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5 PJI 0 | Third Circuit (US)
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5 PJI 0 | TITLE VII INTRODUCTORY INSTRUCTION

In this case the Plaintiff ________ makes a claim under a Federal Civil Rights statute that prohibits employers from discriminating against an employee [prospective employee] in the terms and conditions of employment because of the employee’s race, color, religion, sex (including sexual orientation or transgender status), or national origin.

More specifically, [plaintiff] claims that [he/she] was [describe the employment action at issue] by the defendant ________ because of [plaintiff’s] [protected status].

[Defendant] denies that [plaintiff] was discriminated against in any way. Further, [defendant] asserts that [describe any affirmative defenses].

I will now instruct you more fully on the issues you must address in this case.

COMMENT Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.

Note on the Relationship Between Title VII Actions and Actions Brought Under the Equal Pay Act

A claim for sex-based wage discrimination can potentially be brought under either the Equal Pay Act, or Title VII, or both. There are some similarities, and some important differences, between a claim under the Equal Pay Act and a Title VII action for sex-based wage discrimination.

The most important similarity between the two actions is that the affirmative defenses set forth in the Equal Pay Act — (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; and (iv) a differential based on any other factor other than sex — are applicable to Title VII actions for sex-based wage discrimination. This was made clear by the Bennett Amendment to Title VII. See the discussion in County of Washington v. Gunther, 452 U.S. 161 (1981).


The most important differences between the two actions are:

1. The Equal Pay Act does not require proof of intent to discriminate. The plaintiff recovers under the Equal Pay Act by proving that she received lower pay for substantially equal work. In contrast, Title VII claims for disparate treatment require proof of an intent to discriminate. See Lewis and Norman, Employment Discrimination Law § 7.15 (2d ed. 2001). But Title VII does not require the plaintiff to prove the EPA statutory requirements of “equal work” and “similar working conditions”.

In Gunther, supra, the Supreme Court explained the importance of retaining Title VII recovery as an alternative to recovery under the Equal Pay Act:
Under petitioners' reading of the Bennett Amendment, only those sex-based wage discrimination claims that satisfy the "equal work" standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief -- no matter how egregious the discrimination might be -- unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioners' interpretation. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination. Moreover, to cite an example arising from a recent case, Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978), if the employer required its female workers to pay more into its pension program than male workers were required to pay, the only women who could bring a Title VII action under petitioners' interpretation would be those who could establish that a man performed equal work: a female auditor thus might have a cause of action while a female secretary might not. Congress surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII. 452 U.S. at 178-179.

2. Title VII’s burden-shifting scheme (see Instructions 5.1.1, 5.1.2) differs from the burdens of proof applicable to an action under the Equal Pay Act. The difference was explained by the Third Circuit in Stanziale v. Jargowsky, 200 F.3d 101, 107-108 (3d Cir. 2000), a case in which the plaintiff brought claims under Title VII, the ADEA, and the Equal Pay Act:
Unlike the ADEA and Title VII claims, claims based upon the Equal Pay Act, 29 U.S.C. § 206 et seq., do not follow the three-step burden-shifting framework of McDonnell Douglas; rather, they follow a two-step burden-shifting paradigm. The plaintiff must first establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing "equal work" -- work of substantially equal skill, effort and responsibility, under similar working conditions. E.E.O.C. v. Delaware Dept. of Health and Social Services, 865 F.2d 1408, 1413-14 (3rd Cir. 1989). The burden of persuasion then shifts to the employer to demonstrate the applicability of one of the four affirmative defenses specified in the Act. Thus, the employer's burden in an Equal Pay Act claim -- being one of ultimate persuasion -- differs significantly from its burden in an ADEA [or Title VII] claim. Because the employer bears the burden of proof at trial, in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense "so clearly that no rational jury could find to the contrary." Delaware Dept. of Health, 865 F.2d at 1414.

