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12.1C ADA Employment Actions—“Motivating Factor”—Elements and Burden of Proof

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12.1C ADA EMPLOYMENT ACTIONS—"MOTIVATING FACTOR"—ELEMENTS AND BURDEN OF PROOF

As to the plaintiff’s claim that [his] [her] [state plaintiff’s disability] was a motivating factor for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] [him] [her], the plaintiff has the burden of proving the following elements by a preponderance of the evidence:

1. the plaintiff has a disability within the meaning of the ADA;

2. the plaintiff was a qualified individual as that term is defined later in these instructions; and

3. the plaintiff’s [state plaintiff’s disability] was a motivating factor in the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff.

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

As noted in the Introductory Comment, the Ninth Circuit has ruled that an ADA claimant must only prove that discrimination based on the claimant’s disability was a "motivating factor" in the employer’s decision to take adverse action and that the "because of" language contained in the ADA does not affect this causal standard. Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1063–66 (9th Cir.2005).

See Comment to Instruction 12.1B (ADA Employment Actions—"Sole Reason"—Elements and Burden of Proof). See also the discussion of Smith v. City of Jackson, 544 U.S. 228 (2005) in the Introductory Comment to Chapter 11 ("Age Discrimination") on the question of the viability of the same decision defense in employment cases other than Title VII litigation. The committee suggests this instruction be given where the evidence warrants, especially in light of the common principles that buttress redress for employment discrimination under both Title VII and the ADA.

The Ninth Circuit has not explicitly decided whether the "same decision" affirmative defense is an absolute bar to a plaintiff’s recovery in the ADA context. If the trial court determines the evidence supports such a defense and, if established, the defense is a barto the plaintiff’s recovery, add the following, and omit the last paragraph in the above instruction:

If you find that the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. If, on the other hand, the plaintiff has proved all of these elements, the plaintiff is entitled to your verdict, even if you find that the defendant’s decision was motivated by the plaintiff’s disability and a lawful reason. If, however, the defendant proves by a preponderance of the evidence that the defendant would have made the same decision even if the plaintiff’s disability had played no role in the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff, your verdict should be for the defendant.