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6 PJI 1.6 | Third Circuit (US)
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[Plaintiff] claims that [defendant(s)] discriminated against [him/her] because of [plaintiff’s] [describe protected activity].

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

First: [Plaintiff] [describe activity protected by Section 1981].

Second: [Plaintiff] was subjected to a materially adverse action at the time, or after, the protected conduct took place.

Third: There was a causal connection between [describe challenged activity] and [plaintiff’s] [describe plaintiff’s protected activity].

[[Alternative One:]

Concerning the first element, [plaintiff] need not prove the merits of [his/her] [describe plaintiff’s activity], but only that [he/she] was acting under a reasonable,13 good faith belief that [plaintiff’s] [or someone else’s] right to be free from racial discrimination was violated.]

[[Alternative Two:]

Concerning the first element, [plaintiff] must prove that [plaintiff’s] [or someone else’s] right to be free from racial discrimination was violated. And plaintiff must also prove that [he/she] was acting under a reasonable,14 good faith belief that such a violation had occurred.] [Important: See Comment for a discussion of the choice between these two versions.]

Concerning the second element, the term “materially adverse” means that [plaintiff] must show [describe alleged retaliatory activity] was serious enough that it well might have discouraged a reasonable worker from [describe plaintiff’s protected activity]. [The activity need not be related to the workplace or to [plaintiff’s] employment.]

Concerning the third element, that of causal connection, that connection may be shown in many ways. For example, you may or may not find that there is a sufficient connection through timing, that is [defendant(s)] action followed shortly after [defendant(s)] became aware of [plaintiff’s] [describe activity]. Causation is, however, not necessarily ruled out by a more extended passage of time. Causation may or may not be proven by antagonism shown toward [plaintiff] or a change in demeanor toward [plaintiff].

Ultimately, you must decide whether [plaintiff’s] [protected activity] had a determinative effect on [describe alleged retaliatory activity]. “Determinative effect” means that if not for [plaintiff's] [protected activity], [describe alleged retaliatory activity] would not have occurred.

COMMENT Unlike Title VII, Section 1981 does not contain a specific statutory provision prohibiting retaliation. But the Supreme Court has held that retaliation claims are cognizable under Section 1981 despite the absence of specific statutory language. CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). And the Third Circuit has indicated that the legal standards for a retaliation claim under Section 1981 are generally the same as those applicable to a Title VII retaliation claim. See, e.g., Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (“[T]o establish a prima facie retaliation claim under Title VII [or] § 1981... , [a plaintiff] must show: (1) that he engaged in a protected activity; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action”); Khair v. Campbell Soup Co., 893 F. Supp. 316, 335-36 (D.N.J. 1995) (noting that with respect to retaliation claims, “The Civil Rights Act of 1991 extended § 1981 to the reaches of Title VII.”).

Where the plaintiff seeks recovery under both Title VII and Section 1981 for retaliation, it may be possible to use this instruction for both causes of action.15 It should be noted, however, that a claim under Section 1981 can be brought against an individual as well as the employer. Therefore a plaintiff might bring a retaliation claim not only against the employer but also against the employee who took the allegedly retaliatory action. It would then be appropriate to instruct the jury that while it can impose liability on the individual under Section 1981, it cannot do so under Title VII. Additionally, there is Third Circuit authority for the proposition that Section 1981 retaliation claims require proof of an additional element that does not apply to Title VII retaliation claims. That proposition finds support in Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010), and Castleberry v. STI Group, 863 F.3d 259 (3d Cir. 2017). After noting the Supreme Court’s holding in CBOCS West “that section 1981 also encompasses ‘the claim of an individual (black or white) who suffers retaliation because he has tried to help a different individual, suffering direct racial discrimination, secure his § 1981 rights,’” Oliva, 604 F.3d at 798 (quoting CBOCS, 128 S. Ct. at 1958), the Oliva court stated: “In a retaliation case a plaintiff must demonstrate that there had been an underlying section 1981 violation. Id.Oliva, 604 F.3d at 798.16

