TBD | 2 PJI 2.3 | Pattern Jury Instructions

[Plaintiff] accuses [defendant]³ of permitting sexual harassment in violation of federal law. To succeed on this claim, [plaintiff] must prove by a preponderance of the evidence all six of the following factors:

First, that [she/he] was subjected to unwelcome harassment;

Second, that the harassment was based upon [her/his] sex⁴;

Third, that the harassment was both objectively and subjectively offensive, such that a reasonable person⁵ would find it hostile or abusive and [plaintiff] in fact did perceive it to be so;

Fourth, that the harassment was sufficiently severe or pervasive so as to alter the conditions of [his/her] employment and create an abusive working environment;

Fifth, [defendant; management level employees of defendant] either knew or should have known of the harassment;⁶ and

Sixth, [defendant; management level employees of defendant] failed to take prompt and appropriate remedial action.⁷

Unwelcome harassment means conduct that is uninvited, and offensive or unwanted.⁸

On whether the conduct was objectively offensive, you may consider, among other things, the frequency of the conduct, its severity, whether it was physically threatening or humiliating or whether it was a mere offensive utterance and whether it unreasonably interfered with an employee’s work performance.⁹

Liability on this claim requires more than mere utterance of an offensive remark. It does not, however, require tangible psychological injury. There is no mathematically precise test for determining whether words and gestures meet the standard. Instead, you must consider the evidence as a whole and the totality of the circumstances, such as the nature of the conduct and the context in which it occurred.¹⁰ Discriminatory intimidation, ridicule and insult can be sufficiently severe or pervasive in their accumulated effect to alter the conditions of employment and create an abusive working environment. The conduct or actions do not have to be overtly sexual.¹¹ But conduct that results from genuine but innocuous differences in the way men and women routinely interact with members of the same sex and of the opposite sex is not illegal. Offhand comments, rudeness, occasional teasing and isolated incidents are not alone sufficient.¹² This is not a general civility code for the workplace.¹³

¹⁴{If [plaintiff] satisfies you of all the requirements I have listed, then you shall consider [defendant]’s affirmative defense. To prevail on its affirmative defense, [defendant] must prove by a preponderance of the evidence both of the following:

First, that it exercised reasonable care to prevent and correct promptly sexually harassing behavior; and

Second, that [plaintiff] unreasonably failed to take advantage of any preventive or corrective opportunities [defendant] provided.

If you find that [defendant] has proven both of these by a preponderance of the evidence, your verdict must be for [defendant] on this claim. Otherwise, your verdict must be for [plaintiff].}

