[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].
Under the ADA, if an employer knows that an employee has a disability and needs [a] reasonable accommodation[s] to perform the essential functions of [his/her] job, the employer must provide [a] reasonable accommodation[s].
To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Plaintiff] was a qualified individual;
Third: [Defendant] knew of [Plaintiff]’s disability;
Fourth: [Plaintiff] requested an accommodation;
Fifth: A reasonable accommodation existed that would have allowed [Plaintiff] to perform the essential functions of the job; and
Sixth: [Defendant] failed to provide a reasonable accommodation.
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.]
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: [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.
For the third element, [Plaintiff] must prove by a preponderance of the evidence that [Defendant] knew about [his/her] disability.
For the fourth element, [Plaintiff] must prove by a preponderance of the evidence that [he/she] requested an accommodation.
Put another way, the third and fourth elements require [Plaintiff] to prove that [he/she] informed [Defendant] of both the substantial limitations [his/her] disability created and the need for an accommodation.
For the fifth element, [Plaintiff] must prove by a preponderance of the evidence that a reasonable accommodation existed that would have allowed [him/her] to perform the essential functions of the job.
For the sixth element, [Plaintiff] must prove by a preponderance of the evidence that [Defendant] failed to provide a reasonable accommodation.
In this case, [Plaintiff] claims that [he/she] would have been able to perform the essential functions of [describe job] with a reasonable accommodation. [Defendant] claims that [[Plaintiff] was unable to perform the essential job functions – even with a reasonable accommodation/[Defendant] offered [Plaintiff] a reasonable accommodation, and [he/she] refused it/the accommodation [Plaintiff] requested would have imposed an undue hardship on [Defendant]].
A “reasonable accommodation” is a modification or adjustment of the employer’s ordinary work rules, facilities, or terms and conditions of employment that the employer can make without causing an undue hardship.
A reasonable accommodation may include:
(b) job restructuring;
(c) part-time or modified work schedules;
(d) reassignment to a vacant position;
(e) acquiring or modifying equipment or devices;
(f) adjusting or modifying examinations, training materials, or policies;
(g) providing qualified readers or interpreters; or
(h) other similar accommodations for individuals with disabilities.
[In this case, [Plaintiff] claims that [Defendant] should have accommodated [Plaintiff] by requiring another employee to perform certain duties of [his/her] job that [Plaintiff] could not perform because of [his/her] disability. Reallocation of marginal job duties can be a reasonable accommodation – but an employer does not have to transfer any essential job duties to another employee. If the duties [Plaintiff] wanted [Defendant] to reallocate were essential functions of [Plaintiff]’s job, then that is not a reasonable accommodation. If [Plaintiff] wanted [Defendant] to reallocate only marginal job duties to another employee, then that reallocation may be a reasonable accommodation – but only if the reallocation would not impose an excessive burden on the employer or the other employee.]
[In this case, [Plaintiff] claims that [Defendant] should have accommodated [Plaintiff] by modifying [his/her] work schedule. Modification of a work schedule can be a reasonable accommodation – but only if [Plaintiff] shows that the modified work schedule would have enabled [him/her] to perform the essential job functions and shows that it would have been reasonable under the circumstances. An employer’s duty to provide a reasonable accommodation to a disabled employee does not require the employer to burden other employees excessively.]
[In this case, [Plaintiff] claims that [Defendant] should have [explain suggested reasonable accommodation].]
To decide whether [Defendant] denied [Plaintiff] a reasonable accommodation, you should keep in mind that while an employer is required to provide [a] reasonable accommodation[s] that would allow [Plaintiff] to perform the essential job functions, the employer is not required to provide the particular accommodation that [Plaintiff] prefers or requests. There may be more than one reasonable accommodation available under the circumstances, and if [Plaintiff] refused to accept an accommodation offered by [Defendant] that would have allowed [him/her] to perform the essential job functions, [Plaintiff] has not proved that [Defendant] failed to provide a reasonable accommodation.
[Also, just because [Defendant] may have offered a certain accommodation to [Plaintiff] or another employee in the past does not mean that [Defendant] must forever extend the same accommodation to [Plaintiff] or that the accommodation is necessarily reasonable under the ADA. Otherwise, an employer would be reluctant to offer benefits or concessions to disabled employees for fear that by providing the benefit or concession one time, the employer would be required to provide that accommodation in the future. Because [Plaintiff] has requested an accommodation that [Defendant] has provided to [Plaintiff] or another employee in the past does not necessarily mean that the particular accommodation is a reasonable one. Instead, you must determine its reasonableness under all the evidence.]
[Good Faith Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.
[Defendant] claims that after [Plaintiff] informed [Defendant] of [his/her] disability and requested an accommodation, [Defendant] made good faith efforts to consult with [Plaintiff] in order to identify and make a reasonable accommodation [that would not cause an undue hardship on the operation of [Defendant]’s business].
[Defendant] must prove by a preponderance of the evidence that [he/she/it] made good faith efforts to identify and make a reasonable accommodation for [Plaintiff].
If you find by a preponderance of the evidence that [Defendant] made good faith efforts to identify and make a reasonable accommodation for [Plaintiff], then you have found that [Defendant] established its affirmative defense, and you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established [his/her/its] affirmative defense, you must decide the damages issue.]
[Undue-Hardship Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.
[Defendant] claims that the accommodation that [Plaintiff] requested would have imposed an undue hardship on the operation of [his/her/its] business. Under the ADA, [Defendant] is not required to accommodate [Plaintiff] if the accommodation would cause an undue hardship to its business. An accommodation would cause an “undue hardship” if it would cause [Defendant] significant difficulty or expense.
[Defendant] must prove by a preponderance of the evidence that the accommodation [Plaintiff] requested would be an undue hardship.
To decide this issue, you should consider the following factors:
(b) [Defendant]’s overall financial resources, including the size of [Defendant]’s business, the number of employees, and the type of facilities [Defendant] operates;
(c) the financial resources of the facility where the accommodation would be made, including the number of employees at that facility and the accommodation’s impact on the facility’s operations and costs; and
(d) the way that [Defendant] conducts the business’s operations, including [Defendant]’s workforce structure, the location of the facility where the accommodation would be made compared to [Defendant]’s other facilities, and the relationship between or among those facilities.
[Without Affirmative Defense: If you find that [Plaintiff] has proved each element [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 [Defendant]’s failure to provide [Plaintiff] with a reasonable accommodation, 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].]
