This chapter provides jury instructions for actions brought under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. The ADA was first enacted in 1990 and became effective July 26, 1992. The ADA Amendments Act of 2008 (ADAA) became effective January 1, 2009. The ADAA reflected Congress’ view that the Supreme Court had interpreted the ADA in an unduly narrow fashion in Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), and Sutton v. United Air Lines, 527 U.S. 471 (1999). See Weaving v. City of Hillsboro, 763 F.3d 1106 (9th Cir. 2014), cert. denied, 135 S. Ct. 1500 (2015). The jury instructions in this chapter are consistent with the ADAA. Accordingly, if a trial involves misconduct that occurred before January 1, 2009, the court must modify the instructions to reflect prior legal standards. The ADAA is not retroactive. Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir. 2009).
The legislative purposes of, and findings for, the ADA are set forth in § 12101 and are very broad. Essentially, the ADA provides a national mandate for the elimination of discrimination against individuals with disabilities in critical areas such as employment, housing, public accommodations, education and access to public services. § 12101(a)(3), (b).
As the Supreme Court has observed, "[t]o effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act) [42 U.S.C. §§ 12111–12117], public services (Title II) [§§ 12131–12165], and public accommodations (Title III) [§§ 12181–12189]." PGA Tour, Inc. v. Martin, 432 U.S. 661, 675 (2001). Title I protects only employees of employers with 15 or more employees. 42 U.S.C. § 12111(5)(A); Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 444-51 (2003) (defining "employee"); Castle v. Eurofresh, 731 F.3d 901 (9th Cir. 2013) (analyzing whether prisoner can be deemed "employee").
Under the ADA, a "disability" is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. §12102(2).
Because a substantial majority of the reported Supreme Court and Ninth Circuit decisions arise under the employment provisions of the ADA, these instructions focus on employment claims under the ADA. In the employment context, a qualified individual with a disability may show an ADA discrimination in either of two ways: by presenting evidence of disparate treatment or by showing a failure to accommodate. Dunlap v. Liberty Natural Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017) ("We have recognized that a failure-to-accommodate claim is ‘analytically distinct from a claim of disparate treatment or impact under the ADA.’") (quoting Johnson v. Bd. of Trustees of Boundary Cty. Sch. Dist., 666 F.3d 561, 567 (9th Cir. 2011)).
"Both disparate-treatment and disparate-impact claims are cognizable under the ADA." Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003); Lopez v. Pacific Maritime Ass’n, 657 F.3d 762, 767 (9th Cir. 2011) (leaving open question of how § 12112(b)(6) applies to disparate impact claim). For a case involving a pre-employment claim under the ADA, see E.E.O.C. v. BNSF Rwy. Co., 902 F.3d 916 (9th Cir. 2018).
In Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002), the Supreme Court sanctioned expansion of the business necessity defense based on EEOC regulations. Chevron involved the propriety of a worker with a liver condition being laid off by his employer due to the unavoidable exposure to toxins at a refinery creating health risks for the worker. There exists under the ADA, 42 U.S.C. §§ 12112(b)(6), 12113(a), an affirmative defense for an employment action under a qualification standard "shown to be job-related and consistent with business necessity," which "may include a requirement that an individual should not pose a direct threat to the health or safety of other individuals in the workplace." The unanimous opinion in Chevron held it was reasonable for the EEOC, through the enactment of a regulation (29 C.F.R. § 1630.15(b)(2) 2001) to carry "the defense one step further, in allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety as well . . ." Id. at 78-79, 86-87; Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 892-94 (9th Cir. 2001) (applying "direct threat" affirmative defense factors in EEOC regulations to analysis of qualification standards).
A plaintiff’s remedies in employment actions under the ADA are generally the same remedies available under Title VII governing employment discrimination. 42 U.S.C. § 12117(a). See Introductory Comment to Chapter 10 ("Civil Rights—Title VII—Employment Discrimination; Harassment; Retaliation") for a summary of available remedies under Title VII. Compensatory and punitive damages are not available, however, in a retaliation claim under the ADA. Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1270 (9th Cir. 2009) ("Because we conclude that ADA retaliation claims are redressable only by equitable relief, no jury trial is available.")
The Committee recommends that Chapter 10 be consulted to instruct a jury on hostile work environment, definition of common terms, constructive discharge, or defenses such as bona fide occupational qualification, bona fide seniority system, or after-acquired evidence.
