Employment discrimination law under Title VII of the Civil Rights Act of 1964 (Title VII), codified as Subchapter VI of Chapter 21 of title 42 of the United States Code, 42 U.S.C. § 2000e et seq., is both complex and evolving.
Overview of Title VII for Employment Discrimination Claims
The Civil Rights Act of 1991 amended Title VII. Before 1991, Title VII provided only equitable remedies, and jury trials were not available. 42 U.S.C. § 2000e-5(g)(1) (providing for reinstatement, back pay and “any other equitable relief as the court deems appropriate”). The 1991 amendments added the legal remedies of compensatory and punitive damages and the right to trial by jury for those remedies. 42 U.S.C. § 1981a(a)(1). Title VII plaintiffs now may recover injunctive and other equitable relief, compensatory and punitive damages, and attorney’s fees. 42 U.S.C. §§ 1981a(a)(1), 2000e-5(g)(1), (k).
Recovery of compensatory and punitive damages under Title VII, however, may not exceed certain statutory limits under 42 U.S.C. § 1981a(b)(3). The level at which damages are capped depends on the size of the employer. 42 U.S.C. § 1981a(b)(3)(A)-(D). A jury must not be advised of these limitations. 42 U.S.C. § 1981a(c)(2). Because awards of back pay are not an element of compensatory damages, they are not subject to the statutory limits. 42 U.S.C. § 1981a(b)(2). The Supreme Court has extended this rationale to exclude front pay from the statutory limits. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001) (holding that 1991 amendments did not alter nature of front pay as equitable remedy provided for in 42 U.S.C. § 2000e-5(g)).
Although the Supreme Court has declined to address definitively whether a Title VII plaintiff has a right to a jury trial on the issue of back pay, see Landgraf v. USI Film Prods., 511 U.S. 244, 252 n.4 (1994), the Ninth Circuit has held that there is no such right. Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1069 (9th Cir. 2005). The holding in Pollard that front pay is excluded from the statutory limits because it is an equitable remedy suggests that similarly there is no entitlement to a jury trial for that remedy. See Pollard, 532 U.S. at 848. The court, however, may consider submitting questions of front and back pay to a jury for advisory findings under Rule 39(c) of the Federal Rules of Civil Procedure. If advisory findings from a jury are sought, the court should state on the record that it is not bound by any such findings and make a record of independent findings, as discussed in Rule 52(a). See generally Chapter 5 (“Damages”) and Comments to Instructions 5.2 (Measures of Types of Damages) and 5.5 (Punitive Damages), discussing rules of special damages that apply to Title VII cases.
Further, a McDonnell Douglas burden-shifting instruction should not be given in a Title VII case. Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003) (“[I]t is not normally appropriate to introduce the McDonnell Douglas burden-shifting framework to the jury.”); see also Sanghvi v. City of Claremont, 328 F.3d 532, 540 (9th Cir. 2003) (“[I]t is error to charge the jury with the elements of the McDonnell Douglas prima facie case.”). Cases discussing pretext and burden shifting arise only in the context of summary judgment and motions for judgment as a matter of law. See, e.g., Yartzoff v.Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987).
The Evolving Interpretation of “Because of” and But-for Causation in Title VII Cases
One of the more difficult aspects of Title VII jury instructions involves the meaning and application of the term “because of.” Indeed, in 2020, the legal landscape changed significantly. A bit of history may be helpful.
As explained by the Supreme Court in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 347 (2013), since its passage in 1964, Title VII “has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them—race, color, religion, sex, and national origin—are personal characteristics and are set forth in § 2000e-2.” Discrimination based on any one or more of these five characteristics often is referred to as status-based discrimination. “The two remaining categories of wrongful employer conduct—the employee’s opposition to employment discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination—are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, § 2000e-3(a).” Id. at 347-38. Claims alleging discrimination based on these latter forms of protected employee conduct often are referred to as retaliation claims.
Section 2000e-2(a)(1) reads, in relevant part, that it shall be an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (emphasis added). In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court addressed what it means for an employment action to be taken “because of” an individual’s protected characteristic. The Supreme Court in Nassar explained the Price Waterhouse decision as follows:
Although no opinion in [Price Waterhouse] commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a “motivating” or “substantial” factor in the employer’s decision. If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus.
Nassar, 570 U.S. at 348 (citations to separate opinions in Price Waterhouse omitted). The Supreme Court in Nassar continued:
Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. Legislation first added a new subsection to the end of § 2000e-2, i.e., Title VII’s principal ban on status-based discrimination. See § 107(a), 105 Stat. 1075. The new provision, § 2000e-2(m), states:
[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
This, of course, is a lessened causation standard.
Nassar, 570 U.S. at 348-49 (emphasis added) (alteration in Nassar).
Nassar further explained that
the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. Under that new regime, a plaintiff could obtain declaratory relief, attorney’s fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer’s proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order.
Id. at 349. The Supreme Court’s opinion in Nassar continued its march through history, stating: “After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of ‘because’ and the problem of causation. This time it arose in the context of a different, yet similar statute,” the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623(a). Id. (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)). As Nassar explained: “Much like the Title VII statute in Price Waterhouse, the relevant portion of the ADEA provided that ‘[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.’” Id. at 349-50 (emphasis added) (alterations in original).
In its 2009 decision in Gross, the Supreme Court held “that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Id. at 180 (emphasis added). The use of the definite article “the,” as opposed to the indefinite articles “a” and “an,” implied that there was only one but-for cause.
The Supreme Court in Nassar then applied this analysis from Gross when interpreting the meaning of “because of” in the antiretaliation provision of Title VII, set forth in § 2000e-3(a). After noting that the antiretaliation provision “appears in a different section from Title VII’s ban on status-based discrimination,” the Supreme Court in Nassar, citing Gross, explained:
This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Cf. 29 U.S.C. § 623(a)(1). Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action
Nassar, 570 U.S.at 351-52 (emphasis added); see Gross, 557 U.S. at 176 (“To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” (emphasis added)).
Based on these Supreme Court decisions plus the 1991 amendments, which added § 2000e-2(m), for quite some time courts required that if plaintiff in a Title VII employment discrimination case proceeded under § 2000e-2(a), which required discrimination “because of” the plaintiff’s protected status or characteristic, that plaintiff would need to show that the protected status was the but-for cause, or the sole cause, of the challenged employment action. A similar test applied (and continues to apply after Nassar) if the plaintiff alleged retaliation in violation of § 2000e-3(a). On the other hand, a Title VII plaintiff alleging discrimination based on a protected status proceeding under § 2000e-2(m) need only show “that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). In that event, however, an employer could limit its liability if the employer could show, by a preponderance of the evidence, that it “would have taken the same action in the absence of the impermissible motivating factor.” 42 U.S.C. § 2000e-5(g)(2)(B); see also O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 760 (9th Cir. 1996).
