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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 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 accommodation, education, and access to public services.  § 12101(a)(3) and (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).

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.

Many of the reported cases involving claims of employment discrimination brought under the ADA focus on key issues such as whether an individual has a disability within the meaning of the ADA; whether the individual is "otherwise qualified for the position"; whether the individual can perform the "essential functions" of the job with or without "reasonable accommodation"; and whether "reasonable accommodation" has been provided. The instructions address many of these issues.

The elements of an employment claim under the ADA are identical regardless of whether the defendant is a private employer (Title I) or a public entity (Title II). Those elements are that the claimant has a disability (as defined in 42 U.S.C. § 12102(2)), that the claimant is qualified to perform the essential functions of the job, and that the claimant has suffered adverse employment action because of the disability. Hutton v. Elf Etochem No. Am., Inc., 273 F.3d 884, 895 (9th Cir.2001).

The element of causation has been thoroughly addressed in Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1063–66 (9th Cir.2005). In essence, Head clarified several questions. First, Head observed that the ADA’s "because of" language does not require a showing that a disability (or a reasonable request for accommodation) was the sole cause for an adverse employment action. Second, Head heavily relied on the Title VII case of Costa v. Desert Palace, Inc., 299 F.3d 838, 856–57 (9th Cir.2002), aff’d, 539 U.S. 90 (2003) in setting forth an analytical approach on how to instruct a jury on the subject of causation:

The Costa court laid out two alternatives for the trial judge. This approach reflects the fact that although the statute uses "because of" language, the ADA plaintiff need not show more than that impermissible motives were a "motivating factor" in any adverse action. The approach also reflects the fact that the evidence in a particular case may not suggest more than one possible reason for the challenged action.

Under the first alternative in Costa, if the judge determines that the only reasonable conclusion the jury could reach is that discriminatory animus is the sole reason for the challenged action or that discrimination played no role in the decision, the jury should be instructed to determine whether the challenged action was taken "because of" the prohibited reason.

The second alternative applies in a case in which the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate. In that case the jury should be instructed to determine whether the discriminatory reason was a "motivating factor" in the challenged action.

Head, 413 F.3d at 1065–66; accord, Dark v. Curry County, 451 F.3d 1078, 1084–85 (9th Cir.2006), cert. denied, 127 S. Ct. 1252 (2007).

Third, Head held "that the ADA outlaws adverse employment decisions motivated, even in part, by animus based on a plaintiff’s disability or request for an accommodation–a motivating factor standard." Head, 413 F.3d at 1065.

As noted, the Ninth Circuit’s causation analysis in Head was based, inter alia, on Costa, but since Head, and in the context of the ADEA, the Supreme Court has held "textual differences between Title VII and the ADEA . . . prevent . . . [application of] [Costa v.] Desert Palace to federal age discrimination claims." Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 fn. 2 (2009). Specifically, 1991 amendments to Title VII, but not to the ADEA, provide that discrimination is "established" when a plaintiff shows the protected status was "a motivating factor" for the adverse employment actions. Without this additional language in the ADEA, the Court held in Gross that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." Id. at 2352. As with the ADEA, the 1991 "motivating factor" amendments to Title VII were not made to the ADA. Accordingly, Head and its rule of causation in an ADA case should be read carefully in light of Gross.

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).

The ADA does not define key language such as "physical or mental impairment," "major life activity," and "substantially limits." The Supreme Court has noted this omission and, while questioning the authority of the EEOC to issue regulations defining these terms, has adopted certain EEOC definitions when the parties have accepted them as reasonable. See Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184, 194–96 (2002). See also Fraser v. Goodale, 342 F.3d 1032, 1038–41 (9th Cir.2003) (questioning the persuasive authority of EEOC regulations, but relying on the pre-ADA federal regulations under the Rehabilitation Act of 1973 in concluding diabetes is a "physical impairment" and "eating" is a major life activity); EEOC V. United Parcel Service, 306 F.3d 794, 801 (9th Cir.2002) (citing both the Rehabilitation Act and EEOC regulations in recognizing "seeing" as a major life activity).

The Supreme Court, however, has defined "substantially limited" to mean that an individual, in performing manual tasks, ". . . must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment must also be permanent or long-term." Toyota Motor Mfg., 534 U.S. at 198.

Some cases do provide guidance on the question of when EEOC regulations may be properly incorporated into the ADA. 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. Accord, 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 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.

Because cases decided under the ADA draw heavily upon Title VII and cases decided thereunder on subjects such as causation and remedies, 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.

Approved 8/2009