5th Cir. Pattern Jury Instr. (Civil) 11.10

200

2. Plaintiff [name] had [specify impairment];

3. Such [specify impairment] substantially limited

Plaintiff [name]’s ability to [specify major life

activity or activities affected];

2

4. Defendant [name] knew of Plaintiff [name]’s

[specify impairment];

5. Plaintiff [name] requested an accommodation;

3

6. Providing [an] accommodation would have been

reasonable; and

7. Defendant [name] failed to provide a reasonable accommodation.

4

A “disability” is a [physical] [mental] impairment

5

that substantially limits one or more major life

activities.

6

In determining whether Plaintiff [name]’s

2This was modified from the 2009 Fifth Circuit Pattern Instruction

to remove the reference to regarded-as disability , which is addressed in

the separate instructions above.

3There are circumstances when an employer is deemed to be on

notice. See, e.g. , Loulseged v. Akzo Nobel Inc. , 178 F .3d 731, 735–36 nn.4–5

(5th Cir. 1999). Accordingly , there may be cases for which this element

should be omitted or modified.

4An employer is not required to provide an employee the accommodation he or she requests or prefers. Griffin , 661 F .3d at 224. The

employer need only provide some reasonable accommodation. E.E.O.C. v.

Agro Distrib. , 555 F .3d 462, 471 (5th Cir. 2009); 29 C.F .R. pt. 1630.9 App.,

§ 1630.9.

5“Physical impairment” is defined at 29 C.F .R. § 1630.2(h) and in

Pattern Jury Instruction 11.8. The charge should only include those portions relevant to the specific allegations and evidence. If there is no dispute

that the plaintiff’s condition constituted an impairment, or the court finds

an impairment as a matter of law, the court may instruct the jury that

“the Plaintiff’s [identify condition] is a [physical/mental] impairment.”

6“Major life activities” are defined at 42 U.S.C. § 12102(2); 29 C.F .R.

§ 1630.2(i)(1) and in Pattern Jury Instruction 11.8. The charge should

include only what is relevant to the specific allegations and evidence. If

there is no dispute that the plaintiff’s impairment was a disability , or if

the court finds a disability as a matter of law, the jury may be instructed

accordingly .

11.10EMPLOYMENT CLAIMS

201

impairment substantially limits [his/her] ability to

[specify major life activity affected], you should compare

[his/her] ability to [specify major life activity affected]

with that of the average person. In doing so, you should

also consider: (1) the nature and severity of the impairment; (2) how long the impairment will last or is

expected to last; and (3) the permanent or long-term

impact, or expected impact, of the impairment. [Temporary impairments with little or no long-term impact are

not sufficient.

7

]

In determining whether an impairment substantially limits a major life activity, you must consider the

impairment without regard to the effects

8

of such

measures as medication,

9

therapies,

10

or surgery. In doing so, you may consider evidence of the expected course

of a particular disorder without medication, therapies,

or surgery.

11

If an impairment is episodic or in remission, it is

still a “disability” if it substantially limited a major life

activity when it was active or if it would substantially

limit a major life activity when active.

12

7This language should be used only if supported by the evidence.

842 U.S.C. § 12102(4)(E)(i); 29 C.F .R. § 1630.2(j)(1)(vi).

942 U.S.C. § 12102(4)(E)(i)(1).

1029 C.F .R. § 1630.2(j)(5)(v) (psychotherapy , behavioral therapy , and

physical therapy); 29 C.F .R. Part 1630 App. § 1630.2(j)(1)(v), 76 Fed. Reg.

16978, 17010 (Mar. 25, 2011)76 Fed. Reg. 16978, 17009 (Mar. 25, 2011)

(“therapies”).

1129 C.F .R. Part 1630 App. § 1630.2(j)(1)(vi), 76 Fed. Reg. 16978,

17010 (Mar. 25, 2011).

1242 U.S.C. § 12102(4)(D); 29 C.F .R. § 1630.2(j)(1)(vii). Some types of

impairments will often result in a finding that they substantially limit a

major life activity . Such impairments include deafness, blindness, an

intellectual disability like mental retardation, a partially or completely

missing limb, a mobility impairment requiring the use of a wheelchair,

cancer, cerebral palsy , diabetes, epilepsy , Human Immunodeficiency Virus

(HIV), multiple sclerosis, muscular dystrophy , major depressive disorder,

bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder, or schizophrenia.