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[Plaintiff] claims that [he/she] was subjected to harassment by [names] and that this harassment was motivated by [plaintiff’s] [protected status].
[Employer] is liable for the actions of [names] in [plaintiff's] claim of harassment if [plaintiff] proves all of the following elements by a preponderance of the evidence:
First: [Plaintiff] was subjected to [describe alleged conduct or conditions giving rise to plaintiff's claim] by [names].
Second: [Names] conduct was not welcomed by [plaintiff].
Third: [Names] conduct was motivated by the fact that [plaintiff] is a [membership in a protected class].
Fourth: The conduct was so severe or pervasive that a reasonable person in [plaintiff's] position would find [plaintiff's] work environment to be hostile or abusive. This element requires you to look at the evidence from the point of view of a reasonable [member of plaintiff’s protected class] reaction to [plaintiff’s] work environment.
Fifth: [Plaintiff] believed [his/her] work environment to be hostile or abusive as a result of [names] conduct.
Sixth: [Plaintiff] suffered an adverse “tangible employment action” as a result of the hostile work environment; 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.
[For use when the alleged harassment is by non-supervisory employees:
Seventh: Management level employees knew, or should have known, of the abusive conduct. Management level employees should have known of the abusive conduct if 1) an employee provided management level personnel with enough information to raise a probability of [protected class] harassment in the mind of a reasonable employer, or if 2) the harassment was so pervasive and open that a reasonable employer would have had to be aware of it.]
COMMENT If the court wishes to provide a more detailed instruction on what constitutes a hostile work environment, such an instruction is provided in 5.2.1.
The Court of Appeals has set out the elements of a hostile work environment claim as follows:
To succeed on a hostile work environment claim, the plaintiff must establish that
1) the employee suffered intentional discrimination because of his/her sex,
2) the discrimination was severe or pervasive,
3) the discrimination detrimentally affected the plaintiff,
4) the discrimination would detrimentally affect a reasonable person in like circumstances, and
5) the existence of respondeat superior liability.
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).
It should be noted that constructive discharge is the adverse employment action that is most common with claims of hostile work environment.27 Instruction 5.2.2 provides an instruction setting forth the relevant factors for a finding of constructive discharge. That instruction can be used to amplify the term “adverse employment action” in appropriate cases. In Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 (3d Cir. 2006), the court held that an ADA plaintiff cannot receive back pay in the absence of a constructive discharge. “Put simply, if a hostile work environment does not rise to the level where one is forced to abandon the job, loss of pay is not an issue.” As ADA damages are coextensive with Title VII damages — see the Comment to Instruction 9.4.1 — the ruling from Spencer appears to be applicable to Title VII hostile work environment cases.
The instruction’s definition of “tangible employment action” is taken from Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).28 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).
Liability for Non-Supervisors
“[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).29 Respondeat superior liability for harassment by non-supervisory employees exists only where the employer “knew or should have known about the harassment, but failed to take prompt and adequate remedial action.” Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006) (internal quotations omitted).30 In a case where a plaintiff suffered “harassment by [non-supervisory] co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways,” the Supreme Court has stated that “the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.” Vance, 133 S. Ct. at 2451. See also Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999):
[T]here can be constructive notice in two situations: where an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer, or where the harassment is so pervasive and open that a reasonable employer would have had to be aware of it. We believe that these standards strike the correct balance between protecting the rights of the employee and the employer by faulting the employer for turning a blind eye to overt signs of harassment but not requiring it to attain a level of omniscience, in the absence of actual notice, about all misconduct that may occur in the workplace. The court of appeals has drawn upon agency principles for guidance on the definition of “management level” personnel:
[A]n employee's knowledge of allegations of coworker sexual harassment may typically be imputed to the employer in two circumstances: first, where the employee is sufficiently senior in the employer's governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee's general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments....
Second, an employee's knowledge of sexual harassment will be imputed to the employer where the employee is specifically employed to deal with sexual harassment. Typically such an employee will be part of the employer's human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment. Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 107-08 (3d Cir. 2009).
For a case in which a jury question was raised as to whether the employer’s efforts to remedy a non-supervisor’s harassment were prompt and adequate, see Andreoli v. Gates, 482 F.3d 641, 648 (3d Cir. 2007) (Rehabilitation Act) (employee had to speak to five supervisors in order to elicit any response from management about the non-supervisor’s acts of harassment, and even then the employer took five months to move the employee to a different shift; no attempts were made to discipline or instruct the harassing employee).
Characteristics of a Hostile Work Environment
In sexual harassment cases, examples of conduct warranting a finding of a hostile work environment include verbal abuse of a sexual nature; graphic verbal commentaries about an individual's body, sexual prowess, or sexual deficiencies; sexually degrading or vulgar words to describe an individual; pinching, groping, and fondling; suggestive, insulting, or obscene comments or gestures; the display in the workplace of sexually suggestive objects, pictures, posters or cartoons; asking questions about sexual conduct; and unwelcome sexual advances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (“discriminatory intimidation, ridicule, and insult”); Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 60-61 (1986) (repeated demands for sexual favors, fondling, following plaintiff into women's restroom, and supervisor's exposing himself); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 168 (3d Cir. 2013) (stressing that inquiry “must consider the totality of the circumstances” rather than viewing component parts separately).
