Over the years, courts have developed a sophisticated burden-shifting analysis and framework for evaluating employment discrimination and retaliation claims under the various anti-discrimination statutes, such as Title VII of the Civil Rights Act of 1964 and the New York State and City Human Rights Laws. A recent decision explains why a jury should not be presented with that framework in the form of jury instructions.
In Balu v. City of New York, No. 16-1071-CV, 2017 WL 951202 (2d Cir. Mar. 9, 2017) (summary order) – a sexual harassment and retaliation case – the Second Circuit (inter alia) rejected plaintiff’s challenge to the jury instructions/charge at trial based on the ground “that the district court failed to instruct the jury as to the burden shifting and rebuttable presumptions on her retaliation claims.”
The court wrote:
[I]ncluding such language in jury instructions is unwise, because such language—developed by appellate courts for use by judges—is at best irrelevant, and at worst misleading to a jury. In an employment discrimination or retaliation case, the job of the jury is simply to decide whether an impermissible factor was a motivating factor in the adverse employment action. The jury therefore does not need to be lectured on the concepts that guide a judge in determining whether a case should go to the jury. The district court did not err by not explicitly referencing the burden shifting or rebuttable presumptions in its jury instructions. (Emphasis added.)
The court also rejected plaintiff’s argument that the district court erred in not declaring a mistrial based on defense counsel’s opening statement which “improperly referenced the results of an internal investigation by the New York Police Department’s Office of Equal Employment Opportunity that concluded Balu’s claims of sexual harassment were unsubstantiated.” It reasoned that this “was a single statement made during opening and the district court immediately issued a curative instruction reminding the jury that statements by attorneys were not evidence.”