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The Fourteenth Amendment to the United States Constitution protects persons from being subjected to discrimination, by persons acting under color of state law, on the basis of [describe protected class, e.g., sex]. 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]];13 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 class] 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 class] 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:14
However, if you find that [defendant's] treatment of [plaintiff] was motivated by both discriminatory and lawful reasons, you must consider [defendant’s] “same decision” defense. 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, then your verdict must be for [defendant] on this claim.]
COMMENT In mixed-motive cases where the defendant establishes a “same decision” defense, the defendant is not liable under Section 1983 for a constitutional violation. See, e.g., Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977) (in a First Amendment retaliation case, holding that “[t]he constitutional principle at stake is sufficiently vindicated if [the] employee is placed in no worse a position than if he had not engaged in the conduct”). By contrast, the establishment of a “same decision” defense will not shield a defendant from all Title VII liability in a mixed-motive employment discrimination case; rather, it will narrow the remedies awarded.15 Instruction 7.1's treatment of the “same decision” defense accordingly differs from the treatment of that defense in Instruction 5.1.1 (mixed-motive instruction for Title VII employment discrimination claims).
A complaint does not need to specify whether the plaintiff intends to proceed under a mixed motive theory, addressed in Instruction 7.1, or a pretext theory, addressed in Instruction 7.2. Indeed, the court of appeals explained in a Title VII case that “even at trial, an employee may present his case under both theories, provided that, prior to instructing the jury, the judge decides whether one or both theories applies.” Connelly v. Lane Construction, 809 F.3d 780, 788 (3d Cir. 2016) (internal quotation marks and citation omitted). The Committee has not attempted to outline the criteria that should guide that decision. For discussions of the treatment of analogous questions under other statutes, see Comments 5.1.1 (Title VII), 6.1.1 (Section 1981), and 9.1.1 (ADA).
In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court rejected the use of a mixed-motive framework for claims under the Age Discrimination in Employment Act (ADEA). The Gross Court reasoned that it had never held that the Price Waterhouse mixed-motive framework applied to ADEA claims; that the ADEA’s reference to discrimination “because of” age indicated that but-for causation is the appropriate test; and that this interpretation was bolstered by the fact that when Congress in 1991 provided the statutory mixed-motive framework codified at Section 2000e-5(g)(2)(B), that provision was not drafted so as to cover ADEA claims. In University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), the Court built upon Gross and ruled out the possibility of using a mixed-motive framework for claims under Title VII’s retaliation provision. (Nassar is discussed fully in Comment 5.1.7). More recently, the Supreme Court rejected any lower causation standard for claims brought under Section 1981. Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009 (2020). Viewing but-for causation as the default principle for tort suits, presumably adopted by Congress when it enacted a statute without indicating the contrary, the Court saw no reason to depart from that baseline with respect to Section 1981. Accordingly, “[t]o prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” Id. at 1019.
The decisions in Gross, Nassar, and Comcast do not appear to affect employment discrimination claims founded on the Equal Protection Clause and brought under Section 1983. Although the Court has not explicitly held that juries in Section 1983 Equal Protection employment-discrimination cases should be instructed according to the Mount Healthy burden-shifting framework, that framework accords with the Court’s general approach to Equal Protection claims. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 271 n.21 (1977) (holding in the context of a bench trial on an Equal Protection claim of race discrimination in zoning that “[p]roof that the decision by the Village was motivated in part by a racially discriminatory purpose would.... have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered”); see also Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1915 (2020) (plurality opinion) (addressing an equal protection claim under the Fifth Amendment and stating, “to plead animus, a plaintiff must raise a plausible inference that an ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision”).
The instruction given above is designed for use with respect to a claim against an individual official who took an adverse employment action against the plaintiff. Such claims will not present a difficult question concerning supervisory liability: If the defendant is proven to have taken the adverse employment action, then clearly the defendant meets the requirements for imposing supervisory liability, on the ground that the defendant had authority over the plaintiff and personally participated in the adverse action. If the plaintiff also asserts a claim against the supervisor of a person who took the adverse employment action, then the instruction should be augmented to present the question of supervisory liability to the jury. See supra Instruction 4.6.1. If the plaintiff is asserting a claim against a municipal defendant, the instruction should be augmented to present the jury with the question of municipal liability. See supra Instructions 4.6.3 - 4.6.8.
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 employment discrimination claims founded on the Equal Protection Clause and brought under Section 1983; neither the Equal Protection Clause nor Section 1983 contains the same explicit reference to discrimination as a “motivating factor.”
(Last Updated July 2019)
13 The examples given in the text are borrowed from Chapter 5’s treatment of Title VII claims (though the examples in this list are not the only adverse employment actions that can ground a Title VII claim). The Committee has not determined whether the adverse employment action element functions identically for Section 1983 employment discrimination claims. For further discussion of this issue in the Title VII context, see Comment 5.1.1.
14 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.
15 See 42 U.S.C. § 2000e-2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice”); id. § 2000e-5(g)(2)(B) (limiting remedies under Section 2000e-2(m), in a case where the defendant “demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor,” to declaratory relief, certain injunctive relief, and certain attorney’s fees and costs).
Although the Court of Appeals has not discussed whether a similar approach should be applied to Section 1983 claims, at least one other Circuit has ruled that it should not. See Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084 & n.5 (11th Cir. 1996) (contrasting Title VII claims with Section 1983 claims and noting that “with regard to employment discrimination claims brought pursuant to 42 U.S.C. § 1983, [the ‘same decision’] defense effects a total avoidance of liability”).