G.Sexual Harassment; Hostile Environment (11/99)
NOTE TO THE JUDGE
The following Charge is based extensively on the Supreme Court's decision in Lehmann v. Toys R Us, Inc., 132 N.J. 587 (1993). Not all hostile environment cases will require that this Charge be given in its entirety. Portions not applicable to a given case should be omitted.
This Charge may be used in cases of both supervisory sexual harassment (i.e., when the alleged harasser is a supervisor) and non-supervisory sexual harassment (i.e., when the alleged harasser is a co-worker). However, as explained below, some modifications will be required depending upon whether the alleged harasser is a supervisory or non-supervisory employee.
In cases of both supervisory and non-supervisory sexual harassment, the standards for determining whether the conduct constitutes unlawful sexual harassment are the same. Accordingly, no modifications to Section 3. ("Does the Conduct Constitute Sexual Harassment?") will be required.
However, the standards for imposing liability on the employer for the harassment vary depending upon whether the alleged harasser is a supervisor or a non-supervisor. Thus, Section 4. ("Should Defendant Employer be Held Responsible for the Sexual Harassment?") will need to be tailored appropriately depending upon the identity of the harasser. See footnote 6, infra, for a further discussion of the necessary modifications.
In addition, the Court should note that although this Charge does address the issue of employer liability under the LAD for acts of sexual harassment, it does not address the issue of individual
liability, e.g., the individual liability of the alleged harasser and/or other employees who failed to adequately respond to the alleged harassment. New Jersey courts have not yet considered whether, and under what circumstances, individuals may be held liable under the LAD. Section 12(a) of the LAD (prohibiting discrimination by "employers"), and Section 12(e) of the LAD (making it unlawful to aid or abet a discriminatory act) may provide a basis for imposing individual liability, but there has been no state court ruling on that issue to date. There are, however, federal decisions interpreting the LAD that have addressed the issue, and they may be consulted. See, e.g., Hurley v. Atlantic City Police Department, 174 F.2d 95 (3d Cir. 1999), where the Court held that: (1) individual liability is not authorized against supervisory or non-supervisory employees under Section 12(a); (2) individual liability is authorized against supervisory employees under Section 12(e) based on "deliberate indifference or affirmatively harassing acts;" and (3) individual liability is not authorized against non-supervisory employees under Section 12(e).]
1.Overview of Issues To Be Decided
Plaintiff claims that she was subjected to sexual harassment. Sexual harassment is a form of discrimination based on sex and is prohibited by the New Jersey Law Against Discrimination. To resolve plaintiff's sexual harassment claim, you must decide three issues:
First, you must decide whether the complained-of conduct actually occurred.
Second, if you decide that the complained-of conduct did occur, you must then decide whether that conduct constitutes sexual harassment.
Third, if you decide that the conduct does constitute sexual harassment, you must then decide whether defendant [employer name] should be held responsible for that conduct.
I will now explain each of these three issues to you in more detail.
2.Did the Conduct Occur?
The first issue you must decide is whether any of the complained-of conduct actually occurred. If you find that plaintiff has not proved by a preponderance of the evidence that any of the alleged conduct occurred, then you must return a verdict for defendant(s) on the claim of sexual harassment.
If, on the other hand, you find by a preponderance of the evidence that some or all of the complained-of conduct did occur, then you must move on to the second issue.
3.Does the Conduct Constitute Sexual Harassment?
The second issue you must decide is whether the conduct that you find has occurred constitutes sexual harassment as defined by the law. To prove that the conduct constitutes sexual harassment, plaintiff must prove two elements by a preponderance of the evidence:
First, plaintiff must prove that the conduct occurred because of her sex. Second, plaintiff must prove that the conduct was severe or pervasive enough to make a reasonable woman(1) believe that the conditions of employment were altered and that the working environment was intimidating, hostile or abusive.
I will explain each of these two elements in more detail.
a.Did the Conduct Occur "Because Of" Plaintiff's Sex?
First, plaintiff must prove that the conduct occurred because of her sex. Stated differently, plaintiff must prove that the conduct would not have occurred if she had been a man.
When the harassing conduct is sexual or sexist in nature, the "because of" sex element is automatically satisfied. Thus, for example, if plaintiff alleges that she has been subjected to sexual touchings or comments, or if she alleges that she has been subjected to harassing comments about the lesser abilities, capacities, or the "proper role" of members of her sex, she has established that the harassment occurred "because of" her sex.
