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In this case [plaintiff] is alleging that [defendant] [describe alleged disparate treatment] [plaintiff]. In order for [plaintiff] to recover on this discrimination claim against [defendant], [plaintiff] must prove that [defendant] intentionally discriminated against [plaintiff]. This means that [plaintiff] must prove that [his/her] [protected status] was a motivating factor in [defendant’s] decision to [describe action] [plaintiff].

To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of the evidence:

First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment]5; and

Second: [Plaintiff’s] [protected status] was a motivating factor in [defendant's] decision.

Although [plaintiff] must prove that [defendant] acted with the intent to discriminate, [plaintiff] is not required to prove that [defendant] acted with the particular intent to violate [plaintiff’s] federal civil rights.

In showing that [plaintiff's] [protected status] was a motivating factor for [defendant’s] action, [plaintiff] is not required to prove that [his/her] [protected status] was the sole motivation or even the primary motivation for [defendant's] decision. [Plaintiff] need only prove that [plaintiff’s protected status] played a motivating part in [defendant's] decision even though other factors may also have motivated [defendant].

As used in this instruction, [plaintiff’s] [protected status] was a “motivating factor” if [his/her] [protected status] played a part [or played a role] in [defendant’s] decision to [state adverse employment action] [plaintiff].

[For use where defendant sets forth a “same decision” affirmative defense:6

If you find that [defendant's] treatment of [plaintiff] was motivated by both discriminatory and lawful reasons, you must decide whether [plaintiff] is entitled to damages. [Plaintiff] is not entitled to damages if [defendant] proves by a preponderance of the evidence that [defendant] would have treated [plaintiff] the same even if [plaintiff's] [protected class] had played no role in the employment decision.]

COMMENT The Supreme Court has ruled that direct evidence is not required for a plaintiff to prove that discrimination was a motivating factor in a “mixed-motive” case, i.e., a case in which an employer had both legitimate and illegitimate reasons for making a job decision. Desert Palace Inc. v. Costa, 539 U.S. 90 (2003). The Desert Palace Court concluded that in order to be entitled to a mixed-motive instruction, “a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’” Id. at 101 (quoting 42 U.S.C. § 2000e-2(m)). The mixed-motive instruction above — including the instruction on the affirmative defense — tracks the instructions approved in Desert Palace.

In Egan v. Delaware River Port Authority, 851 F.3d 263, 274 (3d Cir. 2017), the Court of Appeals applied the reasoning of Desert Palace to FMLA retaliation-for-exercise claims, and held “that direct evidence is not required to obtain a mixed-motive instruction under the FMLA.” The Egan court explained that, if a mixed-motive instruction is requested, the court “should... determine[] whether there [i]s evidence from which a reasonable jury could conclude that the [defendant] had legitimate and illegitimate reasons for its employment decision and that [the plaintiff’s] use of FMLA leave was a negative factor in the employment decision”; if so, the mixed-motive instruction is available. Id. at 275. For the moment, the Committee has not attempted to determine whether the standard outlined in Egan also governs in Title VII cases. That standard differs from the suggestions offered in prior versions of this Comment; those prior suggestions are set out in a footnote.7

Whatever the precise standard for determining when a mixed-motive instruction is available, it is clear that the distinction between mixed-motive and pretext cases is retained after Desert Palace. The Third Circuit has indicated that it retains that distinction. See, e.g., Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008) (“A Title VII plaintiff may state a claim for discrimination under either the pretext theory set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the mixed-motive theory set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), under which a plaintiff may show that an employment decision was made based on both legitimate and illegitimate reasons.”).8 See also Hanes v. Columbia Gas of Pennsylvania Nisource Co., 2008 WL 3853342 at *4, n.12 (M.D. Pa. 2008) ( Third Circuit “adheres to a distinction between ‘pretext’ cases, in which the employee asserts that the employer's justification for an adverse action is false, and ‘mixed-motives’ cases, in which the employee asserts that both legitimate and illegitimate motivations played a role in the action”; “determinative factor” analysis applies to the former and “motivating factor” analysis applies to the latter).