The employer's burden is significantly different in defending an Equal Pay Act claim for an additional reason. The Equal Pay Act prohibits differential pay for men and women when performing equal work “except where such payment is made pursuant to” one of the four affirmative defenses. 29 U.S.C. § 206(d)(1) (emphasis added). We read the highlighted language of the statute as requiring that the employer submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity. See also Delaware Dept. of Health, 865 F.2d at 1415 (stating that "the correct inquiry was... whether, viewing the evidence most favorably to the [plaintiff], a jury could only conclude that the pay discrepancy resulted from" one of the affirmative defenses (emphasis added)). Thus, unlike an ADEA or Title VII claim, where an employer need not prove that the proffered legitimate nondiscriminatory reasons actually motivated the salary decision, in an Equal Pay Act claim, an employer must submit evidence from which a reasonable factfinder could conclude that the proffered reasons actually motivated the wage disparity.
3. The Equal Pay Act exempts certain specific industries from its coverage, including certain fishing and agricultural businesses. See 29 U.S.C. § 213. These industries are not, however, exempt from Title VII.

4. In contrast to Title VII, the Equal Pay Act has no coverage threshold defined in terms of the employer’s number of employees.

5. The statute of limitations for backpay relief is longer under the EPA. As stated in Lewis and Norman, Employment Discrimination Law § 7.20 (2d ed. 2001):
An EPA action is governed by the FLSA [Fair Labor Standards Act] statute of limitations. The FLSA provides a two year statute of limitations for filing, three years in the case of a “willful” violation. These statutes of limitation compare favorably from the plaintiff’s perspective with the 180-day or 300-day administrative filing deadlines of Title VII. Under Title VII, the statute of limitations for a pay claim1 begins to run upon the occurrence of an “unlawful employment practice,” which, pursuant to the 2009 amendments to 42 U.S.C. § 2000e-5(e), can include “when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Id. § 2000e-5(e)(3)(A); see Mikula v. Allegheny County, 583 F.3d 181, 185-86 (3d Cir. 2009) (applying Section 2000e-5(e)(3)(A)).2 This amendment brings the accrual date for a Title VII claim more in line with the EPA mechanism, in which an EPA claim arises each time the employee receives lower pay than male employees doing substantially similar work.

6. “The Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts.” County of Washington v. Gunther, 452 U.S. 161, 175, n.14 (1981).3

7. The Supreme Court decided in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that discrimination on the basis of sexual orientation or transgender status is a subset of discrimination on account of sex under Title VII. It is not clear if this principle applies to the EPA. See Chapter 11. Where the plaintiff claims that wage discrimination is a violation of both Title VII and the Equal Pay Act, it will be necessary to give two sets of instructions, with the exception that the affirmative defenses provided by the Equal Pay Act (see Instructions 11.2.1-11.2.4) will be applicable to both claims. If a claim for sex-based wage discrimination is brought under Title VII only, then these Title VII instructions should be used, with the proviso that where sufficient evidence is presented, the defendant is entitled to an instruction on the affirmative defenses set forth in the Equal Pay Act. See Instructions 11.2.1-11.2.4 for instructions on those affirmative defenses.


Employment relationship

Title VII defines certain conduct by “employer[s]” toward “employees or applicants for employment” as “unlawful employment practice[s].” 42 U.S.C. § 2000e-2(a). In assessing whether the plaintiff counts as an employee for purposes of Title VII, decisionmakers should “look to the factors set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992).” Covington v. International Association of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013); see also Nationwide Mutual Insurance, 503 U.S. at 319 (holding unanimously that the definition of “employee” as used in ERISA “incorporate[s] traditional agency law criteria for identifying master-servant relationships”). Decisionmakers should “focus the employment relationship analysis on ‘the level of control the defendant[s]... exerted over the plaintiff: which entity paid [the employees’] salaries, hired and fired them, and had control over their daily employment activities.’” Covington, 710 F.3d at 119 (quoting Covington v. Int’l Ass’n of Approved Basketball Officials, No. 08–3639, 2010 WL 3404977, at *2 (D.N.J. Aug. 26, 2010)); see also Faush v. Tuesday Morning, Inc., 808 F.3d 208, 209 (3d Cir. 2015) (holding that summary judgment was inappropriate because, under the circumstances, it was for the jury to decide whether the client of a temporary-staffing agency counted as an employer of one of the agency’s employees). To determine whether a shareholder-director of a business entity counts as that entity’s employee for purposes of Title VII, one should employ the multi-factor test set out in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003). See Mariotti v. Mariotti Bldg. Products, Inc., 714 F.3d 761, 765-66 (3d Cir. 2013) (listing the Clackamas factors and holding that they apply in Title VII cases).

