3d Cir. Model Jury Instr. (Civil) 9.1.2

16

Last updated March 2026

however, that “[t]his does not mean that the instruction should include the technical aspects of the 71

McDonnell Douglas burden shifting, a charge reviewed as unduly confusing and irrelevant for a 72

jury.” The court concluded as follows: 73

Without a charge on pretext, the course of the jury ’s deliberations will depend on 74

whether the jurors are smart enough or intuitive enough to realize that inferences 75

of discrimination may be drawn from the evidence establishing plaintiff ’s prima 76

facie case and the pretextual nature of the employer ’s proffered reasons for its 77

actions. It does not denigrate the intelligence of our jurors to suggest that they need 78

some instruction in the permissibility of drawing that inference. 79

See also Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 347 n.1 (3d Cir. 1999), where the 80

Third Circuit gave extensive guidance on the place of the McDonnell Douglas test in jury 81

instructions: 82

The short of it is that judges should remember that their audience is composed of 83

jurors and not law students. Instructions that explain the subtleties of the McDonnell 84

Douglas framework are generally inappropriate when jurors are being asked to 85

determine whether intentional discrimination has occurred. To be sure, a jury 86

instruction that contains elements of the McDonnell Douglas framework may 87

sometimes be required. For example, it has been suggested that “in the rare case 88

when the employer has not articulated a legitimate nondiscriminatory reason, the 89

jury must decide any disputed elements of the prima facie case and is instructed to 90

render a verdict for the plaintiff if those elements are proved.” Ryther [v. KARE 11], 91

108 F.3d at 849 n.14 (Loken, J., for majority of en banc court). But though elements 92

of the framework may comprise part of the instruction, judges should present them 93

in a manner that is free of legalistic jargon. In most cases, of course, determinations 94

concerning a prima facie case will remain the exclusive domain of the trial judge. 95

On proof of intentional discrimination, see Sheridan v. E.I. DuPont de Nemours and Co. , 96

100 F.3d 1061, 1066 -1067 (3d Cir. 1996) ( “[T]he elements of the prima facie case and disbelief 97

of the defendant’s proffered reasons are the threshold findings, beyond which the jury is permitted, 98

but not required , to draw an inference leading it to conclude that there was intentional 99

discrimination.”). On pretext, see Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (pretext may 100

be shown by “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions 101

in the [defendant ’s] proffered legitimate reasons for its action that a reasonable [person] could 102

rationally find them ‘unworthy of credence,’ and hence infer ‘that the [defendant] did not act for 103

[the asserted] non-discriminatory reasons”). 104

Adverse Employment Action 105

The ADA provides that “[n]o covered entity shall discriminate against a qualified 106

individual on the basis of disability in regard to job application procedures, the hiring, 107

advancement, or discharge of employees, employee compensation, job training, and other terms, 108

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Similar statutory language in 109