10.6 CIVIL RIGHTS—TITLE VII—HOSTILE WORK ENVIRONMENT CAUSED BY SUPERVISOR—CLAIM BASED ON VICARIOUS LIABILITY—TANGIBLE EMPLOYMENT ACTION—AFFIRMATIVE DEFENSE

An employer may be liable when an employee's supervisor creates a [racially] [sexually] [other Title VII protected characteristic] hostile work environment for that employee. A "supervisor" is someone who is empowered by the employer to take tangible employment actions regarding the employee, such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, or significantly changing benefits

The plaintiff claims that [he] [she] was subjected to a [racially] [sexually] [other Title VII protected characteristic] hostile work environment by _____________, and that _____________ was [his] [her] supervisor empowered by _____________ to take tangible employment actions against the plaintiff.

The defendant denies the plaintiff's claim. The plaintiff must prove [his] [her] claim by a preponderance of the evidence.

[If Ellerth/Faragher affirmative defense applies, add the following:]

In addition to denying the plaintiff's claim, the defendant has asserted an affirmative defense. Before you consider this affirmative defense, you must first decide whether the plaintiff has proved by a preponderance of the evidence that [he] [she] suffered a tangible employment action as a result of harassment by the supervisor.

If you find that the plaintiff has proved that [he] [she] suffered a tangible employment action as a result of harassment by the supervisor, you must not consider the affirmative defense.

If the plaintiff has not proved that [he] [she] suffered a tangible employment action, then you must decide whether the defendant has proved by a preponderance of the evidence each of the following elements:

1.	the defendant exercised reasonable care to prevent and promptly correct the [racially] [sexually] [other Title VII protected characteristic] harassing behavior, and

2.	the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or unreasonably failed to otherwise avoid harm.

If the defendant proves these elements, the plaintiff is not entitled to prevail on this claim.

Comment

See Introductory Comment to this chapter. This instruction should be given in conjunction with Instruction 10.5 (Hostile Work Environment—Harassment Because of Protected Characteristics—Elements) and, if applicable, Instruction 10.12 (Tangible Employment Action Defined).

When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.

This instruction is based on Vance v. Ball State University, 133 S. Ct. 2434 (2013), Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998), Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998), and Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir.2001).

This instruction addresses harassment by a plaintiff's supervisor. Use the first two paragraphs if no Ellerth/Faragher affirmative defense is applicable. Use the entire instruction if an Ellerth/Faragher defense is to be considered by the jury.

When harassment is by the plaintiff's supervisor, an employer is vicariously liable, subject to a potential affirmative defense. Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). For vicarious liability to attach the supervisor must be empowered by the employer "to take tangible employment actions against the [plaintiff], i.e., to effect a 'significant change

in employment status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.'" Id. at 2443

(quoting Ellerth, 524 U.S. at 761); see also Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 698 (9th Cir.2017) (finding employee was not a supervisor, although he "had the authority to direct the work of other [employees] and tell them which tasks to perform," because he "did not have hiring, firing, or disciplinary authority").

Id. An employee who contends that he or she submitted to a supervisor's threat to condition continued employment on participation in unwanted sexual activity alleges a tangible employment action, which, if proved, deprives the employer of an Ellerth/Faragher defense. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1173 (9th Cir.2003) (affirming summary judgment for the employer due to insufficient evidence of any such condition imposed by plaintiff's supervisor). See Penn. State Police v. Suders, 542 U.S. 129, 137-38 (2004), for discussion of tangible employment action.

The adequacy of an employer's anti-harassment policy may depend on the scope of its dissemination and the relationship between the person designated to receive employee complaints and the alleged harasser. See, e.g., Faragher, 524 U.S. at 808 (holding policy ineffective when (1) the policy was not widely disseminated to all branches of the municipal employer and (2) the policy did not include any mechanism by which an employee could bypass the harassing supervisor when lodging a complaint).

"While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

Although proof that the plaintiff failed to use reasonable care in avoiding harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the defendant, a demonstration of such failure will normally suffice to satisfy this prong. See Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.

If the harasser is not the plaintiff's supervisor, an employer's liability can only be based on negligence. The Ellerth/Faragher affirmative defense is not applicable if the claim is based on negligence. See Instruction 10.7 (Civil Rights—Title VII—Hostile Work Environment Caused by Non-Immediate Supervisor or by Co-Worker—Claim Based on Negligence).