Back in 2002, the Ninth Circuit issued its en banc decision in Costa. In that case, the Ninth Circuit held that a plaintiff alleging disparate treatment could prevail under Title VII merely by showing that the discrimination was “a motivating factor” in the employment decision, even though other factors also may have motivated the action. “Put simply, the plaintiff in any Title VII case may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played ‘a motivating factor.’” Costa, 299 F.3d at 853-54; see also E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 772-73 (2015) (explaining that phrase “because of” “typically imports, at a minimum, the traditional standard of but-for causation,” but Title VII relaxes this standard in status cases “to prohibit even making a protected characteristic a ‘motivating factor’ in an employment decision”).
In Costa, the Ninth Circuit discussed jury instructions on causation in Title VII disparate treatment cases. In that decision, the Ninth Circuit stated that a district court may provide either a “single motive” or a “mixed motive” instruction. Costa added that “mixed” and “single” motives are not two “fundamentally different” theories of liability. Costa, 299 F.3d at 857. Instead, they are merely two avenues of instruction by which the plaintiff may meet the ultimate burden of proof: “to show by a preponderance of the evidence that the challenged employment decision was ‘because of’ discrimination.’” Id.
As stated by the Ninth Circuit in Costa, “[a]fter hearing both parties’ evidence, the district court must decide what legal conclusions the evidence could reasonably support and instruct the jury accordingly.” Id. at 856.
If, based on the evidence, the trial court determines that the only reasonable conclusion a jury could reach is that discriminatory animus is the sole cause for the challenged employment action or that discrimination played no role at all in the employer’s decisionmaking, then the jury should be instructed to determine whether the challenged action was taken “because of” the prohibited reason. . . .
In contrast, in cases in which the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate, the jury should be instructed to determine first whether the discriminatory reason was “a motivating factor” in the challenged action. If the jury’s answer to this question is in the affirmative, then the employer has violated Title VII. However, if the jury then finds that the employer has proved the “same decision” affirmative defense by a preponderance of the evidence, 42 U.S.C. § 2000e–5(g)(2)(B), the employer will escape the imposition of damages and any order of reinstatement, hiring, promotion, and the like, and is liable solely for attorney’s fees, declaratory relief, and an order prohibiting future discriminatory actions.
Id. at 856-57. After Costa, the Ninth Circuit Jury Instructions Committee developed several alternative model instructions. As those model instructions explained, the proper formulation of the actual instructions depends on the trial court’s assessment of the evidence presented and what findings a reasonable jury could make.
The causation analysis, however, significantly changed after Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Bostock is mostly known for its interpretation of the phrase “because of such individual’s . . . sex” in § 2000e-2(a) and its holding that an employer violates Title VII by taking an adverse employment action based on an individual’s sexual orientation, gender identity, or transgender status. Id. at 1741, 1754. But Bostock also is significant for interpreting “because of” in § 2000e-2(a) to refer to but-for causation, which courts traditionally have recognized can include more than one but-for cause. See id. at 1739.
As explained in Bostock, “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’” Id. at 1739 (quoting Nassar, 570 U.S. at 350). “In the language of law, this means that Title VII’s ‘because of’” test incorporates the ‘simple’ and ‘traditional’ standard of but-for causation.” Id. (citing Nassar, 570 U.S. at 346). “That form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Id. (citing Gross, 557 U.S. at 176). “In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” Id. “This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision.” Id. “When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” Id. Further, “the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.” Id. at 1744.
Thus, any reading of Title VII’s prohibition of discrimination based on a protected status that implies that a plaintiff must show that forbidden discrimination was the sole or primary cause of the challenged action must be carefully examined to determine if it remains good law. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (“We hold that in circumstances like those presented here, where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.”). For example, to the extent Costa indicates that the phrase “because of” in 42 U.S.C. § 2000e-2(a) requires a trial court to determine “that the only reasonable conclusion a jury could reach is that discriminatory animus is the sole cause for the challenged employment action,” 299 F.3d at 856, it would be inconsistent with Bostock. After Bostock, the Jury Instructions Committee substantially modified its Chapter 10 Introductory Comment and Instructions 10.1, 10.2, and 10.3. Indeed, current Instruction 10.3 now defines “because of” based on Bostock.
Organization of Instructions
The instructions in this chapter are arranged in accordance with the three theories of liability that are most frequently asserted in Title VII cases. Instructions 10.1 through 10.3 pertain to a claim of disparate treatment (intentional discrimination). Instructions 10.4 through 10.7 pertain to a claim of harassment or hostile work environment. Instruction 10.8 relates to a claim of retaliation. Finally, because there are certain terms and defenses that are common to Title VII employment cases, they are set forth and defined in Instructions 10.9 through 10.16.
The Committee recommends that the court first identify the theory under which the plaintiff has asserted a Title VII claim, and then refer to the relevant group of instructions. The basic instructions set forth in Instructions 10.1 through 10.7 may be used regardless of a particular plaintiff’s protected status. Thus, depending on whether the claim is based on race, color, religion, sex, or national origin, Instructions 10.1 through 10.7 can be adjusted to reflect the protected trait or characteristic at issue in a particular case.
No instructions have been provided for a claim of disparate impact under Title VII, although such an instruction is provided for a disparate impact claim for age discrimination under the ADEA. See Instruction 11.4 (Age Discrimination—Disparate Impact—Elements). In many instances, instructions for a disparate-impact claim under Title VII may be made with minor alterations to the instruction for a disparate impact claim under the ADEA. Compare Instruction 11.4 with Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002) (“To establish a prima facie case of disparate impact under Title VII, the plaintiffs must (1) show [that specific employment practice or selection criterion had] a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.”). And while Title VII plaintiffs often use statistics to meet the first element of their disparate-impact claims, they are not necessary “where a disparate impact” to a protected class “is obvious” from the face of the complaint. See Bolden-Hardge v. Off. Cal. State Controller, 63 F.4th 1215, 1227 (9th Cir. 2023). For a detailed discussion of a disparate impact claim arising under the Fair Housing Act, see Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) (relying on cases interpreting Title VII and the ADEA).
In some cases when an employer is a state or local public entity, a plaintiff has the option of suing under 42 U.S.C. § 1983. The general elements of such a claim, however, are the same as under Title VII. Accordingly, in addition to the essential elements of a claim under 42 U.S.C. § 1983, the court may wish to refer to Instructions 10.1 through 10.7 when a claim under § 1983 is based on disparate treatment or harassment by a state or local employer.
Revised May 2023
For the plaintiff’s claim that [he] [she] [other pronoun] was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant because of the plaintiff’s [[race] [color] [religion] [sex] [national origin]], the plaintiff has the burden of proving the following elements by a preponderance of the evidence:
1. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the
defendant; [and]
2. the defendant [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse action] the
plaintiff because of the plaintiff’s [race] [color] [religion] [sex] [national origin] [.] [;]
[3. the plaintiff was qualified for [his] [her] [other pronoun] position [.] [;] [and]
[4. similarly situated individuals outside the plaintiff’s [race] [color] [religion] [sex] [national origin] were
treated more favorably.]