Religious Organizations

Title VII allows religious organizations to hire and employ employees on the basis of their religious beliefs. 42 U.S.C. § 2000e-1(a) (Title VII claim for religious discrimination cannot be brought against a “religious corporation, association, educational institution or society”). In LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007), the court listed the following factors as pertinent to whether a particular organization is within Title VII’s exemption for religious organizations:
Over the years, courts have looked at the following factors: (1) whether the entity operates for a profit, (2) whether it produces a secular product, (3) whether the entity's articles of incorporation or other pertinent documents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of worship in its activities, (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists. In LeBoon, the court found the defendant, a Jewish Community Center, to be “primarily a religious organization” because it identified itself as such; it relied on coreligionists for financial support; area rabbis were involved in management decisions; and board meetings began with Biblical readings and “remained acutely conscious of the Jewish character of the organization.” The fact that the Center engaged in secular activities as well was not dispositive. Id. at 229-30. Accordingly the plaintiff, an evangelical Christian who was fired from her position as bookkeeper, could not recover under Title VII on grounds of religious discrimination.

By its terms, Title VII does not confer upon religious organizations the right to discriminate against employees on the basis of race, sex (including sexual orientation and transgender status), and national origin. But with respect to claims for wrongful termination, the First Amendment’s religion clauses give rise to an affirmative defense that “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702, 709 n.4 (2012). The significance of this decision was reinforced by Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), which expanded the scope of the exception. That decision involved the Age Discrimination in Employment Act and Americans with Disabilities Act, but there is little doubt that the exception applies to Title VII and other federal and state antidiscrimination statutes. Further, while the discharge in Hosanna-Tabor implicated religious principles of the employer, the schools in Our Lady of Guadalupe were held entitled to the protection of the exception even though the decisions challenged there were said to be based on secular concerns. Id. at 2058 (“The school maintains that it based its decisions on classroom performance — specifically, Morrissey-Berru’s difficulty in administering a new reading and writing program, which had been introduced by the school’s new principal as part of an effort to maintain accreditation and improve the school’s academic program.”); id. at 2059 (“The school maintains that the decision was based on [Biel’s] poor performance — namely, a failure to observe the planned curriculum and keep an orderly classroom.”).

The Hosanna-Tabor Court engaged in a fact-specific analysis to conclude that the teacher in question was a minister, although it also held that “the ministerial exception is not limited to the head of a religious congregation,” but it declined “to adopt a rigid formula for deciding when an employee qualifies as a minister.” Id. at 707. Our Lady of Guadalupe School, while not attempting a comprehensive definition of the term, took a broad view of its reach. Plaintiffs were lay teachers in Catholic elementary schools without ministerial titles or special training and neither was held out by the schools as a minister or held herself out as such. Further, most of their work involved teaching secular subjects. Nevertheless, each taught religion classes and led their classes in prayer and other religious activities. The Court held that sufficed to bring them within the exception: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” Id. at 2069. See also Petruska v. Gannon Univ., 462 F.3d 294, 299 (3d Cir. 2006) (pre-Hosanna-Tabor decision holding in a Title VII case that the ministerial exception “applies to any claim, the resolution of which would limit a religious institution's right to choose who will perform particular spiritual functions”).

Both Hosanna-Tabor and Our Lady of Guadalupe involved wrongful termination claims, and Hosanna-Tabor held that such claims were barred regardless of the type of relief sought. See Hosanna-Tabor, 132 S. Ct. at 709 (“The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.”). The logic of both clearly would embrace claims of failure to hire, but neither explicitly addressed whether or to what extent the exception barred challenges based on discrimination in terms and conditions of employment. See also Petruska, 462 F.3d at 308 n.11 (noting that the court was not deciding whether the ministerial exception would bar claims for hostile work environment sexual harassment). ). Cf. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 964 (9th Cir. 2004) (review of a church’s decision to terminate plaintiff’s ministry foreclosed, but plaintiff’s hostile environment claims may be pursued).

The Hosanna-Tabor Court did make clear that, where the ministerial exception applies, it bars wrongful-termination claims regardless of the type of relief sought. See Hosanna-Tabor, 132 S. Ct. at 709. In addition, the ministerial exception applies even if the plaintiff asserts that the defendant’s claimed religious reason for the firing is merely pretextual. See id.

