5th Cir. Pattern Jury Instr. (Civil) 11.7

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The ADA states that “reasonable accommodation” may include:

“(A) making existing facilities used by the employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to

a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations,

training materials or policies, the provision of qualified readers or

interpreters, and other similar accommodations for individuals

with disabilities.” 42 U.S.C. § 12111(9). An employer is not obligated to provide an employee the accommodation he or she

requests or prefers. The requirement is for some reasonable

accommodation. A reasonable accommodation does not require an

employer to give an individual with disabilities preferential treatment in job qualifications.

For more discussion of “reasonable accommodations” under

the ADA, see Pattern Jury Instruction 11.10.

I. The Interactive Process

Before an employer must make an accommodation for an individual’s physical or mental condition, the employer must know

that such a condition exists. It is generally the individual’s

responsibility to request a reasonable accommodation. 29 C.F.R.

§ 1630 App. 1630.9. Once an individual has made such a request,

the ADA and its implementing regulations require that the parties

engage in an “interactive process” to determine what precise accommodations are necessary. See 29 C.F.R. § 1630.2(o)(3), Part

1630 App. § 1630.9. The employer and the individual must work

together in good faith to help each other determine what accommodation is necessary. Several courts have held that an employer’s

failure to engage in an interactive process, standing alone, is insuf-

ficient to expose the employer to liability under the ADA. See, e.g. ,

Spurling v. C&M Fine Pack, Inc. , 739 F.3d 1055, 1062 (7th Cir.

2014) (“And while an employer’s failure to engage in the interactive process alone is not an independent basis for liability, it is actionable ‘if it prevents identification of an appropriate accommodation for a qualified individual.’ ’’) (quoting Basden v. Prof’l Transp.,

Inc., 714 F.3d 1034, 1039 (7th Cir. 2013)). 7 Although the regulations provide that it “may be necessary” to engage in the interactive process to determine what accommodation is reasonable (or

7Fifth Circuit case law suggests agreement with this holding. See

Loulseged v. Akzo Nobel Inc. , 178 F .3d 731, 736 (5th Cir. 1999) (cited with

approval by Griffin v. United Parcel Serv., Inc. , 661 F .3d 216, 224 (5th Cir.

2011)). (“[W]hen an employer’s unwillingness to engage in a good faith

interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA.”).

11.7EMPLOYMENT CLAIMS

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may not, for example, if the accommodation is agreed and obvious), failing to engage in the interactive process is not actionable.

Failing to do so, however, could lead to failing to accommodate the

individual’s disability, which does violate the ADA.

J. Statutory Defenses

The ADA provides the following defenses: (1) undue hardship

(42 U.S.C. § 2112(b)(5)(A)); (2) direct threat to the health or safety

of others in the workplace (42 U.S.C. § 12113(b)); (3) a qualifica-

tion standard, test requirement, or selection criterion that is job-related and consistent with business necessity (42 U.S.C.

§ 12113(a)); (4) religious entity (42 U.S.C. § 12113(d)(1)); (5) infec-tious or communicable disease (42 U.S.C. § 12113(e)(2)); and (6) illegal use of drugs (42 U.S.C. § 12114(a)). The statutory defenses

most likely to lead to instruction issues are undue hardship and

direct threat. See Pattern Jury Instruction 11.12. The burden of

proving and pleading these defenses is on the defendant.

K. Procedures and Remedies

Under 42 U.S.C. § 12117, ADA cases generally follow the

procedures and remedy schemes from Title VII cases. See 42 U.S.C.

§ 12117 (2012). An EEOC charge and right-to-sue notice typically

will be necessary preconditions to an ADA claim. See 42 U.S.C.

§ 2000e-5. Damages under the ADA generally are the same as

those available under Title VII. Potential remedies in ADA cases

include back pay, compensatory damages, punitive damages, and

attorney’s fees. See 42 U.S.C. § 1981a.

The causation standard in ADA cases may be in flux. The statute precludes discrimination “because of” the employee’s disability.

Historically, the Fifth Circuit construed this language as allowing

a “motivating-factor” test. See, e.g. , Pinkerton v. Spellings , 529

F.3d 513, 519 (5th Cir. 2008). But the United States Supreme

Court held in Gross v. FBL Financial Services, Inc ., that the term

“because of” found in the AEDA requires “but-for” causation. 557

U.S. 167, 176-77 (2009). Since Gross , it appears that circuits

considering the issue have applied “but-for” causation to ADA

claims. See, e.g. , Lewis v. Humboldt , 681 F.3d 312 (6th Cir. 2012)

(en banc); Palmquist v. Shinseki , 689 F.3d 66 (1st Cir. 2012);

Serwatka v. Rockwell Automation, Inc. , 591 F.3d 957 (7th Cir.

2010). Some courts within the Fifth Circuit have likewise rejected

the mixed-motives standard in ADA cases. See, e.g ., Johnson v.

Benton Cty. Sch. Dist. , 926 F. Supp. 2d 899 (N.D. Miss. Feb. 25,

2013) (holding “the mixed-motive option is no longer available in

ADA cases post- Gross”).

In an unpublished opinion, the Fifth Circuit stated that the