Fill and Sign the Jury Instruction 151 Americans with Disabilities Act 42 Usc Sect 12101 12117 Disparate Treatment Claim Form

1.5.1 Americans With Disabilities Act (Disparate Treatment Claim) 42 USC §§ 12101-12117 In this case the Plaintiff claims that the Defendant discriminated against the Plaintiff by [refusing to hire the Plaintiff] [terminating the Plaintiff's employment] [failing to promote the Plaintiff] because the Plaintiff had a "disability" within the meaning of a federal law known as the Americans with Disabilities Act (the ADA). The Defendant denies that it discriminated against the Plaintiff in any way and asserts that [describe the Defendant’s theory of defense]. Under the ADA, it is unlawful for an employer to [refuse to employ] [discharge or lay off] [fail to promote] or otherwise discriminate against an employee because of that employee's disability if the employee is qualified to do the job. In order to prevail on this claim the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Plaintiff had a "disability," as hereafter defined; Second: That the Plaintiff was a "qualified individual," as hereafter defined; Third: That the Plaintiff was [refused employment] [discharged from employment] [not promoted] by the Defendant; and Fourth: That the Plaintiff's disability was a substantial or motivating factor that prompted the Defendant to take that action. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] Definition of “Disability” The first fact that the Plaintiff must prove by a preponderance of the evidence is that [he] [she] had a “disability.” An individual with a "disability" is a person who has a physical or mental impairment that substantially limits one or more major life activities [or a person who is "regarded" as having such an impairment] [or a person who has a record of having such an impairment.]. A "major life activity" is an activity that an average person can perform with little or no difficulty. Examples are caring for oneself, performing manual tasks, walking, talking, seeing, hearing, breathing, learning, and working. An impairment substantially limits one or more major life activities if an individual is unable to perform an activity, or is significantly limited in the ability to perform an activity, compared to an average person in the general population. Three factors you should consider in determining whether the Plaintiff’s alleged impairment substantially limits a major life activity are (1) its nature and severity; (2) how long it will last or is expected to last; and (3) its permanent or long term impact, or expected impact. Temporary injuries and impairments of limited duration are not considered to be disabilities under the ADA. ["To be regarded" as having such an impairment means a person who: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as having such a limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) does not have an impairment but is treated by an employer as having a substantially limiting impairment.] [Plaintiff has alleged that [his] [her] impairment substantially limited Plaintiff’s ability to work. Working is a major life activity; however, an inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Indeed, an individual is substantially limited in the major life activity of working only if [he] [she] is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. In deciding whether the Plaintiff’s impairment substantially limited [his] [her] ability to work, you should consider the three factors already mentioned relating to the severity, duration and lasting effect of the impairment. In addition, you may also consider: (1) the geographical area to which the individual has reasonable access; (2) the number and types of jobs, if any, utilizing similar training, knowledge, skill or abilities, within that geographical area, from which the individual is also disqualified because of the impairment; and (3) the number and types of jobs, if any, not utilizing similar training, knowledge, skills or abilities, within that geographical area from which the individual is also disqualified because of the impairment.] Definition of “Qualified” The second fact that the Plaintiff must prove by a preponderance of the evidence is that [he] [she] was “qualified” for the job in question at the time of the challenged employment decision notwithstanding [his] [her] disability. The ADA does not require an employer to hire or retain or promote an individual who cannot perform the job. In order to prove that [he] [she] was qualified, the Plaintiff must establish: (1) that the Plaintiff possessed the requisite skill, experience, education and other job-related requirements of the job in question; and (2) that the Plaintiff was capable of performing all of the essential functions of the job in question, despite any disability, with or without reasonable accommodation by Plaintiff’s employer. To the extent that the Plaintiff contends that a particular function is not essential to the job, the Plaintiff also bears the burden of proving that this function is not, in fact, essential. The essential functions of a position are the fundamental job duties of that position. The term “essential functions” does not include the marginal functions of the position. A job duty or function may be considered essential because, among other things, one of the reasons the job exists is to perform that function; or because there are a limited number of employees available among whom the performance of that job function can be distributed; or because the function is highly specialized and the incumbent in the position was hired for his or her expertise or ability to perform that particular function. Evidence of whether a particular function is essential includes, but is not limited to, the employer’s own judgment as to which functions are essential; the existence of written job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; the terms of a collective bargaining agreement, if applicable; the work experience of past incumbents in the job; and/or the current work experience of incumbents in similar jobs. [Further, in addition to the particular requirements of a specific job, an employer may have general requirements for an employee in any position. For example, the employer may expect employees to refrain from abusive or threatening conduct toward co-workers or the public, or may require a regular and reliable level of attendance by the employee.]