If the plaintiff has proven each of these elements by a preponderance of the evidence, the plaintiff is entitled to your verdict.
Comment
To establish a prima facie case of disparate treatment under Title VII, a plaintiff must show “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.” Berry v. Dep't of Soc. Servs., 447 F.3d 642, 656 (9th Cir. 2006). If it is disputed that plaintiff is qualified for position and that similarly situated individuals outside of plaintiff’s protected class were treated more favorably, add the bracketed elements. “Other employees are similarly situated to the plaintiff when they have similar jobs and display similar conduct.” Id. (quoting Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1114 (9th Cir. 2011) (internal quotation marks omitted)).
When the alleged discrimination is based on sexual orientation, gender identity, transgender status, or the like, the word “sex” in the instruction should be modified or explained consistent with Bostock v. Clayton County, 140 S. Ct. 1731, 1741, 1754 (2020) (holding employer violates Title VII by firing individual based on sexual orientation or gender identity). “Paramour preference,” however, does not constitute discrimination on the basis of sex. Maner v. Dignity Health, 9 F.4th 1114, 1116 (9th Cir. 2021).
Finally, even in the absence of a “same decision” (or “same action”) affirmative defense, a plaintiff might prefer to use an instruction that provides, as the second element, that the plaintiff’s protected characteristic was “a motivating factor” in the defendant’s employment decision. See 42 U.S.C. § 2000e-5(g)(2)(B). Based on 42 U.S.C. § 2000e-2(m), there does not appear to be any reason to deny a plaintiff that option. If a plaintiff so elects, a model instruction on that point is found in 10.2.
Revised Sept. 2022
For the plaintiff’s claim that [he] [she] [other pronoun] was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant because of the plaintiff’s [[race] [color] [religion] [sex] [national origin]], the plaintiff has the burden of proving the following elements by a preponderance of the evidence:
1. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant; [and]
[2. the defendant [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse action] the plaintiff because of the plaintiff’s [race] [color] [religion] [sex] [national origin] [.] [;]]
[or]
[2. the plaintiff’s [race] [color] [religion] [sex] [national origin] was a motivating factor in the defendant’s decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] the plaintiff] [.] [;]
[3. the plaintiff was qualified for [his] [her] [other pronoun] position [.] [;] [and]
[4. similarly situated individuals outside the plaintiff’s [race] [color] [religion] [sex] [national origin] were treated more favorably.]
The defendant has the burden of proving by a preponderance of the evidence both that the defendant’s decision to [state adverse action] also was motivated by a lawful reason and that the defendant would have made the same decision to [state adverse action] even if the plaintiff’s [race] [color] [religion] [sex] [national origin] had played no role in the defendant’s decision to [state adverse action].
Comment
When the defendant is asserting a “same decision” (or “same action”) affirmative defense in a “mixed motive” case, it may be appropriate to allow the plaintiff to choose between the two versions of the second element shown above. As explained by the Supreme Court, Congress supplemented Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait or characteristic was a “motivating factor” in a defendant’s challenged employment practice. Civil Rights Act of 1991, § 107, 105 Stat. 1075, codified at 42 U.S.C. § 2000e-2(m); see Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739-40 (2020). In Bostock, the Supreme Court described the “motivating factor” test as a “more forgiving standard.” Id. at 1740. Because it is a more forgiving standard, a plaintiff asserting a claim under Title VII should be allowed to choose whether to use that standard rather than “but-for causation.” When a plaintiff proves a violation under 42 U.S.C. § 2000e-2(m), using the more forgiving standard of “motivating factor,” however, a defendant may assert a “same decision” (or “same action”) affirmative defense under § 2000e-5(g)(2)(B) in an effort to foreclose compensatory and punitive damages.
To establish a prima facie case of disparate treatment under Title VII, a plaintiff must show “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.” Berry v. Dep't of Soc. Servs., 447 F.3d 642, 656 (9th Cir. 2006). If it is disputed that the plaintiff is qualified for the position and that similarly situated individuals outside of the plaintiff’s protected class were treated more favorably, add the bracketed elements. “Other employees are similarly situated to the plaintiff when they have similar jobs and display similar conduct.” Id. (quoting Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1114 (9th Cir. 2011) (internal quotation marks omitted)).
When the alleged discrimination is based on sexual orientation, gender identity, transgender status, or the like, the word “sex” in the instruction should be modified or explained consistent with Bostock, 140 S. Ct. at 1741, 1754 (holding employer violates Title VII by firing individual based on sexual orientation or gender identity). “Paramour preference,” however, does not constitute discrimination on the basis of sex. Maner v. Dignity Health, 9 F.4th 1114, 1116 (9th Cir. 2021).
Sample Special Verdict for Use with Same Decision Affirmative Defense
[1. Has the plaintiff proven by a preponderance of the evidence that the defendant [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse action] the plaintiff because of the plaintiff’s [race] [color] [religion] [sex] [national origin]?
Yes _____ No _____]
[or]
[1. Has the plaintiff proven by a preponderance of the evidence that the plaintiff’s [race] [color] [religion] [sex] [national origin] was a motivating factor in the defendant’s decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] the plaintiff]?
Yes _____ No _____]
If the answer to Question No. 1 is “yes,” proceed to Question No. 2. If the answer to Question No. 1 is "no," do not answer any further questions [on the plaintiff’s claim of disparate treatment].
2. Has the defendant proven by a preponderance of the evidence that the defendant’s decision to [state adverse action] also was motivated by a lawful reason?
Yes _____ No _____]
If your answer to Question No. 2 is “yes,” proceed to Question No. 3. If your answer to Question No. 2 is “no,” proceed to Question No. 4.
3. Has the defendant proven by a preponderance of the evidence that the defendant would have made the same decision to [state adverse employment action] even if the plaintiff’s [race] [color] [religion] [sex] [national origin] had played no role in the defendant’s decision to [state adverse employment action]?
Yes _____ No _____]
If your answer to Question No. 3 is “yes,” do not answer any further questions on damages related to the plaintiff’s claim of disparate treatment. If your answer to Question No. 3 is “no,” proceed to Question No. 4.
4. [The judge should draft further special verdict questions to cover damages, including punitive damages if appropriate.]
Revised Sept. 2022
10.3 Civil Rights—Title VII—Disparate Treatment— “Because of” Defined
“Because of” means “by reason of” or “on account of.” This is sometimes referred to as “but-for causation.” This form of causation is shown whenever a particular outcome would not have happened “but for” the purported cause. It is a reason without which the [state adverse employment action] would not have occurred.
A but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a “but-for cause.” Often, events have multiple but-for causes. For example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a “but-for cause” of the collision.
In the context of this claim, a defendant cannot avoid liability just by citing some other factor that contributed to the challenged employment decision. So long as the plaintiff’s [race] [color] [religion] [sex] [national origin] was one but-for cause of that decision, that is enough to trigger the law. A “but-for cause” does not mean the sole cause or even a primary cause.
