To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of the evidence:
Second: [Plaintiff’s] race was a determinative factor in [defendant’s] decision.
You should weigh all the evidence received in the case in deciding whether [defendant] intentionally discriminated against [plaintiff]. [For example, you have been shown statistics in this case. Statistics are one form of evidence that you may consider when deciding whether a defendant intentionally discriminated against a plaintiff. You should evaluate statistical evidence along with all the other evidence.]
[Defendant] has given a nondiscriminatory reason for its [describe defendant’s action]. If you believe [defendant’s] stated reason and if you find that the [adverse employment action] would have occurred because of defendant’s stated reason regardless of [plaintiff’s] race, then you must find for [defendant]. If you disbelieve [defendant’s] stated reason for its conduct, then you may, but need not, find that [plaintiff] has proved intentional discrimination. In determining whether [defendant’s] stated reason for its actions was a pretext, or excuse, for discrimination, you may not question [defendant's] business judgment. You cannot find intentional discrimination simply because you disagree with the business judgment of [defendant] or believe it is harsh or unreasonable. You are not to consider [defendant's] wisdom. However, you may consider whether [plaintiff] has proven that [defendant’s] reason is merely a cover-up for discrimination.
Ultimately, you must decide whether [plaintiff] has proven that [his/her] race was a determinative factor in [defendant’s employment decision.] “Determinative factor” means that if not for [plaintiff 's] race, the [adverse employment action] would not have occurred.
COMMENT
See Comment 6.1.1 for discussion of the choice between mixed-motive and pretext instructions. Instruction 6.1.2 is substantively identical to the pretext instruction given for Title VII cases. See Instruction 5.1.2.8 Where the plaintiff seeks recovery under both Title VII and Section 1981, this instruction may be given for both causes of action.Causation
This instruction is framed in terms of “determinative factor” causation, which is typically used synonymously with “but-for” causation. That is clearly correct in light of the Supreme Court’s decision in Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S. Ct. 1009 (2020), which held that proving a violation of Section 1981 required plaintiff to show that the adverse action would not have occurred but for the racial motivation: “To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” Id. at 1019. See also Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (but-for causation governs ADEA discrimination claims); University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) (but-for causation governs Title VII retaliation claims).
This means there is no longer any relevance to a possible distinction between direct and circumstantial evidence of discrimination, which was sometimes used as the dividing line between a mixed-motive instruction and a pretext instruction. Further, given the but-for standard, there is no longer a place in Section 1981 cases for a “same decision anyway” affirmative defense, either to liability or as a limitation on relief.
Discriminatory Intent or Motive
Discriminatory intent is required to support a claim under Section 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (holding that Section 1981 requires discriminatory intent and that the burden-shifting framework set by McDonnell Douglas v. Green, 411 U.S. 792 (1973), applies to Section 1981 claims). See also Goodman v. Lukens Steel Co., 777 F.2d 113, 135 (3d Cir. 1985) (Section 1981 requires a showing of intent to discriminate on the basis of race); Stehney v. Perry, 101 F.3d 925, 937 (3d Cir.1996) ("[A] facially neutral policy does not violate equal protection solely because of disproportionate effects" because Section 1981 provides a cause of action “for intentional discrimination only.”).
If the plaintiff establishes a prima facie case of discrimination,9 the burden shifts to the defendant to produce evidence of a legitimate nondiscriminatory reason for the challenged employment action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506–07 (1992). See also Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509 (3d Cir.1993) (pretext turns on the qualifications and criteria identified by the employer, not the categories the plaintiff considers important). If the defendant meets this burden, the plaintiff must persuade the jury that the defendant's stated reason was merely a pretext for race discrimination, or in some other way prove it is more likely than not that race motivated the employer. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff retains the ultimate burden of persuading the jury of intentional discrimination. The factfinder's rejection of the employer's proffered reason allows, but does not compel, judgment for the plaintiff. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1066-67 (3d Cir.1996) (en banc).
In Smith v. Borough of Wilkinsburg, 147 F.3d 272, 279 (3d Cir.1998), the court held that the question of whether the defendant has met its intermediate burden of production under the McDonnell Douglas test is a "threshold matter to be decided by the judge."
Animus of Employee Who Was Not the Ultimate Decisionmaker
For a discussion of the Court’s treatment in Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), of the animus of an employee who was not the ultimate decisionmaker, see Comment 5.1.7. Staub concerned a statute that used the term “motivating factor,” and it is unclear whether the ruling in Staub would extend to claims under statutes (such as Section 1981) that do use “determinative factor” causation.
Adverse Employment Action
Section 1981(b) defines “the term ‘make and enforce contracts’ [to] include[] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” This statutory definition should shape the “adverse employment action” element of Section 1981 employment discrimination claims. Although few precedential Third Circuit cases address that element, the Court of Appeals has stated in dictum that “a wide panoply of adverse employment actions may be the basis of employment discrimination suits under Title VII of the Civil Rights Act and 42 U.S.C. § 1981.” Clark v. Twp. of Falls, 890 F.2d 611, 618-19 (3d Cir. 1989). More recently, non-precedential opinions have treated Section 1981 claims and Title VII claims interchangeably with respect to the adverse employment action element. See, e.g., Barnees v. Nationwide Mut. Ins. Co., 598 Fed. Appx. 86, 90 (3d Cir. 2015) (nonprecedential opinion) (“Title VII and section 1981... provide relief only if discrimination is ‘serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.’” (quoting Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (a Title VII case), and citing Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (a Section 1981 case)). The Committee accordingly has drafted the adverse employment action element in Instruction 6.1.1.2 to parallel that in Instruction 5.1.1. See Comment 5.1.1 for further discussion of the adverse employment action element in Title VII cases.
For further commentary on the standards applicable to pretext cases, see the Comment to Instruction 5.1.2.
