, or occupational disease. Both workers and employers benefit from workers’ compensation when the system works properly, as it protects workers and their families against undue hardship resulting from workplace injuries while granting employers immunity from costly litigation. However, there are gaps in the workers’ compensation system that prevent some injured workers and their families from getting the help that they need. Research/Methodology: The following is a discovery paper designed to highlight several of these flaws and shed light on inequities that exist in the system. The amount of literature printed in academic journals on the topic of Workers’ Compensation is immense. Therefore, the research will identify consistent themes across the breadth of printed works to build insightful observations of inequities in the system. Findings will be discussed with industry experts to ensure the factual integrity of the arguments. The Insurance Studies Institute hopes to use this to advance additional research and exploration.Timeline: Acquire data: 1 month; Feedback from industry professionals: 2 weeks; Research and publish: 2 weeks.Data Sources: Academic Journals, Discussions with industry professionals.

Love Thy Neighbor: Should Religious Accommodations that Negatively Affect Coworkers’ Shift Preferences Constitute an Undue Hardship on the Employer Under Title VII?

In applying Title VII, courts are often confronted with religious accommodations that would negatively affect other employees and are asked to decide whether such an accommodation amounts to an undue hardship on the employer. This Note explores the conflict among circuit courts concerning the scope of an employer’s duty to accommodate religious employees when doing so would negatively affect coworkers’ scheduling preferences, outside context of a collective bargaining agreement. This conflict turns on whether courts consider any negative impact on coworkers impermissible preferential treatment, or whether they require more severe impact on coworkers' rights be demonstrated. This Note argues that preferential treatment of the religious employee exists only when imposition on coworkers creates an economic burden on the employer or requires coworkers to take on additional, physically hazardous tasks.

The European Social Model: In Urgent Need of Redefinition

Europe has good reason to be proud of its achievements in the area of social policy, and indeed, Europeans are happy to hold up their social model as a reference point. In reality, though, there is no such thing as the European social model. The various national systems for social security are the products of historical change, and resemblances among them tend to be patchy. There is of course a common denominator: virtually all citizens of the European Union benefit from a safety net that protects them against undue hardship in the event of illness, age or unemployment, and shields them from abusive employment practice with collective wage agreements, social security law and labour law. This is what is generally understood to constitute the European social model (ESM). These accomplishments deserve to be protected. However, that does not mean that we can dispense with the need for change. The ESM was developed in recent decades by each country following its own approach to providing its citizens with social security, which took different forms. Until now, economic growth, while uneven, has been sustained sufficiently to finance the rising costs. When growth alone has proved inadequate, countries have run up debts to pay for social security, ultimately as an expression of their confidence in economic growth and the associated increase in purchasing power of future generations. Can this system, cobbled together over decades, continue to work in the future?

Table of Contents

Abstract Cover Story Learn what the FPCO's leadership change means for you Gammill plans continuity in FPCO services Do you have a question or comment for the FPCO? Rooker retains focus on training for FERPA compliance Plan to attend a FERPA workshop News & Notes Student caught in identity theft earns jail time, not degree Nebraska colleges offer free tuition to low‐income students Analysis shows why science grad ratio in other countries outstripped U.S. Review trends that could impact private institutions' enrollment Compliance Don't try to justify too much with ‘need to know’ Tools of the Trade Withdrawal data helps solve retention issues Office structure promotes data mining to encourage student success Data mining could guide decisions What Would You Do? How do you handle a scheduling shift? Professional Development Understand the process for successful, fair hiring Lawsuits & Rulings FINANCIAL AID Failure to show ‘undue hardship’ prevents student loans' discharge FERPA FPCO will not investigate claims filed 3 years too late Universities may disclose applicants' education records ACADEMIC AFFAIRS Student's rights violated by defective sexual harassment policy Leaders & Innovators SUSAN LEIGH, ASSOCIATE VICE PRESIDENT FOR STUDENT RECORDS AND DEPAUL CENTRAL, DEPAUL UNIVERSITY A hard look at tasks leads to restructuring Give one‐stop shop a new look