Comment
See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020) (explaining “because of” and but-for causation in context of claim under Title VII).
Revised Mar. 2022
Comment
The plaintiff seeks damages against the defendant for retaliation. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:
1. the plaintiff:
[participated in an activity protected under federal law, that is [specify protected activity, e.g., filing a discrimination complaint]]
or
[opposed an unlawful employment practice, that is [specify unlawful employment practice]]; and
2. the employer subjected the plaintiff to an adverse employment action, that is [specify adverse employment action]; and
3. the plaintiff was subjected to the adverse employment action because of [[his] [her]] [participation in a protected activity] [opposition to an unlawful employment practice].
A plaintiff is “subjected to an adverse employment action” because of [[his] [her]] [participation in a protected activity] [opposition to an unlawful employment practice] if the adverse employment action would not have occurred but for that [participation] [opposition].
If you find that the plaintiff has proved all three of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
Comment
Because the third element is whether the plaintiff was subjected to the adverse employment action “because of” his or her participation in a protected activity or opposition to an unlawful employment practice, consider including the definition of “because of” from Instruction 10.3.
Title VII makes it an unlawful employment practice for a person covered by the Act to discriminate against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). See Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 274 (2009) (noting that the “antiretaliation provision has two clauses . . .. The one is known as the ‘opposition clause,’ the other as the ‘participation clause’”); Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (“An employer can violate the anti-retaliation provisions of Title VII in either of two ways: ‘(1) if the [adverse employment action] occurs because of the employee’s opposition to conduct made an unlawful employment practice by the subchapter, or (2) if it is in retaliation for the employee’s participation in the machinery set up by Title VII to enforce its provisions.’” (alterations in original) (citations omitted)).
When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.
For a definition of “adverse employment action” in the context of retaliation, see Instruction 10.10 (Civil Rights—Title VII— “Adverse Employment Action” in Retaliation Cases).
In order to be a protected activity, the plaintiff’s opposition must have been directed toward a discriminatory act by an employer or an agent of an employer. See Silver v. KCA, Inc., 586 F.2d 138, 140-42 (9th Cir. 1978) (holding that employee’s opposition to a racially discriminatory act of a co-employee cannot be the basis for a retaliation action); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013-14 (9th Cir. 1983) (holding that employee’s objections to discriminatory practices by warehouse personnel manager, on facts presented, constituted opposition to discriminatory actions of employer).
Informal as well as formal complaints or demands are protected activities under Title VII. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000).
Regarding the third element, “a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013) (rejecting motivating factor test in retaliation claim). The causation element may be inferred based on the proximity in time between the protected action and the retaliatory act; however, if the proximity in time is the only evidence to support plaintiff’s retaliatory act, it must be “very close” in time. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (holding causation may be inferred from proximity in time between acts); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). There is no per se too long or too short period of time that satisfies the causation requirement. Howard v. City of Coos Bay, 871 F.3d 1032, 1046 (9th Cir. 2017).
Individuals who violate 42 U.S.C. § 1981 for retaliatory conduct can be held personally liable for punitive damages “1) if they participated in the deprivation of Plaintiffs’ constitutional rights; 2) for their own culpable action or inaction in the training, supervision, or control of their subordinates; 3) for their acquiescence in the constitutional deprivations; or 4) for conduct that showed a reckless or callous indifference to the rights of others.” Flores v. City of Westminster, 873 F.3d 739, 757 (9th Cir. 2017).
Revised Mar. 2022
The plaintiff seeks damages against the defendant for a [racially] [sexually] [other Title VII protected characteristic] hostile work environment while employed by the defendant. In order to establish a [racially] [sexually] [other Title VII protected characteristic] hostile work environment, the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. the plaintiff was subjected to [slurs, insults, jokes or other verbal comments or physical contact or intimidation of a racial nature] [sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature] [conduct affecting other Title VII protected characteristics];
2. the conduct was unwelcome;
3. the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create a [racially] [sexually] [other Title VII protected characteristic] abusive or hostile work environment;
4. the plaintiff perceived the working environment to be abusive or hostile; and
5. a reasonable [woman] [man] in the plaintiff’s circumstances would consider the working environment to be abusive or hostile.
Whether the environment constituted a [racially] [sexually] [other Title VII protected characteristic] hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the harassing conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance.
Comment
The elements of this instruction are derived from Fuller v. City of Oakland, California, 47 F.3d 1522, 1527 (9th Cir. 1995). The language in the instruction regarding the factors used to determine whether a working environment was sufficiently hostile or abusive is derived from Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
This instruction should be given in conjunction with other appropriate instructions, including Instructions 10.6 (Civil Rights—Title VII—Hostile Work Environment Caused by Supervisor—Claim Based on Vicarious Liability—Tangible Employment Action—Affirmative Defense); 10.7 (Civil Rights—Title VII—Hostile Work Environment Caused by Non-Immediate Supervisor or by Co-Worker—Claim Based On Negligence); and, if necessary, 10.12 (Civil Rights—Title VII—“Tangible Employment Action” Defined).
When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.
“A plaintiff must show that the work environment was both subjectively and objectively hostile.” McGinest v. GTE Service Corp., 360 F.3d 1103, 1113 (9th Cir. 2004); see also Fuller, 47 F.3d at 1527 (citing Harris, 510 U.S. at 21-22). For the objective element, the Ninth Circuit has adopted the “reasonable victim” standard. Ellison v. Brady, 924 F.2d 872, 878-80 (9th Cir. 1991). Therefore, if the plaintiff/victim is a woman, element five of the instruction should state “reasonable woman,” and if the plaintiff/victim is a man, “reasonable man.” Ellison, 924 F.2d at 879, n.11; see also Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th Cir. 2017) (conducting objective inquiry from perspective of reasonable member of applicable ethnic group); Fuller v. Idaho Dept. of Corr., 865 F.3d 1154, 1158 (9th Cir. 2017) (holding that because women are disproportionately victims of rape and sexual assault, “a jury armed with common sense and an appropriate sensitivity to social context could reasonably conclude that the actions of [a female plaintiff’s supervisor, siding with the alleged male rapist over plaintiff,] were because of her sex”).
In determining whether the harassment was suffiiciently severe or pervasive, the fact finder should consider all circumstances, “including those incidents that do not involve verbal communication between the plaintiff and harasser, physical proximity, or physical or sexual touching,” including interactions between the harasser and third persons. Christian v. Umpqua Bank, 984 F.3d 801, 810–11 (9th Cir. 2020) (citing Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008)). When harassment is of the same “type of conduct,” “occured relatively frequently,” and was “perpetrated by the same individual,” that harassment should be evaluated together when assessing its severity. Id. at 810 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.s. 101, 120–21 (2002)).
