12.2 ADA—PHYSICAL OR MENTAL IMPAIRMENT
As you have been instructed, the first element of the ADA claim that the plaintiff must prove is that the plaintiff has a recognized disability under the ADA. A "disability" under the ADA is [[a physical or mental impairment] [a record of physical or mental impairment] [being regarded as having a physical or mental impairment]] that substantially limits one or more of the major life activities of such individual.
The terms disability and physical or mental impairment include [[(1) any physiological disorder, or condition,] [cosmetic disfigurement, or anatomical loss] affecting one or more of the following body systems: [neurological,] [musculoskeletal,] [special sense organs,] [respiratory (including speech organs),] [cardiovascular,] [reproductive,] [digestive,] [genito-urinary,] [hemic and lymphatic,] [skin and endocrine][;] [or] [(2) any mental or psychological disorder such as] [intellectual disability,] [organic brain syndrome,] [emotional or mental illnesses,] [and] [learning disabilities]].
Major life activities are the normal activities of living that a nondisabled person can do with little or no difficulty, such as [specify applicable major life activities].
See 42 U.S.C. § 12102(1). The definition of disability in the first paragraph is taken from § 12102(1)(A)-(C). The definition of physical or mental impairment in the second paragraph is taken from 29 C.F.R. § 1630.2(h)(1)-(2).
Major life activites are defined in § 12102(2)(A)-(B) and include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The Ninth Circuit has recognized interacting with others as a major life activity. Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir.2014), cert. denied, 135 S. Ct. 1500 (2015).
The term "substantially limits" must be interpreted consistently with the ADAA. Id. § 12102(4)(B). "‘An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.’" Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir.2014) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)), cert. denied, 135 S. Ct. 1500 (2015).
The regulations contain examples of impairments whose inherent nature "virtually always [will] be found to impose a substantial limitation on a major life activity" and, therefore, involve "simple and straightforward" individualized assessment. 29 C.F.R. § 1630.2(j)(3)(ii). The examples include: intellectual disability substantially limits brain function, cancer substantially limits normal cell growth, diabetes substantially limits endocrine function, and HIV substantially limits immune function. Id. § 1630.2(j)(3)(iii).
"An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." 42 U.S.C. § 12102(4)(D).
In general, "[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures" such as medication, medical equipment, prosthetics, hearing aids, low-vision devices, oxygen therapy equipment or assistive technology. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered. 42 U.S.C. § 12102(4)(E)(i)-(ii); 29 C.F.R. § 1630.2(j)(1)(vi). The distinction between low-vision devices and ordinary eyeglasses or contact lenses is that glasses or lenses correct visual acuity or eliminate refractive error, whereas low-vision devices magnify or enhance a visual image. 42 U.S.C. § 12102(4)(E)(iii).
In an appropriate case, the trial court must instruct the jury that conduct resulting from a disability is part of the disability and is not a separate basis for termination. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir.2007) (in case brought under FMLA and Washington Law Against Discrimination by plaintiff terminated after engaging in profanity-laced outburst allegedly caused by bipolar disorder, Ninth Circuit held it was error to refuse instruction stating that conduct resulting from disability is part of disability and not separate basis for termination, citing ADA case of Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.2001)). However, Gambini did not preclude the employer from arguing that the plaintiff was not a qualified individual or raising a business necessity or direct threat defense. Id. at 1095-96. In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir.2015), the Ninth Circuit held that an employee who makes serious and credible threats to kill coworkers is not a qualified individual regardless of whether the threats stemmed from mental illness. Id. at 944 (analyzing case brought under Oregon disability law and interpreting consistently with ADA). See, as to the defenses of business necessity and direct threat, respectively,Instruction 12.10 (ADA—Defenses—Business Necessity) and Instruction 12.11 (ADA—Defenses—Direct Threat)