DUTY TO CARE: ACKNOWLEDGING COMPLEXITY AND UNCERTAINTY

DUTY TO CARE: ACKNOWLEDGING COMPLEXITY AND UNCERTAINTY

A New Approach to Raising Social Security's Earliest Eligibility Age

While Social Security’s Normal Retirement Age (NRA) is increasing to 67, the Earliest Eligibility Age (EEA) remains at 62. Similar plans to increase the EEA raise concerns that they would create excessive hardship on workers who are worn‐out or in bad health. One simple rule to increase the EEA is to tie an increase to the number of quarters of covered earnings. Such a provision would allow those with long work lives—presumably the less educated and lower paid—to quit earlier. We provide evidence that this simple rule would not satisfy the goal of preventing undue hardship on certain workers. Therefore, this paper considers an alternative policy that ties an increase in the EEA to individuals’ Average Indexed Monthly Earnings (AIME). We show that allowing workers with low AIME to continue to be eligible to receive benefits at age 62 has promise as a policy to protect workers who have low earnings and are in poor health from hardship associated with an increase in the EEA.

Fixing the “Undue Hardship” Hardship: Solutions for the Problem of Discharging Educational Loans Through Bankruptcy

Imagine John Smith, soon to be John Smith, Esquire. He has completed his last round of finals and is anxiously awaiting graduation from law school. In the time between finals and graduation, when many third-year law students are taking a brief mental vacation before bar exam preparation gets into full swing, John thinks he has found the ultimate loophole. John files a bankruptcy petition, which shows his non-existent current income, minimal assets, and education loans totaling over $100,000. Given John’s apparent insolvency, the court discharges his student loans so that John can have a fresh start and attempt to get back on his feet. John is pleased because he has a great job lined up for after graduation, and getting rid of this debt will make his life better. Luckily for the taxpayers who would then be responsible for John’s federally guaranteed student loans, Congress essentially eliminated such a possibility decades ago, and college students across the country can rest easy knowing that their loans will be fully intact upon graduation.

Wake Up to Realities of River Basin Closure

As societies develop, river basin water resources are increasingly controlled, diverted and consumed for agricultural, domestic and industrial purposes, hence reducing the ability to meet the growing demands from various sectors and interests. Basins are closed when additional water commitments for domestic, industrial, agricultural or environmental uses cannot be met during all or part of a year. Basin closure is already prevalent in the world today, with 1.4 billion people living in areas that have to deal with the situation. Societies may adapt to this in various ways, with reallocation of water, demand management or interbasin transfers as the primary means of dealing with the problem. However, ‘quick-fix’ measures such as further groundwater or surface water exploitation or ill-planned water appropriation that unfairly reallocates water from one user are common. Symptoms of poorly managed closed basins include groundwater overdraft, limited or no environmental flows, pollution and inequitable allocation of water. Thus, a pertinent question is whether there will be a hard or soft landing in closed basins—will the resource base fail to meet basic requirements causing undue hardship, or can societies adapt to achieving a soft landing. Surprisingly, limited attention has been given today to this urgent water situation.

The Americans with Disabilities Act in The Classroom: Key Concepts

INTRODUCTION It’s been almost 18 years since the American with Disabilities Act (known as the “ADA”) became law. Most people in the workplace are very familiar with its concepts, if not always its details. In the educational setting, the ADA has become much more familiar over the years and many students know that it applies in the classroom as well as in the workplace. So what is essential to know for those who train the professionals of tomorrow? This article will explore the key concepts of the ADA and how to analyze and apply them in an educational institution. The ADA requires that a “qualified individual” with a “disability” (defined as a “substantial impairment of a major life activity”) who is otherwise able to perform the “essential functions” of a student (or a job), must receive “reasonable accommodations” to assist him or her, unless such accommodations would pose an “undue hardship” to the employer or the institution. In an educational context, this means accommodations are required unless the proposed accommodations would fundamentally alter the educational experience. Several years ago, the Equal Employment Opportunity Commission (which handles all employment disability claims before a trip to court is permitted) released data showing that the most commonly claimed disability was low back pain. But as the courts have “matured” in interpreting the ADA, it’s become clear that it had now better be a significant pain in the back to support a finding of disability. However, many ailments do qualify by their very nature, including diabetes, cancer, severe depression, epilepsy, and paralysis. Even a history of a disability or a perception of a disability can support an ADA claim. In the educational context, learning disabilities have proved to be a substantial subset of student ADA complaints. Some of these are attention deficit hyperactivity disorder, processing deficits, dyslexia, sequencing disorders, visual perception disorders, and gross and fine motor skill impairments. Although some faculty members may resist recognizing learning disabilities as “real” disabilities, they can be substantial obstacles to success in the classroom or training site. Courts have recognized them as covered by the ADA. Now, here’s a test situation: Ashley Adams is a student in your class. After doing well on the first test, she pulls a “D” on the second one, and lately seems to have difficulty understanding basic concepts as evidenced by her participation in class discussions. One Friday, she asks to see you after class and confides that she has a learning disability and needs accommodations. She proceeds to tick them off:

