12.4 ADA—WORK AS A MAJOR LIFE ACTIVITY
When the major life activity under consideration is that of working, the plaintiff must prove, by a preponderance of the evidence, that the plaintiff was precluded from employment in a broad range of jobs. The inability to perform a single, particular job does not itself constitute a substantial limitation in the major life activity of working.
Other factors that you should consider when determining whether the plaintiff is substantially limited in the major life activity of working include:
(1) the geographical area to which the plaintiff has reasonable access, and
(2) the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area, from which the plaintiff is also disqualified.
This instruction is based on 29 C.F.R. § 1630.2(j)(3)(ii)(A), (B) (1999). See Josephs v. Pacific Bell, 443 F.3d 1050, 1063 (9th Cir.2006) ("Under the ADA, when the ‘major life activity’ that is ‘substantially limit[ed]’ is working, the employee must be regarded as unable to work in a ‘class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.’" See also Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (where plaintiff did not distinguish between a store manager class of employment and his activities in real estate and sign-making, he was not substantially limited as to the major life activity of working).
There is a controversy regarding the recognition of work as a major life activity, as explained by the Supreme Court:
Because the parties accept that the term "major life activities" includes working, we do not determine the validity of the cited regulations. We note, however, that there may be some conceptual difficulty in defining "major life activities" to include work, for it seems "to argue in a circle to say that if one is excluded, for instance, by reason of [an impairment, from working with others] . . . then that exclusion constitutes an impairment, when the question you’re asking is, whether the exclusion itself is by reason of handicap." Tr. of Oral Arg. in School Bd. of Nassau Co. v. Arline, O.T.1986, No. 85–1277, p. 15 (argument of Solicitor General). Indeed, even the EEOC has expressed reluctance to define "major life activities" to include working and has suggested that working be viewed as a residual life activity, considered, as a last resort, only "[i]f an individual is not substantially limited with respect to any other major life activity." 29 C.F.R. pt. 1630, App. § 1630.2(j) (1998) (emphasis added) ("If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working" (emphasis added)).
Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). Accord, Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1134, n.9 (9th Cir.2001).