3d Cir. Model Jury Instr. (Civil) 9.1.3

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Last updated March 2026

(and there was evidence, precluding summary judgment, indicating that the plaintiff was not so 147

qualified). It further noted that reassignment “‘should be considered only when accommodation 148

within the individual’s current position would pose an undue hardship.’” Skerski, 275 F.3d at 285 149

(quoting EEOC Interpretive Guidance, 29 C.F.R. pt. 1630, App. 1630.2( o)). The court relied on 150

the commentary to the pertinent EEOC guideline, which states that “an employer may reassign an 151

individual to a lower graded position if there are no accommodations that would enable the 152

employee to remain in the current position and there are no vacant equivalent positions for which 153

the individual is qualified with or without reasonable accommodation. ” Id.The court concluded 154

that there was a triable question of fact as to whether the plaintiff could have been accommodated 155

in his job as a cable worker, by the use of a bucket truck so that he would not have to climb poles. 156

The instruction is written to comport with the standards set forth in Skerski. In defining the concept 157

of “reasonable accommodation, ” the Instruction draws from the implementing regulation, 29 158

C.F.R. § 1630.2(o)(1) & (2) (2019), and the EEOC’s interpretive guidance, 29 C.F.R. § Pt. 1630, 159

App. 1630.2(o) (2019). The Instruction ’s optional discussion for use where a previous 160

accommodation has been provided is modeled loosely on 3C Kevin F. O’Malley, et al., Fed. Jury 161

Prac. & Instr. § 172:21 (6th ed.). 162

Allocation of Burdens—Reasonable Accommodation and the Undue Hardship Defense 163

In Walton v. Mental Health Ass ’n of Southeastern Pa., 168 F.3d 661, 670 (3d Cir. 1999), 164

the Third Circuit held that, “on the issue of reasonable accommodation, the plaintiff bears only 165

the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its 166

benefits.” If the plaintiff satisfies that burden, the defendant then has the burden to demonstrate 167

that the proposed accommodation creates an “undue hardship” for it. 42 U.S.C. § 12112(b)(5)(A). 168

See Turner v. Hershey Chocolate USA, 440 F.3d 604, 614 (3d Cir. 2006) (“undue hardship” is an 169

affirmative defense). The ADA defines “undue hardship ” as “an action requiring significant 170

difficulty or expense, when considered in light of” a series of factors, 42 U.S.C. § 12111(10)(A). 171

The instruction sets forth the list of factors found in the ADA. 172

The Walton court justified its allocation of burdens as follows: 173

This distribution of burdens is both fair and efficient. The employee knows 174

whether her disability can be accommodated in a manner that will allow her to 175

successfully perform her job. The employer, however, holds the information 176

necessary to determine whether the proposed accommodation will create an undue 177

burden for it. Thus, the approach simply places the burden on the party holding the 178

evidence with respect to the particular issue. 179

Walton, 168 F.3d at 670. The instruction follows the allocation of burdens set forth in Walton. See 180

also Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 770 (3d Cir. 2004) (quoting 181

Donahue v. Consol. Rail Corp., 224 F.3d 226, 230 (3d Cir. 2000)) (in a transfer case, the employee 182

must show “(1) that there was a vacant, funded position; (2) that the position was at or below the 183

level of the plaintiff’s former job; and (3) that the plaintiff was qualified to perform the essential 184

duties of this job with reasonable accommodation. If the employee meets his burden, the employer 185