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Under the ADA, [plaintiff] must establish that [he/she] was a “qualified individual.” This means that [plaintiff] must prove two elements:
First, that [he/she] had the skill, experience, education, and other job-related requirements for the [describe job],40 and
Second, that [he/she] could do the job’s “essential functions” [, either with or without [describe requested accommodation]].41
If [plaintiff] cannot prove both elements, then [plaintiff] is not a qualified individual under the ADA. If [plaintiff] is not a qualified individual within the meaning of the ADA, you must return a verdict for [defendant], even if the reason [plaintiff] is not qualified is solely as a result of [his/her] disability. The ADA does not require an employer to hire or retain an individual who cannot perform the job [with or without an accommodation].42
In this case, [plaintiff] claims that [he/she] was able to perform the essential functions of [describe job] [with [describe accommodation]].43 [Defendant] contends that [plaintiff] was unable to perform [describe function(s)] and that [this/these] function(s) were essential to the [describe job]. It is [plaintiff’s] burden to prove by a preponderance of the evidence that [he/she] was able to perform the essential functions of [describe job]. If [plaintiff] could not perform [describe function] then it is [plaintiff’s] burden to show that [describe function], that this was not essential to the [describe job].
In determining whether [plaintiff] could perform the essential functions of [describe job], you should keep in mind that not all job functions are “essential.” The term "essential functions" does not include the marginal functions of the position. Essential functions are a job’s fundamental duties. In deciding whether [describe function] is essential to [describe job], some factors you may consider include the following:
● whether the performance of the [describe function] is the reason that the [describe job] exists;
● whether there are a limited number of employees available to do the [describe function];
● whether [describe function] is highly specialized so that the person in the position is hired for his or her expertise or ability to perform the particular function;
● [defendant’s] judgment about which functions are essential to the [describe job];
● written job descriptions prepared before advertising or interviewing applicants for the [describe job];
● the amount of time spent on the job performing [describe function];
● the consequences of not requiring [plaintiff] to [describe function];
● the terms of a collective bargaining agreement;
● whether others who held the position of [describe job] performed [describe function];
● whether those holding similar jobs also [describe function];
● [list any other factors supported by the evidence.]
No one factor is necessarily controlling. You should consider all of the evidence in deciding whether [describe function] is essential to [describe job].
[In addition to specific job requirements, an employer may have general requirements for all employees. For example, an employer may expect employees to refrain from abusive or threatening conduct toward others, or may require a regular level of attendance. These may be considered essential functions of any job.]
In assessing whether [plaintiff] was qualified to perform the essential functions of [describe job] you should consider [plaintiff’s] abilities as they existed at the time when [describe challenged employment action].
COMMENT This instruction is derived from 42 U.S.C. § 12102; id. § 12111; id. § 12201; 29 C.F.R. § 1630.2 (2019); id. § 1630.3; caselaw as discussed below; and Seventh Circuit Pattern Jury Instructions (Civil Cases) § 4.05.
Under the ADA, only a “qualified individual” is entitled to recover for disparate treatment or failure to provide a reasonable accommodation. A "qualified individual" is one "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). The implementing regulations elaborate on this definition by articulating two requirements: “[t]he term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m) (2019); see also id. § 1630.3 (listing exceptions to the definition of “qualified”). The Instruction accordingly opens by listing these two requirements as elements that the plaintiff must prove. Because the placement of the phrase “with or without reasonable accommodation” in the regulation indicates that this phrase modifies only the essential-functions element and not the job-related-requirements element, see id. § 1630.2(m), the Instruction includes the reasonable-accommodation concept only in that second element.
This definition may require modification in the case of “regarded as” disability. 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). As Comment 9.2.1 explains, 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). 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.44 Thus, in the Instruction, the references to “reasonable accommodations” are bracketed, with notations that these references should be omitted if “qualified” is being defined for purposes of a “regarded as” disability claim.
The EEOC’s interpretive guidance explains the application of the “qualified individual” test as follows:
The determination of whether an individual with a disability is “qualified” should be made in two steps. 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. For example, the first step in determining whether an accountant who is paraplegic is qualified for a certified public accountant (CPA) position is to examine the individual's credentials to determine whether the individual is a licensed CPA....
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 purpose of this second step is to ensure that individuals with disabilities who can perform the essential functions of the position held or desired are not denied employment opportunities because they are not able to perform marginal functions of the position....
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); see also Deane v. Pocono Med. Ctr., 142 F.3d 138, 145 (3d Cir. 1998) (en banc) (citing the then-applicable version of the interpretive guidance).