To the extent that Oliva requires proof of an underlying violation, that requirement departs from the approach taken with respect to Title VII retaliation claims and retaliation claims under similar statutory schemes. See Instruction 5.1.7 (Title VII retaliation); Instruction 8.1.5 (ADEA retaliation); Instruction 9.1.7 (ADA retaliation); Instruction 10.1.4 (FMLA retaliation); Instruction 11.1.2 (Equal Pay Act retaliation). As of spring 2016, no other circuits had adopted such a requirement for Section 1981 claims. Moreover, such a requirement appears to conflict with the understanding of at least some Justices. In CBOCS, Justices Thomas and Scalia, dissenting from the Court’s holding that Section 1981 encompasses retaliation claims, objected (inter alia) that a plaintiff “‘need not show that the [race] discrimination forming the basis of his complaints actually occurred,’” and that as a result, “the Court ‘creates an entirely new cause of action for a secondary rights holder, beyond the claim of the original rights holder....” CBOCS, 553 U.S. at 464-65 (Thomas, J., joined by Scalia, J., dissenting) (quoting Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 194-95 (2005) (Thomas, J., joined by Rehnquist, C.J., & Scalia & Kennedy, JJ., dissenting)). The CBOCS majority did not explicitly respond to this facet of the dissenters’ argument.

Oliva’s statement that a Section 1981 retaliation claim requires proof of an underlying Section 1981 violation may also be in some degree of tension with a prior opinion by the Court of Appeals. In Jones v. School District of Philadelphia, 198 F.3d 403, 414-15 (3d Cir. 1999), the Court of Appeals first held that the district court properly granted summary judgment on the plaintiff’s race discrimination claims, and then held that plaintiff’s retaliation claims (under Section 1981, Title VII, and the Pennsylvania Human Relations Act) failed due to lack of causation; had the Jones court believed that proof of an underlying violation of Section 1981 was required for a Section 1981 retaliation claim, the court’s ruling on the discrimination claims would have dictated a ruling for the defendant on the Section 1981 retaliation claim – yet the Court of Appeals instead based its ruling (as to all three types of retaliation claims) solely on finding a lack of evidence of causation.

Without attempting to resolve the issue, the Committee wishes to ensure that users of these instructions are aware of the language in Oliva (also quoted in Castleberry)17 indicating that Section 1981 retaliation claims require proof of an underlying violation. See also, e.g., Ellis v. Budget Maintenance, Inc., 25 F. Supp. 3d 749 (E.D. Pa. 2014) (holding that Oliva requires proof of an underlying violation), appeal dismissed (Nov. 25, 2014).

The most common activities protected from retaliation under Section 1981 and Title VII are:

1) opposing unlawful discrimination;

2) making a charge of employment discrimination;

3) testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Section 1981.

See the discussion of protected activity in the Comment to Instruction 5.1.7. See also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (filing discrimination complaint constitutes protected activity), overruled on other grounds by Burlington N. & S.F. Ry. Co. v. White, 126 S. Ct. 2405 (2006); Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (advocating equal treatment was protected activity); Aman v. Cort Furniture, 85 F.3d 1074, 1085 (3d Cir. 1989) (under Title VII’s anti-retaliation provision “a plaintiff need not prove the merits of the underlying discrimination complaint, but only that ‘he was acting under a good faith, reasonable belief that a violation existed’” (quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993) (quoting Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)), overruled on other grounds by Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995))).

In accord with instructions from other circuits, Instruction 6.1.6 directs the jury to determine both the good faith and the reasonableness of the plaintiff’s belief that employment discrimination had occurred. See Fifth Circuit Committee Note to Instruction 11.6.1 (Title VII retaliation); Seventh Circuit Committee Comment to Instruction 3.02 (retaliation instruction for use in Title VII, § 1981, and ADEA cases); Eleventh Circuit Instruction 4.21 (Section 1981 retaliation); Eleventh Circuit Instruction 4.22 (retaliation claims under Title VII, ADEA, ADA, and FLSA); see also Eighth Circuit Instruction 10.41 (retaliation claim (regarding opposition to harassment or discrimination) under Title VII and other federal discrimination laws; instruction uses phrase “reasonably believed”); id. Notes on Use, Note 5 (using phrase “reasonably and in good faith believe”); compare Ninth Circuit Instruction & Comment 10.3 (Title VII retaliation) (discussing reasonableness requirement in the comment but not in the model instruction). In cases where the protected nature of the plaintiff’s activity is not in dispute, this portion of the instruction can be modified and the court can simply instruct the jury that specified actions by the plaintiff constituted protected activity. As noted above, there is Third Circuit authority for the proposition that Section 1981 retaliation claims – unlike retaliation claims under a number of other federal statutes – require proof of an underlying violation. Instruction 6.1.6 offers two alternative versions of the instruction on protected activity. The first alternative tracks the approach taken in Instructions 5.1.7, 8.1.5, 9.1.7, 10.1.4, and 11.1.2, and states that the plaintiff need not prove an underlying Section 1981 violation. The second alternative implements Oliva’s statement that a Section 1981 retaliation claim requires proof of an underlying Section 1981 violation; this alternative instructs that the plaintiff must prove both that there was such a violation and that plaintiff was acting under a reasonable, good faith belief that such a violation had occurred. If the court employs the second alternative, it may wish to instruct the jury that if the jury finds an underlying Section 1981 violation, then it should also find that the plaintiff’s belief (that such a violation had occurred) was reasonable.

