Civil Model Jury Charge
2.25 Hostile WORK Environment Claims under the New
Jersey law AgaiNSt Discrimination (Sexual
AND OTHER Harassment) (Approved 11/1999; Revised 2/2013)
NOTE TO
JUDGE
The following charge is based on the
Supreme Court's decision in Lehmann v. Toys R Us, Inc., 132 N.J.
587 (1993), regarding the definition of a hostile work environment under the
New Jersey Law Against Discrimination (“LAD”) and the standard for employer
liability for supervisory harassment, and the decisions in Blakey v. Continental Airlines, Inc., 164 N.J. 38 (2000), and Cerdeira v. Martindale-Hubbell, 402 N.J. Super. 486 (App. Div. 2008),
regarding employer liability for co-worker harassment. 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
harassment (i.e., when the alleged harasser is a supervisor) and
non-supervisory 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 harassment, the standards for determining whether the conduct
constitutes unlawful harassment are the same.
Accordingly, no modifications to Section 3 ("Does the Conduct
Constitute Unlawful 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 Unlawful
Harassment?") will need to be tailored appropriately depending upon the
identity of the harasser as indicated in bracketed comments to the court in
that section.
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. Individual liability under the LAD is
addressed in Model Civil Jury Charge 2.22A.]
1. Overview of Issues to Be Decided
Plaintiff
claims that [s]he was subjected to harassment on the basis of her/his [insert legally protected characteristic]. Such harassment is a form of discrimination
based on [insert legally protected
characteristic] and is prohibited by the New Jersey Law Against
Discrimination. To resolve plaintiff's 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 harassment on the basis of [insert legally protected characteristic].
Third,
if you decide that the conduct does constitute harassment on the basis
of [insert legally protected
characteristic], 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 harassment on the basis of [insert legally protected characteristic].
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 Unlawful
Harassment?
The
second issue you must decide is whether the conduct that you find has occurred
constitutes harassment on the basis of the plaintiff’s [insert legally protected characteristic]. To prove that the
conduct constitutes harassment on the basis of [insert legally protected characteristic], plaintiff must prove two
elements by a preponderance of the evidence:
First,
plaintiff must prove that the conduct occurred because of her/his [insert legally protected characteristic].
Second,
plaintiff must prove that the conduct was severe or pervasive enough to make a
reasonable [person of the same legally
protected class][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.
First,
plaintiff must prove that the conduct occurred because of her/his [insert legally protected characteristic]. Stated differently, plaintiff must prove that
the conduct would not have occurred if her/his [insert legally protected characteristic] has been different.
When
the harassing conduct directly refers to the plaintiff’s [insert legally protected characteristic], the "because
of" element is automatically satisfied.
Thus, for example, if plaintiff alleges that she has been subjected to
harassing comments about the lesser abilities of members of her/his [insert legally protected characteristic],
[s]he has established that the harassment occurred “because of” her/ his [insert legally protected characteristic].
Even
conduct that does not directly refer to the plaintiff’s [insert legally protected characteristic] can constitute harassment
on the basis of [insert legally protected
characteristic]. However, when the
conduct does not directly refer to the plaintiff’s [insert legally protected characteristic], the plaintiff must
produce some evidence to show that the conduct occurred "because of"
her/his [insert legally protected
characteristic]. For example, the
plaintiff might show that only employees of the same [insert legally protected characteristic] 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 [insert legally protected
characteristic].[2]
The
plaintiff does not have to prove that the employer or the alleged harasser
intended to harass her/him or intended to create a hostile working
environment. The employer’s or alleged
harasser’s intent is not at issue. The issue is simply whether the conduct
occurred because of plaintiff's [insert
legally protected characteristic].
If
you find that the conduct would have occurred regardless of plaintiff's [insert legally protected characteristic],
then there has been no unlawful harassment. In other words, if the alleged
harasser treats all employees equally poorly, regardless of their [insert legally protected characteristic],
you must return a verdict for defendants on the plaintiff's claim of harassment
on the basis of [insert legally protected
characteristic].
