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5 PJI 3.2 | Third Circuit (US)
HB-PJI-CA03-05S0302 Download


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COMMENT In contrast to a bona fide occupational qualification, which is an affirmative defense, the treatment of an employer’s alleged bona fide seniority system is simply one aspect of the plaintiff’s burden of proving intentional discrimination in a Title VII case.47 In Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 908-09 (1989), superseded by statute on other grounds, Pub. L. No. 102-166, Title I, § 112, 105 Stat. 1079, codified as amended at 42 U.S.C. § 2000e-5(e)(2), the Court emphasized that the plaintiff has the burden of proving intentional discrimination and held that, as applied to seniority systems, the plaintiff must prove that the seniority system is a means of intentional discrimination. Thus the existence of a bona fide seniority system is not an affirmative defense; rather it is simply an aspect of the plaintiff’s burden of proving discrimination. The Lorance Court specifically distinguished seniority systems from bona fide occupational qualifications, a defense on which the defendant does have the burden. See also Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1417 (3d Cir. 1991) (stating that petitioning employees “were required to allege that either the creation or the operation of the seniority system was the result of intentional discrimination”); Green v. USX Corp., 896 F.2d 801, 806 (3d Cir. 1990) (noting that proof of disparate treatment, not simply disparate impact, is required to invalidate a seniority system under Title VII). Accordingly, no instruction is included for any affirmative defense for a bona fide seniority system.
(Last Updated July 2019)


47 See 42 U.S.C. § 2000e-2(h); see also AT & T Corp. v. Hulteen, 129 S. Ct. 1962, 1973 (2009) (applying § 2000e-2(h)).

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