Targeting specific individuals with hostile conduct is not required to establish a Title VII violation. Sharp v. S&S Activewear, L.L.C., 69 F.4th 974, 979 (9th Cir. 2023) (holding that “repeated and prolonged exposure to sexually foul and abusive music” falls within a broader category of auditory harassment that can pollute a workplace and violate Title VII). Further, an employer cannot claim as a defense that it is an equal opportunity harasser, i.e., male and female plaintiffs can coexist in the same Title VII action. Id. (observing that the rule also applies in the context of race discrimination).
Revised Aug. 2023
An employer may be liable when an employee’s supervisor creates a [racially] [sexually] [other Title VII protected characteristic] hostile work environment for that employee. A “supervisor” is someone who is empowered by the employer to take tangible employment actions regarding the employee, such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, or significantly changing benefits.
The plaintiff claims that [he] [she] was subjected to a [racially] [sexually] [other Title VII protected characteristic] hostile work environment by _____________, and that _____________ was [his] [her] supervisor empowered by _____________ to take tangible employment actions against the plaintiff.
The defendant denies the plaintiff’s claim. The plaintiff must prove [his] [her] claim by a preponderance of the evidence.
[If Ellerth/Faragher affirmative defense applies, add the following:]
In addition to denying the plaintiff’s claim, the defendant has asserted an affirmative defense. Before you consider this affirmative defense, you must first decide whether the plaintiff has proved by a preponderance of the evidence that [he] [she] suffered a tangible employment action as a result of harassment by the supervisor.
If you find that the plaintiff has proved that [he] [she] suffered a tangible employment action as a result of harassment by the supervisor, you must not consider the affirmative defense.
If the plaintiff has not proved that [he] [she] suffered a tangible employment action, then you must decide whether the defendant has proved by a preponderance of the evidence each of the following elements:
1. the defendant exercised reasonable care to prevent and promptly correct the [racially] [sexually] [other Title VII protected characteristic] harassing behavior, and
2. the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or unreasonably failed to otherwise avoid harm.
If the defendant proves these elements, the plaintiff is not entitled to prevail on this claim.
Comment
See Introductory Comment to this chapter. This instruction should be given in conjunction with Instruction 10.5 (Civil Rights—Title VII—Hostile Work Environment—Harassment Because of Protected Characteristics—Elements) and, if applicable, Instruction 10.12 (Civil Rights—Title VII—Tangible Employment Action Defined).
When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.
This instruction is based on Vance v. Ball State University, 133 S. Ct. 2434 (2013), Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998), and Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001).
This instruction addresses harassment by a plaintiff’s supervisor. Use the first two paragraphs if no Ellerth/Faragher affirmative defense is applicable. Use the entire instruction if an Ellerth/Faragher defense is to be considered by the jury.
When harassment is by the plaintiff’s supervisor, an employer is vicariously liable, subject to a potential affirmative defense. Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). For vicarious liability to attach the supervisor must be empowered by the employer “to take tangible employment actions against the [plaintiff], i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Id. at 2443 (quoting Ellerth, 524 U.S. at 761); see also Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 698 (9th Cir. 2017) (finding employee was not a supervisor, although he “had the authority to direct the work of other [employees] and tell them which tasks to perform,” because he “did not have hiring, firing, or disciplinary authority”).
Id. An employee who contends that he or she submitted to a supervisor’s threat to condition continued employment on participation in unwanted sexual activity alleges a tangible employment action, which, if proved, deprives the employer of an Ellerth/Faragher defense. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1173 (9th Cir. 2003) (affirming summary judgment for the employer due to insufficient evidence of any such condition imposed by plaintiff’s supervisor). See Penn. State Police v. Suders, 542 U.S. 129, 137-38 (2004), for discussion of tangible employment action.
The adequacy of an employer’s anti-harassment policy may depend on the scope of its dissemination and the relationship between the person designated to receive employee complaints and the alleged harasser. See, e.g., Faragher, 524 U.S. at 808 (holding policy ineffective when (1) the policy was not widely disseminated to all branches of the municipal employer and (2) the policy did not include any mechanism by which an employee could bypass the harassing supervisor when lodging a complaint).
“While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
Although proof that the plaintiff failed to use reasonable care in avoiding harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the defendant, a demonstration of such failure will normally suffice to satisfy this prong. See Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.
If the harasser is not the plaintiff’s supervisor, an employer’s liability can only be based on negligence. The Ellerth/Faragher affirmative defense is not applicable if the claim is based on negligence. See Instruction 10.7 (Civil Rights—Title VII—Hostile Work Environment Caused by Non-Immediate Supervisoror by Co-Worker—Claim Based on Negligence).
Revised Sept. 2017
The plaintiff seeks damages from the defendant for a hostile work environment caused by [sexual] [racial] [other Title VII protected characteristic] harassment. The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence:
1. the plaintiff was subjected to a [sexually] [racially] [other Title VII protected characteristic] hostile work environment by a [non-immediate supervisor] [co-worker]; and
2. the defendant or a member of the defendant’s management knew or should have known of the harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment.
A person is a member of management if the person has substantial authority and discretion to make decisions concerning the terms of the harasser’s employment or the plaintiff’s employment, such as authority to counsel, investigate, suspend, or fire the accused harasser, or to change the conditions of the plaintiff’s employment. A person who lacks such authority is nevertheless part of management if he or she has an official or strong duty in fact to communicate to management complaints about work conditions. You should consider all the circumstances in this case in determining whether a person has such a duty.
The defendant’s remedial action must be reasonable and adequate. Whether the defendant’s remedial action is reasonable and adequate depends on the remedy’s effectiveness in stopping the individual harasser from continuing to engage in such conduct and in discouraging other potential harassers from engaging in similar unlawful conduct. An effective remedy should be proportionate to the seriousness of the offense.
If you find that the plaintiff has proved both of the elements on which the plaintiff has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant.
Comment
See Introductory Comment to this chapter. See also Swinton v. Potomac Corp., 270 F.3d 794, 803-05 (9th Cir. 2001). Use this instruction when the claim against the employer is based on negligence and involves harassment by another co-worker or a supervisor who is not the plaintiff’s direct (immediate or successively higher) supervisor.
Use this instruction in conjunction with Instruction 10.5 (Civil Rights—Title VII—Hostile Work Environment—Harassment Because of Protected Characteristics—Elements).
When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.
Under a negligence theory, an employer is liable if the employer (or its “management”) knew or should have known of the harassing conduct and failed to take reasonably prompt corrective action to end the harassment. Swinton, 270 F.3d at 803-04. There are two categories of employees who constitute “management” for purposes of a negligence claim. Id. at 804. The first category is a member of management who possesses substantial authority and discretion to make decisions over the plaintiff’s or the harasser’s employment, such as “authority to counsel, investigate, suspend or fire the accused harasser, or to change the conditions of the harassee’s employment.” Id. The second category of employees who qualify as management consists of any supervisor who lacks this authority but nonetheless “has an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” Id. at 805 (citations omitted).
