Court Denies New Trial Despite Jury Instruction Error Defining ‘Qualified’

​Takeaway: During the interactive process, an employer must consider potential reasonable accommodations beyond what the employee proposes in order to fulfill its obligation to provide the employee with a reasonable accommodation.

Notwithstanding an error in the jury instruction defining "qualified," the 7th U.S. Circuit Court of Appeals recently found a plaintiff suffered no prejudice to her discrimination and failure-to-accommodate claims under the Americans with Disabilities Act (ADA), and therefore refused to order a new trial.

The plaintiff worked as an optical manager at Costco in Indianapolis. The plaintiff has disabilities, including fibromyalgia, spinal stenosis, herniated disks, and bone spurs, that made it hard for her to bend, walk and stand. 

In 2015, Costco remodeled the optical department, building computer monitors directly into the counters to protect customers' confidential health information. This change made it more difficult for the plaintiff to continue working as an optical manager. The arrangement would have required the plaintiff to stand much longer than she could tolerate.

The parties discussed accommodations, but Costco determined that no accommodations would allow the plaintiff to continue as an optical manager. Consequently, Costco placed the plaintiff on involuntary leave and later assigned her to a different job paying less money.

The plaintiff sued under the ADA for disability discrimination and retaliation. A jury ruled against her, finding that she was not qualified to do the optical manager job. The plaintiff appealed, arguing that the trial court gave an erroneous jury instruction on the central issue of being qualified for the job.

Both of the plaintiff's ADA claims required her to show that she was a qualified individual with a disability, meaning that she had to be able to perform the essential job functions of an optical manager with or without reasonable accommodations.

The plaintiff argued that the jury instructions erroneously defined "qualified." The court instructed the jury: "Under the ADA, the plaintiff was qualified if she could do the job's essential functions, either with or without the reasonable accommodation she proposed." The plaintiff argued that the phrase "she proposed" was erroneous because it effectively limited her case at trial to the accommodations she had proposed in the interactive process with Costco managers to find a reasonable accommodation.

As a general rule, the court stated that an ADA plaintiff is not necessarily limited at trial to the accommodations she proposed before the lawsuit. However, the court was not convinced that the instruction given was so prejudicial to the plaintiff that a new trial was warranted.

The ADA plaintiff has the burden of showing at trial that a reasonable accommodation would have enabled her to do the essential functions of the job in question. But, the court stated, the answer to the question whether and to what extent the plaintiff might be limited at trial to accommodations she proposed to the employer or that were discussed in the interactive process between employer and the employee depends on which side is deemed more responsible for the breakdown of the interactive process.

The plaintiff's doctor's restrictions said she could never stoop, bend or kneel. An employer is entitled—and required—not to permit employees to exceed their doctor's restrictions, even if employees think they can, the court said. "By the same token," the court added, "an employee is not entitled to ask a jury to bend the meaning of those restrictions."

The court emphasized that even in closing argument, neither counsel focused on who proposed various possible accommodations or the "she proposed" phrase that the plaintiff argued on appeal was so important for the jury. As such, the 7th Circuit was not persuaded that the disputed "she proposed" phrase in the jury instruction had any effect on the verdict.

Hirlston v. Costco Wholesale Corp., 7th Cir., No. 22-2067 (Sept. 1, 2023).

Roger Achille is a labor attorney in Boston.