The Third Circuit has described the standards for a hostile work environment claim, as applied to sex discrimination, in Weston v. Pennsylvania, 251 F.3d 420, 425-426 (3d Cir. 2001):
Hostile work environment harassment occurs when unwelcome sexual conduct unreasonably interferes with a person’s performance or creates an intimidating, hostile, or offensive working environment.... In order to be actionable, the harassment must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive environment. Spain v. Gallegos, 26 F.3d 439, 446-47 (3d Cir.1994). To judge whether the environment was hostile under this standard, one must “look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citation and internal quotation marks omitted)).
Title VII protects only against harassment based on discrimination against a protected class. It is not “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). “Many may suffer severe harassment at work, but if the reason for that harassment is one that is not prescribed by Title VII, it follows that Title VII provides no relief.”Jensen v. Potter, 435 F.3d 444, 447 (3d Cir. 2006).
Severe or Pervasive Activity
The terms “severe or pervasive” set forth in the instruction are in accord with Supreme Court case law and provide for alternative possibilities for finding harassment. See Jensen v. Potter, 435 F.3d 444, 447, n.3 (3d Cir. 2006) (“The disjunctive phrasing means that ‘severity’ and ‘pervasiveness’ are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.”) (quoting 2 C. Sullivan et. al., Employment Discrimination Law 455 (3d ed. 2002). See, e.g., Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (finding evidence that met the “severe” test where plaintiff alleged that her supervisor “expected [her] to give sexual favors in exchange for work, touched [her] against her wishes, made sexual comments to her, and exposed himself to her”).
Subjective and Objective Components
The Supreme Court in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), explained that a hostile work environment claim has both objective and subjective31 components. A hostile environment must be “one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so.” The instruction accordingly sets forth both objective and subjective components.
Hostile Work Environment That Pre-exists the Plaintiff’s Employment
The instruction refers to harassing “conduct” that “was motivated by the fact that [plaintiff] is a [membership in a protected class].” This language is broad enough to cover the situation where the plaintiff is the first member of a protected class to enter the work environment, and the working conditions pre-existed the plaintiff’s employment. In this situation, the “conduct” is the refusal to change an environment that is hostile to members of the plaintiff’s class. The court may wish to modify the instruction so that it refers specifically to the failure to correct a pre-existing environment.
Harassment as Retaliation for Protected Activity
In Jensen v. Potter, 435 F.3d 444, 446 (3d Cir. 2006), the court held that the retaliation provision of Title VII “can be offended by harassment that is severe or pervasive enough to create a hostile work environment.” The Jensen court also declared that “our usual hostile work environment framework applies equally to Jensen’s claim of retaliatory harassment.” But subsequently the Supreme Court in Burlington N. & S.F. Ry. Co. v. White, 548 U.S.53, 68 (2006), set forth a legal standard for determining retaliation that appears to be less rigorous than the standard for determining a hostile work environment. The Court in White declared that a plaintiff has a cause of action for retaliation under Title VII if the employer’s actions in response to protected activity “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” After White, the Title VII retaliation provision can be offended by any activity of the employer — whether harassment or some other action — that satisfies the White standard. See Instruction 5.1.7 for a general instruction on retaliation in Title VII actions.
Employees subject to a hostile work environment on the basis of their religion are entitled to recovery under Title VII, pursuant to the same legal standards applied to sex discrimination. See Abramson v. William Paterson College, 260 F.3d 265, 277 n.5 (3d Cir. 2001) (“We have yet to address a hostile work environment claim based on religion. However, Title VII has been construed under our case law to support claims of a hostile work environment with respect to other categories (i.e., sex, race, national origin). We see no reason to treat Abramson's hostile work environment claim any differently, given Title VII's language.”).
(Last Updated July 2019)
27 Instruction 5.1.4 is appropriate for use in cases where the evidence supports a claim that the constructive discharge resulted from an official act or acts. However, where the constructive discharge did not result from an official act, an affirmative defense is available to the employer and Instructions 5.1.5 should be used instead. See Comment 5.1.5 (discussing Pennsylvania State Police v. Suders, 542 U.S. 129, 150 (2004).
28 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”).
29 Applying Vance, the panel majority in Moody v. Atlantic City Board of Education cited multiple factors in holding that a custodial foreman was the plaintiff’s supervisor:
[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. Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 217 (3d Cir. 2017).
30 “[E]mployer liability for co-worker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.” Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009).
31 See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 168-69 (3d Cir. 2013) (noting that “the inherently subjective question of whether particular conduct was unwelcome presents difficult problems of proof and turns on credibility determinations,” and finding jury question on this issue despite evidence that plaintiff “engaged in certain unprofessional conduct”).