3d Cir. Model Jury Instr. (Civil) 7.1

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Last updated March 2026

whether one or both theories applies.” Connelly v. Lane Construction, 809 F.3d 780, 788 (3d Cir. 1

2016) (internal quotation marks and citation omitted). The Committee has not attempted to outline 2

the criteria that should guide that decision. For discussions of the treatment of analogous questions 3

under other statutes, see Comments 5.1.1 (Title VII), 6.1.1 (Section 1981), and 9.1.1 (ADA). 4

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In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court rejected 6

the use of a mixed -motive framework for claims under the Age Discrimina tion in Employment 7

Act (ADEA). The Gross Court reasoned that it had never held that the Price Waterhouse mixed -8

motive framework applied to ADEA claims; that the ADEA’s reference to discrimination “because 9

of” age indicated that but -for causation is the appropriate test; and that this interpretation was 10

bolstered by the fact that when Congress in 1991 provided the statutory mixed-motive framework 11

codified at Section 2000e-5(g)(2)(B), that provision was not drafted so as to cover ADEA claims. 12

In University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), the Court 13

built upon Gross and ruled out the possibility of using a mixed-motive framework for claims under 14

Title VII’s retaliation provision. (Nassar is discussed fully in Comment 5.1.7). More recently, the 15

Supreme Court rejected any lower causation standard for claims brought under Section 1981. 16

Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009 (2020). Viewing 17

but-for causation as the default principle for tort suits, presumably adopted by Congress when it 18

enacted a statute without indicating the contrary, the Court saw no reason to depart from that 19

baseline with respect to Section 1981. Accordingly, “[t]o prevail, a plaintiff must initially plead 20

and ultimately prove that, but for race, it would not have suffered the loss of a legally protected 21

right.” Id. at 1019. 22

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The decisions in Gross , Nassar, and Comcast do not appear to affect employment 24

discrimination claims founded on the Equal Protection Clause and brought under Section 1983. 25

Although the Court has not explicitly held that juries in Section 1983 Equal Protection 26

employment-discrimination cases should be instructed according to the Mount Healthy burden -27

shifting framework, that framework accords with the Court’s general approach to Equal Protection 28

claims. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 29

U.S. 252, 271 n.21 (1977) (holding in the context of a bench trial on an Equal Protection claim of 30

race discrimination in zoning that “[p]roof that the decision by the Village was motivated in part 31

by a racially discriminatory purpose would .... have shifted to the Village the burden of establishing 32

that the same decision would have resulted even had the impermissible purpose not been 33

considered”); see also Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 34

1891, 1915 (2020) (plurality opinion) (addressing an equal protection claim under the Fifth 35

Amendment and stating, “to plead animus, a plaintiff must raise a plausible inference that an 36

‘invidious discriminatory purpose was a motivating factor’ in the relevant decision”). 37

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The instruction given above is designed for use with respect to a claim against an individual 39

official who took an adverse employment action against the plaintiff. Such claims will not present 40

a difficult question concerning supervisory liability: If the defendant is proven to have taken the 41

adverse employment action, then clearly the defendant meets the requirements for imposing 42

supervisory liability, on the ground that the defendant had authority over the plaintiff and 43