There is nothing the Supreme Court loves more in a discrimination case than a set of shifting burdens of production, persuasion, proof, or whatever other word starting in “p” the Court thinks will describe complicating the analysis of a discrimination case. It proved this recently in Young v. United Parcel Service, a pregnancy discrimination case, but the process goes back to McDonnell Douglas Corp. v. Greene, a race discrimination case decided in 1973. The McDonnell Douglas waltz goes like this: plaintiff has to make a preliminary showing of discrimination, the defendant has to show that it had a non-discriminatory reason, and then the plaintiff has to prove the defendant was really motivated by discriminatory feelings. By way of contrast an ordinary lawsuit just puts a single burden on the plaintiff; that is, prove the defendant did something wrong. The McDonnell Douglas waltz guarantees that discrimination litigation will be more complex, time-consuming and expensive than an ordinary lawsuit.
What does this have to do with the ADA? Well, many courts have adopted the same kind of burden shifting approach to claims under the ADA. The Fifth Circuit adopted a burden shifting approach to reasonable modification claims in Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997), and the Tenth Circuit adopted a similar burden shifting approach in a case on whether barrier removal was readily achievable. Colorado Cross Disability Coal. v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1004 (10th Cir. 2001). The opinion in Colorado Cross Disability Coalition points out that burden shifting methodologies have also been applied in cases on discriminatory eligibility criteria, and exclusion discrimination. On the other hand, the Ninth Circuit rejected the typical “plaintiff goes first” burden shifting approach with respect to barrier removal in historic buildings. Molski v. Foley Estates Vineyard & Winery, LLC, 531 F.3d 1043, 1048 (9th Cir. 2008).
To understand how this kind of burden shifting approach makes litigation more complex and extensive it is only necessary to read the Fifth Circuit’s description of the process in Johnson v Gambrinus Co.:
The plaintiff has the burden of proving that a modification was requested and that the requested modification is reasonable. The plaintiff meets this burden by introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases. While the defendant may introduce evidence indicating that the plaintiff’s requested modification is not reasonable in the run of cases, the plaintiff bears the ultimate burden of proof on the issue. . . .If the plaintiff meets this burden, the defendant must make the requested modification unless the defendant pleads and meets its burden of proving that the requested modification would fundamentally alter the nature of the public accommodation.
As the burdens go to and fro there is also uncertainty about just exactly what each side has to do. Colorado Cross Disability Coalition notes that there is a difference between the “burden of production” and the “burden of persuasion.” A more recent case from the 11th Circuit describes the plaintiff’s initial burden as follows:
Under the standard enunciated in Colorado Cross, a plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the cost implementation, and the economic operation of the facility
Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1274 (11th Cir. 2006). The Second Circuit has added an additional subtlety by requiring defendants to show that barrier removal is not readily achievable even if the ADA requirements are relaxed to some degree. Roberts v. Royal Atl. Corp., 542 F.3d 363, 378 (2d Cir. 2008).
It is too late to ask the Supreme Court or any lower court to abandon the use of burden shifting frameworks for proof in discrimination cases. That horse has left the barn. The message for businesses involved in ADA litigation today is that there is no easy answer to who must prove what and how strong the evidence must be. The rules themselves are difficult to apply and may be different in different circuits, as well as interpreted differently by different judges. Compared to the cost of remediation the cost and uncertainty of litigation may may be so high that it is better to make a deal than fight if the plaintiff is reasonable. And if the plaintiff is unreasonable, a good defense will require more than a passing knowledge of what the ADA requires.