TBD | 5 PJI 1.3 | Pattern Jury Instructions | Third Circuit
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5 PJI 1.3 | Third Circuit (US)
HB-PJI-CA03-05S0103 Download


[Plaintiff] alleges that [his/her] supervisor [name of supervisor], subjected [him/her] to harassment. It is for you to decide whether [employer] is liable to [plaintiff] for the actions of [supervisor].

To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence:

First: [Plaintiff] was subjected to [describe activity] by [supervisor], because of [plaintiff's] [sex] [race] [religion] [national origin];

Second: [Supervisor’s] conduct was not welcomed by [plaintiff];

Third: [Plaintiff’s] submission to [supervisor's] conduct was an express or implied condition for receiving a job benefit or avoiding a job detriment;24

Fourth: [Plaintiff] was subjected to an adverse “tangible employment action”; a tangible employment action is defined as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits; and

Fifth: [Plaintiff's] [rejection of] [failure to submit to] [supervisor’s] conduct was a motivating factor in the decision to [describe the alleged tangible employment action].

If any of the above elements has not been proved by the preponderance of the evidence, your verdict must be for [defendant] and you need not proceed further in considering this claim.

[When a jury question is raised as to whether the harassing employee is the plaintiff’s supervisor, the following instruction may be given:

[Defendant] is liable for any discriminatory harassment the plaintiff has proven if the plaintiff also proves by a preponderance of the evidence that [name of person] is a supervisor. A supervisor is one who had the power to take tangible employment action against [plaintiff]. [As you will recall, a tangible employment action is defined as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.].]

COMMENT Instructions 5.1.3 through 5.1.5 address claims for harassment in violation of Title VII. A plaintiff asserting such a claim must show discrimination and must also establish the employer’s liability for that discrimination.25 The framework applicable to those two questions will vary depending on the specifics of the case.

The Supreme Court has declared that the “quid pro quo” and “hostile work environment” labels are not controlling for purposes of establishing employer liability. But the two terms do provide a basic demarcation for the kinds of harassment actions that are brought under Title VII. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 750 (1998) (“The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.... The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive.”) In other words, these terms retain significance with respect to the first inquiry (showing discrimination) rather than the second (determining employer liability).

Showing discrimination

One way to show discrimination is through what is known as a “quid pro quoclaim; Instruction 5.1.3 provides a model for instructions on such a claim. Another way to show discrimination is through what is termed a “hostile work environment” claim; Instructions 5.1.4 and 5.1.5 provide models for instructions on such claims.

Instruction 5.1.3's third element is appropriate for use in quid pro quo cases where the supervisor expressly or impliedly conditioned a job benefit (or avoidance of a job detriment) on the plaintiff’s submission to supervisor’s conduct at the time of the conduct. “However, [Third Circuit] law contains no requirement that the plaintiff show that the employer implicitly or explicitly threatened retaliation when making the advance.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 282 (3d Cir. 2000). So long as the plaintiff shows “that his or her response to unwelcome advances was subsequently used as a basis for a decision about compensation, etc....., the plaintiff need not show that submission was linked to compensation, etc. at or before the time when the advances occurred.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3d Cir. 1997), abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). See also 29 C.F.R. § 1604.11(a)(2). In a case where the plaintiff rests the quid pro quo claim on the argument that the plaintiff’s response was subsequently used as a basis for a decision concerning a job benefit or detriment, the third element in the model instruction should be revised or omitted.

Employer liability

Where an employee suffers an adverse tangible employment action as a result of a supervisor’s discriminatory harassment, the employer is strictly liable for the supervisor’s conduct. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (an employer is strictly liable for supervisor harassment that "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment"); Faragher v. City of Boca Raton, 524 U.S. 775, 790 (1998) (stating that “there is nothing remarkable in the fact that claims against employers for discriminatory employment actions with tangible results, like hiring, firing, promotion, compensation, and work assignment, have resulted in employer liability once the discrimination was shown”).

By contrast, when no adverse tangible employment action occurred, the employer has an affirmative defense:
When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.... The defense 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.