If,
on the other hand, you find that the conduct did occur because of plaintiff's [insert legally protected characteristic],
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
unlawful harassment is that the conduct was severe or pervasive enough to make
a reasonable [insert legally protected
class to which plaintiff belongs, such as “woman,” “African-American,” or
“older person”] believe that the working conditions were altered and that
the working environment was intimidating, hostile or abusive.
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 are generally insufficient to constitute unlawful harassment. Rather, only speech or conduct that is
sufficiently severe or pervasive to create a hostile or intimidating working
environment can constitute unlawful 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.[3] 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 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 [insert legally protected class to which
plaintiff belongs, such as “woman,” “African-American,” or “older person”]
, not from plaintiff's own subjective perspective. In other words, the issue you must decide is not
whether plaintiff personally believed that her/his working environment
was hostile. The issue you must decide
is whether a reasonable [insert
legally protected class to which plaintiff belongs, such as “woman,”
“African-American,” or “older person”] would find the working environment
hostile. Thus, if only an
overly-sensitive [insert legally
protected class to which plaintiff belongs, such as “woman,”
“African-American,” or “older person”] would view the conduct as
sufficiently severe or pervasive to create a hostile working environment, but a
reasonable [insert legally protected
class to which plaintiff belongs, such as “woman,” “African-American,” or
“older person”] 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 [insert
legally protected class to which plaintiff belongs, such as “woman,”
“African-American,” or “older person”] would, it is harassing conduct for
which the plaintiff can recover. You
must use your own judgment in deciding whether a reasonable [insert legally protected class to which
plaintiff belongs, such as “woman,” “African-American,” or “older person”]
would consider the working environment hostile.
Finally,
it is not necessary that the plaintiff show that [s]he 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.[4]
If,
after applying these guidelines, you find that plaintiff has not proved by a
preponderance of the evidence that the alleged conduct constitutes harassment
on the basis of [insert legally protected
characteristic], then you must return a verdict for the defendants on
plaintiff’s claim of unlawful harassment.
If,
on the other hand, you find that plaintiff has proved that the conduct
constitutes harassment on the basis of [insert
legally protected characteristic], then you must decide the third issue.
4.
Should
Defendant Employer be Held Responsible for the Unlawful Harassment?
The third issue you must decide is
whether defendant [employer name] should be held responsible for the
harassing conduct of [name(s) of alleged harasser(s)].[5] In other words, you must decide whether [employer
name] should have to pay damages because of the harassing conduct of [name(s)
of alleged harasser(s)].
Although
[alleged harasser’s name] is an employee of [employer name], the law provides that an employer is not
automatically liable for all damages caused by an employee who engages in
unlawful 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 an employee who engages in unlawful harassment.
To
impose liability on defendant [employer
name] for any emotional distress plaintiff has suffered, plaintiff must
prove at least one of the following theories for employer liability by a
preponderance of the evidence:
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First, plaintiff must prove that the employer knew or should have known of the harassment and failed to take effective remedial measures to stop it.
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Or second, plaintiff must prove that defendant [employer name] delegated to [name(s) of alleged harassing supervisor(s)] the authority to control the working environment and [name(s) of alleged harassing supervisor(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.
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a. Failure to Take Remedial Action
As
I said, one way defendant [employer name] may be liable for the harassment
is if the employer 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] knew or should have known about the alleged sexual harassment and
failed to take prompt and effective measures reasonably designed to stop that
harassment, defendant [employer name] is liable for the sexual harassment.
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b. Delegation of Authority
A
second way defendant [employer's name] may be liable is if it delegated
to [name(s) of alleged harassing supervisor(s)] the authority to control
the working environment and [name(s) of alleged harassing supervisor(s)]
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 [name(s) of alleged harassing supervisor(s)],
plaintiff must prove each of the following elements by a preponderance of the
evidence:
(1) That defendant [employer's name]
delegated authority to [name(s) of alleged harassing supervisor(s)] to
control the situation of which plaintiff complains; and
(2) [name(s) of alleged harassing
supervisor(s)] exercised that authority; and
(3) [name(s) of alleged harassing
supervisor(s)] exercise of authority resulted in unlawful harassment; and
(4)
the
authority delegated by defendant [employer name] to name(s) of
alleged harassing supervisor(s)] aided [name(s) of alleged harassing
supervisor(s)] in harassing plaintiff.