Discrimination because of religion

Title VII prohibits adverse employment actions motivated by a protected characteristic; among those characteristics is “religion.” 42 U.S.C. § 2000e–2(a)(1). Where a Title VII religious-discrimination claim is grounded on a claim that the employer was motivated by the plaintiff’s religious beliefs,4 the instructions provided in this Chapter should be a good fit. But “religion” as used in Title VII includes more than religious belief. “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer's business.” 42 U.S.C. § 2000e(j). Coupling this definition with the statutory prohibition on discrimination “because of... religion,” 42 U.S.C. § 2000e–2(a)(1), the Supreme Court has recognized a Title VII disparate-treatment claim for failure to accommodate a religious practice. See E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033-34 (2015) (holding that “religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated”). The Committee has not attempted to determine the ways in which the disparate-treatment instructions in this Chapter would need to be modified for application to a claim for failure to accommodate a religious practice.

Title VII Excludes RFRA Claims for Job-Related Federal Religious Discrimination:

In Francis v. Mineta, 505 F.3d 266, 270-71 (3d Cir. 2007), an employee attempted to bring an employment discrimination action under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4. (The employee had failed to exhaust administrative remedies with the EEOC, so Title VII was unavailable to him.) The court held that “nothing in RFRA alters the exclusive nature of Title VII with regard to employees’ claims of religion-based employment discrimination.” The court relied on the legislative history of RFRA, which demonstrated that “Congress did not intend RFRA to create a vehicle for allowing religious accommodation claims in the context of federal employment to do an end run around the legislative scheme of Title VII..”

Title VII Protection of Pregnancy:

Since 1978, Title VII has included specific statutory language addressing pregnancy:
In 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076, which added new language to Title VII's definitions subsection. The first clause of the 1978 Act specifies that Title VII’s “ter[m] ‘because of sex’... include[s]... because of or on the basis of pregnancy, childbirth, or related medical conditions.” § 2000e(k). The second clause says that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes... as other persons not so affected but similar in their ability or inability to work....” Ibid. Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1344-45 (2015); see also id. at 1353-55 (explaining how the McDonnell Douglas proof framework applies to a claim “that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause”).

The Court of Appeals has held that the Pregnancy Discrimination Act’s reference to “related medical conditions” includes abortion. See Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (concluding “that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion”).

On the subject of pension accrual rules that predated the enactment of the Pregnancy Discrimination Act, see AT & T Corp. v. Hulteen, 556 U.S. 701, 708 (2009) (“Although adopting a service credit rule unfavorable to those out on pregnancy leave would violate Title VII today, a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA.”).

Interaction between disparate impact and disparate treatment principles

Concerning the interaction between disparate-impact and disparate-treatment principles under Title VII, see Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (holding that “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action,” but also noting that “Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race”). See also NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464, 484-85 (3d Cir. 2011) (rejecting defendant’s argument that it should be allowed to maintain a residency requirement despite its disparate impact on African-Americans because the defendant feared disparate-treatment claims by Hispanic candidates).

Discrimination involving gender stereotypes

For a discussion of Title VII claims based on gender stereotyping, see Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292 (3d Cir. 2009) (“[I]t is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes.... Because both scenarios are plausible, the case presents a question of fact for the jury....”).

Discrimination on the basis of sexual orientation or transgender status

Although the Third Circuit earlier held that Title VII does not bar discrimination on the basis of sexual orientation, see Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”), the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), overturned that result. It recognized that discrimination on the basis of sexual orientation or transgender status is a subset of sex discrimination. As the Court wrote:
“[a]n individual’s homosexuality or transgender status is not relevant to employment decisions,” “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. at 1741.

Even while Bibby controlled, the Third Circuit recognized that discrimination based on sex or gender stereotypes (sometimes called “gender nonconformity”) might fall within Title VII’s prohibition of sex discrimination. See Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292 (3d Cir. 2009) (“[I]t is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes.... Because both scenarios are plausible, the case presents a question of fact for the jury....”).

Federal Employee Claims

Title VII claims by federal employees are governed by a separate statutory section, which provides in relevant part that for various specified types of federal-government employees “[a]ll personnel actions affecting [such] employees or applicants for [such] employment... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). The Court of Appeals has held that motivating factor causation applies to federal employee claims under that statute. Makky v. Chertoff, 541 F. 3d 205, 213-214 (3d Cir. 2008), although that decision did not focus on the language of Section 2000e-16(a).

