3d Cir. Model Jury Instr. (Civil) 5.1.1

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Last updated March 2026

scope. Other employment actions are included if they “otherwise … discriminate against any 83

individual with respect to his compensation, terms, conditions, or privileges of employment. ” 84

Thus, wage discrimination counts as an adverse action, since it is discrimination with respect to 85

compensation.9 The circumstances under which harassing conduct rises to the level of 86

discrimination in the terms, conditions, or privileges of employment have been spelled out by 87

caselaw,10 and Instructions 5.1.3 through 5.1.5 accordingly guide the jury through the application 88

of the standards that the Supreme Court and Court of Appeals caselaw have set. Likewise, 89

constructive discharge counts as action that affects employment terms, conditions, or privileges,11 90

and Instruction 5.2.2 guides the jury on how to assess whether a constructive discharge has 91

occurred. “[T]he ‘terms, conditions, or privileges of employment’ clearly include benefits that are 92

part of an employment contract. ”12 But, in addition, the term “privileges” encompasses benefits 93

that, though they are not contractually required, are incidents of employment or form part and 94

parcel of the employment relationship.13 95

treatment claims tends to focus on Section 2000e -2(a)(1), whereas Section 2000e-2(a)(2) is often

viewed as targeting practices that have a disparate impact. See, e.g., E.E.O.C. v. Abercrombie &

Fitch Stores, Inc., 575 U.S. 768, 772 (2015) (noting that Sections 2000e-2(a)(1) and (2) are “often

referred to as the ‘disparate treatment’ (or ‘intentional discrimination’) provision and the ‘disparate

impact’ provision”). The discussion in the text focuses on Section 2000e-2(a)(1).

9 See Comment 5.0, discussing Washington Cty. v. Gunther, 452 U.S. 161 (1981).

10 See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“‘The phrase “terms, conditions,

or privileges of employment ” evinces a congressional intent “to strike at the entire spectrum of

disparate treatment of men and women” in employment,’ which includes requiring people to work

in a discriminatorily hostile or abusive environment.” (quoting Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 64 (1986) (quoting City of Los Angeles, Dep’t of Water & Power v. Manhart , 435

U.S. 702, 707 n.13 (1978)))); Vance v. Ball State Univ., 570 U.S. 421, 427 (2013) (“[T]he plaintiff

must show that the work environment was so pervaded by discrimination that the terms and

conditions of employment were altered.”).

11 See, e.g., Pennsylvania State Police v. Suders, 542 U.S. 129, 142-43 (2004).

12 Hishon v. King & Spalding, 467 U.S. 69, 74 (1984); see also id. at 75 (“If the evidence at trial

establishes that the parties contracted to have petitioner considered for partnership, that promise

clearly was a term, condition, or privilege of her employment. Title VII would then bind

respondent to consider petitioner for part nership as the statute provides, i.e., without regard to

petitioner’s sex.”).

13 “Those benefits that comprise the ‘incidents of employment,’ S.Rep. No. 867, 88th Cong., 2d

Sess., 11 (1964), or that form ‘an aspect of the relationship between the employer and employees,’

Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178 … (1971), may not

be afforded in a manner contrary to Title VII. ” Hishon, 467 U.S. at 75 -76 (footnotes omitted).

The Hishon Court also suggested that the question is whether the benefit in question “was part and

parcel of [the relevant type of employee’s] status as an employee” of the employer. Id. at 76.