Even conduct that is not sexual or sexist in nature can constitute sexual harassment. However, when the conduct is not sexual or sexist in nature, the plaintiff must produce some evidence to show that the conduct occurred "because of" her sex. For example, the plaintiff might show that such harassment was accompanied by harassment that was sexual or sexist in nature. Or, she might show that only women suffered the harassment. All that is required is a showing that it is more likely than not that the harassment occurred because of the plaintiff's sex.(2)
To prove that the conduct occurred because of her sex, the plaintiff does not have to prove that the employer or supervisor intended to harass her or intended to create a hostile working environment. The employee’s or supervisor’s intent is not at issue. The issue is simply whether the conduct occurred because of plaintiff's sex.
If you find that the conduct would have occurred regardless of plaintiff's sex, then there has been no unlawful sexual harassment. For example, if a supervisor is equally crude or vulgar to all employees, regardless of their sex, no basis exists for a sexual harassment claim and you must return a verdict for defendants on the plaintiff's claim of sexual harassment.
If, on the other hand, you find that the conduct did occur because of plaintiff's sex, then you must decide the second element.
b.Was the Conduct Sufficiently Severe Or Pervasive?
The second element plaintiff must prove to establish that the conduct constituted sexual harassment is that the conduct was severe or pervasive enough to make a "reasonable woman" believe that the working conditions were altered and that the working environment was intimidating, hostile or abusive.(3)
When deciding whether plaintiff has proved this element, you should consider the following:
(1) The law does not require that the workplace be free of all vulgarity or sexually-laced speech or conduct. Occasional, isolated and/or trivial remarks or conduct of a sexual nature are generally insufficient to constitute sexual harassment. Rather, only speech or conduct that is sufficiently severe or pervasive to create a hostile or intimidating working environment can constitute sexual harassment.
(2) In determining whether the conduct was severe or pervasive, keep in mind that the conduct does not have to be both severe and pervasive; the conduct need only be severe or pervasive. The conduct can consist of a single severe incident or an accumulation of incidents, although it will be a rare and extreme case in which a single incident will be so severe that it would make the working environment hostile.(4) When the conduct consists of multiple incidents, you should not consider each incident individually, but should consider the totality of the incidents. Numerous incidents that would not be sufficient if considered individually may be sufficient when considered together.
(3) The plaintiff need not personally have been the target of each or any instance of offensive or harassing conduct for you to find that the working environment was sexually hostile. You may consider evidence of offensive or harassing conduct directed toward other workers if plaintiff personally witnessed that conduct.
(4) In deciding whether the conduct in this case is sufficiently severe or pervasive to create a hostile working environment, you must view the conduct from the perspective of a "reasonable woman," not from plaintiff's own subjective perspective. In other words, the issue you must decide is not whether plaintiff personally believed that her working environment was hostile. The issue you must decide is whether a reasonable woman would find the working environment hostile. Thus, if only an overly-sensitive woman would view the conduct as sufficiently severe or pervasive to create a hostile working environment, but a reasonable woman would not, it is not harassing conduct for which the plaintiff can recover. By the same token, even if plaintiff personally did not find the alleged conduct to be severe or pervasive, but a reasonable woman would, it is harassing conduct for which the plaintiff can recover. You must use your own judgment in deciding whether a reasonable woman would consider the working environment hostile.
Finally, it is not necessary that the plaintiff show that she has actually been psychologically harmed by the conduct, or that she has suffered any economic loss as a consequence of the conduct. Those issues may be relevant to the damages plaintiff can recover, but they are not relevant to the issue of whether the conduct constitutes unlawful sexual harassment.(5)
If, after applying these guidelines, you find that plaintiff has not proved by a preponderance of the evidence that the alleged conduct constitutes sexual harassment, then you must return a verdict for the defendants on plaintiff’s claim of sexual harassment.
If, on the other hand, you find that plaintiff has proved that the conduct constitutes sexual harassment, then you must decide the third issue.
4.Should Defendant Employer Be Held Responsible For The Sexual Harassment?
The third issue you must decide is whether defendant [employer name] should be held responsible for [alleged harassers' name(s)] conduct.(6) In other words, you must decide whether [employer name] should have to pay damages because of [alleged harassers' name(s)] conduct.
Although [alleged harassers' name(s)] is an employee of [employer name], the law provides that an employer is not automatically liable for all damages caused by a supervisor who engages in sexual harassment. More specifically, although an employer will always be liable for economic damages, such as wage loss, an employer is not automatically liable for emotional distress damages caused by a supervisor who engages in sexual harassment.