It should be noted, however, that neither Swinton nor any of the cases relied on by Swinton provides a definition of a supervisor or other employee with “an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” See Swinton, 270 F.3d at 804-05. To aid jury understanding, the Committee has modified the Swinton language of “de facto duty to act as a conduit to management . . ..” to “duty in fact to communicate to management . . ..”
The two elements of this instruction are based on Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999), and Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir. 1998). The text of the instruction addressing remedial action is based on Mockler, 140 F.3d at 813 (citing Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)).
The burden is on the plaintiff to “show that the employer knew or should have known of the harassment and took no effectual action to correct the situation.” Mockler, 140 F.3d at 812 (citations omitted). “This showing can . . . be rebutted by the employer directly, or by pointing to prompt remedial action reasonably calculated to end the harassment.” Id.
In determining whether an employer’s response to the harassment is sufficient to absolve it from liability, “the fact that [the] harassment stops is only a test for measuring the efficacy of a remedy, not a way of excusing the obligation to remedy.” Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995). “Once an employer knows or should know of harassment, a remedial obligation kicks in.” Id. Therefore, “if 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach.” Id. at 1528-29; see also Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 690 (9th Cir. 2017) (“[P]rompt action is not enough. The remedial measures must also be effective.”).
For purposes of proving that the defendant “knew or reasonably should have known of the harassment,” it is appropriate to impute this knowledge to a defendant employer if a management-level employee of the employer defendant knew or reasonably should have known that harassment was occurring. Swinton, 270 F.3d at 804.
Revised Mar. 2017
The plaintiff seeks damages against the defendant for retaliation. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:
1. the plaintiff:
[participated in an activity protected under federal law, that is [specify protected activity, e.g., filing a discrimination complaint]]
or
[opposed an unlawful employment practice, that is [specify unlawful employment practice]]; and
2. the employer subjected the plaintiff to an adverse employment action, that is [specify adverse employment action]; and
3. the plaintiff was subjected to the adverse employment action because of [[his] [her]] [participation in a protected activity] [opposition to an unlawful employment practice].
A plaintiff is “subjected to an adverse employment action” because of [[his] [her]] [participation in a protected activity] [opposition to an unlawful employment practice] if the adverse employment action would not have occurred but for that [participation] [opposition].
If you find that the plaintiff has proved all three of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
Comment
Because the third element is whether the plaintiff was subjected to the adverse employment action “because of” his or her participation in a protected activity or opposition to an unlawful employment practice, consider including the definition of “because of” from Instruction 10.3.
Title VII makes it an unlawful employment practice for a person covered by the Act to discriminate against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). See Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 274 (2009) (noting that the “antiretaliation provision has two clauses . . .. The one is known as the ‘opposition clause,’ the other as the ‘participation clause’”); Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (“An employer can violate the anti-retaliation provisions of Title VII in either of two ways: ‘(1) if the [adverse employment action] occurs because of the employee’s opposition to conduct made an unlawful employment practice by the subchapter, or (2) if it is in retaliation for the employee’s participation in the machinery set up by Title VII to enforce its provisions.’” (alterations in original) (citations omitted)).
When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.
For a definition of “adverse employment action” in the context of retaliation, see Instruction 10.10 (Civil Rights—Title VII— “Adverse Employment Action” in Retaliation Cases).
In order to be a protected activity, the plaintiff’s opposition must have been directed toward a discriminatory act by an employer or an agent of an employer. See Silver v. KCA, Inc., 586 F.2d 138, 140-42 (9th Cir. 1978) (holding that employee’s opposition to a racially discriminatory act of a co-employee cannot be the basis for a retaliation action); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013-14 (9th Cir. 1983) (holding that employee’s objections to discriminatory practices by warehouse personnel manager, on facts presented, constituted opposition to discriminatory actions of employer).
Informal as well as formal complaints or demands are protected activities under Title VII. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000).
Regarding the third element, “a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013) (rejecting motivating factor test in retaliation claim). The causation element may be inferred based on the proximity in time between the protected action and the retaliatory act; however, if the proximity in time is the only evidence to support plaintiff’s retaliatory act, it must be “very close” in time. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (holding causation may be inferred from proximity in time between acts); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). There is no per se too long or too short period of time that satisfies the causation requirement. Howard v. City of Coos Bay, 871 F.3d 1032, 1046 (9th Cir. 2017).
Individuals who violate 42 U.S.C. § 1981 for retaliatory conduct can be held personally liable for punitive damages “1) if they participated in the deprivation of Plaintiffs’ constitutional rights; 2) for their own culpable action or inaction in the training, supervision, or control of their subordinates; 3) for their acquiescence in the constitutional deprivations; or 4) for conduct that showed a reckless or callous indifference to the rights of others.” Flores v. City of Westminster, 873 F.3d 739, 757 (9th Cir. 2017).
Revised Mar. 2022
Comment
The definition of "adverse employment action" in the context of a retaliation claim is different from that in a disparate treatment claim. Whereas an adverse employment action for purposes of a disparate treatment claim must materially affect the terms and conditions of a person’s employment, an adverse action in the context of a retaliation claim need not materially affect the terms and conditions of employment so long as a reasonable employee would have found the action materially adverse, which means it might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) (applying Burlington standard).
An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
Comment
In Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), the Supreme Court settled the definition of what is an adverse employment action in the retaliation context. This definition introduces the objective standard of a "reasonable employee" but includes the concept of "materially adverse."
Actions such as firing and demoting are adverse employment actions for purposes of a retaliation claim. In addition, other actions that do not rise to the level of ultimate employment actions, such as a lateral transfer, an unfavorable reference that had no effect on a prospective employer’s hiring decision, and the imposition of a more burdensome work schedule, may also be considered adverse employment actions in this context. These actions may dissuade a reasonable worker from making or supporting a charge of discrimination. See White, 548 U.S. at 68; Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000).
Adverse employment actions take many forms. See, e.g., Dodge v. Evergreen School District, 56 F.4th 767, 774 (9th Cir. 2022) (in action brought under 42 U.S.C. § 1983, concluding statement that employee would “need to have [your] union rep” if he persisted in engaging in speech on matter of public concern made as private citizen); Dahlia v. Rodriguez, 735 F.3d 1060, 1078 (9th Cir. 2013) (en banc) (considering employee’s placement on administrative leave, deprivation of ability to take promotional exam, and loss of pay and opportunities for investigative or other job experience); Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (discussing denial of transfer); Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (considering cut in monthly base salary); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 500-01, 506 (9th Cir. 2000) (considering low rating on job performance review, decreased job responsibilities, and failure to receive promotions); Hashimoto v. Dalton, 118 F.3d 671, 674 (9th Cir. 1997) (considering negative job reference); Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989) (discussing layoff); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (considering transfer of job duties and “undeserved” performance ratings); Ruggles v. Cal. Poly. State Univ., 797 F.2d 782, 785 (9th Cir. 1986) (discussing failure to hire); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir. 1983) (discussing four-month disciplinary suspension).