Whether to give a mixed-motive or a pretext instruction (or both) is a question of law for the court. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097-98 (3d Cir.1995). See also Connelly v. Lane Const. Corp., 809 F.3d 780, 788 (3d Cir. 2016) (“[E]ven at trial, an employee may present his case under both [pretext and mixed-motive] theories, provided that, prior to instructing the jury, the judge decides whether one or both theories applies” (internal quotation marks and citation omitted).); Urban v. Bayer Corp. Pharmaceutical Div., 2006 WL 3289946 (D.N.J. 2006) (analyzing discrimination claim first under mixed-motive theory and then under pretext theory).

“Same Decision” Affirmative Defense in Mixed-Motive Cases

Where the plaintiff has shown intentional discrimination in a mixed motive case, the defendant can still avoid liability for money damages by demonstrating by a preponderance of the evidence that the same decision would have been made even in the absence of the impermissible motivating factor. If the defendant establishes this defense, the plaintiff is then entitled only to declaratory and injunctive relief, attorney’s fees and costs. Orders of reinstatement, as well as the substitutes of back and front pay, are prohibited if a same decision defense is proven. 42 U.S.C. §2000e-5(g)(2)(B).

Adverse Employment Action – General Considerations

Title VII provides that “[i]t shall be an unlawful employment practice for an employer... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).9 Failures or refusals to hire and discharges are specifically included within the statute’s scope. Other employment actions are included if they “otherwise... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” Thus, wage discrimination counts as an adverse action, since it is discrimination with respect to compensation.10 The circumstances under which harassing conduct rises to the level of discrimination in the terms, conditions, or privileges of employment have been spelled out by caselaw,11 and Instructions 5.1.3 through 5.1.5 accordingly guide the jury through the application of the standards that the Supreme Court and Third Circuit caselaw have set. Likewise, constructive discharge counts as action that affects employment terms, conditions, or privileges,12 and Instruction 5.2.2 guides the jury on how to assess whether a constructive discharge has occurred. “[T]he ‘terms, conditions, or privileges of employment’ clearly include benefits that are part of an employment contract.”13 But, in addition, the term “privileges” encompasses benefits that, though they are not contractually required, are incidents of employment or form part and parcel of the employment relationship.14 The Court of Appeals has indicated that an alteration of the terms, conditions, or privileges of employment must be “serious and tangible” in order to be actionable.15 But there is not a great deal of Third Circuit caselaw addressing what meets that test or who should decide whether the test is met. Some of the relevant caselaw arose in the context of Title VII retaliation claims, which – before the Supreme Court’s 2006 decision in Burlington Northern – were subject (in the Third Circuit) to the same “adverse employment action” test as claims under Title VII’s substantive discrimination provision.16 In a number of instances, the Court of Appeals has affirmed grants of summary judgment that turned upon a ruling concerning the absence of an adverse employment action.17 On the other hand, where the material adverseness of an employment action requires assessment of fact-specific circumstances, the Court of Appeals has on at least one occasion specified that this assessment is for the jury rather than the judge.18 Failure to accommodate a religious practice can be the basis for a claim under Section 2000e-2(a)(1), but the model instructions do not attempt to formulate an instruction for use in such cases.19

Instruction 5.1.1 offers a list of alternatives by which the plaintiff could meet the “adverse employment action” element – failure to hire; failure to renew an employment agreement; failure to promote; demotion; termination; constructive discharge; or “otherwise discriminat[ing] against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment.” In a case where the plaintiff relies upon the last of these options (“otherwise discriminat[ing]”), the court will need to determine whether categorizing the event(s) in question as an adverse employment action presents a question of law for the court or a question for the jury. As noted below, some types of actions are categorically outside the ambit of actionable conduct (e.g., paid suspension pending investigation of alleged wrongdoing) and a case involving such an action (and no other adverse conduct) would not reach a jury (for lack of an adverse action). In other instances, the type of employment action might not be categorically sufficient or categorically insufficient, but rather might count as an adverse employment action only if it had enough of an effect (i.e., if it was serious and tangible); as to such actions, the Committee has not attempted to determine whether it is for the judge or for the jury to decide whether the action was serious and tangible so as to count as an adverse employment action.

