3d Cir. Model Jury Instr. (Civil) 9.1.1

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Last updated March 2026

evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any 97

employment practice.’” Id. at 101 (quoting 42 U.S.C. § 2000e -2(m)). More recently, in Egan v. 98

Delaware River Port Authority , 851 F.3d 263 , 274 (3d Cir. 2017), the Third Circuit applied the 99

reasoning of Desert Palace to FMLA retaliation-for-exercise claims, and held “that direct evidence 100

is not required to obtain a mixed-motive instruction under the FMLA.” The Egan court explained 101

that, if a mixed-motive instruction is requested, the court “should … determine[] whether there [i]s 102

evidence from which a reasonable jury could conclude that the [defendant] had legitimate and 103

illegitimate reasons for its employment decision and that [the plaintiff’s] use of FMLA leave was 104

a negative factor in the employment decision”; if so, the mixed-motive instruction is available. Id. 105

at 275. The Committee has not attempted to determine whether Egan undermines any requirement 106

of direct evidence for ADA mixed-motive claims. 107

Statutory Definitions 108

The ADA employs complicated and sometimes counterintuitive statutory definitions for 109

many of the important terms that govern a disparate treatment action. Instructions for these 110

statutory definitions are set forth at 9.2.1-9.2.2. They are not included in the body of the “mixed-111

motives” instruction because not all of them will ordinarily be in dispute in a particular case, and 112

including all of them would unduly complicate the basic instruction. 113

Adverse Employment Action 114

The ADA provides that “[n]o covered entity shall discriminate against a qualified 115

individual on the basis of disability in regard to job application procedures, the hiring, 116

advancement, or discharge of employees, employee compensation, job training, and other terms, 117

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Similar statutory language in 118

Title VII was construed by the Supreme Court in Muldrow v. City of St. Louis, 144 S. Ct. 967 119

(2024), and that decision ’s textual approach should control the definition of an adverse 120

employment action under the ADA. Accordingly, the Instruction has been drafted to track the 121

ADA’s provision. Muldrow required a plaintiff to establish only that she suffered “some harm” 122

from discrimination with respect to the listed categories. Cf. Comment 5.1.1 (discussing the 123

adverse employment action element in Title VII cases). Muldrow also notes that an employee 124

alleging that a transfer constitutes an adverse employment action must display “some harm ” 125

regarding an “identifiable term or condition of employment.” Muldrow, 144 S. Ct. at 974. 126

“Same Decision” Instruction 127

Under Title VII, if the plaintiff proves intentional discrimination in a “mixed-motives” 128

case, the defendant can still avoid liability for money damages by demonstrating by a 129

preponderance of the evidence that the same decision would have been made even in the absence 130

of the impermissible motivating factor. If the defendant establishes this defense, the plaintiff is 131

then entitled only to declaratory and injunctive relief, attorney ’s fees and costs. Orders of 132

reinstatement, as well as the substitutes of back and front pay, are prohibited if a same decision 133

defense is proven. 42 U.S.C. §2000e -(5)(g)(2)(B). The ADA explicitly relies on the enforcement 134

tools and remedies described in 42 U.S.C. § 2000e-(5). 42 U.S.C. § 12117(a). Therefore, a plaintiff 135