[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].
Under the ADA, if a person is qualified to do the job, it is unlawful for an employer to [refuse to employ/discharge/fail to promote] the person because of that person’s disability.
To succeed on [his/her] claim, [Plaintiff] must prove all the following facts by a preponderance of the evidence:
Second: [Plaintiff] was a qualified individual;
Third: [Defendant] [refused to employ/discharged/failed to promote] [Plaintiff]; and
Fourth: [Defendant] took that action because of [Plaintiff]’s disability.
Definition of “Disability”
A “physical impairment” is a condition that prevents the body from functioning normally. A “mental impairment” is a condition that prevents the mind from functioning normally.
A “major life activity” is an activity that is centrally important to everyday life, including the operation of major bodily functions.
[[Activity at issue] is a major life activity.]
[[Plaintiff] claims that [activity at issue] is a major life activity, and you must decide whether it is. Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.]
An impairment “substantially limits” a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population. An impairment that substantially limits one major life activity is a disability even if it does not limit any other major life activity.
To decide whether [Plaintiff]’s [describe impairment] substantially limits [his/her] ability to [activity at issue], you should consider, as compared to most people in the general population:
(b) the manner in which [Plaintiff] performs [activity at issue]; and
(c) how long [it takes [Plaintiff] to/[Plaintiff] can] perform [activity at issue].
[Episodic impairment: If [Plaintiff]’s impairment is not always a problem but flares up from time to time, that can be a disability if it would substantially limit a major life activity when active.]
[When there is a jury question on “record of” disability: [Plaintiff] also can establish that [he/she] had a disability by proving that [he/she] had a record of a disability. [Plaintiff] had a record of a disability if [he/she] had a history of, or had been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. Put another way, if [Plaintiff] had a disability but [has now recovered/the disability is in remission], [he/she] is still considered to have a disability within the meaning of the ADA.]
[When there is a jury question on “regarded as”: [Plaintiff] can also establish that [he/she] had a disability by proving that [Defendant] regarded [him/her] as having a disability. [Plaintiff] is “regarded as” having a disability if [he/she] proves that [Defendant] [describe adverse employment action] [him/her] because of an actual or perceived impairment – even if the actual or perceived impairment did not limit a major life activity and even if [Defendant] did not think that the actual or perceived impairment limited a major life activity. [But [Plaintiff] cannot be “regarded as” disabled if [his/her] impairment is transitory and minor. A “transitory” impairment is one that’s expected to last six months or less.]]
In this case, [Plaintiff] claims that [he/she] was able to perform the essential functions of [describe job] [with [describe accommodation provided]]. [Defendant] claims that [Plaintiff] was unable to perform [describe functions] [– even with [describe accommodation provided] –] and that [this function/these functions] [was/were] essential to [describe job]. To the extent that [Plaintiff] claims that a particular function is not essential to the job, [he/she] must prove that the function is not essential.
The essential functions of a position are the fundamental duties of that position. The term “essential functions” does not include the position’s marginal functions. To decide whether a function is essential to a particular position, you may consider the following factors:
(b) whether there are a limited number of employees available to perform the function;
(c) whether the function is highly specialized so that an employee in the position is hired for the ability to perform the function;
(d) [Defendant]’s judgment about which functions are essential to the position;
(e) written job descriptions for the position;
(f) the amount of time an employee in the position spends performing the function;
(g) the consequences of not requiring an employee in the position to perform the function;
(h) [the terms of a collective-bargaining agreement]; or
(i) whether others who held the position were required to perform the function.
Direct Threat: [Name of Defendant] contends that [Plaintiff] is not a “qualified individual” because [Plaintiff]’s [employment/continued employment] [posed/would have posed] a direct threat to [Plaintiff] [and/or] to [Defendant]’s other employees. A “direct threat” is a significant risk to the health or safety of [Plaintiff] or others that cannot be eliminated by a reasonable accommodation. Therefore, you must decide whether [Plaintiff] could safely perform the essential functions of [his/her] job with or without a reasonable accommodation. In determining whether [Plaintiff] [posed/would have posed] a direct threat, you may consider:
(b) the severity of the risk of [plaintiff’s condition];
(c) the duration of the risk of [plaintiff’s condition];
(d) how likely it is that harm will occur due to [plaintiff’s condition]; and
(e) whether the potential harm due to [plaintiff’s condition] is likely to occur in the near future.
To determine that [Defendant] [describe adverse employment action] because of [Plaintiff]’s disability, you must decide that [Defendant] would not have [describe adverse employment action] if [Plaintiff] had not had a disability but everything else had been the same.
[Defendant] denies that [he/she/it] [describe adverse employment action] because of [Plaintiff]’s disability and claims that [he/she/it] made the decision for [another reason, other reasons].
An employer may not discriminate against an employee because of the employee’s disability, but an employer may [describe adverse employment action] an employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision and find that [his/her/its] decision was not because of [Plaintiff]’s disability, you must not second guess that decision, and you must not substitute your own judgment for [Defendant]’s judgment – even if you do not agree with it.
[Pretext (optional, see annotations): As I have explained [Plaintiff] has the burden to prove that [Defendant]’s decision to [describe adverse employment action] was because of [Plaintiff]’s disability. I have explained to you that evidence can be direct or circumstantial. To decide whether [Defendant]’s decision [describe adverse employment action] was because of [Plaintiff]’s disability, you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [he/she/it] gave for the decision, you may consider whether the reason[s] [was/were] so unbelievable that [it was/they were] a cover-up to hide the true discriminatory reason for the decision.]
If you find that [Plaintiff] has proved each of the elements [he/she] must prove, you must decide the issue of [his/her] compensatory damages.
When considering the issue of [Plaintiff]’s compensatory damages, you should determine what amount, if any, has been proven by [Plaintiff] by a preponderance of the evidence as full, just and reasonable compensation for all of [Plaintiff]’s damages as a result of [describe adverse employment action], no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize [Defendant]. Also, compensatory damages must not be based on speculation or guesswork.
You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:
(b) emotional pain and mental anguish.
To determine whether and how much [Plaintiff] should recover for emotional pain and mental anguish, you may consider both the mental and physical aspects of injury – tangible and intangible. [Plaintiff] does not have to introduce evidence of a monetary value for intangible things like mental anguish. You must determine what amount will fairly compensate [him/her] for those claims. There is no exact standard to apply, but the award should be fair in light of the evidence.
[Mitigation of Damages: You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to “mitigate” those damages. For purposes of this case, the duty to mitigate damages requires [Plaintiff] to be reasonably diligent in seeking substantially equivalent employment to the position [he] [she] held with [Defendant]. To prove that [Plaintiff] failed to mitigate damages, [Defendant] must prove by a preponderance of the evidence that:
(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.
If you find that [Defendant] proved by a preponderance of the evidence that [Plaintiff] failed to mitigate damages, then you should reduce the amount of [Plaintiff]’s damages by the amount that could have been reasonably realized if [Plaintiff] had taken advantage of an opportunity for substantially equivalent employment.]
[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.
To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights.
There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.
To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.
An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.
There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:
[(2) whether [Defendant] acted spitefully or malevolently];
[(3) whether [Defendant] showed a blatant disregard for civil legal obligations];
[(4) whether [Defendant] failed to investigate reports of discrimination];
[(5) whether [Defendant] failed to take corrective action concerning discriminatory acts or comments by its employees]; and
[(6) whether the person accused of discrimination was included in the employer’s decision making process concerning [Plaintiff]’s [discharge] [denied promotion].]
