nongovernmental discrimination and impairment under color of State law. The Eleventh Circuit pattern instruction accordingly provides that if the jury finds that the same decision would have been made, the jury must find for the defendant. See Eleventh Circuit Pattern Jury Instruction 4.9. The Third Circuit follows the Eleventh Circuit approach. 581 See Brown v. J. Kaz, Inc., F.3d 175, 182 n.5 (3d Cir. the Civil Rights Act of 1991 amended section 1981 2009) (“[A]lthough in other ways, it did not make the mixed-motive amendments described above applicable to section 1981 actions. Therefore, and not the 1991 amendments to Title VII, controls Price Waterhouse, the instant case, and Craftmatic has a complete defense to liability if it would have made the same decision without consideration of the pattern instruction sets forth Brown's race.”).4 Accordingly, the as one that precludes liability, and thus differentiates it from the “same decision” defense “same defense in Title VII discrimination actions. decision” Animus of Employee Who Was Not the Ultimate Decisionmaker For a discussion of the treatment in 131 S. Ct. 1186 (2011), Staub v. Proctor Hosp., Court’s 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 and it is unclear whether the ruling in “motivating factor,” would extend to mixed-motive claims under statutes (such as Section 1981) that do not Staub contain the same explicit statutory reference to discrimination as a “motivating factor.”
nongovernmental discrimination and impairment under color of State law. The Eleventh Circuit pattern instruction accordingly provides that if the jury finds that the same decision would have been made, the jury must find for the defendant. See Eleventh Circuit Pattern Jury Instruction 4.9. The Third Circuit follows the Eleventh Circuit approach. See Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009) (“[A]lthough the Civil Rights Act of 1991 amended section 1981 in other ways, it did not make the mixed-motive amendments described above applicable to section 1981 actions. Therefore, Price Waterhouse, and not the 1991 amendments to Title VII, controls the instant case, and Craftmatic has a complete defense to liability if it would have made the same decision without consideration of Brown's race.”).4 Accordingly, the pattern instruction sets forth the “same decision” defense as one that precludes liability, and thus differentiates it from the “same decision” defense in Title VII discrimination actions. 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 mixed-motive claims under statutes (such as Section 1981) that do not contain the same explicit statutory reference to discrimination as a “motivating factor.”
6_Chap_6_2017_March_.docx