3d Cir. Model Jury Instr. (Civil) 5.1.4

Action

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Last updated March 2026

The Court of Appeals has described the standards for a hostile work environment claim, as 109

applied to sex discrimination, in Weston v. Pennsylvania, 251 F.3d 420, 425-426 (3d Cir. 2001): 110

Hostile work environment harassment occurs when unwelcome sexual 111

conduct unreasonably interferes with a person ’s performance or creates an 112

intimidating, hostile, or offensive working environment . . . . In order to be 113

actionable, the harassment must be so severe or pervasive that it alters the 114

conditions of the victim’s employment and creates an abusive environment. Spain 115

v. Gallegos, 26 F.3d 439, 446-47 (3d Cir.1994). 116

To judge whether the environment was hostile under this standard, one must “look[] at all the 117

circumstances, including the frequency of the discriminatory conduct; its severity; whether it is 118

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 119

interferes with an employee’s work performance.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 120

215 (3d Cir. 2017) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citation 121

and internal quotation marks omitted)). 122

Title VII protects only against harassment based on discrimination against a protected 123

class. It is not “a general civility code for the American workplace.” Oncale v. Sundowner Offshore 124

Servs., Inc., 523 U.S. 75, 80 -81 (1998). “Many may suffer severe harassment at work, but if the 125

reason for that harassment is one that is not prescribed by Title VII, it follows that Title VII 126

provides no relief.” Jensen v. Potter, 435 F.3d 444, 447 (3d Cir. 2006). 127

Severe or Pervasive Activity 128

The terms “severe or pervasive ” set forth in the instruction are in accord with Supreme 129

Court case law and provide for alternative possibilities for finding harassment. See Jensen v. 130

Potter, 435 F.3d 444, 447, n.3 (3d Cir. 2006) (“The disjunctive phrasing means that ‘severity’ and 131

‘pervasiveness’ are alternative possibilities: some harassment may be severe enough to 132

contaminate an environment even if not pervasive; other, less objectionable, conduct will 133

contaminate the workplace only if it is pervasive. ”) (quoting 2 C. Sullivan et. al., Employment 134

Discrimination Law and Practice 455 (3d ed. 2002). See, e.g., Moody v. Atl. City Bd. of Educ ., 135

870 F.3d 206 , 215 (3d Cir. 2017) (finding evidence that met the “severe” test where plaintiff 136

alleged that her supervisor “expected [her] to give sexual favors in exchange for work, touched 137

[her] against her wishes, made sexual comments to her, and exposed himself to her ”). See also 138

Starnes v. Butler Cty. Court of Common Pleas , 971 F.3d 416, 427 -29 (3d Cir. 2020) (in a §1983 139

suit, the court found the severe or per vasive element of a hostile work environment claim 140

sufficiently stated by allegations that plaintiff ’s supervisor “coerced her into engaging in sexual 141

relations, shared pornography with her, asked her to film herself performing sexual acts, engaged 142

in a pattern of flirtatious behavior, scolded her for speaking with male colleagues, assigned her 143

duties forcing her to be close to him, and treated her differently than her male colleagues .”). Cf. 144