The Committee notes, as stated above, that these instructions focus on employment claims under Title I of the ADA, and not Title III, which addresses public accommodations. In Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030 (9th Cir. 2020), the Ninth Circuit explained that discrimination under Title III of the ADA specifically includes a failure to remove architectural barriers in existing facilities of public accommodation when such removal is readily achievable. Announcing a new rule of burden-shifting in the Ninth Circuit, the Court stated “only if the plaintiff first makes a plausible showing that the barrier removal is readily achievable, does the defendant then have to negate that showing and prove that the removal is not readily achievable.” Id. at 1036. Even if a defendant can demonstrate that the removal of a barrier is not readily achievable, the defendant may still be liable under the ADA if it fails to make its goods, services, facilities, privileges, advantages, or accommodations available through alternative methods so long as such methods are readily achievable.
In Langer v. Kiser, 57 F.4th 1085 (9th Cir. 2023), the Ninth Circuit held it was legal error to base a credibility determination on a plaintiff’s history of ADA litigation, on a plaintiff’s status as an accessibility advocate or “tester,” or on the plaintiff’s decision to forego claims against neighboring businesses, because past litigation history is not “a basis for questioning the sincerity” of a plaintiff’s intent to return to a facility, and “there is no past patronage or bona fide customer requirement to bring an ADA claim.” Id. at 1095-99. A court “may still make a credibility determination against a serial litigant, but there must be something other than the fact that the litigant files a lot of ADA cases to instill doubt in [their] testimony.” Id. at 1097
The Ninth Circuit explained in Langer that “the actual usage of the facility in question” is determinative of whether it is open to the public such that compliance with Title III of the ADA is mandated. Langer, 57 F.4th at 1102. “Absent information about actual usage, considerations such as the nature of the entity and the facility, as well as the public’s reasonable expectations regarding use of the facility, may further guide a court’s analysis.” Id.
Revised Mar. 2023
The plaintiff claims that [his] [her] disability was the reason for the defendant’s decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:
1. the plaintiff has a physical or mental impairment;
2. such physical or mental impairment substantially limited one or more major life activities;
3. the plaintiff was a qualified individual as that term is later defined in these instructions; and
4. the plaintiff was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action] because of [his/her] physical or mental impairment.
If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for the defendant.
Major life activities are the normal activities of living that a nondisabledperson can do with little or no difficulty, such as [specify applicable major life activities].
Comment
Major life activities are defined in § 12102(2)(A)-(B) and include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The Ninth Circuit has recognized interacting with others as a major life activity. Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir. 2014). Whether obesity without an underlying physiological cause is an impairment under the ADA is unclear. See Valtierra v. Medtronic, Inc., 934 F.3d 1089 (9th Cir. 2019).
“[A]lthough the ‘duration of an impairment’ remains ‘one factor that is relevant in determining whether the impairment substantially limits a major life activity,’” Shields v. Credit One Bank, N.A., 32 F.4th 1218, 1225 (9th Cir. 2022) (citation omitted), a plaintiff need not establish permanent or long-term effects, id. at 1224.
The term “substantially limits” must be interpreted consistently with the ADAA. Id. § 12102(4)(B). “‘An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.’” Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)).
The ADA places on the plaintiff the burden of showing that the plaintiff is qualified. The plaintiff must show the ability to perform the essential functions of the job with or without a reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A), 12111(8); Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013); Cooper v. Neiman Marcus Group, 125 F.3d 786, 790 (9th Cir. 1997) (stating elements).
An employee who commits an act of misconduct may be fired, regardless of whether he or she is disabled within the meaning of the ADA. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir. 1996) (holding that while alcoholism is “disability” under ADA, employee’s arrest for criminal assault while intoxicated was nondiscriminatory reason for termination).
In Raytheon v. Hernandez, 540 U.S. 44 (2003), the Supreme Court addressed an employer policy not to re-hire employees who left the company for violating personal conduct rules such as illegal drug use. Id. at 46. Under a disparate treatment theory, a neutral no-rehire policy was a legitimate, nondiscriminatory reason under the ADA. Id. at 53-55. Because the plaintiff had failed to raise a disparate impact claim on a timely basis, id. at 49, the Court held that the question of whether the neutral no-rehire policy fell more harshly on drug addicts who were successfully rehabilitated could not be considered. Id. at 52, 55.
