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2 PJI 2.2 | First Circuit (US)
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2 PJI 2.2 | SEXUAL HARASSMENT1 — HOSTILE ENVIRONMENT CREATED BY SUPERVISORS OR DEFENDANT ITSELF2

[Plaintiff] accuses [defendant]3 of sexual harassment in violation of federal law. To succeed on this claim, [plaintiff] must prove by a preponderance of the evidence all four of the following factors4:

First, that [she/he] was intentionally subjected to unwelcome harassment by the employer or by [his/her] supervisor5;

Second, that the harassment was based upon [her/his] sex6;

Third, that the harassment was both objectively and subjectively offensive, such that a reasonable person7 would find it hostile or abusive and [plaintiff] in fact did perceive it to be so; and

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.


“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, whether it unreasonably interfered with an employee’s work performance, and its effect on the employee’s psychological well-being.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 the [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;15 and

Second, that [plaintiff] unreasonably failed to take advantage of any preventive or corrective opportunities [defendant] provided.16


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].}

Footnotes

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); accord Arrieta-Colon v. Wal-Mart P.R., Inc., 434 F.3d 75, 85 n.6 (1st Cir. 2006); Quiles-Quiles v. Henderson,439 F.3d 1, 5 n.1 (1st Cir. 2006).
2 This instruction may be used, with appropriate modification, for cases involving harassment by: (1) a defendant, who is either the employer himself or herself or whose high rank in the company is sufficient to “make[] him or her the employer’s alter ego,” Burlington Indus., Inc. v. Ellerth,524 U.S. 742, 758 (1998) (Title VII); or (2) an employee of defendant who is the plaintiff’s supervisor. O’Rourke v. City of Providence,235 F.3d 713, 736 (1st Cir. 2001) (Title VII). “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Ellerth, 524 U.S. at 765. Instruction 2.3 should be used if one of defendant’s customers or non-supervisory employees created the hostile work environment. Instruction 2.1 should be used if the plaintiff suffered a tangible employment action as a result of his or her response to the harassment.
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 list of factors comes largely from O’Rourke v. City of Providence,235 F.3d 713, 728 (1st Cir. 2001) (Title VII).
5 “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Faragher v. City of Boca Raton,524 U.S. 775, 807 (1998). “The question of whether an employee is a supervisor in the relevant sense is itself factual in nature.” Noviello v. City of Boston,398 F.3d 76, 95 (1st Cir. 2005). It depends on “the degree of authority possessed by the putative supervisor.” Id. It requires “some modicum of [] authority” to affect the terms and conditions of employment, such as hiring, firing, transferring, disciplining, etc. Id. at 96.
6 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.
7 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. 1991) (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. Univ. of P.R.,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).
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 primarily from Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). It has been repeated many times. The final factor comes from Vera v. McHugh,622 F.3d 17, 26 (1st Cir. 2010) (quoting Che v. Mass. Bay Transp. Auth.,342 F.3d 31, 40 (1st Cir. 2003)).
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 These four bracketed paragraphs should be used only in cases where the harasser was the plaintiff’s supervisor, not the defendant himself, herself, or itself. See, e.g., O’Rourke v. City of Providence,235 F.3d 713, 736 (1st Cir. 2001) (Title VII) (discussing employer liability for harassment by a supervisor).

Furthermore, this affirmative defense is available only if the defendant takes no tangible employment action. Burlington Indus. Inc. v. Ellerth,524 U.S. 742, 765 (1998) (Title VII). If the plaintiff suffered a tangible employment action, use Instruction 2.1. For constructive discharge, see Pattern 6.1 and Penn. State Police v. Suders,542 U.S. 129 (2004).

Finally, because this affirmative defense allows an employer to avoid liability when the harassment occurred outside the scope of the harasser’s employment, it is not available if the defendant adopted or ratified the actions of the harasser.

15 In Agusty-Reyes v. Dep’t of Educ. of P.R.,601 F.3d 45, 55 (1st Cir. 2010), the First Circuit stated that “an employer’s failure to show that it had ‘established and disseminated an anti-discrimination policy, complete with a known complaint procedure’, can prevent it from successfully claiming the Faragher-Ellerth defense.” (quoting Marrero v. Goya of P.R., Inc., 304 F.3d 7, 21 (1st Cir. 2002)).
16 The First Circuit addressed this prong in Monteagudo v. Asociación de Empleados Del Estado Libre Asociado de Puerto Rico,554 F.3d 164 (1st Cir. 2009). In Monteagudo, the court concluded that a reasonable jury could conclude that the plaintiff’s failure to report harassment was based on the relationships between her supervisors and the alleged harasser and was therefore reasonable. Id. at 171-72. In Tuli v. Brigham & Women’s Hospital,___ F.3d ___, 2011 WL 3795599, at *4 (1st Cir. Aug. 29, 2011), the First Circuit upheld a jury verdict of liability when the plaintiff “never filed a formal complaint” but did report the harassment to the supervisor’s superior and that person “discouraged a formal complaint, contending that [the plaintiff’s] fear of retaliation was reasonable and known to him.” “Nor does this affirmative defense apply where, as here, the employer has taken a ‘“tangible employment action’”... that would be actionable under Title VII independent of a hostile work environment.” Id. (citations omitted).

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