¹ This instruction should be usable, with appropriate modifications, for a claim of racially hostile environment under Title VII or 42 U.S.C. § 1981, see Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 13 (1st Cir. 1999) (“[H]ostile work environment claims may now be pursued by employees under both Title VII and section 1981.”); Faragher v. City of Boca Raton,524 U.S. 775, 787 n.1 (1998) (Title VII) (“Courts of Appeals in sexual harassment cases have properly drawn on standards developed in cases involving racial harassment.”), or indeed in any hostile environment case. see Rivera-Rodriguez v. Frito Lay Snacks Caribbean,265 F.3d 15, 24 (1st Cir. 2001) (Title VII, ADA and ADEA) (“Hostile-work-environment claims were first recognized in the sex discrimination context, but have since been recognized for members of any protected class.”). But the First Circuit has not yet decided “whether disability-based hostile work environment claims exist under the ADA.” Rocafort v. IBM Corp.,334 F.3d 115, 121 (1st Cir. 2003).
² This instruction may be used when the hostile work environment was created by either: (1) an employee of defendant who is the plaintiff’s co-worker, see O’Rourke v. City of Providence,235 F.3d 713, 736 (1st Cir. 2001) (Title VII); or (2) a third party such as a customer or contractor. See, e.g., Rodriguez-Hernandez v. Miranda-Velez,132 F.3d 848, 854-55 (1st Cir. 1998) (Title VII) (discussing employer liability for harassment by a customer in case where undifferentiated verdict could have been based on any of a variety of claims involving retaliation, hostile work environment, tort, or other constitutional claims under either federal or Puerto Rican law); see also EEOC Compliance Manual (CCH) § 615, ¶ 3102, at 3207 (2001) (discussing, as examples, cases where a waitress is harassed by customers or an administrative assistant is harassed by a photocopier repair technician); Kim Houghton, Note, Internet Pornography in the Library: Can the Public Library Employer Be Liable for Third-Party Sexual Harassment when a Client Displays Internet Pornography to the Staff?, 65 Brook. L. Rev. 827, 828 n.4 (1999) (collecting cases). Instruction 2.2 should be used if the employer or a supervisory employee created the hostile work environment.
³ In Title VII cases, “the terms ‘employer’ and ‘employee’ are to be defined with reference to common law agency principles.” Delia v. Verizon Communications, Inc., __ F.3d __, 2011 WL 3688995, at *3 (1st Cir. Aug. 24, 2011) (internal quotes omitted). “[T]he principal guidepost” is “‘the common-law element of control [by the putative employer over the putative employee].’” Id. An instruction on this issue may be given when there is a dispute about whether the plaintiff is the defendant’s employee. see id. at *2-4; Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009).
⁴ The harasser need not be of the opposite sex to the victim; same-sex harassment is also actionable. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998) (Title VII); see also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258-59 (1st Cir. 1999) (Title VII and ADA). The essential issue is whether the victim was harassed “because of” his or her sex.
⁵ In the late eighties and early nineties, some commentators and courts discussed the appropriateness of the “reasonable person” standard, as compared to a “reasonable woman” standard, when the harassment was directed against a woman. see generally Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand. L. Rev. 1183 (1989); Naomi R. Cahn, The Looseness of Legal Language: The Reasonable Woman Standard in Theory and Practice, 77 Cornell L. Rev. 1398 (1992); Nancy S. EhrenReich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L.J. 1177 (1990). see also Harris v. Int’l Paper Co., 765 F. Supp. 1509, 1513-16 (D. Me.) (Title VII) vacated in part by 765 F. Supp. 1529 (1991) (discussing Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (1st Cir. 1990) (Title VII)); Morgan v. Mass. Gen. Hosp.,901 F.2d 186 (1st Cir. 1990) (Title VII); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988) (Title VII)). But in the First Circuit, it remains appropriate to use the term “reasonable person.” see O’Rourke v. City of Providence,235 F.3d 713, 728 (1st Cir. 2001) (Title VII) (the “sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so”) (citing Faragher v. City of Boca Raton,524 U.S. 775, 787-89 (1998) (Title VII)); Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-23 (1993) (Title VII); Meritor Sav. Bank, FSB v. Vinson,477 U.S. 57, 65-73 (1986) (Title VII)). Under this standard, “the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998) (Title VII) (quoting Harris, 510 U.S. at 23).
⁶ In cases where the hostile work environment is created by someone other than the employer or a supervisory employee, the plaintiff has the additional burden of proving that the defendant “knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.” White v. N.H. Dep’t of Corrections,221 F.3d 254, 261 (1st Cir. 2000) (Title VII); accord Forrest v. Brinker Int’l Payroll Co.,511 F.3d 225, 230 (1st Cir. 2007).
⁷ Wilson v. Moulison North Corp.,639 F.3d 1, 10-11 (1st Cir. 2011) (quoting Noviello v. City of Boston,398 F.3d 76, 95 (1st Cir. 2005)):

“When coworkers, rather than supervisors, are responsible for the creation and perpetuation of a hostile work environment... an employer can only be liable if the harassment is causally connected to some negligence on the employer’s part.” In other words, the plaintiff must demonstrate that the employer knew or should have know about the harassment yet failed to take prompt and appropriate remedial action.

