Specifically, [Plaintiff] claims that [Supervisor] discriminated against [him/her] by making unwelcome sexual advances toward [him/her] and that [Supervisor] took an adverse tangible employment action against [him/her] because [he/she] rejected those unwelcome advances.
[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].
To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Supervisor] took an adverse tangible employment action against [Plaintiff];
Third: [Plaintiff]’s rejection of the unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take the adverse tangible employment action; and
Fourth: [Plaintiff] suffered damages because of the adverse tangible employment action;
A tangible employment action is a significant change in employment status. If you find that [Supervisor] [describe adverse tangible employment action at issue], you have found that [Supervisor] took an adverse “tangible employment action” against [Plaintiff], and you must decide whether [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take the tangible employment action. To prove that [his/her] rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor in [Supervisor]’s decision, [Plaintiff] does not have to prove that [his/her] rejection of the unwelcome sexual advances was the only reason that [Supervisor] took the adverse tangible employment action. It is enough if [Plaintiff] proves that [his/her] rejection of the unwelcome sexual advances influenced the decision. If [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances made a difference in [Supervisor]’s decision, you may find that it was a motivating factor in the decision.
Unlawful sexual harassment may take the form of unwelcome sexual advances, and it is unlawful for a supervisor to change – or threaten to change – the terms and conditions of an employee’s employment to force or coerce, or to attempt to force or coerce, sexual favors from the employee.
A supervisor’s demand or threat for sexual favors must be
(2) unwelcome to the employee.
[Including Affirmative Defense (if applicable, see annotations): If you find that [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take an adverse tangible employment action, you must decide whether [Supervisor] has shown by a preponderance of the evidence that [he/she/it] would have [describe adverse tangible employment action] [Plaintiff] even if [Supervisor] had not taken [Plaintiff]’s rejection of the unwelcome sexual advances into account. If you find that [Plaintiff] would [describe adverse tangible employment action] for reasons other than [his/her] rejection of [Supervisor]’s unwelcome sexual advances, you must make that finding in your verdict.
If you find for [Plaintiff] and against [Defendant] on this defense, you must decide whether [Plaintiff] suffered damages because of the adverse tangible employment action.]
[Without Affirmative Defense: If you find that [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take an adverse tangible employment action, you must decide whether [Plaintiff] suffered damages because of the adverse tangible employment action.]
If the damages would not have existed except for the adverse tangible employment action, then you may find that [Plaintiff] suffered those damages because of the adverse tangible employment action. If you find that [Plaintiff] suffered damages because of the adverse tangible employment action, you must decide the issue of [Plaintiff]’s damages.
When considering the issue of [Plaintiff]’s compensatory damages, you should determine what amount, if any, has been proven by [Plaintiff] by a preponderance of the evidence as full, just and reasonable compensation for all of [Plaintiff]’s damages as a result of the adverse tangible employment action, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize [Defendant]. Also, compensatory damages must not be based on speculation or guesswork.
You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:
(b) emotional pain and mental anguish.
To determine whether and how much [Plaintiff] should recover for emotional pain and mental anguish, you may consider both the mental and physical aspects of injury – tangible and intangible. [Plaintiff] does not have to introduce evidence of a monetary value for intangible things like mental anguish. You must determine what amount will fairly compensate [him/her] for those claims. There is no exact standard to apply, but the award should be fair in light of the evidence.
[Mitigation of Damages: You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to “mitigate” those damages. For purposes of this case, the duty to mitigate damages requires [Plaintiff] to be reasonably diligent in seeking substantially equivalent employment to the position [he] [she] held with [Defendant]. To prove that [Plaintiff] failed to mitigate damages, [Defendant] must prove by a preponderance of the evidence that:
(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.
If you find that [Defendant] proved by a preponderance of the evidence that [Plaintiff] failed to mitigate damages, then you should reduce the amount of [Plaintiff]’s damages by the amount that could have been reasonably realized if [Plaintiff] had taken advantage of an opportunity for substantially equivalent employment.]
[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.
To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.
To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.
An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.
There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:
[(2) whether [Defendant] acted spitefully or malevolently];
[(3) whether [Defendant] showed a blatant disregard for civil legal obligations];
[(4) whether [Defendant] failed to investigate reports of discrimination];
[(5) whether [Defendant] failed to take corrective action concerning discriminatory acts or comments by its employees]; and
[(6) whether the person accused of discrimination was included in the employer’s decision making process concerning [Plaintiff]’s [discharge] [denied promotion].]