Title I provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a) (emphasis added). An ADA discrimination plaintiff bringing a claim under 42 U.S.C. § 12112 must show that the adverse employment action would not have occurred but for the disability. Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019).
The Supreme Court has held that in a retaliation claim under Title VII, a plaintiff “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013). The Court found that the “because” language in the anti-retaliation provision (42 U.S.C. § 2000e3(a)) lacked any meaningful textual difference from the statutory provision at issue in Gross. 133 S. Ct. at 2528; see also Burrage v. United States, 134 S. Ct. 881, 887-889 (2014) (defining “results from” in Controlled Substances Act to mean “but for” causation). The Ninth Circuit has applied “but for” causation in retaliation claims under the ADA. T.B. v. San Diego Unified Sch. Dist., 795 F.3d 1067, 1088 (9th Cir. 2015).
The regulations contain examples of impairments whose inherent nature “virtually always [will] be found to impose a substantial limitation on a major life activity” and, therefore, involve “simple and straightforward” individualized assessment. 29 C.F.R. § 1630.2(j)(3)(ii). The examples include: intellectual disability substantially limits brain function, cancer substantially limits normal cell growth, diabetes substantially limits endocrine function, and HIV substantially limits immune function. Id. § 1630.2(j)(3)(iii).
“An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D).
In general, “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures” such as medication, medical equipment, prosthetics, hearing aids, low-vision devices, oxygen therapy equipment or assistive technology. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered. 42 U.S.C. § 12102(4)(E)(i)-(ii); 29 C.F.R. § 1630.2(j)(1)(vi). The distinction between low-vision devices and ordinary eyeglasses or contact lenses is that glasses or lenses correct visual acuity or eliminate refractive error, whereas low-vision devices magnify or enhance a visual image. 42 U.S.C. § 12102(4)(E)(iii).
In an appropriate case, the trial court must instruct the jury that conduct resulting from a disability is part of the disability and is not a separate basis for termination. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir. 2007) (in case brought under FMLA and Washington Law Against Discrimination by plaintiff terminated after engaging in profanity-laced outburst allegedly caused by bipolar disorder, Ninth Circuit held it was error to refuse instruction stating that conduct resulting from disability is part of disability and not separate basis for termination, citing ADA case of Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th Cir. 2001)). However, Gambini did not preclude the employer from arguing that the plaintiff was not a qualified individual or raising a business necessity or direct threat defense. Id. at 1095-96. In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015), the Ninth Circuit held that an employee who makes serious and credible threats to kill coworkers is not a qualified individual regardless of whether the threats stemmed from mental illness. See Instruction 12.10 (ADA—Defenses—Business Necessity) and Instruction 12.11 (ADA—Defenses—Direct Threat).
Revised June 2022
The plaintiff claims that [his] [her] record of disability was the reason for the defendant’s decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:
1. the plaintiff has a record of a physical or mental impairment;
2. such physical or mental impairment substantially limited one or more major life activities;
3. the plaintiff was a qualified individual as that term is later defined in these instructions; and
4. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because of [his/her] record of a physical or mental impairment].
If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
Comment
See Comment to Instruction 12.1A (ADA Employment Action—Actual Disability—Elements).
“[A]lthough the ‘duration of an impairment’ remains ‘one factor that is relevant in determining whether the impairment substantially limits a major life activity,’” Shields v. Credit OneBank, N.A., 32 F.4th 1218, 1225 (9th Cir. 2022) (citation omitted), a plaintiff need not establish permanent or long-term effects, id. at 1224.
Revised June 2022
The plaintiff claims that because the defendant regarded [him] [her] as disabled, the defendant [discharged] [did not hire] [did not promote] [demoted] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:
1. the plaintiff was regarded as having a physical or mental impairment;
2. the plaintiff was a qualified individual as that term is later defined in these instructions; and
3. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because [he] [she] was regarded as having a physical or mental impairment.
If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
Comment
See Comment to Instruction 12.1A (ADA Employment Action—Actual Disability—Elements).
1. A plaintiff meets the requirements of being “regarded as” having a disability if he establishes that he has been discriminated against “because of an actual or perceived impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added); see also SoCal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 817 (9th Cir. 2023) (“To establish disability under the ‘regarded as disabled’ prong, [plaintiffs] need to show that [defendants] perceived their clients as being disabled and discriminated against them on that basis.”) (citations and quotation marks omitted).
