3d Cir. Model Jury Instr. (Civil) 9.0

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Last updated March 2026

individual holds or desires.” 42 U.S.C. § 12111(8).2 An entity discriminates against an individual 33

on the basis of disability when, inter alia, it does “not mak[e] reasonable accommodations to the 34

known physical or mental limitations of an otherwise qualified individual with a disability who is 35

an applicant or employee, unless such covered entity can demonstrate that the accommodation 36

would impose an undue hardship on the operation of the business of [the] entity. ” 42 U.S.C. § 37

12112(b)(5)(A). Reasonable accommodations may include, inter alia, “job restructuring, part-time 38

or modified work schedules, reassignment to a vacant position, acquisition or modification of 39

equipment or devices, appropriate adjustment or modifications of examinations, training materials 40

or policies, the provision of qualified readers or interpreters, and other similar accommodations 41

for individuals with disabilities.” 42 U.S.C. § 12111(9). 42

“In order to make out a prima facie case of disability discrimination under the ADA, [the 43

plaintiff] must establish that she (1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has 44

suffered an adverse employment action because of that disability. ” Turner v. Hershey Chocolate 45

U.S., 440 F.3d 604, 611 (3d Cir. 2006). 46

The EEOC’s interpretive guidance articulates a two -step test for determining whether a 47

person is a qualified individual. “The first step is to determine if the individual satisfies the 48

prerequisites for the position, such as possessing the appropriate educational background, 49

employment experience, skills, licenses, etc. . . . .The second step is to determine whether or not 50

the individual can perform the essential functions of the position held or desired, with or without 51

reasonable accommodation. . . . The determination of whether an individual with a disability is 52

qualified is to be made at the time of the employment decision. ” 29 C.F.R. pt. 1630, App. 53

1630.2(m) (2019). 54

As discussed in Comment 9.2.1, Congress has defined “disability” to mean, “with respect 55

to an individual— (A) a physical or mental impairment that substantially limits one or more major 56

life activities of such individual; (B) a record of such an impairment; or (C) being regarded as 57

having such an impairment (as described in paragraph (3)). ” 42 U.S.C. § 12102(1). This chapter 58

refers to these three prongs of the definition as “actual” disability, “record of ” disability, and 59

“regarded as” disability, respectively. A plaintiff might choose to proceed under one or more than 60

one of these prongs in a given case. As Comment 9.2.1 explains, “regarded as” disability is in 61

some ways easier to show than “actual” disability or “record of” disability – but under the ADA 62

as amended in 2008, there is a significant limit on “regarded as” disability claims: “A covered 63

entity … need not provide a reasonable accommodation or a reasonable modification to policies, 64

practices, or procedures to an individual who meets the definition of disability in section 12102(1) 65

of this title solely under subparagraph (C) of such section.” 42 U.S.C. § 12201(h). This limitation 66

will require tailoring of instructions in cases where a plaintiff relies in whole or in part on the 67

“regarded as” prong. Among other possible effects of the limitation on “regarded as” disability, 68

there arises a question concerning the definition of a “qualified individual.” As noted above, the 69

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.”