The Deane court set forth “a two step process” for determining “whether an individual can, with or without reasonable accommodation, perform the essential functions of the position”:
First, a court must consider whether the individual can perform the essential functions of the job without accommodation. If so, the individual is qualified (and, a fortiori, is not entitled to accommodation). If not, then a court must look to whether the individual can perform the essential functions of the job with a reasonable accommodation. If so, the individual is qualified. If not, the individual has failed to set out a necessary element of the prima facie case. l Deane, 142 F.3d at 146 (footnote omitted).
“Essential Functions” of a Job
The court of appeals has stressed that whether a particular duty is an essential function of a particular job is “for the jury to decide.” Turner v. Hershey Chocolate U.S., 440 F.3d 604, 613 (3d Cir. 2006).45 The statute does not define “essential functions,” but the regulations fill that gap. They open with the general statement that the term “means the fundamental job duties of the employment position.... [and] does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1) (2019). The regulations list, as examples of reasons that a job function may be essential, the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
Id. § 1630.2(n)(2). The regulations then provide a non-exhaustive list of “[e]vidence of whether a particular function is essential”:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
Id. § 1630.2(n)(3); see also Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir. 2001) (quoting the regulations (and the EEOC’s interpretive guidance) and stating that “none of the factors nor any of the evidentiary examples alone are necessarily dispositive”). The Instruction relies heavily on language from the regulations.
The EEOC’s interpretive guidance addresses the connection between the essential-functions test and job criteria: “[T]he inquiry into essential functions is not intended to second guess an employer's business judgment with regard to production standards, whether qualitative or quantitative, nor to require employers to lower such standards.” 29 C.F.R. § Pt. 1630, App (2019). On the other hand, the regulations provide that covered entities may not “use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity.” 29 C.F.R. § 1630.10(a) (2019).
The penultimate paragraph of the Instruction (which notes that general requirements such as refraining from abusive or threatening conduct toward others, or maintaining a regular level of attendance, may be considered essential functions of any job), parallels the Seventh Circuit’s model instruction. See Seventh Circuit Pattern Jury Instructions (Civil Cases) § 4.05.
Cases Applying the “Essential Functions” Test
The Court of Appeals has addressed the application of the “essential functions” test in a number of cases. In Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001), the court provided an extensive analysis of the meaning of the term “essential functions” of a job. The plaintiff in Skerski was a cable installer technician, and he developed a fear of heights. One of the defendant’s arguments was that he was no longer qualified for the position because climbing was one of the “essential functions” of the job of cable installer technician. The trial court agreed with the defendant, finding as a matter of law that climbing was an essential job function, and therefore that plaintiff could not recover because he could not perform that function even with an accommodation. The Third Circuit began its analysis by looking to the relevant agency regulations for the definition of “essential functions.” See id. at 279 (quoting 29 C.F.R. § 1630.2(n) and the EEOC’s interpretive guidance, 29 C.F.R. pt. 1630, App. 1630.2(n)).
Applying these standards to the facts, the court found that the district court erred in concluding as a matter of law that climbing was not an essential function for the position of cable installer technician:
Looking to the three factors included in § 1630.2(n)(2), it is evident that two are not present in this case as installer technicians are not hired solely to climb or even because of their climbing expertise. On the other hand, [there] is evidence to suggest that Time Warner employs a limited number of installer technicians in Skerski's work area -- only 7 or 8, according to Skerski -- and that this small number hampers Time Warner's ability to allow certain technicians to avoid climbing. The significance of this factor is pointed out in the Interpretive Guidance to § 1630.2(n), which explains, "if an employer has a relatively small number of available employees for the volume of work to be performed, it may be necessary that each employee perform a multitude of different functions. Therefore, the performance of those functions by each employee becomes more critical and the options for reorganizing the work become more limited." EEOC Interpretive Guidance, 29 C.F.R. pt. 1630, App. 1630.2(n).
But this is only one of the three factors. Moreover, consideration of the seven evidentiary examples included in § 1630.2(n)(3) suggests caution against any premature determination on essential functions as at least some of them lean in Skerski's favor. Of course, as required by § 1630.2(n)(3)(i), we owe some deference to Time Warner and its own judgment that climbing is essential to the installer technician position. And the written job descriptions, as the District Court noted, "clearly identify climbing as a job requirement." However, describing climbing as a requirement is not necessarily the same as denominating climbing as an essential function. In fact, the job descriptions prepared by both New Channels and Time Warner list various duties and responsibilities under the heading "Essential Functions," but neither identifies climbing as "essential."....