Other conduct, however, may not constitute an adverse employment action. See, e.g., Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002) (giving "mediocre" performance evaluation not made available to other potential employers and unaccompanied by any meaningful change in work assignments); Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (ostracizing by co-workers); McAlindin v. Cnty. of San Diego, 192 F.3d 1226, 1238-39 (9th Cir. 1999) (refusing to hold job open beyond period dictated by company’s leave policy), amended by 201 F.3d 1211; Nunez v. City of L.A., 147 F.3d 867, 875 (9th Cir. 1998) ("badmouthing" of employee); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) (transfering with no effect on salary). Revised Mar. 2023
An action is an adverse employment action if it materially affects the compensation, terms, conditions, or privileges of employment.
Comment
See Comment at 10.9 ("Adverse Employment Action" Defined) and Comment to Instruction 10.10 ("Adverse Employment Action" in Retaliation Cases).
The definition of "adverse employment action" for purposes of a disparate treatment claim comes from Chuang v. University of California Davis, Board of Trustees, 225 F.3d 1115, 1126 (9th Cir.2000) (finding that "[t]he removal of or substantial interference with work facilities important to the performance of the job constitutes a material change in the terms and conditions of a person’s employment" and therefore qualifies as an adverse employment action, but that the employer’s failure to respond to grievances did not amount to an adverse employment action because "it did not materially affect the compensation, terms, conditions, or privileges of the [plaintiffs’] employment"). See also Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.2008) (stating definition); Kang v. U. Lim Am., Inc., 296 F.3d 810, 818-19 (9th Cir.2002) (holding that plaintiff established prima facie case of disparate treatment when defendant subjected the plaintiff "to a number of adverse employment conditions, including severe verbal and physical abuse, discriminatory overtime, and termination, that constituted ‘a material change in the terms and conditions’ of [the plaintiff’s] employment").
An "adverse employment action" is not necessarily the same as a "tangible employment action." Although many tangible employment actions may also be adverse employment actions, a tangible employment action need not be adverse, such as when a supervisor coerces an employee into engaging in sexual acts by threats of discharge. In such a case, an employee need not actually suffer discharge or other adverse employment action to demonstrate a tangible employment action. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir.2003) ("[D]etermining not to fire an employee who has been threatened with discharge constitutes a ‘tangible employment action,’ at least where the reason for the change in the employment decision is that the employee has submitted to coercive sexual demands."). See also Instruction 10.12 ("Tangible Employment Action" Defined).
Tangible employment actions are the means by which a supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment action requires an official act of the enterprise, a company act. A tangible employment action consists of a significant change in employment status such as [hiring] [firing] [failing to promote] [reassignment] [a significant change in responsibilities] [undesirable reassignment] or [a significant change in benefits]. [A tangible employment action occurs when a superior obtains sexual favors from an employee by conditioning continued employment on participation in unwelcome acts.]
Comment
This instruction should be given in conjunction with Instruction 10.6 (Hostile Work Environment Caused by Supervisor —Claim Based on Vicarious Liability —Tangible Employment Action—Affirmative Defense).
The Supreme Court defined "tangible employment action" in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742. 761 (1998), stating, "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Accord Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013) (holding that employer may be vicariously liable for employee’s unlawful harassment only when employer has empowered that employee to take tangible employment actions against victim).
The meaning of the term "tangible employment action" is also discussed in Pennsylvania State Police v. Suders, 542 U.S. 129, 137-38 (2004), which resolved a split in the circuits as to whether a constructive discharge brought about by supervisor harassment constitutes a tangible employment action and bars the affirmative defense set out in Ellerth, 524 U.S. 742, and Faragher v. Boca Raton, 524 U.S. 775 (1998). Suders, 542 U.S. at 140.
Suders concluded that a constructive discharge, in itself, does not constitute a tangible employment action that bars the Ellerth/Faragher affirmative defense. That defense "is available to the employer whose supervisors are charged with harassment," and is barred only if a "tangible employment action" carried out under a supervisor’s official authority was part of the conduct leading to the constructive discharge. Id. at 148-49.
In the context of quid pro quo sexual harassment, the Ninth Circuit has held that a "tangible employment action" occurs when a supervisor who abuses his supervisory authority succeeds in coercing an employee to engage in sexual acts by threats of discharge or other material job-related consequence, or fails in his efforts to coerce the employee but then actually discharges her on account of her refusal to submit to his demands. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir.2003). In such situations, the employer may be held vicariously liable for the direct supervisor’s unlawful conduct and may not take advantage of the Ellerth/Faragher affirmative defense. Id. However, an "unfulfilled, or inchoate, quid pro quo threat by a supervisor is not enough" to constitute a tangible employment action. Id. at 1170. Rather, the threat must culminate in the actual coercion of a sexual act or some other "form of sufficiently concrete employment action" on account of the employee’s refusal to submit. Id.
A constructive discharge occurs when the working conditions are so intolerable that a reasonable person in the plaintiff’s position would feel compelled to resign.
Comment
This instruction is based on Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004). Accord Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir.2007); see also Emeldi v. Univ. of Or., 673 F.3d 1218, 1225 (9th Cir.2012) (holding in Title VII retaliation case that constructive discharge occurs when "a retaliating employer creates working conditions so extraordinary and egregious as to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job" (quotation marks and alterations omitted)).
The defendant contends that [religion] [sex] [national origin] is part of a bona fide occupational qualification. The defendant has the burden of proving both of the following elements by a preponderance of the evidence:
1. that the occupational qualification is reasonably necessary to the normal operation of the defendant’s business or enterprise; and
2. [that the defendant had reasonable cause to believe that all [describe the class] would be unable to perform the job safely and efficiently] [or] [that it was impossible or highly impractical to consider the qualifications of each [describe the class] employee.]
If you find that the plaintiff has proved [his] [her] claim[s], your verdict should be for the plaintiff, unless you find that the defendant has proved this defense, in which event your verdict should be for the defendant.
Comment
See 42 U.S.C. § 2000e-2(e)(1) (“it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of [their] religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . ..”). “We reiterate our holdings in [Western Airlines, Inc., v. Criswell, 472 U.S. 400 (1985)] and [Dothard v. Rawlinson, 433 U.S. 321 (1977)] that an employer must direct its concerns about a woman’s ability to perform her job safely and efficiently to those aspects of the woman’s job-related activities that fall within the ‘essence’ of the particular business.” Int’l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 206-07 (1991) (finding no “factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved”); see also Criswell, 472 U.S. at 413 (suggesting that bona fide occupational qualification relates to the “essence” or “central mission” of employer’s business) (citing Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976)); Frank v. United Airlines, Inc., 216 F.3d 845, 855 (9th Cir. 2000) (discrimination pursuant to bona fide occupational qualification must be “reasonably necessary” to the “normal operation” of the employer’s particular business, and must concern “job-related skills and aptitudes”).
