12.2 ADA Employment Actions—Record of Disability—Elements

          The plaintiff claims that [his] [her] [other pronoun] record of disability was the reason for the defendant’s decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] [him] [her] [other pronoun].  To succeed on this claim, the plaintiff has the burden of proving each of the following four elements by a preponderance of the evidence: 

            First, the plaintiff has a record of a physical or mental impairment;

            Second, such physical or mental impairment substantially limited one or more major life activities;

            Third, the plaintiff was a qualified individual as that term is later defined in these instructions; and

            Fourth, the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because of [his] [her] [other pronoun] record of a physical or mental impairment]. 

            If you find that the plaintiff has proved each 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 12.1 (ADA Employment Action—Actual Disability—Elements).  

“[A]lthough the ‘duration of an impairment’ remains ‘one factor that is relevant in determining whether the impairment substantially limits a major life activity,’” Shields v. Credit One Bank, N.A., 32 F.4th 1218, 1225 (9th Cir. 2022) (citation omitted), a plaintiff need not establish permanent or long-term effects, id. at 1224. 

Revised March 2024