2. A plaintiff cannot be “regarded” as having a disability if the actual or perceived impairment is “transitory and minor.” 42 U.S.C. § 12102(3)(B). A “transitory” impairment is defined as one “with an actual or expected duration of 6 months or less.” Id.; Shields v. Credit One Bank, N.A., 32 F.4th 1218, 1224 (9th Cir. 2022).
The “transitory and minor” exception is an affirmative defense, and as such, the employer bears the burden of establishing the defense. Nunies v. HIE Holdings, Inc., 908 F.3d 428, 435 (9th Cir. 2018).
Revised Mar. 2023
The first element of the ADA claim that the plaintiff must prove is that the plaintiff has a recognized disability under the ADA. A "disability" under the ADA is [[a physical or mental impairment] [a record of physical or mental impairment] [being regarded as having a physical or mental impairment]] that substantially limits one or more of the major life activities of such individual.
The terms disability and physical or mental impairment include [[(1) any physiological disorder, or condition,] [cosmetic disfigurement, or anatomical loss] affecting one or more of the following body systems: [neurological,] [musculoskeletal,] [special sense organs,] [respiratory (including speech organs),] [cardiovascular,] [reproductive,] [digestive,] [genito-urinary,] [hemic and lymphatic,] [skin and endocrine][;] [or] [(2) any mental or psychological disorder such as] [intellectual disability,] [organic brain syndrome,] [emotional or mental illnesses,] [and] [learning disabilities]].
Comment
Some form of this instruction should be given when a claim involves a theory of actual or record disability. Whether this instruction or a modified version should be given when a claim involves only a theory that the plaintiff was "regarded as" having a disability may require further analysis. See Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018).
See 42 U.S.C. § 12102(1). The definition of disability in the first paragraph is taken from § 12102(1)(A)-(C). The definition of physical or mental impairment in the second paragraph is taken from 29 C.F.R. § 1630.2(h)(1)-(2).
Revised Jan. 2019
When the major life activity under consideration is that of working, the plaintiff must prove, by a preponderance of the evidence, that the plaintiff was substantially limited in [his] [her] ability to work compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Factors you may consider include the condition, manner or duration under which the plaintiff performs the work as compared to most people in the general population.
Comment
See Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir.2014) (holding that ADAA relaxed standard for determining whether plaintiff is substantially limited in engaging in major life activity), cert. denied, 135 S. Ct. 1500 (2015). The ADA lists working as a major life activity. 42 U.S.C. § 12102(2)(A). The definition of "substantially limited" is taken from 29 C.F.R. § 1630.2(j)(1)(ii). The factors are taken from 29 C.F.R. § 1630.2(j)(4).
"Consideration of facts such as condition, manner, or duration may include, among other things, consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function. In addition, the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity." Id. § 1630.2(j)(4)(ii). The focus is not necessarily on what a disabled individual can achieve. For example, "someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population." Id. § 1630.2(j)(4)(iii).
This instruction may be modified according to the major life activity alleged by the plaintiff.
When the major life activity under consideration is the ability to interact with others, the plaintiff must prove, by a preponderance of the evidence, that [he] [she] was substantially limited compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.
Difficulty getting along with others is not enough. A plaintiff must show that [his] [her] interactions with others were characterized on a regular basis by severe problems such as consistently high levels of hostility, social withdrawal or failure to communicate when necessary.
Comment
The Ninth Circuit has recognized interacting with others as a major life activity. Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir.2014), cert. denied, 135 S. Ct. 1500 (2015).
The language of the instruction was taken from McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999) ("Recognizing interacting with others as a major life activity of course does not mean that any cantankerous person will be deemed substantially limited in a major life activity."). See also Weaving, 763 F.3d at 1114 (noting that interacting with others is not the same as getting along with others: "One who is able to communicate with others, though his communications may at time be offensive, ‘inappropriate, ineffective, or unsuccessful,’ is not substantially limited in his ability to interact with others within the meaning of the ADA.") (citation omitted). The definition of "substantially limited" is taken from 29 C.F.R. § 1630.2(j)(1)(ii).
The second element of the ADA claim that the plaintiff must prove is that the plaintiff is a qualified individual under the ADA.
