3d Cir. Model Jury Instr. (Civil) 9.1.7

48

Last updated March 2026

plaintiff had sufficient evidence to justify the use of such a framework: “The evidentiary 280

framework of Shellenberger’s claim will vary depending on whether the suit is characterized as a 281

‘pretext’ suit or a ‘mixed-motives’ suit. Shellenberger argues that her evidence was sufficient to 282

survive judgment as a matter of law under either theory, and we agree.” Shellenberger v. Summit 283

Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (footnote omitted). 284

In 2013, the Supreme Court held that the mixed-motive proof framework is unavailable for 285

Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) 286

(“Title VII retaliation claims must be proved according to traditional principles of but-for 287

causation, not the lessened causation test stated in [42 U.S.C.] § 2000e–2(m). This requires proof 288

that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action 289

or actions of the employer.”). The Nassar Court reasoned that Congress legislated against a 290

background tort principle of “but for” causation, see Nassar,570 U.S. at 346 -47; that Title VII ’s 291

retaliation provision uses the word “because,” which is incompatible with a mixed-motive test, see 292

id. at 352; that Congress would have structured the statutory framework differently had it wished 293

to encompass Title VII retaliation claims among those eligible for the statutory mixed-motive test 294

set forth in 42 U.S.C. Ԥ 2000e -2(m) and 2000e -5(g)(2)(B), see id. at 353-54; that policy 295

considerations support a restrictive approach to the standards of proof for retaliation claims, see 296

id. at 358-59; and that the “careful balance” that Congress set in the Civil Rights Act of 1991 297

forecloses the use of the Price Waterhouse mixed-motive test for Title VII retaliation claims, id. 298

at 362. 299

More recently, in Comcast Corp. v. Nat ’l Ass’n of African American -Owned Media, 140 300

S. Ct. 1009 (2020), the Court held that proving a violation of Section 1981 required plaintiff to 301

show that the adverse action would not have occurred but for the racial motivation: “To prevail, a 302

plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the 303

loss of a legally protected right.” Id. at 1019. The Court viewed this as a default principle for tort 304

suits, and it saw no reason to depart from that “‘background’ rule,” id. at 1014, even though Section 305

1981 lacks the “because” language that the Court focused on in Gross and Nassar. 306

The Committee has not attempted to determine what, if any, implications these cases 23 307

23 The Court in Nassar relied upon its prior decision in Gross v. FBL Financial Services, Inc., 557

U.S. 167 (2009). In Gross, the Supreme Court rejected the use of a mixed-motive framework for

claims under the Age Discrimination in Employment Act (ADEA). The Gross Court reasoned that

it had never held that the mixed-motive framework set by Price Waterhouse v. Hopkins, 490 U.S.

228 (1989), applied to ADEA claims; that the ADEA ’s reference to discrimination “because of”

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

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

at 42 U.S.C. § 2000e-5(g)(2)(B), that provision was not drafted so as to cover ADEA claims.

The Court in Comcast looked to both Nassar and Gross despite the fact that Section 1981 lacked

the “because” language that those decisions relied on. Even absent such explicit language, it

perceived a common law but-for causation “‘background’ rule,” 140 S. Ct.at 1014, that Congress