The Supreme Court’s recent decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020), may or may not have implications for Title VII discrimination cases brought by federal employees. Babb was a case claiming age discrimination, and the Court recognized a new causation structure for ADEA discrimination claims by federal employees. Parallel to § 2000e-16(a) of Title VII, the ADEA’s extension of protection from age discrimination to federal employees provides generally that “personnel actions... shall be made free from any discrimination based on age.” 29 U. S. C. §633a(a). Despite recognizing the default rule requiring proof of a “but-for cause” for antidiscrimination statutes, the Court read the “plain meaning of the critical statutory language” to “demand[] that personnel actions be untainted by any consideration of age.” Id. at 1171. That means that, while the plaintiff must prove that discrimination caused, in a but-for sense, a difference in her treatment, she does not have to establish that that different treatment resulted in a different ultimate outcome in order to establish a violation. Rather, the Court distinguished between processes and outcomes with respect to remedies. Proving taint suffices for a violation but does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.

Id. In other words, absent a showing of but-for causation in the ultimate result, plaintiff’s proof of a “taint” establishes a violation and entitles plaintiff to whatever remedies are appropriate when the final personnel action remained unaffected. However, such a plaintiff apparently must show something more than bias by someone involved in the process since the Court also wrote: “plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself.” Id. at 1170.

Babb may suggest, contrary to Makky, that motivating factor causation is not applicable to claims of discrimination in the outcome of personnel decisions. The contrary argument is that Section 2000e-16(d) applies “the provisions of §706(f) through (k), as applicable” to federal employee actions. And §706(g) contains the “same decision anyway” defense to full relief, thus suggesting that motivating factor causation applies in Section 2000e-16 suits. This possibility was noted in a footnote to Justice Thomas’s dissent in Babb. Id. at 1182 n.2.

(Last Updated July 2019)

Footnotes

1 For purposes of brevity, this discussion focuses on deadlines applicable to claims by private-sector employees. For discussion of deadlines applicable to claims by federal employees, see, e.g., Green v. Brennan, 136 S. Ct. 1769 (2016).
2 See also Noel v. Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) (holding that Section 2000e-5(e)(3)(A) “does not apply to failure-to-promote claims”).
3 As to Title VII’s administrative-exhaustion requirement, see 42 U.S.C. § 2000e-5; see also 1 MERRICK T. ROSSEIN, EMPLOYMENT DISCRIMINATION LAW AND LITIGATION § 11:1.50 (online edition updated December 2018) (discussing the plaintiff’s option to await the outcome of the administrative proceeding or to obtain a “right-to-sue” letter prior to that outcome).
“In Title VII actions, failure to exhaust administrative remedies is an affirmative defense in the nature of statute of limitations…. Because failure to exhaust administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving that the plaintiff has failed to exhaust administrative remedies.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997); see also Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1846, 1851 (2019) (unanimous opinion) (holding that Title VII’s requirement of administrative charge-filing “is not jurisdictional” and explaining that this requirement is instead “a [claim-]processing rule, albeit a mandatory one”).

In Williams, which involved the distinctive exhaustion requirement set by 29 C.F.R. § 1614.105 for suits by federal employees, the Court of Appeals evinced the view that the question of exhaustion could properly be submitted to the jury. See id. (“By failing to offer any evidence to the jury on an issue upon which he carried the burden of proof, the Postmaster effectively waived his affirmative defense.”). The Court of Appeals has not applied Williams to address the judge/jury division of labor in a case involving the more general exhaustion provisions in Section 2000e-5, but at least one other Court of Appeals has held that the questions to which a jury trial right attaches include “the defense in a Title VII case of having failed to file a timely administrative complaint.” Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1160 (7th Cir. 2012). Compare Small v. Camden Cty., 728 F.3d 265, 269, 271 (3d Cir. 2013) (holding that compliance with the exhaustion requirement set by the Prison Litigation Reform Act presents a question that can be resolved by the judge).

In the event that a dispute over exhaustion presents a jury question, the court may wish to submit relevant interrogatories to the jury. As of this time, the Committee has not prepared a model instruction on exhaustion. The Committee welcomes feedback from users of the model instructions concerning the need for, and appropriate nature of, such a model instruction.

4 In assessing whether beliefs are religious, one should consider whether those beliefs “‘address[] fundamental and ultimate questions having to do with deep and imponderable matters,’ are ‘comprehensive in nature,’ and are accompanied by ‘certain formal and external signs.’” Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487, 491 (3d Cir. 2017) (quoting Africa v. Com. of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981), and holding that the plaintiff’s anti-vaccination beliefs did not count as religious because they satisfied none of these three factors).

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