⁸ This definition comes from Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 784 (1st Cir. 1990) (Title VII), but Chamberlin has no punctuation in the phrase: “uninvited and offensive or unwanted.” The addition of the comma is consistent with the definition favored in at least two other circuits. see Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986) (“In order to constitute harassment, the conduct must be ‘unwelcome’ in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.”); Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (“In order to constitute harassment, this conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”). Whether particular conduct was unwelcome is a fact-intensive, contextspecific inquiry. see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (Title VII) (“the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact”). The fact that the plaintiff did not explicitly reject the advance is not necessarily dispositive. Chamberlin, 915 F.2d at 784 (“[T]he perspective of the factfinder evaluating the welcomeness of sexual overtures... must take account of the fact that the employee may reasonably perceive that her recourse to more emphatic means of communicating the unwelcomeness of the supervisor’s sexual advances, as by registering a complaint, though normally advisable, may prompt the termination of her employment, especially when the sexual overtures are made by the owner of the firm.”).
⁹ This list comes from Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). It has been repeated many times.
¹⁰ see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993) (Title VII), quoted approvingly in Faragher v. City of Boca Raton,524 U.S. 775, 787-88 (1998) (Title VII).
¹¹ Harassing conduct need not be explicitly sexual or racial in order to be actionable under Title VII. see O’Rourke v. City of Providence,235 F.3d 713, 729 (1st Cir. 2001) (sex-based harassment) (quoting Landrau-Romero v. Banco Popular De Puerto Rico,212 F.3d 607, 614 (1st Cir. 2000) (race-based harassment)).
¹² O’Rourke v. City of Providence,235 F.3d 713, 729 (1st Cir. 2001).
¹³ Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80-82 (1998).
¹⁴ The Supreme Court has not established employer liability standards for a hostile work environment created by co-workers (or customers): “Ellerth and Faragher expressed no view on the employer liability standard for co-worker harassment. Nor do we.” Penn. State Police v. Suders,542 U.S. 129, 143 n.6 (2004). (The First Circuit recognized this gap in Forrest v. Brinker International Payroll Company,LP, 511 F.3d 225, 231 n.7 (1st Cir. 2007).) Instead, the Supreme Court’s discussion of agency principles by which an employer, corporate or otherwise, is liable for what individuals do, as well as its discussion of the steps an employer can take to avoid such liability, assumes that it is a supervisor who has engaged in harassing conduct. Burlington Indus., Inc. v. Ellerth,524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton,524 U.S. 775, 792 (1998); Meritor Sav. Bank, FSB v. Vinson,477 U.S. 57, 72 (1986). For such supervisor harassment cases, where no tangible employment action (e.g., firing, demotion, pay cut) has occurred, the Supreme Court recognizes an employer affirmative defense that “comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765.

The First Circuit (like other circuits), however, has adopted its own standards for holding an employer liable for co-worker or customer harassment in the absence of tangible action by the employer: “If the harassment is caused by a co-employee, the employer is liable if it ‘knew or should have known of the charged... harassment and failed to implement prompt and appropriate corrective action.’” White v. N.H. Dep’t of Corr.,221 F.3d 254, 261 (1st Cir. 2000) (quoting Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir. 1997)); see also Forrest, 511 F.3d at 230 (“A plaintiff must satisfy different standards for establishing employer liability in a hostile work environment case depending on whether the harasser is a supervisor or co-employee of the victim.” (quoting Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st Cir. 2002)); Torres-Negrón v. Merck & Co., Inc., 488 F.3d 34, 40 (1st Cir. 2007) (noting that circuit courts “Seem to be in general agreement” that “in the case of harassment by non-employees, i.e., third parties,” courts should “us[e] the same standard that is applied in the case of co-employee harassment”). According to the First Circuit, this is a negligence standard, Torres-Negrón, 488 F.3d at 40, and the burden to establish the failure of care lies with the employee. Forrest, 511 F.3d at 230.

The elements of this negligence standard seem to overlap the affirmative defense that Ellerth and Faragher recognize for supervisors, albeit the burdens of proof are reversed. Some circuits have concluded that the affirmative defense therefore should not be available to the employer in cases of co-worker or customer harassment. E.g., Swinton v. Potomac Corp.,270 F.3d 794, 803-04 (9th Cir. 2001); Curry v. Dist. of Columbia,195 F.3d 654, 660 (D.C. Cir. 1999); Wilson v. Tulsa Junior College,164 F.3d 534, 541 n.4 (10th Cir. 1998); see also Note, Harassment and Hostility: Determining the Proper Standard of Liability for Discriminatory Peer-to-Peer Harassment of Youth in Schools, 29 Women’s Rights L. Rep. 117, 140 n.272 (2008) (explaining that “[s]ince the [Supreme] Court’s discussion [in Faragher] focused solely on the discriminatory conduct of supervisors, some lower courts have taken this to mean that no such affirmative defense is available in cases alleging harassment by co-workers”). Similarly, the ABA comment to its model jury instruction on the affirmative defense states that the defense “is only available where the plaintiff has established that he/she was subjected to sexual harassment by a supervisor that did not culminate in a tangible employment action.” Am. Bar Ass’n, Model Jury Instructions: Employment Litigation § 1.04[3](a) cmt. (2d ed. 2005).

