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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] [disability] was a motivating factor in [defendant's] decision to [describe action]5 [plaintiff].
To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence:
First: [Plaintiff] has a “disability” within the meaning of the ADA.
Second: [Plaintiff] is a “qualified individual” able to perform the essential functions of [specify the job or position sought].
Third: [Plaintiff’s] [disability] was a motivating factor in [defendant’s] decision [describe action] [plaintiff].
Although [plaintiff] must prove that [defendant] acted with the intent to discriminate on the basis of a disability, [plaintiff] is not required to prove that [defendant] acted with the particular intent to violate [plaintiff’s] federal rights under the ADA.
In showing that [plaintiff's] [disability] was a motivating factor for [defendant’s] action, [plaintiff] is not required to prove that [his/her] [disability] was the sole motivation or even the primary motivation for [defendant's] decision. [Plaintiff] need only prove that [the disability] played a motivating part in [defendant's] decision even though other factors may also have motivated [defendant].
As used in this instruction, [plaintiff’s] [disability] was a “motivating factor” if [his/her] [disability] played a part [or played a role] in [defendant’s] decision to [state adverse employment action] [plaintiff].
[I will now provide you with more explicit instructions on the following statutory terms:
1. “Disability.” — Instruction 9.2.1
2. “Qualified” — See Instruction 9.2.2
[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] [disability] had played no role in the employment decision.]
COMMENT The Third Circuit has held that disparate treatment discrimination cases under the ADA are governed by the same standards applicable to Title VII actions. See, e.g., Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000); Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661, 667-68 (3d Cir. 1999); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156-58 (3d Cir. 1995). See also Raytheon Co. v. Hernandez, 540 U.S. 44, 50, n.3 (2003) (noting that all of the courts of appeals have applied the Title VII standards to disparate treatment cases under the ADA). These ADA instructions accordingly follow the “mixed-motive”/ “pretext” delineation employed in Title VII discrimination actions.
While all of these cases were decided before a number of Supreme Court decisions holding that but-for causation is the appropriate standard for other federal statutes, see Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (ADEA); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (Title VII retaliation claims); Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S. Ct. 1009 (2020) (§ 1981); see also Babb v. Wilkie, 140 S. Ct. 1168 (2020) (holding a plaintiff may establish an ADEA violation by showing that discrimination had a but-for effect in tainting the process of making a federal employee “personnel action” even if the ultimate outcome was not affected), they remain the law in the Third Circuit.
Based on similar reasoning, the Court has held that the mixed-motive proof framework is unavailable for Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (“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.”). The Nassar Court reasoned that Congress legislated against a background tort principle of “but for” causation, see Nassar, 133 S. Ct. at 2523; that Title VII’s retaliation provision – like the ADEA provision at issue in Gross – uses the word “because,” which is incompatible with a mixed-motive test, see id. at 2528; that Congress would have structured the statutory framework differently had it – in 1991 – wished to encompass Title VII retaliation claims among those eligible for the statutory mixed-motive test set forth in 42 U.S.C. '§ 2000e-2(m) and 2000e-5(g)(2)(B), see id. at 2529; that policy considerations support a restrictive approach to the standards of proof for retaliation claims, see id. at 2531-32; and that the “careful balance” that Congress set in the 1991 amendments forecloses the use of the Price Waterhouse mixed-motive test for Title VII retaliation claims, id. at 2534.7
The Committee has not attempted to determine what, if any, implications Gross and Nassar have for ADA claims, but the Committee suggests that users of these instructions should consider that question.
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 discriminatory 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 discriminatory 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 9.1.2 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).8
The Third Circuit explained the applicability of a “mixed-motive” instruction in ADA cases in Buchsbaum v. University Physicians Plan, 55 Fed. Appx. 40, 43 (3d Cir. 2002).9 It noted that the “typical” case is considered under the McDonnell-Douglas burden-shifting analysis, but stated that
the “mixed motive” analysis of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), may be applied instead if the plaintiff has produced “direct evidence” of the employer's discriminatory animus. Under a Price-Waterhouse “mixed motive” analysis, where there is strong evidence of an employer’s discriminatory animus, the burden of proof shifts from the plaintiff to the employer to prove that its motives for the employment action were “mixed” that is, while some motives were discriminatory, the employer had legitimate non-discriminatory motives as well which would have resulted in the adverse employment action. Thus, we have described the “direct evidence” that the employee must produce... to warrant a “mixed motives” analysis as “so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production.... The risk of non-persuasion [is] shifted to the defendant who... must persuade the factfinder that... it would have made the same employment decision regardless of its discriminatory animus.” Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994). Such direct evidence “requires ‘conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.’” Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 1096 (3d Cir. 1995) (quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d Cir. 1993)). 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)). 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 undermines any requirement of direct evidence for ADA mixed-motive claims.
