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6 PJI 1.1 | Third Circuit (US)
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6 PJI 1.1 | SECTION 1981 | DISPARATE TREATMENT — MIXED-MOTIVE

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] race 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]3; and

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

As used in this instruction, [plaintiff’s] race was a “motivating factor” if [his/her] race 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:4

If you find in [plaintiff's] favor with respect to each of the facts that [plaintiff] must prove, you must then decide whether [defendant] has shown that [defendant] would have made the same even if there had been no racially discriminatory motive. Your verdict must be for [defendant] if [defendant] proves by a preponderance of the evidence that [defendant] would have treated [plaintiff] the same even if [plaintiff’s] race had played no role in the employment decision.]

COMMENT At the outset, it should be noted that in the context of two other statutory schemes the Supreme Court has rejected the “mixed motive” framework for employment discrimination cases. In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court rejected the use of the mixed-motive framework for claims under the Age Discrimination in Employment Act (ADEA). And in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), the Court barred the use of the mixed-motive framework for Title VII retaliation claims. See Nassar, 133 S. Ct. at 2533 (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”); id. at 2534 (rejecting contention that the Price Waterhouse mixed-motive test could be used for Title VII retaliation claims).

The Court’s analyses in Gross and Nassar focused closely on the text of the relevant statutes. The statutory language in question – from the ADEA (in Gross) and from Title VII’s retaliation provision (in Nassar) – differs from the language of Section 1981, so it is unclear whether the Court would disapprove the use of a mixed-motive test in Section 1981 cases.

Two cases decided by the Court of Appeals between Gross and Nassar bear upon this question. In Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009), the parties agreed that Gross had no application to the Section 1981 claim in that case, and the panel therefore did not have occasion to decide the issue. See id. at 182 n.5 (majority opinion) (noting that it was unnecessary to decide the question but also suggesting that Gross was distinguishable because “Section 1981... does not include the ‘because of’ language used in the ADEA” and “use of the Price Waterhouse framework makes sense in light of section 1981's text”); id. at 185 (Jordan, J., concurring) (“[C]ontrary to dicta in footnote five of the Majority Opinion, the Supreme Court's decision in Gross... may well have an impact on our precedent concerning the analytical approach to be taken in employment discrimination cases under § 1981.”). In Anderson v. Wachovia Mortgage Corp., 621 F.3d 261 (3d Cir. 2010), the Court of Appeals stated that “both the direct evidence test introduced by Price Waterhouse v. Hopkins... and the burden-shifting framework introduced by McDonnell Douglas Corp. v. Green... may be used to determine whether an employer has discriminated against a plaintiff in violation of § 1981,” id. at 267-68; the Anderson court ruled, however, that the plaintiffs’ evidence did not qualify their case for application of the Price Waterhouse test, see id. at 269. These instructions were constructed on the assumption that the mixed-motive and pretext frameworks apply in Section 1981 cases.

A number of past cases have relied upon the distinction between direct and circumstantial evidence of discrimination when determining the availability of a mixed-motive instruction. If the plaintiff produces direct evidence of discrimination, this is sufficient to show that the defendant’s activity was motivated at least in part by racial animus, and therefore a “mixed-motive” instruction is given. If the evidence of discrimination is only circumstantial, then defendant can argue that there was no racial animus at all, and that its employment decision can be explained completely by a non-discriminatory motive; a number of decisions indicate that it is then for the plaintiff to show that the alleged non-discriminatory motive is a pretext, and accordingly Instruction 6.1.2 should be given. See generally Fakete v. Aetna, Inc., 308 F.3d 335 (3d Cir. 2002) (using “direct evidence” to describe “mixed-motive” cases and noting that pretext cases arise when the plaintiff presents only indirect or circumstantial evidence of discrimination); Glanzman v. Metropolitan Management Corp., 391 F.3d 506 (3d Cir. 2004) (same); Anderson, 621 F.3d at 269 (holding the Price Waterhouse framework inapplicable to plaintiffs’ Section 1981 discriminatory-lending claims because plaintiffs had failed to point to “direct evidence of discrimination”).5

In the context of Title VII, the Supreme Court has ruled that direct evidence of discrimination is not required for a plaintiff to employ the mixed-motive framework set by 42 U.S.C. § 2000e-2(m). See Desert Palace Inc. v. Costa, 539 U.S. 90 (2003). The Desert Palace Court held that in order to be entitled to a mixed-motive instruction, a Title VII 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)). In its 2010 decision in Anderson, which – as noted above – requires direct evidence of discrimination in order to apply a mixed-motive framework for Section 1981 claims – the Court of Appeals did not discuss Desert Palace. More recently, 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. The Committee has not attempted to determine whether Egan has undermined Anderson’s requirement of direct evidence for Section 1981 mixed-motive claims.

Same Decision Defense

In Lewis v. University of Pittsburgh, 725 F.2d 910 (3d Cir. 1983), the court of appeals rejected a plaintiff’s challenge to the 104 jury instructions on her race discrimination claims under Section 1981 and Section 1983. Reasoning that “Title VII and sections 1981 and 1983 all require a showing of ‘but for’ causation,” the court of appeals refused to credit the plaintiff’s contention that she “need only show that race was a ‘substantial’ or ‘motivating’ factor” in the defendant’s decision.” Id. at 914-15. The Lewis court’s reasoning, however, did not appear to foreclose the possibility of a burden-shifting framework in Section 1981 cases. Responding to the plaintiff’s reliance on Mount Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977), the panel majority observed:
In Mt. Healthy... Justice Rehnquist specifically rejected the proposition that, under § 1983, it was enough to show that protected constitutional activity was a “substantial factor” leading to the challenged action. Id. at 285, 97 S. Ct. at 575. Mt. Healthy merely found that, after an initial showing that protected activity was a “substantial” or “motivating factor,” the burden shifted to defendants to show that the same action would have occurred even in the absence of such activity. Id. at 287, 97 S. Ct. at 576. It therefore did not deviate from the requirement of “but for” causation; rather, its only effect was to allocate and specify burdens of proof. Lewis, 725 F.2d at 916.

