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[Plaintiff] claims that [he/she] was subjected to harassment by [names] and that this harassment was motivated by [plaintiff’s] race. [Defendant(s)] [is/are] liable for racial 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 [race].
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 race] 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 with respect to the employer when the alleged harassment is by non-supervisory employees:
However, as to [employer], because [names of alleged harassers] are not supervisors, you must also determine whether [employer] is responsible under the law for those acts. For [employer] to be liable for the acts of harassment of non-supervisor employees, [plaintiff] must prove by a preponderance of the evidence that 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 racial 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 The standards for a hostile work environment claim are identical under Title VII and Section 1981. See, e.g., Verdin v. Weeks Marine Inc., 124 Fed. Appx. 92, 95 (3d Cir. 2005) (“Regarding Verdin's hostile work environment claim, the same standard used under Title VII applies under Section 1981. See McKenna v. Pac. Rail Serv., 32 F.3d 820, 826 n.3 (3d Cir.1994).”); Ocasio v. Lehigh Valley Family Health Center, 92 Fed. Appx. 876, 879-80 (3d Cir. 2004) (“As amended by the 1991 Civil Rights Act, § 1981 now encompasses hostile work environment claims, and we apply the same standards as in a similar Title VII claim.”).
However, while the standards of liability are identical, there is a major difference in the coverage of the two provisions. Under Title VII, only employers can be liable for discrimination in employment. In contrast, Section 1981 prohibits individuals, including other employees, from racial discrimination against an employee. See Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 2001) (“Although claims against individual supervisors are not permitted under Title VII, this court has found individual liability under § 1981 when [the defendants] intentionally cause an infringement of rights protected by Section 1981, regardless of whether the [employer] may also be held liable."); Al-Khazraji v. Saint Francis College, 784 F.2d 505, 518 (3d Cir. 1986) (“employees of a corporation may become personally liable when they intentionally cause an infringement of rights protected by Section 1981, regardless of whether the corporation may also be held liable”). Accordingly, the instruction modifies the instruction used for Title VII hostile work environment claims, to specify that individual employees can be liable for acts of racial harassment. See Instruction 5.1.4.
If the court wishes to provide a more detailed instruction on what constitutes a hostile work environment, such an instruction is provided in 6.2.2.
It should be noted that constructive discharge is the adverse employment action that is most common with claims of hostile work environment.10 Instruction 6.2.3 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.
The instruction’s definition of “tangible employment action” is taken from Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Liability for Non-Supervisors
Respondeat superior liability for discriminatory harassment by non-supervisory employees11 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). 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... 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.
For a discussion of the definition of “management level personnel” in a Title VII case, see Comment 5.1.4 (discussing Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 108 (3d Cir. 2009)).
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 also Castleberry v. STI Grp., 863 F.3d 259, 265–66 (3d Cir. 2017) (holding that the plaintiffs pleaded facts sufficient to meet the “severe” test at the motion-to-dismiss stage by alleging “that their supervisor used a racially charged slur in front of them and their non-African-American coworker [and that w]ithin the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred)”); id. (holding in the alternative that the plaintiffs pleaded facts sufficient to meet the “pervasive” test at the motion-to-dismiss stage by alleging “that not only did their supervisor make the derogatory comment, but ‘on several occasions’ their sign-in sheets bore racially discriminatory comments and that they were required to do menial tasks while their white colleagues (who were less experienced) were instructed to perform more complex work”).
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 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.
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 [plaintiff’s race].” This language is broad enough to cover the situation where the plaintiff is the first member of the plaintiff’s race 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 member of the plaintiff’s race. The court may wish to modify the instruction so that it refers specifically to the failure to correct a pre-existing environment.
Quid Pro Quo Claims
These Section 1981 instructions do not include a pattern instruction for quid pro quo claims. This is because quid pro quo claims are almost invariably grounded in sex discrimination, and Section 1981 applies to racial discrimination only. Where a Section 1981 claim is raised on quid pro quo grounds, the court can use Instruction 5.1.3, with the proviso that it must be modified if the supervisor is also being sued for individual liability.
(Last Updated March 2018)
10 Instruction 6.1.3 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 Instruction 6.1.4 should be used instead. See Comment 6.1.4 (discussing Pennsylvania State Police v. Suders, 542 U.S. 129, 150 (2004).
11 In the context of Title VII claims, the Supreme Court has held that “an employee is a ‘supervisor’ for purposes of vicarious liability... 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). For further discussion of Vance, see Comment 5.1.4.