3d Cir. Model Jury Instr. (Civil) 6.1.4

Action

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Last updated March 2026

environment. See Instruction 5.1.5. 88

If the court wishes to provide a more detailed instruction on what constitutes a hostile work 89

environment, such an instruction is provided in 6.2.2. 90

This instruction is to be used in racial harassment cases where the plaintiff did not suffer 91

any “tangible” employment action such as discharge or demotion, but rather suffered “intangible” 92

harm flowing from harassment that is “sufficiently severe or pervasive to create a hostile work 93

environment.” Faragher v. Boca Raton, 524 U.S. 775, 808 (1998). In Faragher and in Burlington 94

Industries, Inc. v. Ellerth , 524 U.S. 742 (1998), the Court held that an employer is strictly liable 95

for supervisor harassment that “culminates in a tangible employment action, such as discharge, 96

demotion, or undesirable reassignment.” Ellerth, 524 U.S. at 765. But when no such tangible action 97

is taken, the employer may still be liable for harassment by supervisors. Such liability arises in two 98

situations. The first is when the supervisor in question is highly enough placed within the 99

institutional employer to be its “proxy” or “alter ego.” The second is where the employer fails to 100

establish an affirmative defense to the presumptive liability that arises from supervisory 101

harassment even when there is no tangible employment action. 102

In O’Brien v. Middle E. Forum, 57 F.4th 110 (3d Cir. 2023), the Court of Appeals “now 103

join[s] our sister Circuit Courts of Appeals and hold[s] that the Faragher/Ellerth defense is 104

unavailable when the alleged harasser is the employer’s proxy or alter ego.” Id. at 120. The opinion 105

used the two terms interchangeably, but the model instruction uses only “proxy” for the sake of 106

simplicity. As for what suffices to satisfy this standard, the rationale for liability is that the 107

institutional employer is itself acting when the harassing conduct is by a proxy or alter ego. Thus, 108

while “merely serving as a supervisor with some amount of control over a subordinate does not 109

establish proxy status, ” such status can be found “where “an official. . . [is] high enough in the 110

management hierarchy that his actions ‘speak’ for the employer. ” O’Brien cautioned that “only 111

individuals with exceptional authority and control within an organization” can meet this standard. 112

57 F.4th at 121 (quoting Helm v. Kansas, 656 F.3d 1277, 1286 (10th Cir. 2011)). 113

Applying this concept to the case at hand, the alleged harasser was Gregg Roman, 114

plaintiff’s direct supervisor, and the Court found a triable issue as to his being a proxy for the 115

Forum. It wrote: 116

Roman served as the Chief Operating Officer, Director, and Secretary of the Board. 117

The jury heard testimony that . . . he was second in command at the Forum, and 118

was poised to “be the successor to become president of the organization. ” There 119

was testimony that his job was to “run[] the administration ” of the organization; 120

he was the “man in charge” of dictating policies for the day -to-day governance of 121