The term qualified individual means an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. The individual must satisfy the requisite skill, experience, education, and other job-related requirements of the employment position.
Comment
See 42 U.S.C. § 12111 (employment-related definitions); 29 C.F.R. § 1630.2(m) (qualified individual). For a definition of disability, see Instruction 12.2 (ADA—Physical or Mental Impairment).
An individual who fails to satisfy job prerequisites, such as a license, cannot be considered qualified within the meaning of the ADA unless he or she can show that the prerequisite is itself discriminatory. Johnson v. Bd. of Trustees, 666 F.3d 561, 567 (9th Cir.2011) (noting law firm that requires lawyers to have graduated from accredited law school and passed bar examination need not provide accommodation to disabled individual who does not meet selection criteria).
"[O]ne must be able to perform the essential functions of employment at the time that one is discriminated against in order to bring suit." Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir.2000); see Johnson, 666 F.3d at 564. A disabled employee or applicant engaged in the use of illegal drugs at the time of the discriminatory incident will not be considered a "qualified individual with a disability" when the covered entity acts on the basis of such use. 42 U.S.C. § 12114(a); Lopez v. Pacific Maritime Ass’n, 657 F.3d 762, 764-68 (9th Cir.2011) (rejecting discrimination claim challenging one-strike rule that permanently eliminated candidates who tested positive for drug use; leaving open question of how disparate impact claim is affected by 42 U.S.C. § 12112(b)(6), governing selection criteria that tends to screen out individuals with disability). See also Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir.2015) (holding that under Oregon disability law, interpreted consistently with ADA, employee who makes serious and credible threats to kill coworkers is not qualified individual regardless of whether threats stem from mental illness; ADA regulations do not require employer to analyze separately whether employee poses direct threat to health or safety of others in workplace under 42 U.S.C. § 12113).
"Holds or desires" has been interpreted by the Ninth Circuit to apply in situations when employees request reassignment "even if they cannot perform the essential functions of the current position." Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir.2000), vacated on other grounds, 535 U.S. 391 (2002)
An essential function of an employment position means the fundamental job duties of the employment position the plaintiff holds or desires. It does not include the marginal functions that may occur through the course of a job.
You must consider the employer's judgment as to what functions of a job are essential. If any employer has prepared a written description before advertising or interviewing applicants for the job, this description is evidence of the essential functions of the job.
Other factors that may bear upon whether a job function is essential include, but are not limited to:
1. [whether the reason the position exists is to perform that function][;]
2. [whether there are a limited number of employees available among whom the performance of that job function can be distributed][;]
3. [whether the job function is highly specialized, and the person in that particular position is hired for [his] [her] expertise or ability to perform the particular function][;]
4. [the amount of time spent performing the job function][;]
5. [the consequences of not requiring the individual holding the position to perform the function][;]
6. [the terms of any collective bargaining agreement][;]
7. [the work experience of past employees who have held the position][;] [and]
8. [the work experience of current employees that hold similar positions].
Comment
The second paragraph is based on 42 U.S.C. § 12111(8). The term “marginal functions” in the first paragraph and the factors in the third paragraph are in 29 C.F.R. § 1630.2(n) (1999). See Dark v. Curry County, 451 F.3d 1078, 1084-85 (9th Cir. 2006) (discussing essential functions and marginal functions); see, e.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1238 (9th Cir. 2012) (holding that attendance is essential job function of neo-natal intensive care nurse).
“Holds or desires” has been interpreted by the Ninth Circuit to refer to situations when employees request reassignment “even if they cannot perform the essential functions of the current position.” Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000), vacated on other grounds, 535 U.S. 391 (2002). A disabled individual who can no longer perform the essential functions of her position may be entitled to relief if reassignment is found to be a “reasonable accommodation."
In Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003), the court held an employer had no duty to accommodate a deputy marshal when it was undisputed, he could not perform the essential function of restraining prisoners through hand-to-hand combat, even though the cause of hand pain had been misdiagnosed.
In Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001), the court observed that “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.” (quoting Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1071 (9th Cir. 2000)). In Cripe, the Ninth Circuit held that the issue of whether the ability of all specialized police officers to make a forcible arrest constituted an essential function of the job presented a factual question under the circumstances of that particular case. Id. at 888-89.