. Definition of “Substantial Or Motivating Factor” Finally, the Plaintiff must prove that the Plaintiff’s disability was a substantial or motivating factor that prompted the Defendant to take the challenged employment action. It is not necessary for the Plaintiff to prove that disability was the sole or exclusive reason for the Defendant's decision. It is sufficient if the Plaintiff proves that the alleged disability was a determining factor that made a difference in the employer’s decision. You should be mindful, however, that the law applicable to this case requires only that an employer not discriminate against an employee because of the employee's disability. So far as you are concerned in this case, an employer may [discharge] [refuse to hire] [fail to promote] or otherwise adversely affect an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the Defendant even though you personally may not approve of the action taken and would have acted differently under the circumstances. If you find in favor of the Plaintiff and against the Defendant, you must then decide the issue of the Plaintiff’s damages. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as emotional pain and mental anguish has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Net lost wages and benefits to the date of trial; (b) Emotional pain and mental anguish. [(c) Punitive damages, if any (as explained in the Court’s instructions)] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's federally protected rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. In some cases punitive damages may be awarded for the purpose of punishing the Defendant for its wrongful conduct and to deter others from engaging in similar wrongful conduct. However, an employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where those acts by such employees are contrary to the employer’s own good faith efforts to comply with the law by implementing policies and programs designed to prevent such unlawful discrimination in the workplace. So, an award of punitive damages would be appropriate only if you find for the Plaintiff and then further find from a preponderance of the evidence (1) that a higher management official of the Defendant personally acted with malice or reckless indifference to the Plaintiff’s federally protected rights, and (2) that the employer itself had not acted in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages.] 1.5.1 Americans With Disabilities Act (Disparate Treatment Claim) 42 USC §§ 12101 - 12117 SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Plaintiff had a “disability,” as defined in the Court’s Instructions? Answer Yes or No 2. That the Plaintiff was a “qualified individual,” as defined in the Court’s Instructions? Answer Yes or No 3. That the Plaintiff was [refused employment] [discharged from employment] [not promoted] by the Defendant? Answer Yes or No 4. That the Plaintiff’s disability was a substantial or motivating factor that prompted the Defendant to take that action? Answer Yes or No [Note: If you answered No to any of the preceding questions you need not answer the remaining questions.] 5. That the Plaintiff should be awarded damages to compensate for a net loss of wages and benefits to the date of trial? Answer Yes or No If your answer is Yes, in what amount? $       6. That the Plaintiff should be awarded damages to compensate for emotional pain and mental anguish? Answer Yes or No 2. That the Plaintiff was a “qualified individual,” as defined in the Court’s Instructions? Answer Yes or No 3. That the Plaintiff was [refused employment] [discharged from employment] [not promoted] by the Defendant? Answer Yes or No 4. That the Plaintiff’s disability was a substantial or motivating factor that prompted the Defendant to take that action? Answer Yes or No [Note: If you answered No to any of the preceding questions you need not answer the remaining questions.] 5. That the Plaintiff should be awarded damages to compensate for a net loss of wages and benefits to the date of trial? Answer Yes or No If your answer is Yes, in what amount? $       6. That the Plaintiff should be awarded damages to compensate for emotional pain and mental anguish? Answer Yes or No If your answer is Yes, in what amount? $       7(a). That a higher management official of the Defendant acted with malice or reckless indifference to the Plaintiff’s federally protected rights? Answer Yes or No (b) If your answer is Yes, that the Defendant itself had not acted in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace? Answer Yes or No (c) If your answer is Yes, what amount of punitive damages, if any, should be assessed against the Defendant? $       . SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS The definitions of the various terms given in this instruction were derived primarily from 29 CFR § 1630.2. As with Title VII actions, a prevailing plaintiff in an action under the Americans With Disabilities Act may recover back pay, other past and future pecuniary losses, damages for pain and suffering, punitive damages, and reinstatement or front pay. This is due to 42 U.S.C. §12117(a) which states that the remedies and enforcement procedures available in 42 U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 apply to actions for disability discrimination under the ADA. Pursuant to this incorporation provision, a prevailing plaintiff is entitled to back pay, reinstatement, and/or front pay as provided in § 2000e-5(g)(1). See e.g., Ward v. Papa’s Pizza, To Go, Inc., 907 F. Supp. 1535 (S.D. Ga. 1995). (remedies under the ADA parallel those available for Title VII suits); Lewis v. Board of Trustees of Alabama State University, 874 F. Supp. 1299 (M.D. Ala. 1995) (case law applicable to enforcement procedures in Title VII cases is applicable to ADA cases as well because ADA incorporates enforcement procedures of Title VII). See Annotations and Comments, Federal Claims Instruction No. 1.2.1, supra. A plaintiff may also recover compensatory (emotional pain and suffering) and punitive damages (exclusive of back pay and interest on back pay) pursuant to 42 U.S.C. § 1981a(a)(2). Further, the statutory caps on damages provided in 42 U.S.C. § 1981a(b)(3) apply equally to ADA employment discrimination actions, and either party may demand a jury trial when the complainant seeks compensatory or punitive damages. These caps are as follows: The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party-- (A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000; (B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and (C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and (D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. 42 U.S.C. § 1981(b)(3). Compensatory and punitive damages under § 1981a may not be awarded “where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.” 42 U.S.C. §1981a(a)(3). As with Title VII actions in the Eleventh Circuit, back pay has usually been determined by the jury, and reinstatement or front pay has been determined by the court. See e.g., Kemp v. Monge, 919 F. Supp. 404 (M.D. Fla. 1996); Ward v. Papa’s Pizza To Go, Inc., 907 F. Supp. 1535 (S.D. Ga. 1995) (front pay awards are given in employment discrimination cases when necessary to effectuate fully the make whole purposes of anti-discrimination laws, that is, when back pay does not fully redress a plaintiff's injuries, and reinstatement is not possible). In addition, 42 U.S.C. § 12205 authorizes the court to award a reasonable attorney’s fee to the prevailing party.