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In this case the Plaintiff ________ makes a claim based on a federal law known as the Americans with Disabilities Act, which will be referred to in these instructions as the ADA.

[For use in cases not involving the “regarded as” prong of the definition of disability:]1

Under the ADA, an employer may not deprive a person with a disability of an employment opportunity because of that disability, if that person is able, with reasonable accommodation if necessary, to perform the essential functions of the job. Terms such as “disability” and “reasonable accommodation” are defined by the ADA and I will instruct you on the meaning of those terms.

[Plaintiff’s] claim under the ADA is that [he/she] was [describe the employment action at issue] by the defendant ________ because of [plaintiff’s] [describe alleged disability].

[Defendant] denies [plaintiff’s] claims. Further, [defendant] asserts that [describe any affirmative defenses].

As you listen to these instructions, please keep in mind that many of the terms I will use, and you will need to apply, have a special meaning under the ADA. So please remember to consider the specific definitions I give you, rather than using your own opinion of what these terms mean.

COMMENT This instruction is derived from 42 U.S.C. § 12102; id. § 12111; id. § 12112; and id. § 12201.

Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.

“Congress enacted the ADA in 1990 in an effort to prevent otherwise qualified individuals from being discriminated against in employment based on a disability.” Gaul v. Lucent Technologies Inc., 134 F.3d 576, 579 (3d Cir. 1998). The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).2 An entity discriminates against an individual on the basis of disability when, inter alia, it does “not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the] entity.” Section 12112(b)(5)(A). Reasonable accommodations may include, inter alia, “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9).

“In order to make out a prima facie case of disability discrimination under the ADA, [the plaintiff] must establish that she (1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has suffered an adverse employment action because of that disability.” Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006).

The EEOC’s interpretive guidance articulates a two-step test for determining whether a person is a qualified individual. “The first step is to determine if the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.....The second step is to determine whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation..... The determination of whether an individual with a disability is qualified is to be made at the time of the employment decision.” 29 C.F.R. pt. 1630, App. 1630.2(m) (2019).

As discussed in Comment 9.2.1, Congress has defined “disability” to mean, “with respect to an individual — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). This chapter refers to these three prongs of the definition as “actual” disability, “record of” disability, and “regarded as” disability, respectively. A plaintiff might choose to proceed under one or more than one of these prongs in a given case. As Comment 9.2.1 explains, “regarded as” disability is in some ways easier to show than “actual” disability or “record of” disability – but under the ADA as amended in 2008, there is a significant limit on “regarded as” disability claims: “A covered entity... need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 12102(1) of this title solely under subparagraph (C) of such section.” 42 U.S.C. § 12201(h). This limitation will require tailoring of instructions in cases where a plaintiff relies in whole or in part on the “regarded as” prong. Among other possible effects of the limitation on “regarded as” disability, there arises a question concerning the definition of a “qualified individual.” As noted above, the statute defines “qualified individual” as one who can perform the position’s essential functions “with or without reasonable accommodation.” 42 U.S.C. § 12111(8). But because Section 12201(h) absolves employers from any duty to provide reasonable accommodations to one who shows disability solely under the “regarded as” prong, it seems possible that the operative definition of “qualified individual” should be revised, for a “regarded as” claim, to omit a reference to reasonable accommodations.3 Thus, the Instruction specifies that its second paragraph (which refers to reasonable accommodations) is for use in cases not involving the “regarded as” prong. Other adjustments are noted elsewhere in the commentary.

The ADA, Public Accommodations and Public Services

Title I of the ADA covers claims made by employees or applicants for disparate treatment, failure to make reasonable accommodations, and retaliation against protected activity. Titles II and III cover public accommodations and public services for persons with disabilities. These instructions are intended to cover only those cases arising under the employment provisions of the ADA. For a discussion and application of the standards governing actions under Titles II and III of the ADA, see Bowers v. National Collegiate Athletic Assoc., 475 F.3d 524 (3d Cir. 2007).

The Rehabilitation Act

Federal employers, federal contractors, and employers that receive federal funding are subject to the Rehabilitation Act, which is a precursor of the ADA. 29 U.S.C. § 701 et seq. The substantive standards for a claim under the Rehabilitation Act are in many respects identical to those governing a claim under the ADA. See, e.g., Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007) (“The Rehabilitation Act expressly makes the standards set forth in the 1990 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., applicable to federal employers and to employers receiving federal funding.”); Bragdon v. Abbott, 524 U.S. 624, 632 (1998) (in interpreting the ADA’s definition of “disability” by reference to interpretations of the Rehabilitation Act’s definition of “handicapped individual,” observing that 42 U.S.C. § 12201(a) directs the courts “to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act”); Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 330 n.13 (3d Cir. 2003) (noting that a precedent concerning the duty under the Rehabilitation Act of the employer and employee to engage in an interactive process “applies with equal force to accommodations under the ADA”); Deane v. Pocono Medical Center, 142 F.3d 138, 149 n.13 (3d Cir. 1998) (en banc) (explaining in an ADA employment-discrimination case that “interpretations of the Rehabilitation Act’s ‘reasonable accommodation’ provisions are relevant to our analysis of the ADA and vice versa because in 1992, Congress amended the section of the Rehabilitation Act defining ‘reasonable accommodation’ to incorporate the standards of the ADA” (citing Mengine v. Runyon, 114 F.3d 415, 420 & n.4 (3d Cir. 1997) (in Rehabilitation Act case brought against a federal employer, quoting 29 U.S.C. § 794(d))). These ADA instructions can therefore be adapted for use in a case involving an employment-discrimination claim brought under the Rehabilitation Act.

