Introductory Note
The following instruction for disability discrimination cases will require modification depending upon whether the case is a McDonnell Douglas pretext or a Price Waterhouse mixed motive case. Note that “[t]his circuit has noted, but not resolved, the question of whether that portion of the 1991 Civil Rights Act which amended Title VII to provide for limited relief against defendants who would have taken the same action even absent their discriminatory motive... applies to cases under the ADA.” Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 n.2 (1st Cir. 2002). see Instructions 1.1 – 1.2 for further discussion of the issues associated with the use of pretext and/or mixed motive instructions generally.This pattern has been updated to reflect the passage of the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
The ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008), substantially changes how employers and courts are to evaluate ADA claims. For example, Congress has expanded the class of major life activities to specifically include, among others, seeing and working. Id. at § 4(a). In addition, Congress expressly rejected certain holdings of the Supreme Court in Sutton v. United Airlines,527 U.S. 471, 489 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,534 U.S. 184 (2002), which “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect” and caused “lower courts [to] incorrectly [find] in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” ADAAA, Pub. L. No. 110-325, § 2(a)(4)-(6).
The express language of the ADAAA directs that these amendments take effect January 1, 2009. Id. § 8. They are not retroactive to conduct that preceded their effective date. Thornton v. United Parcel Service, Inc.,587 F.3d 27, 34 (1st Cir. 2009).
When conduct occurring prior to January 1, 2009, is at issue, consult endnotes 4, 11, and 12 below.
Second, [plaintiff] was a qualified individual, which means [he/she] possessed the necessary skill, experience, education and other job-related requirements for [specify job or position sought] and could have performed the essential functions5 of [specify job held or position sought] at the time [defendant] [specify adverse action] {if [defendant] had made reasonable accommodations for [plaintiff]’s disability}6;
Third, [defendant] knew that [plaintiff] had [specify alleged impairment]; and {Choose one of the following two bracketed sentences, depending on whether the case is a pretext or a mixed motive case7 (Note: a similar choice/modification must be made at the end of the instruction depending on whether the case is a pretext or a mixed motive case.): 8{Fourth, that were it not for [plaintiff]’s disability, [defendant] would not have taken adverse employment action against [him/her].}
9{Fourth, that [plaintiff]’s disability was a motivating factor in [defendant]’s decision10 to take adverse employment action against [him/her].}}
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that [he/she] has been subjected to adverse employment action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
In order to decide what the essential functions of a job are, you may consider the following factors:13 [(1) The employer's judgment as to which functions of the job are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function in question; (4) consequences of not requiring the person to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of people who have held the job; (7) the current work experience of people in similar jobs; (8) whether the reason the position exists is to perform the function; (9) whether there are a limited number of employees available among whom the performance of the function can be distributed; (10) whether the function is highly specialized and the individual in the position was hired for his or her expertise or ability to perform the function; and (11) (list any other relevant factors supported by the evidence)]. No one factor is necessarily controlling. You should consider all of the evidence in deciding whether a job function is essential.
14{An “adverse employment action” is one that, standing alone, actually causes damage, tangible or intangible, to an employee. A trivial harm is insufficient. The fact that an employee is unhappy with something his or her employer did or failed to do is not enough to make that act or omission an adverse employment action.15 An employer takes materially adverse action against an employee only if it: (1) takes something of consequence away from the employee, for example by discharging or demoting the employee, reducing his or her salary, or taking away significant responsibilities; or (2) fails to give the employee something that is a customary benefit of the employment relationship, for example, by failing to follow a customary practice of considering the employee for promotion after a particular period of service.16 Whether action is materially adverse should be judged from the perspective of a reasonable person in [plaintiff]’s position, considering all the circumstances.}
17{Reasonable Accommodations}
{For a pretext case, insert the last 3 paragraphs of Instruction 1.1. For a mixed motive case, add the “motivating factor” definition from Instruction 1.2, as well as the last 4 paragraphs of that instruction.}
