3d Cir. Model Jury Instr. (Civil) 6.1.3

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Last updated March 2026

claims, and we apply the same standards as in a similar Title VII claim.”). 29

However, while the standards of liability are identical, there is a major difference in the 30

coverage of the two provisions. Under Title VII, only employers can be liable for discrimination 31

in employment. In contrast, Section 1981 prohibits individuals, including other employees, from 32

racial discrimination against an employee. See Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 33

2001) (“Although claims against individual supervisors are not permitted under Title VII, this 34

court has found individual liability under § 1981 when [the defendants] intentionally cause an 35

infringement of rights protected by Section 1981, regardless of whether the [employer] may also 36

be held liable .”); Al-Khazraji v. Saint Francis College , 784 F.2d 505, 518 (3d Cir. 1986) 37

(“employees of a corporation may become personally liable when they intentionally cause an 38

infringement of rights protected by Section 1981, regardless of whether the corporation may also 39

be held liable”). Accordingly, the instruction modifies the instruction used for Title VII hostile 40

work environment claims, to specify that individual employees can be liable for acts of racial 41

harassment. See Instruction 5.1.4. 42

If the court wishes to provide a more detailed instruction on what constitutes a hostile work 43

environment, such an instruction is provided in 6.2.2. 44

It should be noted that constructive discharge is the adverse employment action that is most 45

common with claims of hostile work environment. 5 Instruction 6.2.3 provides an instruction 46

setting forth the relevant factors for a finding of constructive discharge. That instruction can be 47

used to amplify the term “adverse employment action” in appropriate cases. 48

The instruction ’s definition of “tangible employment action ” is taken from Burlington 49

Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). 50

Liability for Non-Supervisors 51

Respondeat superior liability for discriminatory harassment by non -supervisory 52

5 Instruction 6.1.3 is appropriate for use in cases where the evidence supports a claim that the

constructive discharge resulted from an official act or acts. However, where the constructive

discharge did not result from an official act, an affirmative de fense is available to the employer

and Instruction 6.1.4 should be used instead. See Comment 6.1.4 (discussing Pennsylvania State

Police v. Suders, 542 U.S. 129, 150 (2004).