The ADA employs complicated and sometimes counterintuitive statutory definitions for many of the important terms that govern a disparate treatment action. Instructions for these statutory definitions are set forth at 9.2.1-9.2.2. They are not included in the body of the “mixed-motives” instruction because not all of them will ordinarily be in dispute in a particular case, and including all of them would unduly complicate the basic instruction.
Adverse Employment Action
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). This statutory language should shape decisions concerning what counts as an adverse employment action for purposes of ADA discrimination claims. Cf. Comment 5.1.1 (discussing the adverse employment action element in Title VII cases).
“Same Decision” Instruction
Under Title VII, if the plaintiff proves intentional discrimination in a “mixed-motives” 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). The ADA explicitly relies on the enforcement tools and remedies described in 42 U.S.C. § 2000e-(5). See 42 U.S.C. § 12117(a). Therefore, a plaintiff in a “mixed-motives” case under the ADA is not entitled to damages if the defendant proves that the adverse employment action would have been made even if disability had not been a motivating factor. But Instruction 9.1.1 is premised on the assumption that the “same decision” defense is not a complete defense as it is in cases where the Price Waterhouse burden-shifting framework applies.
The ADA provides a defense if the employment or accommodation of an otherwise qualified, disabled individual would pose a “direct threat” to the individual or to others. The “direct threat” affirmative defense is applicable both to disparate treatment claims and reasonable accommodation claims. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); Buskirk v. Apollo Metals, 307 F.3d 160, 168 (3d Cir. 2002). See 9.3.1 for an instruction on the “direct threat” affirmative defense.
Animus of Employee Who Was Not the Ultimate Decisionmaker
Construing a statute that explicitly referred to discrimination as “a motivating factor,” 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 (USERRA)]” 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). Like the USERRA, 42 U.S.C. § 2000e-5(g)(2)(B) refers to discrimination as a “motivating factor,” and, since Staub, 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).
Assuming that Section 2000e-5(g)(2)(B) applies to mixed-motive claims under the ADA, there may be some reason to think that Staub’s analysis might extend to ADA mixed-motive claims. On the other hand, the argument for extending Staub to ADA mixed-motive claims is not as strong as the argument for extending Staub to Title VII mixed-motive claims (see Comment 5.1.1). The main difference is that Section 2000e-5(g)(2)(B) refers to “claim[s] in which an individual proves a violation under section 2000e-2(m) of this title,” and Section 2000e-2(m) does not list disability discrimination among the types of violations that it bars. Section 2000e-2(m)’s “motivating factor” language does not apply to ADA claims – and it was Section 2000e-2(m) that the Staub Court noted as containing language similar to the USERRA language that it was construing. See Staub, 131 S. Ct. at 1191. Thus, it is unclear whether the ruling in Staub would extend to mixed-motive claims under the ADA. No Third Circuit precedential decision focuses on the applicability of this theory to ADA cases.
(Last Updated July 2019)
5 See Comment for a discussion of adverse employment actions under the ADA.
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 But see DiFiore v. CSL Behring, LLC, 879 F.3d 71, 78 (3d Cir. 2018) (holding that a mixed-motive framework is unavailable for False Claims Act retaliation claims because “the language of the FCA anti-retaliation provision uses the same ‘because of’ language that compelled the Supreme Court to require ‘but-for’ causation in Nassar and Gross”).
8 Fakete was an ADEA case and has been overruled by Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). However, Fakete’s discussion of the distinction between mixed-motive and pretext cases may still be instructive for types of claims to which Price Waterhouse burden-shifting may apply.
9 The portion of Buchsbaum quoted in the text cites Armbruster and Starceski – two ADEA cases. To the extent that Armbruster and Starceski approved the use of Price Waterhouse burden-shifting for ADEA cases, they have been overruled by Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). But Buchsbaum’s discussion may still be instructive for types of claims to which Price Waterhouse burden-shifting may apply.