When asserting a “business necessity” defense, an employer may offer proof that it “relied on a government safety standard, even where the standard is not applicable to the category of conduct at issue.” Bates v. United Parcel, Inc., 511 F.3d 974, 998 (9th Cir. 2007) (involving employer’s requirement that employee meet DOT hearing standard even when vehicle driven was non-DOT regulated package vehicle).
A bona fide occupational qualification defense does not bar a claim for discrimination if this defense is merely pretextual. See Zeinali v. Raytheon Co., 636 F.3d 544 (9th Cir. 2011) (holding Iranian engineer may have Title VII claim for discrimination based on race and national origin when termination was based on failure to obtain security clearance while non-Iranian engineers who did not have security clearances were retained).
“Under Title VII, the [bona fide occupational qualification] defense is not available at all where discrimination is based on race or color.” Morton v. United Parcel Serv., 272 F.3d 1249, 1260 n.11 (9th Cir. 2001).
The defendant contends that the treatment of the plaintiff was based on a bona fide seniority system. The defendant has the burden of proving both of the following elements by a preponderance of the evidence:
1. the seniority system had legitimate goals and was not designed to discriminate on the basis of [race] [color] [religion] [sex] [national origin]; and
2. the seniority system used the employee’s length of service as the primary consideration in selecting the employees who would not be [describe the alleged discriminatory action].
If you find that the plaintiff has proved [his] [her] claim[s], your verdict should be for the plaintiff, unless you find that the defendant has proved this defense, in which event your verdict should be for the defendant.
Comment
In relevant part 42 U.S.C. § 2000e-2(h) provides:
[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . ..
Bona fide seniority systems are valid under Title VII pursuant to 42 U.S.C. § 2000e-2(h), even though such systems may perpetuate pre-Act discrimination. See Int’l. Bhd. of Teamsters v. United States, 431 U.S. 324, 348-55 (1977). Seniority systems do not violate Title VII even if they have a disproportionate effect on a protected group, so long as they are not intentionally discriminatory. See Pullman-Standard v. Swint, 456 U.S. 273, 289 (1982); Balint v. Carson City, 180 F.3d 1047, 1051 (9th Cir. 1999) (noting that under Title VII, “seniority systems are a valid method of providing different levels of compensation and privileges, even if they have a discriminatory impact on employees”). A seniority system is not illegal provided it is not the result of an intent to discriminate on prohibited grounds; the issue of intent is a necessary element of a Title VII action challenging the seniority system and is not merely an affirmative defense to such a challenge. See Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 905 (1989); Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1046 n.7 (7th Cir. 1996) (“A ‘bona fide’ seniority system is one that was created for legitimate purposes, rather than for the purpose of discrimination.”). Seniority systems necessarily “contain ancillary rules that accomplish certain necessary functions, but which may not themselves be directly related to length of employment.” California Brewers Ass’n v. Bryant, 444 U.S. 598, 604, 607 (1980) (reversing circuit determination that “fundamental component” of seniority system is “the concept that employment rights should increase as the length of an employee’s service increases.”).
The defendant contends that the defendant would have made the same decision to [discharge] [not hire] [not promote] [demote] the plaintiff because [describe the after-discovered misconduct]. If the defendant proves by a preponderance of the evidence that the defendant could have made the same decision and [would have discharged] [would not have hired] [would not have promoted] [would have demoted] the plaintiff because of [describe the after-discovered misconduct], you should limit any award of back pay to the date the employer would have made the decision to [[discharge] [not hire] [not promote] [demote]] the plaintiff as a result of [describe the after-discovered misconduct].
Comment
If an employer takes an adverse employment action such as discharging an employee for a discriminatory reason, later-discovered evidence that the employer could have used to discharge the employee for a legitimate reason does not immunize the employer from liability, but the employer does not have to offer reinstatement or front pay and only has to provide back pay “from the date of the unlawful discharge to the date the new information was discovered.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362 (1995); see also Rivera v. Nibco, Inc., 364 F.3d 1057, 1071 n.16 (9th Cir. 2004); O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761–62 (9th Cir. 1996). The employer must prove by a preponderance of the evidence that it would have fired the employee because of the after-acquired evidence. O’Day, 79 F.3d at 761.
The defense of after-acquired evidence is similar to, but not the same as, an employer’s affirmative defense to a charge that a protected characteristic was a “motivating factor” in an adverse employment decision, as explained in Instruction 10.2 (Civil Rights—Title VII—Disparate Treatment—With Affirmative Defense of “Same Decision”). In both situations, the “same decision” theory is more a limitation on remedies than an affirmative defense that defeats a claim of employment discrimination. In the case of the “same decision” theory in a mixed motive case discussed in Instruction 10.2, information establishing a lawful basis for the employer’s decision is known to the employer at the time of the decision and limits a plaintiff’s remedies. In the case of “after-acquired evidence,” the information establishing a lawful basis for the employer’s adverse employment decision is acquired after the adverse decision and limits remedies.
The Ninth Circuit has concluded that “back pay” under various federal statutes, including Title VII, generally includes tips, holiday pay, and overtime pay. See Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1157 (9th Cir. 2001).
Revised Mar. 2022
Comment
Title VII requires employers to make accommodations for an employee’s religious beliefs or practices unless the employer can show that the employee’s religious practice cannot “reasonably” be accommodated without “undue hardship.” The Supreme Court, in Groff v. DeJoy, 600 U.S. 447, 468-71 (2023), clarified the standard for undue hardship. Before Groff, an employer’s burden to show undue hardship had been, since Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), understood by lower courts as relieving an employer of providing a religious accommodation if it can show that doing so would impose “more than . . . de minimis” cost. See, e.g., Balint v. Carson City, 180 F.3d 1047, 1053-54 (9th Cir. 1999). The Groff court disavowed that understanding, stating that the “more than a de minimis cost” test was a mistaken view of Hardison. Rather, the Court explained that an employer must accommodate an employee’s religious beliefs unless it can show that doing so would “result in substantial increased costs in relation to the conduct of” the employer’s business. Groff,600 U.S. at 470. Although the Court left it to the lower courts to perform the context-specific application of the clarified standard, it noted two things: (1) “a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue’”; and (2) “Title VII requires that an employer reasonably accommodate an employee's practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations.” Id. at 472-73.
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.0_civil_Introductory%20Comment_5_2023_0.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.1_civil_rev_9_2022_0.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.2_civil_rev_9_2022_0.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.3_civil_rev_3_2022.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.4_civil_rev_3_2021.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.5_civil_rev_8_2023.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.06_civil_revised_3-2017.wpd
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.07_civil_revised_3-2017.wpd
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.8_civil_rev_3_2022.docx
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.09_civil_2017.wpd
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.10_civil_rev_3_2023.docx
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.11_civil_2017.wpd
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.12_civil_2017.wpd
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.13_civil_2017.wpd
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.14_civil_2017.wpd
[16] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.15_civil_2017.wpd
[17] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/10.16_civil_rev_3_2022.docx
[18] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.17_civ_12_2023.docx