3d Cir. Model Jury Instr. (Civil) 5.1.2

25

Last updated March 2026

she was discriminated against based on sexual orientation. The Court, overturning several lower 59

court decisions, held that majority -group plaintiffs are not required to establish “background 60

circumstances” to “‘support the suspicion that the defendant is that unusual employer who 61

discriminates against the majority.’” Id. at 1545-46 (quoting the Sixth Circuit opinion, 87 F.4 th 62

822, 825 (6 th Cir. 2023, vacated and remanded ). Instead, the Court reaffirmed that “the standard 63

for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff 64

is a member of a majority group.” Ames, 145 S. Ct. at 1546. See also Iadimarco v. Runyon , 190 65

F.3d 151 (3d Cir. 1999) (holding that plaintiff alleging reverse discrimination need not present 66

“background circumstances”). 67

In Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998), the Court of Appeals 68

declared that “the jurors must be instructed that they are entitled to infer, but need not, that the 69

plaintiff’s ultimate burden of demonstrating intentional discrimination by a preponderance of the 70

evidence can be met if they find that the facts needed to make up the prima facie case have been 71

established and they disbelieve the employer’s explanation for its decision.” The court also stated, 72

however, that “[t]his does not mean that the instruction should include the technical aspects of the 73

McDonnell Douglas burden shifting, a charge reviewed as unduly confusing and irrelevant for a 74

jury.” The court concluded as follows: 75

Without a charge on pretext, the course of the jury ’s deliberations will depend on 76

whether the jurors are smart enough or intuitive enough to realize that inferences 77

of discrimination may be drawn from the evidence establishing plaintiff ’s prima 78

facie case and the pretextual nature of the employer ’s proffered reasons for its 79

actions. It does not denigrate the intelligence of our jurors to suggest that they need 80

some instruction in the permissibility of drawing that inference. 81

In Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 347 n.1 (3d Cir. 1999), the Court of 82

Appeals gave extensive guidance on the place of the McDonnell Douglas test in jury instructions: 83

The short of it is that judges should remember that their audience is composed of 84

jurors and not law students. Instructions that explain the subtleties of the McDonnell 85

Douglas framework are generally inappropriate when jurors are being asked to 86

determine whether intentional discrimination has occurred. To be sure, a jury 87

instruction that contains elements of the McDonnell Douglas framework may 88

sometimes be required. For example, it has been suggested that “in the rare case 89

when the employer has not articulated a legitimate nondiscriminatory reason, the 90

jury must decide any disputed elements of the prima facie case and is instructed to 91

render a verdict for the plaintiff if those elements are proved.” Ryther [v. KARE 11], 92

108 F.3d at 849 n.14 (Loken, J., for majority of en banc court). But though elements 93

of the framework may comprise part of the instruction, judges should present them 94

in a manner that is free of legalistic jargon. In most cases, of course, determinations 95