In Bates v. UPS, Inc., 511 F.3d 974, 990 (9th Cir. 2007) (en banc), the court emphasized that “essential functions” are not to be confused with “qualification standards” established by an employer for a certain position. “Whereas ‘essential functions’ are ‘basic duties,’ 29 C.F.R. § 1630.2(n)(1), ‘qualification standards’ are ‘personal and professional attributes’ that may include ‘physical, medical [and] safety’ requirements. Id. § 1630.2(q).”
To establish the plaintiff’s claim that the defendant discriminated against the plaintiff in violation of the ADA by failing to provide a reasonable accommodation, the plaintiff must prove, by a preponderance of the evidence, each of the following three elements:
1. the plaintiff is a “qualified individual”;
2. the defendant received adequate notice of the plaintiff’s disability and desire for a reasonable accommodation; and
3. a reasonable accommodation is available that would have enabled the plaintiff to [apply or qualify for] [perform the essential functions of] the job.
Under the ADA, [an] accommodation[s] by the defendant may include, but [is] [are] not limited to:
1. [modifying or adjusting a job application process to enable a qualified applicant with a disability to be considered for the position][;]
2. [making existing facilities used by employees readily accessible to and usable by individuals with disabilities][;]
3. [job restructuring][;]
4. [part-time or modified work schedule][;]
5. [reassignment to a vacant position][;]
6. [acquisition or modifications of examinations, training materials or policies][;]
7. [provision of qualified readers and interpreters][;] [or]
8. [other similar accommodations for individuals with plaintiff’s disabilities].
It is for you to determine whether the accommodation[s] requested by the plaintiff [is] [are] reasonable.
A reasonable accommodation does not include changing or eliminating any essential function of employment, shifting any of the essential functions of the subject employment to others, or creating a new position for the disabled employee.
[If the plaintiff rejects a reasonable accommodation that could enable the plaintiff to perform the essential functions of the position, the plaintiff cannot be considered qualified for the position.]
[An accommodation is generally not reasonable when it consists of a request to be reassigned to another job position that would be in violation of an employer’s seniority system. This general rule, however, does not apply if the plaintiff has proved, by a preponderance of the evidence, special circumstances such as [[the seniority system provides for exceptions] [the employer has exercised changes to the seniority system] [state other special circumstance]].]
Comment
See Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (“The ADA treats the failure to provide a reasonable accommodation as an act of discrimination if the employee is a ‘qualified individual,’ the employer receives adequate notice, and a reasonable accommodation is available that would not place an undue hardship on the operation of the employer’s business.”); see also Dunlap v. Liberty Natural Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017) (“Liberty was aware of or had reason to be aware of Dunlap’s desire for a reasonable accommodation. Such awareness triggered Liberty’s duty to engage in the interactive process.”) (internal citation omitted).
The bracketed language as to special circumstances at the end of the instruction has been added as a result of language in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405-06 (2002).
The factors listed in this instruction are derived from 42 U.S.C. § 12111(9) and 29 C.F.R. §§ 1630.2(o)(1)(i), (3), 1630.9(d). See also Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1112-14 (9th Cir. 2000) (en banc) (holding that interactive process is mandatory, not permissive duty of employer; employer has duty to initiate interactive process in some circumstances), vacated on other grounds, 535 U.S. 391 (2002).
In U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Supreme Court addressed a requested accommodation (reassignment from the position of cargo handler to that of mailroom worker) that conflicts with a seniority system. The Supreme Court recognized that while ordinarily a proposed accommodation that would otherwise be reasonable becomes unreasonable when in conflict with a seniority system, an employee should have an opportunity to establish any special circumstances that may constitute an exception to the general rule. See also Willis v. Pacific Maritime Ass’n., 236 F.3d 1160 (9th Cir. 2001), amended by 244 F.3d 675, 679 (9th Cir. 2001) (holding that employee’s proposed accommodation was per se unreasonable because it directly conflicted with bona fide seniority system established under collective bargaining agreement).
In PGA Tour v. Martin, 532 U.S. 661 (2001), the Supreme Court ruled that petitioner’s use of a golf cart that is normally prohibited during professional tour events is a reasonable accommodation for a professional golfer, disabled by a degenerative circulatory disorder impairing the ability to walk a golf course in a golf tournament. The Supreme Court found that such an accommodation would not “fundamentally alter” a tournament. Id. at 690.