Instruction 5.1.3 is designed for use in cases that involve a tangible employment action. The instruction’s definition of “tangible employment action” is taken from Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).26 It should be noted that the failure to renew an employment arrangement can also constitute an adverse employment action. See Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008) (holding that the failure to renew an employment arrangement, “whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII”). Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 328 (3d Cir. 2015) (holding that a paid suspension while an employee was investigated for alleged misconduct was not a tangible employment action). As discussed below, it is possible that a plaintiff might frame a case as a quid pro quo case even though it does not involve evidence of an adverse tangible employment action; in such instances, the Ellerth/Faragher affirmative defense will be available. See Instructions 5.1.5 for an instruction on that affirmative defense.

Unfulfilled threats

In some instances, a supervisor might threaten an adverse employment action but fail to act on the threat after the plaintiff rejects the supervisor’s advances. In such a scenario, it is necessary to consider the implications for both the question of discrimination and the question of employer liability. On the question of discrimination, because such a claim “involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct.” Ellerth, 524 U.S. at 754. And on the question of employer liability, because such a claim involves no tangible employment action, the Ellerth/Faragher affirmative defense will be available. In sum, such a case should be analyzed under the framework set forth in Instruction and Comment 5.1.5.

Submission to demands

In other instances, a supervisor’s threat of an adverse employment action might succeed in securing the plaintiff’s submission to the supervisor’s demand and the supervisor might therefore take no adverse tangible employment action of a sort that would be reflected in the official records of the employer. On the question of proving discrimination, it is not entirely clear whether Third Circuit caselaw would require a “hostile environment” analysis in such a case. The Robinson court suggested in dictum that in
cases in which an employee is told beforehand that his or her compensation or some other term, condition, or privilege of employment will be affected by his or her response to the unwelcome sexual advances.... , a quid pro quo violation occurs at the time when an employee is told that his or her compensation, etc. is dependent upon submission to unwelcome sexual advances. At that point, the employee has been subjected to discrimination because of sex.... Whether the employee thereafter submits to or rebuffs the advances, a violation has nevertheless occurred. Robinson, 120 F.3d at 1297. This aspect of Robinson is no longer good law with respect to cases in which the plaintiff rebuffs the supervisor’s advances and no adverse tangible employment action occurs; as noted above, under Ellerth a plaintiff in such a case would need to meet the hostile environment standard for proving discrimination. What is less clear is whether the same is true for cases in which the plaintiff submits to the supervisor’s advances. Neither Ellerth nor Faragher was such a case and those cases do not directly illuminate the question.

Similarly, on the question of employer liability Ellerth and Faragher do not directly address whether the Ellerth/Faragher affirmative defense would be available in such a case. The Second and Ninth Circuits have answered this question in the negative. The Second Circuit concluded that when a supervisor conditions an employee’s continued employment on the employee’s submission to the supervisor’s sexual demands and the employee submits, this “classic quid pro quo” constitutes a tangible employment action that deprives the employer of the affirmative defense. Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 94 (2d Cir. 2002). In such a situation, the Jin court reasoned, it is the supervisor’s “empowerment... as an agent who could make economic decisions affecting employees under his control that enable[s] him to force [the employee] to submit.” Id.; see also id. at 98 (stating that supervisor’s “use of his supervisory authority to require [plaintiff’s] submission was, for Title VII purposes, the act of the employer”). The Ninth Circuit has followed Jin, concluding that “a ‘tangible employment action’ occurs when the supervisor threatens the employee with discharge and, in order to avoid the threatened action, the employee complies with the supervisor's demands.” Holly D. v. California Institute of Technology, 339 F.3d 1158, 1167 (9th Cir. 2003).

Though the Third Circuit cited Jin’s reasoning with approval in Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), it is unclear whether this fact supports or undermines Jin’s persuasiveness in this circuit. On the one hand, in Suders the court of appeals endorsed Jin’s rationale: “in quid pro quo cases where a victimized employee submits to a supervisor's demands for sexual favors in return for job benefits, such as continued employment.... the more sensible approach... is to recognize that, by his or her actions, a supervisor invokes the official authority of the enterprise.” Suders, 325 F.3d at 458-59. But the Suders court did so in the course of holding that “a constructive discharge, when proved, constitutes a tangible employment action within the meaning of Ellerth and Faragher,”325 F.3d at 435 – a point on which the Supreme Court reversed, see Pennsylvania State Police v. Suders, 542 U.S. 129, 134 (2004) (holding that in order to count as a tangible employment action the constructive discharge must result from “an employer-sanctioned adverse action”).