Among the facts and circumstances relevant to each case is, of course, the employee's actual experience as well as that of other employees. See 29 C.F.R. § 1630.2(n)(3)(iv), (vi) and (vii). It is undisputed that from the time Skerski began as an installer technician in 1982 until the time he was diagnosed with his panic disorder in 1993, a significant portion of his job responsibilities required climbing.... . However, for the three and a half years after his diagnosis in which he continued to work as an installer technician, Skerski performed virtually no overhead work at all.... Skerski testified at his deposition that there always was enough underground work to do, that he always worked 40-hour weeks and even worked enough to earn a couple thousand dollars per year in overtime, and that he had never experienced problems at work because of his panic disorder until Hanning became his supervisor in the fall of 1996....
Skerski argues that his own experience exemplifies that no negative consequences resulted from his failure to perform the climbing function of his job, which is another of the illustrations listed in the regulations. See 29 C.F.R. § 1630.2(n)(3)(iv). However, there is support in the record for Time Warner's contention that Skerski's inability to climb caused it considerable administrative difficulties.... . Hanning testified that Skerski's inability to climb "made the routing process extremely cumbersome," because the assignment process had to be done by hand instead of computer. He also claimed that Skerski's inability to climb necessitated the hiring of outside contract labor to meet demand, and that Skerski was not always as busy as he should have been due to his restricted work schedule.
The Skerski court found that the relevant factors cut both ways, so that the question of whether climbing was an essential function of the cable installer technician position was a question for the jury:
We do not suggest that the District Court here had no basis for its conclusion that climbing is an essential function of Skerski's position as installer technician or even that, if we were the triers of fact, we would not so hold. But upon reviewing the three factors listed in 29 C.F.R. § 1630.2(n)(2) and the seven evidentiary examples provided by 29 C.F.R. § 1630.2(n)(3), it is apparent that a genuine issue of material fact exists as to whether climbing is an essential function of the job of installer technician at Time Warner. Although the employer's judgment and the written job descriptions may warrant some deference, Skerski has put forth considerable evidence that contradicts Time Warner's assertions, particularly the uncontradicted fact that following his 1993 diagnosis he worked for more than three years as an installer technician for Time Warner without ever having to perform over head work. For additional cases discussing the essential functions concept, see Turner v. Hershey Chocolate U.S., 440 F.3d 604, 613 (3d Cir. 2006) (summary judgment not warranted where plaintiff’s evidence would justify a reasonable jury in finding that rotating among three locations in the factory was not an essential function of the plaintiff’s job); Walton v. Mental Health Ass’n of Southeastern Pa., 168 F.3d 661, 666 (3d Cir. 1999) (employee’s inability to appear in a promotional video because she was obese was not a substantial limitation on essential function of a job; any such appearance would have been only a minor aspect of her job); Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 327 (3d Cir. 2003) (promptness was not an essential function merely because the employer thought it necessary for the employee to set an example for lower-level employees); McNelis v. Pennsylvania Power & Light Co., 867 F.3d 411, 413, 415 (3d Cir. 2017) (plaintiff – who was fired from his job as an armed security officer at a nuclear power plant after he “experienced personal and mental health problems” and failed a fitness for duty exam conducted by a psychologist – could not perform the “essential functions” of his job because “[Nuclear Regulatory Commission] regulations require Nuclear Security Officers to be fit for duty... and to maintain unescorted security clearance” and the plaintiff “did not satisfy either legally mandated requirement at the time he was fired”); id. at 416 n.2 (reasoning in the alternative that even if the plaintiff had stated a prima facie case, the NRC’s regulatory requirements would provide a defense (citing 29 C.F.R. § 1630.15(e)).
(Last Updated July 2019)
40 As discussed in the Comment, this element is derived from the applicable regulation, and the regulation appears to present this element as one that is not modified by the “with or without reasonable accommodation” concept that modifies the second element.
41 If “qualified individual” is being defined for purposes of a “regarded as” disability claim, the references to “reasonable accommodation” should likely be omitted. See Comment.
42 If “qualified individual” is being defined for purposes of a “regarded as” disability claim, the references to “reasonable accommodation” should likely be omitted. See Comment.
43 If “qualified individual” is being defined for purposes of a “regarded as” disability claim, the references to “reasonable accommodation” should likely be omitted. See Comment.
44 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).
45 However, where the function is an essential function because it is a legally-defined requirement, that presents a question of law for the court. See McNelis v. Pennsylvania Power & Light Co., 867 F.3d 411, 415 (3d Cir. 2017) (in affirming grant of summary judgment dismissing plaintiff’s claims, citing Nuclear Regulatory Commission requirements and “the well-settled proposition that ‘a legally-defined job qualification is by its very nature an essential function under [the ADA]’” (quoting Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir. 1998))).