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5 PJI 1.5 | Third Circuit (US)
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5 PJI 1.5 | TITLE VII | HARASSMENT — HOSTILE WORK ENVIRONMENT — NO TANGIBLE EMPLOYMENT ACTION

[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.


[For use when the alleged harassment is by non-supervisory employees:

Sixth: Management level employees knew, or should have known, of the abusive conduct and failed to take prompt and adequate remedial action. 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.]

[In the event this Instruction is given, omit the following instruction regarding the employer’s affirmative defense.]

If any of the above elements has not been proved by a preponderance of the evidence, your verdict must be for [defendant] and you need not proceed further in considering this claim. If you find that the elements have been proved, then you must consider [employer’s] affirmative defense. I will instruct you now on the elements of that affirmative defense.

You must find for [defendant] if you find that [defendant] has proved both of the following elements by a preponderance of the evidence:

First: [Defendant] exercised reasonable care to prevent harassment in the workplace on the basis of [protected status], and also exercised reasonable care to promptly correct any harassing behavior that does occur.

Second: [Plaintiff] unreasonably failed to take advantage of any preventive or corrective opportunities provided by [defendant].


Proof of the four following facts will be enough to establish the first element that I just referred to, concerning prevention and correction of harassment:

1. [Defendant] had established an explicit policy against harassment in the workplace on the basis of [protected status].

2. That policy was fully communicated to its employees.

3. That policy provided a reasonable way for [plaintiff] to make a claim of harassment to higher management.

4. Reasonable steps were taken to correct the problem, if raised by [plaintiff].


On the other hand, proof that [plaintiff] did not follow a reasonable complaint procedure provided by [defendant] will ordinarily be enough to establish that [plaintiff] unreasonably failed to take advantage of a corrective opportunity.

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).

This instruction is to be used in discriminatory harassment cases where the plaintiff did not suffer any “tangible” employment action such as discharge or demotion, but rather suffered “intangible” harm flowing from harassment that is “sufficiently severe or pervasive to create a hostile work environment.” Faragher v. Boca Raton, 524 U.S. 775, 808 (1998).32 In Faragher and in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Court held that an employer is strictly liable for supervisor harassment that “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Ellerth, 524 U.S. at 765. But when no such tangible action is taken, the employer may raise an affirmative defense to liability. To prevail on the basis of the defense, the employer must prove that “(a) [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior,”33 and that (b) the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”34 Ellerth, 524 U.S. at 751 (1998).

Besides the affirmative defense provided by Ellerth, the absence of a tangible employment action also justifies requiring the plaintiff to prove a further element, in order to protect the employer from unwarranted liability for the discriminatory acts of its non-supervisor employees. “[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).35 Respondeat superior liability for the acts of non-supervisory employees exists only where "the defendant knew or should have known of the harassment and failed to take prompt remedial action." Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990).36 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).

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 (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). Instruction 5.2.1 provides a full instruction if the court wishes to provide guidance on what is a hostile work environment.

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”).

Objective and Subjective 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 subjective 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.

Affirmative Defense Where Constructive Discharge Is Not Based on an Official Act

In Pennsylvania State Police v. Suders, 542 U.S. 129, 148-52 (2004), the Court considered the relationship between constructive discharge brought about by supervisor harassment and the affirmative defense articulated in Ellerth and Faragher. The Court concluded that “an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official act precipitates the constructive discharge; absent such a ‘tangible employment action,’ however, the defense is available to the employer whose supervisors are charged with harassment.” The Court reasoned as follows:
[W]hen an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. See Ellerth, 524 U.S., at 762. Absent “an official act of the enterprise,” ibid., as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company records--a demotion or a reduction in compensation, for example--shows "beyond question" that the supervisor has used his managerial or controlling position to the employee's disadvantage. See Ellerth, 524 U.S., at 760. Absent such an official act, the extent to which the supervisor's misconduct has been aided by the agency relation... is less certain. That uncertainty, our precedent establishes... justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.

...

Following Ellerth and Faragher, the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. The plaintiff might elect to allege facts relevant to mitigation in her pleading or to present those facts in her case in chief, but she would do so in anticipation of the employer's affirmative defense, not as a legal requirement.
Hostile Work Environment That Precedes 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 judge 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.

Back Pay

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. Thus, back pay will not be available in an action in which Instructions 5.1.5 is given, because the plaintiff has not raised a jury question on a tangible employment action.

(Last Updated July 2019)

Footnotes

32 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”).
33 Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 329 (3d Cir. 2015) (holding that the employer exercised reasonable care where it “took several steps in response to [the plaintiff’s] allegations of harassment [by her supervisor]: it conducted an investigation, made findings, developed a ‘plan of action,’ required [the supervisor] to attend a counseling session, and gave him a demerit on his evaluation”); id. (stating that “[a]lthough it appears [the supervisor] never received training on [the employer’s] sexual harassment policy until after [the plaintiff] complained, [the plaintiff] identifies no authority showing that this precludes [the employer] from asserting the Faragher-Ellerth defense”), with Minarsky v. Susquehanna Cty., 895 F.3d 303, 312 (3d Cir. 2018) (finding a jury question that precluded summary judgment on the first element of the Faragher-Ellerth defense where – though the County had provided plaintiff with its anti-harassment policy, had twice reprimanded her supervisor for conduct toward others, and ultimately fired the supervisor – there was evidence that “County officials were faced with indicators that [the supervisor’s] behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward [his] harassment”).
34 Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 329 (3d Cir. 2015) (finding an unreasonable failure by the employee where “[d]espite 10 years of alleged harassment [by her supervisor],... she never made a complaint until [the supervisor] accused her of timesheet fraud, despite the fact that she knew that the [employer’s] EEO Office fielded such complaints”), with Minarsky v. Susquehanna Cty., 895 F.3d 303, 314 (3d Cir. 2018) (“If a plaintiff’s genuinely held, subjective belief of potential retaliation from reporting her harassment appears to be well-founded, and a jury could find that this belief is objectively reasonable, the trial court should not find that the defendant has proven the second Faragher-Ellerth element as a matter of law. Instead, the court should leave the issue for the jury to determine at trial.”); id. at 315 n.16 (“The trial judge can instruct the jury that a plaintiff’s fears must be specific, not generalized, in order to defeat the Faragher-Ellerth defense.”).
35 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).
36 “[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, 105 (3d Cir. 2009). In In re Tribune Media Co., 902 F.3d 384 (3d Cir. 2018), the Court of Appeals found insufficient evidence “that the station had actual or constructive knowledge of” racial animus on the part of the claimant’s co-worker at the time of the altercation between the two men. See id. at 400-01 (reasoning that statements by both supervisory and non-supervisory employees indicated the co-worker “had a ‘problem’” but did not specifically point to “racial animosity”; a 1993 incident “involved disputed accusations of racial bias [by the co-worker] and occurred 15 years before” the events in suit; and the co-worker’s self-declared nickname, “the Nazi,” may not have been known to management). Even if the employer learned of racial animus on the co-worker’s part when investigating the altercation, the Court of Appeals held, the employer took “prompt and appropriate remedial action” by firing the co-worker. See id. at 401.

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