Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (footnote omitted). In 2013, the Supreme Court held that the mixed-motive proof framework is unavailable for Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). The Nassar Court reasoned that Congress legislated against a background tort principle of “but for” causation, see Nassar, 133 S. Ct. at 2523; that Title VII’s retaliation provision uses the word “because,” which is incompatible with a mixed-motive test, see id. at 2528; that Congress would have structured the statutory framework differently had it wished to encompass Title VII retaliation claims among those eligible for the statutory test set forth in 42 U.S.C. § 2000e-2(m) and 2000e5(g)(2)(B), see id. at 2529; that policy considerations support a restrictive approach to the standards of proof for retaliation claims, see id. at 2531-32; and that the “careful balance” that Congress set in the Civil Rights Act of 1991 forecloses the use of the Price Waterhouse mixed-motive test for Title VII retaliation claims, id. at 2534. The Committee has not attempted to determine what, if any, implications Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), have for ADA retaliation claims, but users of these instructions may wish to consider that question.
Attorney Fees and Costs There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp., 448 F.3d 652 (3d Cir. 2006), the district court gave the following instruction: You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages. Id. at 656-57. The Court of Appeals held that the plaintiff had not properly objected to the instruction, and, reviewing for plain error, found none: We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons. Id. at 657. First, it is not obvious or plain that an instruction directing the jury not to consider attorney fees is irrelevant or prejudicial; it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation. Id. Second, it is implausible that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the contrary. Id.; see also id. at 658 (distinguishing Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991)).