3d Cir. Model Jury Instr. (Civil) 10.1.2

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Last updated March 2026

burden only by showing that age played a role in the employer ’s decisionmaking 108

process and that it had a determinative effect on the outcome of that process. 109

To the extent that Miller held that a mixed-motive framework is available in ADEA cases, 110

it was overruled by Gross v. FBL Financial Services, Inc. , 557 U.S. 167 (2009). In Gross, the 111

Supreme Court rejected the use of a mixed -motive framework for claims under the Age 112

Discrimination in Employment Act (ADEA). Id. at 180. The Gross Court reasoned that it had 113

never held that the Price Waterhouse mixed-motive framework applied to ADEA claims; that the 114

ADEA’s reference to discrimination “because of ” age indicated that but -for causation is the 115

appropriate test; and that this interpretation was bolstered by the fact that when Congress in 1991 116

provided the statutory mixed -motive framework codified at 42 U.S.C. § 2000e -5(g)(2)(B), that 117

provision was not drafted so as to cover ADEA claims. Id. at 174. 118

In 2013, the Supreme Court applied similar reasoning in holding that the mixed -motive 119

proof framework is unavailable for Title VII retaliation claims. See Nassar, (2013) ( “Title VII 120

retaliation claims must be proved according to traditional principles of but -for causation, not the 121

lessened causation test stated in [42 U.S.C.] § 2000e –2(m). This requires proof that the unlawful 122

retaliation would not have occurred in the absence of the alleged wrongful action or actions of the 123

employer.”). The Nassar Court reasoned that Congress legislated against a background tort 124

principle of “but for” causation, Nassar, 570 U.S. at 347; that Title VII’s retaliation provision uses 125

the word “because,” which is incompatible with a mixed -motive test, id. at 352; that Congress 126

would have structured the statutory framework differently had it wished to encompass Title VII 127

retaliation claims among those eligible for the statutory mixed -motive test set forth in 42 U.S.C. 128

Ԥ 2000e-2(m) and 2000e -5(g)(2)(B), id. at 353; that policy considerations support a restrictive 129

approach to the standards of proof for retaliation claims, id. at 356-358; and that the “careful 130

balance” that Congress set in the Civil Rights Act of 1991 forecloses the use of the Price 131

Waterhouse mixed-motive test for Title VII retaliation claims, id. at 362. 132

It was initially unclear what effect, if any, Gross and Nassar would have on existing 133

precedents recognizing a mixed-motive FMLA theory. See Lichtenstein, 691 F.3d at 302 (noting 134

but not deciding this question) ; Capps v. Mondelez Glob., LLC , 847 F.3d 144, 151 n.5 (3d Cir. 135

2017) (noting the question, citing Lichtenstein, and holding that the plaintiff had failed to adduce 136

evidence sufficient to trigger a mixed-motive analysis (if such an analysis remained available)). In 137

Egan v. Delaware River Port Authority , 851 F.3d 263 (3d Cir. 2017) , the Court of Appeals held 138

that FMLA retaliation -for-exercise claims are grounded in 29 C.F.R. § 825.220(c); that the 139

regulation authorizes mixed -motive claims; and that because Ҥ 825.220(c) is entitled to 140

controlling deference under Chevron, … a mixed -motive jury instruction is available for FMLA 141

retaliation[-for-exercise] claims.” Egan, 851 F.3d at 274. Under Egan, a litigant need not adduce 142

direct evidence of discrimination in order to obtain a mixed -motive instruction in an FMLA 143

retaliation-for-exercise case. Id. Rather, if a litigant requests a mixed-motive instruction, the court 144

should “determine[] whether there [is] evidence from which a reasonable jury could conclude that 145

the [defendant] had legitimate and illegitimate reasons for its employment decision and that [the 146

plaintiff’s] use of FMLA leave was a negative factor in the employment decision.” Id. at 275. 147