In a May 22 decision, Craddock v. FedEx Corp. Servs., Inc.,[1] the 6th Circuit strongly suggested that jury instructions in Title VII cases do not need to include the first three factors of the four factor McDonnell-Douglas framework. The court’s opinion, supported by a well-reasoned concurrence filed by Judge McKeague, concluded that the better practice is to avoid charging the jury using the full McDonnell-Douglas framework. According to the Craddock court, reciting the McDonnell-Douglas four factor test in jury instructions does not assist the jury and can potentially cause jury confusion. However, the court concluded that no error occurred in Craddock by including the full four factor McDonnell-Douglas test in the jury instructions.

The plaintiff in Craddock asserted that the third and fourth McDonnell Douglas factors contained in the jury instructions essentially confused the jury. The third and fourth questions on the verdict form asked:

3.  Did plaintiff prove by a preponderance of the evidence that the reason advanced by Defendant for her termination was a pretext for race discrimination? Yes or No. (Emphasis added).

To which the jury answered Yes.

4.   Did plaintiff prove by a preponderance of the evidence that she was the victim of intentional race discrimination when she was terminated? Yes or No.

To which the jury answered No.

Since the jury answered “no” as to the ultimate question of whether the plaintiff was the victim of intentional discrimination, the trial court determined that the plaintiff had not proven intentional discrimination on the basis of race and entered a judgment accordingly. The plaintiff contended that these instructions were essentially confusing and that by answering “yes” to the third question, the jury was finding in favor of the plaintiff on her claim for race discrimination. The 6th Circuit commented that the use of the McDonnell Douglas factors in jury instructions is unnecessary and could lead to jury confusion.[2] The court further noted that the verdict form appears to split the “ultimate question” of intentional discrimination into two distinct inquiries that unnecessarily overlap.[3] But the 6th Circuit affirmed the trial court finding there was not any plain error.[4]

Although the court found that the trial court did not commit reversible error, the opinion did include some considerations on the inclusion of the McDonnell Douglas factors in the future. First, if there was proof that a jury struggled with the instructions or verdict form in their deliberation, this could be the basis for a challenge if substantial prejudice could be shown. However, because this determination is subjective in nature and the fact that this jury did not struggle in their deliberation based on the inclusion of the McDonnell Douglas factors in the jury verdict form, does not mean that including the factors in the jury instructions or verdict form will never cause a jury to struggle.

The majority opinion highlighted the fact that instruction on the factors “can be inadvisable” and that specifically including the “first two steps risks confusing the jury.”[5] The court went on to note that several sister circuits have either cautioned against the inclusion of the factors or outright barred the inclusion of the factors in jury charges. The 5th Circuit has deemed the use of the factors in jury instructions “inappropriate and unnecessary,” while the 11th Circuit has outright demanded they not be used while instructing the jury.[6] The 2nd Circuit has characterized the factors’ inclusion in jury instructions as “not the proper vehicle for evaluating a case that has been fully tried on the merits.”[7] While the majority seemed to caution against the inclusion of the factors, McKeague, in his concurrence, noted that the inclusion was a “mistake.”[8]

McKeague opined that the factors “seldom help the jury decide the ultimate question” and that the “inclusion … might tend to confuse the issue”.[9] He noted that the factors were best served in the context of the pretrial phases of litigation and that the factors are not tailored to helping a jury in their determination of the ultimate question of intentional discrimination.[10] He did acknowledge that the third factor could be helpful to the jury, but hinted that it would only add minimal value.[11] Finally, McKeague highlighted the 6th Circuit’s “clear preference” for avoiding jury instructions that are excessively legalistic and misleading formulations of the McDonnell Douglas factors as they tend to confuse juries.[12]

So where does that leave the inclusion of the McDonnell Douglas factors in jury instructions moving forward? It seems that the McDonnell Douglas factors should not be included in full in the jury instructions, and that even inclusion in part might have little utility for the jury. Inclusion of the factors further complicates the issue and could circumvent the actual charge of the jury in determining the ultimate question of intentional discrimination. The majority opinion hints that the McDonnell Douglas factors should not be included, indicated by their citation to sister circuits guidance on the topic and their own determination of the pitfalls of inclusion. This, coupled with the concurrence of McKeague, suggests that the 6th Circuit is signaling district courts to avoid use of the factors to prevent confusion and streamline the deliberation of the jury.

Both the majority opinion and the concurrence emphasized that the plaintiff retains at all times the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.[13] Removing at least the first two factors from the jury instructions could mitigate the risks associated with potentially confusing the jury as to the ultimate point of proving intentional discrimination and could eliminate any claim of “substantial prejudice” which therein would lend itself to further litigation and other potential issues for a client. As to the third factor (pretext), the jury instruction should only mention pretext and not say “pretext for discrimination.” This is because even if the plaintiff can establish that the proffered reason was not the actual reason for the termination or adverse employment action, that alone does not mandate a finding of intentional discrimination.[14]  

Rick Bennett is a partner in the Memphis Office of Phelps Dunbar LLP and focuses his practice on the representation of employers in all aspects of labor and employment law. He received his law degree from the University of Memphis Cecil C. Humphreys School of Law in 1988. He may be reached at rick.bennett@phelps.com or 901-259.7121. Rachel Ducker, a rising third year law student at the University of Alabama School of Law, contributed to the writing of this article.