** This instruction is currently being revised **
12.1B ADA EMPLOYMENT ACTIONS—"SOLE REASON"—ELEMENTS AND BURDEN OF PROOF
As to the plaintiff’s claim that [his] [her] disability was the sole reason 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 evidence 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 was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]] solely because of the plaintiff’s disability.
If you find that 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.
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). See also Cooper v. Neiman Marcus Group, 125 F.3d 786, 790 (9th Cir.1997) (stating elements); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996).
Because the powers, remedies and enforcement provisions of Title VII (42 U.S.C. §§ 2000e-4–6, 8–9) are incorporated into the ADA (42 U.S.C. § 12117(a)), a plaintiff’s remedies would be limited to declaratory or injunctive relief, as well as attorney’s fees and costs in a case where the employer would have made the same decision in the absence of a discriminatory motive.
An employee who commits an act of misconduct may be fired, regardless of whether he or she is disabled with the meaning of the ADA. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.1996) (holding that, while alcoholism is a "disability" under the ADA, employee’s arrest for criminal assault while intoxicated was a nondiscriminatory reason for termination).
The Supreme Court, in Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), has recognized that while disparate treatment may be the most easily understood type of discrimination, a disparate impact claim of discrimination is directed at an employment practice that is facially neutral and does not fall more harshly on one group than another, but cannot be justified by business necessity (holding it was for the jury to determine whether a company’s decision not to relieve plaintiff was based on a neutral policy not to relieve anyone who had violated personal conduct rules, or motivated by plaintiff’s former drug addiction).