If you find that the plaintiff has proved each of these
elements, then defendant [employer's name] is liable for the alleged
unlawful 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.
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c. Negligence
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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 [,and if so, the absence of such measures was the proximate cause of the harm plaintiff claims she suffered].
This
is because an employer has a duty to take reasonable steps to prevent unlawful
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 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
existence 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 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
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 Unlawful Harassment Elements
I
will now summarize all of this for you. To decide plaintiff’s claim of
harassment on the basis of [insert
legally protected characteristic], 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 harassment on the basis of [insert legally protected characteristic]. This requires that you decide (1) whether the
conduct occurred because of plaintiff's [insert
legally protected characteristic], and if so, (2) whether the conduct was
severe or pervasive enough to make a reasonable [insert legally protected class to which plaintiff belongs, such as
“woman,” “African-American,” or “older person”] believe that the conditions
of employment were altered and the working environment was intimidating,
hostile or abusive.
And,
third, if you find that unlawful 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 theories I just explained: (1) whether the
employer knew or should have known about the
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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 ma
[1]
The standard is whether a person of the same legally protected class
would find the work environment to be hostile.
See, e.g., Lehmann v. Toys ‘R’ Us,
Inc., 132 N.J. 587, 603-04 (1993)
(holding that when plaintiff in sexual harassment case is female, reasonable
woman standard must be used); Cutler v.
Dorn, 196 N.J. 419, 430 (holding
that “[a]lthough Lehmann involved
sexual harassment in the workplace, Lehmann’s
test applies generally to hostile work environment claims” and that “where, as
here, a hostile work environment claim involves allegations of harassment based
on religious faith or ancestry, the inquiry is whether a reasonable person of
plaintiff’s religion or ancestry would consider the workplace acts and comments
… sufficiently severe or pervasive to alter the conditions of employment and
create a hostile working environment”).
[2]
When the plaintiff is not a member of a historically disadvantaged
group, the plaintiff “must make the additional showing that the defendant
employer is the rare employer who discriminates against the
historically-privileged group." Lehmann,
supra, 132 N.J. at
605-06. Thus, in such cases, the jury
should be charged that the plaintiff must prove the defendant is the rare
employer who discriminates against the historically privileged group to which
the plaintiff belongs.
[3]
See Lehmann, supra, 132 N.J. at
606-607 (holding that "[a]lthough 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"); Taylor v. Metzger, 152 N.J. 490, 500
(1998) (reiterating that it will be a rare and extreme case in which a single
incident is sufficient to be actionable, but finding that single racial remark
at issue could be sufficiently severe to be actionable).
[4]
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 stated: "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 effect on any plaintiff's psychological well-being, but also subject to an
admonition that each plaintiff need not demonstrate specific psychological
harm."
[5]
As set forth in the Note to the Judge 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.
Ibid. 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 be held liable for co-worker harassment when the
employer knew or should have known about the alleged harassment and failed to
take prompt and adequate remedial action and where the employer’s failure to
take effective preventive measures caused the harassment to occur. See,
e.g., Blakey v. Continental Airlines, Inc., 164 N.J. 38, 62 (2000) (holding that “employers do have a duty to take
effective measures to stop co-employee harassment when the employer knows or
has reason to know that such harassment is … taking place”); Cerdeira v. Martindale-Hubbell, 402 N.J.
Super. 486, 493-94 (App. Div. 2008) (holding that employer can be held liable
for co-worker harassment if employer did not have effective anti-harassment
policy and complaint mechanism and failure to have effective policy and
complaint mechanism caused harm to plaintiff).
Thus, only the "Failure to Take
Remedial Action" and “Negligence” portion of this charge below (Sections
4a and 4c) should be charged in cases involving employer liability for
co-worker harassment.
