12.5 ADA—QUALIFIED INDIVIDUAL

The second element of the ADA claim that the plaintiff must prove is that the plaintiff is a qualified individual under the ADA.

The term qualified individual means an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. The individual must satisfy the requisite skill, experience, education, and other job-related requirements of the employment position.

Comment

See 42 U.S.C. § 12111 (employment-related definitions); 29 C.F.R. § 1630.2(m) (qualified individual). For a definition of disability, see Instruction 12.2 (ADA—Physical or Mental Impairment).

An individual who fails to satisfy job prerequisites, such as a license, cannot be considered qualified within the meaning of the ADA unless he or she can show that the prerequisite is itself discriminatory. Johnson v. Bd. of Trustees, 666 F.3d 561, 567 (9th Cir.2011) (noting that, for example, if law firm requires incoming lawyers to have graduated from accredited law school and passed bar examination, law firm need not provide accommodation to disabled individual who does not meet selection criteria).

"[O]ne must be able to perform the essential functions of employment at the time that one is discriminated against in order to bring suit." Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir.2000); see Johnson, 666 F.3d at 564. A disabled employee or applicant engaged in the use of illegal drugs at the time of the discriminatory incident will not be considered a "qualified individual with a disability" when the covered entity acts on the basis of such use. 42 U.S.C. § 12114(a); Lopez v. Pacific Maritime Ass'n, 657 F.3d 762, 764-68 (9th Cir.2011) (rejecting discrimination claim challenging one-strike rule that permanently eliminated candidates who tested positive for drug use; leaving open question of how disparate impact claim is affected by 42 U.S.C. § 12112(b)(6), governing selection criteria that tends to screen out individuals with disability). See also Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir.2015) (holding that under Oregon disability law, interpreted consistently with ADA, employee who makes serious and credible threats to kill coworkers is not qualified individual regardless of whether threats stem from mental illness; ADA regulations do not require employer to analyze separately whether employee poses direct threat to health or safety of others in workplace under 42 U.S.C. § 12113).

"Holds or desires" has been interpreted by the Ninth Circuit to apply in situations when employees request reassignment "even if they cannot perform the essential functions of the current position." Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir.2000), vacated on other grounds, 535 U.S. 391 (2002).