It could be argued that Jin and Holly D. rest in tension with Ellerth, Faragher and Suders, given that when the plaintiff submits to a supervisor’s demand and no tangible employment action of an official nature is taken the supervisor’s acts are not as readily attributable to the company, see Ellerth, 524 U.S. at 762 (stressing that tangible employment actions are usually documented, may be subject to review by the employer, and may require the employer’s approval); see also Lutkewitte v. Gonzales, 436 F.3d 248, 263 (D.C. Cir. 2006) (Brown, J., concurring in judgment) (arguing that the panel majority should have rejected Jin and Holly D. rather than avoiding the question, and reasoning that “the unavailability of the affirmative defense in cases where a tangible employment action has taken place is premised largely on the notice (constructive or otherwise) that such an action gives to the employer-notice that the delegated authority is being used to discriminate against an employee”). But see Jin, 310 F.3d at 98 (“though a tangible employment action ‘in most cases is documented in official company records, and may be subject to review by higher level supervisors,’ the Supreme Court did not require such conditions in all cases.”) (quoting, with added emphasis, Ellerth, 524 U.S. at 762).

Some uncertain light was shed on the availability of the Ellerth/Faragher defense, in a submission-to-demands case, by Moody v. Atlantic City Board of Education, 870 F.3d 206 (3d Cir. 2017). In Moody, the plaintiff alleged that her supervisor “told her that she would get an employment contract if she had sex with him,” and that – perceiving a threat to her job – she “reluctantly had sex with him.” Id. at 211. (The court of appeals had no occasion to analyze this as a quid pro quo claim because the plaintiff stated the intent to proceed under a hostile-environment framework rather than a quid pro quo framework. See id. at 213.) The court of appeals held that there were disputed questions of material fact that required resolution in order to determine whether the defendant could invoke the Ellerth/Faragher defense. See id. at 220. But in so holding, the court of appeals did not rely upon the plaintiff’s allegation that she submitted to her supervisor’s demand for sex. Rather, the court of appeals reasoned that “[a] reasonable juror could conclude that Marshall gave Moody [work] hours to entice her to accede to his sexual demands and then reduced her hours after she rejected him”; accordingly, the court reasoned, there was “a disputed issue of material fact as to whether she suffered a tangible employment action” – namely, whether the supervisor reduced the plaintiff’s hours after she rejected him. Id. at 219. (By “rejected,” the court was referring to the plaintiff’s account that, after submitting to the demand for sex, she told her supervisor it would never happen again. Id. at 211.)

If the court concludes that it is appropriate to follow the approach taken in Jin and Holly D. – a question that, as noted above, appears to be unsettled – then the court should consider whether to refer only to a ‘tangible employment action’ rather than an ‘adverse tangible employment action.’ See Jin, 310 F.3d at 101 (holding that it was error to “use[] the phrase ‘tangible adverse action’ instead of ‘tangible employment action’” and that such error was “especially significant in the context of this case, where we hold that an employer is liable when a supervisor grants a tangible job benefit to an employee based on the employee’s submission to sexual demands”).

Definition of “supervisor”

“[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim....” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). See also Moody, 870 F.3d at 217 (“[T]he record here supports the conclusion that Marshall was Moody’s supervisor because (a) the Board empowered him as the custodial foreman to select from the list of substitute custodians who could actually work at New York Avenue School;... (b) the Board conceded that while Moody was on school premises, Marshall served in a supervisory role; (c) the record identifies no other person who was present full time or even sporadically on the school’s premises, or anywhere for that matter, who served as Moody’s supervisor; and (d) since Moody’s primary benefit from her employment was hourly compensation, and since Marshall controlled 70% of her hours, his decision to assign or withhold hours significantly affected her pay.”).

(Last Updated July 2019)


24 This third element in the Instruction may require modification in some cases. See the Comment’s discussion of Farrell v. Planters Lifesavers Co., 206 F.3d 271, 282 (3d Cir. 2000), Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3d Cir. 1997), abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), and 29 C.F.R. § 1604.11(a)(2).
25 A supervisor cannot be liable under Title VII for acts of harassment. See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir. 1996) (concluding "that Congress did not intend to hold individual employees liable under Title VII").
26 For a case finding a jury question as to the existence of a tangible employment action, see Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 219 (3d Cir. 2017) (holding that “[a] reasonable juror could conclude that Marshall gave Moody [work] hours to entice her to accede to his sexual demands and then reduced her hours after she rejected him”).

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