Determinative effect

Instruction 6.1.6 requires the plaintiff to show that the plaintiff’s protected activity had a determinative effect on the allegedly retaliatory activity. This is the standard mandated for Section 1981 discrimination cases outside the context of retaliation after Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S. Ct. 1009 (2020). See Instruction 6.1.2; see also Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (applying the pretext framework to Section 1981 retaliation claims); Carvalho-Grevious v. Delaware State University, 851 F.3d 249, 258 (3d Cir. 2017) (basing its analysis on the premise that the determinative-effect requirement applied to both the plaintiff’s Title VII retaliation claims and her Section 1981 retaliation claims).

Standard for Actionable Retaliation

The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 68 (2006), held that a cause of action for retaliation under Title VII lies whenever the employer responds to protected activity in such a way “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (citations omitted). The Court in White also held that retaliation need not be job-related to be actionable under Title VII. In doing so, the Court rejected authority from the Third Circuit (and others) requiring that the plaintiff suffer an adverse employment action in order to recover for retaliation. Because the standards for retaliation claims under Section 1981 have been equated to those applicable to Title VII, the instruction is written to comply with the standard for actionable retaliation in White. For a more complete discussion of White, see the Comment to Instruction 5.1.7.

Retaliation for another’s protected activity

The Supreme Court held in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), that Title VII not only bars retaliation against the employee who engaged in the protected activity, it also bars retaliation against another employee if the circumstances are such that the retaliation against that employee might well dissuade a reasonable worker from engaging in protected activity. See id. at 868. The Thompson Court did not discuss whether its holding extends to retaliation claims under other statutory schemes such as Section 1981. The Thompson Court’s holding that the third-party retaliation victim can sometimes assert a retaliation claim under Title VII rested on the Court’s analysis of the specific statutory language of Title VII. See Thompson, 131 S. Ct. at 869 (analyzing language in 42 U.S.C. § 2000e-5(f)(1) stating that “a civil action may be brought... by the person claiming to be aggrieved”). Because Section 1981 does not contain similar statutory language, it is unclear whether that holding would extend to claims under Section 1981. For further discussion of Thompson, see Comment 5.1.7.

(Last Updated March 2018)


13 See the Comment for a discussion of the allocation of responsibility for determining the reasonableness of the plaintiff’s belief.
14 See the Comment for a discussion of the allocation of responsibility for determining the reasonableness of the plaintiff’s belief.
15 However, because Section 1981 does not encompass sex discrimination, a complaint of sex discrimination would not count as protected activity so as to trigger a Section 1981 retaliation claim. See Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017) (“Title VII and § 1981... are not coextensive, and to the extent that any of Dr. Grevious’s retaliation claims... are based on Dr. Grevious's complaints of gender discrimination, those claims are not cognizable” under Section 1981).
16 The Court of Appeals, in Oliva, spent little time on this aspect of the case:
The record before us would justify a reasonable factfinder to conclude that Gallagher and Waldron demonstrated to Oliva how to stop, search, and, in some cases, arrest motorists without probable cause by reason of their race. Of course, that practice would violate section 1981's guarantee that all persons are entitled to the same “full and equal benefit” of the law. See 42 U.S.C. § 1981(a). When a trooper complains about unjustified racial profiling he engages in protected activity and, accordingly, Oliva had a right to complain about such violations without fear of retaliation. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (footnotes omitted). The Court of Appeals devoted a much lengthier discussion to questions of causation, holding ultimately that the plaintiff had failed to establish causation as to any of the allegedly retaliatory acts. See Oliva, 604 F.3d at 798-802.

In Castleberry, the court of appeals quoted the Oliva court’s statement about requiring an underlying violation, but then continued: “In doing so, the plaintiff ‘must have acted under a good faith, reasonable belief that a violation existed.’” Castleberry v. STI Grp., 863 F.3d 259, 267 (3d Cir. 2017) (quoting Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015)). The import of Castleberry is unclear.

17 See supra note 93 for a discussion of Castleberry.

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