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10. CIVIL RIGHTS—TITLE VII—EMPLOYMENT DISCRIMINATION; HARASSMENT; RETALIATION

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Introductory Comment

Employment discrimination law under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981a is complex and evolving. The committee has substantially revised the 2001 edition of the Ninth Circuit Manual of Model Civil Jury Instructions in this area to reflect changes in case law and to re-arrange and re-name these instructions for easier reference and use.

Prior to the 1991 amendments to the Civil Rights Act, jury trials were not available in Title VII cases. The Civil Rights Act of 1991 now permits Title VII cases to be tried by jury. 42 U.S.C. § 1981a(c). The plaintiff may recover upon a showing that the alleged discriminatory employment practice was based on an individual’s race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). The plaintiff may prevail by showing that the discrimination was "a motivating factor" in the employment decision even though other factors also motivated the decision. Washington v. Garrett, 10 F.3d 1421, 1433 n.15 (9th Cir.1993); see also Costa v. Desert Palace, Inc., 299 F.3d 838, 853–59 (9th Cir.2002) (en banc), aff’d, 539 U.S. 90 (2003) ("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.’"). See Instruction 10.1A (Disparate TreatmentWhere Evidence Supports "Sole Reason" or "Motivating Factor").

Prior to 1991, Title VII provided only equitable remedies. See 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. 42 U.S.C. § 1981a(a)(1). Title VII plaintiffs may now recover injunctive and other equitable relief, compensatory and punitive damages and attorneys’ fees. 42 U.S.C. §§ 1981a(a)(1), 2000e-5(g)(1), (k). However, recovery of compensatory and punitive damages under Title VII is limited by the statutory caps provided in 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 caps. 42 U.S.C. § 1981a(b)(2). The Supreme Court has extended this rationale to exclude front pay from the statutory caps. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001) (holding that the 1991 amendments did not alter the nature of front pay as an equitable remedy provided for in 42 U.S.C. § 2000e-5(g)). While 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 caps because it is an equitable remedy suggests that there is similarly no entitlement to a jury trial on front pay. See Pollard, 532 U.S. at 848. The court, however, may consider submitting questions of front and back pay to the jury for advisory findings pursuant to Fed. R. Civ. P. 39(c). If advisory findings are sought, the court should recognize on the record that it is not bound by them, and make a record of independent findings pursuant to Fed. R. Civ. P. 52(a). See Chapter 5 ("Damages") and Comments to Instructions 5.2 (Measures of Types of Damages) and 5.5 (Punitive Damages) discussing the special damage rules that apply to Title VII cases.

A plaintiff’s remedies may be limited in so-called "mixed motive cases" where the plaintiff establishes liability by proving that a protected characteristic was a "motivating factor" in an employment action. See 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B). In such cases, if the employer can prove that it would have made the same employment decision for lawful reasons, the plaintiff’s relief is limited to declaratory relief, attorneys’ fees and costs. See 42 U.S.C. § 2000e-5(g)(2)(B); O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 760 (9th Cir.1996).

No McDonnell Douglas burden-shifting instruction should be given in Title VII cases. Costa, 299 F.3d at 855 ("It 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) ("it is error to charge the jury with the elements of the McDonnell Douglas prima facie case"). Cases discussing pretext and burden shifting arise in the summary judgment and directed verdict context. See, for example, Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), cert. denied, 498 U.S. 939 (1990).

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. Subchapter 10.1 sets forth the instructions that pertain to a claim of disparate treatment (intentional discrimination). Subchapter 10.2 sets forth the instructions that pertain to a claim of harassment or hostile work environment. Subchapter 10.3 sets forth an instruction relating 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 Subchapters 10.4 and 10.5, respectively.

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 subchapter for applicable jury instructions. The basic instructions set forth in Subchapters 10.1 and 10.2 may be used regardless of a particular plaintiff’s protected status. Thus, depending upon whether the claim is based on race, color, religion, sex or national origin, instructions in Subchapters 10.1 and 10.2 can be adjusted to reflect the protected trait at issue in the particular case.

In some cases where the employer is a public entity, the plaintiff also has the option of suing under 42 U.S.C. § 1983. However, the general elements of such claim are the same as under Title VII. Accordingly, in addition to the essential elements of a 42 U.S.C. § 1983 claim, the court may wish to refer to the instructions in Subchapters 10.1 and 10.2, whenever the § 1983 claim is based on disparate treatment or harassment, respectively.