Failure to Rehire as an Adverse Employment Action

In Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008), the court held that the failure to renew an employment arrangement, “whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII.” See also Connelly v. Lane Const. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (holding that plaintiff adequately pleaded a disparate treatment claim where her “allegations raise[d] a reasonable expectation that discovery w[ould] reveal evidence that [her] protected status as a woman played either a motivating or determinative factor in [defendant]’s decision not to rehire her”). The Instruction accordingly contains a bracketed alternative for failure to renew an employment arrangement as an adverse employment action.

Suspension with Pay Generally Not an Adverse Employment Action

“A paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015). Thus, “a suspension with pay, ‘without more,’ is not an adverse employment action under the substantive provision of Title VII.” Id. (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). Compare Jones, 796 F.3d at 325 (“[W]e need not consider and do not decide whether a paid suspension constitutes an adverse action in the retaliation context.”).

Failure of Employee to Satisfy an Objective Externally-Imposed Standard Necessary for Employment

In Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008), the court held that “a mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain.” The court noted that “[i]n this respect at least, requirements under Price Waterhouse do not differ from those of McDonnell Douglas.” The Makky court emphasized that the requirement of an objective qualification was minimal and would arise only in specific and limited fact situations where the plaintiff “does not possess the objective baseline qualifications to do his/her job will not be entitled to avoid dismissal.” The court explained the minimal qualification requirement as follows:

This involves inquiry only into the bare minimum requirement necessary to perform the job at issue. Typically, this minimum requirement will take the form of some type of licensing requirement, such as a medical, law, or pilot's license, or an analogous requirement measured by an external or independent body rather than the court or the jury. * * * We caution that we are not imposing a requirement that mixed-motive plaintiffs show that they were subjectively qualified for their jobs, i.e., performed their jobs well. Rather, we speak only in terms of an absolute minimum requirement of qualification, best characterized in those circumstances that require a license or a similar prerequisite in order to perform the job.

Id. (Emphasis added.)

The Makky court held that the determination of whether a plaintiff had obtained an objective qualification for employment is a question of fact. But it would be extremely rare for the court to have to instruct the jury on whether the plaintiff has met an objective job requirement within the meaning of Makky. The examples given by the court are in the nature of licenses or certifications by an external body — in the vast majority of cases, the parties will not dispute whether the license or certification was issued. (In Makky, the requirement was that the employee have a security clearance, and he could not contest that his clearance was denied.) In the rare case in which the existence of an objective externally-imposed qualification raises a question of fact, the court will need to add a third element to the basic instruction. For example:

Third: [Plaintiff] was [properly licensed] [met the requirements of an independent body that set minimum requirements for [plaintiff’s] job].

Animus of Employee Who Was Not the Ultimate Decisionmaker

Construing a statute that contains similar motivating-factor language, the Supreme Court ruled that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under [the Uniformed Services Employment and Reemployment Rights Act of 1994]” even if the ultimate employment decision is taken by one other than the supervisor with the animus. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (footnotes omitted). The Court did not explicitly state whether this ruling extends to claims under 42 U.S.C. § 2000e-2(m) (which also refers to discrimination as a motivating factor), though it noted the similarity between Section 2000e-2(m)’s language and that of the USERRA. Since Staub, however, the Third Circuit has frequently applied that decision in Title VII cases. E.g., McKenna v. City of Phila., 649 F.3d 171 (3d Cir. 2011); Jones v. SEPTA, 796 F.3d 323 (3d Cir. 2015).

