12.1C ADA Employment Actions—Regarded As Disability—Elements

           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