Other courts disagree. E.g., Good v. MMR Group, Inc., 2001 WL 1772120, at *5 (W.D. Ky. Dec. 4, 2001), 2001 WL 1772120, at *5 (W.D. Ky. Dec. 4, 2001) (applying affirmative defense to a claim of co-worker harassment because “allowing an affirmative defense in cases of supervisor harassment, but not coworker harassment, would produce the anomalous result of making liability ‘stricter’ in coworker cases than supervisor cases”). Eleventh Circuit Judge Barkett has said that the Ellerth/Faragher standard of vicarious liability for supervisory harassment “applies equally to cases where the supervisor had adequate notice of a... hostile work environment and did nothing to remedy the problem, thus facilitating and prolonging the harassment,” because “where a supervisor knows of the... harassment of an employee by a co-worker and does nothing to remedy the problem, this inaction is both discriminatory and aided by the agency relation.” Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1368 (11th Cir. 1999) (Barkett, J., concurring).

The First Circuit has not applied the affirmative defense to the co-worker/customer context. But neither has it said flatly that it is not available. The Eleventh Circuit Pattern Instruction 1.2.2 allows the affirmative defense, as does the Third Circuit Pattern Instruction 5.1.5. The Fifth, Seventh and Ninth Circuit Pattern Instructions do not include the affirmative defense. 5th Cir. Civ. Pattern Instr. 11.4.3; 7th Cir. Pattern Instr. 3.04; 9th Cir. Pattern Instr. 10.2. The Eighth Circuit Pattern comments that its availability is an open question. 8th Cir. Civ. Pattern Instr. 5.43 n.8.

The need for the affirmative defense instruction may depend on what the negligence standard entails in the first place. The Ninth Circuit says that the employee must “prove that management knew or should have known of the harassment” (emphasis added), and defines management as a “supervisor possessing substantial authority and discretion to make decisions concerning the terms of the harasser’s or harassee’s employment” or a supervisor without that authority but who “has an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” Swinton, 270 F.3d at 804-05. The other circuits seem to speak of proving negligence by the employer institutionally. If the employee is required to show institutional negligence in the first place, demonstrating what various levels of management knew and what procedures were in place, permitting the jury to determine whether, overall, the employer was institutionally negligent, then arguably there is no need for the affirmative defense. But that approach seems to provide less guidance to the jury and therefore less consistent application of the law; and for some of the elements (the employer’s procedures, what various levels of management knew), the burden of proof seems misplaced. Alternatively, if the employee’s negligence burden is initially satisfied by showing merely that a low-level supervisor negligently permitted co-worker or customer harassment to continue, despite being aware of it, the rationale of Faragher/Ellerth suggests that there may be a need for the affirmative defense so that a corporate employer can show clear anti-harassment policies, extensive training on the topic, and effective compliance procedures available to a harassed employee to bypass the negligent low-level supervisor, report the conduct elsewhere and obtain effective relief. The ABA Model Instruction 1.04(3)(b) seems to have made Faragher/Ellerth part of the plaintiff’s direct case. Am. Bar Ass’n, Model Jury Instructions: Employment Litigation § 1.04[3](b) (explaining that in determining whether the plaintiff proved employer negligence, the jury “should also consider whether [the defendant] has instituted an anti-harassment policy with an effective complaint procedure and whether [the plaintiff] availed himself/herself of the procedure”).

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2 PJI 2.3 | SEXUAL HARASSMENT — HOSTILE ENVIRONMENT CREATED BY CO-WORKERS, CUSTOMERS, ETC.

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