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12. AMERICANS WITH DISABILITIES ACT

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Introductory Comment

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. Id. § 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 are intended to cover employment claims under the ADA. The instructions cover both a claim of discrimination based on disability and a claim based on retaliation for opposing unlawful discrimination or participating in an investigation or proceeding under the ADA. "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).

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. The issue in 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 the "direct threat" affirmative defense factors as set forth in the EEOC regulations to an analysis of qualification standards).

A plaintiff’s remedies in employment actions under the ADA are the same remedies available under Title VII governing employment discrimination. 42 U.S.C. § 12117(a). See the Introductory Comment to Chapter 10 ("Civil Rights—Title VI—Employment Discrimination; Harassment; Retaliation") for a summary of available remedies under Title VII.

The committee recommends that Chapter 10 be consulted when there arises a need 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