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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.
[For use when the alleged harassment is by non-supervisory employees:
However, as to [employer], because [names of 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 and failed to take prompt and effective 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 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.]
[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(s)] 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.
With respect to [employer] you must find for [employer] if you find that [employer] has proved both of the following elements by a preponderance of the evidence:
First: That [employer] exercised reasonable care to prevent racial harassment in the workplace, and also exercised reasonable care to promptly correct the harassing behavior that does occur.
Second: That [plaintiff] unreasonably failed to take advantage of any preventive or corrective opportunities provided by [employer].
Proof of the following facts will be enough to establish the first element that I just referred to, concerning prevention and correction of harassment:
1. [Employer] had established an explicit policy against harassment in the workplace on the basis of race.
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 [employer] will ordinarily be enough to establish that [plaintiff] unreasonably failed to take advantage of a corrective opportunity.
The defense of having an effective procedure for handling racial discrimination complaints is available to the employer only. It has nothing to do with the individual liability of employees for acts of racial discrimination.
COMMENT As discussed in the Comment to 6.1.3, the Third Circuit as well as other courts have held that the standards for a hostile work environment claim are identical under Title VII and Section 1981. However, as also discussed in that Comment, Section 1981 prohibits individuals, including employees, from engaging in acts of racial discrimination. Therefore this instruction modifies the instruction used for Title VII hostile work environment claims, to specify that individual employees can be liable for acts of racial discrimination in creating a hostile work environment. See Instructions 5.1.5.
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.
This instruction is to be used in racial 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). 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 [discriminatory] harassing behavior," 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." Ellerth, 524 U.S. at 751 (1998). See Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001) (holding that the Faragher/Ellerth defense applies to Section 1981 actions in the same manner as in Title VII actions).
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.12 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). See also Comment 6.1.3 (discussing Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999), and Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009)).
In Pennsylvania State Police v. Suders, 542 U.S. 129, 138-41 (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.”
(Last Updated March 2018)
12 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 5.1.5.