In order to sustain a claim under the ADA a plaintiff must establish (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation, he is able to perform the essential functions of the job; and (3) that the employer did not take appropriate affirmative steps to help him find an alternative position within the company and/or (c)otherwise failed or refused to make reasonable accommodation. White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995).
The defendant is obligated to present evidence of the essential job functions. See White, 45 F.3d at 362 (analyzing evidence offered by employer to determine essential functions even before employee demonstrated possible accommodations). In determining which are essential job functions, Courts should consider, among other things, "the employer's judgment as to what functions of a job are essential," 42 U.S.C. Section(s) 12111(8); job descriptions prepared before advertising or interviewing applicants, Id.; "[t]he consequences of not requiring the [employee] to perform the function," 29 C.F.R. Section(s) 1630.2(n)(3) (iv)(1994); and the work experience of current and former employees. 29 C.F.R. Section(s) 1630.2(n)(3)(vi)(vii) (1994).
The burden is on plaintiffs to prove that they are qualified handicapped individuals. Buckingham v. U.S., 998 F.2d 735, 740 (9th Cir. 1993); Mantolete v. Bolger, 767 F.2d 1416, 1423 (9th Cir. 1985). If accommodation to their handicap is required to enable them to perform essential job functions, then plaintiffs must only provide evidence sufficient to make "at least a facial showing that reasonable accommodation is possible." Buckingham, supra at 940.
In order to succeed, he must show that the suggested accommodation would, more probably than not, have resulted in his ability to perform the essential functions of his job. The plaintiff is required to make a showing of probability, rather than certainty, because the employer's refusal to accommodate has deprived the plaintiff of the opportunity to make a more definite showing that he or she could, with accommodation, become qualified for the job. Buckingham, supra at 742. The employer bears the burden of proving an inability to accommodate. Mantolete v.Ô, 767 F.2d 1416, 1423 (9th Cir.1985).
The employer has greater knowledge of the essentials of the job than does the handicapped applicant. The employer can look to its own experience, or, if that is not helpful, to that of other employers who have provided jobs to individuals with handicaps similar to those of the applicant in question. Furthermore, the employer may be able to obtain advice concerning possible accommodations from private and government sources.Id.
[O]nce the employer presents credible evidence that accommodation would not reasonably be possible, the plaintiff has the burden of coming forward with evidence concerning her individual capabilities and suggestions for possible accommodations to rebut the employer's evidence.Id. at 1424.
1. Meaning of Disability, ADA.
The statutory meaning of disability within federal law is more restrictive than under Washiongton law. The inquiry concerning whether an individual is disabled within the meaning of the act is an individualized one, and must be determined on a case-by-case basis. Byrne v. Board of Education, 979 F.2d 560, 564 (7th Cir. 1992); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986).
Under federal law, "[T]he term 'disability' means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. À À12102(2); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994) ("We express no opinion on whether Bolton qualifies as disabled under the ADA based on a perceived impairment or a record of impairment, as those issues are not raised on appeal"), cert. denied, 115 S. Ct. 1104 (1995).
"Read in conjunction with subsection (A), subsection (C) prescribes that a person is considered disabled for purposes of the ADA if that person is "regarded as having" an impairment that "substantially limits" a "major life activit[y]."'Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995); 42 U.S.C. Section 12102(2)(C). "The limiting adjectives 'substantially' and 'major' indicate that the perceived 'impairment must be a significant one."' Id.; Byrne v. Board of Educ., Sch. of West Allis, 979 F.2d 560, 564 (7th Cir. 1992). A person is "regarded as having" an impairment that substantially limits the person's major life activities when other people treat that person as having a substantially limiting impairment. Id. See 29 C.F.R. Section(s) 1630.2(l)(3). The focus is on the impairment's effect upon the attitudes of others. Wooten, supra; Byrne, 979 F.2d at 566.
2. Substantially Limits a Major Life Activity, Working.Ô
It is clear that the ADA regulations provide that inability to work "substantially limits" a "major life activity." Major life activities are defined as follows:
Major life activities are those basic activities that the average person in the general population can perform with little or no difficulty. Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.29 C.F.R. Section 1630.2(i)(emphasis added). "The determination of whether an individual is substantially limited in working must also be made on a case by case basis." 29 C.F.R. Section(s) 1630.2(j). "To demonstrate that an impairment 'substantially limits' the major life activity of working, an individual must show 'significant restriction 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.'" Bolton, 36 F.3d at 942 (quoting 29 C.F.R. Section(s) 1630.2(j)(3)(i)). The inability to perform the duties of any one particular job does not qualify as a restriction on the major life activity of working. Id.; See also, Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir.) , cert. denied, 115 S. Ct. 59 (1994); Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986); Bolton v. Scrivner, Inc., 36 F.3d 939, 942-43 (10th Cir. 1994).
In making the determination of whether plaintiff is substantially limited in working as a major life activity, there exists six factors which may or should be considered. The three factors that "should be considered" when determining whether an impairment substantially limits a major life activity are:
"(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment."Section 1630.2(j)(2). The three additional factors that "may be considered" when an individual claims substantial limitation in the major life activity of working are:
(A) [t]he geographical area to which the individual has reasonable access; (B) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or (C) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).Section 1630.2(j)(3)(ii).
On the other hand, an individual does not have to be totally unable to work in order to be considered substantially limited in the major life activity of working. An individual is substantially limited in working if the individual is significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes, when compared with the ability of the average person with comparable qualifications to perform those same jobs. For example, an individual who has back condition that prevents the individual from performing any heavy labor job would be substantially limited in the major life activity of working because the individual impairment eliminate his or he ability to perform a class of jobs. This would be so even if the individual were able to perform jobs in another class, e.g. the class of semiskilled jobs.Section 1630.2(j)(emphasis added).