The Measurement and Structural Modeling of the Reasonableness of Workplace Accommodations

The Americans with Disabilities Act of 1990 (ADA) guarantees protection from discrimination for persons with a disability. The ADA requires employers to make reasonable accommodations for persons with physical and mental disabilities unless doing so would produce undue hardship on the organization. Fifteen years after the passage of the ADA, the question as to what is a reasonable accommodation remains controversial, especially for some types of disabilities. In this study, a reasonable accommodation scale is proposed and tested using structural equation modeling in hopes that such a scale will aid the courts and organizations in determining what is reasonable. Individuals’ level of awareness of disability issues is also examined in the model to examine the relationship between awareness and willingness to accommodate. Results indicate acceptable fit of the model to the data and provide support for the proposed scale. Furthermore, the relationship between awareness of disability issues and willingness to accommodate was significant. Implications for research and practice are discussed.

Continuous quality improvement and assisted reproductive technology multiple gestations: some progress, some answers, more questions

The past decade has seen a fall in the number of embryos transferred accompanied by a reduction in the rate of higher order multiple pregnancies occurring from U.S. assisted reproductive technology (ART) cycles, which is temporally related to voluntary adherence to embryo transfer guidelines. The twin rate has remained relatively constant. The ability to continue the reduction in multiple pregnancies while maintaining advocacy positions for both patient couples and offspring will best occur with attention to scientific, sociologic, economic, and provider issues.

Society for East Asian Anthropology

I spent the past year in Japan exploring social welfare politics in the context of people with severe physical disabilities. I define “people with severe physical disabilities” here as people with major physical impairments such as cerebral palsy, muscular dystrophy or spinal injury so severe that they cannot cook, bathe, eat, defecate, go to a movie theatre or other activities of daily living without the use of a full-time personal attendant. Methodologically, my work blends political anthropology and visual anthropology in a comparative study of the US and Japan. People with severe disabilities challenge the American liberal notion of equality under the law, which is the basis of much disability rights legislation. In the US, the Americans with Disabilities Act (ADA) of 1990 prohibits employment discrimination on the basis of disability and calls for “reasonable accommodation” of persons with disabilities. While this benefits those with mild disabilities who require little in the way of accommodation (the median expenditure is a measly $420 per person), people with severe (and even moderate) disabilities fall entirely out of the scope of the ADA due to “undue hardship” on employers. What remains of the ADA has successfully been whittled away by Supreme Court challenges over states rights, sovereignty and a rapidly shrinking definition of disability. Further complicating the situation for people with severe disabilities are the current cutbacks on social security (SSDI/SSI), Medicaid and other public assistance programs. Japanese disability policies can be as paternalistic in the best and worst sense of the word. Article 25 of the Japanese Constitution guarantees the “right to maintain the minimum standards of wholesome and cultured living,” which underlies both disability legislation and welfare policy. People with physical, developmental or psychiatric disabilities are required to register for and carry a shogaishatecho (disability ID card), which gives them a broad array of benefits including a disability welfare pension, public assistance from local governments, free travel on municipal transportation and discounted travel on JR railways. Since 2003, people with severe physical disabilities are also eligible for part-time or full-time personal assistance coverage if they wish to leave their families and nursing homes and live independently. They are facilitated by Centers for Independent Living (CILs) that coordinate personal attendant care. People with disabilities manage the CILs and receive administrative overhead reimbursement from the government for the personal attendant care services they provide to themselves. Activists in Japan reject a negative moral reading of their reliance on welfare funds by arguing that what they do is work. That is, running the CILs and advocating for disability rights is an important part of Japanese civil society, thus they should treat their disability pensions (and the administrative money for the personal care attendants) as their salary, not as a public benefit. “We are not just laying around,” they explained to me, “we are building a new society,” a new Japan. The Japanese government has tried to limit the explosive growth of personal care attendants and in late 2004, declared that they were ending the program. This created a massive response by the CILs who staged a series of large protests in Tokyo, in front of the Ministry of Health, Labor and Welfare building in Kasumigaseki. In confronting the government, Japanese disability advocates have tried to play into the insecurities of the politicians and bureaucrats by showing how far behind Northern European countries Japan is in its disability welfare policies. In response to the protests, the MHLW successfully staged a media blackout by pressuring news and television corporations to withhold coverage of the events. Through this process, I was actively documenting, photographing and blogging the disability protests on my home page (photoethnography.com/blog) and was one of the few (non-mainstream) media sources reporting on the issue. The photograph accompanying this article is from their May 5, 2005, demonstration. Documentary photography has long been associated with exploitation of subjects. Through my photoethnography, I work collaboratively with my informants to produce visual material that accurately reflects their worldview as active agents of social and political change. Since my photography and reportage has subsequently been used in activist magazines and billboards, I am trying to determine the appropriate balance of participant and observer in my fieldwork. When anthropologists blog on breaking events, do we leave the cozy confines of academia and become news reporters? This is an issue that I struggle with on a daily basis when in the field.