The ADA’s Association Provision

Chapter 9 does not include an instruction specifically dealing with claims under 42 U.S.C. § 12112(b)(4), which defines “discriminat[ion] against a qualified individual on the basis of disability” to include “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” For a discussion of such claims, see Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510-11 (3d Cir. 2009) 582 F.3d 500, 510-11 (3d Cir. 2009).

Religious Entities; Ministerial Exception

Religious entities sued under Subchapter I of the ADA may assert two statutory defenses set out in 42 U.S.C. § 12113(d). But retaliation claims under 42 U.S.C. § 12203(a) arise under Subchapter IV of the ADA, which does not contain such defenses.

Apart from those statutory defenses, the First Amendment’s religion clauses give rise to an affirmative defense that “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702, 709 n.4 (2012) (applying this defense to an ADA retaliation claim). See also Our Lady of Guadalupe v. Morrissey-Berru, 140 S. Ct. 1149 (2020) (applying the exception to an ADA discrimination claim). For further discussion of the ministerial exception, see Comment 5.0.

Scope of Chapter

These model instructions address the elements of ADA employment claims and defenses; pertinent definitions; and questions of damages. The commentary is designed to explain the drafting of the model instructions and generally does not focus on other procedural matters.4

Note to Users

Users of Chapter Nine should be aware that, in drafting the Model Instructions and Commentary, the Committee has relied upon applicable regulations as well as the statute and caselaw. While the Committee will make every effort, at its periodic meetings, to keep the instructions and commentary updated as these authorities may change over time, users should be sure to check for any updates that might require adjustments in one or more instructions.

(Last Updated July 2019)


1 See Comment for discussion of considerations specific to “regarded as” disability.
2 Section 12111(8) continues: “For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”
3 As of spring 2020, the Court of Appeals has not addressed this issue, but lower-court caselaw has taken the view expressed in the text. See, e.g., Hanson v. N. Pines Mental Health Ctr., Inc., No. CV 16-2932 (DWF/LIB), 2018 WL 1440333, at *8 (D. Minn. Mar. 22, 2018); McNelis v. Pennsylvania Power & Light, Susquehanna, LLC, No. 4:13-CV-02612, 2016 WL 5019199, at *26 (M.D. Pa. Mar. 23, 2016), report and recommendation adopted, No. 4:13-CV-02612, 2016 WL 4991440 (M.D. Pa. Sept. 19, 2016), aff'd sub nom. McNelis v. Pennsylvania Power & Light Co., 867 F.3d 411 (3d Cir. 2017); Wiseman v. Convention Ctr. Auth. of the Metro. Gov't of Nashville & Davidson Cty., No. 3:14 C 01911, 2016 WL 54922, at *12 (M.D. Tenn. Jan. 5, 2016).
4 Administrative-exhaustion requirements provide one example. As to employment claims, the ADA incorporates a number of remedies and procedures from Title VII. See 42 U.S.C. § 12117(a) (“The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.”). Among those procedures is a requirement of administrative exhaustion. See 42 U.S.C. § 2000e-5; see also 1 MERRICK T. ROSSEIN, EMPLOYMENT DISCRIMINATION LAW AND LITIGATION § 11:1.50 (online edition updated June 2018) (discussing the plaintiff’s option to await the outcome of the administrative proceeding or to obtain a “right-to-sue” letter prior to that outcome); Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 298 (3d Cir. 2017) (discussing administrative-exhaustion requirement as applied to ADA employment-discrimination and Title VII claims). “In Title VII actions, failure to exhaust administrative remedies is an affirmative defense in the nature of statute of limitations…. Because failure to exhaust administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving that the plaintiff has failed to exhaust administrative remedies.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997). In Williams, which involved the distinctive exhaustion requirement set by 29 C.F.R. § 1614.105 for suits by federal employees, the Court of Appeals evinced the view that the question of exhaustion could properly be submitted to the jury. See id. (“By failing to offer any evidence to the jury on an issue upon which he carried the burden of proof, the Postmaster effectively waived his affirmative defense.”). See also Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1846, 1851 (2019) (holding that Title VII’s requirement of administrative charge-filing “is not jurisdictional” and explaining that this requirement is instead “a [claim-]processing rule, albeit a mandatory one”). The Court of Appeals has not applied Williams to address the judge/jury division of labor in a case involving the more general exhaustion provisions in Section 2000e-5, but at least one other Court of Appeals has held that the questions to which a jury trial right attaches include “the defense in a Title VII case of having failed to file a timely administrative complaint.” Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1160 (7th Cir. 2012). Compare Small v. Camden Cty., 728 F.3d 265, 269, 271 (3d Cir. 2013) (holding that compliance with the exhaustion requirement set by the Prison Litigation Reform Act presents a question that can be resolved by the judge). In the event that a dispute over exhaustion presents a jury question, the court may wish to submit relevant interrogatories to the jury. As of this time, the Committee has not prepared a model instruction on exhaustion. The Committee welcomes feedback from users of the model instructions concerning the need for, and appropriate nature of, such a model instruction.

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