3d Cir. Model Jury Instr. (Civil) 5.1.5

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Last updated March 2026

O’Brien, 57 F.4th at 121-22 (citations omitted). The model instructions look to this paragraph to 120

frame the evidence that may be relevant to the proxy decision in terms of institutional structure, 121

day-to-day operations, and other evidence. 122

If proxy liability is not established, an employer may still be liable for supervisor 123

harassment even when no tangible employment action is taken. Such liability arises from the 124

harassing actions of a supervisor unless the employer establishes an affirmative defense. To prevail 125

on the basis of the defense, the employer must prove that “(a) [it] exercised reasonable care to 126

prevent and correct promptly any sexually harassing behavior, ”30 and that (b) the employee 127

“unreasonably failed to take advantage of any preventive or corrective opportunities provided by 128

the employer or to avoid harm otherwise.”31 Ellerth, 524 U.S. at 751 (1998). 129

Besides the affirmative defense provided by Ellerth, the absence of a tangible employment 130

action also justifies requiring the plaintiff to prove a further element, in order to protect the 131

30 Compare Jones v. Southeastern Pa. Transp. Auth. , 796 F.3d 323, 329 (3d Cir. 2015) (holding

that the employer exercised reasonable care where it “took several steps in response to [the

plaintiff’s] allegations of harassment [by her supervisor]: it conducted an investigation, made

findings, developed a ‘plan of action,’ required [the supervisor] to attend a counseling session, and

gave him a demerit on his evaluation ”); id. (stating that “[a]lthough it appears [the supervisor]

never received training on [the employer’s] sexual harassment policy until after [the plaintiff]

complained, [the plaintiff] identifies no authority showing that this precludes [the employer] from

asserting the Faragher-Ellerth defense”), with Minarsky v. Susquehanna Cty., 895 F.3d 303, 312

(3d Cir. 2018) (finding a jury question that precluded summary judgment on the first element of

the Faragher-Ellerth defense where – though the County had provided plaintiff with its anti -

harassment policy, had twice reprimanded her supervisor for conduct toward others, and ultimately

fired the supervisor – there was evidence that “County officials were faced with indicators that

[the supervisor’s] behavior formed a pattern of conduct, as opposed to mere stray incidents, yet

they seemingly turned a blind eye toward [his] harassment”).

31 Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 329 (3d Cir. 2015) (finding an

unreasonable failure by the employee where “[d]espite 10 years of alleged harassment [by her

supervisor], … she never made a complaint until [the supervisor] accused her of timesheet fraud,

despite the fact that she knew that the [employer’s] EEO Office fielded such complaints ”), with

Minarsky v. Susquehanna Cty., 895 F.3d 303, 314 (3d Cir. 2018) (“If a plaintiff’s genuinely held,

subjective belief of potential retaliation from reporting her harassment appears to be well-founded,

and a jury could find that this belief is objectively reasonable, the trial court should not find that

the defendant has p roven the second Faragher-Ellerth element as a matter of law. Instead, the

court should leave the issue for the jury to determine at trial. ”); id. at 315 n.16 ( “The trial judge

can instruct the jury that a plaintiff’s fears must be specific, not generalized, in order to defeat the

Faragher-Ellerth defense.”).