Duty to Accommodate

Workers traditionally accommodated co-workers. But, as accommodation law developed, tensions emerged. In Meiorin: accommodation is the norm. Employers must eliminate standards, rules, practices, etc. that discriminate on prohibited grounds, up to undue hardship. In the Canadian Human Rights Act, undue hardship includes only cost, health and safety. Other jurisdictions, following Central Alberta Dairy Pool, consider: impact on the collective agreement, other workers’ rights, employee morale, size of operation, workforce and facility adaptability. O’Malley clarifies adverse affect discrimination. A rule, although made in good faith, may discriminate “if it affects a person … differently from others”. Accommodation may override contract provisions (Renaud), including seniority (Goyette). While employers have principal responsibility for accommodation, unions have a role too (Gohm). Unions reduce accommodation tensions by: auditing collective agreements, reviewing accommodation procedures, educating members and leaders.

The role of capital account controls in developing countries: lessons from Malaysia

The 1997‐1998 Asian financial crises underscored the dangers of open capital accounts in developing nations that have weak macroeconomic policies or poorly regulated financial systems. Most developing Asian countries responded to the crisis by adopting the orthodox remedies prescribed by the International Monetary Fund. These included liberalised capital accounts, floating exchange rates and tighter fiscal and monetary policies designed to restore investor confidence. Malaysia departed from this orthodoxy. In September 1998 it imposed controls on capital account transactions, pegged its currency to the US dollar, cut interest rates and reflated its economy. The literature suggests that even temporary capital account controls entail serious economic risks for developing countries. However, the undue hardships imposed by the IMF regimen suggest that it is time to re‐evaluate the role of currency controls in mitigating the destabilising effects of unfettered capital flows in developing countries that have poorly regulated financial systems. This article analyses the effectiveness of Malaysia’s 1998 capital controls by evaluating Malaysia’s post‐1998 economic progress. Its goal is to inform the debate concerning the benefit‐risk tradeoffs of currency controls in developing countries.

The ADA and Disability Accommodations

The Americans with Disabilities Act (ADA) was designed to promote equal employment opportunities for handicapped individuals in the workplace. The law mandates that employers reasonably accommodate individuals with disabilities who are qualified to perform the job. However, employers are exempted from this requirement if the reasonable accommodation results in an undue hardship for the organization. The legal definitions of reasonable accommodation and undue hardship have evolved over time due to case law resulting from judicial decisions. This paper will review recent decisions by the U.S. Supreme Court and their effect on employer responsibilities under the ADA. Suggestions will be provided as to policies organizations could follow to respond to these requirements.