To impose liability on defendant [employer name] for any emotional distress plaintiff has suffered, plaintiff must prove at least one of the following three theories for employer liability by a preponderance of the evidence:
First, plaintiff must prove that upper management employees knew or should have known of the harassment and failed to take effective remedial measures to stop it.
Or second, plaintiff must prove that defendant [employer name] delegated to [alleged harassers' name(s)] the authority to control the working environment and [alleged harassers' name(s)] abused that authority to create a hostile work environment.
Or third, plaintiff must prove that defendant [employer name] was negligent by failing to take reasonable steps to prevent the harassment from occurring.
I will now explain each of these theories in more detail.
a.Failure To Take Remedial Action
As I said, one way defendant [employer name] may be liable for [alleged harassers' name(s)] conduct is if upper management employees knew or should have known about the harassment and failed to take prompt and effective remedial action to stop it. Effective remedial actions are those reasonably calculated to end the harassment. The reasonableness of an employer's response must be judged by its ability to stop harassment by the person who engaged in the harassment.
Thus, in this case, if you find by a preponderance of the evidence that defendant [employer's name] upper management employees knew or should have known about the alleged sexual harassment and failed to take prompt and effective measures to stop that harassment, defendant [employer name] is liable for the sexual harassment.
b.Delegation of Authority
A second way defendant [employer's name] may be liable is if it delegated to [alleged harasser's name] the authority to control the working environment and [alleged harasser's name] abused that authority to create a hostile work environment.
To prove that defendant [employer's name] is liable to plaintiff based on its delegation of authority to [alleged harasser's name], plaintiff must prove each of the following elements by a preponderance of the evidence:
(1)That defendant [employer's name] delegated authority to [alleged harasser's name] to control the situation of which plaintiff complains; and
(2)[alleged harasser's name] exercised that authority; and
(3)[alleged harasser's name] exercise of authority resulted in sexual harassment; and
(4)the authority delegated by defendant [employer name] to [alleged harasser's name] aided [alleged harasser's name] in sexually harassing plaintiff.
If you find that the plaintiff has proved each of these elements, then defendant [employer's name] is liable for the alleged sexual harassment. If any one of these elements is not proved, then defendant [employer's name] cannot be held liable based on its delegation of authority.
c.Negligence
The third possible way defendant [employer's name] may be liable is if plaintiff can prove by a preponderance of the evidence that defendant [employer's name] was negligent by failing to take reasonable measures to prevent the harassment from occurring. This is because an employer has a duty to take reasonable steps to prevent sexual harassment from occurring in the workplace.
To determine whether defendant [employer's name] was negligent, you may consider the following:
*Whether it had in place well-publicized and enforced anti-harassment policies;
*Whether it had effective formal and informal complaint structures;
*Whether it had in place anti-harassment training programs; and
*Whether it had in place sexual harassment monitoring mechanisms.
You may consider the existence of such measures as evidence of due care by the employer, and the lack of such measures as evidence of a lack of due care by the employer. However, the absence of such measures does not automatically constitute negligence, nor does the presence of such measures automatically demonstrate the absence of negligence.
If you find that plaintiff has proved by a preponderance of the evidence any one of these three theories that I have just explained, then you should hold [employer's name] responsible for any alleged emotional distress damages plaintiff suffered. In that case, you will need to determine the amount, if any, of damages to award plaintiff for her alleged emotional distress. However, I will not at this time give you specific instructions on the issue of damages, but rather, will do so later.
If, on the other hand, you find that plaintiff has not proved any one of these three theories by a preponderance of the evidence, then you may not hold [employer's name] responsible for any alleged emotional distress damages plaintiff suffered.
d.Summary of Sexual Harassment Elements
I will now summarize all of this for you. To decide plaintiff’s claim of sexual harassment, you must decide three issues:
First, you must determine whether plaintiff has proved by a preponderance of the evidence that the alleged conduct actually occurred.
Second, if you find that some or all of the alleged conduct occurred, you must decide whether plaintiff has proved by a preponderance of the evidence that the conduct constitutes sexual harassment. This requires that you decide (1) whether the conduct occurred because of plaintiff's sex, and if so, (2) whether the conduct was severe or pervasive enough to make a reasonable woman believe that the conditions of employment were altered and the working environment was intimidating, hostile or abusive.