(Last Updated July 2019)


5 Please see the Comment for discussion of the last item in this list of alternatives.
6 The Committee uses the term “affirmative defense” to refer to the burden of proof, and takes no position on the burden of pleading the same-decision defense.
7 Prior versions of this Comment (pre-Egan) stated as follows:

While direct evidence is not required to make out a mixed motive case, it is nonetheless true that the distinction between “mixed-motive” cases and “pretext” cases is often determined by whether the plaintiff produces direct rather than circumstantial evidence of discrimination. If the plaintiff produces direct evidence of discrimination, this may be sufficient to show that the defendant’s activity was motivated at least in part by animus toward a protected class, and therefore a “mixed-motive” instruction is warranted. If the evidence of discrimination is only circumstantial, then the defendant can argue that there was no animus at all, and that its employment decision can be explained completely by a non-discriminatory motive; it is then for the plaintiff to show that the alleged non-discriminatory motive is a pretext, and accordingly Instruction 5.1.2 should be given. See generally Stackhouse v. Pennsylvania State Police, 2006 WL 680871 at *4 (M.D. Pa. 2006) (“A pretext theory of discrimination is typically presented by way of circumstantial evidence, from which the finder of fact may infer the falsity of the employer's explanation to show bias. A mixed-motive theory of discrimination, however, is usually put forth by presenting evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.”) (internal citations and quotations omitted).

On the proper use of a mixed-motive instruction — and the continuing viability of the mixed-motive/pretext distinction — see Matthew Scott and Russell Chapman, Much Ado About Nothing — Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive, 36 St. Mary’s L.J. 395 (2005):
Thus, a case properly analyzed under [42 U.S.C.] § 2000e-2(a) (what some commentators refer to as pretext cases) involves the plaintiff alleging an improper motive for the defendant’s conduct, while the defendant disavows that motive and professes only a non-discriminatory motive. On the other hand, a true mixed motive case under [42 U.S.C.] § 2000e-2(m) involves either a defendant who... admits to a partially discriminatory reason for its actions, while also claiming it would have taken the same action were it not for the illegitimate rationale or... [there is] otherwise credible evidence to support such a finding.

The rationale for the distinction... is simple. When the defendant renounces any illegal motive, it puts the plaintiff to a higher standard of proof that the challenged employment action was taken because of the plaintiff’s race/color/religion/sex/national origin. But, the plaintiff, if successful, is entitled to the full panoply of damages under § 2000e-5. ...

At the same time, where the defendant is contrite and admits an improper motive (something no jury will take lightly), or there is evidence to support such a finding, the defendant’s liability risk is reduced to declaratory relief, attorneys’ fees and costs if the defendant proves it would have taken the same action even without considering the protected trait. The quid pro quo for this reduced financial risk is the lesser standard of liability (the challenged employment action need only be a motivating factor).

