Friday, November 8, 2019

How to lose an ADA "regarded as" disability reasonable accommodation case

Once upon a time, waaaay back before 2008, there was a circuit split on the issue of whether the ADA required employers to reasonably accommodate an employee who was "regarded as" having a disability (but, did not meet either of the other two covered definitions of "disability" - actually having a disability, or having a record of a disability). Here in the Third Circuit, we did allow employees to proceed on a "regarded as" disability reasonable accommodation claim.

Not official use.
Then, in 2008, the ADA was amended by the ADAAA. The ADAAA makes very clear that employers “need not provide a reasonable accommodation . . . to an individual who meets the definition of disability in [Section 12102(1)(C) - the subsection defining "disability" to include an individual "regarded as" having a disability].” 42 U.S.C. § 12201(h).

Welp, that's the background for a Third Circuit opinion from earlier this year, Robinson v. First State Community Action Agency. The jury ruled in favor of the employee on her reasonable accommodation claim. The jury instructions included an instruction that the Plaintiff could prove her case by establishing only that the employer "regarded [her] as dyslexic." Well, clearly she should have lost this claim because the ADAAA does not require an employer to accommodate an employee who is merely regarded as having a disability.

The employer, however, proceeded under this theory of the case throughout litigation, trial, and post-trial briefing. The objection to the jury instruction (or this theory of the case, generally) came only on appeal to the Third Circuit. Per this opinion, that is simply too late. The issue had been waived. That's a pretty harsh outcome for a failure to object earlier - but it does serve as a strong cautionary tale.

One interesting side issue here. The employee argued that the trial court could not have erred because it relied on the Third Circuit Model Jury Instructions (or "Model Civil Jury Instructions for the District Courts of the Third Circuit"). No dice.
[W]e have never held that use of such an instruction cannot constitute error, and a model jury instruction itself is neither law nor precedential . . . . Model instructions are designed to help litigants and trial courts, not to replace their shared obligation to distill the law correctly when drafting proposed jury instructions. Thus, the existence of the antiquated model jury instruction here, which regrettably does not yet reflect the 2008 Amendments, fails to provide a second justification for our decision to not review the relevant jury instruction.
The model instructions are a great resource - but litigators still need to check them.

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