The Use of Full‐Time Volunteers and Interns by Natural‐Resource Professionals

The natural-resource profession relies on volunteers and interns—who are typically compensated at levels far below minimum wage—to carry out many research, management, and conservation activities. In some cases these positions involve part-time or short-term service, during which an individual need not forego outside opportunities for paid work. Such experiences can be rewarding and educational and are filled by students, retirees, vacationers, individuals working full time in other professions, and amateur naturalists. Because these individuals usually have an outside source of income and their time commitment is limited, their service is unlikely to lead to financial hardship. Many other volunteer and internship positions require that individuals live in remote areas and work 40 hours per week, effectively denying them the opportunity to earn outside wages. Most often these full-time positions are filled by aspiring natural-resource professionals ( e.g., students or recent graduates ) who need workplace experience if they are to advance to graduate school or more lucrative jobs. Consequently, employers often consider work experience adequate compensation for wage shortfalls. This latter group—entry-level professionals in full-time positions—is the focus of this essay. I believe that our widespread use of volunteers and interns to compensate for budget shortfalls does our profession more harm than good. In many cases this approach is in conflict with labor law, hinders the development of new professionals, undermines our profession’s credibility, and is an impediment to achieving our conservation goals. Evidence that I am not alone in my concern was provided by a recent debate on this topic on The Wildlife Society’s email discussion list (TWS-L@listserv.vt.edu; October 25–30, 2001; 70 postings by 50 members). Although a minority of contributors spoke out in defense of the status quo, many more were sharply critical of our current use of volunteers and interns. How extensive is our use of subminimum-wage positions? As an example, I reviewed all positions offered on Texas A&M University’s on-line fish and wildlife job board on 14 November 2001 (Table 1 ), which is currently considered the most complete job listing for fisheries and wildlife professionals in North America. Thirtythree percent of the 267 entry-level positions offered were listed as internship or volunteer opportunities, and only three internships offered stipends exceeding minimum wage (Table 1). Many other positions, typically referred to as “technicians,” also paid less than minimum wage, meaning that 40% of entry-level positions listed paid below this standard (Table 1). These positions were offered by a diverse group of organizations, including federal and state agencies, national parks, universities, branches of the military, private companies, and nonprofit conservation groups. Many included some nonmonetary benefits such as housing or academic credit, but stipends were generally so low that even with this support compensation did not approach minimum wage. Employers receive obvious monetary benefits when paying less than minimum wage, whereas workers can benefit by gaining workplace experience, professional exposure, and satisfaction from service. But do these benefits come at a price? Starting at the level of the individual and moving outward, several important costs can be incurred by our current treatment of volunteers and interns, including (1) undue personal hardship, (2) exclusion of potentially valuable individuals based on economic class, (3) failure to meet society’s legal and ethical expectations, and (4) devaluation of natural resources and impedance of conservation.

Is it ‘grossly unfair’ if a husband has to pay maintenance to his separated wife who has a close relationship with a homosexual man? (Judgment of the Federal Court of Justice of 20 March 2002)

On 20 March 2002, the XIIth Senate of the Bundesgerichtshof (BGH - Federal Court of Justice), the highest appeal court in civil law matters, was called to decide a case in which a separated husband had made an application to change a periodical maintenance payment order, arguing mainly that his wife no longer living with him had a close relationship with another man and that it was therefore an undue hardship to him, in the sense of para. 1597 no. 7 Bürgerliches Gesetzbuch (BGB - German Civil Code), to continue periodical maintenance payments at all. The separated wife argued that she did not cohabit with the man and had no intimate sexual relationship with him, since he was homosexual, that therefore no marriage-like relationship existed and maintenance payments should continue unchanged, since this obligation was no undue hardship towards the obliged spouse. The Federal Court of Justice judged in the last instance that the decision of the lower court, which had reduced the maintenance obligation, was correct, since the facts showed that a marriage-like relationship between the separated wife and her close friend existed; whether or not they had intimate sexual relations did not matter.