8 The Makky court’s statement (quoted in the text) should not be taken to suggest that the complaint must specify whether the plaintiff will rely on a pretext theory, a mixed-motive theory, or both. See Connelly v. Lane Const. Corp., 809 F.3d 780, 788 (3d Cir. 2016) (“The distinction between those two types of cases” has to do with types of proof, “and identifying the proof before there has been discovery would seem to put the cart before the horse.”).
9 In addition, Section 2000e-2(a)(2) provides that “[i]t shall be an unlawful employment practice for an employer... to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2). Caselaw concerning disparate treatment claims tends to focus on Section 2000e-2(a)(1), whereas Section 2000e-2(a)(2) is often viewed as targeting practices that have a disparate impact. See, e.g., E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015) (noting that Sections 2000e-2(a)(1) and (2) are “often referred to as the ‘disparate treatment’ (or ‘intentional discrimination’) provision and the ‘disparate impact’ provision”). The discussion in the text focuses on Section 2000e-2(a)(1).
10 See Comment 5.0, discussing Washington Cty. v. Gunther, 452 U.S. 161 (1981).
11 See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“‘The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “to strike at the entire spectrum of disparate treatment of men and women” in employment,’ which includes requiring people to work in a discriminatorily hostile or abusive environment.” (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)))); Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013) (“[T]he plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered.”).
12 See, e.g., Pennsylvania State Police v. Suders, 542 U.S. 129, 142-43 (2004).
13 Hishon v. King & Spalding, 467 U.S. 69, 74 (1984); see also id. at 75 (“If the evidence at trial establishes that the parties contracted to have petitioner considered for partnership, that promise clearly was a term, condition, or privilege of her employment. Title VII would then bind respondent to consider petitioner for partnership as the statute provides, i.e., without regard to petitioner’s sex.”).
14 “Those benefits that comprise the ‘incidents of employment,’ S.Rep. No. 867, 88th Cong., 2d Sess., 11 (1964), or that form ‘an aspect of the relationship between the employer and employees,’ Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178... (1971), may not be afforded in a manner contrary to Title VII.” Hishon, 467 U.S. at 75-76 (footnotes omitted). The Hishon Court also suggested that the question is whether the benefit in question “was part and parcel of [the relevant type of employee’s] status as an employee” of the employer. Id. at 76.
15 Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting prior Third Circuit caselaw). In Jones, the court held that “[a] paid suspension pending an investigation of an employee’s alleged wrongdoing” did not count as an adverse action under Section 2000e–2(a)(1), because “the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer’s disciplinary policies in appropriate circumstances.” Jones, 796 F.3d at 326 (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). In Jones, the Court of Appeals affirmed the grant of summary judgment to the defendant. See Jones, 796 F.3d at 332.
16 See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300–01 (3d Cir. 1997) (holding “that the ‘adverse employment action’ element of a retaliation plaintiff’s prima facie case incorporates the same requirement that the retaliatory conduct rise to the level of a violation of 42 U.S.C. § 2000e–2(a)(1) or (2)” and that the plaintiff’s “allegations that she was subjected to ‘unsubstantiated oral reprimands’ and ‘unnecessary derogatory comments’” did not meet that test). See also Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 787-88 (3d Cir. 1998) (reversing grant of summary judgment to defendant on plaintiff’s ADA retaliation claim, and noting that while “minor or trivial actions that merely make an employee ‘unhappy’ are not sufficient to qualify as retaliation under the ADA,” relegating “an employee to an undesirable schedule can be more than a ‘trivial’ or minor change in the employee's working conditions”).
17 See Jones, 796 F.3d at 332; Harris v. Supervalu Holdings-PA LLC, 262 Fed. Appx. 470, 472 (3d Cir. 2008) (nonprecedential per curiam opinion). See also Walker v. Centocor Ortho Biotech, Inc., 558 Fed. Appx. 216, 220 (3d Cir. 2014) (nonprecedential opinion concerning Section 1981 claim); Barnes v. Nationwide Mut. Ins. Co., 598 Fed. Appx. 86, 87 (3d Cir. 2015) (same).
18 See Hampton v. Borough of Tinton Falls Police Dep’t, 98 F.3d 107, 116 (3d Cir. 1996) (“Although the rotation may not be a demotion, it came on the heels of [Hampton’s] EEOC filing, and plaintiffs argue that the road patrol assignment is less desirable than that of detective bureau. Moreover, Hampton remains in his new assignment even though it was supposed to have been temporary. The significance of these facts should be resolved by jury deliberations, not motions for summary judgment.”). This discussion in Hampton concerned retaliation claims (including under Title VII) – but, as noted above, the Court of Appeals during this time period borrowed the adverse-action test for Title VII retaliation claims from the principles governing Title VII discrimination claims.
19 See Comment 5.0 (discussing E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033-34 (2015)).

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