• The degree and type of language and insult that filled the environment before and after [plaintiff] arrived.
• The reasonable expectations of [plaintiff] upon entering the environment.
• The frequency of the offensive conduct.
• The severity of the conduct.
• The effect of the working environment on [plaintiff’s] mental and emotional well-being.
• Whether the conduct was unwelcome, that is, conduct [plaintiff] regarded as unwanted or unpleasant.
• Whether the conduct was pervasive.
• Whether the conduct was directed toward [plaintiff].
• Whether the conduct was physically threatening or humiliating.
• Whether the conduct was merely a tasteless remark.
• Whether the conduct unreasonably interfered with [plaintiff’s] work performance.
It is not enough that the work environment was generally harsh, unfriendly, unpleasant, crude or vulgar to all employees. In order to find a hostile work environment, you must find that [plaintiff] was harassed because of [plaintiff’s membership in a protected class]. The harassing conduct may, but need not be [sexual/racial, etc.] in nature. Rather, its defining characteristic is that the harassment complained of is linked to the victim's [protected status]. The key question is whether [plaintiff], as a [member of protected class], was subjected to harsh employment conditions to which [those outside the protected class] were not.
It is important to understand that, in determining whether a hostile work environment existed at the [employer’s workplace] you must consider the evidence from the perspective of a reasonable [member of protected class] in the same position. That is, you must determine whether a reasonable [member of protected class] would have been offended or harmed by the conduct in question. You must evaluate the total circumstances and determine whether the alleged harassing behavior could be objectively classified as the kind of behavior that would seriously affect the psychological or emotional well-being of a reasonable [member of protected class]. The reasonable [member of protected class] is simply one of normal sensitivity and emotional make-up.
COMMENT
This instruction can be used to provide the jury more guidance for determining whether a hostile work environment exists in a claim for harassment under Title VII. See Instructions 5.1.4 and 5.1.5 for instructions on harassment claims.The Court of Appeals has set out the elements of a hostile work environment claim as follows:
2) the discrimination was severe or pervasive,
3) the discrimination detrimentally affected the plaintiff,
4) the discrimination would detrimentally affect a reasonable person in like circumstances, and
5) the existence of respondeat superior liability.
Instruction 5.2.1 is similar to the instruction approved (with respect to claims under the New Jersey Law Against Discrimination) in Hurley v. Atlantic City Police Dept., 174 F.3d 95, 115-17 (3d Cir. 1999).
The Supreme Court in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.75, 80 (1998), noted that an employer is not liable under Title VII for a workplace environment that is harsh for all employees; generalized harassment is not prohibited by Title VII. See also Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006) (“Many may suffer severe harassment at work, but if the reason for that harassment is one that is not prescribed by Title VII, it follows that Title VII provides no relief.”)
The pattern instruction follows Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998), in which the Court stated that “isolated incidents (unless extremely serious) will not amount to discriminatory changes of the terms and conditions of employment.” Compare Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (finding evidence that met the “severe” test where plaintiff alleged that her supervisor “expected [her] to give sexual favors in exchange for work, touched [her] against her wishes, made sexual comments to her, and exposed himself to her”). See also Doe by & through Doe v. Boyertown Area School District, 897 F.3d 518, 521, 534-35 (3d Cir. 2018) (finding Title VII precedents persuasive in applying Title IX of the Education Amendments of 1972 and holding that school district’s policy “allowing transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities” did not create a hostile environment for cisgender students).
