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[Plaintiff] claims that [he/she] was subjected to harassment by [names] and that this harassment was motivated by [plaintiff’s] age.
[Employer] is liable for the actions of [names] in [plaintiff's] claim of discriminatory 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] was [state plaintiff’s age at the time of the alleged events giving rise to plaintiff’s claim; must have been age 40 or older].
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 person of [plaintiff’s age]’s 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. You can find that 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 age 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: That [defendant] exercised reasonable care to prevent harassment in the workplace on the basis of age, and also exercised reasonable care to promptly correct any harassing behavior that does occur.
Second: That [plaintiff] unreasonably failed to take advantage of any preventive or corrective opportunities provided by [defendant].
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. [Defendant] had established an explicit policy against harassment in the workplace on the basis of age.
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 Caselaw supporting the availability of hostile-work-environment claims under the ADEA is discussed in Comment 8.1.2.
This instruction is substantively identical to Instructions 5.1.5, covering hostile work environment claims with no tangible employment action under Title VII. Like Title VII — and unlike Section 1981 — the ADEA regulates employers only, and not individual employees. Therefore, the instruction is written in terms of employer liability for the acts of its employees.
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). 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," 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).
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).
If the court wishes to provide a more detailed instruction on what constitutes a hostile work environment, such an instruction is provided in 8.2.1.
These ADEA instructions on harassment 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 the ADEA applies to age discrimination only. If an ADEA claim is ever raised on quid pro quo grounds, the court can modify Instruction 5.1.3 for that occasion.
For further commentary on hostile work environment claims, see Instructions 5.1.4 and 5.1.5.
(Last Updated July 2019)
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 University, 133 S. Ct. 2434, 2439 (2013). For further discussion of Vance, see Comment 5.1.5.