3d Cir. Model Jury Instr. (Civil) 7.0

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Last updated March 2026

apply Bradley since 1991. See, e.g., Bair v. City of Atlantic City, 100 F. Supp. 2d 262, 266 (D.N.J. 1

2000) (“The vast majority of courts, including the Third Circuit, hold that claims under Section 2

1983 and Title VII are not necessarily mutually exclusive; if the right which a plaintiff claims was 3

violated is constitutionally based, and also a right protected by Title VII, a plaintiff may bring 4

either a Title VII claim or a Section 1983 claim, or both.”). Cf. Fitzgerald , 129 S. Ct. at 797 5

(holding that Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U.S.C. § 1681(a), 6

does not displace claims under Section 1983 for equal protection violations arising from gender 7

discrimination in schools). But see Hildebrand v. Allegheny County, 757 F.3d 99 (3d Cir. 2014) 8

(holding that the Age Discrimination in Employment Act precludes an action for age 9

discrimination under section 1983). 10

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On the other hand, section 1983 cannot be used to vindicate the statutory rights created by 12

Title VII, because to do so “would thwart Congress’s carefully crafted administrative scheme.” 13

Williams v. Pennsylvania Human Relations Comm’n, 870 F.3d 294, 299 (3d Cir. 2017) (reaching 14

same result under the American with Disabilities Act as well). 15

16

The usefulness of special interrogatories. When the plaintiff asserts claims against multiple 17

defendants, or when the plaintiff asserts both Title VII claims and Section 1983 equal protection 18

claims, the court should take care to distinguish the differing liability requirements; in this regard, 19

it may also be useful to employ special interrogatories. Cf. Gierlinger v. New York State Police , 20

15 F.3d 32, 34 (2d Cir. 1994) (“Since separate theories of liability with different standards of 21

individual involvement were presented to a jury, it would have been better practice and aided 22

appellate review had the trial court made use of special interrogatories on the liability issues.”). 23

24

Sexual orientation and transgender status may be treated differently under Title VII and 25

Section 1983. Section 1983 permits a plaintiff to sue for intentional discrimination on account of 26

sex (among other equal protection violations). In Bostock v. Clayton County , 140 S. Ct. 1731 27

(2020), the Supreme Court held that discrimination on the ground of sexual orientation or 28

transgender status constituted sex discrimination under Title VII. The Court relied on the “ordinary 29

public meaning of the statute’s language at the time of the law’s adoption.” Id. at 1741. It did not 30

address whether that rule would apply under the Equal Protection Clause, which does not use the 31

word “sex.” The dissent warned that, despite important differences between Title VII and the 14th 32

Amendment, the decision might “exert a gravitational pull in constitutional cases,” and by 33

“equating discrimination because of sexual orientation or gender identity with discrimination 34

because of sex, the Court ’s decision will be cited as a ground for subjecting all three forms of 35

discrimination to the same exacting standard of review”). Bostock , 140 S. Ct. at 1783 (Alito, J., 36

dissenting). In United States v. Skrmetti, 145 S. Ct. 1816, 1834-35 (2025), the Court distinguished 37

Bostock and held that, even if Bostock applies beyond Title VII, a ban on certain medical treatments 38

for transgender minors is not a sex-based classification because “sex is simply not a but-for cause 39

of” the ban’s operation. Justice Alito declined to join this part of the opinion, noting that while he 40

105 Stat. 1071, 1072-74.