5th Cir. Pattern Jury Instr. (Civil) 11.8

186

[specify job held or position sought] when

Defendant [name] [specify adverse employment

action] [him/her];

8

and

6. Defendant [name] [specify adverse employment

action] Plaintiff [name] because of [his/her]

[specify alleged disability].

9

Plaintiff [name]

does not have to prove that [his/her] [specify alleged disability] was the only reason Defendant

[name] [specify adverse employment action].

If Plaintiff [name] has failed to prove any of these

8The definition of “qualified individual” under 42 U.S.C. § 12111(8) is

set out in the introduction to this section. There is often no dispute on

whether the plaintiff is a qualified individual able to perform the job’s essential functions. If there is a dispute, the following could be included in

the charge:

In determining whether a function is essential, you should consider

the following factors: the employer’s judgment as to which functions

are essential; written job descriptions; the amount of time spent on

the job performing the function; the consequences of not requiring

the person to perform the function; the terms of any collective

bargaining agreement; the work experience of persons who have

held the job; the current work experience of persons in similar jobs;

whether the reason the position exists is to perform the function;

whether there are a limited number of employees available among

whom the function is to be distributed; whether the function is highly

specialized and the individual in the position was hired for [his/her]

expertise or ability to perform the function; and [list other relevant

factors supported by the evidence]. You may also consider other

factors.

29 C.F .R. § 1630.2(n).

9As noted previously , the causation standard for an ADA claim may

be in flux. See ADA and ADAAA Overview § K. The Committee has taken

no position on this issue and has instead provided options, including a

“because-of” standard; an alternative “but-for” standard; and cross-references to the mixed-motives charges found in 11.1 and 11.13.

If the law develops to make the use of but-for causation clear, the

following instruction may be used:

6. Defendant [name] would not have [specify adverse employment

action other than failure to accommodate] [him/her] but for Plaintiff

[name]’s [specify alleged disability]. It is not necessary that Plaintiff

[name]’s disability be the only reason for Defendant [name]’s decision to [specify adverse employment action]. But you must find that

that Defendant would not have made the decision in the absence of

the Plaintiff [name]’s [specify alleged disability].

11.8EMPLOYMENT CLAIMS

187

elements, then your verdict must be for Defendant

[name].

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

that substantially limits one or more major life

activities. In determining whether Plaintiff [name]’s

[specify alleged 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.

10

[Temporary impairments with little or no

long-term impact are not sufficient.]

11

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

impairment without regard to the effects

12

of such

measures as medication,

13

therapies,

14

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

of a particular disorder without medication, therapies,

or surgery.

15

(If the case involves a claim of impairments

that are not obvious, such as a mental or psychological disorder, and there is a factual dispute

10This instruction should be given when the plaintiff alleges an actual

impairment and there is a factual dispute about whether it is a disability .

An impairment is a disability under the ADA only if it substantially limits

one or more major life activities. See 42 U.S.C. § 12102(1).

11This language should be used only if supported by the evidence.

1242 U.S.C. § 12102(4)(E)(i); 29 C.F .R. § 1630.2(j)(1)(vi).

1342 U.S.C. § 12102(4)(E)(i)(1).

1429 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”).

1529 C.F .R. Part 1630 App. § 1630.2(j)(1)(vi), 76 Fed. Reg. 16978,

17010 (Mar. 25, 2011).