Unpaid medical leave may be a reasonable accommodation. “Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer.” Dark v. Curry County, 451 F.3d 1078, 1090 (9th Cir. 2006). However, “recovery time of unspecified duration may not be a reasonable accommodation (primarily where the employee will not be able to return to his former position and cannot state when and under what conditions he could return to work at all).” Id. In those jobs for which performance requires attendance at the job, “irregular attendance compromises essential job functions.” Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233, 1237-40 (9th Cir. 2012) (holding that accommodation that would allow neo-natal intensive care unit nurse to miss work whenever she felt she needed to and for so long as she felt she needed was unreasonable).
The Ninth Circuit, in Josephs v. Pacific Bell, 443 F.3d 1050, 1060 (9th Cir. 2006), joined several other circuits in expressly recognizing discriminatory failure to reinstate as a separately actionable claim under the ADA.
The ADA does not impose a duty to create a new position to accommodate a disabled employee. Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155-56 (9th Cir. 1999).
Revised Oct. 2019
The defendant has asserted the affirmative defense of “undue hardship.” A defendant is not required to provide an accommodation that will impose an undue hardship on the operation of the defendant’s business. If the defendant proves by a preponderance of the evidence that providing an accommodation will impose an undue hardship on the operation of the defendant’s business, the defendant is not liable under the ADA for failure to provide that accommodation.
The term undue hardship means an action requiring significant difficulty or expense. It takes into account the financial realities of the particular defendant and refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.
The factors to be considered in deciding whether an accommodation would cause undue hardship include:
1. [the nature and net cost of the accommodation, accounting for tax credits or deductions and other outside funding][;]
2. [the overall financial resources of the defendant's facility 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][;]
3. [the overall financial resources of the defendant's facility, the overall size of the business of a defendant's facility with respect to the number of its employees, the number, type, and location of its facilities][;]
4. [the number of persons employed by defendant and the effect of accommodation][;]
5. [the type of operations the defendant is involved in and the composition, structure, and functions of the work force][;]
6. [the geographic separateness and administrative or fiscal relationship of the facility in question to the defendant][;] [and]
7. [the overall impact of the proposed accommodation on the operation of the defendant’s facilities, including the impact on other employees and the ability to conduct business].
Comment
A defendant has the burden of proving the defense of undue hardship. See 42 U.S.C. § 12112(b)(5)(A) (noting that disability discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity”) (emphasis added); U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002) (“Once the plaintiff has made this showing [that an accommodation seems reasonable on its face], the defendant/employer then must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.”)
The factors in this instruction are derived from 42 U.S.C. § 12111(10) and 29 C.F.R. § 1630.2(p), App. 1630.2(p).
Revised Oct. 2019
Comment
This instruction has been withdrawn based on the Ninth Circuit’s decision in Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1270 (9th Cir. 2009) ("Because we conclude that ADA retaliation claims are redressable only by equitable relief, no jury trial is available.").
Revised Oct. 2019
Business necessity is a defense to a claim of discrimination under the ADA.
If you find that the defendant’s application of standards, criteria, or policies have [the effect of screening out or otherwise denying a job or benefit to individuals with plaintiff's disability] [a disparate impact on individuals with plaintiff's disability], the defendant must prove, by a preponderance of the evidence, that the standard, criterion, or policy:
1. is uniformly applied;
2. is job-related;
3. is consistent with business necessity; and
4. cannot be met by a person with plaintiff's disability even with a reasonable accommodation.
If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff, unless you also find that the defendant has proved this affirmative defense, in which event your verdict should be for the defendant.
Comment
See 42 U.S.C. § 12113(a) (describing defenses and terms) and 29 C.F.R. § 1630.15(b) (1999) (describing the four elements a defendant must prove to satisfy burden). For a discussion of the business necessity defense as it applies to an across-the-board employer qualification standard (hearing test for package car drivers), see Bates v. UPS, Inc., 511 F.3d 974, 994-98 (9th Cir. 2007) (en banc). For an analysis of business necessity as it applies when an employer requires an employee to undergo a medical examination under 42 U.S.C. § 12112(d)(4)(A), see Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010) (holding that standard may be met even before employee’s work performance declines if employer has significant evidence that could cause reasonable person to inquire whether employee is still capable of performing job; finding police officer exhibiting erratic behavior could be referred for fitness for duty examination); see also Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009) (defining medical examination).