And, third, if you find that sexual harassment occurred, you must decide whether plaintiff has proved by a preponderance of the evidence that defendant [employer's name] should be held liable for any alleged emotional distress damages plaintiff may have suffered. This requires that you consider the three theories I just explained: (1) whether the employer knew or should have known about the harassment and failed to take prompt and adequate remedial action; (2) whether the supervisor abused authority delegated to him by the employer; or (3) whether the employer was negligent by failing to prevent the harassment. The employer may be held responsible under any one of these three tests.
(1)When the plaintiff is a woman, the reasonable woman standard is used. When the plaintiff is a man, the reasonable man standard is used. Lehmann, 132 N.J. at 604.
(2)When the plaintiff is a man, and when the harassing conduct is not sexual or sexist in nature, in order to prove that the conduct occurred "because of" his sex, the plaintiff must make the additional showing that the defendant "is the rare employer who discriminates against the historically privileged group." Lehmann, 132 N.J. at 606. Thus, in such cases, the jury should be charged that to satisfy the "because of" sex requirement, the plaintiff must prove the defendant is the rare employer who discriminates against men.
(3)Under Title VII, the plaintiff must prove that the conduct was "unwelcome." Lehmann did not include "unwelcomeness" as an element of plaintiff's case, but did refer to unwelcomeness at page 602. Thus, under the LAD, it is unclear whether "unwelcomeness" is an element to be proved by plaintiff or whether "welcomeness" is an affirmative defense to be proved by defendant.
(4)See Lehmann, 132 N.J. at 606-607 ("Although it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable woman, make the working environment hostile, such a case is certainly possible"); see also Taylor v. Metzger, 152 N.J. 490, 500 (1998) (Court reiterates that it will be a rare and extreme case in which a single incident is sufficient to be actionable, but finds that single racial remark at issue could be sufficiently severe to be actionable).
(5)More or less detailed instructions regarding the "severe or pervasive" requirement are possible, depending upon the facts of each case. In Baliko v. Int'l Union of Operating Engineers, 322 N.J. Super. 261, 275 (App. Div. 1999), the Court state: "In determining whether comments or gestures are severe or pervasive, the trial judge must instruct the jury to consider: (1) the total physical environment of the plaintiffs' work area; (2) the degree and type of obscenity that filled the environment of the workplace, both before and after the plaintiffs were assigned to the specific workplace; (3) the nature of the unwelcome sexual words or sexual gestures; (4) the frequency of the offensive encounters; (5) the severity of the offensive encounters; (6) whether the unwelcome comments or gestures were physically threatening; (7) whether the offensive encounters unreasonably interfered with any plaintiff's work performance, but subject to the admonition that each plaintiff is not obliged to prove that the unwelcome comments or gestures actually did interfere with each plaintiff's work performance; and (8) whether the offensive encounters had an effec on any plaintiff's psychological well-being, but also subject to an admonition that each plaintiff need not demonstrate specific psychological harm."
(6)As set forth in the Note to the Court at the beginning of the Charge, the standards for imposing liability on the employer vary depending upon whether the alleged harasser is a supervisory or non-supervisory employee. This footnote will elaborate on the different standards.
In Lehmann, the Court addressed in detail the circumstances under which an employer can be held liable for sexual harassment by a supervisor. In all cases of supervisory sexual harassment, an employer is strictly liable for equitable damages, such as back pay and front pay. 132 N.J. at 619. Employer liability for compensatory damages, such as emotional distress, is determined under common-law agency principles. Id. at 619-620. Moreover, different common-law agency principles apply depending upon whether the supervisor was acting within or without the scope of his employment. If the supervisor acts within the scope of his employment, the employer is strictly liable for compensatory damages. 132 N.J. at 619-20. If the supervisor acts outside the scope of his employment (described by Lehmann as "the more common situation"), employer liability is determined according to the agency principles set forth in Section 219(2) of the Restatement (Second) of Agency. This Charge assumes that the supervisor was acting outside the scope of his employment, and thus, incorporates the Section 219(2) principles.
Lehmann did not address the issue of employer liability for acts of sexual harassment by a non-supervisor. However, other decisions since Lehmann have held that an employer can only be held liable for co-worker sexual harassment, or sexual harassment by a third party (such as an independent contractor), when the employer knew or should have known about the alleged harassment and failed to take prompt and adequate remedial action. See Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252 (App. Div. 1996). Thus, in such cases, only the "Failure to Take Remedial Action" portion of the Charge (Section D2) should be charged.
Model Civil Jury Charges