Because the court of appeals has indicated that the approach to Section 1981 claims generally follows that taken with respect to Title VII claims, see, e.g., Schurr v. Resorts Intern. Hotel, Inc., 196 F.3d 486, 499 (3d Cir. 1999), it can be argued that the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), setting a mixed-motive framework for Title VII discrimination claims, also set in place a framework for Section 1981 claims. But complications arise from the fact that the Price Waterhouse framework has been altered – for Title VII discrimination claims – by legislation enacted in 1991. Specifically, Section 107 of the Civil Rights Act of 1991 (42 U.S.C. § 2000e-5(g)(2)(B)) changed the law concerning “mixed-motive” liability on Title VII discrimination claims. Previously, a defendant could escape liability by proving the “same decision” would have been made even without a discriminatory motive. The Civil Rights Act of 1991 provides that a “same decision” defense precludes an award for money damages, but not liability.

The Eleventh Circuit has held that the change wrought by the Civil Rights Act of 1991 does not apply to Section 1981 actions. Mabra v. United Food & Comm. Workers Union No. 1996, 176 F.3d 1357, 1358 (11th Cir. 1999). The Court parsed the 1991 Act and concluded that while Congress had amended the mixed-motive provisions in Title VII, it had not amended them in Section 1981:
Enacted as part of the Civil Rights Act of 1991 ("1991 Act"), the mixed-motive amendments specifically add two provisions to the text of Title VII; they make no amendment or addition to § 1981. See Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1075 (1991) (codified as amended at 42 U.S.C. §§ 2000e-2(m), 2000e 5(g)(2)(B)). In contrast, the portion of the 1991 Act amending § 1981 by adding two new subsections to the text of that statute makes no mention of any change in the mixed-motive analysis in § 1981 cases. Id. at 1071-72. The amendments to Section 1981 that were added by the 1991 Act and cited by the Mabra court were:

(b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.


The Eleventh Circuit pattern instruction accordingly provides that if the jury finds that the same decision would have been made, the jury must find for the defendant. See Eleventh Circuit Pattern Jury Instruction 4.9.

The Third Circuit follows the Eleventh Circuit approach. See Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009) (“[A]lthough the Civil Rights Act of 1991 amended section 1981 in other ways, it did not make the mixed-motive amendments described above applicable to section 1981 actions. Therefore, Price Waterhouse, and not the 1991 amendments to Title VII, controls the instant case, and Craftmatic has a complete defense to liability if it would have made the same decision without consideration of Brown's race.”).6 Accordingly, the pattern instruction sets forth the “same decision” defense as one that precludes liability, and thus differentiates it from the “same decision” defense in Title VII discrimination actions.

Adverse Employment Action

As noted above, Section 1981(b) defines “the term ‘make and enforce contracts’ [to] include[] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” This statutory definition should shape the “adverse employment action” element of Section 1981 employment discrimination claims. Although few precedential Third Circuit cases address that element, the Court of Appeals has stated 170 in dictum that “a wide panoply of adverse employment actions may be the basis of employment discrimination suits under Title VII of the Civil Rights Act and 42 U.S.C. § 1981.” Clark v. Twp. of Falls, 890 F.2d 611, 618-19 (3d Cir. 1989). More recently, nonprecedential opinions have treated Section 1981 claims and Title VII claims interchangeably with respect to the adverse employment action element. See, e.g., Barnees v. Nationwide Mut. Ins. Co., 598 Fed. Appx. 86, 90 (3d Cir. 2015) (nonprecedential opinion) (“Title VII and section 1981... provide relief only if discrimination is ‘serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.’” (quoting Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (a Title VII case), and citing Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (a Section 1981 case)). The Committee accordingly has drafted the adverse employment action element in Instruction 6.1.1 to parallel that in Instruction 5.1.1. See Comment 5.1.1 for further discussion of the adverse employment action element in Title VII cases.

Animus of Employee Who Was Not the Ultimate Decisionmaker

For a discussion of the Court’s treatment in Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), of the animus of an employee who was not the ultimate decisionmaker, see Comment 5.1.7. Staub concerned a statute that used the term “motivating factor,” and it is unclear whether the ruling in Staub would extend to mixed-motive claims under statutes (such as Section 1981) that do not contain the same explicit statutory reference to discrimination as a “motivating factor.”

(Last Updated March 2018)

Footnotes

3 Please see the Comment for discussion of this list of alternatives.
4 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.
5 Glanzman and Fakete were ADEA cases and their application of the Price Waterhouse mixed-motive framework to ADEA cases has, as noted above, been overruled by Gross.
6 In Nassar, the Court reasoned that the 1991 amendments’ changes to Title VII supported its conclusion that the Price Waterhouse mixed-motive framework is inapplicable to Title VII retaliation claims. See Nassar, 133 S. Ct. at 2534. The Committee has not attempted to determine whether that reasoning also forecloses the use of the Price Waterhouse framework for Section 1981 claims. Cf., e.g., Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 B.C. L. Rev. 279, 326 (2010) (arguing that the 1991 amendments do not foreclose the use of the Price Waterhouse mixed-motive test for Section 1981 claims).

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