The Supreme Court has recognized that the “direct threat” affirmative defense (whether an employee poses a threat to others or to the employee himself or herself) is consistent with “business necessity” principles encompassed in the ADA (§ 12113) and the EEOC regulations (29 C.F.R. § 1630.15(b)(2) (2001). Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 76-77 (2002).
It is a defense to the plaintiff’s ADA claim if the plaintiff posed a direct threat to the health and safety of others [or if the requirements of the job would pose a direct threat to the plaintiff]. The defendant may require, as a qualification for the position, that an individual not pose a “direct threat” to the health or safety of [[others] [himself] [herself]] in the workplace. A health or safety risk can only be considered if it is a significant risk of substantial harm. Assessment of the existence of a direct threat must be based on valid and objective evidence and not speculation.
The defendant claiming the direct threat defense must prove by a preponderance of the evidence that the plaintiff posed a direct threat to the health or safety of [[others] [himself] [herself]] that could not be eliminated by a reasonable accommodation.
Factors that may be considered in determining whether an individual poses a direct threat to the health and safety of [[others] [himself] [herself]] are:
1. the nature and severity of the potential harm;
2. the duration of the potential harm;
3. the imminence of the potential harm; and
4. the probability of the harm occurring.
If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff, unless you also find that the defendant has proved this affirmative defense, in which event your verdict should be for the defendant.
Comment
See 42 U.S.C. §§ 12111(3) (defining direct threat), 12113(b) (providing that qualification standard can include condition that a person not pose direct threat); School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273 (1987) (addressing claim under Rehabilitation Act and providing criteria for what is considered direct threat).
Because an employee who makes serious and credible threats to kill coworkers is not a qualified individual, an employer is not required to invoke the direct threat defense. See Instruction 12.5 (ADA—Qualified Individual); Mayo v. PCC Structurals, Inc., 795 F.3d 941, 945 (9th Cir. 2015). Similarly, an employer who terminates an employee based on past threats of violence against coworkers may show a legitimate nondiscriminatory reason for the termination without invoking the direct threat defense. Curley v. City of North Las Vegas, 772 F.3d 629, 632-33 (9th Cir. 2014).
This defense does apply when the direct threat is to the disabled individual. See Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 76-77 (2002) (recognizing availability of “direct threat” defense when toxins at oil refinery would exacerbate plaintiff’s liver condition).
Comment
See Chapter 5 ("Damages") for damage instructions. See also 42 U.S.C. § 12117(a) (applying powers, remedies, and enforcement provisions of Title VII to any persons alleging employment discrimination on basis of disability).
See 42 U.S.C. § 1981a(2) (providing for recovery of compensatory and punitive damages against defendant who violates § 102(b)(5) of ADA (42 U.S.C. § 12112(b)(5)) by failing to make reasonable accommodation). Punitive damages are not available against a public entity in suits brought under 42 U.S.C. § 12132. Barnes v. Gorman, 536 U.S. 181, 189 (2002).
See 42 U.S.C. § 1981a(b)(3) (limiting amount of damages recoverable, based on defendant’s employee base). These limits do not apply to back pay or front pay, which are awarded under 42 U.S.C. § 2000e-5(g)(1), not 42 U.S.C. § 1981a. See Pollard v. E.I. du Pont de Nemours & Company, 532 U.S. 843, 848 (2001).
See 42 U.S.C. § 1981a(c)(2) (requiring that limits on damages not be disclosed to jury).
There is a significant question whether back pay and front pay are questions for the jury or the court.
See also the Introductory Comment to Chapter 10 ("Civil Rights—Title VII—Employment Discrimination; Harassment; Retaliation") and the Introductory Comment to this chapter.
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.00_civil_rev_3_2023.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.1A_civil_rev_6_2022.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.1B_civil_revised_6_2022.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.1C_civil_rev_3_2023.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.02_civil_revised_1-2019.wpd
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.03_civil_2017.wpd
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.04_civil_2017.wpd
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.05_civil_2017.wpd
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.06_civil_2017.wpd
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.07_civil_rev_10-2019.wpd
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.08_civil_rev_10-2019.wpd
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.09_civil_rev_10-2019.wpd
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.10_civil_2017.wpd
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.11_civil_2017.wpd
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/12.12_civil_2017.wpd