## Facts

- Donald Barth, a Washington-based computer specialist employed by the Voice of America (VOA), had severe, degenerative diabetes requiring access to specialized medical care.
- Barth applied to enter the permanent Foreign Service, which staffed engineering jobs at VOA’s overseas radio relay stations.
- Barth satisfied all requirements except a medical-clearance exam assessing worldwide availability; he was found medically limited to locations with advanced medical facilities.
- Most relay stations were in remote locations; restricting Barth to posts with sophisticated medical care would limit him to only a few possible assignments.
- Barth requested a medical waiver allowing entry into the program with assignments limited to posts with suitable medical facilities.
- After extended internal consideration, VOA denied the waiver request without providing written reasons.
- Barth exhausted administrative remedies and sued under the Rehabilitation Act, seeking an overseas assignment and backpay.

## Issues

1. Whether “undue burden” (undue hardship) is an affirmative defense under the Rehabilitation Act for which the employer bears the burden of proof.
2. Whether the district court’s placement of the undue-burden burden of proof on Barth required reversal, or was harmless given the trial record.
3. Whether denying a limited waiver and overseas assignment violated the Rehabilitation Act’s reasonable-accommodation requirement.

## Decision

- The court held that undue burden is an affirmative defense in Rehabilitation Act cases, and the employer bears the burden of proving it.
- The court concluded the district court erred by placing the ultimate burden on Barth.
- The court affirmed anyway, holding the error harmless because the evidence supported that the requested accommodation would have imposed an undue burden on VOA’s operations.
- The judgment for the agency was affirmed.

## Legal Principles

- In Rehabilitation Act reasonable-accommodation litigation, “undue burden” is an affirmative defense the employer must prove.
- A trial court’s legal error in allocating the burden of proof may be harmless if the record would compel the same result under the correct allocation.
- An accommodation that materially restricts deployability in a small, mission-dependent program requiring broad assignment flexibility may constitute an undue burden.

## Conclusion

The court clarified that the employer must prove undue burden under the Rehabilitation Act, but affirmed for the agency because the record showed that limiting a Foreign Service entrant to only a few medically suitable overseas posts would unduly burden the overseas relay-station program.


Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993)