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[Plaintiff] claims that [he/she] was subjected to harassment by [names] and that this harassment was motivated by [plaintiff’s] [disability/request for accommodation].
[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] has a “disability” within the meaning of the ADA;
Second: [Plaintiff] is a “qualified individual” within the meaning of the ADA;
Third: [Plaintiff] was subjected to [describe alleged conduct or conditions giving rise to plaintiff's claim] by [names].
Fourth: [names] conduct was not welcomed by [plaintiff].
Fifth: [names] conduct was motivated by the fact that [plaintiff] has a “disability,” as defined by the ADA [or sought an accommodation for that disability].
Sixth: 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 the reaction of a reasonable person with [plaintiff’s] disability to [plaintiff’s] work environment.
Seventh: [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:
Eighth: 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 harassment on grounds of disability [or request for accommodation] 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.]
[I will now provide you with more explicit instructions on the following statutory terms:
1. “Disability.” — Instruction 9.2.1
2. “Qualified” — See Instruction 9.2.2]
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 [defendant’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 a disability [or request for accommodation], 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 disability [or request for accommodation].
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 As discussed in the Comment to Instruction 9.1.4, the Third Circuit has assumed that the ADA provides a cause of action for harassment/hostile work environment, and that such a cause of action (assuming it exists) is to be governed by the same standards applicable to a hostile work environment claim under Title VII. Walton v. Mental Health Ass’n of Southeastern Pa., 168 F.3d 661, 666 (3d Cir. 1999).
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 ADA 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 or constructive discharge, 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.16 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 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. 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)).
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.
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.”
If the court wishes to provide a more detailed instruction on what constitutes a hostile work environment, such an instruction is provided in 9.2.3.
For further commentary on hostile work environment claims, see Instructions 5.1.4 and 5.1.5.
(Last Updated July 2019)
16 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.